<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 7, 1995
REGISTRATION NO. 33-63111
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549-1004
----------------
AMENDMENT NO. 1
TO
REGISTRATION STATEMENT
ON
FORM S-6
----------------
FOR REGISTRATION UNDER THE SECURITIES ACT
OF 1933 OF SECURITIES OF UNIT INVESTMENT
TRUSTS REGISTERED ON FORM N-8B-2
A. EXACT NAME OF TRUST:
EVEREN UNIT INVESTMENT TRUSTS, SERIES 39
(formerly filed as EVEREN Portfolio Investment Concepts, Series 39)
B. NAME OF DEPOSITOR:
EVEREN UNIT INVESTMENT TRUSTS
a service of EVEREN Securities, Inc.
C. COMPLETE ADDRESS OF DEPOSITOR'S PRINCIPAL EXECUTIVE OFFICES:
77 West Wacker Drive, 29th Floor
Chicago, Illinois 60601
D. NAME AND COMPLETE ADDRESS OF AGENT FOR SERVICE:
Copy to:
ROBERT K. BURKE MARK J. KNEEDY
EVEREN Unit Investment Trusts c/o Chapman and Cutler
77 West Wacker Drive, 29th Floor 111 West Monroe Street
Chicago, Illinois 60601 Chicago, Illinois 60603
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
TITLE AND AMOUNT OF PROPOSED MAXIMUM AMOUNT OF
SECURITIES BEING REGISTERED AGGREGATE OFFERING PRICE REGISTRATION FEE
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Series 39 An indefinite number of Indefinite $500.00 (previously paid)
Units of Beneficial Inter-
est pursuant to Rule 24f-2
under the Investment Com-
pany Act of 1940
</TABLE>
E. APPROXIMATE DATE OF PROPOSED SALE TO PUBLIC:
As soon as practicable after the effective date of the Registration Statement.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
The registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a)
may determine.
<PAGE>
EVEREN UNIT INVESTMENT TRUSTS, SERIES 39
----------------
CROSS-REFERENCE SHEET
(FORM N-8B-2 ITEMS REQUIRED BY INSTRUCTIONS AS
TO THE PROSPECTUS IN FORM S-6)
<TABLE>
<CAPTION>
Form N-8B-2 Form S-6
Item Number Heading in Prospectus
----------- ---------------------
I. ORGANIZATION AND GENERAL INFORMATION
<C> <S> <C>
1. (a)Name of trust................... Prospectus front cover
(b)Title of securities issued...... Essential Information
2. Name and address of each depositor. Administration of the Trust
3. Name and address of trustee........ Administration of the Trust
4. Name and address of principal
underwriters...................... *
5. State of organization of trust..... The Trust Fund
6. Execution and termination of trust The Trust Fund; Administration of the
agreement......................... Trust Fund
7. Changes of name.................... The Trust Fund
8. Fiscal year........................ *
9. Litigation......................... *
II. GENERAL DESCRIPTION OF THE TRUST AND
SECURITIES OF THE TRUST
10. (a)Registered or bearer securities. Unitholders
(b)Cumulative or distributive
securities.................... The Trust Fund
(c)Redemption...................... Redemption
(d)Conversion, transfer, etc....... Unitholders; Market for Units
(e)Periodic payment plan........... *
(f)Voting rights................... Unitholders
(g)Notice of certificateholders.... Investment Supervision; Administration
of the Trust; Unitholders
(h)Consents required............... Unitholders; Administration of the
Trust
(i)Other provisions................ Federal Tax Status
11. Type of securities comprising The Trust Fund; The Trust Portfolio;
units............................. Portfolio
12. Certain information regarding
periodic payment certificates..... *
13. (a)Load, fees, expenses, etc....... Essential Information; Public Offering
of Units; Expenses of the Trusts
(b)Certain information regarding
periodic payment certificates. *
(c)Certain percentages............. Essential Information; Public Offering
of Units
(d)Certain other fees, etc. payable
by holders.................... Unitholders
(e)Certain profits receivable by
depositor, principal
underwriters, trustee or Expenses of the Trust; Public Offering
affiliated persons............ of Units
(f)Ratio of annual charges to
income........................ *
14. Issuance of trust's securities..... The Trust Fund; Unitholders
15. Receipt and handling of payments
from purchasers................... *
16. Acquisition and disposition of The Trust Fund; The Trust Portfolio;
underlying securities............. Investment Supervision; Market for
Units
17. Withdrawal or redemption........... Redemption; Public Offering of Units
</TABLE>
- --------
* Inapplicable, answer negative or not required.
i
<PAGE>
<TABLE>
<CAPTION>
Form N-8B-2 Form S-6
Item Number Heading in Prospectus
----------- ---------------------
<C> <S> <C>
18. (a)Receipt, custody and disposition
of income...................... Unitholders
(b)Reinvestment of distributions.... Unitholders
(c)Reserves or special funds........ Expenses of the Trust
(d)Schedule of distributions........ *
19. Records, accounts and reports....... Unitholders; Redemption;
Administration of the Trust
20. Certain miscellaneous provisions of
trust agreement
(a)Amendment........................ Administration of the Trust
(b)Termination......................
(c)and (d) Trustee, removal and
successor......................
(e) and (f) Depositor, removal and
successor......................
21. Loans to security holders........... *
22. Limitations on liability............ Administration of the Trust
23. Bonding arrangements................ *
24. Other material provisions of trust
agreement.......................... *
III. ORGANIZATION, PERSONNEL AND AFFILIATED PERSONS OF DEPOSITOR
25. Organization of depositor........... Administration of the Trust
26. Fees received by depositor.......... See Items 13(a) and 13(e)
27. Business of depositor............... Administration of the Trust
28. Certain information as to officials
and affiliated persons of
depositor.......................... Administration of the Trust
29. Voting securities of depositor......
30. Persons controlling depositor.......
31. Payment by depositor for certain
services rendered to trust......... *
32. Payment by depositor for certain
other services rendered to trust... *
33. Remuneration of employees of
depositor for certain services
rendered to trust.................. *
34. Remuneration of other persons for
certain services rendered to trust. *
IV. DISTRIBUTION AND REDEMPTION
35. Distribution of Trust's securities
by states.......................... Public Offering of Units
36. Suspension of sales of trust's
securities......................... *
37. Revocation of authority to
distribute.........................
38. (a)Method of Distribution........... Public Offering of Units;
(b)Underwriting Agreements.......... Market for Units;
(c)Selling Agreements............... Public Offering of Units
39. (a)Organization of principal
underwriters................... Administration of the Trust
(b)N.A.S.D. membership of principal
underwriters...................
40. Certain fees received by principal
underwriters....................... See Items 13(a) and 13(e)
41. (a)Business of principal
underwriters................... Administration of the Trust
(b)Branch offices of principal
underwriters................... *
(c)Salesmen of principal
underwriters...................
42. Ownership of trust's securities by
certain persons....................
43. Certain brokerage commissions
received by principal underwriters. Public Offering of Units
44. (a)Method of valuation.............. Public Offering of Units
(b)Schedule as to offering price.... *
(c)Variation in offering price to
certain persons................ Public Offering of Units
45. Suspension of redemption rights..... Redemption;
46. (a)Redemption valuation............. Redemption Market for Units; Public
Offering of Units
(b)Schedule as to redemption price.. *
47. Maintenance of position in
underlying securities.............. Market for Units; Public Offering of
</TABLE> Units; Redemption
- --------
* Inapplicable, answer negative or not required.
ii
<PAGE>
<TABLE>
<CAPTION>
Form N-8B-2 Form S-6
Item Number Heading in Prospectus
----------- ---------------------
V. INFORMATION CONCERNING THE TRUSTEE OR CUSTODIAN
<C> <S> <C>
48. Organization and regulation of
trustee........................... Administration of the Trust
49. Fees and expenses of trustee....... Expenses of the Trust
50. Trustees lien......................
VI. INFORMATION CONCERNING INSURANCE OF HOLDERS OF SECURITIES
51. Insurance of holders of trust's
securities........................ Cover Page; Expenses of the Trust
VII. POLICY OF REGISTRANT
52. (a)Provisions of trust agreement
with respect to selection or
elimination of underlying
securities.................... The Trust Fund; Investment Supervision
(b)Transactions involving
elimination of underlying
securities.................... *
(c)Policy regarding substitution or
elimination of underlying
securities.................... Investment Supervision
(d)Fundamental policy not otherwise
covered....................... *
53. Tax status of Trust................ Essential Information Portfolio;
Federal Tax Status
VIII. FINANCIAL AND STATISTICAL INFORMATION
54. Trust's securities during last ten
years............................. *
55.
56. Certain information regarding
periodic payment certificates.....
57.
58.
59. Financial statements (Instruction
1(c) to Form S-6)................. *
</TABLE>
- --------
* Inapplicable, answer negative or not required.
iii
<PAGE>
EVEREN UNIT INVESTMENT TRUSTS, SERIES 39
INDEX PORTFOLIO SERIES 1 (S & P 500)
EVEREN Unit Investment Trusts, Series 39 (Index Portfolio Series 1 (S & P 500))
(the "Trust" or "The S&P 500 Index Trust") was formed with the investment
objective of obtaining capital appreciation through investment in a portfolio
of equity securities of companies which comprise the Standard & Poor's 500
Stock Price Composite Index (the "S&P 500 Index"). By investing in
substantially all of the common stocks, in substantially the same proportions,
which comprise the S&P 500 Index, the Trust seeks to produce investment results
that generally correspond to the price and yield performance of the equity
securities represented by the S&P 500 Index over the term of the Trust. See
"The Trust Portfolio." The Trust is not sponsored by or affiliated with
Standard and Poor's. There is no assurance that the Trust will achieve its
objective.
Units of the Trust are not deposits or obligations of, or guaranteed by, any
bank, and the Units are not federally insured or otherwise protected by the
Federal Deposit Insurance Corporation and involve investment risk including
loss of principal.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
The investor is advised to read and retain this Prospectus for future
reference.
THE DATE OF THIS PROSPECTUS IS NOVEMBER 7, 1995.
<PAGE>
SUMMARY
THE TRUST FUND. EVEREN Unit Investment Trusts, Series 39 (Index Portfolio
Series 1 (S&P 500)) (the "Trust Fund," "Trust" or "The S&P 500 Index Trust")
is a unit investment trust registered under the Investment Company Act of
1940.
The Trust Fund initially consists of securities and delivery statements (i.e.,
contracts) to purchase common stocks issued by companies selected in
accordance with the selection and weightings of stocks established by the S&P
500 Index.* The initial deposit of Securities (including contracts) into the
Trust will consist of at least 100 shares of each of the stocks which comprise
the S&P 500 Index. Thereafter, the Sponsor intends to create and maintain a
Trust portfolio which duplicates, to the extent practicable, the weightings of
stocks which comprise the S&P 500 Index. During the initial deposit period of
the Trust the Sponsor will continue to deposit Securities (or contracts for
the purchase thereof) until at the end of such period the Trust comprises
substantially all of the stocks in the S&P 500 Index in substantially the same
weightings as in the S&P 500 Index (the "Initial Adjustment Period"). The
Sponsor estimates that the Initial Adjustment Period will last no longer than
30 days following the Initial Date of Deposit and could last as little as one
day. For the criteria used by the Sponsor in selecting the Securities, see
"The Trust Portfolio--Securities Selection." The value of all portfolio
Securities and, therefore, the value of the Units may be expected to fluctuate
in value depending on the full range of economic and market influences
affecting corporate profitability, the financial condition of issuers and the
prices of equity securities in general and the Securities in particular.
Capital appreciation is, of course, dependent upon several factors including,
among other factors, the financial condition of the issuers of the Securities
(see "The Trust Portfolio").
The Trust was formed with the investment objective of obtaining capital
appreciation over the life of the Trust through investment in a portfolio of
equity securities of substantially all of the companies which comprise the S&P
500 Index. There can be no assurance that this objective will be met because
it may be impracticable for the Trust to duplicate or maintain precisely the
relative weightings of the common stocks which comprise the S&P 500 Index or
to purchase all of such stocks. Additionally, an investment in Units of the
Trust includes payment of sales charges, fees and expenses which are not
considered in the total return of the S&P 500 Index.
Additional Units of the Trust may be issued at any time by depositing in the
Trust additional Securities or contracts to purchase additional Securities
together with irrevocable letters of credit or cash. As additional Units are
issued by the Trust as a result of the deposit of additional Securities by the
Sponsor, the aggregate value of the Securities in the Trust will be increased
and the fractional undivided interest in the Trust represented by each Unit
will be decreased. The Sponsor may continue to make additional deposits of
Securities into the Trust from time to time following the Initial Date of
Deposit, provided that such additional deposits will be in amounts which will
maintain, as closely as practicable, the proportionate relationship among each
Security in the S&P 500 Index. Thus, although additional Units will be issued,
each Unit will continue to represent approximately the same weighting of the
then current components of the S&P 500 Index. The required percentage
relationship among the Securities in the Trust will be adjusted to reflect the
occurrence of a stock dividend, a stock split or a similar event which affects
the capital structure of the issuer of a Security in the Trust but which does
not affect the Trust's percentage ownership of the common stock equity of such
issuer at the time of such event. Precise duplication of the relationship
among the Securities in the Trust may not be achieved because it may be
economically impracticable as a result of certain economic factors or
procedural policies of the Trust. See "The Trust Fund."
Each Unit of the Trust initially offered represents that undivided interest in
the Trust indicated under "Essential Information" (as may be adjusted pursuant
to footnote 1 thereto). To the extent that any Units are redeemed by the
Trustee or additional Units are issued as a result of additional Securities
being deposited by the Sponsor, the fractional undivided interest in the Trust
represented by each unredeemed Unit will increase or decrease accordingly,
although the actual interest in the Trust represented by such fraction will
- ----------
*"S&P(R)", "Standard & Poor's(R)", "S&P 500(R)" and "Standard & Poor's 500"
are trademarks of The McGraw-Hill Companies, Inc.
2
<PAGE>
remain unchanged. Units will remain outstanding until redeemed upon tender to
the Trustee by Unitholders, which may include the Sponsor, or until the
termination of the Trust Agreement.
PUBLIC OFFERING PRICE. The Public Offering Price per Unit of the Trust Fund
during the initial offering period is based on the aggregate underlying value
(generally determined by the closing sale prices of listed
Securities and the ask prices of over-the-counter traded Securities see "Public
Offering of Units--Public Offering Price") of the Securities in the Trust plus
or minus a pro rata share of cash, if any, in the Capital Account held or owned
by the Trust, plus a sales charge described herein. The Maximum Sales Charge
consists of three portions: (1) an Initial Sales Charge which may be assessed
on all purchases commencing January 1, 1997; (2) an annual Deferred Sales
Charge which will be assessed only during the first five years of the Trust's
life; and (3) an Annual Sales Charge which will be assessed for the duration of
the Trust. The Initial Sales Charge per Unit will be an amount equal to the
difference between $0.375 and that portion of the total Deferred Sales Charge
remaining to be paid. The total Deferred Sales Charge will be $0.375 per Unit
which will be assessed annually in the amount of $0.075 per Unit. The Deferred
Sales Charge will be assessed each December 31, commencing December 31, 1996
and continuing through December 31, 2000. The Annual Sales Charge will be
$0.025 per Unit per year and will be assessed on a quarterly basis. The
Deferred Sales Charge and Annual Sales Charge payments will accrue daily and it
is the current intent of the Sponsor that such payments will be paid from funds
in the Income Account, if sufficient, or from the periodic sale of Securities.
If Units are purchased during 1995 and held until the mandatory termination of
the Trust in 2011, the total sales charge paid will be $0.754 per Unit.
Unitholders disposing of their Units prior to such time as the entire Deferred
Sales Charge on such Units has been collected will be assessed the amount of
the Deferred Sales Charge payments remaining at the time of such disposition.
After the initial public offering period, the secondary market Public Offering
Price will be equal to the aggregate underlying value of the Securities in the
Trust (generally determined by the closing sale prices of listed Securities and
the bid prices of over-the-counter traded Securities), plus or minus a pro rata
share of cash, if any, in the Capital Account held or owned by the Trust, plus
that sales charge described under "Public Offering of Units--Public Offering
Price."
DISTRIBUTIONS OF INCOME AND CAPITAL. Distributions of dividends received by the
Trust will be distributed quarterly and any funds in the Capital Account will
be made annually. See "Unitholders--Distributions to Unitholders."
REINVESTMENT. Each Unitholder who purchases greater than 2,500 Units or $25,000
of the Trust may elect to have distributions of income, capital gains and/or
capital on their Units automatically invested into additional Units of the
Trust subject only to any Deferred Sales Charge and the Annual Sales Charge. In
addition, all Unitholders may elect to have such distributions automatically
reinvested into shares of any Kemper Financial Services, Inc. front-end load
mutual fund (other than those funds sold with a contingent deferred sales
charge) registered in such Unitholder's state of residence at net asset value.
Such distributions will be reinvested without charge to the participant on each
applicable Distribution Date. See "Unitholders--Distribution Reinvestment." A
current prospectus for the reinvestment fund selected, if any, will be
furnished to any investor who desires additional information with respect to
reinvestment.
MARKET FOR UNITS. While under no obligation to do so, the Sponsor intends to,
and certain dealers may, maintain a market for the Units of the Trust and offer
to repurchase such Units at prices subject to change at any time which are
based on the current underlying bid prices of the Securities in the Trust
(offer prices during the initial offering period). If the supply of Units
exceeds demand or if some other business reason warrants it, the Sponsor and/or
the dealers may either discontinue all purchases of Units or discontinue
purchases of Units at such prices. A Unitholder may also dispose of Units
through redemption at the Redemption Price on the date of tender to the
Trustee. See "Redemption--Computation of Redemption Price."
3
<PAGE>
TERMINATION. No later than the date specified under the Mandatory Termination
Date in "Essential Information," Securities will begin to be sold in connection
with the termination of the Trust and it is expected that all Securities in the
Trust will be sold within a reasonable amount of time after the Mandatory
Termination Date. The Sponsor will determine the manner, timing and execution
of the sale of the underlying Securities. At termination, Unitholders will
receive a cash distribution within a reasonable time after the Trust is
terminated. See "Unitholders--Distributions to Unitholders" and "Administration
of the Trust--Amendment and Termination."
RISK FACTORS. An investment in the Trust should be made with an understanding
of the risks associated therewith, including the possible deterioration of
either the financial condition of the issuers or the general condition of the
stock market. Additionally, it is anticipated that the identity and weighting
of the stocks in the S&P 500 Index will change from time to time and the
adverse financial condition of a company will not result directly in its
elimination from the portfolio unless the company is removed from the S&P 500
Index. For risk considerations related to the Trust, see "Risk Factors."
4
<PAGE>
EVEREN UNIT INVESTMENT TRUSTS, SERIES 39
INDEX PORTFOLIO SERIES 1 (S&P 500)
ESSENTIAL INFORMATION
AS OF NOVEMBER 6, 1995*
SPONSOR AND EVALUATOR: EVEREN UNIT INVESTMENT TRUSTS, A SERVICE OF EVEREN
SECURITIES, INC.
TRUSTEE: THE BANK OF NEW YORK
LICENSOR: STANDARD & POOR'S
<TABLE>
<S> <C>
Number of Units (1)................... 220,611
Fractional Undivided Interest Per
Unit(1).............................. 1/220,611
Public Offering Price:
Aggregate Value of Securities in
Portfolio (2)....................... $2,206,106
Aggregate Value of Securities per
Unit................................ $10.000
Plus Maximum Sales Charge per Unit
(3) ................................ $ 0.754
Less deferred sales charges per Unit
(3) ................................ $ 0.754
Public Offering Price Per Unit (4)... $10.000
Redemption Price Per Unit (5)......... $10.000
Sponsor's Initial Repurchase Price Per
Unit................................. $ 9.625
Excess of Public Offering Price Per
Unit over Redemption Price Per Unit
(5).................................. $ 0.000
Excess of Public Offering Price Per
Unit over Sponsor's Initial
Repurchase Price Per Unit............ $ 0.375
Calculation of Estimated Net Annual
Dividends Per Unit: (6)
Estimated Gross Annual Dividends per
Unit................................ $ 0.23000
Less: Estimated Annual Expense per
Unit................................ $ 0.03300
Less: deferred sales charge.......... $ 0.10000
Estimated Net Annual Dividends per
Unit................................ $ 0.09700
Minimum Value of the Trust under which 40% of aggregate value of Securities at
Trust Agreement may be Terminated.... deposit
Liquidation Period.................... January 1, 2012 through January 31, 2012
Mandatory Termination Date............ December 31, 2011
Evaluator's Annual Evaluation Fee..... Maximum of $0.0015 per Unit
Trustee's Annual Fee(7)............... $0.0086 per Unit
Estimated Annual Organizational
Expenses (8)......................... $0.0102 per Unit
FIRST day of January, April, July and
Record and Computation Dates (9)...... October
FIFTEENTH day of January, April, July
Distribution Dates (9)................ and October
</TABLE>
Evaluations for purposes of sale, purchase or redemption of Units of the Trust
Fund are made as of 3:15 p.m. Central Time next following receipt of an order
for a sale or purchase of Units or receipt by the Trustee of Units tendered
for redemption.
* The business day prior to the Initial Date of Deposit
- ---------------------
(1) As of the close of business on the Initial Date of Deposit, the number of
Units of the Trust may be adjusted so that the aggregate value of
Securities per Unit will equal approximately $10. Therefore, to the extent
of any such adjustment the fractional undivided interest per Unit will
increase or decrease accordingly, from the amounts indicated above.
(2) Each Security listed on a national securities exchange is valued at the
last sales price, or if the Security is not listed on a national
securities exchange, at the last offer price on the over-the-counter
market.
(3) The Maximum Sales Charge consists of three portions: (1) an Initial Sales
Charge which may be assessed on all purchases commencing January 1, 1997;
(2) an annual Deferred Sales Charge which will be assessed only during the
first five years of the Trust's life; and (3) an Annual Sales Charge which
will be assessed for the duration of the Trust. The Initial Sales Charge
per Unit will be an amount equal to the difference between $0.375 and that
portion of the total Deferred Sales Charge remaining to be paid. The total
Deferred Sales Charge will be $0.375 per Unit which will be assessed
annually in the amount of $0.075 per Unit. The Deferred Sales Charge will
be assessed each December 31, commencing December 31, 1996 and continuing
through December 31, 2000. The Annual Sales Charge will be $0.025 per Unit
per year and will be assessed on a quarterly basis. The Deferred Sales
Charge and Annual Sales Charge payments will accrue daily and it is the
current intent of the Sponsor that such payments will be paid from funds
in the Income Account, if sufficient, or from the periodic sale of
Securities. If Units are purchased during 1995 and held until the
mandatory termination of the Trust in 2011, the total sales charge paid
will be $0.754 per Unit. Unitholders disposing of their Units prior to
such time as the entire Deferred Sales Charge on such Units has been
collected will be assessed the amount of the Deferred Sales Charge
payments remaining at the time of such disposition.
(4) On the Initial Date of Deposit there will be no accumulated dividends in
the Income Account. Anyone ordering Units after such date will pay his pro
rata share of any accumulated dividends in such Income Account.
5
<PAGE>
(5) The Redemption Price Per Unit is reduced by the unpaid portion of the
Deferred Sales Charge.
(6) The estimated annual dividends per Unit is based primarily on the most
recent dividend declarations as of November 3, 1995 for all of the stocks
in the S&P 500 Index. The actual net annual dividends per Unit may be
greater than or less than the amount shown depending on the actual
dividends collected and expenses incurred by the Trust.
(7) In addition to the Trustee's fee, brokerage costs borne by the Trust in
connection with the purchase of additional securities by the Trustee are
currently estimated at $0.007 per Unit.
(8) The Trust (and therefore Unitholders) will bear all or a portion of its
organizational costs (including costs of preparing the registration
statement, the trust indenture and other closing documents, registering
Units with the Securities and Exchange Commission and states, the initial
audit of the portfolio and the initial fees and expenses of the Trustee
but not including the expenses incurred in the preparation and printing of
brochures and other advertising materials and any other selling expenses)
as is common for mutual funds. Total organizational expenses will be
amortized over a five year period. See "Expenses of the Trust" and
"Statement of Condition." Historically, the sponsors of unit investment
trusts have paid all the costs of establishing such trusts.
(9) Distributions from the Capital Account will be made monthly payable on the
fifteenth day of the month to Unitholders of record on the first day of
such month if the amount available for distribution equals at least $1.00
per 100 Units. Notwithstanding, distributions of funds in the Capital
Account, if any, will be distributed annually.
6
<PAGE>
FEE TABLE
This Fee Table is intended to assist investors in understanding the costs and
expenses that an investor in a Trust will bear directly or indirectly. See
"Public Offering of Units" and "Expenses of the Trust." Although the Trust is
a unit investment trust rather than a mutual fund and may have a term of less
than the periods indicated, this information is presented to permit a
comparison of fees.
<TABLE>
<CAPTION>
AMOUNT PER
UNIT
----------
<S> <C> <C>
UNITHOLDER TRANSACTION EXPENSES (AS OF THE INITIAL DATE OF
DEPOSIT)
Initial Sales Charge (as a percentage of offering
price).................................................. 0.00% $0.000
Deferred Sales Charge (as a percentage of offering
price, payable over five years)......................... 3.75% 0.375
Annual Sales Charge (accumulated over the 15 year term
of the Trust as a percentage of offering price)......... 3.79% 0.379
------ -------
Maximum Total Sales Charge................................ 7.54%(1) $0.754
====== =======
ESTIMATED ANNUAL FUND OPERATING EXPENSES (AS OF THE
INITIAL DATE OF DEPOSIT)
(AS A PERCENTAGE OF NET ASSETS)
Trustee's Fee............................................ 0.086% $0.0086
Portfolio Evaluation Fees................................ 0.015% 0.0015
Organizational Expenses.................................. 0.102% 0.0102
Other Operating Expenses................................. 0.127% 0.0127
------ -------
Total.................................................. 0.330% $0.0330
====== =======
</TABLE>
EXAMPLE
<TABLE>
<CAPTION>
CUMULATIVE EXPENSES PAID FOR
PERIOD OF:
-------------------------------
1 YEAR 3 YEARS 5 YEARS 10 YEARS
------ ------- ------- --------
<S> <C> <C> <C> <C>
An investor would pay the following expenses
on a $1,000 investment, assuming the
applicable sales charges and an estimated
initial operating expense ratio of 0.330% on
the Trust (which is expected to decline to
0.224% during the third year of the Trust's
life), a 5% annual return and redemption at
the end of each time period................. $44 $54 $64 $90
</TABLE>
The example utilizes a 5% annual rate of return as mandated by Securities and
Exchange Commission regulations applicable to mutual funds. The examples
should not be considered representations of past or future expenses or annual
rate of return; the actual expenses and annual rate of return may be more or
less than those assumed for purposes of the examples.
- ---------------------
(1) The Maximum Sales Charge consists of three portions: (1) an Initial Sales
Charge which may be assessed on all purchases commencing January 1, 1997;
(2) an annual Deferred Sales Charge which will be assessed only during the
first five years of the Trust's life; and (3) an Annual Sales Charge which
will be assessed for the duration of the Trust. The Initial Sales Charge
per Unit will be an amount equal to the difference between $0.375 and that
portion of the total Deferred Sales Charge remaining to be paid. The total
Deferred Sales Charge will be $0.375 per Unit which will be assessed
annually in the amount of $0.075 per Unit. The Deferred Sales Charge will
be assessed each December 31, commencing December 31, 1996 and continuing
through December 31, 2000. The Annual Sales Charge will be $0.025 per Unit
per year and it is the current intent of the Sponsor that such payments
will be assessed on a quarterly basis. The Deferred Sales Charge and
Annual Sales Charge payments will accrue daily and will be paid from funds
in the Income Account, if sufficient, or from the periodic sale of
Securities. If Units are purchased during 1995 and held until the
mandatory termination of the Trust in 2011, the total sales charge paid
will be $0.754 per Unit. Unitholders disposing of their Units prior to
such time as the entire Deferred Sales Charge on such Units has been
collected will be assessed the amount of the Deferred Sales Charge
payments remaining at the time of such disposition.
7
<PAGE>
THE TRUST FUND
EVEREN Unit Investment Trusts, Series 39 (Index Portfolio Series 1 (S&P 500)),
is a unit investment trust created under the laws of the State of New York
pursuant to a trust indenture dated the Initial Date of Deposit (the "Trust
Agreement") between EVEREN Unit Investment Trusts, a service of EVEREN
Securities, Inc. (the "Sponsor") and The Bank of New York (the "Trustee").*
The portfolio contains common stocks issued by substantially all of the
companies which comprise the S&P 500 Index. As used herein, the term
"Securities" means the common stocks (including contracts for the purchase
thereof) initially deposited in the Trust Fund and described in the portfolio
and any additional common stocks acquired and held by the Trust Fund pursuant
to the provisions of the Trust Agreement.
On the Initial Date of Deposit, the Sponsor delivered to the Trustee Securities
or contracts for the purchase thereof for deposit in the Trust. This initial
deposit into the Trust consisted of at least 100 shares of each of the stocks
which comprise the S&P 500 Index. During the Initial Adjustment Period, the
Sponsor intends to create and maintain a Trust portfolio which duplicates, to
the extent practicable, the weightings of stocks which comprise the S&P 500
Index. The Sponsor anticipates that within the Initial Adjustment Period the
Trust will comprise the stocks in the S&P 500 Index in substantially the same
weightings as in the S&P 500 Index. In connection with any deposit of
Securities, purchase and sale transactions will be effected in accordance with
computer program output showing which Securities are under- or over-represented
in the Trust portfolio. Neither the Sponsor nor the Trustee will exercise any
investment discretion in connection with such transactions. Precise duplication
of the relationship among the Securities in the S&P 500 Index may not be
achieved because it may be economically impracticable or impossible to acquire
very small numbers of shares of certain stocks and because of other procedural
policies of the Trust, but correlation between the performance of the S&P 500
Index and the Trust portfolio is expected to be between .97 and .99.
By investing in substantially all of the common stocks, in substantially the
same proportions, which comprise the S&P 500 Index, the Trust seeks to produce
investment results that generally correspond to the price and yield performance
of the equity securities represented by the S&P 500 Index over the term of the
Trust. Due to various factors discussed below, there, of course, can be no
assurance that this objective will be met. An investment in Units of the Trust
should be made with an understanding that the Trust includes payments of sales
charges, fees and expenses which are not considered in public statements of the
total return of the S&P 500 Index.
Subsequent to the Initial Date of Deposit, the Sponsor may deposit additional
Securities or contracts to purchase additional Securities along with cash (or a
bank letter of credit in lieu of cash) to pay for such contracted Securities,
maintaining, as closely as practicable the same proportionate relationship
among the Securities in the portfolio as reflected in the S&P 500 Index. Thus,
although additional Units will be issued, each Unit will continue to represent
approximately a weighting of the then current components of the S&P 500 Index
at any such deposit. The required percentage relationship among the Securities
in the Trust Fund will be adjusted to reflect the occurrence of a stock
dividend, a stock split or a similar event which affects the capital structure
of the issuer of a Security in the Trust Fund but which does not affect the
Trust Fund's percentage ownership of the common stock equity of such issuer at
the time of such event. Precise duplication of the relationship among the
Securities in the Trust may not be achieved because it may be economically
impracticable as a result of certain economic factors and procedural policies
of the Trust such as (1) price movements of the various Securities will not
duplicate one another, (2) the Sponsor's current intention is to purchase
shares of the Securities in round lot quantities only, (3) reinvestment of
excess
proceeds not needed to meet redemptions of Units may not be sufficient to
acquire equal round lots of all the Securities in the Trust and (4)
reinvestment of proceeds received from Securities which are no longer
components of the S&P 500 Index might not result in the purchase of an equal
number of shares in any replacement Security.
- ----------
*Reference is made to the Trust Agreement and any statement contained herein is
qualified in its entirety by the provisions of the Trust Agreement.
8
<PAGE>
The Trust consists of (a) the Securities listed under "Portfolio" as may
continue to be held from time to time in the Trust, (b) any additional
Securities acquired and held by the Trust pursuant to the provisions of the
Trust Agreement and (c) any cash held in the Income and Capital Accounts.
Neither the Sponsor nor the
Trustee shall be liable in any way for any failure in any of the Securities.
However, should any contract for the purchase of any of the Securities
initially deposited hereunder fail, the Sponsor will, unless substantially all
of the moneys held in the Trust to cover such purchase are reinvested in
substitute Securities in accordance with the Trust Agreement, refund the cash
and sales charge attributable to such failed contract to all Unitholders on the
next distribution date.
On the Initial Date of Deposit, the Sponsor delivered to the Trustee Securities
or contracts for the purchase thereof for deposit in the Trust Fund. For the
Securities so deposited, the Trustee delivered to the Sponsor documentation
evidencing the ownership of that number of Units of the Trust Fund set forth
under "Essential Information."
THE TRUST PORTFOLIO
General. The Trust portfolio will consist of as many of the S&P 500 Index
stocks as is feasible in order to achieve the Trust's objective of attempting
to provide investment results that duplicate substantially the total return of
the S&P 500 Index. Following the Initial Adjustment Period, the Trust will be
invested in no less than 95% of the S&P 500 Index stocks. Although it may be
impracticable for the Trust to own certain of such stocks at any time, the
Sponsor expects to maintain a correlation between the performance of the Trust
portfolio and that of the S&P 500 Index of between .97 and .99. Adjustments to
the Trust portfolio will be made on an ongoing basis in accordance with the
computer program output to match the weightings of the Securities as closely as
is feasible with their weightings in the S&P 500 Index as the Trust invests in
new Securities in connection with the creation of additional Units, as
companies are dropped from or added to the index or as Securities are sold to
meet redemptions. These adjustments will be made on the business day following
the relevant transaction in accordance with computer program output showing
which of the Securities are under- or over-represented in the Trust portfolio.
Adjustments may also be made from time to time to maintain the appropriate
correlation between the Trust and the S&P 500 Index. The proceeds from any sale
will be invested in those Securities which the computer program indicates are
most under-represented in the portfolio. See "Investment Supervision."
Due to changes in the composition of the S&P 500 Index, adjustments to the
Trust portfolio may be made from time to time. It is anticipated that most of
such changes in the index will occur as a result of merger or acquisition
activity. In such cases, the Trust, as a shareholder of an issuer which is the
object of such merger or acquisition activity, will presumably receive various
offers from potential acquirers of the issuer. The Trustee is not permitted to
accept any such offers until such time as the issuer has been removed from the
S&P 500 Index. Since, in most cases, an issuer is removed from the index only
after the consummation of a merger or acquisition, it is anticipated that the
Trust will generally acquire, in exchange for the stock of the deleted issuer,
the consideration that is being offered to shareholders of that issuer who have
not tendered their shares prior to that time. Any cash received as
consideration in such transactions will be reinvested in the most under-
represented Securities as determined by the computer program output. Any
securities received as consideration which are not included in the S&P 500
Index will be sold as soon as practicable and will also be reinvested in the
most under-represented Securities as determined by the computer program output.
In attempting to duplicate the proportionate relationships represented by the
S&P 500 Index, the Sponsor does not anticipate purchasing or selling stock in
quantities of less than round lots (100 shares). In addition, certain
Securities may not be available in the quantities specified by the computer
program. For these reasons, among others, precise duplication of the
proportionate relationships in the index may not be possible but will continue
to be the goal of the Trust in connection with acquisitions or dispositions of
9
<PAGE>
Securities. See "Investment Supervision." As the holder of the Securities, the
Trustee will have the right to vote all of the voting stocks in the Trust
portfolio and will vote such stocks in accordance with the instructions of the
Sponsor except that, if the Trustee holds any of the common stock of EVEREN
Capital Corporation (the parent company of EVEREN Securities, Inc.) or any
other common stocks of companies which are affiliates of the Sponsor, the
Trustee will vote such stock in the same proportionate relationship as all
other shares of such companies are voted.
Investors should note that the Trust is not sponsored, endorsed, sold or
promoted by Standard & Poor's and Standard & Poor's makes no representation,
express or implied, to the Trust or Unitholders regarding the advisability of
investing in index or unit investment trusts generally or in the Trust
specifically or the ability of the S&P 500 Index to track general stock market
performance.
Although there can be no assurance that such Securities will appreciate in
value over the life of the Trust, over time stock investments have generally
out-performed most other asset classes. However, it should be remembered that
common stocks carry greater risks, including the risk that the value of an
investment can decrease (see "Risk Factors--Certain Investment
Considerations"), and past performance is no guarantee of future results.
THE S&P 500 INDEX. The S&P 500 Index is composed of 500 selected common stocks,
most of which are listed on the New York Stock Exchange. This well-known index,
originally consisting of 233 stocks in 1923, was expanded to 500 stocks in 1957
and was restructured in 1976 to a composite consisting of industrial, utility,
financial and transportation market sectors. It contains a variety of companies
with diverse capitalization, market-value weighted to represent the overall
market. The index represents over 70% of U.S. stock market capitalization. The
index is often used as a benchmark of general market activity and is currently
one of the U.S. Commerce Department's leading economic indicators. As of
September 29, 1995, the S&P 500 Index was comprised of the following industry
sectors: Industrials (75.7%), Utilities (9.7%), Financials (12.9%) and
Transportation (1.7%). As of September 29, 1995, the companies in the S&P 500
Index were listed on the following stock exchanges in the amounts indicated:
New York Stock Exchange--455 companies (93%), NASDAQ--39 companies (6%) and
American Stock Exchange--6 companies (1%). Additionally, the S&P 500 Index
represents approximately 74% of the aggregate market value of common stocks
traded on the New York Stock Exchange. At present, the mean market
capitalization of the companies in the S&P 500 Index is approximately $5.6
billion. As of September 30, 1995, the S&P 500 Index had a total market value
of $4.309 trillion.
The following chart graphically depicts the Year-End Index Value for the S&P
500 Index for the period shown. The Year-End Index Values are computed as
described in the table which follows. Investors should note that the chart
represents past performance of the S&P 500 Index and not the past or future
performance of the Trust (which includes certain fees and expenses). Past
performance is, of course, no guarantee of future results.
LOGO
Source: Standard & Poor's.
10
<PAGE>
The following table shows the performance of the S&P 500 Index for 1960
through November 3, 1995. Stock prices fluctuated widely during the period and
were higher at the end than at the beginning. The results shown should not be
considered as a representation of the income yield or capital gain or loss
which may be generated by the S&P 500 Index in the future.
<TABLE>
<CAPTION>
YEAR-END
INDEX VALUE
YEAR-END DIVIDENDS
YEAR-END INDEX VALUE CHANGE IN INDEX AVERAGE YIELD REINVESTED
YEAR INDEX VALUE* 1960 = 100 FOR YEAR FOR YEAR* 1960 = 100**
- ---- ------------ ----------- --------------- ------------- ------------
<S> <C> <C> <C> <C> <C>
1960.................... 58.11 100.00 --% 3.47% 100.00
1961.................... 71.55 123.13 23.13 2.98 126.79
1962.................... 63.10 108.59 11.81 3.37 115.71
1963.................... 75.02 129.10 18.89 3.17 141.93
1964.................... 84.75 145.84 12.97 3.01 165.09
1965.................... 92.43 159.06 9.06 3.00 185.48
1966.................... 80.33 138.24 13.09 3.40 165.11
1967.................... 96.47 166.01 20.09 3.20 204.54
1968.................... 103.86 178.73 7.66 3.07 227.00
1969.................... 92.06 158.42 11.36 3.24 207.89
1970.................... 92.15 158.58 0.10 3.83 216.06
1971.................... 102.09 110.79 10.79 3.33 247.52
1972.................... 118.05 128.11 15.63 3.09 294.30
1973.................... 97.55 105.86 -17.37 2.86 250.83
1974.................... 68.56 74.40 -29.72 3.69 184.64
1975.................... 90.19 97.87 31.55 5.37 253.25
1976.................... 107.46 116.61 19.15 4.49 312.94
1977.................... 95.10 103.20 -11.50 4.35 289.72
1978.................... 96.11 104.30 1.06 5.33 308.20
1979.................... 107.94 117.14 12.31 5.88 364.29
1980.................... 135.76 147.33 25.77 5.74 481.86
1981.................... 122.55 132.99 - 9.73 4.88 457.72
1982.................... 140.64 152.62 14.76 5.61 555.84
1983.................... 164.93 178.98 17.27 5.04 680.24
1984.................... 167.24 181.49 1.40 4.49 721.73
1985.................... 211.28 229.28 26.33 4.72 949.59
1986.................... 242.17 262.80 14.62 3.92 1,125.83
1987.................... 247.08 278.97 2.03 3.64 1,183.25
1988.................... 277.72 301.38 12.40 3.79 1,379.78
1989.................... 353.40 383.51 27.25 3.98 1,617.04
1990.................... 330.22 358.35 - 6.56 3.42 1,760.71
1991.................... 417.09 452.62 26.31 3.70 2,297.20
1992.................... 435.71 749,79 4.46 2.97 2,472.25
1993.................... 466.45 802.70 7.06 2.78 2,721.45
1994.................... 459.27 790.53 - 1.54 2.42 2,757.25
1995 through November 3,
1995................... 590.57 1,016.53 28.59 N/A N/A
</TABLE>
- ----------
* Source: Standard & Poor's. The Year-End Index Value for 1959 was $59.89.
Yields are obtained by dividing the aggregate cash dividends by the
aggregate market value of the stocks in the index at the beginning of the
period, assuming no reinvestment of dividends.
** Assumes that cash distributions on the securities which comprise the S&P
500 Index are treated as reinvested in the S&P 500 Index as of the end of
each month following the payment of the dividend. Because the Trust is sold
to the public at net asset value plus the applicable sales charge and the
expenses of the Trust are deducted before making distributions to
Unitholders, investment in the Trust would have resulted in investment
performance to Unitholders somewhat reduced from that reflected in the
above table. In addition certain Unitholders may not elect to purchase
additional Units pursuant to the Trust's reinvestment plan, and to that
extent cash distributions representing dividends on the index stocks may
not be reinvested in other index stocks.
11
<PAGE>
The weightings of stocks in the S&P 500 Index are primarily based on each
stock's relative total market value; that is, its market price per share times
the number of shares outstanding. The S&P 500 Index currently represents over
70% of the total market capitalization of stocks traded in the United States.
Stocks are generally selected for the portfolio in the order of their
weightings in the S&P 500 Index, beginning with the heaviest-weighted stocks.
It is anticipated that at the end of the Initial Adjustment Period, the
percentage of the Trust's assets invested in each stock will be approximately
the same as the percentage it represents in the S&P 500 Index.
The Trust has entered into a license agreement with Standard & Poor's (the
"License Agreement"), under which the Trust is granted licenses to use the
trademark and tradename "S&P 500" and other trademarks and tradenames, to the
extent the Sponsor deems appropriate and desirable under federal and state
securities laws to indicate the source of the index as a basis for determining
the composition of the Trust's portfolio. As consideration for the grant of the
license, the Trust will pay to Standard & Poor's an annual fee equal to .02% of
the average net asset value of the Trust (or, if greater, $10,000). The License
Agreement permits the Trust to substitute another index for the S&P 500 Index
in the event that Standard & Poor's ceases to compile and publish that index.
In addition, if the index ceases to be compiled or made available or the
anticipated correlations between the Trust and the index is not maintained, the
Sponsor may direct that the Trust continue to be operated using the S&P 500
Index as it existed on the last date on which it was available or may direct
that the Trust Agreement be terminated (see "Administration of the Trust--
Amendment and Termination").
Neither the Trust nor the Unitholders are entitled to any rights whatsoever
under the foregoing licensing arrangements or to use any of the covered
trademarks or to use the S&P 500 Index, except as specifically described herein
or as may be specified in the Trust Agreement.
The Trust is not sponsored, endorsed, sold or promoted by Standard & Poor's
("S&P"). S&P makes no representation or warranty, express or implied, to the
owners of the Trust or any member of the public regarding the advisability of
investing in securities generally or in the Trust particularly or the ability
of the S&P 500 Index to track general stock market performance. S&P's only
relationship to the Licensee is the licensing of certain trademarks and trade
names of S&P and of the S&P 500 Index which is determined, composed and
calculated by S&P without regard to the Licensee or the Trust. S&P has no
obligation to take the needs of the Licensee or the owners of the Trust into
consideration in determining, composing or calculating the S&P 500 Index. S&P
is not responsible for and has not participated in the determination of the
prices and amount of the Trust or the timing of the issuance or sale of the
Trust or in the determination or calculation of the equation by which the Trust
is to be converted into cash. S&P has no obligation or liability in connection
with the administration, marketing or trading of the Trust.
S&P does not guarantee the accuracy and/or the completeness of the S&P 500
Index or any data included therein and S&P shall have no liability for any
errors, omissions, or interruptions therein. S&P makes no warranty, express or
implied, as to results to be obtained by the Sponsor, the Trust, any person or
any entity from the use of the S&P 500 Index or any data included therein. S&P
makes no express or implied warranties, and expressly disclaims all warranties
of merchantability or fitness for a particular purpose or use, with respect to
the S&P 500 Index or any data included therein. Without limiting any of the
foregoing, in no event shall S&P have any liability for any special, punitive,
indirect, or consequential damages (including lost profits), even if notified
of the possibility of such damages. Standard & Poor's(R)", "S&P(R)", "S&P
500(R)", "Standard & Poor's 500", and "500" are trademarks of The McGraw-Hill
Companies, Inc. and have been licensed for use by the Trust. The Trust is not
sponsored, endorsed, sold or promoted by Standard & Poor's and Standard &
Poor's makes no representation regarding the advisability of investing in the
Trust.
12
<PAGE>
Information on the S&P 500 Index contained in this Prospectus, as further
updated, may also be included from time to time in other prospectuses or in
advertising material. The performance of the Trust or of the S&P 500 Index
(provided information is also given reflecting the performance of the Trust in
comparison to that index) may also be compared to the performance of money
managers as reported in SEI Fund Evaluation Survey (the leading data base of
tax-exempt assets consisting of over 4,000 portfolios with total assets of $250
billion) or of mutual funds as reported by Lipper Analytical Services Inc.
(which calculates total return using actual dividends on ex-dates accumulated
for the quarter and reinvested at quarter end), Money Magazine Fund Watch
(which rates fund performance over a specified time period after sales charge
and assuming all dividends reinvested) or Wiesenberger Investment Companies
Service (which states fund performance annually on a total return basis) or of
the New York Stock Exchange Composite Index, the American Stock Exchange Index
(unmanaged indices of stocks traded on the New York and American Stock
Exchanges, respectively), the Dow Jones Industrial Average (an index of 30
widely traded industrial common stocks) or the NASDAQ Composite Index (an
unmanaged index of over-the-counter stocks) or similar measurement standards
during the same period of time.
RISK FACTORS
General. The Trust Fund may be an appropriate investment vehicle for investors
who desire to participate in a portfolio of equity securities with greater
diversification than they might be able to acquire individually. An investment
in Units of the Trust Fund should be made with an understanding of the risks
inherent in an investment in equity securities, including the risk that the
financial condition of issuers of the Securities may become impaired or that
the general condition of the stock market may worsen (both of which may
contribute directly to a decrease in the value of the Securities and thus, in
the value of the Units) or the risk that holders of common stock have a right
to receive payments from the issuers of those stocks that is generally inferior
to that of creditors of, or holders of debt obligations issued by, the issuers
and that the rights of holders of common stock generally rank inferior to the
rights of holders of preferred stock. Common stocks are especially susceptible
to general stock market movements and to volatile increases and decreases in
value as market confidence in and perceptions of the issuers change. These
perceptions are based on unpredictable factors including expectations regarding
government, economic, monetary and fiscal policies, inflation and interest
rates, economic expansion or contraction, and global or regional political,
economic or banking crises.
Certain Investment Considerations. Holders of common stock incur more risk than
the holders of preferred stocks and debt obligations because common
stockholders, as owners of the entity, have generally inferior rights to
receive payments from the issuer in comparison with the rights of creditors of,
or holders of debt obligations or preferred stock issued by the issuer. Holders
of common stock of the type held by the portfolio have a right to receive
dividends only when and if, and in the amounts, declared by the issuer's Board
of Directors and to participate in amounts available for distribution by the
issuer only after all other claims on the issuer have been paid or provided
for. By contrast, holders of preferred stock have the right to receive
dividends at a fixed rate when and as declared by the issuer's Board of
Directors, normally on a cumulative basis, but do not participate in other
amounts available for distribution by the issuing corporation. Cumulative
preferred stock dividends must be paid before common stock dividends and any
cumulative preferred stock dividend omitted is added to future dividends
payable to the holders of cumulative preferred stock. Preferred stocks are also
entitled to rights on liquidation which are senior to those of common stocks.
Moreover, common stocks do not represent an obligation of the issuer and
therefore do not offer any assurance of income or provide the degree of
protection of capital debt securities. Indeed, the issuance of debt securities
or even preferred stock will create prior claims for payment of principal,
interest, liquidation preferences and dividends which could adversely affect
the ability and
13
<PAGE>
inclination of the issuer to declare or pay dividends on its common stock or
the rights of holders of common stock with respect to assets of the issuer upon
liquidation or bankruptcy. Further, unlike debt securities which typically have
a stated principal amount payable at maturity (whose value, however, will be
subject to market fluctuations prior thereto), common stocks have neither a
fixed principal amount nor a maturity and have values which are subject to
market fluctuations for as long as the stocks remain outstanding. The value of
the Securities in the portfolios thus may be expected to fluctuate over the
entire life of the Trust Fund to values higher or lower than those prevailing
on the Initial Date of Deposit.
Whether or not the Securities are listed on a national security exchange, the
principal trading market for the Securities may be in the over-the-counter
market. As a result, the existence of a liquid trading market for the
Securities may depend on whether dealers will make a market in the Securities.
There can be no assurance that a market will be made for any of the Securities,
that any market for the Securities will be maintained or of the liquidity of
the Securities in any markets made. In addition, the Trust Fund is restricted
under the Investment Company Act of 1940 from selling Securities to the
Sponsor. The price at which the Securities may be sold to meet redemptions and
the value of the Trust Fund will be adversely affected if trading markets for
the Securities are limited or absent.
Investors should note that additional Units may be offered to the public. This
may have an effect upon the value of previously existing Units. To create
additional Units the Sponsor will purchase additional Securities. Brokerage
fees incurred in purchasing such Securities will be an expense of the Trust.
Thus, payment of brokerage fees by the Trust will affect the value of every
Unit and the net income per Unit received by the Trust. In particular,
Unitholders who purchase Units during the primary offering period of the Units
would experience a dilution of their investment as a result of any brokerage
fees paid by the Trust during subsequent deposits of additional Securities.
Litigation and Legislation. From time to time Congress considers proposals to
reduce the rate of the dividends-received deduction. Enactment into law of a
proposal to reduce the rate would adversely affect the after-tax return to
investors who can take advantage of the deduction. Unitholders are urged to
consult their own tax advisers. Further, at any time after the Initial Date of
Deposit, litigation may be initiated on a variety of grounds, or legislation
may be enacted with respect to the Securities in the Trust Fund or the issuers
of the Securities. There can be no assurance that future litigation or
legislation will not have a material adverse effect on the Trust Fund or will
not impair the ability of issuers to achieve their business goals.
FEDERAL TAX STATUS
The Trust has elected and intends to qualify on a continuing basis for special
federal income tax treatment as a "regulated investment company" under the
Internal Revenue Code of 1986, as amended (the "Code"). If the Trust so
qualifies and timely distributes to Unitholders 90% or more of its taxable
income (without regard to its net capital gain, i.e., the excess of its net
long-term capital gain over its net short-term capital loss), it will not be
subject to federal income tax on the portion of its taxable income (including
any net capital gain) that it distributes to Unitholders. In addition, to the
extent the Trust timely distributes to Unitholders at least 98% of its taxable
income (including any net capital gain), it will not be subject to the 4%
excise tax on certain undistributed income of "regulated investment companies."
Because the Trust intends to timely distribute its taxable income (including
any net capital gain), it is anticipated that the Trust will not be subject to
federal income tax or the excise tax. Although all or a portion of the Trust's
taxable income (including any net capital gain) for the taxable year may be
distributed to Unitholders shortly after the end of the calendar year, such a
distribution will be treated for federal income tax purposes as having been
received by Unitholders during the calendar year just ended.
14
<PAGE>
Distributions to Unitholders of the Trust's taxable income (other than its net
capital gain) will be taxable as ordinary income to Unitholders. To the extent
that distributions to a Unitholder in any year exceed the Trust's current and
accumulated earnings and profits, they will be treated as a return of capital
and will reduce the Unitholder's basis in his Units and, to the extent that
they exceed his basis, will be treated as a gain from the sale of his Units as
discussed below.
Distributions of the Trust's net capital gain which are properly designated as
capital gain dividends by the Trust will be taxable to Unitholders as long-term
capital gain, regardless of the length of time the Units have been held by a
Unitholder. A Unitholder may recognize a taxable gain or loss if the Unitholder
sells or redeems his Units. Any gain or loss arising from (or treated as
arising from) the sale or redemption of Units will generally be a capital gain
or loss, except in the case of a dealer or a financial institution. For
taxpayers other than corporations, net capital gains are presently subject to a
maximum stated marginal tax rate of 28%. However, it should be noted that
legislative proposals are introduced from time to time that affect tax rates
and could affect relative differences at which ordinary income and capital
gains are taxed. A capital loss is long-term if the asset is held for more than
one year and short-term if held for one year or less. If a Unitholder holds
Units for six months or less and subsequently sells such Units at a loss, the
loss will be treated as a long-term capital loss to the extent that any long-
term capital gain distribution is made with respect to such Units during the
six-month period or less that the Unitholder owns the Units.
The Revenue Reconciliation Act of 1993 (the "Act") raised tax rates on ordinary
income while capital gains remain subject to a 28% maximum stated rate for
taxpayers other than corporations. Because some or all capital gains are taxed
at a comparatively lower rate under the Act, the Act includes a provision that
recharacterizes capital gains as ordinary income in the case of certain
financial transactions that are "conversion transactions" effective for
transactions entered into after April 30, 1993. Unitholders and prospective
investors should consult with their tax advisers regarding the potential effect
of this provision on their investment in Units.
Distributions which are taxable as ordinary income to Unitholders will
constitute dividends for federal income tax purposes. When Units are held by
corporate Unitholders, Trust distributions may qualify for the 70% dividends-
received deduction, subject to the limitations otherwise applicable to the
availability of the deduction, to the extent the distribution is attributable
to dividends received by the Trust from United States corporations (other than
real estate investment trusts) and is designated by the Trust as being eligible
for such deduction. To the extent dividends received by the Trust are
attributable to foreign corporations, a corporation that owns Units will not be
entitled to the dividends received deduction with respect to its pro rata
portion of such dividends, since the dividends received deduction is generally
available only with respect to dividends paid by domestic corporations. The
Trust will provide each Unitholder with information annually concerning what
part of Trust distributions are eligible for the dividends received deduction.
Under the Code, certain miscellaneous itemized deductions, such as investment
expenses, tax return preparation fees and employee business expenses, will be
deductible by individuals only to the extent they exceed 2% of adjusted gross
income. Miscellaneous itemized deductions subject to this limitation under
present law do not include expenses incurred by the Trust so long as the Units
are held by or for 500 or more persons at all times during the taxable year or
another exception is met. In the event the Units are held by fewer than 500
persons, additional taxable income may be realized by the individual (and other
noncorporate) Unitholders in excess of the distributions received by the Trust.
Distributions reinvested into additional Units of the Trust will be taxed to a
Unitholder in the manner described above (i.e., as ordinary income, long-term
capital gain or as a return of capital).
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Each Unitholder will be requested to provide the Unitholder's taxpayer
identification number to the Trustee and to certify that the Unitholder has not
been notified that payments to the Unitholder are subject to back-up
withholding. If the proper taxpayer identification number and appropriate
certification are not provided when requested, distributions by the Trust to
such Unitholder (including amounts received upon the redemption of Units) will
be subject to back-up withholding. Distributions by the Trust will generally be
subject to United States income taxation and withholding in the case of Units
held by non-resident alien individuals, foreign corporations or other non-
United States persons. Such persons should consult their tax advisers.
The federal tax status of each year's distributions will be reported to
Unitholders and to the Internal Revenue Service. The foregoing discussion
relates only to the federal income tax status of the Trust and to the tax
treatment of distributions by the Trust to United States Unitholders.
Distributions by the Trust will generally be subject to United States income
taxation and withholding in the case of Units held by non-resident alien
individuals, foreign corporations or other non-United States persons. Such
persons should consult their tax advisers. Units in the Trust and Trust
distributions may also be subject to state and local taxation and Unitholders
should consult their own tax advisers in this regard.
Unitholders desiring to purchase Units for tax-deferred plans and IRAs should
consult their broker-dealers for details on establishing such accounts. Units
may also be purchased by persons who already have self-directed plans
established.
PUBLIC OFFERING OF UNITS
PUBLIC OFFERING PRICE. During the initial offering period, Units of the Trust
Fund are offered at the Public Offering Price which is based on the aggregate
underlying value of the Securities in the Trust Fund (generally determined by
the closing sale prices of listed Securities and the ask prices of over-the-
counter traded Securities) and includes the initial sales charge, if any, as
described below plus a pro rata share of an y accumulated dividends in the
Income Account of the Trust. The Maximum Sales Charge consists of three
portions: (1) an Initial Sales Charge which may be assessed on all purchases
commencing January 1, 1997; (2) an annual Deferred Sales Charge which will be
assessed only during the first five years of the Trust's life; and (3) an
Annual Sales Charge which will be assessed for the duration of the Trust. The
Initial Sales Charge per Unit will be an amount equal to the difference between
$0.375 and that portion of the total Deferred Sales Charge remaining to be
paid. The total Deferred Sales Charge will be $0.375 per Unit which will be
assessed annually in the amount of $0.075 per Unit. The Deferred Sales Charge
will be assessed each December 31, commencing December 31, 1996 and continuing
through December 31, 2000. The Annual Sales Charge will be $0.025 per Unit per
year and will be assessed on a quarterly basis. The Deferred Sales Charge and
Annual Sales Charge payments will accrue daily from the time a person becomes
the owner of Units and it is the current intent of the Sponsor that such
payments will be paid from funds in the Income Account, if sufficient, or from
the periodic sale of Securities. If Units are purchased during 1995 and held
until the mandatory termination of the Trust in 2011, the total sales charge
paid will be $0.754 per Unit. Unitholders disposing of their Units prior to
such time as the entire Deferred Sales Charge on such Units has been collected
will be assessed the amount of the Deferred Sales Charge payments remaining at
the time of such disposition. In the secondary market, Units are offered at the
Public Offering Price which is based on the aggregate underlying value of the
Securities in the Trust Fund (generally determined by the closing sale prices
of listed Securities and the bid prices of over-the-counter traded Securities)
and includes the sales charge described above plus a pro rata share of any
accumulated dividends. Such underlying value shall also include the
proportionate share of any undistributed cash held in the Capital Account of
the Trust.
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The Sponsor intends to permit officers, directors and employees of the Sponsor
and its affiliates and registered representatives of selling firms to purchase
Units of the Trust Fund subject only to the deferred sales charges as described
above.
As indicated above, the initial Public Offering Price of the Units was
established by dividing the aggregate underlying value of the Securities by the
number of Units outstanding. Such underlying value shall include the
proportionate share of any cash held in the Capital Account. Such price
determination as of the opening of business on the Initial Date of Deposit was
made on the basis of an evaluation of the Securities in the Trust prepared by
the Trustee. After the opening of business on the Initial Date of Deposit, the
Evaluator will appraise or cause to be appraised daily the value of the
underlying Securities as of 3:15 P.M. Central time on days the New York Stock
Exchange is open and will adjust the Public Offering Price of the Units
commensurate with such valuation. Such Public Offering Price will be effective
for all orders received at or prior to the close of trading on the New York
Stock Exchange on each such day. Orders received by the Trustee, Sponsor or any
dealer for purchases, sales or redemptions after that time, or on a day when
the New York Stock Exchange is closed, will be held until the next
determination of price.
The value of the Securities is determined on each business day by the Evaluator
based on the last sale prices for Securities listed on a national stock
exchange or, if not so listed, on the last offer (or bid in the secondary
market) prices on the over-the-counter market or by taking into account the
same factors referred to under "Redemption--Computation of Redemption Price."
The minimum purchase in both the primary and secondary markets is 100 Units.
PUBLIC DISTRIBUTION OF UNITS. During the initial offering period, Units of the
Trust Fund will be distributed to the public at the Public Offering Price
thereof. Upon the completion of the initial offering, Units which remain unsold
or which may be acquired in the secondary market (see "Market for Units") may
be offered at the Public Offering Price determined in the manner provided
above.
The Sponsor intends to qualify Units of the Trust Fund for sale in a number of
states. Units will be sold through dealers who are members of the National
Association of Securities Dealers, Inc. and through others. Sales may be made
to or through dealers at prices which represent discounts from the Public
Offering Price as set forth below. Certain commercial banks are making Units of
the Trust Fund available to their customers on an agency basis. A portion of
the sales charge paid by their customers is retained by or remitted to the
banks in the amounts shown below. Under the Glass-Steagall Act, banks are
prohibited from underwriting Trust Fund Units; however, the Glass-Steagall Act
does permit certain agency transactions and the banking regulators have
indicated that these particular agency transactions are permitted under such
Act. In addition, state securities laws on this issue may differ from the
interpretations of federal law expressed herein and banks and financial
institutions may be required to register as dealers pursuant to state law. The
Sponsor reserves the right to change the discounts set forth below from time to
time. In addition to such discounts, the Sponsor may, from time to time, pay or
allow an additional discount, in the form of cash or other compensation, to
dealers employing registered representatives who sell, during a specified time
period, a minimum dollar amount of Units of the Trust and other unit investment
trusts underwritten by the Sponsor. At various times the Sponsor may implement
programs under which the sales force of a broker or dealer may be eligible to
win nominal awards for certain sales efforts, or under which the Sponsor will
reallow to any such broker or dealer that sponsors sales contests or
recognition programs conforming to criteria established by the Sponsor, or
participates in sales programs sponsored by the Sponsor, an amount not
exceeding the total applicable sales charges on the sales generated by such
person at the public offering
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price during such programs. Also, the Sponsor in its discretion may from time
to time pursuant to objective criteria established by the Sponsor pay fees to
qualifying brokers or dealers for certain services or activities which are
primarily intended to result in sales of Units of the Trust Fund. Such payments
are made by the Sponsor out of its own assets, and not out of the assets of the
Trust Fund. These programs will not change the price Unitholders pay for their
Units or the amount that the Trust Fund will receive from the Units sold. The
difference between the discount and the sales charge will be retained by the
Sponsor.
The primary market concessions or agency commissions will be $0.20 per Unit
which will be advanced to the brokers, dealers or agents and will be repaid
from funds derived from the Deferred Sales Charge. The remainder of the
Deferred Sales Charge will be retained by the Sponsor. During the first year,
the Sponsor will retain the entire annual amount of the Annual Sales Charge.
Commencing January 1, 1997, and throughout the remaining period in which the
Annual Sales Charge is being collected, the selling broker of record for each
Unit will receive an additional amount equal to $0.02 paid from funds derived
from the Annual Sales Charge. The Sponsor will retain any remaining Annual
Sales Charge amounts.
Volume concessions of up to $0.01 per Unit can be earned as a marketing
allowance at the discretion of the Sponsor by firms who reach cumulative firm
sales arrangement levels of at least $1,000,000 through December 31, 1995.
After a firm has met the minimum volume level, volume concessions may be given
on all trades originated from or by that firm, including those placed prior to
reaching the minimum volume level, and may continue to be given during the
entire initial offering period. Firm sales of any EVEREN equity trust series
issued simultaneously can be combined for the purposes of achieving the volume
discount. Only sales through EVEREN qualify for volume discounts and secondary
purchases do not apply. EVEREN Unit Investment Trusts reserves the right to
modify or change those parameters at any time and make the determination of
which firms qualify for the marketing allowance and the amount paid.
The Sponsor reserves the right to reject, in whole or in part, any order for
the purchase of Units.
SPONSOR PROFITS. The Sponsor will receive gross sales charges equal to the
percentage of the Public Offering Price of the Units of the Trust Fund as
stated under "Public Offering Price." In addition, the Sponsor may realize a
profit (or sustain a loss) as of the Initial Date of Deposit resulting from the
difference between the purchase prices of the Securities to the Sponsor and the
cost of such Securities to the Trust Fund, which is based on the evaluation of
the Securities on the Initial Date of Deposit. Thereafter, on subsequent
deposits the Sponsor may realize profits or sustain losses from such deposits.
See "Portfolio." The Sponsor may realize additional profits or losses during
the initial offering period on unsold Units as a result of changes in the daily
market value of the Securities in the Trust Fund.
MARKET FOR UNITS
After the initial offering period, while not obligated to do so, the Sponsor
intends to, subject to change at any time, maintain a market for Units of the
Trust Fund offered hereby and to continuously offer to purchase said Units at
prices, determined by the Evaluator, based on the bid value of the underlying
Securities. To the extent that a market is maintained during the initial
offering period, the prices at which Units will be repurchased will be based
upon the aggregate offering side evaluation of the Securities in the Trust. The
aggregate bid prices of the underlying Securities are expected to be less than
the related aggregate offering prices (which is the evaluation method used
during the initial public offering period). Accordingly, Unitholders who wish
to dispose of their Units should inquire of their broker as to current market
prices in order to determine whether there is in existence any price in excess
of the Redemption Price and, if so, the amount thereof. The offering price of
any Units resold by the Sponsor will be in accord with that described in the
currently effective prospectus describing such Units. Any profit or loss
resulting from the resale of such Units will belong to the Sponsor. The Sponsor
may suspend or discontinue purchases of Units of the Trust Fund if the supply
of Units exceeds demand, or for other business reasons.
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REDEMPTION
GENERAL. A Unitholder who does not dispose of Units in the secondary market
described above may cause Units to be redeemed by the Trustee by making a
written request to the Trustee at its corporate trust office in the city of New
York and, in the case of Units evidenced by a certificate, by tendering such
certificate to the Trustee, properly endorsed or accompanied by a written
instrument or instruments of transfer in form satisfactory to the Trustee.
Unitholders must sign the request, and such certificate or transfer instrument,
exactly as their names appear on the records of the Trustee and on any
certificate representing the Units to be redeemed. If the amount of the
redemption is $25,000 or less and the proceeds are payable to the Unitholder(s)
of record at the address of record, no signature guarantee is necessary for
redemptions by individual account owners (including joint owners). Additional
documentation may be requested, and a signature guarantee is always required,
from corporations, executors, administrators, trustees, guardians or
associations. The signatures must be guaranteed by a participant in the
Securities Transfer Agents Medallion Program ("STAMP") or such other signature
guaranty program in addition to, or in substitution for, STAMP, as may be
accepted by the Trustee. A certificate should only be sent by registered or
certified mail for the protection of the Unitholder. Since tender of the
certificate is required for redemption when one has been issued, Units
represented by a certificate cannot be redeemed until the certificate
representing such Units has been received by the purchasers.
Redemption shall be made by the Trustee on the third business day following the
day on which a tender for redemption is received (the "Redemption Date") by
payment of cash equivalent to the Redemption Price for the Trust Fund,
determined as set forth below under "Computation of Redemption Price," as of
the evaluation time stated under "Essential Information," next following such
tender, multiplied by the number of Units being redeemed. Any Units redeemed
shall be cancelled and any undivided fractional interest in
the Trust Fund extinguished. The price received upon redemption might be more
or less than the amount paid by the Unitholder depending on the value of the
Securities in the Trust Fund at the time of redemption.
Under regulations issued by the Internal Revenue Service, the Trustee is
required to withhold a specified percentage of the principal amount of a Unit
redemption if the Trustee has not been furnished the redeeming Unitholder's tax
identification number in the manner required by such regulations. Any amount so
withheld is transmitted to the Internal Revenue Service and may be recovered by
the Unitholder only when filing a tax return. Under normal circumstances the
Trustee obtains the Unitholder's tax identification number from the selling
broker. However, any time a Unitholder elects to tender Units for redemption,
such Unitholder should make sure that the Trustee has been provided a certified
tax identification number in order to avoid this possible "back-up
withholding." In the event the Trustee has not been previously provided such
number, one must be provided at the time redemption is requested.
Any amounts paid on redemption representing unpaid dividends shall be withdrawn
from the Income Account of the Trust Fund to the extent that funds are
available for such purpose. All other amounts paid on redemption shall be
withdrawn from the Capital Account for the Trust Fund. The Trustee is empowered
to sell Securities for the Trust Fund in order to make funds available for the
redemption of Units of the Trust Fund. Such sale may be required when
Securities would not otherwise be sold and might result in lower prices than
might otherwise be realized. To the extent Securities are sold, the size and
diversity of the Trust Fund will be reduced.
To the extent that Securities are sold, the size and diversity of the Trust
Fund will be reduced but each remaining Unit will continue to represent
approximately the same proportional interest in each Security. Sales may be
required at a time when Securities would not otherwise be sold and may result
in lower prices
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than might otherwise be realized. The price received upon redemption may be
more or less than the amount paid by the Unitholder depending on the value of
the Securities in the portfolio at the time of redemption.
The right of redemption may be suspended and payment postponed (1) for any
period during which the New York Stock Exchange is closed, other than customary
weekend and holiday closings, or during which (as determined by the Securities
and Exchange Commission) trading on the New York Stock Exchange is restricted;
(2) for any period during which an emergency exists as a result of which
disposal by the Trustee of Securities is not reasonably practicable or it is
not reasonably practicable to fairly determine the value of the underlying
Securities in accordance with the Trust Agreement; or (3) for such other period
as the Securities and Exchange Commission may by order permit. The Trustee is
not liable to any person in any way for any loss or damage which may result
from any such suspension or postponement.
COMPUTATION OF REDEMPTION PRICE. The Redemption Price per Unit (as well as the
secondary market Public Offering Price) will be determined on the basis of the
last sale price of the Securities in the Trust Fund. On the Initial Date of
Deposit, the Public Offering Price per Unit (which is based on the underlying
offering prices of the Securities and includes the sales charge) exceeded the
value at which Units could have been redeemed by the amount shown under
"Essential Information." While the Trustee has the power to determine the
Redemption Price per Unit when Units are tendered for redemption, such
authority has been delegated to the Evaluator which determines the price per
Unit on a daily basis. The Redemption Price per Unit is the pro rata share of
each Unit in the Trust Fund determined on the basis of (i) the cash on hand in
the Trust Fund or monies in the process of being collected and (ii) the value
of the Securities in the Trust Fund less (a) amounts representing taxes or
other governmental charges payable out of the Trust, (b) any amount owing to
the Trustee for its advances and (c) the accrued expenses of the Trust. The
Evaluator may determine the value of the Securities in the Trust Fund in the
following manner: if the Security is listed on a national securities exchange,
the evaluation will generally be based on the last sale price on the exchange
(unless the Evaluator deems the price inappropriate as a basis for evaluation).
If the Security is not so listed or, if so listed and the principal market for
the Security is other than on the exchange, the evaluation will generally be
made by the Evaluator in good faith based on the last bid price on the over-
the-counter market (unless the Evaluator deems such price inappropriate as a
basis for evaluation) or, if a bid price is not available, (1) on the basis of
the current bid price for comparable securities, (2) by the Evaluator's
appraising the value of the Securities in good faith at the bid side of the
market or (3) by any combination thereof. See "Public Offering of Units--Public
Offering Price."
RETIREMENT PLANS
The Trust Fund may be well suited for purchase by Individual Retirement
Accounts, Keogh Plans, pension funds and other qualified retirement plans,
certain of which are briefly described below.
Generally, capital gains and income received under each of the foregoing plans
are deferred from Federal taxation. All distributions from such plans are
generally treated as ordinary income but may, in some cases, be eligible for
special income averaging or tax-deferred rollover treatment. Investors
considering participation in any such plan should review specific tax laws
related thereto and should consult their attorneys or tax advisers with respect
to the establishment and maintenance of any such plan. Such plans are offered
by brokerage firms and other financial institutions. The Trust will waive the
$1,000 minimum investment requirement for IRA accounts. The minimum investment
is $250 for tax-deferred plans such as IRA accounts. Fees and charges with
respect to such plans may vary.
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Individual Retirement Account--IRA. Any individual under age 70 1/2 may
contribute the lesser of $2,000 or 100% of compensation to an IRA annually.
Such contributions are fully deductible if the individual (and spouse if filing
jointly) are not covered by a retirement plan at work. The deductible amount an
individual may contribute to an IRA will be reduced $10 for each $50 of
adjusted gross income over $25,000 ($40,000 if married, filing jointly or $0 if
married, filing separately), if either an individual or their spouse (if
married, filing jointly) is an active participant in an employer maintained
retirement plan. Thus, if an individual has adjusted gross income over $35,000
($50,000 if married, filing jointly or $0 if married, filing separately) and if
an individual or their spouse is an active participant in an employer
maintained retirement plan, no IRA deduction is permitted. Under the Code, an
individual may make nondeductible contributions to the extent deductible
contributions are not allowed. All distributions from an IRA (other than the
return of certain excess contributions) are treated as ordinary income for
Federal income taxation purposes provided that under the Code an individual
need not pay tax on the return of nondeductible contributions, the amount
includable in income for the taxable year is the portion of the amount
withdrawn for the taxable year as the individual's aggregate nondeductible IRA
contributions bear to the aggregate balance of all IRAs of the individual.
A participant's interest in an IRA must be, or commence to be, distributed to
the participant not later than April 1 of the calendar year following the year
during which the participant attains age 70 1/2. Distributions made before
attainment of age 59 1/2, except in the case of the participant's death or
disability, or where the amount distributed is to be rolled over to another
IRA, or where the distributions are taken as a series of substantially equal
periodic payments over the participant's life or life expectancy (or the joint
lives or life expectancies of the participant and the designated beneficiary)
are generally subject to a surtax in an amount equal to 10% of the
distribution. The amount of such periodic payments may not be modified before
the later of five years or attainment of age 59 1/2. Excess contributions are
subject to an annual 6% excise tax.
IRA applications, disclosure statements and trust agreements are available from
the Sponsor upon request.
Qualified Retirement Plans. Units of the Trust may be purchased by qualified
pension or profit sharing plans maintained by corporations, partnerships or
sole proprietors. The maximum annual contribution for a participant in a money
purchase pension plan or to paired profit sharing and pension plans is the
lesser of 25% of compensation or $30,000. Prototype plan documents for
establishing qualified retirement plans are available from the Sponsor upon
request.
Excess Distributions Tax. In addition to the other taxes due by reason of a
plan distribution, a tax of 15% may apply to certain aggregate distributions
from IRAs, Keogh plans, and corporate retirement plans to the extent such
aggregate taxable distributions exceed specified amounts (generally $150,000,
as adjusted) during a tax year. This 15% tax will not apply to distributions on
account of death, qualified domestic relations orders or amounts rolled over to
an eligible plan. In general, for lump sum distributions the excess
distribution over $750,000 (as adjusted) will be subject to the 15% tax.
The Trustee has agreed to act as custodian for certain retirement plan
accounts. An annual fee of $12.00 per account, if not paid separately, will be
assessed by the Trustee and paid through the liquidation of shares of the
reinvestment account. An individual wishing the Trustee to act as custodian
must complete a EVEREN UIT/IRA application and forward it along with a check
made payable to The Bank of New York. Certificates for Individual Retirement
Accounts can not be issued.
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UNITHOLDERS
OWNERSHIP OF UNITS. Ownership of Units of the Trust Fund will not be evidenced
by certificates unless a Unitholder, the Unitholder's registered broker/dealer
or the clearing agent for such broker/dealer makes a written request to the
Trustee. Units are transferable by making a written request to the Trustee and,
in the case of Units evidenced by a certificate, by presenting and surrendering
such certificate to the Trustee properly endorsed or accompanied by a written
instrument or instruments of transfer which should be sent by registered or
certified mail for the protection of the Unitholder. Unitholders must sign such
written request, and such certificate or transfer instrument, exactly as their
names appear on the records of the Trustee and on any certificate representing
the Units to be transferred. Such signatures must be guaranteed as stated under
"Redemption--General."
Units may be purchased and certificates, if requested, will be issued in
denominations of one Unit or any multiple thereof, subject to the Trust's
minimum investment requirement of 100 Units or $1,000. Fractions of Units, if
any, will be computed to three decimal places. Any certificate issued will be
numbered serially for identification, issued in fully registered form and will
be transferable only on the books of the Trustee. The Trustee may require a
Unitholder to pay a reasonable fee, to be determined in the sole discretion of
the Trustee, for each certificate re-issued or transferred and to pay any
governmental charge that may be imposed in connection with each such transfer
or interchange. The Trustee at the present time does not intend to charge for
the normal transfer or interchange of certificates. Destroyed, stolen,
mutilated or lost certificates will be replaced upon delivery to the Trustee of
satisfactory indemnity (generally amounting to 3% of the market value of the
Units), affidavit of loss, evidence of ownership and payment of expenses
incurred.
DISTRIBUTIONS TO UNITHOLDERS. Income received by the Trust is credited by the
Trustee to the Income Account of the Trust. Other receipts are credited to the
Capital Account of the Trust. Income received by the Trust will be distributed
on or shortly after the 15th day of January, April, July and October of each
year on a pro rata basis to Unitholders of record as of the preceding record
date (which will be the first day of
the related month). All distributions will be net of applicable expenses. There
is no assurance that any actual distributions will be made since all dividends
received may be used to pay expenses. In addition, amounts from the Capital
Account of the Trust, if any, will be distributed at least annually to the
Unitholders then of record. Proceeds received from the disposition of any of
the Securities after a record date and prior to the following distribution date
will be held in the Capital Account and not distributed until the next
distribution date applicable to the Capital Account. The Trustee shall be
required to make a distribution from the Capital Account as described under
"Essential Information" if the cash balance on deposit therein available for
distribution shall be sufficient to distribute at least $1.00 per 100 Units.
The Trustee is not required to pay interest on funds held in the Capital or
Income Accounts (but may itself earn interest thereon and therefore benefits
from the use of such funds). The Trustee is authorized to reinvest any funds
held in the Capital or Income Accounts, pending distribution, in U.S. Treasury
obligations which mature on or before the next applicable distribution date.
Any obligations so acquired must be held until they mature and proceeds
therefrom may not be reinvested.
The distribution to the Unitholders as of each record date will be made on the
following distribution date or shortly thereafter and shall consist of an
amount substantially equal to such portion of the Unitholders' pro rata share
of the dividend distributions then held in the Income Account after deducting
estimated expenses. Because dividends are not received by the Trust at a
constant rate throughout the year, such distributions to Unitholders are
expected to fluctuate. Persons who purchase Units will commence receiving
distributions
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only after such person becomes a record owner. A person will become the owner
of Units, and thereby a Unitholder of record, on the date of settlement
provided payment has been received. Notification to the Trustee of the transfer
of Units is the responsibility of the purchaser, but in the normal course of
business such notice is provided by the selling broker-dealer.
As of the first day of each month, the Trustee will deduct from the Income
Account of the Trust and, to the extent funds are not sufficient therein, from
the Capital Account of the Trust amounts necessary to pay the expenses of the
Trust (as determined on the basis set forth under "Expenses of the Trust"). The
Trustee also may withdraw from said accounts such amounts, if any, as it deems
necessary to establish a reserve for any governmental charges payable out of
the Trust. Amounts so withdrawn shall not be considered a part of the Trust's
assets until such time as the Trustee shall return all or any part of such
amounts to the appropriate accounts. In addition, the Trustee may withdraw from
the Income and Capital Accounts of the Trust such amounts as may be necessary
to cover redemptions of Units.
DISTRIBUTION REINVESTMENT. Unitholders who purchase greater than 2,500 Units or
$25,000 of Units of the Trust may elect to have distributions of capital
(including capital gains, if any) or dividends or both automatically invested
into additional Units of the Trust subject only to any Deferred Sales Charge
and the Annual Sales Charge, as described in "Public Offering of Units." In
addition, all Unitholders of the Trust may elect to have distributions of
capital (including capital gains, if any) or dividends or both automatically
invested without charge in shares of any one of several front-end load mutual
funds underwritten or advised by Kemper Financial Services, Inc. at net asset
value if such funds are registered in such Unitholder's state of residence,
other than those mutual funds sold with a contingent deferred sales charge.
Since the portfolio securities and investment objectives of such Kemper-advised
mutual funds generally will differ significantly from those of the Trust Fund,
Unitholders should carefully consider the consequences before selecting such
mutual funds for reinvestment. Detailed information with respect to the
investment objectives and the management of such mutual funds is contained in
their respective prospectuses, which can be obtained from the Sponsor upon
request. An investor should read the prospectus of the reinvestment fund
selected prior to making the election to reinvest. Unitholders who desire to
have such distributions automatically reinvested should inform their broker at
the time of purchase or should file with the Program Agent referred to below a
written notice of election.
Unitholders who are receiving distributions in cash may elect to participate in
distribution reinvestment by filing with the Program Agent an election to have
such distributions reinvested without charge. Such election must be received by
the Program Agent at least ten days prior to the Record date applicable to any
distribution in order to be in effect for such Record Date. Any such election
shall remain in effect until a subsequent notice is received by the Program
Agent. See "Unitholders--Distributions to Unitholders."
The Program Agent is The Bank of New York. All inquiries concerning
participating in distribution reinvestment should be directed to The Bank of
New York at its corporate trust office.
STATEMENTS TO UNITHOLDERS. With each distribution, the Trustee will furnish or
cause to be furnished to each Unitholder a statement of the amount of income
and the amount of other receipts, if any, which are being distributed,
expressed in each case as a dollar amount per Unit.
The accounts of the Trust Fund are required to be audited annually, at the
Trust Fund's expense, by independent public accountants designated by the
Sponsor, unless the Sponsor determines that such an audit would not be in the
best interest of the Unitholders of the Trust Fund. The accountants' report
will be
23
<PAGE>
furnished by the Trustee to any Unitholder of the Trust Fund upon written
request. Within a reasonable period of time after the end of each calendar
year, the Trustee shall furnish to each person who at any time during the
calendar year was a Unitholder of the Trust Fund a statement, covering the
calendar year, setting forth for the Trust Fund:
vA. As to the Income Account:
1. Income received;
2. Deductions for applicable taxes and for fees and expenses of the Trust and
for redemptions of Units, if any; and
3. The balance remaining after such distributions and deductions, expressed in
each case both as a total dollar amount and as a dollar amount representing the
pro rata share of each Unit outstanding on the last business day of such
calendar year; and
B. As to the Capital Account:
1. The dates of disposition of any Securities and the net proceeds received
therefrom;
2. Deductions for payment of applicable taxes and fees and expenses of the
Trust held for distribution to Unitholders of record as of a date prior to the
determination; and
3. The balance remaining after such distributions and deductions expressed both
as a total dollar amount and as a dollar amount representing the pro rata share
of each Unit outstanding on the last business day of such calendar year; and
C. The following information:
1. A list of the Securities as of the last business day of such calendar year;
2. The number of Units outstanding on the last business day of such calendar
year;
3. The Redemption Price based on the last evaluation made during such calendar
year;
4. The amount actually distributed during such calendar year from the Income
and Capital Accounts separately stated, expressed both as total dollar amounts
and as dollar amounts per Unit outstanding on the Record Dates for each such
distribution.
RIGHTS OF UNITHOLDERS. A Unitholder may at any time tender Units to the Trustee
for redemption. The death or incapacity of any Unitholder will not operate to
terminate the Trust Fund nor entitle legal representatives or heirs to claim an
accounting or to bring any action or proceeding in any court for partition or
winding up of the Trust Fund.
No Unitholder shall have the right to control the operation and management of
the Trust Fund in any manner, except to vote with respect to the amendment of
the Trust Agreement or termination of the Trust Fund.
INVESTMENT SUPERVISION
The Trust Fund is a unit investment trust and is not an "actively managed"
fund. Traditional methods of investment management for a managed fund typically
involve frequent changes in a portfolio of securities on the basis of economic,
financial and market analyses. The portfolio of the Trust Fund, however, will
not be actively managed and therefore the adverse financial condition of an
issuer will not necessarily require the sale of its securities from the
portfolio.
24
<PAGE>
As a general rule, the only purchases and sales that will be made with respect
to the Trust's portfolio will be those necessary to maintain, to the extent
feasible, a portfolio which reflects the current components of the S&P 500
Index, taking into consideration redemptions, sales of additional Units and the
other adjustments referred to elsewhere in this prospectus. See "Trust
Portfolio--General." Such purchases and sales will be made in accordance with
the computer program utilized to maintain the portfolio, the Trust Agreement
and procedures to be specified by the Sponsor. The Sponsor may direct the
Trustee to dispose of Securities and either to acquire other Securities through
the use of the proceeds of such disposition in order to make changes in the
portfolio or to distribute the proceeds of such disposition to Unitholders (i)
as necessary to reflect any additions to or deletions from the S&P 500 Index,
(ii) as may be necessary to establish a closer correlation between the Trust
portfolio and the S&P 500 Index or (iii) as may be required for purposes of
distributing to Unitholders, when required, their pro rata share of any net
realized capital gains or as the Sponsor may otherwise determine. As a policy
matter, the Sponsor currently intends to direct the Trustee to acquire round
lots of shares of the Securities rather than odd lot amounts. Any funds not
used to acquire round lots will be held for future purchases of shares, for
redemptions of Units or for distributions to Unitholders. In the event the
Trustee receives any securities or other properties relating to the Securities
(other than normal dividends) acquired in exchange for Securities such as those
acquired in connection with a reorganization, recapitalization, merger or other
transaction, the Trustee is directed to sell such securities or other property
and reinvest the proceeds in shares of the Security for which such securities
or other property relates, or if such Security is thereafter removed from the
S&P 500 Index, in any new security which is added as a component of the S&P 500
Index. In addition, the Sponsor will instruct the Trustee to dispose of certain
Securities and to take such further action as may be needed from time to time
to ensure that the Trust continues to satisfy the qualifications of a regulated
investment company, including the requirements with respect to diversification
under Section 851 of the Internal Revenue Code, and as may be needed from time
to time to avoid the imposition of any excise tax on the Trust as a regulated
investment company.
Proceeds from the sale of Securities (or any securities or other property
received by the Trust in exchange for Securities) are credited to the Capital
Account for distribution to Unitholders or to meet redemptions. Except as
stated under "The Trust Fund" for failed securities and as provided herein, the
acquisition by the Trust of any securities other than the Securities is
prohibited. The Trustee may sell Securities, designated by the Sponsor, from
the Trust Fund for the purpose of redeeming Units of the Trust Fund tendered
for redemption and the payment of expenses.
ADMINISTRATION OF THE TRUST
THE TRUSTEE. The Trustee is The Bank of New York, a trust company organized
under the laws of New York. The Bank of New York has its offices at 101 Barclay
Street, New York, New York 10286. The Bank of New York is subject to
supervision and examination by the Superintendent of Banks of the State of New
York and the Board of Governors of the Federal Reserve System, and its deposits
are insured by the Federal Deposit Insurance Corporation to the extent
permitted by law.
The Trustee, whose duties are ministerial in nature, has not participated in
selecting the portfolio of the Trust Fund. For information relating to the
responsibilities of the Trustee under the Trust Agreement, reference is made to
the material set forth under "Unitholders."
In accordance with the Trust Agreement, the Trustee shall keep records of all
transactions at its office. Such records shall include the name and address of,
and the number of Units held by, every Unitholder of the Trust Fund. Such books
and records shall be open to inspection by any Unitholder of the Trust Fund at
all
25
<PAGE>
reasonable times during usual business hours. The Trustee shall make such
annual or other reports as may from time to time be required under any
applicable state or federal statute, rule or regulation. The Trustee shall keep
a certified copy or duplicate original of the Trust Agreement on file in its
office available for inspection at all reasonable times during usual business
hours by any Unitholder, together with a current list of the Securities held in
the Trust Fund. Pursuant to the Trust Agreement, the Trustee may employ one or
more agents for the purpose of custody and safeguarding of Securities
comprising the Trust Fund.
Under the Trust Agreement, the Trustee or any successor trustee may resign and
be discharged of the trust created by the Trust Agreement by executing an
instrument in writing and filing the same with the Sponsor.
The Trustee or successor trustee must mail a copy of the notice of resignation
to all Unitholders then of record, not less than sixty days before the date
specified in such notice when such resignation is to take effect. The Sponsor
upon receiving notice of such resignation is obligated to appoint a successor
trustee promptly. If, upon such resignation, no successor trustee has been
appointed and has accepted the appointment within thirty days after
notification, the retiring Trustee may apply to a court of competent
jurisdiction for the appointment of a successor. The Sponsor may at any time
remove the Trustee, with or without cause, and appoint a successor trustee as
provided in the Trust Agreement. Notice of such removal and appointment shall
be mailed to each Unitholder by the Sponsor. Upon execution of a written
acceptance of such appointment by such successor trustee, all the rights,
powers, duties and obligations of the original Trustee shall vest in the
successor. The Trustee must be a corporation organized under the laws of the
United States, or any state thereof, be authorized under such laws to exercise
trust powers and have at all times an aggregate capital, surplus and undivided
profits of not less than $5,000,000.
THE SPONSOR. The Sponsor, EVEREN Unit Investment Trusts, with an office at 77
West Wacker Drive, 29th Floor, Chicago, Illinois 60601, (800) 621-5024, is a
service of EVEREN Securities, Inc. EVEREN Securities, Inc. was formerly known
as Kemper Securities, Inc. The Sponsor acts as underwriter of a number of other
EVEREN unit investment trusts and will act as underwriter of any other unit
investment trust products developed by the Sponsor in the future. As of
December 31, 1994, the total stockholder's equity of EVEREN Securities, Inc.
was $252,676,937.
If at any time the Sponsor shall fail to perform any of its duties under the
Trust Agreement or shall become incapable of acting or shall be adjudged a
bankrupt or insolvent or shall have its affairs taken over by public
authorities, then the Trustee may (a) appoint a successor sponsor at rates of
compensation deemed by the Trustee to be reasonable and not exceeding such
reasonable amounts as may be prescribed by the Securities and Exchange
Commission, or (b) terminate the Trust Agreement and liquidate the Trust Fund
as provided therein, or (c) continue to act as Trustee without terminating the
Trust Agreement.
The foregoing financial information with regard to the Sponsor relates to the
Sponsor only and not to the Trust Fund. Such information is included in this
Prospectus only for the purpose of informing investors as to the financial
responsibility of the Sponsor and its ability to carry out its contractual
obligations with respect to the Trust Fund. More comprehensive financial
information can be obtained upon request from the Sponsor.
THE EVALUATOR. EVEREN Unit Investment Trusts, the Sponsor, also serves as
Evaluator. The Evaluator may resign or be removed by the Trustee in which event
the Trustee is to use its best efforts to appoint a satisfactory successor.
Such resignation or removal shall become effective upon acceptance of
appointment by the successor evaluator. If upon resignation of the Evaluator no
successor has accepted appointment within thirty days after notice of
resignation, the Evaluator may apply to a court of competent jurisdiction for
the appointment of a successor. Notice of such registration or removal and
appointment shall be mailed by the Trustee to each Unitholder.
26
<PAGE>
AMENDMENT AND TERMINATION. The Trust Agreement may be amended by the Trustee
and the Sponsor without the consent of any of the Unitholders: (1) to cure any
ambiguity or to correct or supplement any provision which may be defective or
inconsistent; (2) to change any provision thereof as may be required by the
Securities and Exchange Commission or any successor governmental agency; or (3)
to make such provisions as shall not adversely affect the interests of the
Unitholders. The Trust Agreement with respect to the Trust Fund may also be
amended in any respect by the Sponsor and the Trustee, or any of the provisions
thereof may be waived, with the consent of the holders of Units representing 66
2/3% of the Units then outstanding of the Trust Fund, provided that no such
amendment or waiver will reduce the interest of any Unitholder thereof without
the consent of such Unitholder or reduce the percentage of Units required to
consent to any such amendment or waiver without the consent of all Unitholders
of the Trust Fund. In no event shall the Trust Agreement be amended to increase
the number of Units of the Trust Fund issuable thereunder or to permit the
acquisition of any Securities in addition to or in substitution for those
initially deposited in the Trust Fund, except in accordance with the provisions
of the Trust Agreement. The Trustee shall promptly notify Unitholders of the
substance of any such amendment.
The Trust Agreement provides that the Trust Fund shall terminate upon the
liquidation, redemption or other disposition of the last of the Securities held
in the Trust Fund but in no event is it to continue beyond the Mandatory
Termination Date set forth under "Essential Information." If the value of the
Trust Fund shall be less than the applicable minimum value stated under
"Essential Information" (40% of the aggregate value of the Securities--based on
the value at the date of deposit of such Securities into the Trust Fund), the
Trustee may, in its discretion, and shall, when so directed by the Sponsor,
terminate the Trust Fund. The Trust Fund may be terminated at any time by the
holders of Units representing 66 2/3% of the Units thereof then outstanding.
No later than the Mandatory Termination Date set forth under "Essential
Information," the Trustee will begin to sell all of the remaining underlying
Securities on behalf of Unitholders in connection with the termination of the
Trust Fund. The Sponsor has agreed to assist the Trustee in these sales. The
sale proceeds will be net of any incidental expenses involved in the sales.
The Sponsor will attempt to sell the Securities as quickly as it can during the
termination proceedings without in its judgment materially adversely affecting
the market price of the Securities, but it is expected that all of the
Securities will in any event be disposed of within a reasonable time after the
Trust's termination. The Sponsor does not anticipate that the period will be
longer than one month, and it could be as short as one day, depending on the
liquidity of the Securities being sold. The liquidity of any Security depends
on the daily trading volume of the Security and the amount that the Sponsor has
available for sale on any particular day.
It is expected (but not required) that the Sponsor will generally follow the
following guidelines in selling the Securities: for highly liquid Securities,
the Sponsor will generally sell Securities on the first day of the Liquidation
Period; for less liquid Securities, on each of the first two days of the
termination proceedings, the Sponsor will generally sell any amount of any
underlying Securities at a price no less than 1/2 of one point under the last
closing sale price of those Securities. Thereafter, the price limit will
increase to one point under the last closing sale price. After four days, the
Sponsor currently intends to sell at least a fraction of the remaining
underlying Securities, the numerator of which is one and the denominator of
which is the total number of days remaining (including that day) in the
termination proceedings without any price restrictions. Of course, no
assurances can be given that the market value of the Securities will not be
adversely affected during the termination proceedings.
27
<PAGE>
In the event of termination of the Trust Fund, written notice thereof will be
sent by the Trustee to all Unitholders of the Trust Fund. Within a reasonable
period after termination, the Trustee will sell any Securities remaining in the
Trust Fund and, after paying all expenses and charges incurred by the Trust
Fund, will distribute to Unitholders thereof (upon surrender for cancellation
of certificates for Units, if issued) their pro rata share of the balances
remaining in the Income and Capital Accounts of the Trust Fund.
LIMITATIONS ON LIABILITY. The Sponsor: The Sponsor is liable for the
performance of its obligations arising from its responsibilities under the
Trust Agreement, but will be under no liability to the Unitholders for taking
any action or refraining from any action in good faith pursuant to the Trust
Agreement or for errors in judgment, except in cases of its own gross
negligence, bad faith or willful misconduct or its reckless disregard for its
duties thereunder. The Sponsor shall not be liable or responsible in any way
for depreciation or loss incurred by reason of the sale of any Securities.
The Trustee: The Trust Agreement provides that the Trustee shall be under no
liability for any action taken in good faith in reliance upon prima facie
properly executed documents or for the disposition of monies, Securities or
certificates except by reason of its own negligence, bad faith or willful
misconduct, or its reckless disregard for its duties under the Trust Agreement,
nor shall the Trustee be liable or responsible in any way for depreciation or
loss incurred by reason of the sale by the Trustee of any Securities. In the
event that the Sponsor shall fail to act, the Trustee may act and shall not be
liable for any such action taken by it in good faith. The Trustee shall not be
personally liable for any taxes or other governmental charges imposed upon or
in respect of the Securities or upon the interest thereof. In addition, the
Trust Agreement contains other customary provisions limiting the liability of
the Trustee.
The Evaluator: The Trustee and Unitholders may rely on any evaluation furnished
by the Evaluator and shall have no responsibility for the accuracy thereof. The
Trust Agreement provides that the determinations made by the Evaluator shall be
made in good faith upon the basis of the best information available to it,
provided, however, that the Evaluator shall be under no liability to the
Trustee or Unitholders for errors in judgment, but shall be liable for its
gross negligence, bad faith or willful misconduct or its reckless disregard for
its obligations under the Trust Agreement.
EXPENSES OF THE TRUST
The Sponsor will not charge the Trust any fees for services performed as
Sponsor. The Sponsor will receive a portion of the sale commissions paid in
connection with the purchase of Units and will share in profits, if any,
related to the deposit of Securities in the Trust Fund.
The Trustee receives for its services that fee set forth under "Essential
Information." The Trustee's fee which is calculated monthly is based on the
largest number of Units outstanding during the calendar year for which such
compensation relates. The Trustee's fees are payable monthly on or before the
fifteenth day of the month from the Income Account to the extent funds are
available and then from the Capital Account. The Trustee benefits to the extent
there are funds for future distributions, payment of expenses and redemptions
in the Capital and Income Accounts since these Accounts are non-interest
bearing and the amounts earned by the Trustee are retained by the Trustee. Part
of the Trustee's compensation for its services to the Trust Fund is expected to
result from the use of these funds.
For evaluation of the Securities in the Trust Fund, the Evaluator shall receive
that fee set forth under "Essential Information", payable monthly, based upon
the largest number of Units outstanding during the calendar year for which such
compensation relates.
28
<PAGE>
The Trustee's fees and the Evaluator's fees are deducted from the Income
Account of the Trust Fund to the extent funds are available and then from the
Capital Account. Each such fee may be increased without approval of Unitholders
by amounts not exceeding a proportionate increase in the Consumer Price Index
or any equivalent index substituted therefor.
The Licensor receives an annual fee from the Trust equal to the greater of .02%
of the average net asset value of the Trust or $10,000. This fee covers the
license to the Fund of the use of various trademarks and trade names as
described under "Trust Portfolio--The S&P 500 Index." In addition, the Trust
will pay approximately $45,000 per year for access to independent computer
services that track the S&P 500 Index.
Expenses incurred in establishing the Trust, including the cost of the initial
preparation of documents relating to the Trust (including the Prospectus, Trust
Agreement and certificates), federal and state registration fees, the initial
fees and expenses of the Trustee, legal and accounting expenses, payment of
closing fees and any other out-of-pocket expenses, will be paid by the Trust
and amortized over a five year period. The following additional charges are or
may be incurred by the Trust Fund: (a) fees for the Trustee's extraordinary
services; (b) expenses of the Trustee (including legal and auditing expenses,
but not including any fees and expenses charged by an agent for custody and
safeguarding of Securities) and of counsel, if any; (c) various governmental
charges; (d) expenses and costs of any action taken by the Trustee to protect
the Trust or the rights and interests of the Unitholders; (e) indemnification
of the Trustee for any loss, liability or expense incurred by it in the
administration of the Trust not resulting from gross negligence, bad faith or
willful misconduct on its part or its reckless disregard for its obligations
under the Trust Agreement; (f) indemnification of the Sponsor for any loss,
liability or expense incurred in acting in that capacity without gross
negligence, bad faith or willful misconduct or its reckless disregard for its
obligations under the Trust Agreement; and (g) expenditures incurred in
contacting Unitholders upon termination of the Trust Fund. The fees and
expenses set forth herein are payable out of the Trust Fund and, when owing to
the Trustee, are secured by a lien on the Trust Fund. Since the Securities are
all common stocks, and the income stream produced by dividend payments, if any,
is unpredictable, the Sponsor cannot provide any assurance that dividends will
be sufficient to meet any or all expenses of the Trust Fund. If the balances in
the Income and Capital Accounts are insufficient to provide for amounts payable
by the Trust, the Trustee has the power to sell Securities to pay such amounts.
These sales may result in capital gains or losses to Unitholders. See "Federal
Tax Status."
LEGAL OPINIONS
The legality of the Units offered hereby and certain matters relating to
federal tax law have been passed upon by Chapman and Cutler, 111 West Monroe
Street, Chicago, Illinois 60603, as counsel for the Sponsor. Emmet, Marvin &
Martin, 120 Broadway, New York, New York 10271, acts as counsel to the Trustee.
INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
The statement of condition and the related portfolio at the Initial Date of
Deposit included in this Prospectus have been audited by Grant Thornton LLP,
independent certified public accountants, as set forth in their report in the
Prospectus, and are included herein in reliance upon the authority of said firm
as experts in accounting and auditing.
------------
29
<PAGE>
REPORT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
UNITHOLDERS
EVEREN UNIT INVESTMENT TRUSTS, SERIES 39
INDEX PORTFOLIO SERIES 1 (S&P 500)
We have audited the accompanying statement of condition and the related
portfolio of EVEREN Unit Investment Trusts, Series 39 (Index Portfolio Series 1
(S&P 500)), as of November 7, 1995. The statement of condition and portfolio
are the responsibility of the Sponsor. Our responsibility is to express an
opinion on such financial statements based on our audit.
We conducted our audit in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. Our
procedures included confirmation of a letter of credit deposited to purchase
Securities by correspondence with the Trustee. An audit also includes assessing
the accounting principles used and significant estimates made by the Sponsor,
as well as evaluating the overall financial statement presentation. We believe
our audit provides a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the financial position of EVEREN Unit Investment Trusts,
Series 39 (Index Portfolio Series 1 (S&P 500)) as of November 7, 1995, in
conformity with generally accepted accounting principles.
GRANT THORNTON LLP
Chicago, Illinois
November 7, 1995
30
<PAGE>
EVEREN UNIT INVESTMENT TRUSTS, SERIES 39
INDEX PORTFOLIO SERIES 1 (S&P 500)
STATEMENT OF CONDITION
AT THE OPENING OF BUSINESS ON NOVEMBER 7, 1995, THE INITIAL DATE OF DEPOSIT
TRUST PROPERTY
<TABLE>
<S> <C>
Contracts to purchase Securities (1) (2)............................ $2,206,106
Organizational costs (3)............................................ 75,000
----------
Total........................................................... $2,281,106
==========
NUMBER OF UNITS..................................................... 220,611
==========
</TABLE>
LIABILITY AND INTEREST OF UNITHOLDERS
<TABLE>
<S> <C>
Liability--
Accrued organizational costs (3)................................... $75,000
Interest of Unitholders--
Cost to investors (4).............................................. 2,372,447
Less: Gross underwriting commission (4)............................ 166,341
----------
Net interest to Unitholders (1) (2) (4)............................ 2,206,106
----------
Total............................................................ $2,281,106
==========
</TABLE>
- ----------
NOTES:
(1) Aggregate cost of the Securities is based on the last sale price
evaluations as determined by the Trustee.
(2) An irrevocable letter of credit issued by The Bank of New York has been
deposited with the Trustee covering the funds (aggregating $2,206,106)
necessary for the purchase of the Securities in the Trust Fund represented
by purchase contracts.
(3) The Trust will bear all or a portion of its organizational costs, which
will be deferred and amortized over five years. Organizational costs have
been estimated based on a projected Trust size of $100,000,000. To the
extent the Trust is larger or smaller, the estimate will vary.
(4) The aggregate cost to investors includes the applicable sales charge
assuming no reduction of sales charges for quantity purchases.
31
<PAGE>
EVEREN UNIT INVESTMENT TRUSTS, SERIES 39
INDEX PORTFOLIO SERIES 1 (THE S&P 500 INDEX TRUST)
PORTFOLIO AS OF NOVEMBER 6, 1995
<TABLE>
<CAPTION>
THEORETICAL
PERCENTAGE (%)
PORTFOLIO OF TOTAL
NO. SYMBOL COMPANY NAME (1) SHARES COST ($) (1) MARKET VALUE (2)
--------- ------ ---------------- ------ ------------ ----------------
<C> <C> <S> <C> <C> <C>
1 GE General Electric Company 100 6,288 2.428
2 T AT&T Corporation 100 6,388 2.310
3 XON Exxon Corporation 100 7,525 2.160
4 KO Coca-Cola Company 100 7,038 2.049
5 MO Philip Morris Companies
Incorporated 100 8,725 1.681
6 MRK Merck & Company 100 5,638 1.607
7 RD Royal Dutch Petroleum-
New York Registry 100 12,263 1.502
8 INTC INTEL Corporation 100 7,088 1.364
9 MSFT Microsoft Corporation 100 9,750 1.331
10 IBM International Business
Machines Corporation 100 10,050 1.319
11 PG Procter & Gamble Company 100 8,200 1.307
12 WMT Wal-Mart Stores 100 2,325 1.227
13 JNJ Johnson & Johnson 100 8,025 1.183
14 HWP Hewlett-Packard Company 100 9,125 1.097
15 PEP Pepsico Incorporated 100 5,225 0.958
16 AIG American International
Group 100 8,638 0.936
17 MOB Mobil Corporation 100 10,275 0.933
18 MOT Motorola Incorporated 100 6,663 0.921
19 GTE GTE Corporation 100 4,138 0.917
20 BMY Bristol Myers Squibb 100 7,613 0.889
21 BLS BellSouth Corporation 100 7,688 0.881
22 PFE Pfizer Incorporated 100 5,825 0.839
23 DD E I DuPont de Nemours 100 6,225 0.791
24 SBC SBC Communications In-
corporated 100 5,588 0.783
25 GM General Motors Corpora-
tion 100 4,488 0.749
26 AN Amoco Corporation 100 6,588 0.739
27 CHV Chevron Corporation 100 4,838 0.715
28 ABT Abbott Laboratories 100 3,950 0.714
29 F Ford Motor Company 100 2,875 0.702
30 DIS Walt Disney Company 100 5,800 0.693
31 FNM Federal National Mort-
gage Association 100 10,863 0.685
32 AIT Ameritech Corporation 100 5,250 0.681
33 MCD McDonalds Corporation 100 4,125 0.647
34 BEL Bell Atlantic Corpora-
tion 100 6,363 0.636
35 AHP American Home Products
Corporation 100 8,788 0.620
36 CCI Citicorp 100 6,788 0.614
37 LLY Eli Lilly & Company 100 9,525 0.601
38 MMM Minnesota Mining & Manu-
facturing Company 100 5,913 0.571
39 BA Boeing Company 100 6,975 0.543
</TABLE>
32
<PAGE>
EVEREN UNIT INVESTMENT TRUSTS, SERIES 39
INDEX PORTFOLIO SERIES 1 (THE S&P 500 INDEX TRUST)--CONTINUED
<TABLE>
<CAPTION>
THEORETICAL
PERCENTAGE (%)
PORTFOLIO OF TOTAL
NO. SYMBOL COMPANY NAME (1) SHARES COST ($) (1) MARKET VALUE (2)
--------- ------ ---------------- ------ ------------ ----------------
<C> <C> <S> <C> <C> <C>
40 CSCO Cisco Systems Incorpo-
rated 100 8,375 0.522
41 COL Columbia/HCA Healthcare-
VTG 100 5,088 0.519
42 BAC BankAmerica Corporation 100 5,850 0.506
43 EK Eastman Kodak Company 100 6,500 0.505
44 G Gillette Company 100 4,913 0.493
45 NYN Nynex Corporation 100 4,875 0.480
46 UN Unilever N V-NY Shares 100 13,000 0.477
47 AXP American Express 100 4,125 0.464
48 SGP Schering-Plough 100 5,463 0.459
49 ORCL Oracle Corporation 100 4,525 0.458
50 C Chrysler Corporation 100 5,038 0.443
51 HD Home Depot Incorporated 100 4,063 0.441
52 CCB Capital Cities/ABC In-
corporated 100 11,913 0.419
53 NB NationsBank Corporation 100 6,750 0.419
54 DOW Dow Chemical 100 6,675 0.409
55 PNU Pharmacia & Upjohn
Incorplorated 100 3,425 0.409
56 VIA.B Viacom Incorporated-
Class B 100 4,863 0.408
57 MCIC MCI Communications 100 2,600 0.403
58 TX Texaco Incorporated 100 6,763 0.399
59 ALL Allstate Corporation 100 3,863 0.398
60 ARC Atlantic Richfield Com-
pany 100 10,675 0.391
61 TRV Travelers Group Incorpo-
rated 100 5,463 0.391
62 EMR Emerson Electric Company 100 7,300 0.380
63 K Kellogg Company 100 7,300 0.371
64 BUD Anheuser-Busch Companies
Incorporated 100 6,388 0.368
65 SO Southern Company 100 2,313 0.357
66 ATI Airtouch Communications
Incorporated 100 3,113 0.351
67 SLB Schlumberger Limited 100 6,188 0.343
68 CHL Chemical Banking Corpo-
ration 100 5,838 0.342
69 CPQ Compaq Computer Corpora-
tion 100 5,463 0.341
70 FDC First Data Corporation 100 6,900 0.339
71 JPM JP Morgan & Company 100 7,825 0.336
72 ITT ITT Corporation 100 12,475 0.328
73 SLE Sara Lee Corporation 100 2,950 0.325
74 XRX Xerox Corporation 100 13,213 0.324
75 TWX Time Warner Incorporated 100 3,650 0.323
76 MU Micron Technology Incor-
porated 100 6,425 0.321
77 S Sears Roebuck & Company 100 3,688 0.320
78 USW U S West Incorporated 100 2,950 0.317
79 ONE Banc One Corporation 100 3,550 0.314
80 WMX WMX Technologies Incor-
porated 100 2,813 0.314
</TABLE>
33
<PAGE>
EVEREN UNIT INVESTMENT TRUSTS, SERIES 39
INDEX PORTFOLIO SERIES 1 (THE S&P 500 INDEX TRUST)--CONTINUED
<TABLE>
<CAPTION>
THEORETICAL
PERCENTAGE (%)
PORTFOLIO OF TOTAL
NO. SYMBOL COMPANY NAME (1) SHARES COST ($) (1) MARKET VALUE 2)
--------- ------ ---------------- ------ ------------ ---------------
<C> <C> <S> <C> <C> <C>
81 MDT Medtronic Incorporated 100 5,875 0.313
82 VO Seagram Company Limited 100 3,663 0.312
83 LMT Lockheed Martin Corpora-
tion 100 6,788 0.311
84 UNP Union Pacific Corpora-
tion 100 6,600 0.308
85 FON Sprint Corporation 100 3,838 0.304
86 FRE Federal Home Loan Mort-
gage Company 100 7,075 0.299
87 CA Computer Associates In-
ternational Incorpo-
rated 100 5,338 0.298
88 PAC Pacific Telesis Group 100 3,063 0.297
89 CPB Campbell Soup Company 100 5,138 0.294
90 AMGN Amgen Incorporated 100 4,775 0.291
91 PCG Pacific Gas & Electric 100 2,950 0.287
92 GRN General Re Corporation 100 15,100 0.285
93 ALD AlliedSignal Incorpo-
rated 100 4,250 0.282
94 TXN Texas Instruments Incor-
porated 100 6,250 0.281
95 MTC Monsanto Company 100 10,563 0.277
96 KMB Kimberly-Clark Corpora-
tion 100 7,450 0.271
97 WLA Warner-Lambert Company 100 8,750 0.271
98 BNI Burlington Northern
Santa Fe Corporation 100 8,275 0.267
99 HNZ H J Heinz Company 100 4,638 0.261
100 CAT Caterpillar Incorporated 100 5,700 0.255
101 TCOMA Tele-Communication Serv-
ice-a TCI Group 100 1,713 0.255
102 UTX United Technologies Cor-
poration 100 8,875 0.252
103 RTN Raytheon Company 100 4,288 0.243
104 BAX Baxter International In-
corporated 100 3,775 0.239
105 CMB Chase Manhattan Corpora-
tion 100 5,888 0.239
106 DNB Dun & Bradstreet Corpo-
ration 100 6,200 0.239
107 MER Merrill Lynch & Company 100 5,863 0.237
108 CL Colgate-Palmolive Com-
pany 100 6,963 0.234
109 WFC Wells Fargo & Company 100 21,063 0.234
110 AUD Automatic Data Process-
ing 100 7,150 0.232
111 UNH United Healthcare Corpo-
ration 100 5,763 0.231
112 NSC Norfolk Southern Corpo-
ration 100 7,600 0.230
113 MA May Department Stores
Company 100 4,175 0.229
114 NOB Norwest Corporation 100 3,200 0.229
115 JCP J C Penney Company 100 4,488 0.228
116 ROK Rockwell International
Corporation 100 4,575 0.226
117 AMAT Applied Material 100 5,400 0.223
118 I First Interstate Bancorp 100 12,688 0.222
119 CPC CPC International Incor-
porated 100 6,675 0.220
120 CAG Conagra Incorporated 100 3,850 0.219
121 MD McDonnell Douglas Corpo-
ration 100 8,613 0.219
</TABLE>
34
<PAGE>
EVEREN UNIT INVESTMENT TRUSTS, SERIES 39
INDEX PORTFOLIO SERIES 1 (THE S&P 500 INDEX TRUST)--CONTINUED
<TABLE>
<CAPTION>
THEORETICAL
PERCENTAGE (%)
PORTFOLIO OF TOTAL
NO. SYMBOL COMPANY NAME (1) SHARES COST ($) (1) MARKET VALUE (2)
--------- ------ ---------------- ------ ------------ ----------------
<C> <C> <S> <C> <C> <C>
122 IP International Paper Com-
pany 100 3,600 0.216
123 NT Northern Telecom Limited 100 3,713 0.214
124 AA Aluminum Company of
America 100 5,200 0.212
125 DUK Duke Power Company 100 4,463 0.211
126 CSX CSX Corporation 100 8,588 0.208
127 WY Weyerhaeuser Company 100 4,413 0.207
128 ENE Enron Corporation 100 3,538 0.204
129 GIS General Mills Incorpo-
rated 100 5,600 0.202
130 PPG PPG Industries Incorpo-
rated 100 4,325 0.202
131 ADM Archer-Daniels-Midland
Company 100 1,625 0.201
132 FTU First Union Corporation
(North Carolina) 100 5,138 0.200
133 AMP AMP Incorporated 100 3,875 0.199
134 DWD Dean Witter Discover &
Company 100 5,100 0.199
135 UMG U S West Incorporated 100 1,850 0.199
136 LTR Loews Corporation 100 14,688 0.198
137 ABX Barrick Gold Corporation 100 2,475 0.195
138 NKE Nike Incorporated-Class
B 100 6,000 0.193
139 DEC Digital Equipment 100 5,725 0.192
140 P Phillips Petroleum Com-
pany 100 3,200 0.192
141 TXU Texas Utilities Company 100 3,725 0.192
142 ABS Albertsons Incorporated 100 3,250 0.191
143 BK Bank of New York Company
Incorporated 100 4,263 0.191
144 AET AETNA Life & Casualty
Company 100 7,550 0.190
145 SPP Scott Paper Company 100 5,438 0.187
146 TEN Tenneco Incorporated 100 4,450 0.185
147 SUNW Sun Microsystems Incor-
porated 100 8,313 0.184
148 CB Chubb Corporation 100 9,288 0.183
149 DE Deere & Company 100 9,275 0.183
150 FPL FPL Group Incorporated 100 4,188 0.179
151 KEY KeyCorp 100 3,450 0.179
152 AMB American Brands
Incorporated/Delaware 100 4,100 0.178
153 GCI Gannett Company 100 5,600 0.178
154 CI CIGNA Corporation 100 10,613 0.177
155 WB Wachovia Corporation 100 4,538 0.176
156 MEL Mellon Bank Corporation 100 5,225 0.174
157 GP Georgia-Pacific Corpora-
tion 100 8,200 0.173
158 SCE SCECorp 100 1,663 0.172
159 STI SunTrust Banks Incorpo-
rated 100 6,600 0.172
160 AL Alcan Aluminum Limited 100 3,263 0.168
161 UCM Unicom Corporation 100 3,288 0.164
</TABLE>
35
<PAGE>
EVEREN UNIT INVESTMENT TRUSTS, SERIES 39
INDEX PORTFOLIO SERIES 1 (THE S&P 500 INDEX TRUST)--CONTINUED
<TABLE>
<CAPTION>
THEORETICAL
PERCENTAGE (%)
PORTFOLIO OF TOTAL
NO. SYMBOL COMPANY NAME (1) SHARES COST ($) (1) MARKET VALUE (2)
--------- ------ ---------------- ------ ------------ ----------------
<C> <C> <S> <C> <C> <C>
162 AEP American Electric Power 100 3,813 0.163
163 ED Consolidated Edison of
New York 100 2,988 0.163
164 WAG Walgreen Company 100 2,900 0.163
165 PEG Public Service Enter-
prises 100 2,913 0.162
166 D Dominion Resources In-
corporated 100 3,975 0.160
167 FBS First Bank System Incor-
porated 100 4,988 0.158
168 MS Morgan Stanley Group In-
corporated 100 8,913 0.157
169 ITW Illinois Tool Works 100 5,913 0.156
170 LTD Limited Incorporated 100 1,875 0.154
171 OXY Occidental Petroleum
Corporation 100 2,125 0.154
172 PBI Pitney Bowes Incorpo-
rated 100 4,500 0.154
173 AGC American General Corpo-
ration 100 3,263 0.151
174 ETR Entergy Corporation 100 2,850 0.150
175 PE Peco Energy Company 100 2,925 0.150
176 UCL Unocal Corporation 100 2,638 0.148
177 RAL Ralston Purina Group 100 6,163 0.147
178 PNC PNC Bank Corporation 100 2,738 0.145
179 TOY Toys R US Incorporated 100 2,413 0.145
180 BSX Boston Scientific Corpo-
ration 100 4,075 0.144
181 MAT Mattel Incorporated 100 2,875 0.144
182 CU CUC International Incor-
porated 100 3,713 0.143
183 USHC U S HealthCare Incorpo-
rated 100 4,138 0.143
184 APD Air Products & Chemicals
Incorporated 100 5,463 0.141
185 BFI Browning-Ferris Indus-
tries 100 2,975 0.141
186 HOU Houston Industries In-
corporated 100 4,663 0.141
187 FNB First Chicago Corpora-
tion 100 6,825 0.140
188 NOVL Novell Incorporated 100 1,663 0.140
189 CS Cabletron Systems 100 8,513 0.139
190 HPC Hercules Incorporated 100 5,350 0.139
191 MMC Marsh & McLennan Compa-
nies 100 8,413 0.139
192 UST UST Incorporated 100 3,088 0.139
193 GPS GAP Incorporated 100 4,313 0.138
194 GLW Corning Incorporated 100 2,688 0.137
195 TXT Textron Incorporated 100 6,938 0.136
196 GT Goodyear Tire & Rubber
Company 100 3,888 0.134
197 NBD NBD Bancorp Incorporated 100 3,788 0.134
198 AT Alltel Corporation 100 3,050 0.131
199 HI Household International
Incorporated 100 5,813 0.131
200 SGI Silicon Graphics Incor-
porated 100 3,563 0.131
201 DNY R R Donnelley & Sons
Company 100 3,675 0.130
202 KRB MBNA Corporation 100 3,750 0.129
</TABLE>
36
<PAGE>
EVEREN UNIT INVESTMENT TRUSTS, SERIES 39
INDEX PORTFOLIO SERIES 1 (THE S&P 500 INDEX TRUST)--CONTINUED
<TABLE>
<CAPTION>
THEORETICAL
PERCENTAGE (%)
PORTFOLIO OF TOTAL
NO. SYMBOL COMPANY NAME (1) SHARES COST ($) (1) MARKET VALUE (2)
--------- ------ ---------------- ------ ------------ ----------------
<C> <C> <S> <C> <C> <C>
203 SYY SYSCO Corporation 100 3,000 0.128
204 WWY William Wrigley, Jr.
Company 100 4,850 0.128
205 FLT Fleet Financial Group
Incorporated 100 3,888 0.126
206 MRO USX-Marathon Group 100 1,825 0.126
207 PDG Placer Dome Incorporated 100 2,350 0.126
208 WX Westinghouse Electric
Corporation 100 1,463 0.125
209 FFB First Fidelity Bancorpo-
ration 100 6,800 0.124
210 IFF International Flavors &
Fragrances 100 4,863 0.124
211 PPW Pacificorp 100 1,900 0.124
212 AMR AMR Corporation/Delaware 100 7,200 0.123
213 BBI Barnett Banks Incorpo-
rated 100 5,563 0.123
214 CRR Conrail Incorporated 100 6,850 0.123
215 GRA W R Grace & Company 100 5,563 0.123
216 HON Honeywell Incorporated 100 4,163 0.123
217 CBS CBS Incorporated 100 8,113 0.120
218 DH Dayton Hudson Corpora-
tion 100 7,325 0.120
219 LOR Loral Corporation 100 3,075 0.120
220 UK Union Carbide Corpora-
tion 100 3,713 0.120
221 CSR Central & South West
Corporation 100 2,613 0.119
222 CPL Carolina Power & Light 100 3,313 0.118
223 BT Bankers Trust New York
Corporation 100 6,525 0.117
224 ASN Alco Standard Corpora-
tion 100 9,038 0.115
225 CFL Corestates Financial
Corporation 100 3,588 0.115
226 CHA Champion International
Corporation 100 5,050 0.115
227 DTE Detroit Edison Company 100 3,350 0.114
228 EMN Eastman Chemical Company 100 6,100 0.114
229 AVP Avon Products 100 7,150 0.112
230 BKB Bank of Boston Corpora-
tion 100 4,388 0.112
231 WIN Winn-Dixie Stores Incor-
porated 100 6,550 0.112
232 GPC Genuine Parts Company 100 3,963 0.111
233 LOW Lowes Companies 100 3,038 0.111
234 BOAT Boatmens Bancshares In-
corporated 100 3,813 0.110
235 FDX Federal Express Corpora-
tion 100 8,525 0.109
236 LNC Lincoln National Corpo-
ration 100 4,588 0.109
237 MAR Marriott International
Incorporated 100 3,738 0.109
238 TA Transamerica Corporation 100 6,975 0.109
239 FCX.B Freeport McMoRan Copper
& Gold Company -Class B 100 2,325 0.108
240 MII Morton International In-
corporated 100 3,200 0.108
241 TYC Tyco International In-
corporated 100 6,188 0.108
242 BR Burlington Resources In-
corporated 100 3,663 0.107
243 HAL Halliburton Company 100 4,100 0.106
</TABLE>
37
<PAGE>
EVEREN UNIT INVESTMENT TRUSTS, SERIES 39
INDEX PORTFOLIO SERIES 1 (THE S&P 500 INDEX TRUST)--CONTINUED
<TABLE>
<CAPTION>
THEORETICAL
PERCENTAGE (%)
PORTFOLIO OF TOTAL
NO. SYMBOL COMPANY NAME (1) SHARES COST ($) (1) MARKET VALUE (2)
--------- ------ ---------------- ------ ------------ ----------------
<C> <C> <S> <C> <C> <C>
244 HRB H & R Block Incorporated 100 4,425 0.106
245 NCC National City Corpora-
tion 100 3,113 0.106
246 FLR Fluor Corporation 100 5,538 0.105
247 HSY Hershey Foods Corpora-
tion 100 5,938 0.105
248 DIGI DSC Communications Cor-
poration 100 3,900 0.104
249 MAS MASCO Corporation 100 2,850 0.103
250 OAT Quaker Oats Company 100 3,388 0.103
251 PD Phelps Dodge Corporation 100 6,400 0.103
252 TRW TRW Incorporated 100 6,850 0.103
253 DOV Dover Corporation 100 3,913 0.102
254 AAPL Apple Computer Incorpo-
rated 100 3,813 0.101
255 CIN Cinergy Corporation 100 2,800 0.101
256 SNC Shawmut National Corpo-
ration 100 3,438 0.101
257 SPC Saint Paul Companies 100 5,250 0.101
258 AHC Amerada Hess Corporation 100 4,700 0.100
259 ASC American Stores Company 100 2,925 0.100
260 GLK Great Lakes Chemical
Corporation 100 6,688 0.099
261 BDX Becton Dickinson & Com-
pany 100 6,538 0.098
262 KM K Mart Corporation 100 900 0.098
263 PHYB Pioneer Hi-Bred Interna-
tional 100 5,288 0.097
264 SAFC Safeco Corporation 100 6,688 0.097
265 CMCSK ComCast Corporation-
Class A Spl 100 1,725 0.096
266 RBD Rubbermaid Incorporated 100 2,650 0.096
267 MHP McGraw-Hill Companies 100 8,400 0.095
268 TRB Tribune Company 100 6,338 0.094
269 ETN Eaton Corporation 100 5,125 0.092
270 KR Kroger Company 100 3,300 0.092
271 N INCO Limited 100 3,413 0.092
272 NUE Nucor Corporation 100 4,600 0.092
273 UEP Union Electric Company 100 3,950 0.092
274 BGE Baltimore Gas & Electric 100 2,675 0.091
275 PX Praxair Incorporated 100 2,875 0.091
276 SB Salomon Incorporated 100 3,675 0.091
277 WMB Williams Companies In-
corporated 100 3,913 0.091
278 DI Dresser Industries In-
corporated 100 2,200 0.090
279 IR Ingersoll-Rand Company 100 3,688 0.090
280 WHR Whirlpool Corporation 100 5,288 0.090
281 PEL Panhandle Eastern Corpo-
ration 100 2,588 0.089
282 SRV Service Corporation In-
ternational 100 3,913 0.089
283 UNM Unum Corporation 100 5,275 0.089
284 CLX Clorox Company/Delaware 100 7,300 0.088
</TABLE>
38
<PAGE>
EVEREN UNIT INVESTMENT TRUSTS, SERIES 39
INDEX PORTFOLIO SERIES 1 (THE S&P 500 INDEX TRUST)--CONTINUED
<TABLE>
<CAPTION>
THEORETICAL
PERCENTAGE (%)
PORTFOLIO OF TOTAL
NO. SYMBOL COMPANY NAME (1) SHARES COST ($) (1) MARKET VALUE (2)
--------- ------ ---------------- ------ ------------ ----------------
<C> <C> <S> <C> <C> <C>
285 ROH Rohm & Haas Company 100 5,750 0.088
286 CSC Computer Sciences Corpo-
ration 100 6,900 0.087
287 NWL Newell Companies 100 2,388 0.086
288 PVN Providian Corporation 100 3,875 0.086
289 CNG Consolidated Natural Gas
Company 100 4,013 0.084
290 EC Engelhard Corporation 100 2,538 0.084
291 TLAB Tellabs Incorporated 100 4,225 0.084
292 CBE Cooper Industries Incor-
porated 100 3,350 0.083
293 GPU General Public Utilities 100 3,125 0.083
294 THC Tenet Healthcare Corpo-
ration 100 1,850 0.083
295 DAL Delta Air Lines Incorpo-
rated 100 7,013 0.081
296 OEC Ohio Edison Company 100 2,300 0.081
297 GD General Dynamics Corpo-
ration 100 5,663 0.080
298 DJ Dow Jones & Company In-
corporated 100 3,575 0.079
299 CGP Coastal Corporation 100 3,213 0.078
300 UCC Union Camp Corporation 100 4,863 0.078
301 WMTT Willamette Industries 100 6,100 0.077
302 GWF Great Western Financial 100 2,400 0.076
303 MES Melville Corporation 100 3,113 0.076
304 NEM Newmont Mining Corpora-
tion 100 3,975 0.076
305 PCCW Price/Costco Incorpo-
rated 100 1,663 0.076
306 RLM Reynolds Metals Company 100 5,275 0.076
307 RNB Republic New York Corpo-
ration 100 5,938 0.076
308 GWW W W Grainger Incorpo-
rated 100 6,438 0.075
309 DDS Dillard Department
Stores-Class A 100 2,925 0.074
310 HLT Hilton Hotels Corpora-
tion 100 6,750 0.074
311 NOBE Nordstrom Incorporated 100 4,025 0.074
312 NSP Northern States
Power/Manufacturing 100 4,713 0.074
313 CC Circuit City Stores In-
corporated 100 3,050 0.073
314 JP Jefferson-Pilot Corpora-
tion 100 6,688 0.073
315 SHW Sherwin-Williams Company 100 3,750 0.073
316 TMC Times Mirror Company-Se-
ries A 100 2,813 0.073
317 MEA Mead Corporation 100 5,875 0.072
318 NSM National Semiconductor
Corporation 100 2,475 0.072
319 PMI Premark International
Incorporated 100 5,013 0.072
320 CCK Crown Cork & Seal Com-
pany Incorporated 100 3,463 0.071
321 LUV Southwest Airlines 100 2,238 0.071
322 VFC VF Corporation 100 4,838 0.071
323 USBC U S Bancorporation 100 3,225 0.070
324 AHM H F Ahmanson & Company 100 2,550 0.069
325 BDK Black & Decker Corpora-
tion 100 3,538 0.069
</TABLE>
39
<PAGE>
EVEREN UNIT INVESTMENT TRUSTS, SERIES 39
INDEX PORTFOLIO SERIES 1 (THE S&P 500 INDEX TRUST)--CONTINUED
<TABLE>
<CAPTION>
THEORETICAL
PERCENTAGE (%)
PORTFOLIO OF TOTAL
NO. SYMBOL COMPANY NAME (1) SHARES COST ($) (1) MARKET VALUE (2)
--------- ------ ---------------- ------ ------------ ----------------
<C> <C> <S> <C> <C> <C>
326 TMK Torchmark Corporation 100 4,175 0.069
327 GDW Golden West Financial
Corporation 100 5,025 0.068
328 IPG Interpublic Group of
Companies 100 3,825 0.067
329 H Harcourt General Incor-
porated 100 4,025 0.066
330 KRI Knight-Rider Incorpo-
rated 100 5,850 0.066
331 TAN Tandy Corporation 100 4,588 0.066
332 KMG Kerr-McGee Corporation 100 5,463 0.065
333 NOC Northrop Grumman Corpo-
ration 100 5,875 0.065
334 NYT.A New York Times Company-
Class A 100 2,963 0.065
335 W Westvaco Corporation 100 2,775 0.064
336 BHI Baker-Hughes Incorpo-
rated 100 1,938 0.062
337 DCN Dana Corporation 100 2,700 0.062
338 JR James River Corporation
of Virginia 100 3,213 0.062
339 PLL Pall Corporation 100 2,400 0.062
340 BF.B Brown-Forman-Class B 100 3,838 0.061
341 FMC FMC Corporation 100 7,288 0.061
342 HAS Hasbro Incorporated 100 3,038 0.061
343 MKG Mallinckrodt Group In-
corporated 100 3,488 0.061
344 RBK Reebok International
Limited 100 3,400 0.061
345 BNL Beneficial Corporation 100 4,913 0.060
346 LDW.B Laidlaw Incorporated-
Class B 100 913 0.060
347 LPX Louisiana-Pacific Corpo-
ration 100 2,413 0.060
348 PH Parker-Hannifin Corpora-
tion 100 3,538 0.060
349 HET Harrahs Entertainment
Incorporated 100 2,463 0.059
350 STJM St Jude Medical Incorpo-
rated 100 5,863 0.058
351 TIN Temple-Inland Incorpo-
rated 100 4,575 0.058
352 CYM Cyprus Amax Minerals
Company 100 2,688 0.057
353 JCI Johnson Controls Incor-
porated 100 6,163 0.057
354 SNT Sonat Incorporated 100 2,925 0.057
355 X USX-U S Steel Group 100 3,025 0.057
356 AVY Avery Dennison Corpora-
tion 100 4,625 0.055
357 RAD Rite Aid Corporation 100 2,825 0.055
358 WAI Western Atlas Incorpo-
rated 100 4,463 0.055
359 AMD Advanced Micro Devices 100 2,250 0.054
360 HRS Harris Corporation 100 6,000 0.054
361 SIAL Sigma-Aldrich 100 4,600 0.054
362 AGREA American Greetings-Class
A 100 3,063 0.053
363 DL Dial
Corporation/Delaware 100 2,450 0.052
364 ACK Armstrong World Indus-
tries Incorporated 100 6,100 0.051
365 DLX Deluxe Corporation 100 2,688 0.051
366 WH Whitman Corporation 100 2,138 0.051
</TABLE>
40
<PAGE>
EVEREN UNIT INVESTMENT TRUSTS, SERIES 39
INDEX PORTFOLIO SERIES 1 (THE S&P 500 INDEX TRUST)--CONTINUED
<TABLE>
<CAPTION>
THEORETICAL
PERCENTAGE (%)
PORTFOLIO OF TOTAL
NO. SYMBOL COMPANY NAME (1) SHARES COST ($) (1) MARKET VALUE (2)
--------- ------ ---------------- ------ ------------ ----------------
<C> <C> <S> <C> <C> <C>
367 ECH Echlin Incorporated 100 3,638 0.050
368 HM Homestake Mining 100 1,613 0.050
369 LIZ Liz Claiborne Incorpo-
rated 100 2,963 0.050
370 OCF Owens Corning Fiberglas 100 4,300 0.050
371 PET Pacific Enterprises 100 2,525 0.050
372 SUN Sun Company Incorporated 100 2,875 0.050
373 SWK Stanley Works 100 4,850 0.049
374 FBO Federal Paper Board Com-
pany 100 5,213 0.048
375 MYG Maytag Corporation 100 1,988 0.048
376 SVU SuperValu Incorporated 100 3,100 0.048
377 WEN Wendy's International
Incorporated 100 2,063 0.048
378 BOL Bausch & Lomb Incorpo-
rated 100 3,613 0.047
379 MNR Manor Care Incorporated 100 3,275 0.047
380 RYC Raychem Corporation 100 4,713 0.047
381 CEN Ceridian Corporation 100 4,400 0.046
382 NLC Nalco Chemical Company 100 3,000 0.046
383 ASH Ashland Incorporated 100 3,088 0.045
384 BMET Biomet Incorporated 100 1,750 0.045
385 CG Columbia Gas System 100 3,913 0.045
386 CTB Cooper Tire & Rubber 100 2,350 0.045
387 PRD Polaroid Corporation 100 4,250 0.045
388 R Ryder System Incorpo-
rated 100 2,463 0.045
389 TEK Tektronix Incorporated 100 5,875 0.045
390 BC Brunswick Corporation 100 2,025 0.044
391 GFS.A Giant Food Incorporated-
Class A 100 3,288 0.044
392 MCL Moore Corporation Lim-
ited 100 1,875 0.044
393 Z Woolworth Corporation 100 1,425 0.044
394 ANDW Andrew Corporation 100 4,725 0.043
395 ECL Ecolab Incorporated 100 2,925 0.043
396 AGN Allergan Incorporated 100 2,900 0.042
397 DRI Darden Restaurants In-
corporated 100 1,175 0.042
398 FG USF&G Corporation 100 1,613 0.042
399 AZA Alza Corporation 100 2,125 0.041
400 ROAD Roadway Services Incor-
porated 100 5,050 0.041
401 BCC Boise Cascade Corpora-
tion 100 3,725 0.040
402 GR B F Goodrich Company 100 6,863 0.040
403 PZL Pennzoil Company 100 3,775 0.040
404 MST Mercantile Stores Com-
pany Incorporated 100 4,675 0.039
405 SNA Snap-On Incorporated 100 4,288 0.039
406 HPH Harnischfeger Industries
Incorporated 100 3,475 0.038
407 ACAD Autodesk Incorporated 100 3,175 0.037
</TABLE>
41
<PAGE>
EVEREN UNIT INVESTMENT TRUSTS, SERIES 39
INDEX PORTFOLIO SERIES 1 (THE S&P 500 INDEX TRUST)--CONTINUED
<TABLE>
<CAPTION>
THEORETICAL
PERCENTAGE (%)
PORTFOLIO OF TOTAL
NO. SYMBOL COMPANY NAME (1) SHARES COST ($) (1) MARKET VALUE (2)
--------- ------ ---------------- ------ ------------ ----------------
<C> <C> <S> <C> <C> <C>
408 MIL Millipore Corporation 100 3,563 0.037
409 PCAR Paccar Incorporated 100 4,175 0.037
410 BCR C.R. Bard Incorporated 100 2,838 0.036
411 STO Stone Container Corpora-
tion 100 1,663 0.036
412 WTHG Worthington Industries 100 1,713 0.036
413 GSX General Signal Corpora-
tion 100 3,175 0.035
414 NMK Niagara Mohawk Power 100 1,025 0.035
415 VAT Varity Corporation 100 3,788 0.035
416 PBY Pep Boys-Manny Moe &
Jack 100 2,375 0.034
417 BS Bethlehem Steel Corpora-
tion 100 1,338 0.033
418 CUM Cummins Engine 100 3,600 0.033
419 NSI National Service Indus-
tries Incorporated 100 3,000 0.033
420 PKN Perkin-Elmer Corporation 100 3,550 0.033
421 GLD Santa Fe Pacific Gold
Corporation 100 1,075 0.032
422 AR Asarco Incorporated 100 3,225 0.031
423 BMS Bemis Company 100 2,588 0.031
424 FWC Foster Wheeler Corpora-
tion 100 3,838 0.031
425 GAS Nicor Incorporated 100 2,675 0.031
426 TDM Tandem Computers Incor-
porated 100 1,200 0.031
427 TDY Teledyne Incorporated 100 2,475 0.031
428 USS U S Surgical Corporation 100 2,425 0.031
429 TNB Thomas & Betts Corpora-
tion 100 6,775 0.030
430 FTL Fruit of the Loom Incor-
porated-Class A 100 1,775 0.029
431 KWP King World Productions
Incorporated 100 3,438 0.029
432 TKR Timken Company 100 3,938 0.029
433 BEV Beverly Enterprises 100 1,225 0.028
434 BGG Briggs & Stratton 100 4,138 0.028
435 LLX Louisiana Land & Explo-
ration 100 3,663 0.028
436 PCH Potlatch Corporation 100 4,175 0.028
437 ORX Oryx Energy Company 100 1,150 0.027
438 PZS Pittston Company-Serv-
ices Group 100 2,763 0.026
439 UIS Unisys Corporation 100 688 0.026
440 AMH Amdahl Corporation 100 938 0.025
441 CR Crane Companty 100 3,638 0.025
442 IAD Inland Steel Industries
Incorporated 100 2,325 0.025
443 OG Ogden Corporation 100 2,275 0.025
444 CNF Consolidated Freightways
Incorporated 100 2,488 0.024
445 ECO Echo Bay Mines Limited 100 963 0.024
446 SFA Scientific-Atlanta In-
corporated 100 1,488 0.024
447 AAL Alexander & Alexander 100 2,238 0.023
448 EGG EG&G Incorporated 100 1,888 0.023
</TABLE>
42
<PAGE>
EVEREN UNIT INVESTMENT TRUSTS, SERIES 39
INDEX PORTFOLIO SERIES 1 (THE S&P 500 INDEX TRUST)--CONTINUED
<TABLE>
<CAPTION>
THEORETICAL
PERCENTAGE (%)
PORTFOLIO OF TOTAL
NO. SYMBOL COMPANY NAME (1) SHARES COST ($) (1) MARKET VALUE (2)
--------- ------ ---------------- ------ ------------ ----------------
<C> <C> <S> <C> <C> <C>
449 ENS Enserch Corporation 100 1,488 0.023
450 FLE Fleetwood Enterprises 100 2,175 0.023
451 MDP Meredith Corporation 100 3,663 0.023
452 PGL Peoples Energy Corpora-
tion 100 2,913 0.023
453 TJX TJX Companies Incorpo-
rated 100 1,425 0.023
454 CTX Centex Corporation 100 3,363 0.022
455 NAE Noram Energy Corporation 100 763 0.022
456 RML Russell Corporation 100 2,513 0.022
457 USH USLife Corporation 100 2,850 0.022
458 SMED Shared Medical Systems
Corporation 100 3,875 0.021
459 U USAir Group 100 1,525 0.021
460 ACV Alberto-Culver Company-
Class B 100 3,125 0.020
461 FLM Fleming Companies Incor-
porated 100 2,275 0.020
462 JOS Jostens Incorporated 100 2,300 0.020
463 MDR McDermott International
Incorporated 100 1,563 0.020
464 PHM Pulte Corporation 100 3,213 0.020
465 SK Safety-Kleen Corporation 100 1,513 0.020
466 BLL Ball Corporation 100 2,825 0.019
467 CMZ Cincinnati Milacron In-
corporated 100 2,488 0.019
468 SFR Santa Fe Energy Re-
sources 100 913 0.019
469 SMI Springs Industries-Class
A 100 4,175 0.019
470 TNV Trinova Corporation 100 2,863 0.019
471 GAP Great Atlantic & Pacific
Tea Company 100 2,050 0.018
472 LDG Longs Drug Stores Incor-
porated 100 3,950 0.018
473 NAV Navistar International 100 1,088 0.018
474 ACCOB Adolph Coors-Class B 100 1,813 0.016
475 INGR Intergraph Corporation 100 1,513 0.016
476 JH John H. Harland Company 100 2,100 0.015
477 OKE Oneok Incorporated 100 2,425 0.015
478 AS Armco Incorporated 100 600 0.014
479 EFU Eastern Enterprises 100 3,075 0.014
480 HP Helmerich & Payne 100 2,550 0.014
481 BLY Bally Entertainment Cor-
poration 100 1,175 0.013
482 CYR Cray Research 100 2,350 0.013
483 RDC Rowan Companies Incorpo-
rated 100 700 0.013
484 CMY Community Psychiatric
Centers 100 1,188 0.012
485 GIDL Giddings & Lewis
Incorporated/WI 100 1,588 0.012
486 LUB Lubys Cafeterias Incor-
porated 100 2,175 0.012
487 NC Nacco Industries-Class A 100 5,788 0.012
488 SRR Stride Rite Corporation 100 1,100 0.012
489 DGN Data General Corporation 100 1,388 0.011
</TABLE>
43
<PAGE>
EVEREN UNIT INVESTMENT TRUSTS, SERIES 39
INDEX PORTFOLIO SERIES 1 (THE S&P 500 INDEX TRUST)--CONTINUED
<TABLE>
<CAPTION>
THEORETICAL
PERCENTAGE (%)
PORTFOLIO OF TOTAL
NO. SYMBOL COMPANY NAME (1) SHARES COST ($) (1) MARKET VALUE (2)
--------- ------ ---------------- ------ ------------ ----------------
<C> <C> <S> <C> <C> <C>
490 SHN Shoney's Incorporated 100 1,138 0.011
491 KBH Kaufman & Broad Home 100 1,238 0.010
492 OM Outboard Marine Corpora-
tion 100 2,200 0.010
493 RYAN Ryan's Family Steak
Houses Incorporated 100 788 0.010
494 ZE Zenith Electronics Cor-
poration 100 863 0.009
495 CHRS Charming Shoppes 100 319 0.008
496 YELL Yellow Corporation 100 1,275 0.008
497 ZRN Zurn Industries Incorpo-
rated 100 2,538 0.007
498 BG Brown Group Incorporated 100 1,363 0.006
499 HDL Handleman Company 100 725 0.006
500 MRN Morrison Knudsen Corpo-
ration 100 650 0.005
----------
$2,206,106
==========
</TABLE>
NOTES TO PORTFOLIO
(1) All or a portion of the Securities may have been deposited in the Trust.
Any undelivered Securities are represented by "regular way" contracts for
the performance of which an irrevocable letter of credit has been
deposited with the Trustee. At the Initial Date of Deposit, the Sponsor
has assigned to the Trustee all of its rights, title and interest in and
to such undelivered Securities. Contracts to purchase Securities were
entered into on November 6, 1995 and all have expected settlement dates of
November 9, 1995 (see "The Trust Fund"). The cost of the Securities to the
Sponsor and the cost of the Securities to the Trust are the same;
accordingly, the Sponsor's profit or (loss) on the deposit of Securities
is $0.00. Total cost of the Securities is $2,206,106.
(2) The percentage listed under this heading represents each Security's
proportionate relationship of all S&P 500 Index stocks based on market
value as of the date set forth above. Because the stocks included in the
S&P 500 Index and the value of such stocks may change from time to time,
and because the Trust may not be able to duplicate the S&P 500 Index
exactly, the percentages set forth above do not represent the actual
weighting of each Security in the Trust portfolio on the Initial Date of
Deposit or on any subsequent date. See "The Trust Portfolio."
----------------
The Sponsor may have participated as issuer, sole underwriter, managing
underwriter or member of an underwriting syndicate in a public offering of one
or more of the stocks in the S&P 500 Index. The Sponsor may serve as a
specialist in the stocks in the S&P 500 Index on one or more stock exchanges
and may have a long or short position in any of these stocks or in options on
any of these stocks, and may be on the opposite side of public orders executed
on the floor of an exchange where such stocks are listed. An officer, director
or employee of the Sponsor may be an officer or director of one or more of the
issuers of the stocks in the S&P 500 Index. The Sponsor may trade for its own
account as an odd-lot dealer, market maker, block positioner and/or
arbitrageur in any stocks or options relating thereto. The Sponsor, its
affiliates, directors, elected officers and employee benefit programs may have
either a long or short position in any stock or option of the issuers.
44
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
Contents
SUMMARY.................................................................... 2
ESSENTIAL INFORMATION...................................................... 5
FEE TABLE.................................................................. 7
THE TRUST FUND............................................................. 8
THE TRUST PORTFOLIO........................................................ 9
RISK FACTORS............................................................... 13
FEDERAL TAX STATUS......................................................... 14
PUBLIC OFFERING OF UNITS................................................... 16
Public Offering Price..................................................... 16
Public Distribution of Units.............................................. 17
Sponsor Profits........................................................... 18
MARKET FOR UNITS........................................................... 18
REDEMPTION................................................................. 19
General................................................................... 19
Computation of Redemption Price........................................... 20
RETIREMENT PLANS........................................................... 20
UNITHOLDERS................................................................ 22
Ownership of Units........................................................ 22
Distributions to Unitholders.............................................. 22
Distribution Reinvestment................................................. 23
Statements to Unitholders................................................. 23
Rights of Unitholders..................................................... 24
INVESTMENT SUPERVISION..................................................... 24
ADMINISTRATION OF THE TRUST................................................ 25
The Trustee............................................................... 25
The Sponsor............................................................... 26
The Evaluator............................................................. 26
Amendment and Termination................................................. 27
Limitations on Liability.................................................. 28
EXPENSES OF THE TRUST...................................................... 28
LEGAL OPINIONS............................................................. 29
INDEPENDENT CERTIFIED PUBLIC
ACCOUNTANTS.............................................................. 29
REPORT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS......................... 30
STATEMENT OF CONDITION..................................................... 31
PORTFOLIO.................................................................. 32
</TABLE>
--------------------------
This Prospectus does not contain all of the information with respect to the in-
vestment company set forth in its registration statement and exhibits relating
thereto which have been filed with the Securities and Exchange Commission,
Washington, D.C. under the Securities Act of 1933 and the Investment Company
Act of 1940, and to which reference is hereby made.
--------------------------
No person is authorized to give any information or to make any representations
with respect to this investment company not contained in this Prospectus, and
any information or representation not contained herein must not be relied upon
as having been authorized by the Trust, the Trustee, or the Sponsor. Such reg-
istration does not imply that the Trust or the Units have been guaranteed,
sponsored, recommended or approved by the United States or any state or any
agency or officer thereof.
--------------------------
This Prospectus does not constitute an offer to sell, or a solicitation of an
offer to buy, securities in any state to any person to whom it is not lawful to
make such offer in such state or country.
EVEREN Unit Investment Trusts
77 West Wacker Drive, 29th Floor
Chicago, IL 60601-1994
<PAGE>
CONTENTS OF REGISTRATION STATEMENT
This Registration Statement comprises the following papers and documents.
<TABLE>
<C> <S>
The facing sheet
The Cross-Reference Sheet
The Prospectus
The Signatures
The following exhibits.
1.1. Trust Agreement.
1.1.1. Standard Terms and Conditions of Trust.
1.2. Certificate of Incorporation for EVEREN Securities, Inc.
1.3. By-laws for EVEREN Securities, Inc.
2.1. Form of Certificate of Ownership (pages three and four of the Standard
Terms and Conditions of Trust included as Exhibit 1.1.1)
3.1. Opinion of counsel to the Sponsor as to legality of the securities
being registered including a consent to the use of its name under the
headings "Tax Status" and "Legal Opinions" in the Prospectus.
4.1. Consent of Grant Thornton LLP.
6.1. List of officers and directors of EVEREN Securities, Inc.
7.1. Powers of Attorney.
Financial Data Schedule.
</TABLE>
S-1
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT,
EVEREN UNIT INVESTMENT TRUSTS, SERIES 39 HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED THEREUNTO DULY
AUTHORIZED, IN THE CITY OF CHICAGO, AND STATE OF ILLINOIS, ON THE 7TH DAY OF
NOVEMBER, 1995.
EVEREN Unit Investment Trusts,
Series 39
Registrant
By: EVEREN Unit Investment Trusts,
a service of EVEREN Securities, Inc.
Depositor
/s/ Michael J. Thoms
By: _________________________________
Michael J. Thoms
S-2
<PAGE>
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS REGISTRATION
STATEMENT HAS BEEN SIGNED BELOW ON NOVEMBER 7, 1995 BY THE FOLLOWING PERSONS,
WHO CONSTITUTE A MAJORITY OF THE BOARD OF DIRECTORS OF EVEREN SECURITIES, INC.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
/s/ James R. Boris
- -------------------------------------------
James R. Boris Chairman and Chief Executive Officer
/s/ Daniel D. Williams
- -------------------------------------------
Daniel D. Williams Senior Executive Vice President, Chief
Financial Officer and Treasurer
/s/ Frank V. Geremia
- -------------------------------------------
Frank V. Geremia Senior Executive Vice President
/s/ Stephen G. McConahey
- -------------------------------------------
Stephen G. McConahey President and Chief Operating Officer
/s/ Stanley R. Fallis
- -------------------------------------------
Stanley R. Fallis Senior Executive Vice President and Chief
Administrative Officer
/s/ David M. Greene
- -------------------------------------------
David M. Greene Senior Executive Vice President and
Director of Client Services
/s/ Thomas R. Reedy
- -------------------------------------------
Thomas R. Reedy Senior Executive Vice President and
Director of Capital Markets
/s/ Janet L. Reali
- -------------------------------------------
Janet L. Reali Executive Vice President, Corporate Counsel
and Corporate Secretary
</TABLE>
/s/ Michael J. Thoms
_____________________________________
Michael J. Thoms
ROBERT K. BURKE SIGNS THESE DOCUMENTS PURSUANT TO POWERS OF ATTORNEY FILED
WITH THE SECURITIES AND EXCHANGE COMMISSION WITH AMENDMENT NO. 1 TO THIS
REGISTRATION STATEMENT ON FORM S-6.
S-3
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 6
<LEGEND> This schedule contains summary financial information extracted from
Amendment Number 1 to Form S-6 and is qualified in its entirety by reference to
such Amendment Number 1 to Form S-6.
</LEGEND>
<SERIES>
<NAME> EVEREN UNIT INVESTMENT TRUSTS
<NUMBER> 39
<MULTIPLIER> 1
<S> <C>
<PERIOD-TYPE> OTHER
<FISCAL-YEAR-END> DEC-31-1995
<PERIOD-START> NOV-07-1995
<PERIOD-END> NOV-07-1995
<INVESTMENTS-AT-COST> 2,206,106
<INVESTMENTS-AT-VALUE> 2,206,106
<RECEIVABLES> 75,000
<ASSETS-OTHER> 0
<OTHER-ITEMS-ASSETS> 0
<TOTAL-ASSETS> 2,281,106
<PAYABLE-FOR-SECURITIES> 0
<SENIOR-LONG-TERM-DEBT> 0
<OTHER-ITEMS-LIABILITIES> 75,000
<TOTAL-LIABILITIES> 75,000
<SENIOR-EQUITY> 0
<PAID-IN-CAPITAL-COMMON> 2,206,106
<SHARES-COMMON-STOCK> 220,611
<SHARES-COMMON-PRIOR> 0
<ACCUMULATED-NII-CURRENT> 0
<OVERDISTRIBUTION-NII> 0
<ACCUMULATED-NET-GAINS> 0
<OVERDISTRIBUTION-GAINS> 0
<ACCUM-APPREC-OR-DEPREC> 0
<NET-ASSETS> 2,206,106
<DIVIDEND-INCOME> 0
<INTEREST-INCOME> 0
<OTHER-INCOME> 0
<EXPENSES-NET> 0
<NET-INVESTMENT-INCOME> 0
<REALIZED-GAINS-CURRENT> 0
<APPREC-INCREASE-CURRENT> 0
<NET-CHANGE-FROM-OPS> 0
<EQUALIZATION> 0
<DISTRIBUTIONS-OF-INCOME> 0
<DISTRIBUTIONS-OF-GAINS> 0
<DISTRIBUTIONS-OTHER> 0
<NUMBER-OF-SHARES-SOLD> 0
<NUMBER-OF-SHARES-REDEEMED> 0
<SHARES-REINVESTED> 0
<NET-CHANGE-IN-ASSETS> 0
<ACCUMULATED-NII-PRIOR> 0
<ACCUMULATED-GAINS-PRIOR> 0
<OVERDISTRIB-NII-PRIOR> 0
<OVERDIST-NET-GAINS-PRIOR> 0
<GROSS-ADVISORY-FEES> 0
<INTEREST-EXPENSE> 0
<GROSS-EXPENSE> 0
<AVERAGE-NET-ASSETS> 0
<PER-SHARE-NAV-BEGIN> 0
<PER-SHARE-NII> 0
<PER-SHARE-GAIN-APPREC> 0
<PER-SHARE-DIVIDEND> 0
<PER-SHARE-DISTRIBUTIONS> 0
<RETURNS-OF-CAPITAL> 0
<PER-SHARE-NAV-END> 0
<EXPENSE-RATIO> 0
<AVG-DEBT-OUTSTANDING> 0
<AVG-DEBT-PER-SHARE> 0
</TABLE>
<PAGE>
EXHIBIT 1.1
EVEREN UNIT INVESTMENT TRUSTS,
SERIES 39
TRUST AGREEMENT
This Trust Agreement dated as of November 7, 1995 between EVEREN
Securities, Inc., as Depositor, and The Bank of New York, as Trustee, sets forth
certain provisions in full and incorporates other provisions by reference to the
document entitled "Standard Terms and Conditions of Trust For EVEREN Unit
Investment Trusts, Equity Trusts, Effective November 7, 1995" (herein called the
"Standard Terms and Conditions of Trust"), and such provisions as are set forth
in full and such provisions as are incorporated by reference constitute a single
instrument.
WITNESSETH THAT:
In consideration of the premises and of the mutual agreements herein
contained, the Depositor and the Trustee agree as follows:
PART I
STANDARD TERMS AND CONDITIONS OF TRUST
Subject to the provisions of Part II hereof, all the provisions contained
in the Standard Terms and Conditions of Trust are herein incorporated by
reference in their entirety and shall be deemed to be a part of this instrument
as fully and to the same extent as though said provisions had been set forth in
this instrument.
PART II
SPECIAL TERMS AND CONDITIONS OF TRUST
The following special terms and conditions are hereby agreed to:
(1) The equity securities listed in the Schedule hereto have been
deposited in trust under this Trust Agreement as indicated in each Trust
named on the attached Schedule.
(2) For the purposes of the definition of the term "Unit" in Article
I, it is hereby specified that the fractional undivided interest in and
ownership of a Trust is the amount set forth in the section captioned
"Essential Information" in the final Prospectus of the Trust (the
"Prospectus") contained in Amendment No. 1 to the Trust's Registration
Statement (Registration No. 33-63111) as filed with the Securities and
Exchange Commission on November 7, 1995. The fractional undivided interest
may (a) increase by the number of any additional Units issued pursuant to
Section
<PAGE>
2.03, (b) increase or decrease in connection with an adjustment to
the number of Units pursuant to Section 2.03, or (c) decrease by the number
of Units redeemed pursuant to Section 5.02.
(3) The terms "Income Account Record Date" and "Capital Account
Record Date" shall mean the dates set forth under "Essential Information--
Record and Computation Dates" in the Prospectus.
(4) The terms "Income Account Distribution Date" and "Capital
Account Distribution Date" shall mean the dates set forth under "Essential
Information--Distribution Dates" in the Prospectus.
(5) The term "Initial Date of Deposit" shall mean the date of this
Trust Agreement as set forth above.
(6) Section 1.01(19) is hereby stricken and replaced by the
following: ""Percentage Ratio" shall mean, for each Trust which will issue
additional Units pursuant to Section 2.03 hereof, the actual number of
shares of each Equity Security as a percent of all shares of Equity
Securities necessary to cause the Trust portfolio to replicate, to the
extent practicable, the Standard & Poor's 500 Stock Price Composite Index
immediately prior to any subsequent deposit of Securities as determined by
computer program output operated independent of the Depositor which tracks
such index."
(7) Section 2.01(b) is hereby amended by adding the following
immediately after the first sentence of the second paragraph of such
Section the following: "Such additional Securities may be deposited or
purchased in round lots; if the amount of the deposit is insufficient to
acquire round lots of each Security to be acquired, the additional
Securities shall be deposited or purchased in the order of the Securities
in the Trust most under-represented in the Trust's portfolio in comparison
to their percentage weighting in the Standard & Poor's 500 Stock Price
Composite Index as determined by computer program output operated
independent of the Depositor which tracks such index."
(8) The number of Units of a Trust referred to in Section 2.03 is as
set forth under "Essential Information--Number of Units" in the Prospectus.
(9) Section 3.07(a) is hereby amended by adding the following
subsections immediately after Section 3.07(a)(ix):
" (x) that the Security has been removed from the Standard & Poor's
500 Stock Price Composite Index; or
-2-
<PAGE>
(xi) that computer program output operated independent of the
Depositor which tracks the Standard & Poor's 500 Stock Price Composite
Index indicates that the Security is over-represented in the Trust's
portfolio in comparison to such Security's percentage weighting in
such index."
(10) Section 3.07 is hereby amended by changing the current
subsection (c) to subsection (d) and adding the following as a new
subsection (c):
" (c) In the event a Security is sold pursuant to Section
3.07(a)(x), the Depositor may direct the reinvestment of the proceeds
of the sale of such Security, to the extent practicable, into any
security which replaces such Security as a component of the Standard &
Poor's 500 Stock Price Composite Index or, if no security so replaces
such Security, into any other Securities which are under-represented
in the Trust's portfolio in comparison to their percentage weighting
in the Standard & Poor's 500 Stock Price Composite Index as determined
by computer program output operated independent of the Depositor which
tracks such index. In the event a Security is sold pursuant to
Section 3.07(a)(xi), the Depositor may direct the reinvestment of the
proceeds of the sale of such Security, to the extent practicable, into
any other Securities which are under-represented in the Trust's
portfolio in comparison to their percentage weighting in the Standard
& Poor's 500 Stock Price Composite Index as determined by computer
program output operated independent of the Depositor which tracks such
index. Without limiting the generality of the foregoing, in
determining whether such reinvestment is practicable, the Depositor
may, but is not obligated to, specifically consider the ability of the
Trust to reinvest such proceeds into round lots of a Security."
(11) The second paragraph of Section 3.10 is hereby stricken and
replaced with the following:
" In the event that an offer by the issuer of any of the Securities
or any other party shall be made to issue new securities, or to
exchange securities, for Trust Securities, the Trustee shall reject
such offer. However, should any issuance, exchange or substitution be
effected notwithstanding such rejection or without an initial offer,
any securities, cash and/or property received shall be deposited
hereunder and shall be promptly sold, if securities or property, by
the Trustee; provided, however, if such securities are components of
the Standard & Poor's 500 Stock Price Composite Index, the Depositor
may advise the Trustee to keep such securities. The cash received in
such exchange and cash proceeds of any such sales shall, in the
following priority, be (1) reinvested, to the extent practicable, into
any Securities which are under-represented in the Trust's portfolio in
comparison to their percentage weighting in the Standard & Poor's 500
Stock Price Composite Index as determined by computer program output
operated independent of the Depositor which tracks such index or (2)
-3-
<PAGE>
distributed to Unitholders on the next Distribution Date in the manner
set forth in Section 3.04(b) regarding distributions from the Capital
Account. Without limiting the generality of the foregoing, in
determining whether such reinvestment is practicable, the Depositor
may, but is not obligated to, specifically consider the ability of the
Trust to reinvest such proceeds into round lots of a Security. Except
as provided in Article VIII, the Trustee shall not be liable or
responsible in any way for depreciation or loss incurred by reason of
any such rejection or sale."
(12) Notwithstanding anything to the contrary in Section 3.10, if at
any time equity securities of EVEREN Capital Corporation or any of its
affiliates are included as Securities in the portfolio of the Trust and the
Trustee shall have been notified of any action to be taken or proposed to
be taken by holders of such Securities, then the Trustee shall take such
action or refrain from taking any action so as to insure that such
Securities are voted as closely as possible in the same manner and the same
general proportion, with respect to all issues, as are the Securities held
by owners other than the Trust.
(13) For the purposes of Section 6.01(g), the liquidation amount is
the amount set forth under "Essential Information--Minimum Value of Trust
under which Trust Agreement may be Terminated" in the Prospectus.
-4-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed.
EVEREN Securities, Inc.,
Depositor
By
--------------------------------------
Senior Vice President
THE BANK OF NEW YORK,
Trustee
By
--------------------------------------
Vice President
<PAGE>
SCHEDULE A
SECURITIES INITIALLY DEPOSITED
EVEREN UNIT INVESTMENT TRUSTS,
SERIES 39
(Note: Incorporated herein and made a part hereof is the "Portfolio" as
set forth in the Prospectus.)
<PAGE>
EXHIBIT 1.1.1
STANDARD TERMS AND CONDITIONS OF TRUST
FOR
EVEREN UNIT INVESTMENT TRUSTS,
EQUITY TRUSTS
EFFECTIVE: NOVEMBER 7, 1995
FOR
SERIES 39 AND CERTAIN SUBSEQUENT SERIES
AMONG
EVEREN SECURITIES, INC.
DEPOSITOR
AND
THE BANK OF NEW YORK
TRUSTEE
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C> <C>
Preambles......................................................................................................... 1
Article I Definitions...................................................................................... 1
Section 1.01. Definitions.................................................................................... 1
Article II Deposit of Securities; Acceptance of Trust; Form and Issuance of Certificates; Separate Trusts... 7
Section 2.01. Deposit of Securities.......................................................................... 7
Section 2.02. Acceptance of Trust............................................................................ 9
Section 2.03. Issuance of Units.............................................................................. 9
Section 2.04. Form of Certificates........................................................................... 10
Section 2.05. Separate Trusts................................................................................ 10
Article III Administration of Fund........................................................................... 10
Section 3.01. Initial Costs.................................................................................. 10
Section 3.02. Income Account................................................................................. 10
Section 3.03. Capital Account................................................................................ 11
Section 3.04. Reserve Account................................................................................ 11
Section 3.05. Deductions and Distributions................................................................... 11
Section 3.06. Distribution Statements........................................................................ 13
Section 3.07. Sale of Securities............................................................................. 15
Section 3.08. Counsel........................................................................................ 17
Section 3.09. Liability of Depositor......................................................................... 17
Section 3.10. Notice to Depositor............................................................................ 17
Section 3.11. Replacement Securities......................................................................... 18
Section 3.12. Supervisory Servicer........................................................................... 19
Section 3.13. Deferred Sales Charge.......................................................................... 20
Section 3.14. Foreign Exchange Transactions; Reclaiming Foreign Taxes........................................ 20
Section 3.15. Foreign Exchange Transactions; Foreign Currency Exchange....................................... 20
Article IV Evaluation of Securities; Evaluator.............................................................. 21
Section 4.01. Evaluation by Evaluator........................................................................ 21
Section 4.02. Information for Unitholders.................................................................... 22
Section 4.03. Compensation of Evaluator...................................................................... 22
Section 4.04. Liability of Evaluator......................................................................... 22
Section 4.05. Resignation and Removal of Evaluator; Successor................................................ 22
Article V Evaluation, Redemption, Purchase, Transfer, Interchange or Replacement of Units.................. 24
</TABLE>
-i-
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
Section 5.01. Trust Evaluation................................................................................ 24
Section 5.02. Redemptions by Trustee; Purchases by Depositor.................................................. 24
Section 5.03. Transfer or Interchange of Units................................................................ 27
Section 5.04. Certificates Mutilated, Destroyed, Stolen or Lost............................................... 28
Article VI Trustee........................................................................................... 29
Section 6.01. General Definition of Trustee's Liabilities, Rights and Duties.................................. 29
Section 6.02. Books, Records and Reports...................................................................... 35
Section 6.03. Indenture and List of Securities on File........................................................ 36
Section 6.04. Compensation.................................................................................... 36
Section 6.05. Removal and Resignation of Trustee; Successor................................................... 37
Section 6.06. Qualifications of Trustee....................................................................... 38
Article VII Rights of Unitholders............................................................................. 38
Section 7.01. Beneficiaries of Trust.......................................................................... 38
Section 7.02. Rights, Terms and Conditions.................................................................... 38
Article VIII Additional Covenants; Miscellaneous Provisions.................................................... 39
Section 8.01. Amendments...................................................................................... 39
Section 8.02. Termination..................................................................................... 40
Section 8.03. Construction.................................................................................... 42
Section 8.04. Registration of Units........................................................................... 42
Section 8.05. Written Notice.................................................................................. 43
Section 8.06. Severability.................................................................................... 43
Section 8.07. Dissolution of Depositor Not to Terminate....................................................... 43
</TABLE>
-ii-
<PAGE>
EXHIBIT 1.1.1
EVEREN UNIT INVESTMENT TRUSTS,
EQUITY TRUSTS
STANDARD TERMS AND CONDITIONS OF TRUST
EFFECTIVE: NOVEMBER 7, 1995
These Standard Terms and Conditions of Trust effective November 7, 1995 are
executed by EVEREN Securities, Inc., as Depositor and The Bank of New York, as
Trustee.
WITNESSETH THAT:
In consideration of the premises and of the mutual agreements herein
contained, the Depositor and the Trustee agree as follows:
INTRODUCTION
These Standard Terms and Conditions of Trust, effective November 7, 1995,
shall be applicable to certain EVEREN Unit Investment Trusts Series established
after the date of effectiveness hereof containing Equity Securities, as provided
in this paragraph. For all Series established after the date of effectiveness
hereof to which these Standard Terms and Conditions of Trust effective November
7, 1995 are to be applicable, the Depositor and the Trustee shall execute a
Trust Agreement incorporating by reference these Standard Terms and Conditions
of Trust effective November 7, 1995 and designating any exclusions from or
additions or exceptions to such incorporation by reference for the purposes of
that Series or variation of the terms hereof for the purposes of that Series.
Now, Therefore, in consideration of the premises and of the mutual
agreements herein contained, the Depositor and the Trustee agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. Whenever used in this Indenture the
following words and phrases, unless the context clearly indicates otherwise,
shall have the following meanings:
(1) "Depositor" shall mean EVEREN Securities, Inc. and its
successors in interest, or any successor depositor appointed as
hereinafter provided.
(2) "Trustee" shall mean The Bank of New York, or any successor
trustee appointed as hereinafter provided.
<PAGE>
(3) "Evaluator" shall mean EVEREN Securities, Inc. and its
successors in interest, or any successor evaluator appointed as hereinafter
provided.
(4) "Supervisory Servicer" shall mean EVEREN Securities, Inc. and
its successors in interest, or any successor portfolio supervisor appointed
as hereinafter provided.
(5) "Business Day" shall mean any day on which the New York Stock
Exchange is open.
(6) "Capital Account Distribution Date" shall have the meaning
assigned to it in the Trust Agreement.
(7) "Capital Account Record Date" shall have the meaning assigned to
it in the Trust Agreement.
(8) "Certificate" shall mean any one of the certificates executed by
the Trustee and the Depositor in substantially the following form with the
blanks appropriately filled in:
-2-
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Face of Certificate
Number EVEREN Unit Investment Trusts Units
CERTIFICATE OF BENEFICIAL OWNERSHIP
This certifies that _______________________________________ is the
registered owner of ____ units(s) of fractional undivided interest in EVEREN
Unit Investment Trusts of the above-named Series (herein referred to as the
"Trust") created under the laws of the State of New York pursuant to the
Agreement and the related Trust Agreement, a copy of which is available at the
office of the Trustee. This Certificate is issued under and is subject to the
terms, provisions and conditions of the aforesaid Agreement and the related
Trust Agreement to which the holder of this Certificate by virtue of the
acceptance hereof assents and is bound. This Certificate is transferable and
interchangeable by the registered owner in person or by his duly authorized
attorney at the office of the Trustee upon surrender of this Certificate
properly endorsed or accompanied by a written instrument of transfer and any
other documents that the Trustee may require for transfer, in form satisfactory
to the Trustee, and payment of the fees and expenses provided in the Agreement.
Witness the facsimile signature of the Depositor and the manual signature
of an authorized signatory of the Trustee.
Dated
EVEREN Securities, Inc., The Bank of New York,
Depositor Trustee,
By By
------------------------ ------------------------
Authorized Signature Authorized Signature
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Reverse of Certificate
FORM OF ASSIGNMENT
For Value Received, the undersigned hereby sells, assigns and transfers
_________ Units represented by this Certificate unto
-------------------------------------
-------------------------------------
Please Insert Social Security or
Other Identifying Number of
Assignee
--------------------------------
--------------------------------
and does hereby irrevocably constitute and appoint attorney, to transfer said
Units on the books of the Trustee, with full power of substitution in the
premises.
Dated:
---------------------------- -----------------------------------
Notice: The signature to this assignment must correspond
with the name as written upon the face of the Certificate in
every particular, without alteration or enlargement or any
change whatever, and must be guaranteed by a participant in
the Securities Transfer Agents Medallion Program ("STAMP")
or such other signature guarantee program in addition to, or
in substitution for, STAMP, as may be accepted by the
Trustee.
Signature Guaranteed
By
--------------------------------
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(9) "Contract Securities" shall mean Securities which are to be
acquired by a Trust pursuant to purchase contracts which have been assigned
to the Trustee.
(10) "Deferred Sales Charge" shall have the meaning assigned to it
in the Trust Agreement.
(11) "Equity Securities" shall mean any equity securities of
corporations or other entities deposited in a Trust as specified in the
Trust Agreement thereof.
(12) "Fund" shall mean the collective Trusts created by the Trust
Agreement, which shall consist of Securities held pursuant and subject to
the Indenture, together with all undistributed income or other amounts
received or accrued thereon, any undistributed cash held in the Income and
Capital Accounts or otherwise realized from the sale, redemption,
liquidation or maturity thereof. Such amounts as may be on deposit in the
Reserve Account as hereinafter established shall be excluded from the Fund.
(13) "In Kind Distribution" shall have the meaning set forth in
Section 5.02 hereof.
(14) "Income Account Distribution Date" shall have the meaning
assigned to it in the Trust Agreement.
(15) "Income Account Record Date" shall have the meaning assigned to
it in the Trust Agreement.
(16) "Indenture" shall mean these Standard Terms and Conditions of
Trust as originally executed or, if amended as hereinafter provided, as so
amended, together with the Trust Agreement creating a particular series of
the Fund.
(17) "Initial Date of Deposit" shall have the meaning assigned to it
in the Trust Agreement.
(18) "Letter of Credit" shall mean the letter of credit or letters
of credit provided to the Trustee by a financial institution for the
purchase of any Contract Securities deposited in the Fund.
(19) "Mandatory Termination Date" shall be the date so specified in
the Prospectus.
(20) "Percentage Ratio" shall mean, for each Trust which will issue
additional Units pursuant to Section 2.03 hereof, the actual number of
shares of each Equity Security as a percent of all shares of Equity
Securities existing on the Initial Date of Deposit. The Percentage Ratio
shall be adjusted to the extent necessary, and may be
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rounded, to reflect the occurrence of a stock dividend, a stock split or a
similar event which affects the capital structure of the issuer of an
Equity Security.
(21) "Prospectus" shall mean (a) the prospectus relating to a Trust
filed with the Securities and Exchange Commission pursuant to Rule 497(b)
under the Securities Act of 1933, as amended, and dated the date of the
Trust Agreement or (b) if any post effective amendment to such prospectus
shall have been subsequently made effective under the Securities Act of
1933, as amended, such post effective amendment thereto.
(22) "Reinvestment Securities" shall have the meaning assigned to it
in Section 2.01 hereof.
(23) "Replacement Security" shall have the meaning assigned to it in
Section 3.11 hereof.
(24) "Securities" shall mean (a) Equity Securities deposited in a
Trust, which Securities are listed in the various Schedules to the Trust
Agreement or are deposited in the Trust pursuant to Section 2.01(b) hereof,
(b) Replacement Securities acquired pursuant to Section 3.11 hereof, as may
from time to time to be construed to be held as part of the Trust and (c)
distributions of the same securities.
(25) "Supplemental Indenture" shall mean an amendment or supplement
to the Indenture pursuant to Section 2.01(b) for the purpose of depositing
additional Securities in a Trust and issuing additional Units.
(26) "Trust" or "Trusts" shall mean the separate trust or trusts
created by this Indenture, the Securities constituting the portfolios of
which are listed in the various separate Schedules attached to the related
Trust Agreement.
(27) "Trust Agreement" shall mean the Trust Agreement for the
particular series of the Fund into which these Standard Terms and
Conditions are incorporated.
(28) "Unit" in respect of any Trust shall mean the fractional
undivided interest in and ownership of the Trust which shall be initially
equal to the fraction specified in the Trust Agreement, the numerator of
which is one and the denominator of which fraction shall be (1) increased
by the number of any additional Units issued pursuant to Section 2.03
hereof, (2) increased or decreased in connection with an adjustment to the
number of Units pursuant to Section 2.03, and (3) decreased by the number
of any Units redeemed as provided in Section 5.02 hereof. Whenever
reference is made herein to the "interest" of a Unitholder in the Trust or
in the Income and Capital Accounts, it shall mean such fractional undivided
interest represented by the number of Units held of record by such
Unitholder.
(29) "Unitholder" shall mean the registered holder of any Unit,
whether or not in certificated form, as recorded on the registration books
of the Trustee.
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(30) Words importing singular number shall include the plural number
in each case and vice versa, and words importing persons shall include
corporations and associations, as well as natural persons.
(31) The words "herein," "hereby," "herewith," "hereof,"
"hereinafter," "hereunder," "hereinabove," "hereafter," "heretofore" and
similar words or phrases of reference and association shall refer to this
Indenture in its entirety.
ARTICLE II
DEPOSIT OF SECURITIES; ACCEPTANCE OF TRUST;
FORM AND ISSUANCE OF CERTIFICATES;
SEPARATE TRUSTS
Section 2.01. Deposit of Securities. (a) The Depositor, on the date
of the Trust Agreement, has deposited with the Trustee in trust the Securities
listed in the Schedules to the Trust Agreement in bearer form or duly endorsed
in blank or accompanied by all necessary instruments of assignment and transfer
in proper form or Contract Securities relating to such Securities to be held,
managed and applied by the Trustee as herein provided. The Depositor shall
deliver the Securities listed on said Schedules which were not actually
delivered concurrently with the execution and delivery of the Trust Agreement
and which were represented by Contract Securities to the Trustee within 10
calendar days after said execution and delivery (the "Delivery Period"). If a
contract to buy such Securities between the Depositor and seller is terminated
by the seller thereof for any reason beyond the control of the Depositor or if
for any other reason the Securities are not delivered to the Trust by the end of
the Delivery Period, the Trustee shall immediately draw on the Letter of Credit,
if any, in its entirety, apply the moneys in accordance with Section 2.01(d),
and the Depositor shall forthwith take the remedial action specified in
Section 3.11. If the Depositor does not take the action specified in
Section 3.11 within 10 calendar days of the end of the Delivery Period, the
Trustee shall forthwith take the action specified in Section 3.11.
(b) From time to time following the Initial Date of Deposit, the
Depositor is hereby authorized, in its discretion, to assign, convey to and
deposit with the Trustee additional Securities, duly endorsed in blank or
accompanied by all necessary instruments of assignment and transfer in proper
form (or Contract Securities relating to such Securities), to be held, managed
and applied by the Trustee as herein provided. Such deposit of additional
Securities shall be made, in each case, pursuant to a Supplemental Indenture
accompanied by a legal opinion issued by legal counsel satisfactory to the
Depositor.
The Depositor, in each case, shall ensure that each deposit of additional
Securities pursuant to this Section shall be, as nearly as is practicable, in
the identical ratio as the Percentage Ratio for a Trust. The Depositor shall
deliver the additional Securities which were not delivered concurrently with the
deposit of additional Securities and which were represented by Contract
Securities within 10 calendar days after such deposit of additional Securities
(the "Additional Securities Delivery Period"). If a contract to buy such
Securities
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between the Depositor and seller is terminated by the seller thereof
for any reason beyond the control of the Depositor or if for any other reason
the Securities are not delivered to the Trust by the end of the Additional
Securities Delivery Period for such deposit, the Trustee shall immediately draw
on the Letter of Credit, if any, in its entirety, apply the moneys in accordance
with Section 2.01(d), and the Depositor shall forthwith take the remedial action
specified in Section 3.11. If the Depositor does not take the action specified
in Section 3.11 within 10 calendar days of the end of the Additional Securities
Delivery Period, the Trustee shall forthwith take the action specified in
Section 3.11.
(c) In connection with the deposits described in Section 2.01 (a) and
(b), the Depositor has, in the case of Section 2.01(a) deposits, and, prior to
the Trustee accepting a Section 2.01(b) deposit, will, deposit cash and/or
Letter(s) of Credit in an amount sufficient to purchase the Contract Securities
relating to Securities which are not actually delivered to the Trustee at the
time of such deposit. The terms of any Letter of Credit must unconditionally
allow the Trustee to draw on the full amount of the available Letter of Credit.
The Trustee may deposit such cash or cash drawn on the Letter of Credit in a
non-interest bearing account for the Fund. If any Contract Securities requires
settlement in a foreign currency, in connection with the deposit of such
Contract Security the Depositor will deposit with the Trustee either an amount
of such currency sufficient to settle the contract or a foreign exchange
contract in such amount which settles concurrently with the settlement of the
Contract Security and cash or a Letter of Credit in U.S. dollars sufficient to
perform such foreign exchange contract.
(d) In the event that the purchase of Contract Securities pursuant to any
contract shall not be consummated in accordance with said contract or if the
Securities represented by Contract Securities are not delivered to a Trust in
accordance with Section 2.01(a) or 2.01(b) and the moneys, or, if applicable,
the moneys drawn on the Letter of Credit, deposited by the Depositor are not
utilized for Section 3.11 purchases of Replacement Securities, such funds, to
the extent of the purchase price of Failed Contract Securities for which no
Replacement Security were acquired pursuant to Section 3.11, plus all amounts
described in the next succeeding sentence, shall be credited to the Capital
Account and distributed pursuant to Section 3.05 to Unitholders of record as of
the Income Account Record Date next following the failure of consummation of
such purchase. The Depositor shall cause to be refunded to each Unitholder his
pro rata portion of the sales charge levied on the sale of Units to such
Unitholder attributable to such Failed Contract Security. Any amounts remaining
from moneys drawn on the Letter of Credit which are not used to purchase
Replacement Securities or are not used to provide refunds to Unitholders shall
be paid to the Depositor.
(e) If Securities in the Trust are sold pursuant to Sections 3.07 or 8.02
hereof or if there are excess proceeds remaining after meeting redemption
requests pursuant to Section 5.02, the net proceeds of any such sale may be
reinvested, if in the opinion of the Depositor it is in the best interests of
the Unitholders to do so, in short term U. S. Treasury obligations maturing on
or prior to the next succeeding Capital Distribution Date or, if earlier,
December 31 of the year of purchase (the "Reinvestment Securities"). Proceeds
from the maturity of the Reinvestment Securities shall be distributed to
Unitholders of record on the
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next applicable Capital Distribution Date. Dividends, if any, received on
Securities will not be reinvested pending distribution. Brokerage commissions
with respect to the purchase of Reinvestment Securities shall be an expense
borne by the Trust.
(f) The Trustee is hereby irrevocably authorized to effect registration
or transfer of the Securities in fully registered form to the name of the
Trustee or to the name of its nominee or to hold the Securities in a clearing
agency registered with the Securities and Exchange Commission or in a book entry
system operated by the Federal Reserve Board.
Section 2.02. Acceptance of Trust. The Trustee hereby declares it
holds and will hold each Trust as Trustee in trust upon the trusts herein
created for the use and benefit of the Unitholders, subject to the terms and
conditions of this Indenture.
Section 2.03. Issuance of Units. (a) The Trustee hereby acknowledges
receipt of the deposit of the Securities listed in the Schedules to the Trust
Agreement and referred to in Section 2.01 hereof and, simultaneously with the
receipt of said deposit, has recorded on its books the ownership, by the
Depositor or such other person or persons as may be indicated by the Depositor,
of the aggregate number of Units specified in the Trust Agreement and has
delivered, or on the order of the Depositor will deliver, in exchange for such
Securities, documentation evidencing the ownership of the number of Units
specified and, if such Units are represented by a Certificate, such Certificate
substantially in the form above recited, representing the ownership of those
Units. The number of Units may be increased through a split of the Units or
decreased through a reverse split thereof, as directed by the Depositor, on any
day on which the Depositor is the only Unitholder, which revised number of Units
shall be recorded by the Trustee on its books. The Trustee hereby agrees that on
the date of any Supplemental Indenture it shall acknowledge that the additional
Securities identified therein have been deposited with it by recording on its
books the ownership, by the Depositor or such other person or persons as may be
indicated by the Depositor, of the aggregate number of Units to be issued in
respect of such additional Securities so deposited, and shall, if so requested,
execute a Certificate or Certificates substantially in the form above recited
representing the ownership of an aggregate number of those Units.
(b) Under the terms and conditions of the Indenture and the Trust
Agreement and at such times as are permitted by the Trustee, Units may also be
held in uncertificated form. Units will be held in uncertificated form unless a
Unitholder requests a Certificate representing his or her Units. The Trustee
shall, at the request of the holder of any Units held in uncertificated form,
issue a new Certificate to evidence such Units and at such time make an
appropriate notation in the registration books of the Trustee. Certificates, if
requested, will be issued in denominations of one Unit, or any whole multiple
thereof, subject to any minimum investment requirements. Thereafter, Units may
again be held in uncertificated form by surrendering such Certificate to the
Trustee for cancellation. At such time, an appropriate notation will be made in
the registration book of the Trustee to indicate that the Units formerly
evidenced by such cancelled Certificate are Units held in uncertificated form.
The rights set forth in this Indenture of any holder of Units held in
uncertificated form or of Units represented by a Certificate shall be the same
of those of any other Unitholder.
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Section 2.04. Form of Certificates. Each Certificate referred to in
Section 2.03 is, and each Certificate hereafter issued shall be, in
substantially the form hereinabove recited, numbered serially for
identification, in fully registered form, transferable only on the books of the
Trustee as herein provided, executed manually by an authorized officer of the
Trustee and in facsimile by the Chairman, President or one of the Vice
Presidents of the Depositor and dated the date of execution and delivery by the
Trustee.
Section 2.05. Separate Trusts. The Trusts created by this Indenture
are separate and distinct trusts for all purposes and the assets of one Trust
may not be commingled with the assets of any other nor shall the expenses of any
Trust be charged against the other. Units representing the ownership of an
undivided fractional interest in one Trust shall not be exchangeable for Units
representing the ownership of an undivided fractional interest in any other.
ARTICLE III
ADMINISTRATION OF FUND
Section 3.01. Initial Costs. To the extent not borne by the
Depositor the expenses incurred in establishing a Trust shall be borne by the
Trust, including the cost of the initial preparation and typesetting of the
registration statement, prospectuses (including preliminary prospectuses), the
Indenture, and other documents relating to a Trust, printing of Certificates,
Securities and Exchange Commission and state blue sky registration fees, the
costs of the initial valuation of the portfolio and audit of a Trust, the
initial fees and expenses of the Trustee, and legal and other out-of-pocket
expenses related thereto, but not including the expenses incurred in the
printing of prospectuses (including preliminary prospectuses), expenses incurred
in the preparation and printing of brochures and other advertising materials and
any other selling expenses. To the extent the funds in the Interest and Capital
Accounts of the Trust shall be insufficient to pay the expenses borne by the
Trust specified in this Section 3.01, the Trustee shall advance out of its own
funds and cause to be deposited and credited to the Interest or Capital Accounts
such amount as may be required to permit payment of such expenses. The Trustee
shall be reimbursed for such advance in the manner provided in the related
Prospectus; provided, however, that nothing herein shall be deemed to prevent,
and the Trustee shall be entitled to, full reimbursement for any advances made
pursuant to this Section no later than the termination of the Trust.
Section 3.02. Income Account. The Trustee shall collect the
dividends or other like cash distributions on the Securities in each Trust as
such becomes payable (including all moneys representing penalties for the
failure to make timely payments on the Securities, or as liquidated damages for
default or breach of any condition or term of the Securities or of the
underlying instrument relating to any Securities and other income attributable
to a Failed Contract Security for which no Replacement Security has been
obtained pursuant to Section 3.11 hereof) and credit such income to a separate
account for each Trust to be known as the "Income Account."
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Any distributions received by the Trustee in a form other than cash (other
than a non-taxable distribution of the shares of the distributing corporation)
shall be sold in the manner directed by the Depositor and the proceeds of sale
credited to the Income Account of the Trust. The Trustee shall not be liable or
responsible in any way for depreciation or loss incurred by reason of any such
sale.
If, as the result of the deposit of Securities subsequent to the Initial
Date of Deposit, distributions with respect to any issue of Securities are
received on some, but not all, Securities of such issue, the Depositor shall pay
to the Trustee for distribution to Unitholders such amount as will equal the
difference between the total of the distribution on such issue received by the
Trust and the amount which would have been received had distributions been
received on all Securities of such issue. The payment of such amount by the
Depositor shall be made on the fifth business day following such supplemental
deposit, and shall be secured by any cash and/or Letter of Credit deposited
pursuant to Section 2.01(c) hereof.
Section 3.03. Capital Account. All moneys received by the Trustee
in respect of the Securities, other than amounts credited to the Income Account,
shall be credited to a separate account to be known as the "Capital Account"
(except for moneys deposited by the Depositor or moneys pursuant to draws on the
Letter of Credit for purchase of Contract Securities pursuant to Section 2.01,
which shall be separately held in trust by the Trustee for such purpose and
shall not be credited to the Capital Account except as provided in
Section 2.01(d)).
Section 3.04. Reserve Account. From time to time, the Trustee shall
withdraw from the cash on deposit in the Income Account or the Capital Account
of the appropriate Trust such amounts as it, in its sole discretion, shall deem
requisite to establish a reserve for any applicable taxes or other governmental
charges that may be payable out of such Trust. Such amounts so withdrawn shall
be credited to a separate account for each Trust which shall be known as the
"Reserve Account." The Trustee shall not be required to distribute to the
Unitholders any of the amounts in the Reserve Account; provided, however, that
if it shall, in its sole discretion, determine that such amounts are no longer
necessary for the payment of any applicable taxes or other governmental charges,
then it shall promptly deposit such amounts in the account from which withdrawn,
or if such Trust shall have terminated or shall be in the process of
termination, the Trustee shall distribute same in accordance with
Section 8.02(d) to each Unitholder such holder's interest in the Reserve
Account.
Section 3.05. Deductions and Distributions . (a) On or immediately
after the fifteenth the day of each month, the Trustee shall satisfy itself as
to the adequacy of the Reserve Account, making any further credits thereto as
may appear appropriate in accordance with Section 3.04 and shall then with
respect to each Trust:
(i) deduct from the Income Account or, to the extent funds are not
available in such Account, from the Capital Account and pay to itself
individually the amounts that it is at the time entitled to receive
pursuant to Section 6.04;
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(ii) deduct from the Income Account or, to the extent funds are not
available in such Account, from the Capital Account and pay to, or reserve
for, the Evaluator the amount that it is at the time entitled to receive
pursuant to Section 4.03;
(iii) deduct from the Income Account or, to the extent funds are
not available in such Account, from the Capital Account and pay to counsel,
as hereinafter provided for, an amount equal to unpaid fees and expenses,
if any, of such counsel pursuant to Section 3.08, as certified to by the
Depositor;
(iv) deduct from the Income Account or to the extent funds are not
available in such Account, from the Capital Account and pay to, or reserve
for, the Supervisory Servicer the amount that it is entitled to receive
pursuant to Section 3.12;
(v) deduct from the Income Account (as provided in Section 3.13) and
pay to the Depositor that amount it is entitled to receive pursuant to
Section 3.13; and
(vi) deduct from the Income Account or, to the extent funds are not
available in such Account, from the Capital Account, and reimburse itself
for any other fees, charges and expenses arising from time to time out of
the Trust operations that the Trustee has paid.
(b) (i) On each Income Account Distribution Date, the Trustee shall
distribute an amount per Unit equal to such Unitholder's Income Distribution (as
defined below) computed as of the close of business on the Income Account Record
Date immediately preceding such Income Account Distribution Date plus, if such
Income Account Distribution Date is also a Capital Account Distribution Date for
the distribution of capital, such Unitholder's pro rata share of the balance of
the Capital Account (except for moneys on deposit therein required to purchase
Contract Securities) to each Unitholder of record at the close of business on
the Record Date; provided, however, that if the balance of the Capital Account
of a Trust on the first day of any month equals at least $1.00 per 100 Units,
such distribution from the Capital Account shall be made on the fifteenth day of
such month computed as of the close of business on the first day of such month.
The Trust shall provide the following distribution elections: (1) distributions
to be made by mail addressed to the post office address of the Unitholder as it
appears on the registration books of the Trustee or (2) distributions to be made
to the designated agent for any reinvestment program when, as and if available
to the Unitholder through the Depositor. If no election is offered by the
Depositor or if no election is specified by the Unitholder at the time of
purchase of any Unit, distribution of principal and income and capital gains, if
any, shall be distributed as provided in (1) above. Any election other than a
deemed election as described in the preceding sentence shall be by written
notice to, and in form satisfactory to, the Trustee. Once a distribution
election has been chosen by the Unitholder, such election shall remain in effect
until changed by the Unitholder. Such change of election may be made by
notification thereof to the Trustee at any time in form satisfactory to the
Trustee. A transferee of any Unit may make his distribution election in the
manner as set forth above. The Trustee shall be entitled to receive in writing
a notification from the Unitholder as to his or her change of address.
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(ii) For the purposes of this Section 3.05, the Unitholder's "Income
Distribution" shall be equal to such Unitholder's pro rata share of the
cash balance (other than any amortized discount) in the Income Account
computed as of the close of business on the Income Account Record Date
immediately preceding such Income Distribution after deduction of (1) the
fees and expenses then deductible pursuant to Section 3.05(a) and (2) the
Trustee's estimate of other expenses properly chargeable to the Income
Account pursuant to the Indenture which have accrued, as of such Income
Account Record Date or are otherwise properly attributable to the period to
which such Income Distribution relates.
(iii) The amount to be so distributed to each Unitholder shall be
that pro rata share of the balance of the Income and Capital Accounts,
computed as set forth herein, as shall be represented by the Units
registered in the name of such Unitholder. In the computation of each such
pro rata share, fractions of less than one cent shall be omitted. After
any such distribution provided for above, any cash balance remaining in the
Income Account or the Capital Account shall be held in the same manner as
other amounts subsequently deposited in each of such accounts,
respectively.
(iv) Income attributable to Contract Securities which the Depositor
shall have declared by written notice to the Trustee to be Failed Contract
Securities for which Replacement Securities are not to be substituted
pursuant to Section 3.11 hereof shall be distributed to Unitholders of
record as of the close of business on the Income Account Record Date next
following the failure of consummation of such purchase and shall be
distributed not more than 120 days after the receipt of such notice by the
Trustee or at such earlier time in such manner as the Trustee in its sole
discretion deems to be in the best interest of Unitholders.
(v) For the purpose of distributions as herein provided, the
Unitholders of record on the registration books of the Trustee at the close
of business on each Income Account Record Date shall be conclusively
entitled to such distribution, and no liability shall attach to the Trustee
by reason of payment to any Unitholder of record. Nothing herein shall be
construed to prevent the payment of amounts from the Income Account and the
Capital Account to individual Unitholders by means of one check, draft or
other instrument or device provided that the appropriate statement of such
distribution shall be furnished therewith as provided in Section 3.06
hereof.
(c) Notwithstanding the foregoing, if a Trust has elected to be taxed as
a "regulated investment company" as defined in the United States Internal
Revenue Code of 1986, as amended, the Trustee may make such distributions to
Unitholders as may be necessary at any time to avoid imposition of any excise
tax on such Trust.
Section 3.06. Distribution Statements. With each distribution from
the Income or Capital Accounts of a Trust, the Trustee shall set forth, either
in the instrument by means of which payment of such distribution is made or in
an accompanying statement, the amount being distributed from each such account,
expressed as a dollar amount per Unit of such
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Trust. The Trustee shall also furnish each Unitholder with a change of address
form as part of each statement.
Within a reasonable period of time after the last business day of each
calendar year, the Trustee shall furnish to each person who at any time during
such calendar year was a Unitholder of a Trust a statement setting forth, with
respect to such calendar year and with respect to such Trust:
(A) as to the Income Account:
(1) the amount of income received on the Securities (including
amounts received as a portion of the proceeds of any disposition of
Securities);
(2) the amounts paid from the Income Account for purchases of
Securities pursuant to Section 3.11 and for redemptions pursuant to
Section 5.02;
(3) the deductions from the Income Account for payment into the
Reserve Account;
(4) the deductions for applicable taxes and fees and expenses of
the Trustee, the Evaluator, the Supervisory Servicer, counsel,
auditors and any expenses paid by the Trust pursuant to Section 3.05;
and
(5) the amounts reserved for purchases of Contract Securities or
for purchases made pursuant to Section 3.11; and
(6) the balance remaining after such distributions and
deductions, expressed both as a total dollar amount and as a dollar
amount per Unit outstanding on the last Business Day of such calendar
year;
(B) as to the Capital Account;
(1) the dates of sale, liquidation or disposition of any of the
Securities and the net proceeds received therefrom, excluding any
portion thereof credited to the Income Account;
(2) the deductions from the Capital Account, if any, for payment
of applicable taxes and fees and expenses of the Trustee, the
Evaluator, the Supervisory Servicer, counsel, auditors and any
expenses paid by the Trust under Section 3.05;
(3) the amount paid for purchases of Securities pursuant to
Section 3.11 and for redemptions pursuant to Section 5.02;
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(4) the deductions from the Capital Account for payments into the
Reserve Account;
(5) the amounts reserved for purchases of Contract Securities or
for purchases made pursuant to Section 3.11;
(6) the balance remaining after such distributions and
deductions, expressed both as a total dollar amount and as a dollar
amount per Unit outstanding on the last Business Day of such calendar
year;and
(C) the following information:
(1) a list of Securities as of the last Business Day of such
calendar year and a list which identifies all Securities sold or other
Securities acquired during such calendar year, if any;
(2) the number of Units outstanding on the last Business Day of
such calendar year;
(3) the Unit Value as defined in Section 5.01 based on the last
Trust Fund Evaluation pursuant to Section 5.01 made during such
calendar year; and
(4) the amounts actually distributed or which are otherwise
attributable to Unitholders during such calendar year from the Income
and Capital Accounts, separately stated, expressed as total dollar
amounts for such distributions and the status of such distributions
for federal income tax purposes.
Section 3.07. Sale of Securities. (a) If necessary, in order to maintain
the sound investment character of a Trust, the Depositor may direct the Trustee
to sell or liquidate Securities (other than Reinvestment Securities) in such
Trust at such price and time and in such manner as shall be determined by the
Depositor, provided that the Depositor has determined that any one or more of
the following conditions exist:
(i) that there has been a default on any of the Securities in the
payment of dividends, after declared and when due and payable;
(ii) that any action or proceeding has been instituted at law or
equity seeking to restrain or enjoin the payment of dividends on any such
Securities, or that there exists any legal question or impediment affecting
such Securities or the payment of dividends from the same;
(iii) that there has occurred any breach of covenant or warranty in
any document relating to the issuer of the Securities which would adversely
affect either immediately or contingently the payment of dividends from the
Securities, or the
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general credit standing of the issuer or otherwise impair the sound
investment character of such Securities;
(iv) that there has been a default in the payment of dividends,
principal of or income or premium, if any, on any other outstanding
securities or obligations of the issuer of such Securities;
(v) that the price of any such Securities has declined to such an
extent or other such credit factors exist so that in the opinion of the
Depositor the retention of such Securities would be detrimental to the
Trust and to the interest of the Unitholders;
(vi) that all of the Securities in the Trust will be sold pursuant
to termination of the Trust pursuant to Section 8.02 hereof;
(vii) that such sale is required due to Units tendered for
redemption;
(viii) if the Trust has not elected to be taxed as a "regulated
investment company" as defined in the United States Internal Revenue Code
of 1986, as amended, that the sale of such Securities is required in order
to prevent the Trust from being deemed an association taxable as a
corporation for federal income tax purposes; or
(ix) if the Trust has elected to be taxed as a "regulated investment
company" as defined in the United States Internal Revenue Code of 1986, as
amended, that such sale is necessary or advisable (i) to maintain the
qualification of the Trust as a regulated investment company or (ii) to
provide funds to make any distribution for a taxable year in order to avoid
imposition of any excise taxes on the Trust.
(b) In the event a Security is sold pursuant to Section 3.07(a)(v) as a
direct result of serious adverse credit factors affecting the issuer of such
Security and the Trust has elected to be taxed as a "regulated investment
company" as defined in the United States Internal Revenue Code of 1986, as
amended, then the Depositor may, but is not obligated to, direct the
reinvestment of the proceeds of the sale of such Security in any other
securities which meet the criteria necessary for inclusion in such Trust on the
Initial Date of Deposit.
(c) Upon receipt of such direction from the Depositor, upon which the
Trustee shall rely, the Trustee shall proceed to sell or liquidate the specified
Securities in accordance with such direction, and upon the receipt of the
proceeds of any such sale or liquidation, after deducting therefrom any fees and
expenses of the Trustee connected with such sale or liquidation and any
brokerage charges, taxes or other governmental charges shall deposit such net
proceeds in the applicable Capital Account. The Trustee shall not be liable or
responsible in any way for depreciation or loss incurred by reason of any sale
made pursuant to any such direction or by reason of the failure of the Depositor
to give any such direction, and in the absence of such direction the Trustee
shall have no duty to sell or liquidate any Securities under this Section 3.07.
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Section 3.08. Counsel. The Depositor may employ from time to time,
as it deems necessary or desirable, a firm of attorneys for any legal services
which may be required in connection with the Securities, including any legal
matters relating to the possible disposition or acquisition of any Securities
pursuant to any provisions hereof or for any other reasons deemed advisable by
the Depositor or the Trustee, in their discretion. The fees and expenses of
such counsel may, at the discretion of the Depositor, be paid by the Trustee
from the Income Account and Capital Account as provided for in
Section 3.05(a)(iii) hereof.
Section 3.09. Liability of Depositor. The Depositor shall be under
no liability to the Unitholders for any action taken or for refraining from the
taking of any action in good faith pursuant to this Indenture or for errors in
judgment, but shall be liable only for its own willful misfeasance, bad faith or
gross negligence in the performance of its duties or by reason of its reckless
disregard of its obligations and duties hereunder. The Depositor may rely in
good faith on any paper, order, notice, list, affidavit, receipt, opinion,
endorsement, assignment, draft or any other document of any kind prima facie
properly executed and submitted to it by the Trustee, bond counsel or any other
persons pursuant to this Indenture and in furtherance of its duties.
Section 3.10. Notice to Depositor. In the event that the Trustee
shall have been notified at any time of any action to be taken or proposed to be
taken with respect to the Securities (including but not limited to the making of
any demand, direction, request, giving of any notice, consent or waiver or the
voting with respect to any amendment or supplement to any indenture, resolution,
agreement or other instrument under or pursuant to which the Securities have
been issued) the Trustee shall promptly notify the Depositor and shall thereupon
take such action or refrain from taking any action as the Depositor shall
direct; provided, however, that if the Depositor shall not within five Business
Days of the giving of such notice to the Depositor direct the Trustee to take or
refrain from taking any action, the Trustee shall take such action or refrain
from taking any action so as to insure that the Securities are voted as closely
as possible in the same manner and the same general proportion, with respect to
all issues, as are the Securities held by owners other than the Trust.
In the event that an offer by the issuer of any of the Securities or any
other party shall be made to issue new securities, or to exchange securities,
for Trust Securities, the Trustee shall reject such offer. However, should any
issuance, exchange or substitution be effected notwithstanding such rejection or
without an initial offer, any securities, cash and/or property received shall be
deposited hereunder and shall be promptly sold, if securities or property, by
the Trustee, unless the Depositor advises the Trustee to keep such securities or
property. The cash received in such exchange and cash proceeds of any such
sales shall be distributed to Unitholders on the next Income Distribution Date
in the manner set forth in Section 3.05 regarding distributions from the Capital
Account. Except as provided in Article VI, the Trustee shall not be liable or
responsible in any way for depreciation or loss incurred by reason of any such
sale.
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Neither the Depositor nor the Trustee shall be liable to any person for any
action or failure to take action pursuant to the terms of this Section 3.10
other than failure to notify the Depositor.
Section 3.11. Replacement Securities. In the event that any contract to
purchase any Contract Security is not consummated in accordance with its terms
(a "Failed Contract Security"), the Depositor may instruct the Trustee in
writing either to effect a buy-in in accordance with the rules of the market
place where the Failed Contract Securities were purchased or its clearing house
or to purchase a replacement security (the "Replacement Security") which has
been selected by the Depositor or if the Depositor does not provide such an
instruction, the Trustee is hereby directed either to effect a buy-in in
accordance with the rules of the market place where the Failed Contract
Securities were purchased or its clearing house or to purchase a Replacement
Security out of funds held by the Trustee pursuant to Section 3.03. Purchases of
Replacement Securities will be made subject to the conditions set forth below:
(a) The Replacement Securities shall be Equity Securities as
originally selected for deposit in that series of the Trust;
(b) The purchase of the Replacement Securities shall not adversely
affect the federal income tax status of the Trust;
(c) The purchase price of the Replacement Securities shall not
exceed the total amount of cash deposited, or the amount available under
the Letter of Credit deposited, by the Depositor at the time of the deposit
of the Failed Contract Security;
(d) The written instructions of the Depositor shall (i) identify the
Replacement Securities to be purchased, (ii) state that the contract to
purchase, if any, to be entered into by the Trustee is satisfactory in form
and substance and (iii) state that the foregoing conditions of clauses (a)
through (d) have been satisfied with respect to the Replacement Securities;
and
(e) The Replacement Securities shall be purchased within 30 days
after the deposit of the Failed Contract Security.
Upon satisfaction of the foregoing conditions with respect to any
Replacement Securities which shall be certified by the Depositor in the written
instruction to the Trustee identifying the Replacement Securities, the Trustee
shall enter into the contract to purchase such Replacement Securities and take
all steps reasonably necessary to complete the purchase thereof. Whenever a
Replacement Security is acquired by the Trustee pursuant to the provisions of
this Section, the Trustee will, as agent for the Depositor, not later than five
days after such acquisition, mail to each Unitholder a notice of such
acquisition, including an identification of the Securities eliminated and the
Securities acquired. Amounts in respect of the purchase price thereof on
account of principal shall be paid out of and charged against the cash
deposited, or the amounts available under the Letter of Credit deposited, by the
Depositor at the time of the deposit of the Failed Contract Security. In the
event the Trustee
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shall not consummate any purchase of Replacement Securities pursuant to this
Section 3.11, funds held for such purchase shall be distributed in accordance
with Section 2.01(d). Any excess of the purchase price of a Failed Contract
Security over the purchase price of its corresponding Replacement Security shall
be refunded to the Depositor. The Trustee shall not be liable or responsible in
any way for depreciation or loss incurred by reason of any purchase made
pursuant to, or any failure to make any purchase authorized by, this Section
3.11. The Depositor shall not be liable for any failure to instruct the Trustee
to purchase any Replacement Securities, nor shall the Trustee or Depositor be
liable for errors of judgment in respect to this Section 3.11; provided,
however, that this provision shall not protect the Depositor or the Trustee
against any liability to which it would otherwise be subject by reason of
willful misfeasance, bad faith or gross negligence (negligence in the case of
the Trustee) in the performance of its duties or by reason of its reckless
disregard of its obligations and duties hereunder.
Section 3.12. Supervisory Servicer. As compensation for providing
supervisory portfolio services under this Indenture, the Supervisory Servicer
shall receive, in arrears, against a statement or statements therefor submitted
to the Trustee monthly or annually an aggregate annual fee in that amount
specified as compensation for supervisory services in the Prospectus for the
Trust, but in no event shall such compensation when combined with all
compensation received from other series of the Fund for providing such
supervisory services in any calendar year exceed the aggregate cost to the
Supervisory Servicer for providing such services. Such compensation may, from
time to time, be adjusted provided that the total adjustment upward does not, at
the time of such adjustment, exceed the percentage of the total increase, after
the date hereof, in consumer prices for services as measured by the United
States Department of Labor Consumer Price Index entitled "All Services Less Rent
of Shelter" or similar index, if such index should no longer be published. The
consent or concurrence of any Unitholder hereunder shall not be required for any
such adjustment or increase. Such compensation shall be paid by the Trustee,
upon receipt of invoice therefor from the Supervisory Servicer, upon which, as
to the cost incurred by the Supervisory Servicer of providing services hereunder
the Trustee may rely, and shall be charged against the Income and/or Capital
Accounts, in accordance with Section 3.05.
If the cash balance in the Income and Capital Accounts shall be
insufficient to provide for amounts payable pursuant to this Section 3.12, the
Trustee shall have the power to sell (a) Securities from the current list of
Securities designated to be sold pursuant to Section 5.02 hereof, or (b) if no
such Securities have been so designated, such Securities as the Trustee may see
fit to sell in its own discretion, and to apply the proceeds of any such sale in
payment of the amounts payable pursuant to this Section 3.12.
Any moneys payable to the Supervisory Servicer pursuant to this
Section 3.12 shall be secured by a lien on the related Trust prior to the
interest of Unitholders, but no such lien shall be prior to any lien in favor of
the Trustee under the provisions of Section 6.04 herein.
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Except as the context otherwise requires the Supervisory Servicer shall be
subject to the provisions of Section 4.05 herein in the same manner as it would
if it were the Evaluator.
Section 3.13. Deferred Sales Charge. If the Prospectus related to a Trust
specifies a Deferred Sales Charge, the Trustee shall, on the dates specified and
as provided in such Prospectus, withdraw from the Income Account or Capital
Account (as specified in the such Prospectus), an amount per Unit specified in
such Prospectus and credit such amount to a special non-Trust account designated
by the Depositor out of which the deferred sales charge will be distributed to
the Depositor (the "Deferred Sales Charge Account"). If the balance in the
applicable Account is insufficient to make such withdrawal, the Trustee shall,
as directed by the Depositor, advance funds in an amount required to fund the
proposed withdrawal and be entitled to reimbursement of such advance upon the
deposit of additional moneys in the applicable Account, and/or sell Securities
and credit the proceeds thereof to the Deferred Sales Charge Account. Such
direction shall, if the Trustee is directed to sell a Security, identify the
Security to be sold and include instructions as to the execution of such sale.
If a Unitholder redeems Units prior to full payment of the deferred sales
charge, the Trustee shall, if so provided in the related Prospectus, on the
Redemption Date, withhold from the Redemption Price payable to such Unitholder
an amount equal to the unpaid portion of the deferred sales charge and
distribute such amount to the Deferred Sales Charge Account. If pursuant to
Section 5.02 hereof, the Depositor shall purchase a Unit tendered for redemption
prior to the payment in full of the deferred sales charge due on the tendered
Unit, the Depositor shall pay to the Unitholder the amount specified under
Section 5.02 less the unpaid portion of the deferred sales charge. All advances
made by the Trustee pursuant to this Section shall be secured by a lien on the
Trust prior to the interest of the Unitholders.
Section 3.14. The Trustee shall use reasonable efforts to reclaim or recoup
any amounts of non-U.S. tax paid by a Trust or withheld from income received by
a Trust to which such Trust may be entitled as a refund.
Section 3.15. Unless the Depositor shall otherwise direct, whenever funds
are received by the Trustee in foreign currency, upon the receipt thereof or, if
such funds are to be received in respect of a sale of Securities, concurrently
with the contract of the sale for the Security (in the latter case the foreign
exchange contract to have a settlement date coincident with the relevant
contract of sale for the Security), the Trustee, pursuant to the direction of
the Depositor, shall enter into a foreign exchange contract for the conversion
of such funds to U.S. dollars. Neither the Trustee nor the Depositor shall be
liable for any loss or depreciation resulting from such action taken.
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ARTICLE IV
EVALUATION OF SECURITIES; EVALUATOR
Section 4.01. Evaluation by Evaluator. (a) The Evaluator shall determine
separately, and shall promptly furnish to the Trustee and the Depositor upon
request, the value of each issue of Securities (including Contract Securities)
("Evaluation") as of the time stated in the Prospectus relating to a Trust (the
"Evaluation Time") (i) on each Business Day during the period which the Units
are being offered for sale to the public and (ii) on any other day on which a
Trust Fund Evaluation is to be made pursuant to Section 5.01 or which is
requested by the Depositor or the Trustee. As part of the Evaluation, the
Evaluator shall determine separately and promptly furnish to the Trustee and the
Depositor upon request the Evaluation of each issue of Securities initially
deposited in a Trust on the Initial Date of Deposit. The Evaluator's
determination of the offering prices of the Securities on the Initial Date of
Deposit shall be included in the Schedules attached to the Trust Agreement.
(b) During the initial offering period such Evaluation shall be made in the
following manner: if the Securities are listed on a national securities exchange
or foreign securities exchange, such Evaluation shall generally be based on the
last available sale price on or immediately prior to the Evaluation Time on the
exchange which is the principal market therefor, which shall be deemed to be the
New York Stock Exchange if the Securities are listed thereon (unless the
Evaluator deems such price inappropriate as a basis for evaluation) or, if there
is no such available sale price on such exchange, at the last available offer
prices of the Securities. If the Securities are not so listed or, if so listed,
the principal market therefor is other than on such exchange or there is no such
available sale price on such exchange, such Evaluation shall generally be based
on the following methods or any combination thereof whichever the Evaluator
deems appropriate: (i) on the basis of the current offer price for comparable
securities (unless the Evaluator deems such price inappropriate as a basis for
evaluation), (ii) by determining the valuation of the Securities on the offer
side of the market by appraisal or (iii) by any combination of the above. If the
Trust holds Securities denominated in a currency other than U.S. dollars, the
Evaluation of such Security shall be converted to U.S. dollars based on current
offering side exchange rates (unless the Evaluator deems such prices
inappropriate as a basis for valuation). The Evaluator shall add to the
Evaluation of each Security which is traded principally on a foreign securities
exchange the amount of any commissions and relevant taxes associated with the
acquisition of the Security. As used herein, the closing sale price is deemed to
mean the most recent closing sale price on the relevant securities exchange
immediately prior to the Evaluation Time. For each Evaluation, the Evaluator
shall also confirm and furnish to the Trustee and the Depositor, on the basis of
the information furnished to the Evaluator by the Trustee as to the value of all
Trust assets other than Securities, the calculation of the Trust Fund Evaluation
to be computed pursuant to Section 5.01.
(c) For purposes of the Trust Fund Evaluations required by Section 5.01 in
determining Redemption Value and Unit Value, Evaluation of the Securities shall
be made in the manner described in 4.01(b), on the basis of the last available
bid prices of the Securities, except in those cases in which the Securities are
listed on a national securities exchange or a
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foreign securities exchange and the last available sale prices are utilized. In
addition, with respect to each Security which is traded principally on a foreign
securities exchange, the Evaluator shall (i) not make the addition specified in
the fourth sentence of Section 4.01(b) and (ii) shall reduce the Evaluation of
each Security by the amount of any liquidation costs (other than brokerage costs
incurred on any national securities exchange) and any capital gains or other
taxes which would be incurred by the Trust upon the sale of such Security, such
taxes being computed as if the Security were sold on the date of the Evaluation.
Section 4.02. Information for Unitholders. For the purpose of
permitting Unitholders to satisfy any reporting requirements of applicable
federal or state tax law, the Evaluator shall make available to the Trustee and
the Trustee shall transmit to any Unitholder upon request any determinations
made by it pursuant to Section 4.01.
Section 4.03. Compensation of Evaluator. As compensation for its
services hereunder, the Evaluator shall receive against a statement or
statements therefor submitted to the Trustee monthly or annually, an amount
equal to the amount specified as compensation for the Evaluator in the
Prospectus. Such compensation may, from time to time, be adjusted provided that
the total adjustment upward does not, at the time of such adjustment, exceed the
percentage of the total increase, after the date hereof, in consumer prices for
services as measured by the United States Department of Labor Consumer Price
Index entitled "All Services Less Rent of Shelter" or similar index, if such
index shall not longer be published. The consent or concurrence of any
Unitholder hereunder shall no be required for any such adjustment or increase.
Such compensation shall be charged by the Trustee, upon receipt of invoice
therefor from the Evaluator, against the Income and Capital Accounts. If the
cash balance in the Income and Capital Accounts shall be insufficient to provide
for amounts payable pursuant to this Section 4.03, the Trustee shall have the
power to sell (a) Securities from the current list of Securities designated to
be sold pursuant to Section 5.02 hereof or (b) if no such Securities have been
so designated, such Securities as the Trustee may see fit to sell in its own
discretion, and to apply the proceeds of any such sale in payment of the amounts
payable pursuant to this Section 4.03.
Section 4.04. Liability of Evaluator. The Trustee, the Depositor
and the Unitholders may rely on any Evaluation furnished by the Evaluator and
shall have no responsibility for the accuracy thereof. The determinations made
by the Evaluator hereunder shall be made in good faith upon the basis of the
best information available to it. The Evaluator shall be under no liability to
the Trustee, the Depositor or the Unitholders for errors in judgment; provided,
however, that this provision shall not protect the Evaluator against any
liability to which it would otherwise be subject by reason of willful
misfeasance, bad faith or gross negligence in the performance of its duties or
by reason of its reckless disregard of its obligations and duties hereunder.
Section 4.05. Resignation and Removal of Evaluator; Successor. (a) The
Evaluator may resign and be discharged hereunder, by executing an instrument in
writing resigning as Evaluator and filing the same with the Depositor and the
Trustee, not less than 60 days before the date specified in such instrument
when, subject to Section 4.05(e), such resignation is to take effect. Upon
receiving such notice of resignation, the Depositor and
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the Trustee shall use their best efforts to appoint a successor evaluator having
qualifications and at a rate of compensation satisfactory to the Depositor and
the Trustee. Such appointment shall be made by written instrument executed by
the Depositor and the Trustee, in duplicate, one copy of which shall be
delivered to the resigning Evaluator and one copy to the successor evaluator.
The Depositor or the Trustee may remove the Evaluator at any time upon 30 days'
written notice and appoint a successor evaluator having qualifications and at a
rate of compensation satisfactory to the Depositor and the Trustee. Such
appointment shall be made by written instrument executed by the Depositor and
the Trustee, in duplicate, one copy of which shall be delivered to the Evaluator
so removed and one copy to the successor evaluator. Notice of such resignation
or removal and appointment of a successor evaluator shall be mailed by the
Trustee to each Unitholder then of record.
(b) Any successor evaluator appointed hereunder shall execute,
acknowledge and deliver to the Depositor and the Trustee an instrument accepting
such appointment hereunder, and such successor evaluator without any further
act, deed or conveyance shall become vested with all the rights, powers, duties
and obligations of its predecessor hereunder with like effect as if originally
named Evaluator herein and shall be bound by all the terms and conditions of
this Indenture.
(c) In case at any time the Evaluator shall resign and no successor
evaluator shall have been appointed and have accepted appointment within 30 days
after notice of resignation has been received by the Depositor and the Trustee,
the Evaluator may forthwith apply to a court of competent jurisdiction for the
appointment of a successor evaluator. Such court may thereupon after such
notice, if any, as it may deem proper and prescribe, appoint a successor
evaluator.
(d) Any corporation into which the Evaluator hereunder may be merged or
with which it may be consolidated, or any corporation resulting from any merger
or consolidation to which the Evaluator hereunder shall be a party, shall be the
successor evaluator under this Indenture without the execution or filing of any
paper, instrument or further act to be done on the part of the parties hereto,
anything herein, or in any agreement relating to such merger or consolidation,
by which the Evaluator may seek to retain certain powers, rights and privileges
theretofore obtaining for any period of time following such merger or
consolidation, to the contrary notwithstanding.
(e) Any resignation or removal of the Evaluator and appointment of a
successor evaluator pursuant to this Section shall become effective upon
acceptance of appointment by the successor evaluator as provided in
subSection (b) hereof.
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ARTICLE V
EVALUATION, REDEMPTION, PURCHASE, TRANSFER, INTERCHANGE OR REPLACEMENT OF UNITS
Section 5.01. Trust Evaluation. As of the Evaluation Time (a) on
the last Business Day of each year, (b) on the day on which any Unit is tendered
for redemption and (c) on any other day desired by the Trustee or requested by
the Depositor, the Trustee shall: Add (i) all moneys on deposit in a Trust
(excluding (1) cash, cash equivalents or Letters of Credit deposited pursuant to
Section 2.01 hereof for the purchase of Contract Securities, unless such cash or
Letters of Credit have been deposited in the Income and Capital Accounts because
of failure to apply such moneys to the purchase of Contract Securities pursuant
to the provisions of Sections 2.01, 3.02 and 3.03 hereof and (2) moneys credited
to the Reserve Account pursuant to Section 3.04 hereof), plus (ii) the aggregate
Evaluation of all Securities (including Contract Securities and Reinvestment
Securities) on deposit in such Trust as is determined by the Evaluator (such
Evaluation to be made on the basis of the aggregate underlying value of the
Equity Securities as determined in Section 4.01(b) for the purpose of computing
redemption value of Units as set forth in Section 5.02 hereof), plus (iii) all
other income from the Securities (including dividends receivable on the Equity
Securities trading ex-dividend as of the date of such valuation) as of the
Evaluation Time on the date of such Evaluation together with all other assets of
such Trust. For each such Evaluation there shall be deducted from the sum of
the above (i) amounts representing any applicable taxes or governmental charges
payable out of the respective Trust and for which no deductions shall have
previously been made for the purpose of addition to the Reserve Account, (ii)
amounts representing estimated accrued expenses of such Trust including but not
limited to unpaid fees and expenses of the Trustee, the Evaluator, the
Supervisory Servicer, the Depositor and counsel, in each case as reported by the
Trustee to the Depositor on or prior to the date of evaluation, and (iii) any
moneys identified by the Trustee, as of the date of the Evaluation, as held for
distribution to Unitholders of record as of an Income or Capital Account
Distribution Record Date or for payment of the Redemption Value of Units
tendered prior to such date. The resulting figure is herein called a "Trust
Fund Evaluation." The value of the pro rata share of each Unit of the respective
Trust determined on the basis of any such evaluation shall be referred to herein
as the "Unit Value." Amounts receivable by the Trust in foreign currency shall
be converted by the Trustee to U.S. dollars based on current exchange rates, in
the same manner as provided in Section 4.01(b) or 4.01(c), as applicable, for
the conversion of the valuation of foreign Equity Securities, and the Evaluator
shall report such conversion with each Evaluation made pursuant to Section 4.01.
For each day on which the Trustee shall make a Trust Fund Evaluation it
shall also determine "Unit Value" for such day. Such "Unit Value" shall be
determined by dividing said Trust Fund Evaluation by the number of Units
outstanding on such day.
Section 5.02. Redemptions by Trustee; Purchases by Depositor. Any
Certificate tendered for redemption by a Unitholder or his duly authorized
attorney to the Trustee at its corporate trust office in the City of New York,
or any Unit in uncertificated form tendered by means of an appropriate request
for redemption in form approved by the Trustee shall be
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paid by the Trustee on the third Business Day following the day on which tender
for redemption is made in proper form (being herein called the "Settlement
Date"). Subject to (a) the next succeeding paragraph, (b) payment by such
Unitholder of any tax or other governmental charges which may be imposed thereon
and (c) payments in the form of In Kind Distributions (as defined below), such
redemption is to be made by payment of cash equivalent to the Unit Value
determined on the basis of a Trust Fund Evaluation made in accordance with
Section 5.01 determined by the Trustee as of the Evaluation Time on the
Redemption Date, multiplied by the number of Units tendered for redemption
(herein called the "Redemption Value"), or if the Unitholder wishes to redeem a
number of Units less than all those so tendered, multiplied by the number of
Units so designated by such Unitholder for redemption. Units received for
redemption by the Trustee on any day after the Evaluation Time will be held by
the Trustee until the next day on which the New York Stock Exchange is open for
trading and will be deemed to have been tendered on such day for redemption at
the Redemption Value computed on that day.
The portion of the Redemption Value which represents income shall be
withdrawn from the Income Account to the extent available. The balance paid on
any Redemption Value, including income not paid from the Income Account, if any,
shall be withdrawn from the Capital Account to the extent that funds are
available for such purpose. If such available funds shall be insufficient, the
Trustee shall sell such Securities as have been designated on the current list
for such purpose by the Supervisory Servicer, as hereinafter in this
Section 5.02 provided, in amounts as the Trustee in its discretion shall deem
advisable or necessary in order to fund the Capital Account for purposes of such
redemption. Sale of Securities by the Trustee shall be made in such manner as
the Trustee shall determine will bring the best price obtainable for a Trust,
subject to any limitations as to the minimum amount of Equity Securities to be
sold specified in the Trust Agreement. In the event that either (i) funds are
withdrawn from the Capital Account and are applied to the payment of income upon
any redemption of Units or (ii) Securities are sold for the payment of the
Redemption Value and any portion of the proceeds of such sale is applied to the
payment of income upon such redemption, then, in either such event, the Capital
Account shall be reimbursed therefor at such time as sufficient funds may be
next available in the Income Account for such purpose.
The Trustee may in its discretion, and shall when so directed by the
Depositor in writing, suspend the right of redemption for Units of a Trust or
postpone the date of payment of the Redemption Value for more than seven
calendar days following the day on which tender for redemption is made (i) for
any period during which the New York Stock Exchange is closed other than
customary weekend and holiday closings or during which trading on the New York
Stock Exchange is restricted; (ii) for any period during which an emergency
exists as a result of which disposal by such Trust of the Securities is not
reasonably practicable or it is not reasonably practicable fairly to determine
in accordance herewith the value of the Securities; or (iii) for such other
period as the Securities and Exchange Commission may by order permit, and shall
not be liable to any person or in any way for any loss or damage which may
result from any such suspension or postponement.
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Not later than the close of business on the day of tender of any
Certificate or Unit for redemption by a Unitholder other than the Depositor, the
Trustee shall notify the Depositor of such tender. The Depositor shall have the
right to purchase such Certificate or Unit by notifying the Trustee of its
election to make such purchase as soon as practicable thereafter but in no event
subsequent to the close of business on the first Business Day after the day on
which such Certificate or Unit was tendered for redemption. Such purchase shall
be made by payment by the Depositor to the Unitholder on the Redemption Date of
an amount not less than the Redemption Value which would otherwise be payable by
the Trustee to such Unitholder. So long as the Depositor maintains a bid in the
secondary market, the Depositor may repurchase the Units tendered to the Trustee
for redemption by the Depositor but shall be under no obligation to maintain any
bids and may, at any time while so maintaining such bids, cease to do so
immediately at any time or from time to time without notice.
Any Units so purchased by the Depositor may at the option of the Depositor
be tendered to the Trustee for redemption at the corporate trust office of the
Trustee in the manner provided in the first paragraph of this Section 5.02.
Notwithstanding the foregoing provisions of this Section 5.02, until the
close of business on the second Business Day after the day on which such
Certificate or Unit was tendered for redemption the Trustee is hereby
irrevocably authorized in its discretion, in the event that the Depositor does
not purchase any Units tendered to the Trustee for redemption, or in the event
that a Unit is being tendered by the Depositor for redemption, in lieu of
redeeming Units, to sell Units in the over-the-counter market through any
broker-dealer of its choice for the account of the tendering Unitholder at
prices which will return to the Unitholder an amount in cash, net after
deducting brokerage commissions, transfer taxes and other charges, equal to or
in excess of the Redemption Value which such Unitholder would otherwise be
entitled to receive on redemption pursuant to this Section 5.02. The Trustee
shall pay to the Unitholder the net proceeds of any such sale on the day on
which such Unitholder would otherwise be entitled to receive payment of the
Redemption Value hereunder.
Notwithstanding anything to the contrary in this Section 5.02, any
Unitholder may, if such Unitholder tenders at least that minimum amount of Units
for redemption specified in the Prospectus, request at the time of tender to
receive from the Trustee in lieu of cash such Unitholder's pro rata share of
each Equity Security then held by such Trust; provided, however, if a Unitholder
tenders for redemption Units having an aggregate value of at least the amount
specified in the Prospectus, if any, the Depositor reserves the right to direct
the Trustee to make an In Kind Distribution rather than make a cash payment.
Such tendering Unitholder will receive his pro rata number of whole shares of
each of the Equity Securities comprising the portfolio of such Trust and cash
from the Capital Account equal to the value of the fractional shares to which
such tendering Unitholder is entitled. Such pro rata share of each Equity
Security and the related cash to which such tendering Unitholder is entitled is
referred to herein as an "In Kind Distribution." An In Kind Distribution will be
made by the Trustee through the distribution of each of the Equity Securities in
book-entry form to the account of the Unitholder's bank or broker-dealer at
Depository Trust Company. If funds in the Capital Account are insufficient to
cover the required cash distribution to the
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tendering Unitholder, the Trustee shall sell Securities according to the
criteria discussed herein.
The Supervisory Servicer shall maintain with the Trustee a current list of
Securities designated to be sold for the purpose of funding the Capital Account
for redemption of Units tendered for redemption and, to the extent necessary,
for payment of expenses under this Indenture. In connection therewith, the
Depositor may specify in the Trust Agreement the minimum amounts of any
Securities to be sold at any one time. If the Supervisory Servicer shall for
any reason fail to maintain such a list, the Trustee may in its sole discretion
designate a current list of Securities for such purposes. The net proceeds of
any sale of such Securities representing income shall be credited to the Income
Account and then disbursed therefrom for payment of expenses and payments to
Unitholders required to be paid under this Indenture. Any balance remaining
after such disbursements shall remain credited to the Capital Account.
Neither the Depositor nor the Trustee shall be liable or responsible in any
way for depreciation or loss incurred by reason of any sale of Securities made
pursuant to this Section 5.02.
Certificates evidencing Units redeemed pursuant to this Section 5.02 shall
be cancelled by the Trustee and the Unit or Units evidenced by such Certificates
shall be terminated by such redemptions. In the event that a Certificate shall
be tendered representing a number of Units greater than those requested to be
redeemed by the Unitholder, the Trustee shall issue to such Unitholder, unless
such Unitholder requests such Units be uncertificated, upon payment of any tax
or charges of the character referred to in the second paragraph of Section 5.03,
a new Certificate evidencing the Units representing the balance of the
Certificate so tendered and not redeemed.
Section 5.03. Transfer or Interchange of Units. Units will be held
in uncertificated form unless the Unitholder requests in writing to have a
Certificate or Certificates representing such Units be issued. Units may be
transferred by the registered holder thereof by presentation and surrender of
such Units and Certificates, if issued, at the corporate trust office of the
Trustee, properly endorsed or accompanied by a written instrument or instruments
of transfer in form satisfactory to the Trustee and executed by the Unitholder
or his authorized attorney, whereupon new Units or, if requested, a new
registered Certificate or Certificates for the same number of Units of the same
Trust executed by the Trustee and the Depositor will be issued in exchange and
substitution therefor and Units surrendered shall be cancelled by the Trustee.
The registered holder of any Unit may transfer such Unit by the presentation of
transfer instructions and Certificates, if issued, to the Trustee at the
corporate trust office of the Trustee accompanied by such documents as the
Trustee deems necessary to evidence the authority of the person making such
transfer and executed by the registered holder or his authorized attorney,
whereupon the Trustee shall make proper notification of such transfer on the
registration books of the Trustee. Unitholders holding their Units in
uncertificated form may at any time request the Trustee to issue Certificates
for such Units and Unitholders holding Certificates may at any time request that
their Units be held in uncertificated form. The Trustee shall, upon receipt of
such request in form
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satisfactory to it, accompanied by Certificates, if any, issue such
Certificates, or cancel such Certificate and make such appropriate notations on
its books, as may be requested by such Unitholder; provided that the Trustee is
entitled to specify the minimum denomination of any Certificate issued.
Certificates issued pursuant to this Indenture are interchangeable for one or
more other Certificates in an equal aggregate number of Units of the same Trust
and all Certificates issued shall be issued in denominations of one Unit or any
whole multiple thereof as may be requested by the Unitholder. The Trustee may
deem and treat the registered Unitholder as the owner of the Units whether or
not held in certificated form for all purposes hereunder and in either case the
Trustee shall not be affected by any notice to the contrary, nor be liable to
any person or in any way for so deeming and treating the person in whose name
any Certificate shall be so registered.
A sum sufficient to pay any tax or other governmental charge that may be
imposed in connection with any such transfer or interchange shall be paid by the
Unitholder to the Trustee. The Trustee may require a Unitholder to pay a
reasonable fee for each new Certificate issued on any such transfer or
interchange.
All Certificates cancelled pursuant to this Indenture shall be disposed of
by the Trustee without liability on its part.
Section 5.04. Certificates Mutilated, Destroyed, Stolen or Lost. In
case any Certificate shall become mutilated, destroyed, stolen or lost, the
Trustee shall execute and deliver a new Certificate, if requested, in exchange
and substitution therefor upon the Unitholder's furnishing the Trustee with
proper identification and satisfactory indemnity, complying with such other
reasonable regulations and conditions as the Trustee may prescribe and paying
such expenses as the Trustee may incur. Any mutilated Certificate shall be duly
surrendered and cancelled before any new Certificate shall be issued in exchange
and substitution therefor. Upon the issuance of any new Certificate, a sum
sufficient to pay any tax or other governmental charge and the fees and expenses
of the Trustee may be imposed. Any such new Certificate issued pursuant to this
Section shall constitute complete and indefeasible evidence of ownership in the
related Trust, as if originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time.
In the event the related Trust has terminated or is in the process of
termination, the Trustee may, instead of issuing a new Certificate in exchange
and substitution for any Certificate which shall have become mutilated or shall
have been destroyed, stolen or lost, make the distributions in respect of such
mutilated, destroyed, stolen or lost Certificate (without surrender thereof
except in the case of a mutilated Certificate) as provided in Section 8.02
hereof if the Trustee is furnished with such security or indemnity as it may
require to save it harmless, and in the case of destruction, loss or theft of a
Certificate, evidence to the satisfaction of the Trustee of the destruction,
loss or theft of such Certificate and of the ownership thereof.
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ARTICLE VI
TRUSTEE
Section 6.01. General Definition of Trustee's Liabilities, Rights and
Duties. The Trustee shall in its discretion undertake such action as it may
deem necessary at any and all times to protect each Trust and the rights and
interests of the Unitholders pursuant to the terms of this Indenture; provided,
however, that the expenses and costs of such actions, undertakings or
proceedings shall be reimbursable to the Trustee from the Income and Capital
Accounts of such Trust, and the payment of such costs and expenses shall be
secured by a lien on such Trust prior to the interest of Unitholders.
In addition to and notwithstanding the other duties, rights, privileges and
liabilities of the Trustee as otherwise set forth, the liabilities of the
Trustee are further defined as follows:
(a) All moneys deposited with or received by the Trustee hereunder
related to a Trust shall be held by it without interest in trust within the
meaning of the Investment Company Act of 1940, as part of such Trust or the
Reserve Account of such Trust until required to be disbursed in accordance
with the provisions of this Indenture, and such moneys will be segregated
by separate recordation on the trust ledger of the Trustee so long as such
practice preserves a valid preference under applicable law, or if such
preference is not so preserved the Trustee shall handle such moneys in such
other manner as shall constitute the segregation and holding thereof in
trust within the meaning of the Investment Company Act of 1940.
(b) The Trustee shall be under no liability for any action taken in
good faith on any appraisal, paper, order list, demand, request, consent,
affidavit, notice, opinion, direction, evaluation, endorsement, assignment,
resolution, draft or other document, whether or not of the same kind, prima
facie properly executed, or for the disposition of moneys, Securities,
Units, or Certificates, pursuant to this Indenture, or in respect of any
evaluation which it is required to make or is required or permitted to have
made by others under this Indenture or otherwise, except by reason of its
own negligence, lack of good faith or willful misconduct, provided that the
Trustee shall not in any event be liable or responsible for any evaluation
made by the Evaluator. The Trustee may construe any of the provisions of
this Indenture, insofar as the same may appear to be ambiguous or
inconsistent with any other provisions hereof, and any construction of any
such provisions hereof by the Trustee in good faith shall be binding upon
the parties hereto.
(c) The Trustee shall not be responsible for or in respect of the
recitals herein, the validity or sufficiency of this Indenture or for the
due execution hereof by the Depositor, the Supervisory Servicer, or the
Evaluator, or for the form, character, genuineness, sufficiency, value or
validity of any of the Securities (except that the Trustee shall be
responsible for the exercise of due care in determining the genuineness of
Securities delivered to it pursuant to contracts for the purchase of such
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Securities) or for or in respect of the validity or sufficiency of the
Units or of the Certificates (except for the due execution thereof by the
Trustee) or for the due execution thereof by the Depositor, and the Trustee
shall in no event assume or incur any liability, duty or obligation to any
Unitholder or the Depositor other than as expressly provided for herein.
The Trustee shall not be responsible for or in respect of the validity of
any signature by or on behalf of the Depositor, the Supervisory Servicer or
the Evaluator.
(d) The Trustee shall be under no obligation to appear in, prosecute
or defend any action which in its opinion may involve it in expense or
liability, unless as often as required by the Trustee it shall be furnished
with reasonable security and indemnity against such expense or liability,
and any pecuniary cost of the Trustee from such actions shall be deductible
from and a charge against the Income and Capital Accounts of the affected
Trust or Trusts. The Trustee shall, in its discretion, undertake such
action as it may deem necessary at any and all times to protect the Fund
and the rights and interests of the Unitholders pursuant to the terms of
this Indenture, provided however, that the expenses and costs of such
actions, undertakings or proceedings shall be reimbursable to the Trustee
from the Income and Capital Accounts and the payment of such amounts shall
be secured by a prior lien on such Trust.
(e) (I) Subject to the provisions of subparagraphs (II) and (III)
of this paragraph, the Trustee may employ agents, sub-custodians,
attorneys, accountants and auditors and shall not be answerable for the
default or misconduct of any such agents, sub-custodians, attorneys,
accountants or auditors if such agents, sub-custodians, attorneys,
accountants or auditors shall have been selected with reasonable care. The
Trustee shall be fully protected in respect of any action under this
Indenture taken or suffered in good faith by the Trustee in accordance with
the opinion of counsel, which may be counsel to the Depositor acceptable to
the Trustee, provided, however, that this disclaimer of liability shall not
(i) excuse the Trustee from the responsibilities specified in
subparagraph II below or (ii) limit the obligation of the Trustee to
indemnify the Trust under subparagraph III below. The fees and expenses
charged by such agents, sub-custodians, attorneys, accountants or auditors
shall constitute an expense of the Trust reimbursable from the Income and
Capital Accounts of the affected Trust as set forth in section 6.04 hereof.
(II) The Trustee may place and maintain in the care of an eligible
foreign custodian (which is employed by the Trustee as a sub-custodian as
contemplated by subparagraph (I) of this paragraph (e) and which may be an
affiliate or subsidiary of the Trustee or any other entity in which the
Trustee may have an ownership interest) the Trust's foreign securities,
cash and cash equivalents in amounts reasonably necessary to effect the
Trust's foreign securities transactions, provided that:
(1) The Trustee shall have:
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(i) determined that maintaining the Trust's assets in a
particular country or countries is consistent with the best interests
of the Trust and the Unitholders;
(ii) determined that maintaining the Trust's assets with such
eligible foreign custodian is consistent with the best interests of
the Trust and the Unitholders; and
(iii) entered into a written contract which is consistent
with the best interests of the Trust and the Unitholders and which
will govern the manner in which such eligible foreign custodian will
maintain the Trust's assets and which provides that:
(A) The Trust will be adequately indemnified and its assets
adequately insured in the event of loss (without regard to the
indemnity provided by the Trustee under Section III hereof);
(B) The Trust's assets will not be subject to any right,
charge, security interest, lien or claim of any kind in favor of
the eligible foreign custodian or its creditors except a claim
for payment for their safe custody or administration;
(C) Beneficial ownership of the Trust's assets will be
freely transferable without the payment of money or value other
than for safe custody or administration;
(D) Adequate records will be maintained identifying the
assets as belonging to the Trust;
(E) The Trust's independent public accountants will be given
access to records identifying assets of the Trust or confirmation
of the contents of those records; and
(F) The Trustee will receive periodic reports with respect
to safekeeping of the Trust's assets, including, but not
necessarily limited to, notification of any transfer to or from
the Trustee's account.
(2) The Trustee shall establish a system to monitor such foreign
custody arrangements to ensure compliance with the conditions of this
subparagraph.
(3) The Trustee, at least annually, shall review and approve the
continuing maintenance of Trust assets in a particular country or countries
with a particular eligible foreign custodian or particular eligible foreign
custodians as consistent with the best interests of the Trust and the
Unitholders.
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(4) The Trustee shall maintain and keep current written records
regarding the basis for the choice or continued use of a particular
eligible foreign custodian pursuant to this subparagraph, and such records
shall be available for inspection by Unitholders and the Securities and
Exchange Commission at the Trustee's offices at all reasonable times during
its usual business hours.
(5) Where the Trustee has determined that a foreign custodian may
no longer be considered eligible under this subparagraph or that, pursuant
to clause (3) above, continuance of the arrangement would not be consistent
with the best interests of the Trust and the Unitholders, the Trust must
withdraw its assets from the care of that custodian as soon as reasonably
practicable, and in any event within 180 days of the date when the Trustee
made the determination.
As used in this subparagraph (II),
(1) "foreign securities" include: securities issued and sold
primarily outside the United States by a foreign government, a national of
any foreign country or a corporation or other organization incorporated or
organized under the laws of any foreign country and securities issued or
guaranteed by the government of the United States or by any state or any
political subdivision thereof or by any agency thereof or by any entity
organized under the laws of the United States or of any state thereof which
have been issued and sold primarily outside the United States.
(2) "eligible foreign custodian" means:
(a) The following securities depositories and clearing agencies which
operate transnational systems for the central handling of securities or
equivalent book entries which, by appropriate exemptive order issued by the
Securities and Exchange Commission, have been qualified as eligible foreign
custodians for the Trust but only for so long as such exemptive order
continues in effect: Morgan Guaranty Trust Company of New York, Brussels,
Belgium, in its capacity as operator of the Euroclear System ("Euroclear"),
and Central de Livraison de Valeurs Mobilieres, S.A. ("CEDEL").
(b) Any other entity that shall have been qualified as an eligible
foreign custodian for the foreign securities of the Trust by the Securities
and Exchange Commission by exemptive order, rule or other appropriate
action, commencing on such date as it shall have been so qualified but only
for so long as such exemptive order, rule or other appropriate action
continues in effect.
The determinations set forth above to be made by the Trustee should
be made only after consideration of all matters which the Trustee, in
carrying out its fiduciary duties, finds relevant, including, but not
necessarily limited to, consideration of the following:
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1. With respect to the selection of the country where the Trust's
assets will be maintained, the Trustee should consider:
a. Whether applicable foreign law would restrict the access afforded
the Trust's independent public accountants to books and records kept by an
eligible foreign custodian located in that country;
b. Whether applicable foreign law would restrict the Trust's ability
to recover its assets in the event of the bankruptcy of an eligible foreign
custodian located in that country;
c. Whether applicable foreign law would restrict the Trust's ability
to recover assets that are lost while under the control of an eligible
foreign custodian located in that country;
d. The likelihood of expropriation, nationalization, freezes, or
confiscation of the Trust's assets; and
e. Whether difficulties in converting the Trust's cash and cash
equivalents to U.S. dollars are reasonably foreseeable.
2. With respect to the selection of an eligible foreign custodian,
the Trustee should consider:
a. The financial strength of the eligible foreign custodian, its
general reputation and standing in the country in which it is located, its
ability to provide efficiently the custodial services required and the
relative cost for those services;
b. Whether the eligible foreign custodian would provide a level of
safeguards for maintaining the Trust's assets not materially different from
that provided by the Trustee in maintaining the Trust's securities in the
United States;
c. Whether the eligible foreign custodian has branch offices in the
United States in order to facilitate the assertion of jurisdiction over and
enforcement of judgments against such custodian; and
d. In the case of an eligible foreign custodian that is a foreign
securities depository, the number of participants in, and operating history
of, the depository.
3. The Trustee should consider the extent of the Trust's exposure to
loss because of the use of an eligible foreign custodian. The potential
effect of such exposure upon Unitholders shall be disclosed, if material,
by the Depositor in the prospectus relating to the Trust.
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(III) The Trustee will indemnify and hold the Trust harmless from
and against any loss that shall occur as the result of the failure of an
eligible foreign custodian holding the foreign securities of the Trust to
exercise reasonable care with respect to the safekeeping of such foreign
securities to the same extent that the Trustee would be required to
indemnify and hold the Trust harmless if the Trustee were holding such
foreign securities in the jurisdiction of the United States whose laws
govern the indenture, provided, however, that the Trustee will not be
liable for loss except by reason of the gross negligence, bad faith or
willful misconduct of the Trustee or the eligible foreign custodian.
(f) If at any time the Depositor shall fail to undertake or perform
any of the duties which by the terms of this Indenture are required by it
to be undertaken or performed, or such Depositor shall become incapable of
acting or shall be adjudged a bankrupt or insolvent, or a receiver of such
Depositor or of its property shall be appointed, or any public officer
shall take charge or control of such Depositor or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation,
then in any such case, the Trustee may: (1) appoint a successor depositor,
which may be the Trustee or an affiliate, who shall act hereunder in all
respects in place of such Depositor, which successor shall be satisfactory
to the Trustee, and which may be compensated at rates deemed by the Trustee
to be reasonable under the circumstances, by deduction ratably from the
Income Account of the affected Trusts or, to the extent funds are not
available in such Account, from the Capital Account of the affected Trusts,
but no such deduction shall be made exceeding such reasonable amount as the
Securities and Exchange Commission may prescribe in accordance with
Section 26(a)(2)(C) of the Investment Company Act of 1940, or (2) terminate
this Indenture and the trust created hereby and liquidate the Trust in the
manner provided in Section 8.02.
(g) If (i) the value of a Trust as shown by any evaluation by the
Trustee pursuant to Section 5.01 hereof shall be less than that amount
indicated in the Prospectus relating to such Trust or (ii) by reason of the
Depositor's redemption of Units of a Trust not theretofore sold
constituting more than 60% of the number of Units initially authorized, the
net worth of such Trust is reduced to less than 40% of the aggregate value
of Securities deposited in such Trust at the termination of the initial
offering period, the Trustee may in its discretion, and shall when so
directed by the Depositor, terminate this Indenture and the trust created
hereby and liquidate such Trust, in such manner as the Depositor shall
direct.
(h) In no event shall the Trustee be liable for any taxes or other
governmental charges imposed upon or in respect of the Securities or upon
the income or interest thereon or upon it as Trustee hereunder or upon or
in respect of any Trust which it may be required to pay under any present
or future law of the United States of America or of any other taxing
authority having jurisdiction in the premises. For all such taxes and
charges and for any expenses, including counsel fees, which the Trustee may
sustain or incur with respect to such taxes or charges, the Trustee shall
be reimbursed and indemnified out of the Income and Capital Accounts of the
affected
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Trust, and the payment of such amounts so paid by the Trustee
shall be secured by a prior lien on such Trust.
(i) Except as provided in Sections 3.01 and 3.05, no payment to a
Depositor or to any principal underwriter (as defined in the Investment
Company Act of 1940) for any Trust or to any affiliated person (as so
defined) or agent of a Depositor or such underwriter shall be allowed the
Trustee as an expense except for payment of such reasonable amounts as the
Securities and Exchange Commission may prescribe as compensation for
performing bookkeeping and other administrative services of a character
normally performed by the Trustee.
(j) The Trustee, except by reason of its own negligence or willful
misconduct, shall not be liable for any action taken or suffered to be
taken by it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Indenture.
(k) The Trustee in its individual or any other capacity may become
an owner or pledgee of, or be an underwriter or dealer in respect of,
Securities issued by the same issuer (or an affiliate of such issuer) of
any Securities at any time held as part of any Trust and may deal in any
manner with the same or with the issuer (or an affiliate of the issuer)
with the rights and powers as if it were not the Trustee hereunder.
(l) Each Trust may include a Letter or Letters of Credit for the
purchase of Contract Securities issued by the Trustee in its individual
capacity for the account of the Depositor and the Trustee may otherwise
deal with the Depositor and each Trust with the same rights and powers as
if it were not the Trustee hereunder.
(m) The Trustee is authorized to appoint as co-trustee of any Trust
a trust company affiliated with the Trustee to perform the functions of
custodian and receiving and paying agent.
Section 6.02. Books, Records and Reports. The Trustee shall keep
proper books of record and account of all the transactions of each Trust under
this Indenture at its corporate trust office, including a record of the name and
address of, and the Units issued by each Trust and held by, every Unitholder,
and such books and records of each Trust shall be open to inspection by any
Unitholder of such Trust at all reasonable times during the usual business
hours. The Trustee shall make such annual or other reports as may from time to
time be required under any applicable state or federal statute or rule or
regulation thereunder.
Unless the Depositor determines that such an audit is not required, the
accounts of each Trust shall be audited not less than annually by independent
public accountants designated from time to time by the Depositor and reports of
such accountants shall be furnished by the Trustee, upon request, to
Unitholders. The Trustee, however, in connection with any such audits shall not
be obligated to use Trust assets to pay for such audits in excess of the
amounts, if any, indicated in the Prospectus relating to such Trust.
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To the extent permitted under the Investment Company Act of 1940 as
evidenced by an opinion of independent counsel to the Depositor satisfactory to
the Trustee or "no-action" letters issued by the staff of the Securities and
Exchange Commission, the Trustee shall pay, or reimburse to the Depositor or
others, from the Income or Capital Account the costs of the preparation of
documents and information with respect to each Trust required by law or
regulation in connection with the maintenance of a secondary market in units of
each Trust. Such costs may include but are not limited to accounting and legal
fees, blue sky registration and filing fees, printing expenses and other
reasonable expenses related to documents required under federal and state
securities laws.
Section 6.03. Indenture and List of Securities on File. The Trustee
shall keep a certified copy or duplicate original of this Indenture on file at
its corporate trust office available for inspection at all reasonable times
during the usual business hours by any Unitholder, together with a current list
of the Securities in each Trust.
Section 6.04. Compensation. Subject to the provisions of
Section 3.14 hereof, the Trustee shall receive at the times set forth in
Section 3.05, as compensation for performing ordinary normal recurring services
under this Indenture, an amount calculated at the annual compensation rate
stated in the Prospectus. The Trustee shall charge a pro rated portion of its
annual fee at the times specified in Section 3.05, which pro rated portion shall
be calculated on the basis of the largest number of Units in such Trust at any
time during the period subsequent to the Initial Date of Deposit. The Trustee
may from time to time adjust its compensation as set forth above, provided that
total adjustment upward does not, at the time of such adjustment, exceed the
percentage of the total increase, after the date hereof, in consumer prices for
services as measured by the United States Department of Labor Consumer Price
Index entitled "All Services Less Rent." The consent or concurrence of any
Unitholder hereunder shall not be required for any such adjustment or increase.
Such compensation shall be charged by the Trustee against the Income and Capital
Accounts of each Trust; provided, however, that such compensation shall be
deemed to provide only for the usual, normal and proper functions undertaken as
Trustee pursuant to this Indenture.
The Trustee shall charge the Income and Capital Accounts for any and all
expenses and disbursements incurred hereunder, including legal and auditing
expenses, and for any extraordinary services performed hereunder, which
extraordinary services shall include but not be limited to all costs and
expenses incurred by the Trustee in making any annual or other reports or other
documents referred to in Sections 6.01 and 6.02; provided, however, that the
amount of any such charge which has not been finally determined as of any
calculation time may be estimated and any necessary adjustments shall be made.
Provided, further, that if the balances in the Income and Capital Accounts shall
be insufficient to provide for amounts payable pursuant to this Section 6.04,
the Trustee shall have the power to sell Securities in the manner provided in
Section 5.02. The Trustee shall not be liable or responsible in any way for
depreciation or loss incurred by reason of any such sale.
The Trustee shall be indemnified ratably by the affected Trust and held
harmless against any loss or liability accruing to it without negligence, bad
faith or willful misconduct on its part, arising out of or in connection with
the acceptance or administration of this
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Fund, including the costs and expenses (including counsel fees) of defending
itself against any claim of liability in the premises, including any loss,
liability or expense incurred in acting pursuant to written directions to the
Trustee given by the Depositor from time to time in accordance with the
provisions of this Indenture or in undertaking actions from time to time which
the Trustee deems necessary in its discretion to protect the Fund and the rights
and interests of the Unitholders pursuant to the terms of this Indenture. Any
moneys payable to the Trustee under this Section 6.04 shall be secured by a lien
on the Trust prior to the interest of Unitholders.
Section 6.05. Removal and Resignation of Trustee; Successor. The
following provisions shall provide for the removal and resignation of the
Trustee and the appointment of any successor trustee:
(a) The Trustee or any trustee or trustees hereafter appointed may
resign and be discharged of the Trusts created by this Indenture, by
executing an instrument in writing resigning as Trustee of such Trusts and
filing same with the Depositor and mailing a copy of a notice of
resignation to all Unitholders then of record, not less than 60 days before
the date specified in such instrument when, subject to Section 6.05(e),
such resignation is to take effect. Upon receiving such notice of
resignation, the Depositor shall promptly appoint a successor trustee as
hereinafter provided, by written instrument, in duplicate, one copy of
which shall be delivered to the resigning Trustee and one copy to the
successor trustee. The Depositor may at any time remove the Trustee, with
or without cause, and appoint a successor trustee by written instrument, in
duplicate, one copy of which shall be delivered to the Trustee so removed
and one copy to the successor trustee. Notice of such resignation or
removal of a trustee and appointment of a successor trustee shall be mailed
by the successor trustee, promptly after its acceptance of such
appointment, to each Unitholder then of record.
(b) Any successor trustee appointed hereunder shall execute,
acknowledge and deliver to the Depositor and to the resigning or removed
Trustee an instrument accepting such appointment hereunder, and such
successor trustee without any further act, deed or conveyance shall become
vested with all the rights, powers and duties and obligations of its
predecessor hereunder with like effect as if originally named Trustee
herein and shall be bound by all the terms and conditions of this
Indenture. Upon the request of such successor trustee, the Depositor and
the resigning or removed Trustee shall, upon payment of any amounts due the
resigning or removed Trustee, or provision therefor to the satisfaction of
such resigning or removed Trustee, execute and deliver an instrument
acknowledged by it transferring to such successor trustee all the rights
and powers of the resigning or removed Trustee; and the resigning or
removed Trustee shall transfer, deliver and pay over to the successor
trustee all Securities and moneys at the time held by it hereunder,
together with all necessary instruments of transfer and assignment or other
documents properly executed necessary to effect such transfer and such of
the records or copies thereof maintained by the resigning or removed
Trustee in the administration hereof as may be requested
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<PAGE>
by the successor trustee, and shall thereupon be discharged from all duties
and responsibilities under this Indenture.
(c) In case at any time the Trustee shall resign and no successor
trustee shall have been appointed and have accepted appointment within 30
days after notice of resignation has been received by the Depositor, the
retiring Trustee may forthwith apply to a court of competent jurisdiction
for the appointment of a successor trustee. Such court may thereupon,
after such notice, if any, as it may deem proper and prescribe, appoint a
successor trustee.
(d) Any corporation into which any trustee hereunder may be merged
or with which it may be consolidated, or any corporation resulting from any
merger or consolidation to which any trustee hereunder shall be a party,
shall be the successor trustee under this Indenture without the execution
or filing of any paper, instrument or further act to be done on the part of
the parties hereto, anything herein, or in any agreement relating to such
merger or consolidation, by which any such trustee may seek to retain
certain powers, rights and privileges theretofore obtaining for any period
of time following such merger or consolidation, to the contrary
notwithstanding.
(e) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to this Section shall become effective upon
acceptance of appointment by the successor trustee as provided in
subSection (b) hereof.
Section 6.06. Qualifications of Trustee. The Trustee shall be a
corporation organized and doing business under the laws of the United States or
any state thereof, which is authorized under such laws to exercise corporate
trust powers and having at all times aggregate capital, surplus and undivided
profits of not less than $5,000,000.
ARTICLE VII
RIGHTS OF UNITHOLDERS
Section 7.01. Beneficiaries of Trust. By the purchase and
acceptance or other lawful delivery and acceptance of any Unit, whether
certificated or not, the Unitholder shall be deemed to be a beneficiary of the
related Trust created by this Indenture and vested with all right, title and
interest in such Trust to the extent of the Unit or Units set forth and whether
evidenced by such Certificate or held in uncertificated form, subject to the
terms and conditions of this Indenture.
Section 7.02. Rights, Terms and Conditions. In addition to the
other rights and powers set forth in the other provisions and conditions of this
Indenture, the Unitholders shall have the following rights and powers and shall
be subject to the following terms and conditions:
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<PAGE>
(a) A Unitholder may at any time prior to the Trustee's close of
business as of the date on which the Trust is terminated tender his Units
or his Certificate(s) if held in certificated form (including any temporary
Certificate or other evidence of ownership of Units of such Trust, issued
by the Trustee or the Depositor) to the Trustee for redemption, subject to
and in accordance with Section 5.02.
(b) The death or incapacity of any Unitholder shall not operate to
terminate this Indenture or a related Trust, nor entitle his legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court of competent jurisdiction for a partition or
winding up of the Fund or a related Trust, nor otherwise affect the rights,
obligations and liabilities of the parties hereto or any of them. Each
Unitholder expressly waives any right he may have under any rule of law, of
the provisions of any statute, or otherwise, to require the Trustee at any
time to account, in any manner other than as expressly provided in this
Indenture, in respect of the Securities or moneys from time to time
received, held and applied by the Trustee hereunder.
(c) No Unitholder shall have any right to vote or in any manner
otherwise control the operation and management of the Fund, a related
Trust, or the Securities and management of the Fund, or the Securities of
the parties hereto, nor shall anything herein set forth, or contained in
the terms of the Certificates which may have been issued, be construed so
as to constitute the Unitholders from time to time as partners or members
of an association; nor shall any Unitholder ever be under any liability to
any third persons by reason of any action taken by the parties to this
Indenture, or any other cause whatsoever.
ARTICLE VIII
ADDITIONAL COVENANTS; MISCELLANEOUS PROVISIONS
Section 8.01. Amendments. (a) This Indenture may be amended from
time to time by the Depositor and Trustee hereto or their respective successors,
without the consent of any of the Unitholders (i) to cure any ambiguity or to
correct or supplement any provision contained herein which may be defective or
inconsistent with any other provision contained herein or (ii) to make such
other provision regarding matters or questions arising hereunder as shall not
adversely affect the interests of the Unitholders; provided, however, that in no
event may any amendment be made which would adversely affect the status of a
Trust for federal income tax purposes. This Indenture may not be amended,
however, without the consent of all Unitholders then outstanding, so as (1) to
permit, except in accordance with the terms and conditions hereof, the
acquisition hereunder of any Securities other than those specified in the
Schedules to the Trust Agreement or (2) to reduce the aforesaid percentage of
Units the holders of which are required to consent to certain of such
amendments. This Indenture may not be amended so as to reduce the interest in a
Trust represented by Units (whether evidenced by Certificates or held in
uncertificated form) without the consent of all affected Unitholders.
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<PAGE>
(b) Except for the amendments, changes or modification as provided in
Section 8.01(a) hereof, neither the parties hereto nor their respective
successors shall consent to any other amendment, change or modification of this
Indenture without the giving of notice and the obtaining of the approval or
consent of Unitholders representing at least 66-2/3% of the Units then
outstanding of the affected Trust. Nothing contained in this Section 8.01(b)
shall permit, or be construed as permitting, a reduction of the aggregate
percentage of Units the holders of which are required to consent to any
amendment, change or modification of this Indenture without the consent of the
Unitholders of all of the Units then outstanding of the affected Trust and in no
event may any amendment be made which would (1) alter the rights to the
Unitholders as against each other, (2) provide the Trustee with the power to
engage in business or investment activities other than as specifically provided
in this Indenture or (3) adversely affect the status of the Trust for federal
income tax purposes.
(c) Promptly after the execution of any such amendment the Trustee shall
furnish written notification to all then outstanding Unitholders of the
substance of such amendment.
Section 8.02. Termination. This Indenture and each Trust created
hereby shall terminate upon the maturity, redemption, sale or other disposition
as the case may be of the last Security held in such Trust hereunder unless
sooner terminated as hereinbefore specified, and may be terminated at any time
by the written consent of Unitholders representing at least 66-2/3% of the Units
then outstanding; provided that in no event shall any Trust continue beyond the
Mandatory Termination Date. Upon the date of termination the registration books
of the Trustee shall be closed.
In the event of a termination, the Trustee shall proceed to liquidate the
Securities then held and make the payments and distributions provided for
hereinafter in this Section 8.02 based on such Unitholder's pro rata interest in
the balance of the Capital and Income Accounts after the deductions herein
provided. Written notice shall be given by the Trustee in connection with any
termination to each Unitholder at his address appearing on the registration
books of the Trustee and in connection with a Mandatory Termination Date such
notice shall be given no later than 30 days before the Mandatory Termination
Date. Included with such notice shall be a form to enable Unitholders owning
that number of Units referred to in the Prospectus (if such option is available
for the particular Trust involved) to request an In Kind Distribution rather
than payment totally in cash upon termination. Such request must be returned to
the Trustee at least five Business Days prior to the Mandatory Termination Date.
Unitholders who do not effectively request an In Kind Distribution shall receive
their distribution upon termination in cash.
If the Prospectus for a Trust so provides, Unitholders who tender the
required amount of Units specified in the Prospectus for a Trust may request an
In Kind Distribution upon termination of such Trust; provided, however, the
Depositor reserves the right to direct the Trustee to make an In Kind
Distribution rather than make a cash payment if a Unitholder tenders for
redemption that aggregate value of Units, if any, set forth in the Prospectus.
Any Unitholder who receives an In Kind Distribution shall receive such
distribution in the same manner as is provided in connection with redemptions in
Section 5.02.
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<PAGE>
In connection with any such termination, the Trustee shall segregate
(i) such number of Equity Securities as the Trustee, in its sole
discretion, determines shall be necessary to liquidate to provide for
fees and expenses of such Trust and
(ii) such number of the remaining Equity Securities as shall be
necessary to satisfy distributions to Unitholders electing an In Kind
Distribution.
The Trustee will liquidate the Equity Securities not segregated for In Kind
Distributions during such period and in such daily amounts as the Depositor
shall direct. The Depositor shall direct the liquidation of the Equity
Securities in such manner as to effectuate orderly sales and a minimal market
impact. In the event the Depositor does not so direct, the Securities shall be
sold within a reasonable period and in such manner as the Trustee, in its sole
discretion, shall determine. The Trustee shall not be liable for or responsible
in any way for depreciation or loss incurred by reason of any sale or sales made
in accordance with the Depositor's direction or, in the absence of such
direction, in the exercise of the discretion granted by this Section 8.02. The
Trustee shall deduct from the proceeds of these sales and pay any tax or
governmental charges and any brokerage commissions in connection with such
sales. Amounts received by the Trustee representing the proceeds from the sales
of Securities shall be credited to the related Capital Account.
On the fifth Business Day following receipt of all proceeds of sale of the
Securities, the Trustee shall:
(a) deduct from the Income Account of such Trust or, to the extent
that funds are not available in such Account of such Trust, from the
Capital Account of such Trust, and pay to itself individually an amount
equal to the sum of (i) its accrued compensation for its ordinary recurring
services, (ii) any compensation due it for its extraordinary services in
connection with such Trust, and (iii) any costs, expenses or indemnities in
connection with such Trust as provided herein;
(b) deduct from the Income Account of such Trust or, to the extent
that funds are not available in such Account, from the Capital Account of
such Trust, and pay accrued and unpaid fees of the Evaluator, the
Supervisory Servicer and counsel in connection with such Trust, if any;
(c) deduct from the Income Account of such Trust or the Capital
Account of such Trust any amounts which may be required to be deposited in
the Reserve Account to provide for payment of any applicable taxes or other
governmental charges and any other amounts which may be required to meet
expenses incurred under this Indenture in connection with such Trust;
(d) make final distributions from such Trust, against surrender for
cancellation of all of each Unitholder's Certificate or Certificates, if
issued, as follows:
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<PAGE>
(i) to each Unitholder requesting an In Kind
Distribution (y) such holder's pro rata portion of each of the Equity
Securities segregated for distribution in kind, in whole shares, and
(z) cash equal to such Unitholder's pro rata portion of the Income and
Capital Accounts as follows: (1) a pro rata portion of the net
proceeds of sale of the Equity Securities representing any fractional
shares included in such Unitholder's pro rata share of the Equity
Securities not segregated for liquidation to provide for Trust
expenses and (2) cash equal to such Unitholder's pro rata share of the
sum of the cash balances of the Income and Capital Accounts as of the
Mandatory Termination Date plus, in either case, the net proceeds of
sale of the Equity Securities segregated for liquidation to provide
for Trust expenses less deduction of the fees and expenses specified
in this Section 8.02 and less deduction of the Trustee's cost of
registration and delivery of such Unitholder's Equity Securities;
(ii) to each Unitholder receiving distribution in cash, such
holder's pro rata share of the cash balances of the Income and Capital
Accounts; and
(iii) on the conditions set forth in Section 3.04 hereof, to
all Unitholders, their pro rata share of the balance of the Reserve
Account.
In Kind Distributions of Equity Securities shall be made by the
Trustee through the distribution of each of the Equity Securities in book-
entry form to the account of the Unitholder's bank or broker-dealer at the
Depository Trust Company; and
(e) within 60 days after the distribution to each Unitholder as
provided for in (d), furnish to each such Unitholder a final distribution
statement, setting forth the data and information in substantially the form
and manner provided for in Section 3.06 hereof.
The Trustee shall be under no liability with respect to moneys held by it
in the Income, Reserve and Capital Accounts of a Trust upon termination except
to hold the same in trust within the meaning of the Investment Company Act of
1940, without interest until disposed of in accordance with the terms of this
Indenture.
Section 8.03. Construction. This Indenture is executed and
delivered in the state of New York, and all laws or rules of construction of
such state shall govern the rights of the parties hereto and the Unitholders and
the interpretation of the provisions hereof.
Section 8.04. Registration of Units. Except as provided in Section
3.01 and 3.05, the Depositor agrees and undertakes on its own part to register
the Units with the Securities and Exchange Commission or other applicable
governmental agency, federal or state, pursuant to applicable federal or state
statutes, if such registration shall be required, and to do all things that may
be necessary or required to comply with this provision during the term of any
Trust created hereunder, and the Trustee shall incur no liability, obligation or
expenses in connection therewith.
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<PAGE>
Section 8.05. Written Notice. Any notice, demand, direction or
instruction to be given to the Depositor hereunder shall be in writing and shall
be duly given if mailed or delivered to the Depositor, 77 West Wacker Drive,
Chicago, Illinois 60601-1994, or at such other address as shall be specified by
the Depositor to the other parties hereto in writing.
Any notice, demand, direction or instruction to be given to the Trustee
shall be in writing and shall be duly given if delivered to the corporate trust
office of the Trustee at 101 Barclay Street, 17th Floor, New York, New York
10286, Attention: Unit Trust Division, or to such other address as shall be
specified by the Trustee to the other parties in writing.
Any notice, demand, direction or instruction to be given to the Evaluator
hereunder shall be in writing and shall be duly given if mailed or delivered to
the Evaluator at 77 West Wacker Drive, Chicago, Illinois 60601-1994, or at such
other address as shall be specified by the Evaluator to the other parties hereto
in writing.
Any notice, demand, direction or instruction to be given to the Supervisory
Servicer shall be in writing and shall be duly given if mailed or delivered to
the Supervisory Servicer at 77 West Wacker Drive, Chicago, Illinois 60601-1994
or at such other address as shall be specified by the Supervisory Servicer to
the other parties in writing.
Any notice to be given to the Unitholders shall be duly given if mailed by
first class mail with postage prepaid or delivered to each Unitholder at the
address of such holder appearing on the registration books of the Trustee.
Section 8.06. Severability. If any one or more of the covenants,
agreements, provisions or terms of this Indenture shall be held contrary to any
express provision of law or contrary to policy of express law, though not
expressly prohibited, or against public policy, or shall for any reason
whatsoever be held invalid, then such covenants, agreements, provisions or terms
shall be deemed severable from the remaining covenants, agreements, provisions
or terms of this Indenture and shall in no way affect the validity or
enforceability of the other provisions of this Indenture or of the Certificates
or the rights of the holders thereof.
Section 8.07. Dissolution of Depositor Not to Terminate. The
dissolution of the Depositor for any cause whatsoever shall not operate to
terminate this Indenture or any Trust insofar as the duties and obligations of
the Trustee are concerned.
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<PAGE>
In Witness Whereof, EVEREN Securities, Inc. and The Bank of New York have
each caused these Standard Terms and Conditions of Trust to be executed by
authorized officers; all as of the day, month and year first above written.
EVEREN Securities, Inc., Depositor
By______________________________________
Vice President
The Bank of New York, Trustee
By______________________________________
Vice President
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<PAGE>
CERTIFICATE OF INCORPORATION
OF
KEMPER CAPITAL MARKETS, INC.
FIRST: The name of the corporation is Kemper Capital Markets, Inc.
(hereinafter referred to as the "Corporation").
SECOND: The address of the Corporation's registered office in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, in the City of
Wilmington, County of New Castle, State of Delaware 19801. Its registered agent
at such address is The Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of Delaware.
FOURTH: The total number of shares of capital stock which the Corporation
shall have authority to issue shall be 100 shares of common stock with a par
value of $.01 per share (hereinafter referred to as the "Common Stock"). Each
share of Common Stock shall be equal to every other share of Common Stock. The
holders of shares of Common Stock shall be entitled to one vote for each share
upon all matters presented to the stockholders.
FIFTH: The Board of Directors of the Corporation shall be authorized to
provide for the indemnification, within the limits permitted by the General
Corporation Law of the State of Delaware, of directors, officers, employees and
agents of the Corporation, and of persons who serve other enterprises in such a
similar capacity at the request of the Corporation, against expense, and
liabilities for actions they take in such capacities.
No director of the Corporation shall be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director except for liability (a) for any breach of the director's
duty of loyalty to the Corporation or its stockholders, (b) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (c) under Section 174 of the General Corporation Law of
Delaware or (d) for any transaction from which the director derived an improper
personal benefit.
SIXTH: The following provisions are inserted for the management of the
business and for the conduct of the affairs of the Corporation and for the
purpose of creating, defining, limiting and regulating powers of the Corporation
and its directors and stockholders:
Section 1. The holders of the Corporation's capital stock shall have no
preemptive rights to subscribe for any shares of any class of stock of the
Corporation whether now or hereafter authorized.
Section 2. Elections of directors need not be by written ballot unless the
by-laws of the Corporation shall so provide.
<PAGE>
Section 3. The by-laws of the Corporation shall not be amended, altered,
changed or repealed without (i) the approval of the holders of a majority of the
shares of Common Stock outstanding or (ii) the unanimous approval of the entire
Board of Directors (provided, however, that for purposes of this Section 3,
"Board of Directors" shall be deemed to refer only to the Corporation's Board of
Directors and not to the Executive Committee thereof).
Section 4. In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to designate an
Executive Committee, to consist of three or more of the directors of the
Corporation, which shall have and may exercise all the powers and authority of
the Board of Directors in the management of the business and affairs of the
Corporation, except that such Executive Committee shall not have the power or
authority to amend the Certificate of Incorporation, adopt an agreement of
merger or consolidation, recommend to the stockholders the sale, lease or
exchange of all or substantially all of the Corporation's property and assets,
recommend to the stockholders a dissolution of the Corporation or a revocation
of a dissolution, or amend the by-laws of the Corporation; and unless a
resolution of the Board of Directors expressly so provides, the Executive
Committee shall not have the power or authority to declare a dividend, to
authorize the issuance of stock or to adopt a certificate of ownership and
merger pursuant to Section 253 of the General Corporation Law of Delaware.
Section 5. The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by statute or herein, and all rights
conferred upon stockholders herein are granted subject to this reservation.
Section 6. Directors may be removed at any time or from time to time with
or without cause if such removal is approved by the holders of a majority of the
shares of Common Stock outstanding.
SEVENTH: The name and mailing address of the Incorporator are Susan A.
Warner, Squire, Sanders & Dempsey, 1800 Huntington Building, Cleveland, Ohio
44115. The Incorporator shall, until the directors are elected, manage the
affairs of the Corporation and may do whatever is necessary and proper to
perfect the organization of the Corporation.
EIGHTH: The following persons shall constitute the initial board of
directors of the Corporation and shall serve as directors until their successors
are elected and qualify:
John Goldsmith 1331 Euclid Avenue, Cleveland, Ohio 44115
Lawrence Kirshbaum 1331 Euclid Avenue, Cleveland, Ohio 44115
Thomas Anderson 1331 Euclid Avenue, Cleveland, Ohio 44115
I, THE UNDERSIGNED, for the purpose of forming a corporation under the laws
of the State of Delaware, do make, file and record this Certificate,
<PAGE>
do hereby acknowledge that the foregoing Certificate is my act and deed, and do
certify that the facts herein stated are true. I have accordingly hereunto set
my hand this 11th day of November, 1986.
/s/ Susan A. Warner
-----------------------------------
Susan A. Warner, Sole Incorporator
<PAGE>
RESTATED
CERTIFICATE OF INCORPORATION
OF
KEMPER SECURITIES GROUP, INC.
FIRST: The name of the Corporation is Kemper Securities Group, Inc.
SECOND: The address of the Corporation's registered office in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, in the City of
Wilmington, County of New Castle, State of Delaware 19801. Its registered agent
at such address is The Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of Delaware.
FOURTH: The total number of shares of capital stock which the Corporation
shall have authority to issue is 10,000 shares of Common Stock, with a par value
of $.01 per share. Each share of Common Stock shall be equal to every other
share of Common Stock. The holders of shares of Common Stock shall be entitled
to one vote for each share upon all matters presented to the stockholders.
FIFTH: The Board of Directors of the Corporation shall be authorized to
provide for the indemnification, within the limits permitted by the General
Corporation Law of the State of Delaware, of directors, officers, employees and
agents of the Corporation, and of persons who serve other enterprises in such a
similar capacity at the request of the Corporation, against expense, and
liabilities for actions they take in such capacities.
No director of the Corporation shall be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director except for liability (a) for any breach of the director's
duty of loyalty to the Corporation or its stockholders, (b) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (c) under Section 174 of the General Corporation Law of
Delaware or (d) for any transaction from which the director derived an improper
personal benefit.
<PAGE>
SIXTH: The following provisions are inserted for the management of the
business and for the conduct of the affairs of the Corporation and for the
purpose of creating, defining, limiting and regulating powers of the Corporation
and its directors and stockholders:
Section 1. The holders of the Corporation's capital stock shall have no
preemptive rights to subscribe for any shares of any class of stock of the
Corporation whether now or hereafter authorized.
Section 2. Elections of directors need not be by written ballot unless the
by-laws of the Corporation shall so provide.
Section 3. The by-laws of the Corporation shall not be amended, altered,
changed or repealed without (i) the approval of the holders of a majority of the
shares of Common Stock outstanding or (ii) the unanimous approval of the entire
Board of Directors (provided, however, that for purposes of this Section 3,
"Board of Directors" shall be deemed to refer only to the Corporation's Board of
Directors and not to the Executive Committee thereof).
Section 4. In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to designate an
Executive Committee, to consist of three or more of the directors of the
Corporation, which shall have and may exercise all the powers and authority of
the Board of Directors in the management of the business and affairs of the
Corporation, except that such Executive Committee shall not have the power or
authority to amend the Certificate of Incorporation, adopt an agreement of
merger or consolidation, recommend to the stockholders the sale, lease or
exchange of all or substantially all of the Corporation's property and assets,
recommend to the stockholders a dissolution of the Corporation or a revocation
of a dissolution, or amend the by-laws of the Corporation; and unless a
resolution of the Board of Directors expressly so provides, the Executive
Committee shall not have the power or authority to declare a dividend, to
authorize the issuance of stock or to adopt a certificate of ownership and
merger pursuant to Section 253 of the General Corporation Law of Delaware.
Section 5. The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by statute or herein, and all rights
conferred upon stockholders herein are granted subject to this reservation.
<PAGE>
Section 6. Directors may be removed at any time or from time to time with
or without cause if such removal is approved by the holders of a majority of the
shares of Common Stock outstanding.
SEVENTH: The Corporation shall have the right to redeem or convert to a
fixed income security all or any part of the Common Stock owned by any person
required to be approved by the Board of Directors of the New York Stock
Exchange, Inc. as a member, allied member or approved person who fails or ceases
to be so approved as may be necessary to reduce such party's ownership of the
Common Stock below that level which enables such party to exercise controlling
influence over the management or policies of the Corporation.
EIGHTH: No dividend shall be declared or paid which shall impair the
capital of the Corporation nor shall any distribution of assets be made to any
stockholder unless the value of the assets of the Corporation remaining after
such payment or distribution is at least equal to the aggregate of its debts and
liabilities, including capital.
<PAGE>
IN WITNESS WHEREOF, the Restated Certificate of Incorporation has been
executed as of this 7th day of August, 1990 on behalf of Kemper Capital Markets,
Inc. by the Chairman of the Corporation and attested by the Secretary of the
Corporation.
KEMPER CAPITAL MARKETS, INC.
/s/ James R. Boris
ATTEST: By:___________________________
James R. Boris
/s/ Kathleen A. Gallichio Chairman and Chief
______________________________ Executive Officer
Kathleen A. Gallichio
Secretary
C:5811K
<PAGE>
RESTATED
CERTIFICATE OF INCORPORATION
OF
KEMPER CAPITAL MARKETS, INC.
KEMPER CAPITAL MARKETS, INC. (the "Corporation"), a corporation organized
and existing under and by virtue of the General Corporation Law of the State of
Delaware,
DOES HEREBY CERTIFY:
FIRST: That the Corporation's original Certificate of Incorporation was
filed in the Office of the Secretary of State of the State of Delaware on
November 13, 1986.
SECOND: That this Restated Certificate of Incorporation has been duly
adopted in accordance with the provisions of Section 242(b)(2) and Section
245(b) of the General Corporation Law of the State of Delaware, and to the
extent compliance with Section 242(b)(2) was effected without a meeting by less
than unanimous written consent in accordance with Section 228(a) of the General
Corporation Law of the State of Delaware, written consent was given in
accordance with the provisions of Section 228(a) and written notice has been
given to those stockholders who have not consented in writing in accordance with
Section 228(d) of the General Corporation Law of the State of Delaware.
THIRD: That the Restated Certificate of Incorporation of the Corporation,
set forth hereinbelow in Paragraph FOURTH, amends the Corporation's Certificate
of Incorporation so as to:
(i) change the Corporation's name to "KEMPER SECURITIES GROUP, INC.";
(ii) increase the Corporation's authorized capital stock to 10,000 shares
of Common Stock, with a par value of $.01 per share; and
(iii) delete current Articles SEVENTH and EIGHTH which reference the name
and address of the incorporator and the constitution of the initial
board of directors, respectively, and replace such Articles with new
Articles SEVENTH and EIGHTH containing provisions required of a
corporation seeking admission as a member of the New York Stock
Exchange, Inc.
FOURTH: That the text of the Corporation's Restated Certificate of
Incorporation is hereby restated and integrated and amended to read in its
entirety as follows:
<PAGE>
CERTIFICATE OF MERGER
OF
BOETTCHER & COMPANY, INC.
WITH AND INTO
KEMPER SECURITIES GROUP, INC.
KEMPER SECURITIES GROUP, INC., a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware, pursuant to the
provisions of Section 251 of the General Corporation Law of the State of
Delaware, DOES HEREBY CERTIFY:
FIRST: The names of the constituent corporations and the states of their
respective incorporation are as follows:
NAME OF CORPORATION STATE
------------------- -----
Kemper Securities Group, Inc. Delaware
Boettcher & Company, Inc. Delaware
SECOND: The name of the surviving corporation is KEMPER SECURITIES GROUP,
INC. and it shall be governed by the laws of the State of Delaware.
THIRD: The following Agreement and Plan of Merger was approved by the
Board of Directors and by the sole stockholder of Kemper Securities Group, Inc.
in the manner prescribed by Section 251(b) and Section 251(c), respectively, of
the General Corporation Law of the State of Delaware, on August 29, 1990 and
August 30, 1990, respectively; and was approved by the Board of Directors and by
the sole stockholder of Boettcher & Company, Inc. in the manner prescribed by
Section 251(b) and Section 251(c), respectively, of the General Corporation Law
of the State of Delaware, on August 29, 1990 and August 30, 1990, respectively:
<PAGE>
FOURTH: The Restated Certificate of Incorporation of Kemper Securities
Group, Inc. shall, without amendment, be the Restated Certificate of
Incorporation of the surviving corporation.
FIFTH: The executed Agreement and Plan of Merger is on file at the
principal place of business of the surviving corporation at 120 South LaSalle
Street, Chicago, Illinois 60603.
SIXTH: A copy of the Agreement and Plan of Merger will be furnished by the
surviving corporation, on request and without cost, to any stockholder of
any constituent corporation.
IN WITNESS WHEREOF, this Certificate of Merger has been executed as of this
31st day of August, 1990 on behalf of Kemper Securities Group, Inc. by the
Chairman of said corporation and attested by the Secretary of said corporation,
who do hereby affirm, under penalties of perjury, that the foregoing
Certificate is the act and deed of the corporation and that the facts stated
therein are true.
KEMPER SECURITIES GROUP, INC.
By: /s/ James R. Boris
--------------------------
James R. Boris
Chairman and Chief
Executive Officer
ATTEST:
/s/ Kathleen A. Gallichio
- -------------------------
Kathleen A. Gallichio
Secretary
<PAGE>
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of August 31, 1990, pursuant to Section
251 of the General Corporation Law of the State of Delaware, between Kemper
Securities Group, Inc., a Delaware corporation (hereinafter referred to as
"Kemper" or the "Surviving Corporation") and Boettcher & Company Inc., a
Delaware corporation ("Boettcher"), (Kemper and Boettcher being herein sometimes
collectively referred to as the "Constituent Corporations" or individually as a
"Constituent Corporation").
WITNESSETH THAT:
WHEREAS, the Boards of Directors of the Constituent Corporations deem it
advisable and in the best interests of the Constituent Corporations and in the
best interests of the respective sole stockholders of the Constituent
Corporations that Boettcher merge with and into Kemper pursuant to this
Agreement and Plan of Merger (herein sometimes referred to as the "Merger"), as
hereinafter specified;
WHEREAS, Boettcher was incorporated under the laws of the State of Delaware on
December 6, 1983 and has authorized capital stock consisting of 1,000 shares of
Common Stock, $1.00 par value per share, of which 100 shares of Common Stock
are now issued and outstanding ("Boettcher Common Stock");
WHEREAS, Kemper was incorporated under the laws of the State of Delaware
on November 13, 1986, and has authorized capital stock consisting of 10,000
shares of Common Stock, par value $.01 per share ("Kemper Common Stock"), of
which 100 shares are now issued and outstanding;
WHEREAS, the registered office of Boettcher in the State of Delaware is located
at 1209 Orange Street, in the City of Wilmington, County of New Castle, and the
name of the registered agent at such address is The Corporation Trust Company;
WHEREAS, the registered office of Kemper in the State of Delaware is located at
1209 Orange Street, in the City of Wilmington, County of New Castle, and the
name of the registered agent at such address is The Corporation Trust Company;
WHEREAS, all of the issued and outstanding shares of Common Stock of Boettcher
are owned beneficially and of record by Boettcher Investment Corporation, a
Delaware corporation; and
WHEREAS, all of the issued and outstanding shares of Common Stock of Kemper are
owned beneficially and of record by Kemper Securities Group, Holdings, Inc., a
Delaware corporation.
NOW THEREFORE, the Constituent Corporations agree as follows:
<PAGE>
ARTICLE I
1.01(a) The Merger shall become effective upon the later to occur of (i) the
filing of a Certificate of Merger with the Secretary of State of the State of
Delaware in accordance with Section 251 of the General Corporation Law of the
State of Delaware; or (ii) immediately after the close of business on August 31,
1990 (the "Effective Time of the Merger").
(b) At the Effective Time of the Merger, Boettcher shall be merged with and
into Kemper and the separate corporate existence of Boettcher shall thereupon
cease. Kemper shall be the surviving corporation in the Merger, and the separate
corporate existence of Kemper shall continue unaffected and unimpaired by the
Merger. From the effective time of the Merger, Boettcher shall conduct business
as a division of Kemper.
ARTICLE II
2.01 At the Effective Time of the Merger, the Restated Certificate of
Incorporation of Kemper shall, without amendment, be the Restated Certificate
of Incorporation of the Surviving Corporation, unless or until amended as
provided by law.
2.02 The By-laws of Kemper, as in effect at the Effective Time of the Merger,
shall continue in full force and effect as the By-laws of the Surviving
Corporation.
2.03 The directors and officers of Kemper, as in office at the Effective Time
of the Merger, shall continue as the directors and officers of the Surviving
Corporation.
ARTICLE III
3.01 At the Effective Time of the Merger, each share of Boettcher Common Stock
which is outstanding immediately prior to the Effective Time of the Merger shall
be converted into ten (10) shares of common stock, par value $.01 per share, of
the Surviving Corporation ("New Kemper Common"), (1,000 shares of New Kemper
Common in the aggregate).
3.02 After the Effective Time of the Merger, each holder of a certificate
representing outstanding shares of Boettcher Common Stock shall surrender the
same to Kemper and each such holder shall be entitled upon such surrender to
receive a certificate representing shares of New Kemper Common on the basis
provided herein. Until so represented, certificates representing the outstanding
shares of Boettcher Common Stock converted into New Kemper Common as provided
herein shall represent solely the right to receive shares of New Kemper Common
and the holders of such certificates shall have no further rights as
stockholders by virtue of such certificates.
3.03 At the Effective Time of the Merger, all the property, rights, privileges,
franchises, patents, trademarks, licenses,
<PAGE>
registrations and other assets of every kind and description and all liabilities
or obligations of every kind and description of Boettcher shall be transferred
to, vested in, devolve upon and/or be assumed by Kemper without further act or
deed.
ARTICLE IV
4.01 The respective obligations of each Constituent Corporation shall be
conditioned upon the approval and adoption of this Agreement and the Merger by
the requisite vote of the respective sole stockholders of Boettcher and Kemper
at or prior to the Effective Time of the Merger.
4.02 Anything herein or elsewhere to the contrary notwithstanding, this
Agreement and Plan of Merger may be terminated and abandoned by the board of
directors of either Constituent Corporation at any time prior to the date of
filing the Certificate of Merger with the Secretary of State of the State of
Delaware. This Agreement and Plan of Merger may be amended by the boards of
directors of either of the Constituent Corporations at any time prior to the
date of the filing of the Certificate of Merger with the Secretary of State of
the State of Delaware, provided that an amendment made subsequent to the
adoption of this Agreement and Plan of Merger by the respective sole
stockholders of either Boettcher or Kemper shall not (1) alter or change the
amount of or kinds of shares, securities, cash, property and/or rights to be
received in exchange for or on conversion of all or any of the shares or any
class or series thereof of such Constituent Corporation, (2) alter or change any
term of the Restated Certificate of Incorporation of the Surviving Corporation,
or (3) alter or change any of the terms and conditions of this Agreement and
Plan of Merger if such alteration or change would adversely affect the holders
of any class or series thereof of such Constituent Corporation.
IN WITNESS WHEREOF, the parties to this Agreement and Plan of Merger, pursuant
to the approval and authority given by resolutions adopted by their respective
boards of directors, have caused this Agreement and Plan of Merger to be
executed by an officer duly authorized and attested by the secretary of each
party hereto as the respective act, deed and agreement of each of said
corporations.
KEMPER SECURITIES GROUP, INC.
By: /s/ James R. Boris
------------------------------------
James R. Boris
Chairman and Chief Executive Officer
ATTEST:
By: /s/ Kathleen A. Gallichio
-----------------------------
Kathleen A. Gallichio
Secretary
<PAGE>
BOETTCHER & COMPANY, INC.
/s/ Thomas E. Meade
By:_______________________________
Thomas E. Meade
Chairman of the Board, President
and Chief Executive Officer
ATTEST:
/s/ William L. Wedum
By:___________________________
William L. Wedum
Secretary
<PAGE>
CERTIFICATE OF MERGER
OF
LOVETT UNDERWOOD NEUHAUS & WEBB, INC.
WITH AND INTO
KEMPER SECURITIES GROUP, INC.
KEMPER SECURITIES GROUP, INC., a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware, pursuant to the
provisions of Section 251 of the General Corporation Law of the State of
Delaware, DOES HEREBY CERTIFY:
FIRST: The names of the constituent corporations and the states of their
respective incorporation are as follows:
NAME OF CORPORATION STATE
------------------- -----
Kemper Securities Group, Inc. Delaware
Lovett Underwood Neuhaus & Webb, Inc. Delaware
SECOND: The name of the surviving corporation is KEMPER SECURITIES GROUP,
INC. and it shall be governed by the laws of the State of Delaware.
THIRD: The following Agreement and Plan of Merger was approved by the
Board of Directors and by the sole stockholder of Kemper Securities Group, Inc.
in the manner prescribed by Section 251(b) and Section 251(c), respectively, of
the General Corporation Law of the State of Delaware, on August 29, 1990 and
August 30, 1990, respectively; and was approved by the Board of Directors and by
the sole stockholder of Lovett Underwood Neuhaus & Webb, Inc. in the manner
prescribed by Section 251(b) and Section 251(c), respectively, of the General
Corporation Law of the State of Delaware, on August 29, 1990 and August 30,
1990, respectively:
<PAGE>
FOURTH: The Restated Certificate of Incorporation of Kemper Securities
Group, Inc. shall, without amendment, be the Restated Certificate of
Incorporation of the surviving corporation.
FIFTH: The executed Agreement and Plan of Merger is on file at the
principal place of business of the surviving corporation at 120 South LaSalle
Street, Chicago, Illinois 60603.
SIXTH: A copy of the Agreement and Plan of Merger will be furnished by the
surviving corporation, on request and without cost, to any stockholder of any
constituent corporation.
IN WITNESS WHEREOF, this Certificate of Merger has been executed as of this
31st day of August, 1990 on behalf of Kemper Securities Group, Inc. by the
Chairman of said corporation and attested by the Secretary of said corporation,
who do hereby affirm, under penalties of perjury, that the foregoing Certificate
is the act and deed of the corporation and that the facts stated therein are
true.
KEMPER SECURITIES GROUP, INC.
By: /s/ James R. Boris
---------------------------
James R. Boris
Chairman and Chief
Executive Officer
ATTEST:
/s/ Kathleen A. Gallichio
- ---------------------------
Kathleen A. Gallichio
Secretary
<PAGE>
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of August 31, 1990, pursuant to Section
251 of the General Corporation Law of the State of Delaware, between Kemper
Securities Group, Inc., a Delaware corporation (hereinafter referred to as
"Kemper" or the "Surviving Corporation") and Lovett Underwood Neuhaus & Webb,
Inc., a Delaware corporation ("LUNW"), (Kemper and LUNW being herein sometimes
collectively referred to as the "Constituent Corporations" or individually as a
"Constituent Corporation").
WITNESSETH THAT:
WHEREAS, the Boards of Directors of the Constituent Corporations deem it
advisable and in the best interests of the Constituent Corporations and in the
best interests of the respective sole stockholders of the Constituent
Corporations that LUNW merge with and into Kemper pursuant to this Agreement and
Plan of Merger (herein sometimes referred to as the "Merger"), as hereinafter
specified;
WHEREAS, LUNW was incorporated under the laws of the State of Delaware on May
31, 1988 and has authorized capital stock consisting of 1,000 shares of Common
Stock, of no par value, of which 1,000 shares of Common Stock are now issued and
outstanding ("LUNW Common Stock");
WHEREAS, Kemper has incorporated under the laws of the State of Delaware on
November 13, 1986, and has authorized capital stock consisting of 10,000 shares
of Common Stock, par value $.01 per share ("Kemper Common Stock"), of which
100 shares are now issued and outstanding;
WHEREAS, the registered office of LUNW in the State of Delaware is located at
1209 Orange Street, in the City of Wilmington, County of New Castle, and the
name of the registered agent at such address is The Corporation Trust Company;
WHEREAS, the registered office of Kemper in the State of Delaware is located at
1209 Orange Street, in the City of Wilmington, County of New Castle, and the
name of the registered agent at such address is The Corporation Trust Company;
WHEREAS, all of the issued and outstanding shares of Common Stock of LUNW are
owned beneficially and of record by LUNW Holdings, Inc., a Delaware corporation;
and
WHEREAS, all of the issued and outstanding shares of Common Stock of Kemper are
owned beneficially and of record by Kemper Securities Group Holdings, Inc., a
Delaware corporation.
NOW THEREFORE, the Constituent Corporations agree as follows:
<PAGE>
ARTICLE I
1.01(a) The Merger shall become effective upon the later to occur of (i) the
filing of a Certificate of Merger with the Secretary of State of the State of
Delaware in accordance with Section 251 of the General Corporation Law of the
State of Delaware; or (ii) immediately after the close of business on August 31,
1990 (the "Effective Time of the Merger").
(b) At the Effective Time of the Merger, LUNW shall be merged with and into
Kemper and the separate corporate existence of LUNW shall thereupon cease.
Kemper shall be the surviving corporation in the Merger, and the separate
corporate existence of Kemper shall continue unaffected and unimpaired by the
Merger. From the Effective Time of the Merger, LUNW shall conduct business as a
division of Kemper.
ARTICLE II
2.01 At the Effective Time of the Merger, the Restated Certificate of
Incorporation of Kemper shall, without amendment, be the Restated Certificate of
Incorporation of the Surviving Corporation, unless or until amended as provided
by law.
2.02 The By-laws of Kemper, as in effect at the Effective Time of the Merger,
shall continue in full force and effect as the By-laws of the Surviving
Corporation.
2.03 The directors and officers of Kemper, as in office at the Effective Time
of the Merger, shall continue as the directors and officers of the Surviving
Corporation.
ARTICLE III
3.01 At the Effective Time of the Merger, each share of LUNW Common Stock which
is outstanding immediately prior to the Effective Time of the Merger shall be
converted into one (1) share of common stock, par value $.01 per share, of the
Surviving Corporation ("New Kemper Common"), (1,000 shares of New Kemper Common
in the aggregate).
3.02 After the Effective Time of the Merger, each holder of a certificate
representing outstanding shares of LUNW Common Stock shall surrender the same of
Kemper and each such holder shall be entitled upon such surrender to receive a
certificate representing shares of New Kemper Common on the basis provided
herein. Until so surrendered, certificates representing the outstanding shares
of LUNW Common Stock converted into New Kemper Common as provided herein shall
represent solely the right to receive shares of New Kemper Common and the
holders of such certificates shall have no further rights as stockholders by
virtue of such certificates.
3.03 At the Effective Time of the Merger, all the property, rights, privileges,
franchises, patents, trademarks, licenses,
<PAGE>
registrations and other assets of every kind and description and all liabilities
or obligations of every kind and description of LUNW shall be transferred to,
vested in, devolve upon and/or be assumed by Kemper without further act or deed.
ARTICLE IV
4.01 The respective obligations of each Constituent Corporation shall be
conditioned upon the approval and adoption of this Agreement and the Merger by
the requisite vote of the respective sole stockholders of LUNW and Kemper at or
prior to the Effective Time of the Merger.
4.02 Anything herein or elsewhere to the contrary notwithstanding, this
Agreement and Plan of Merger may be terminated and abandoned by the board of
directors of either Constituent Corporation at any time prior to the date of
filing the Certificate of Merger with the Secretary of State of the State of
Delaware. This Agreement and Plan of Merger may be amended by the boards of
directors of either of the Constituent Corporations at any time prior to the
date of the filing of the Certificate of Merger with the Secretary of State of
the State of Delaware, provided that an amendment made subsequent to the
adoption of this Agreement and Plan of Merger by the respective sole
stockholders of either LUNW or Kemper shall not (1) alter or change the amount
of or kinds of shares, securities, cash, property and/or rights to be received
in exchange for or on conversion of all or any of the shares or any class or
series thereof of such Constituent Corporation, (2) alter or change any term
of the Restated Certificate of Incorporation of the Surviving Corporation, or
(3) alter or change any of the terms and conditions of this Agreement and Plan
of Merger if such alteration or change would adversely affect the holders of
any class or series thereof of such Constituent Corporation.
IN WITNESS WHEREOF, the parties to this Agreement and Plan of Merger, pursuant
to the approval and authority given by resolutions adopted by their respective
boards of directors, have caused this Agreement and Plan of Merger to be
executed by an officer duly authorized and attested by the secretary of each
party hereto as the respective act, deed and agreement of each of said
corporations.
KEMPER SECURITIES GROUP, INC.
By: /s/ James R. Boris
------------------------------------
James R. Boris
Chairman and Chief Executive Officer
ATTEST:
By: /s/ Kathleen A. Gallichio
-----------------------------
Kathleen A. Gallichio
Secretary
<PAGE>
LOVETT UNDERWOOD NEUHAUS & WEBB, INC.
By: /s/ Richard C. Webb
-------------------------------------
Richard C. Webb
Chairman of the Board
and Chief Executive Officer
ATTEST:
By: /s/ R. Dwayne Whitehead
----------------------------
R. Dwayne Whitehead
Secretary
<PAGE>
CERTIFICATE OF MERGER
OF
PRESCOTT, BALL & TURBEN, INC.
WITH AND INTO
KEMPER SECURITIES GROUP, INC.
KEMPER SECURITIES GROUP, INC., a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware, pursuant to the
provisions of Section 251 of the General Corporation Law of the State of
Delaware, DOES HEREBY CERTIFY:
FIRST: The names of the constituent corporations and the states of their
respective incorporation are as follows:
NAME OF CORPORATION STATE
------------------- -----
Kemper Securities Group, Inc. Delaware
Prescott, Ball & Turben, Inc. Delaware
SECOND: The name of the surviving corporation is KEMPER SECURITIES GROUP,
INC. and it shall be governed by the laws of the State of Delaware.
THIRD: The following Agreement and Plan of Merger was approved by the
Board of Directors and by the sole stockholder of Kemper Securities Group, Inc.
in the manner prescribed by Section 251(b) and Section 251(c), respectively, of
the General Corporation Law of the State of Delaware, on August 29, 1990 and
August 30, 1990, respectively; and was approved by the Board of Directors and by
the sole stockholder of Prescott, Ball & Turben, Inc. in the manner prescribed
by Section 251(b) and Section 251(c), respectively, of the General Corporation
Law of the State of Delaware, on August 28, 1990 and August 30, 1990,
respectively:
<PAGE>
FOURTH: The Restated Certificate of Incorporation of Kemper Securities
Group, Inc. shall, without amendment, be the Restated Certificate of
Incorporation of the surviving corporation.
FIFTH: The executed Agreement and Plan of Merger is on file at the
principal place of business of the surviving corporation at 120 South LaSalle
Street, Chicago, Illinois 60603.
SIXTH: A copy of the Agreement and Plan of Merger will be furnished by the
surviving corporation, on request and without cost, to any stockholder of any
constituent corporation.
IN WITNESS WHEREOF, this Certificate of Merger has been executed as of this
31st day of August, 1990 on behalf of Kemper Securities Group, Inc. by the
Chairman of said corporation and attested by the Secretary of said corporation,
who do hereby affirm, under penalties of perjury, that the foregoing Certificate
is the act and deed of the corporation and that the facts stated therein are
true.
KEMPER SECURITIES GROUP, INC.
By: /s/ James R. Boris
---------------------------
James R. Boris
Chairman and Chief
Executive Officer
ATTEST:
/s/ Kathleen A. Gallichio
- ---------------------------
Kathleen A. Gallichio
Secretary
<PAGE>
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of August 31, 1990, pursuant to Section
251 of the General Corporation Law of the State of Delaware, between Kemper
Securities Group, Inc., a Delaware corporation (hereinafter referred to as
"Kemper" or the "Surviving Corporation") and Prescott, Ball & Turben, Inc., a
Delaware corporation ("PBT"), (Kemper and PBT being herein sometimes
collectively referred to as the "Constituent Corporations" or individually as a
"Constituent Corporation").
WITNESSETH THAT:
WHEREAS, the Boards of Directors of the Constituent Corporations deem it
advisable and in the best interests of the Constituent Corporations and in the
best interests of the respective sole stockholders of the Constituent
Corporations that PBT merge with and into Kemper pursuant to this Agreement and
Plan of Merger (herein sometimes referred to as the "Merger"), as hereinafter
specified;
WHEREAS, PBT was incorporated under the laws of the State of Delaware on October
13, 1982 and has authorized capital stock consisting of 1,000 shares of Common
Stock, of no par value, of which 1,000 shares of Common Stock are now issued and
outstanding ("PBT Common Stock");
WHEREAS, Kemper has incorporated under the laws of the State of Delaware on
November 13, 1986, and has authorized capital stock consisting of 10,000 shares
of Common Stock, par value $.01 per share ("Kemper Common Stock"), of which
100 shares are now issued and outstanding;
WHEREAS, the registered office of PBT in the State of Delaware is located at
1209 Orange Street, in the City of Wilmington, County of New Castle, and the
name of the registered agent at such address is The Corporation Trust Company;
WHEREAS, the registered office of Kemper in the State of Delaware is located at
1209 Orange Street, in the City of Wilmington, County of New Castle, and the
name of the registered agent at such address is The Corporation Trust Company;
WHEREAS, all of the issued and outstanding shares of Common Stock of PBT are
owned beneficially and of record by Prescott Holdings, Inc., a Delaware
corporation; and
WHEREAS, all of the issued and outstanding shares of Common Stock of Kemper are
owned beneficially and of record by Kemper Securities Group Holdings, Inc., a
Delaware corporation.
NOW THEREFORE, the Constituent Corporations agree as follows:
<PAGE>
ARTICLE I
1.01(a) The Merger shall become effective upon the later to occur of (i) the
filing of a Certificate of Merger with the Secretary of State of the State of
Delaware in accordance with Section 251 of the General Corporation Law of the
State of Delaware; or (ii) immediately after the close of business on August 31,
1990 (the "Effective Time of the Merger").
(b) At the Effective Time of the Merger, PBT shall be merged with and into
Kemper and the separate corporate existence of PBT shall thereupon cease.
Kemper shall be the surviving corporation in the Merger, and the separate
corporate existence of Kemper shall continue unaffected and unimpaired by the
Merger. From the Effective Time of the Merger, PBT shall conduct business as a
division of Kemper.
ARTICLE II
2.01 At the Effective Time of the Merger, the Restated Certificate of
Incorporation of Kemper shall, without amendment, be the Restated Certificate of
Incorporation of the Surviving Corporation, unless or until amended as provided
by law.
2.02 The By-laws of Kemper, as in effect at the Effective Time of the Merger,
shall continue in full force and effect as the By-laws of the Surviving
Corporation.
2.03 The directors and officers of Kemper, as in office at the Effective Time
of the Merger, shall continue as the directors and officers of the Surviving
Corporation.
ARTICLE III
3.01 At the Effective Time of the Merger, each share of PBT Common Stock which
is outstanding immediately prior to the Effective Time of the Merger shall be
converted into one (1) share of common stock, par value $.01 per share, of the
Surviving Corporation ("New Kemper Common"), (1,000 shares of New Kemper Common
in the aggregate).
3.02 After the Effective Time of the Merger, each holder of a certificate
representing outstanding shares of PBT Common Stock shall surrender the same of
Kemper and each such holder shall be entitled upon such surrender to receive a
certificate representing shares of New Kemper Common on the basis provided
herein. Until so surrendered, certificates representing the outstanding shares
of PBT Common Stock converted into New Kemper Common as provided herein shall
represent solely the right to receive shares of New Kemper Common and the
holders of such certificates shall have no further rights as stockholders by
virtue of such certificates.
3.03 At the Effective Time of the Merger, all the property, rights, privileges,
franchises, patents, trademarks, licenses,
<PAGE>
registrations and other assets of every kind and description and all liabilities
or obligations of every kind and description of PBT shall be transferred to,
vested in, devolve upon and/or be assumed by Kemper without further act or deed.
ARTICLE IV
4.01 The respective obligations of each Constituent Corporation shall be
conditioned upon the approval and adoption of this Agreement and the Merger by
the requisite vote of the respective sole stockholders of PBT and Kemper at or
prior to the Effective Time of the Merger.
4.02 Anything herein or elsewhere to the contrary notwithstanding, this
Agreement and Plan of Merger may be terminated and abandoned by the board of
directors of either Constituent Corporation at any time prior to the date of
filing the Certificate of Merger with the Secretary of State of the State of
Delaware. This Agreement and Plan of Merger may be amended by the boards of
directors of either of the Constituent Corporations at any time prior to the
date of the filing of the Certificate of Merger with the Secretary of State of
the State of Delaware, provided that an amendment made subsequent to the
adoption of this Agreement and Plan of Merger by the respective sole
stockholders of either PBT or Kemper shall not (1) alter or change the amount
of or kinds of shares, securities, cash, property and/or rights to be received
in exchange for or on conversion of all or any of the shares or any class or
series thereof of such Constituent Corporation, (2) alter or change any term
of the Restated Certificate of Incorporation of the Surviving Corporation, or
(3) alter or change any of the terms and conditions of this Agreement and Plan
of Merger if such alteration or change would adversely affect the holders of
any class or series thereof of such Constituent Corporation.
IN WITNESS WHEREOF, the parties to this Agreement and Plan of Merger, pursuant
to the approval and authority given by resolutions adopted by their respective
boards of directors, have caused this Agreement and Plan of Merger to be
executed by an officer duly authorized and attested by the secretary of each
party hereto as the respective act, deed and agreement of each of said
corporations.
KEMPER SECURITIES GROUP, INC.
By: /s/ James R. Boris
------------------------------------
James R. Boris
Chairman and Chief Executive Officer
ATTEST:
By: /s/ Kathleen A. Gallichio
-----------------------------
Kathleen A. Gallichio
Secretary
<PAGE>
PRESCOTT, BALL & TURBEN, INC.
By: /s/ Lawrence G. Kirshbaum
-------------------------------------
Lawrence G. Kirshbaum
Chairman of the Board, President
and Chief Executive Officer
ATTEST:
By: /s/ Robert Shiffra
----------------------------
Robert Shiffra
Secretary
<PAGE>
CERTIFICATE OF MERGER
OF
BATEMAN EICHLER, HILL RICHARDS, INCORPORATED
WITH AND INTO
KEMPER SECURITIES GROUP, INC.
KEMPER SECURITIES GROUP, INC., a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware, pursuant to the
provisions of Section 251 of the General Corporation Law of the State of
Delaware, DOES HEREBY CERTIFY:
FIRST: The names of the constituent corporations and the states of their
respective incorporation are as follows:
NAME OF CORPORATION STATE
------------------- -----
Kemper Securities Group, Inc. Delaware
Bateman Eichler, Hill Richards, Delaware
Incorporated
SECOND: The name of the surviving corporation is KEMPER SECURITIES GROUP,
INC. and it shall be governed by the laws of the State of Delaware.
THIRD: The following Agreement and Plan of Merger was approved by the
Board of Directors and by the sole stockholder of Kemper Securities Group, Inc.
in the manner prescribed by Section 251(b) and Section 251(c), respectively, of
the General Corporation Law of the State of Delaware, on August 29, 1990 and
August 30, 1990, respectively; and was approved by the Board of Directors and by
the sole stockholder of Bateman Eichler, Hill Richards, Incorporated in the
manner prescribed by Section 251(b) and Section 251(c), respectively, of the
General Corporation Law of the State of Delaware, on August 28, 1990 and August
30, 1990, respectively:
<PAGE>
FOURTH: The Restated Certificate of Incorporation of Kemper Securities
Group, Inc. shall, without amendment, be the Restated Certificate of
Incorporation of the surviving corporation.
FIFTH: The executed Agreement and Plan of Merger is on file at the
principal place of business of the surviving corporation at 120 South LaSalle
Street, Chicago, Illinois 60603.
SIXTH: A copy of the Agreement and Plan of Merger will be furnished by the
surviving corporation, on request and without cost, to any stockholder of any
constituent corporation.
IN WITNESS WHEREOF, this Certificate of Merger has been executed as of this
31st day of August, 1990 on behalf of Kemper Securities Group, Inc. by the
Chairman of said corporation and attested by the Secretary of said corporation,
who do hereby affirm, under penalties of perjury, that the foregoing Certificate
is the act and deed of the corporation and that the facts stated therein are
true.
KEMPER SECURITIES GROUP, INC.
By: /s/ James R. Boris
---------------------------
James R. Boris
Chairman and Chief
Executive Officer
ATTEST:
/s/ Kathleen A. Gallichio
- ---------------------------
Kathleen A. Gallichio
Secretary
<PAGE>
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of August 31, 1990, pursuant to Section
251 of the General Corporation Law of the State of Delaware, between Kemper
Securities Group, Inc., a Delaware corporation (hereinafter referred to as
"Kemper" or the "Surviving Corporation") and Bateman Eichler, Hill Richards,
Incorporated, a Delaware corporation ("BEHR"), (Kemper and BEHR being herein
sometimes collectively referred to as the "Constituent Corporations" or
individually as a "Constituent Corporation").
WITNESSETH THAT:
WHEREAS, the Boards of Directors of the Constituent Corporations deem it
advisable and in the best interests of the Constituent Corporations and in the
best interests of the respective sole stockholders of the Constituent
Corporations that BEHR merge with and into Kemper pursuant to this Agreement and
Plan of Merger (herein sometimes referred to as the "Merger"), as hereinafter
specified;
WHEREAS, BEHR was incorporated under the laws of the State of Delaware on April
22, 1982 and has authorized capital stock consisting of 1,000 shares of Common
Stock, $5.00 par value per share, of which 1,000 shares of Common Stock are
now issued and outstanding ("BEHR Common Stock");
WHEREAS, Kemper has incorporated under the laws of the State of Delaware on
November 13, 1986, and has authorized capital stock consisting of 10,000 shares
of Common Stock, par value $.01 per share ("Kemper Common Stock"), of which
100 shares are now issued and outstanding;
WHEREAS, the registered office of BEHR in the State of Delaware is located at
1209 Orange Street, in the City of Wilmington, County of New Castle, and the
name of the registered agent at such address is The Corporation Trust Company;
WHEREAS, the registered office of Kemper in the State of Delaware is located at
1209 Orange Street, in the City of Wilmington, County of New Castle, and the
name of the registered agent at such address is The Corporation Trust Company;
WHEREAS, all of the issued and outstanding shares of Common Stock of BEHR are
owned beneficially and of record by Batehill, Inc., a Delaware corporation;
and
WHEREAS, all of the issued and outstanding shares of Common Stock of Kemper are
owned beneficially and of record by Kemper Securities Group Holdings, Inc., a
Delaware corporation.
NOW THEREFORE, the Constituent Corporations agree as follows:
<PAGE>
ARTICLE I
1.01(a) The Merger shall become effective upon the later to occur of (i) the
filing of a Certificate of Merger with the Secretary of State of the State of
Delaware in accordance with Section 251 of the General Corporation Law of the
State of Delaware; or (ii) immediately after the close of business on August 31,
1990 (the "Effective Time of the Merger").
(b) At the Effective Time of the Merger, BEHR shall be merged with and into
Kemper and the separate corporate existence of BEHR shall thereupon cease.
Kemper shall be the surviving corporation in the Merger, and the separate
corporate existence of Kemper shall continue unaffected and unimpaired by the
Merger. From the Effective Time of the Merger, BEHR shall conduct business as a
division of Kemper.
ARTICLE II
2.01 At the Effective Time of the Merger, the Restated Certificate of
Incorporation of Kemper shall, without amendment, be the Restated Certificate of
Incorporation of the Surviving Corporation, unless or until amended as provided
by law.
2.02 The By-laws of Kemper, as in effect at the Effective Time of the Merger,
shall continue in full force and effect as the By-laws of the Surviving
Corporation.
2.03 The directors and officers of Kemper, as in office at the Effective Time
of the Merger, shall continue as the directors and officers of the Surviving
Corporation.
ARTICLE III
3.01 At the Effective Time of the Merger, each share of BEHR Common Stock which
is outstanding immediately prior to the Effective Time of the Merger shall be
converted into one (1) share of common stock, par value $.01 per share, of the
Surviving Corporation ("New Kemper Common"), (1,000 shares of New Kemper Common
in the aggregate).
3.02 After the Effective Time of the Merger, each holder of a certificate
representing outstanding shares of BEHR Common Stock shall surrender the same to
Kemper and each such holder shall be entitled upon such surrender to receive a
certificate representing shares of New Kemper Common on the basis provided
herein. Until so surrendered, certificates representing the outstanding shares
of BEHR Common Stock converted into New Kemper Common as provided herein shall
represent solely the right to receive shares of New Kemper Common and the
holders of such certificates shall have no further rights as stockholders by
virtue of such certificates.
3.03 At the Effective Time of the Merger, all the property, rights, privileges,
franchises, patents, trademarks, licenses,
<PAGE>
registrations and other assets of every kind and description and all liabilities
or obligations of every kind and description of BEHR shall be transferred to,
vested in, devolve upon and/or be assumed by Kemper without further act or deed.
ARTICLE IV
4.01 The respective obligations of each Constituent Corporation shall be
conditioned upon the approval and adoption of this Agreement and the Merger by
the requisite vote of the respective sole stockholders of BEHR and Kemper at or
prior to the Effective Time of the Merger.
4.02 Anything herein or elsewhere to the contrary notwithstanding, this
Agreement and Plan of Merger may be terminated and abandoned by the board of
directors of either Constituent Corporation at any time prior to the date of
filing the Certificate of Merger with the Secretary of State of the State of
Delaware. This Agreement and Plan of Merger may be amended by the boards of
directors of either of the Constituent Corporations at any time prior to the
date of the filing of the Certificate of Merger with the Secretary of State of
the State of Delaware, provided that an amendment made subsequent to the
adoption of this Agreement and Plan of Merger by the respective sole
stockholders of either BEHR or Kemper shall not (1) alter or change the amount
of or kinds of shares, securities, cash, property and/or rights to be received
in exchange for or on conversion of all or any of the shares or any class or
series thereof of such Constituent Corporation, (2) alter or change any term
of the Restated Certificate or Incorporation of the Surviving Corporation, or
(3) alter or change any of the terms and conditions of this Agreement and Plan
of Merger if such alteration or change would adversely affect the holders of
any class or series thereof of such Constituent Corporation.
IN WITNESS WHEREOF, the parties to this Agreement and Plan of Merger, pursuant
to the approval and authority given by resolutions adopted by their respective
boards of directors, have caused this Agreement and Plan of Merger to be
executed by an officer duly authorized and attested by the secretary of each
party hereto as the respective act, deed and agreement of each of said
corporations.
KEMPER SECURITIES GROUP, INC.
By: /s/ James R. Boris
------------------------------------
James R. Boris
Chairman and Chief Executive Officer
ATTEST:
By: /s/ Kathleen A. Gallichio
-----------------------------
Kathleen A. Gallichio
Secretary
<PAGE>
BATEMAN EICHLER, HILL RICHARDS, INCORPORATED
By: /s/ Allan L. Sher
-------------------------------------
Allan L. Sher
Chairman of the Board, President
and Chief Executive Officer
ATTEST:
By: /s/ William H. Phelps
----------------------------
William H. Phelps
Secretary
<PAGE>
CERTIFICATE OF MERGER
OF
BLUNT ELLIS & LOEWI INCORPORATED
WITH AND INTO
KEMPER SECURITIES GROUP, INC.
KEMPER SECURITIES GROUP, INC., a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware, pursuant to the
provisions of Section 251 of the General Corporation Law of the State of
Delaware, DOES HEREBY CERTIFY:
FIRST: The names of the constituent corporations and the states of their
respective incorporation are as follows:
NAME OF CORPORATION STATE
------------------- -----
Kemper Securities Group, Inc. Delaware
Blunt Ellis & Loewi Incorporated Delaware
SECOND: The name of the surviving corporation is KEMPER SECURITIES GROUP,
INC. and it shall be governed by the laws of the State of Delaware.
THIRD: The following Agreement and Plan of Merger was approved by the
Board of Directors and by the sole stockholder of Kemper Securities Group, Inc.
in the manner prescribed by Section 251(b) and Section 251(c), respectively, of
the General Corporation Law of the State of Delaware, on August 29, 1990 and
August 30, 1990, respectively; and was approved by the Board of Directors and by
the sole stockholder of Blunt Ellis & Loewi Incorporated in the manner
prescribed by Section 251(b) and Section 251(c), respectively, of the General
Corporation Law of the State of Delaware, on August 28, 1990 and August 30,
1990, respectively:
<PAGE>
FOURTH: The Restated Certificate of Incorporation of Kemper Securities
Group, Inc. shall, without amendment, be the Restated Certificate of
Incorporation of the surviving corporation.
FIFTH: The executed Agreement and Plan of Merger is on file at the
principal place of business of the surviving corporation at 120 South LaSalle
Street, Chicago, Illinois 60603.
SIXTH: A copy of the Agreement and Plan of Merger will be furnished by the
surviving corporation, on request and without cost, to any stockholder of any
constituent corporation.
IN WITNESS WHEREOF, this Certificate of Merger has been executed as of this
31st day of August, 1990 on behalf of Kemper Securities Group, Inc. by the
Chairman of said corporation and attested by the Secretary of said corporation,
who do hereby affirm, under penalties of perjury, that the foregoing Certificate
is the act and deed of the corporation and that the facts stated therein are
true.
KEMPER SECURITIES GROUP, INC.
By: /s/ James R. Boris
---------------------------
James R. Boris
Chairman and Chief
Executive Officer
ATTEST:
/s/ Kathleen A. Gallichio
- ---------------------------
Kathleen A. Gallichio
Secretary
<PAGE>
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of August 31, 1990, pursuant to Section
251 of the General Corporation Law of the State of Delaware, between Kemper
Securities Group, Inc., a Delaware corporation (hereinafter referred to as
"Kemper" or the "Surviving Corporation") and Blunt Ellis & Loewi Incorporated,
a Delaware corporation ("BEL"), (Kemper and BEL being herein sometimes
collectively referred to as the "Constituent Corporations" or individually as a
"Constituent Corporation").
WITNESSETH THAT:
WHEREAS, the Boards of Directors of the Constituent Corporations deem it
advisable and in the best interests of the Constituent Corporations and in the
best interests of the respective sole stockholders of the Constituent
Corporations that BEL merge with and into Kemper pursuant to this Agreement and
Plan of Merger (herein sometimes referred to as the "Merger"), as hereinafter
specified;
WHEREAS, BEL was incorporated under the laws of the State of Delaware on
September 6, 1977 and has authorized capital stock consisting of 2,000 shares of
Common Stock, of no par value (but $1.00 per share stated value), of which 1,000
shares of Common Stock are now issued and outstanding ("BEL Common Stock");
WHEREAS, Kemper was incorporated under the laws of the State of Delaware on
November 13, 1986, and has authorized capital stock consisting of 10,000 shares
of Common Stock, par value $.01 per share ("Kemper Common Stock"), of which
100 shares are now issued and outstanding;
WHEREAS, the registered office of BEL in the State of Delaware is located at
1209 Orange Street, in the City of Wilmington, County of New Castle, and the
name of the registered agent at such address is The Corporation Trust Company;
WHEREAS, the registered office of Kemper in the State of Delaware is located at
1209 Orange Street, in the City of Wilmington, County of New Castle, and the
name of the registered agent at such address is The Corporation Trust Company;
WHEREAS, all of the issued and outstanding shares of Common Stock of BEL are
owned beneficially and of record by Loewi Financial Companies, Ltd., a Delaware
corporation; and
WHEREAS, all of the issued and outstanding shares of Common Stock of Kemper are
owned beneficially and of record by Kemper Securities Group Holdings, Inc., a
Delaware corporation.
NOW THEREFORE, the Constituent Corporations agree as follows:
<PAGE>
ARTICLE I
1.01(a) The Merger shall become effective upon the later to occur of (i) the
filing of a Certificate of Merger with the Secretary of State of the State of
Delaware in accordance with Section 251 of the General Corporation Law of the
State of Delaware; or (ii) immediately after the close of business on August 31,
1990 (the "Effective Time of the Merger").
(b) At the Effective Time of the Merger, BEL shall be merged with and into
Kemper and the separate corporate existence of BEL shall thereupon cease.
Kemper shall be the surviving corporation in the Merger, and the separate
corporate existence of Kemper shall continue unaffected and unimpaired by the
Merger. From the Effective Time of the Merger, BEL shall conduct business as a
division of Kemper.
ARTICLE II
2.01 At the Effective Time of the Merger, the Restated Certificate of
Incorporation of Kemper shall, without amendment, be the Restated Certificate of
Incorporation of the Surviving Corporation, unless or until amended as provided
by law.
2.02 The By-laws of Kemper, as in effect at the Effective Time of the Merger,
shall continue in full force and effect as the By-laws of the Surviving
Corporation.
2.03 The directors and officers of Kemper, as in office at the Effective Time
of the Merger, shall continue as the directors and officers of the Surviving
Corporation.
ARTICLE III
3.01 At the Effective Time of the Merger, each share of BEL Common Stock which
is outstanding immediately prior to the Effective Time of the Merger shall be
converted into one (1) share of common stock, par value $.01 per share, of the
Surviving Corporation ("New Kemper Common"), (1,000 shares of New Kemper Common
in the aggregate).
3.02 After the Effective Time of the Merger, each holder of a certificate
representing outstanding shares of BEL Common Stock shall surrender the same to
Kemper and each such holder shall be entitled upon such surrender to receive a
certificate representing shares of New Kemper Common on the basis provided
herein. Until so surrendered, certificates representing the outstanding shares
of BEL Common Stock converted into New Kemper Common as provided herein shall
represent solely the right to receive shares of New Kemper Common and the
holders of such certificates shall have no further rights as stockholders by
virtue of such certificates.
3.03 At the Effective Time of the Merger, all the property, rights, privileges,
franchises, patents, trademarks, licenses,
<PAGE>
registrations and other assets of every kind and description and all liabilities
or obligations of every kind and description of BEL shall be transferred to,
vested in, devolve upon and/or be assumed by Kemper without further act or deed.
ARTICLE IV
4.01 The respective obligations of each Constituent Corporation shall be
conditioned upon the approval and adoption of this Agreement and the Merger by
the requisite vote of the respective sole stockholders of BEL and Kemper at or
prior to the Effective Time of the Merger.
4.02 Anything herein or elsewhere to the contrary notwithstanding, this
Agreement and Plan of Merger may be terminated and abandoned by the board of
directors of either Constituent Corporation at any time prior to the date of
filing the Certificate of Merger with the Secretary of State of the State of
Delaware. This Agreement and Plan of Merger may be amended by the boards of
directors of either of the Constituent Corporations at any time prior to the
date of the filing of the Certificate of Merger with the Secretary of State of
the State of Delaware, provided that an amendment made subsequent to the
adoption of this Agreement and Plan of Merger by the respective sole
stockholders of either BEL or Kemper shall not (1) alter or change the amount
of or kinds of shares, securities, cash, property and/or rights to be received
in exchange for or on conversion of all or any of the shares or any class or
series thereof of such Constituent Corporation, (2) alter or change any term
of the Restated Certificate of Incorporation of the Surviving Corporation, or
(3) alter or change any of the terms and conditions of this Agreement and Plan
of Merger if such alteration or change would adversely affect the holders of
any class or series thereof of such Constituent Corporation.
IN WITNESS WHEREOF, the parties to this Agreement and Plan of Merger, pursuant
to the approval and authority given by resolutions adopted by their respective
boards of directors, have caused this Agreement and Plan of Merger to be
executed by an officer duly authorized and attested by the secretary of each
party hereto as the respective act, deed and agreement of each of said
corporations.
KEMPER SECURITIES GROUP, INC.
By: /s/ James R. Boris
------------------------------------
James R. Boris
Chairman and Chief Executive Officer
ATTEST:
By: /s/ Kathleen A. Gallichio
-----------------------------
Kathleen A. Gallichio
Secretary
<PAGE>
BLUNT ELLIS & LOEWI INCORPORATED
By: /s/ Jay B. Walters
-------------------------------------
Jay B. Walters
Chairman of the Board, President
and Chief Executive Officer
ATTEST:
By: /s/ Paul C. Bina
----------------------------
Paul C. Bina
Secretary
<PAGE>
CERTIFICATE OF MERGER
OF
LOEWI MANAGED ACCOUNT SERVICES INC.
WITH AND INTO
KEMPER SECURITIES GROUP, INC.
KEMPER SECURITIES GROUP, INC., a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware, pursuant to the
provisions of Section 251 of the General Corporation Law of the State of
Delaware, DOES HEREBY CERTIFY:
FIRST: The names of the constituent corporations and the states of their
respective incorporation are as follows:
NAME OF CORPORATION STATE
------------------- -----
Kemper Securities Group, Inc. Delaware
Loewi Managed Account Services Inc. Delaware
SECOND: The name of the surviving corporation is Kemper Securities Group,
Inc.
THIRD: On March 18, 1992, an Agreement and Plan of Merger between the
constituent corporations was approved, adopted, certified, executed and
acknowledged by each of the constituent corporations in accordance with the
requirements of Section 251 of the General Corporation Law of the State of
Delaware.
FOURTH: The Restated Certificate of Incorporation of Kemper Securities
Group, Inc. shall, without amendment, be the Restated Certificate of
Incorporation of the surviving corporation.
<PAGE>
FIFTH: The executed Agreement and Plan of Merger is on file at the
principal place of business of the surviving corporation at 333 W. Wacker
Drive, Chicago, Illinois 60606.
SIXTH: A copy of the Agreement and Plan of Merger will be furnished by the
surviving corporation, on request and without cost, to any stockholder of any
constituent corporation.
KEMPER SECURITIES GROUP, INC.
By: /s/ James R. Boris
---------------------------
James R. Boris
Chairman, President and
Chief Executive Officer
ATTEST:
/s/ Arthur J. McGivern
- ---------------------------
Arthur J. McGivern
Executive Vice President,
General Counsel and Secretary
<PAGE>
CERTIFICATE OF AMENDMENT
OF THE
RESTATED CERTIFICATE OF INCORPORATION
OF
KEMPER SECURITIES GROUP, INC.
KEMPER SECURITIES GROUP, INC. (the "Corporation"), a corporation organized
and existing under and by virtue of the General Corporation Law of the State of
Delaware,
DOES HEREBY CERTIFY:
FIRST: That the Corporation's original Certificate of Incorporation was
filed in the Office of the Secretary of State of the State of Delaware on
November 13, 1986.
SECOND: That the Board of Directors of the Corporation, at a meeting duly
held on May 15, 1992, adopted resolutions containing an amendment to the
Corporation's Restated Certificate of Incorporation and submitted said amendment
for the consideration of the Corporation's sole stockholder and recommended a
stockholder vote in favor thereof.
THIRD: That on May 15, 1992, the sole stockholder of the Corporation,
pursuant to Section 228 of the General Corporation Law of the State of
Delaware, consented to the adoption of the following resolution to amend the
Corporation's Restated Certificate of Incorporation:
RESOLVED, That the following amendment to the Corporation's Restated
Certificate of Incorporation to change the name of the Corporation is
hereby authorized and approved:
That Article FIRST of the Restated Certificate of Incorporation
shall be amended to read in its entirety as follows:
"FIRST: The name of the Corporation is Kemper Securities, Inc."
<PAGE>
FOURTH: That the foregoing amendment to the Corporation's Restated
Certificate of Incorporation has been duly adopted in accordance with Section
242(b) of the General Corporation Law of the State of Delaware.
FIFTH: That the foregoing amendment to the Corporation's Restated
Certificate of Incorporation shall become effective at 12:01 A.M. (Delaware
time) on July 1, 1992.
IN WITNESS WHEREOF, this Certificate of Amendment to the Restated
Certificate of Incorporation has been executed as of this 23rd day of June, 1992
on behalf of Kemper Securities Group, Inc. by the President thereof and has been
attested by the Secretary of the Corporation.
KEMPER SECURITIES GROUP, INC.
By: /s/ James R. Boris
---------------------------
James R. Boris
Chairman, President and
Chief Executive Officer
ATTEST:
/s/ Arthur J. McGivern
- ---------------------------
Arthur J. McGivern
Executive Vice President,
General Counsel and Secretary
<PAGE>
CERTIFICATE OF AMENDMENT
OF THE
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
KEMPER SECURITIES, INC.
Kemper Securities, Inc., a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware (the
"Corporation"), DOES HEREBY CERTIFY:
First: Article FIRST of the Amended and Restated Certificate of
Incorporation be, and it hereby is, amended to read as follows:
"FIRST: The name of the Corporation is EVEREN Securities, Inc."
Second: Pursuant to Section 242 of the Delaware General Corporation Law,
this Certificate of Amendment of the Amended and Restated Certificate of
Incorporation was duly adopted by the Board of Directors of the Corporation as
of July 26, 1995 and by the sole stockholder of the Corporation as of July
26, 1995.
Third: Pursuant to Section 103(d) of the General Corporation Law of the
State of Delaware, this Certificate of Amendment shall not become effective
until 11:59 p.m. (Delaware time) on September 13, 1995.
THE UNDERSIGNED, being Executive Vice President of the Corporation, for
the purpose of amending the Amended and Restated Certificate of Incorporation
of the Corporation pursuant to the General Corporation Law of the State of
Delaware, does make this Certificate, hereby declaring and certifying that this
is the act and deed of the Corporation and that the facts herein stated are
true, and accordingly have hereunto set my hand as of the 12th day of September,
1995.
KEMPER SECURITIES, INC.
By: /s/ Janet L. Sedlic
--------------------
Attest: /s/ Kenneth A. Kavanaugh
-------------------------
Assistant Secretary
<PAGE>
BY-LAWS
OF
KEMPER SECURITIES GROUP, INC.
Article I
Stockholders
Section 1.1. Annual Meeting. An annual meeting of stockholders shall be held
each year for the election of directors at such date, time and place either
within or without the State of Delaware as shall be designated by the Board of
Directors. Any other proper business may be transacted at the annual meeting of
stockholders.
Section 1.2. Special Meetings. Special meetings of stockholders may be called
at any time by the Board of Directors, the Chairman, if any, the Vice Chairman,
if any, or the President and shall be called by the Chairman or the Secretary at
the request, in writing, stating the purpose or purposes of the meeting, of
stockholders who hold a majority of the outstanding shares of each class of
capital stock entitled to vote at the meeting. Each special meeting shall be
held at such date, time and place either within or without the State of Delaware
as shall be designated by the person or persons calling such meeting at least
seven days prior to such meeting.
Section 1.3. Notice of Meetings. Unless otherwise provided by law, whenever
stockholders are required or permitted to take any action at a meeting, a
written notice of the meeting shall be given which shall state the date, time
and place of the meeting, and, in the case of a special meeting, the purpose or
purposes for which the meeting is called. Unless otherwise provided by law, the
written notice of any meeting shall be given not less than seven nor more than
sixty days before the date of the meeting to each stockholder
<PAGE>
entitled to vote at the meeting. If mailed, notice is given when deposited in
the United States mail, postage prepaid, directed to the stockholder at his
address as it appears on the records of the Corporation.
Section 1.4. Adjournments. Any meeting of stockholders, annual or special, may
adjourn from time to time to reconvene at the same or some other place, and
notice need not be given of any such adjourned meeting if the time and place
thereof are announced at the meeting at which the adjournment is taken. At the
adjourned meeting, the Corporation may transact any business which might have
been transacted at the original meeting. If the adjournment is for more than
thirty days, or if after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
Section 1.5. Quorum. Unless otherwise provided by law or the certificate of
incorporation, at each meeting of stockholders, the presence in person or
representation by proxy of the holders of a majority of the outstanding shares
of each class of capital stock entitled to vote at the meeting shall constitute
a quorum for the transaction of business. For purposes of the foregoing, two or
more classes or series of capital stock shall be considered a single class if
the holders thereof are entitled to vote together as a single class at the
meeting. In the absence of a quorum, the stockholders so present and represented
may, by vote of the holders of a majority of the shares of capital stock of the
Corporation so present and represented, adjourn the meeting from time to time
until a quorum shall attend, and the provisions of Section 1.4 of these by-laws
shall apply to each such adjournment. Shares of its own capital stock belonging
on the record date for the meeting to the Corporation or to
-2-
<PAGE>
another corporation, if a majority of the shares entitled to vote in the
election of directors of such other corporation is held, directly or indirectly,
by the Corporation, shall neither be entitled to vote nor be counted for quorum
purposes; provided, however, that the foregoing shall not limit the right of the
Corporation to vote stock, including but not limited to its own stock, held by
it in a fiduciary capacity.
Section 1.6. Organization. Meetings of stockholders shall be presided over by
the Chairman, if any, or in his absence by the President, or in the absence of
the foregoing persons by a chairman designated by the Board of Directors, or in
the absence of such designation by a chairman chosen at the meeting. The
Secretary shall act as secretary of the meeting, but in his absence the chairman
of the meeting may appoint any person to act as secretary of the meeting.
Section 1.7. Voting Proxies. Unless otherwise provided by the certificate of
incorporation, each stockholder entitled to vote at any meeting of stockholders
shall be entitled to one vote for each share of capital stock held by him which
has voting power on the subject matter submitted to a vote at the meeting. Each
stockholder entitled to vote at a meeting of stockholders or to express consent
or dissent to corporate action in writing without a meeting may authorize
another person or persons to act for him by proxy, but no such proxy shall be
voted or acted upon after three years from its date, unless the proxy provides
for a longer period. A duly executed proxy shall be irrevocable if it states
that it is irrevocable and if, and only as long as, it is coupled with an
interest sufficient in law to support an irrevocable power. A stockholder may
revoke any proxy which is not irrevocable by attending the meeting and voting in
person by filing an instrument in writing revoking the
-3-
<PAGE>
proxy or another duly executed proxy bering a later date with the Secretary
before the proxy is voted. Voting of stockholders need not be by written ballot
unless so determined at a stockholders' meeting by the vote of the holders of a
majority of the outstanding shares of each class of capital stock present in
person or represented by proxy at the meeting and entitled to vote on the
subject matter submitted to a vote at the meeting. Unless otherwise provided by
law or the certificate of incorporation, the vote of the holders of a majority
of the shares of capital stock of the Corporation present in person or
represented by proxy at a meeting at which a quorum is present and entitled to
vote on the subject matter submitted to a vote at the meeting shall be the act
of the stockholders.
Section 1.8. Fixing Date for Determination of Stockholders of Record. In order
that the Corporation may determine the stockholders entitled to notice of or to
vote at any meeting of stockholders or any adjournment thereof to express
consent to corporate action in writing without a meeting, or entitled to receive
payment of any dividend or other distribution or allotment of any rights, or
entitled to exercise any rights in respect of any change, conversion or exchange
of stock or for the purpose of any other lawful action, the Board of Directors
may fix, in advance, a record date, which shall not be more than sixty nor less
than ten days before the date of such meeting, nor more than sixty days prior to
any other action. If no record date is fixed: (a) the record date for
determining stockholders entitled to notice of or to vote at a meeting of
stockholders shall be at the close of business on the day next preceding the day
on which notice is given, or, if notice is waived, at the close of business on
the day next preceding the day on which the meeting is held; (b) the record date
for determining stockholders entitled to express
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consent to corporate action in writing without a meeting, when no prior action
by the Board of Directors is necessary, shall be the day on which the first
written consent is expressed; and (c) the record date for determining
stockholders for any other purpose shall be at the close of business on the day
on which the Board of Directors adopts the resolution relating thereto. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting; provided,
however, that the Board of Directors may fix a new record date for the adjourned
meeting.
Section 1.9. List of Stockholders Entitled to Vote. The Secretary shall
prepare and make, at least ten days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list shall be open to
the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten days prior to the
meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof and may be inspected by any stockholder who is present.
Section 1.10. Consent of Stockholders in Lieu of Meeting. Unless otherwise
provided by the certificate of incorporation, any action required by law to be
taken at any annual or special meeting of stockholders of the Corporation, or
any action which may be taken at any annual or special meeting of such
stockholders, may be taken without a meeting, without prior notice and without
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a vote, if a consent in writing, setting forth the action so taken, shall be
signed by the holders of outstanding stock having not less than the minimum
number of votes that would be necessary to authorize or take such action at a
meeting at which all shares entitled to vote thereon were present and voted.
Prompt notice of the taking of the corporate action without a meeting by less
than unanimous written consent shall be given to those stockholders who have not
consented in writing.
ARTICLE II
Board of Directors
Section 2.1. Powers; Number; Qualifications. Unless otherwise provided by law
or the certificate of incorporation, the business and affairs of the Corporation
shall be managed by or under the direction of the Board of Directors. Unless
otherwise provided by the certificate of incorporation, the Board of Directors
shall consist of such number of directors as the Board of Directors shall from
time to time designate. Unless otherwise provided by the certificate of
incorporation, directors need not be stockholders.
Section 2.2. Election; Term of Office; Resignation, Removal; Vacancies. Each
director shall hold office until his successor is elected and qualified or
until his earlier resignation or removal. Any director may resign at any time
upon written notice to the Corporation directed to the Board of Directors or
the Secretary. Such resignation shall take effect at the time specified therein,
and unless otherwise specified therein no acceptance of such resignation shall
be necessary to make it effective. Any directors or the entire Board of
Directors may be removed, with or without cause, by the vote of the holders of a
majority of shares of capital stock then entitled to vote at any
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election of directors. Unless otherwise provided by the certificate of
incorporation, vacancies and newly created directorships resulting from any
increase in the authorized number of directors elected by all of the
stockholders having a right to vote as a single class may be filed by the vote
of a majority of the directors then in office, although less than a quorum, or
by the vote of the sole remaining director.
Section 2.3. Regular Meetings. Regular meetings of the Board of Directors shall
be held at such dates, times and places either within or without the State of
Delaware as the Board of Directors shall from time to time determine.
Section 2.4. Special Meetings. Special meetings of the Board of Directors may
be called at any time by the Chairman, if any, the President or by any two
members of the Board of Directors. Each special meeting shall be held at such
date, time and place either within or without the State of Delaware as shall be
fixed by the person or persons calling the meeting.
Section 2.5. Notice of Meetings. Written notice of each meeting of the Board of
Directors shall be given which shall state the date, time and place of meeting.
The written notice of any meeting shall be given at least twenty-four hours in
advance of the meeting to each director. Notice may be given by letter,
telegram, or telex and shall be deemed to have been given when deposited in the
United States mail, delivered to the telegraph company or transmitted by telex,
as the case may be.
Section 2.6. Telephonic Meetings Permitted. Unless otherwise provided by the
certificate of incorporation, members of the Board of Directors or any committee
designated by the Board of Directors may participate in a meeting of the Board
of Directors or of such committee by means of conference telephone or similar
communications equipment by means of which all persons participating
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in the meeting can hear each other, and participation in a meeting pursuant to
this by-law shall constitute attendance and presence in person at such meeting.
Section 2.7. Quorum; Vote Required for Action. Unless otherwise required by
law, at each meeting of the Board of Directors, the presence of one-third of the
total number of directors shall constitute a quorum for the transaction of
business. The vote of a majority of the directors present at a meeting at which
a quorum is present shall be the act of the Board of Directors, unless the vote
of a greater number is required by law or the certificate of incorporation. In
case at any meeting of the Board of Directors a quorum shall not be present, the
members of the Board of Directors present may by majority vote to adjourn the
meeting from time to time until a quorum shall attend.
Section 2.8. Organization. Meetings of the Board of Directors shall be presided
over by the Chairman, if any, or in his absence by the President, or in their
absence by a chairman chosen at the meeting. The Secretary shall act as
secretary of the meeting, but in his absence the chairman of the meeting may
appoint any person to act as secretary of the meeting.
Section 2.9. Action by Directors Without a Meeting. Unless otherwise provided
by the certificate of incorporation, any action required or permitted to be
taken at any meeting of the Board of Directors or any committee designated by
the Board of Directors may be taken without a meeting if all members of the
Board of Directors or of such committee consent thereto in writing, and the
writing or writings are filed with the minutes of proceedings of the Board of
Directors of such committee.
Section 2.10. Compensation of Directors. Unless otherwise provided by the
certificate of incorporation, the Board of Directors shall have the authority
to fix the compensation of directors.
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ARTICLE III
Committees
Section 3.1. Committees. The Board of Directors may, by resolution passed by a
majority of the whole Board of Directors, designate one or more committees, each
committee to consist of one or more of the directors of the Corporation. The
Board of Directors may designate one or more directors as alternate members of
any committee, who may replace any absent or disqualified member of such
committee at any meeting thereof. In the absence or disqualification of a member
of a committee, the member or members thereof present at any meeting and not
disqualified from voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the Board of Directors to act at the
meeting in place of any such absent or disqualified member.
Section 3.2. Power of Committees. Any committee designated by the Board of
Directors, to the extent provided in a resolution of the Board of Directors,
shall have and may exercise all the powers and authority of the Board of
Directors in the management of the business and affairs of the Corporation and
may authorize the seal of the Corporation to be affixed to all papers which may
require it; but no such committee shall have the power or authority to take any
action which by law may only be taken by the Board of Directors or to take any
action with reference to: amending the certificate of incorporation, adopting an
agreement of merger or consolidation, recommending to the stockholders the sale,
lease or exchange of all or substantially all of the Corporation's property and
assets, recommending to the stockholders a dissolution of the Corporation or a
revocation of dissolution, removing or indemnifying directors or amending these
by-laws; and, unless a resolution of the Board of Directors expressly so
provides, no such committee shall have the power or
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authority to declare a dividend or to authorize the issuance of stock.
Section 3.3. Committee Rules. Unless the Board of Directors otherwise
provides, each committee designated by the Board of Directors may adopt, amend
and repeal rules for the conduct of its business. In the absence of a resolution
by the Board of Directors or a provision in the rules of such committee to the
contrary, the presence of a majority of the total number of members of such
committee shall constitute a quorum for the transaction of business, and the
vote of a majority of the members present at a meeting which a quorum is present
shall be the act of such committee.
ARTICLE IV
Officers
Section 4.1. Officers; Election. As soon as practicable after the annual
meeting of stockholders in each year, the Board of Directors shall elect from
its membership or outside thereof a President and a Secretary. The Board of
Directors may also elect from its membership a Chairman of the Board of
Directors (herein called "Chairman") and from its membership or outside thereof
a Chief Executive Officer, who shall be the Chairman or the President, one or
more Vice Presidents, one or more Assistant Vice Presidents, one or more
Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such
other officers or agents as it may determine. Unless otherwise provided by the
certificate of incorporation, any number of offices may be held by the same
person.
Section 4.2. Term of Office; Resignation; Removal; Vacancies. Except as
otherwise provided by the Board of Directors when electing any officer, each
officer shall hold office until the first meeting of the Board of Directors
after the annual meeting of stockholders next succeeding his election, or
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<PAGE>
until his successor is elected and qualified or until his earlier resignation or
removal. Any officer may resign at any time upon written notice to the
Corporation directed to the Board of Directors and the Secretary. Such
resignation shall take effect at the time specified therein, and unless
otherwise specified therein no acceptance of such resignation shall be necessary
to make it effective. The Board of Directors may remove any officer or agent
with or without cause at any time. Any such removal shall be without prejudice
to the contractual rights of such officer or agent, if any, with the
Corporation, but the election of an officer or agent shall not of itself create
contractual rights. Any vacancy occurring in any office of the Corporation by
death, resignation, removal or otherwise may be filled for the unexpired portion
of the term by the Board of Directors.
Section 4.3. Chairman of the Board. The Chairman shall preside at all meetings
of the Board of Directors and of the stockholders and shall have such other
duties and powers as the Board of Directors or the Chief Executive Officer (if
such office is not held by the Chairman) shall from time to time delegate to the
Chairman.
Section 4.4. President. In the absence of the Chairman, the President
shall preside at all meetings of the Board of Directors and of the stockholders.
The President shall have such other duties and powers as the Board of Directors
or the Chief Executive Officer (if such office is not held by the President)
shall from time to time delegate to the President.
Section 4.5. Chief Executive Officer. The office of Chief Executive Officer
shall be held by either the Chairman or the President. The Chief Executive
Officer shall have the general duties and powers of a chief executive of a
corporation and such other duties and powers as the Board of Directors shall
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from time to time delegate to the Chief Executive Officer. In the event of the
absence or disability of the Chief Executive Officer, such other officer of the
Corporation as the Chief Executive Officer may from time to time designate shall
have the duties and powers of the Chief Executive Officer for the duration of
such absence or disability, unless and until the Board of Directors shall
otherwise determine.
Section 4.6. Vice Presidents. Each Vice President shall have such duties and
powers as the Board of Directors or the Chief Executive Officer shall from time
to time delegate to such Vice President.
Section 4.7. Secretary. The Secretary shall have the general duties and powers
of a secretary of a corporation and such other duties and powers as the Board of
Directors or the Chief Executive Officer shall from time to time delegate to the
Secretary. The Secretary shall have the duty to record in a book to be kept for
that purpose the proceedings of the meetings of the stockholders, the Board of
Directors and any committees designated by the Board of Directors. The Secretary
shall have the duty to assure that notice is duly given of all meetings in
accordance with the provisions of these by-laws or as required by law. The
Secretary shall be custodian of the records of the corporation and the corporate
seal and shall have the power to attest all documents and instruments in writing
as shall require attestation and the power to affix the corporate seal to such
papers as may require it.
Section 4.8. Treasurer. The Treasurer shall have the general duties and powers
of a treasurer of a corporation and such other duties and powers as the Board of
Directors or the Chief Executive Officer shall from time to time delegate to the
Treasurer. The Treasurer shall have charge of and be responsible for all funds,
securities, receipts and disbursements of the Corporation and shall
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deposit or cause to be deposited, in the name of the Corporation, all moneys or
other valuable effects in such banks, trust companies or other depositories as
shall, from time to time, be selected by or under authority of the Board of
Directors. The Treasurer shall keep or cause to be kept full and accurate
records of all receipts and disbursements in books of the Corporation and shall
render to the Chairman, the President and the Board of Directors, whenever
requested, an account of the financial condition of the Corporation.
Section 4.9. Other Officers; Security. The other officers, if any, of the
Corporation shall have such duties and powers as generally pertain to their
respective offices and such other duties and powers as the Board of Directors or
the Chief Executive Officer shall from time to time delegate to each such
officer. The Board of Directors may require any officer, agent or employee to
give security for the faithful performance of his duties.
ARTICLE V
Stock
Section 5.1. Certificates. Every holder of one or more shares of capital stock
of the Corporation shall be entitled to have a certificate signed by or in the
name of the Corporation by the Chairman or the President or a Vice President,
and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant
Secretary, certifying the number of shares owned by him in the Corporation. Any
of or all the signatures on the certificate may be a facsimile. In case any
officer, transfer agent or registrar who has signed or whose facsimile signature
has been placed upon a certificate shall have ceased to be such officer,
transfer agent or registrar before such certificate is issued, it may be issued
by the Corporation with the same effect as if he were such officer, transfer
agent or registrar at the date of issue.
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Section 5.2. Lost, Stolen or Destroyed Stock Certificates; Issuance of New
Certificates. The Corporation may issue a new certificate of stock in the place
of any certificate theretofore issued by it, alleged to have been lost, stolen
or destroyed, and the Corporation may require the owner of the lost, stolen or
destroyed certificate, or his legal representative, to give the Corporation a
bond sufficient to indemnify it against any claim that may be made against it on
account of the alleged loss, theft or destruction of any such certificate or the
issuance of such new certificate.
ARTICLE VI
Miscellaneous
Section 6.1. Fiscal Year. The fiscal year of the Corporation shall be
determined by the Board of Directors.
Section 6.2. Seal. The Corporation may have a corporate seal which shall have
the name of the Corporation inscribed thereon and shall be in such form as may
be approved from time to time by the Board of Directors. The corporate seal may
be used by causing it or a facsimile thereof to be impressed or affixed or in
any other manner reproduced.
Section 6.3. Waiver of Notice of Meetings of Stockholders, Directors and
Committees. Whenever notice is required to be given by law, the certificate of
incorporation or these by-laws, a written waiver thereof, signed by the person
entitled to notice, whether before or after the time stated therein, shall be
deemed equivalent to notice. Attendance of a person at a meeting shall
constitute a waiver of notice of such meeting, except when the person attends a
meeting for the express purpose of objecting, at the beginning of the meeting,
to the transaction of any business because the meeting is not lawfully called or
convened. Unless otherwise provided by the certificate of
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incorporation, neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the stockholders, directors, or members of a
committee of directors need be specified in any written waiver of notice.
Section 6.4. Indemnification of Officers, Directors and Employees. The
Corporation shall indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of the Corporation) by reason of the fact that he
is or was a director, officer, or employee of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in connection
with such action, suit or proceeding if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
The Corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the Corporation to procure a judgment in
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its favor by reason of the fact that he is or was a director, officer, or
employee of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, or employee of another corporation,
partnership, joint venture, trust or other enterprise against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interest of the Corporation and except that no indemnification shall be
made in respect of any claim, issue or matter as to which such person shall have
been adjudged to be liable to the Corporation unless and only to the extent that
the Court of Chancery of Delaware or the court in which such action or suit was
brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the Court of
Chancery of Delaware or such other court shall deem proper.
Any indemnification under the above subsections of this section (unless
ordered by a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the director,
officer, or employee is proper in circumstances because he has met the
applicable standard of conduct set forth in the above subsections of this
section. Such determination shall be made (1) by the board of directors by a
majority vote of a quorum consisting of directors who were not parties to such
action, suit or proceeding, or (2) if such a quorum is not obtainable, or, even
if obtainable a quorum of disinterested directors so directs, by independent
legal counsel in a written opinion, or (3) by the stockholders.
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Expenses incurred by an officer or director in defending a civil or
criminal action, suit or proceeding shall be paid by the Corporation in advance
of the final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such amount
IF it shall ultimately be determined that he is NOT entitled to be indemnified
by the corporation as authorized in this section. Such expenses incurred by
other employees may be so paid upon such terms and conditions, if any, as the
board of directors deems appropriate.
The indemnification AND ADVANCEMENT OF EXPENSES provided by, OR GRANTED
PURSUANT TO, THE OTHER SUBSECTIONS OF this section shall not be deemed exclusive
of any other rights to which those seeking indemnification OR ADVANCEMENT OF
EXPENSES may be entitled under any other bylaw, agreement, vote of stockholders
or disinterested directors or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office.
The board of directors is authorized to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of
the Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not the Corporation would have the power to indemnify him against
such liability under this section.
For purposes of this section, references the "the Corporation" shall
include, in addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or
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merger which, if its separate existence had continued, would have had power and
authority to indemnify its directors, officers, and employees or agents, so that
any person who is or was a director, officer, or employee of such constituent
corporation, or is or was serving at the request of such constituent corporation
as a director, officer or employee of another corporation, partnership, joint
venture, trust or other enterprise, shall stand in the same position under this
section with respect to the resulting or surviving corporation as he would have
with respect to such constituent corporation if its separate existence had
continued.
For purposes of this section, references to "other enterprises" shall
include employee benefit plans; references to "fines" shall include any excise
taxes assessed on a person with respect to any employee benefit plan; and
references to "serving at the request of the Corporation" shall include any
service as a director, officer, or employee of the Corporation which imposes
duties on, or involves services by, such director, officer, or employee with
respect to an employee benefit plan, its participants or beneficiaries; and a
person who acted in good faith and in a manner he reasonably believed to be in
the interest of the participants and beneficiaries of an employee benefit plan
shall be deemed to have acted in a manner "not opposed to the best interest of
the Corporation" as referred to in this section.
THE INDEMNIFICATION AND ADVANCEMENT OF EXPENSES PROVIDED BY, OR GRANTED
PURSUANT TO, THIS SECTION SHALL, UNLESS OTHERWISE PROVIDED WHEN AUTHORIZED OR
RATIFIED, CONTINUE AS TO A PERSON WHO HAS CEASED TO BE A DIRECTOR, OFFICER, OR
AGENT AND SHALL INURE TO THE BENEFIT OF THE HEIRS, EXECUTORS AND ADMINISTRATORS
OF SUCH A PERSON.
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Section 6.5. Interested Directors; Quorum. No contract or transaction between
the Corporation and one or more of its directors or officers, or between the
Corporation and any other corporation, partnership, association or other
organization in which one or more of its directors or officers are directors or
officers, or have a financial interest, shall be void or voidable solely for
this reason, or solely because the director or officer is present at or
participates in the meeting of the Board of Directors or committee thereof which
authorizes the contract or transaction, or solely because his or their votes are
counted for such purpose, if: (a) the material facts as to his relationship or
interest and as to the contract or transaction are disclosed or are known to the
Board of Directors or the committee, and the Board of Directors or committee in
good faith authorizes the contract or transaction by the affirmative votes of a
majority of the disinterested directors, even though the disinterested directors
be less than a quorum; or (b) the material facts as to his relationship or
interest and as to the contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon, and the contract or transaction is
specifically approved in good faith by vote of the stockholders; or (c) the
contract or transaction is fair as to the Corporation as of the time it is
authorized, approved or ratified, by the Board of Directors, a committee thereof
or the stockholders. Common or interested directors may be counted in
determining the presence of a quorum at a meeting of the Board of Directors or
of a committee which authorized the contract or transaction.
Section 6.6. Form of Records. Any records maintained by the Corporation in the
regular course of its business, including its stock ledger, books of account and
minute books, may be kept on, or be in the form of, punch cards,
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magnetic tape, photographs, microphotographs or any other information storage
device, provided that the records so kept can be converted into clearly legible
form within a reasonable time. The Corporation shall so convert any records so
kept upon the request of any person entitled to inspect the same.
Section 6.7. Amendment of By-laws. These by-laws shall not be amended,
altered, changed or repealed without the approval of the holders of a majority
of the shares of each class of capital stock outstanding at the time such
determination is made, voting together as one class.
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EXHIBIT 3.1
CHAPMAN AND CUTLER
111 WEST MONROE STREET
CHICAGO, ILLINOIS 60603
November 7, 1995
EVEREN Unit Investment Trusts,
a service of EVEREN Securities, Inc.
77 West Wacker Drive, 29th Floor
Chicago, Illinois 60601
Re: EVEREN Unit Investment Trusts Series 39
---------------------------------------
Gentlemen:
We have served as counsel for EVEREN Unit Investment Trusts, a service of
EVEREN Securities, Inc., as Sponsor and Depositor of EVEREN Unit Investment
Trusts Series 39 (the "Fund"), in connection with the preparation, execution and
delivery of the Trust Agreement dated the date of this opinion between EVEREN
Unit Investment Trusts, a service of EVEREN Securities, Inc., as Depositor, and
The Bank of New York, as Trustee, pursuant to which the Depositor has delivered
to and deposited the Securities listed in the Schedule to the Trust Agreement
with the Trustee and pursuant to which the Trustee has issued to or on the order
of the Depositor a certificate or certificates representing all the Units of
fractional undivided interest in, and ownership of, the Fund, created under said
Trust Agreement.
In connection therewith we have examined such pertinent records and
documents and matters of law as we have deemed necessary in order to enable us
to express the opinions hereinafter set forth.
Based upon the foregoing, we are of the opinion that:
1. The execution and delivery of the Trust Agreement and the
execution and issuance of certificates evidencing the Units of the Fund
have been duly authorized; and
2. The certificates evidencing the Units of the Fund, when duly
executed and delivered by the Depositor and the Trustee in accordance with
the aforementioned Trust Agreement, will constitute valid and binding
obligations of the Fund and the Depositor in accordance with the terms
thereof.
<PAGE>
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement (File No. 33-63111) relating to the Units referred to
above and to the use of our name and to the reference to our firm in said
Registration Statement and in the related Prospectus.
Respectfully submitted,
CHAPMAN AND CUTLER
<PAGE>
EXHIBIT 4.1
INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS' CONSENT
-------------------------------------------------
We have issued our report dated November 7, 1995 on the statement of
condition and related portfolio of EVEREN Unit Investment Trusts Series 39 as of
November 7, 1995 contained in the Registration Statement on Form S-6 and in the
Prospectus. We consent to the use of our report in the Registration Statement
and in the Prospectus and to the use of our name as it appears under the caption
"Independent Certified Public Accountants".
GRANT THORNTON LLP
Chicago, Illinois
November 7, 1995
<PAGE>
EVEREN SECURITIES, INC.
DIRECTORS AND OFFICERS
<TABLE>
<CAPTION>
Name Address
<S> <C>
James R. Boris 77 West Wacker Drive
Director, Chairman and Chief Executive Chicago, Illinois 60601
Officer
Daniel D. Williams 77 West Wacker Drive
Director, Senior Executive Vice Chicago, Illinois 60601
President, Chief Financial Officer,
and Treasurer
Frank V. Geremia 77 West Wacker Drive
Director, Senior Executive Vice Chicago, Illinois 60601
President
Stephen G. McConahey 77 West Wacker Drive
Director, President and Chief Operating Chicago, Illinois 60601
Officer
Stanley R. Fallis 77 West Wacker Drive
Director, Senior Executive Vice Chicago, Illinois 60601
President and Chief Administrative
Officer
David M. Greene 77 West Wacker Drive
Director, Senior Executive Vice Chicago, Illinois 60601
President and Director of Client
Services
Thomas R. Reedy 77 West Wacker Drive
Director, Senior Executive Vice Chicago, Illinois 60601
President and Director of Capital
Markets
Janet L. Reali 77 West Wacker Drive
Director, Executive Vice President, Chicago, Illinois 60601
Corporate Counsel and Corporate
Secretary
Kenneth A. Koranda 77 West Wacker Drive
Assistant Secretary Chicago, Illinois 60601
Leslie A. Sammarco 77 West Wacker Drive
Assistant Secretary Chicago, Illinois 60601
</TABLE>
<PAGE>
EVEREN SECURITIES, INC.
POWER OF ATTORNEY
The undersigned director hereby appoints James R. Boris, Daniel D.
Williams, Frank V. Geremia, Stephen G. McConahey, Stanley R. Fallis, David M.
Greene, Thomas R. Reedy, Janet L. Reali, Robert K. Burke, Michael J. Thoms and
Mark J. Kneedy, and each of them, any of whom may act without the joinder of the
others, as his/her attorney-in-fact to sign and file on his/her behalf
individually and in the capacity stated below such Registration Statements,
amendments, exhibits, applications and other documents with the Securities and
Exchange Commission or any other regulatory authority for the purpose of
registering units for the public offering of units of beneficial interest in
unit investment trusts sponsored by EVEREN Securities, Inc. and any affiliates
or successors thereof whether or not in existence at the date hereof.
In Witness Whereof, the undersigned director of EVEREN Securities, Inc. has
hereunto set his/her hand this 7th day of November, 1995.
James R. Boris
-------------------------------------------
James R. Boris
Director, Chairman and
Chief Executive Officer
<PAGE>
EVEREN SECURITIES, INC.
POWER OF ATTORNEY
The undersigned director hereby appoints James R. Boris, Daniel D.
Williams, Frank V. Geremia, Stephen G. McConahey, Stanley R. Fallis, David M.
Greene, Thomas R. Reedy, Janet L. Reali, Robert K. Burke, Michael J. Thoms and
Mark J. Kneedy, and each of them, any of whom may act without the joinder of the
others, as his/her attorney-in-fact to sign and file on his/her behalf
individually and in the capacity stated below such Registration Statements,
amendments, exhibits, applications and other documents with the Securities and
Exchange Commission or any other regulatory authority for the purpose of
registering units for the public offering of units of beneficial interest in
unit investment trusts sponsored by EVEREN Securities, Inc. and any affiliates
or successors thereof whether or not in existence at the date hereof.
In Witness Whereof, the undersigned director of EVEREN Securities, Inc. has
hereunto set his/her hand this 7th day of November, 1995.
Daniel D. Williams
-----------------------------------------
Daniel D. Williams
Director, Senior Executive Vice President,
Chief Financial Officer and Treasurer
<PAGE>
EVEREN SECURITIES, INC.
POWER OF ATTORNEY
The undersigned director hereby appoints James R. Boris, Daniel D.
Williams, Frank V. Geremia, Stephen G. McConahey, Stanley R. Fallis, David M.
Greene, Thomas R. Reedy, Janet L. Reali, Robert K. Burke, Michael J. Thoms and
Mark J. Kneedy, and each of them, any of whom may act without the joinder of the
others, as his/her attorney-in-fact to sign and file on his/her behalf
individually and in the capacity stated below such Registration Statements,
amendments, exhibits, applications and other documents with the Securities and
Exchange Commission or any other regulatory authority for the purpose of
registering units for the public offering of units of beneficial interest in
unit investment trusts sponsored by EVEREN Securities, Inc. and any affiliates
or successors thereof whether or not in existence at the date hereof.
In Witness Whereof, the undersigned director of EVEREN Securities, Inc. has
hereunto set his/her hand this 7th day of November, 1995.
Frank V. Geremia
--------------------------------------------
Frank V. Geremia
Director and Senior Executive Vice President
<PAGE>
EVEREN SECURITIES, INC.
POWER OF ATTORNEY
The undersigned director hereby appoints James R. Boris, Daniel D.
Williams, Frank V. Geremia, Stephen G. McConahey, Stanley R. Fallis, David M.
Greene, Thomas R. Reedy, Janet L. Reali, Robert K. Burke, Michael J. Thoms and
Mark J. Kneedy, and each of them, any of whom may act without the joinder of the
others, as his/her attorney-in-fact to sign and file on his/her behalf
individually and in the capacity stated below such Registration Statements,
amendments, exhibits, applications and other documents with the Securities and
Exchange Commission or any other regulatory authority for the purpose of
registering units for the public offering of units of beneficial interest in
unit investment trusts sponsored by EVEREN Securities, Inc. and any affiliates
or successors thereof whether or not in existence at the date hereof.
In Witness Whereof, the undersigned director of EVEREN Securities, Inc. has
hereunto set his/her hand this 7th day of November, 1995.
Stephen G. McConahey
---------------------------------------
Stephen G. McConahey
Director, President and Chief
Operating Officer
<PAGE>
EVEREN SECURITIES, INC.
POWER OF ATTORNEY
The undersigned director hereby appoints James R. Boris, Daniel D.
Williams, Frank V. Geremia, Stephen G. McConahey, Stanley R. Fallis, David M.
Greene, Thomas R. Reedy, Janet L. Reali, Robert K. Burke, Michael J. Thoms and
Mark J. Kneedy, and each of them, any of whom may act without the joinder of the
others, as his/her attorney-in-fact to sign and file on his/her behalf
individually and in the capacity stated below such Registration Statements,
amendments, exhibits, applications and other documents with the Securities and
Exchange Commission or any other regulatory authority for the purpose of
registering units for the public offering of units of beneficial interest in
unit investment trusts sponsored by EVEREN Securities, Inc. and any affiliates
or successors thereof whether or not in existence at the date hereof.
In Witness Whereof, the undersigned director of EVEREN Securities, Inc. has
hereunto set his/her hand this 7th day of November, 1995.
Stanley R. Fallis
---------------------------------------------
Stanley R. Fallis
Director, Senior Executive Vice President and
Chief Administrative Officer
<PAGE>
EVEREN SECURITIES, INC.
POWER OF ATTORNEY
The undersigned director hereby appoints James R. Boris, Daniel D.
Williams, Frank V. Geremia, Stephen G. McConahey, Stanley R. Fallis, David M.
Greene, Thomas R. Reedy, Janet L. Reali, Robert K. Burke, Michael J. Thoms and
Mark J. Kneedy, and each of them, any of whom may act without the joinder of the
others, as his/her attorney-in-fact to sign and file on his/her behalf
individually and in the capacity stated below such Registration Statements,
amendments, exhibits, applications and other documents with the Securities and
Exchange Commission or any other regulatory authority for the purpose of
registering units for the public offering of units of beneficial interest in
unit investment trusts sponsored by EVEREN Securities, Inc. and any affiliates
or successors thereof whether or not in existence at the date hereof.
In Witness Whereof, the undersigned director of EVEREN Securities, Inc. has
hereunto set his/her hand this 7th day of November, 1995.
David M. Greene
-----------------------------------------
David M. Greene
Director, Senior Executive Vice President
and Director of Client Services
<PAGE>
EVEREN SECURITIES, INC.
POWER OF ATTORNEY
The undersigned director hereby appoints James R. Boris, Daniel D.
Williams, Frank V. Geremia, Stephen G. McConahey, Stanley R. Fallis, David M.
Greene, Thomas R. Reedy, Janet L. Reali, Robert K. Burke, Michael J. Thoms and
Mark J. Kneedy, and each of them, any of whom may act without the joinder of the
others, as his/her attorney-in-fact to sign and file on his/her behalf
individually and in the capacity stated below such Registration Statements,
amendments, exhibits, applications and other documents with the Securities and
Exchange Commission or any other regulatory authority for the purpose of
registering units for the public offering of units of beneficial interest in
unit investment trusts sponsored by EVEREN Securities, Inc. and any affiliates
or successors thereof whether or not in existence at the date hereof.
In Witness Whereof, the undersigned director of EVEREN Securities, Inc. has
hereunto set his/her hand this 7th day of November, 1995.
Thomas R. Reedy
-----------------------------------------
Thomas R. Reedy
Director, Senior Executive Vice President
and Director of Capital Markets
<PAGE>
EVEREN SECURITIES, INC.
POWER OF ATTORNEY
The undersigned director hereby appoints James R. Boris, Daniel D.
Williams, Frank V. Geremia, Stephen G. McConahey, Stanley R. Fallis, David M.
Greene, Thomas R. Reedy, Janet L. Reali, Robert K. Burke, Michael J. Thoms and
Mark J. Kneedy, and each of them, any of whom may act without the joinder of the
others, as his/her attorney-in-fact to sign and file on his/her behalf
individually and in the capacity stated below such Registration Statements,
amendments, exhibits, applications and other documents with the Securities and
Exchange Commission or any other regulatory authority for the purpose of
registering units for the public offering of units of beneficial interest in
unit investment trusts sponsored by EVEREN Securities, Inc. and any affiliates
or successors thereof whether or not in existence at the date hereof.
In Witness Whereof, the undersigned director of EVEREN Securities, Inc. has
hereunto set his/her hand this 7th day of November, 1995.
Janet L. Reali
-------------------------------------------
Janet L. Reali
Director, Executive Vice President,
Corporate Counsel and Corporate Secretary
