FORM OF
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (this "Agreement") is made and
entered into as of _________, 2002, by and among the Board of Trade of the City
of Chicago, Inc., a Delaware nonstock, for-profit corporation ("CBOT") and
successor to the Board of Trade of the City of Chicago, Inc., a Delaware
nonstock, not-for-profit corporation ("NFP CBOT"), Ceres Merger Sub, Inc., a
Delaware stock, for-profit corporation and a wholly owned subsidiary of CBOT
("Merger Sub"), and Ceres Trading Limited Partnership, a Delaware limited
partnership ("Ceres"). CBOT, Merger Sub and Ceres are referred to collectively
herein as the "Parties." Capitalized terms used but not otherwise defined herein
shall have the meaning assigned to them in the Second Amended and Restated
Limited Partnership Agreement of Ceres Trading Limited Partnership, dated as of
September 8, 1997 (as amended from time to time in accordance with its terms,
the "Partnership Agreement");
WHEREAS, CBOT is pursuing a strategic restructuring involving, among
other things, the demutualization of its organization, the modernization of its
corporate governance structure and the reorganization and consolidation of its
electronic trading business into Electronic Chicago Board of Trade, Inc., a
Delaware stock, for-profit corporation and a wholly owned subsidiary of CBOT
("eCBOT") (collectively, the "Restructuring Transactions");
WHEREAS, prior to the date hereof, NFP CBOT solicited the approval of
its members of certain propositions relating to the Restructuring Transactions
pursuant to a combined proxy statement and prospectus, dated ___________ __,
2001, contained in that certain Registration Statement on Form S-4, Registration
No. 333-54370, filed with the Securities and Exchange Commission by CBOT
Holdings, Inc. relating to the Restructuring Transactions (as amended, the
"Registration Statement") and, on __________ __, 2001, the members of NFP CBOT
approved such propositions relating to the Restructuring Transactions in
accordance with NFP CBOT's certificate of incorporation, bylaws and applicable
law ("Requisite Member Approval");
WHEREAS, all of the conditions to CBOT's obligation to complete the
Restructuring Transactions as described in the Registration Statement,
including, without limitation, the Requisite Member Approval (the "Conditions
Precedent"), have been satisfied or waived by CBOT;
WHEREAS, following the Requisite Member Approval and satisfaction or
waiver of all of the other Conditions Precedent, CBOT completed the
demutalization of its organization by creating a stock, for-profit holding
company, CBOT Holdings, Inc., and distributing shares of common stock of CBOT
Holdings, Inc. to its members, and completing certain transactions designed to
maintain CBOT as a nonstock subsidiary of CBOT Holdings, Inc. and, as a result
thereof, currently exists as a Delaware nonstock, for-profit subsidiary of CBOT
Holdings, Inc.;
WHEREAS, as described in the Registration Statement, in connection with
implementing the reorganization and consolidation of CBOT's electronic trading
business as part of the Restructuring Transactions, it is intended that
(i) Merger Sub will merge with and into Ceres pursuant to this Agreement, with
Ceres as the surviving entity (the "Merger"), (ii) eCBOT (in its capacity as the
General Partner of Ceres) will, following completion of the Merger, cause Ceres
to be liquidated and the assets of Ceres to be distributed to its Partners
following the Merger in accordance with the terms and provisions of the
Surviving Partnership Agreement (as defined below), and (iii) CBOT will
thereafter contribute assets relating to the electronic trading business
received in connection with such liquidation and any other applicable electronic
trading assets to eCBOT;
WHEREAS, pursuant to the terms of the Partnership Agreement, eCBOT (in
its capacity as the General Partner of Ceres) is authorized, in its sole and
conclusive discretion, to merge or consolidate Ceres with or into any Person,
including Merger Sub;
WHEREAS, the boards of directors of eCBOT (in its capacity as the
General Partner of Ceres) and CBOT deem the reorganization and consolidation of
CBOT's electronic trading business, including, but not limited to, the terms of
this Agreement and the Merger, to be fair and reasonable to Ceres and its
Partners, Merger Sub and CBOT;
WHEREAS, the board of directors of eCBOT (in its capacity as the
General Partner of Ceres) deems it advisable and in the best interests of Ceres
and its Partners to consummate the Merger;
WHEREAS, the board of directors of Merger Sub deems it advisable and in
the best interests of Merger Sub and its stockholder to consummate the Merger;
and
WHEREAS, eCBOT (in its capacity as the General Partner of Ceres), CBOT
(in its capacity as the sole stockholder of Merger Sub), and the boards of
directors of CBOT, Merger Sub and eCBOT have each approved, adopted and
authorized the Merger, this Agreement and their respective performance of their
obligations hereunder;
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises herein made, and in consideration of the representations, warranties,
and covenants herein contained, and for other good and valuable consideration,
the receipt and sufficiency of which is hereby expressly acknowledged and
agreed, the Parties hereby agree as follows:
ARTICLE I
BASIC TRANSACTION
A. The Merger.
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(1) General. On the terms and subject to the conditions of this
Agreement, Merger Sub shall merge with and into Ceres (as of the Effective Time
(as defined below)), with Ceres as the surviving entity (sometimes referred to
herein as the "Surviving Partnership"), and Ceres shall file a certificate of
merger (the "Certificate of Merger") with the Secretary of State of the State of
Delaware and make all other filings or recordings required by Delaware law in
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connection with the Merger. The Merger shall become effective at such time as
Ceres files the Certificate of Merger or as is otherwise specified in the
Certificate of Merger (the "Effective Time"). The Surviving Partnership, acting
through its General Partner, may, at any time after the Effective Time, take any
action (including executing and delivering any document) in the name of and on
behalf of Merger Sub or Ceres that such General Partner, in its sole and
conclusive discretion, deems necessary or advisable in order to effect the
transactions contemplated by this Agreement.
(2) Surviving Entity. At the Effective Time, Merger Sub shall be merged
with and into Ceres, whereupon the separate existence of the Merger Sub shall
cease, and Ceres shall be the surviving entity of the Merger in accordance with
Section 17-211 of the Delaware Revised Uniform Limited Partnership Act, 6 Del.
C. (S)(S) 17-101 et seq., and Section 263 of the Delaware General Corporation
Law, 8 Del. C. (S)(S) 101 et seq.
(3) Closing. The closing of the Merger (the "Closing") shall take place
at the offices of Xxxxxxxx & Xxxxx, 000 Xxxx Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx,
00000, or at such other place, date and time as CBOT may determine (the "Closing
Time"), which time shall be on or after the time at which all conditions to
consummate the transactions contemplated hereby are satisfied or waived by CBOT.
(4) Certificate of Limited Partnership; Partnership Agreement; Name.
From and after the Effective Time, and until thereafter amended as provided by
law, the Certificate of Limited Partnership of Ceres as in effect immediately
prior to the Effective Time, shall be the Certificate of Limited Partnership of
the Surviving Partnership. From and after the Effective Time, the Partnership
Agreement, including any amendments thereof to be effective as of the Effective
Time, as in effect at the Effective Time shall be the Partnership Agreement of
the Surviving Partnership unless and until thereafter amended in accordance with
its terms and applicable law (the "Surviving Partnership Agreement"). The name
of the Surviving Partnership shall remain "Ceres Trading Limited Partnership. "
B. Exchange of Interests. At the Effective Time, by virtue of the Merger
and without any action on the part of Merger Sub, CBOT, Ceres, eCBOT, any
Limited Partner or any other Person:
(1) All of the shares of capital stock of Merger Sub issued and
outstanding as of immediately prior to the Effective Time, in the aggregate,
shall be exchanged for and converted into the number of Ceres Class A-1 Units,
Class A-2 Units, Class A-3 Units, Class A-4 Units, and Class B Units,
respectively, issued and outstanding as of immediately prior to the Effective
Time (other than any such Units held by eCBOT or CBOT).
(2) Each Ceres Class A-1 Unit issued and outstanding as of immediately
prior to the Effective Time (other than any Class A-1 Units held by eCBOT or
CBOT) shall be exchanged for and converted into the right to receive a cash
distribution in the amount of $[_____].
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(3) Each Ceres Class A-2 Unit issued and outstanding as of immediately
prior to the Effective Time (other than any Class A-2 Units held by eCBOT or
CBOT) shall be exchanged for and converted into the right to receive a cash
distribution in the amount of $[_____].
(4) Each Ceres Class A-3 Unit issued and outstanding as of immediately
prior to the Effective Time (other than any Class A-3 Units held by eCBOT or
CBOT) shall be exchanged for and converted into the right to receive a cash
distribution in the amount of $[_____].
(5) Each Ceres Class A-4 Unit issued and outstanding as of immediately
prior to the Effective Time (other than any Class A-4 Units held by eCBOT or
CBOT) shall be exchanged for and converted into the right to receive a cash
distribution in the amount of $[_____].
(6) As described in the Registration Statement, Ceres Class B Units
issued and outstanding as of immediately prior to the Effective Time shall be
exchanged for and converted into the right to receive a cash distribution in an
amount that will vary by holder of Class B Unit. Accordingly, the Ceres Class B
Units issued and outstanding as of immediately prior to the Effective Time
(other than Class B Units held by eCBOT or CBOT) shall be exchanged for and
converted into the right to receive a cash distribution in the amount indicated
on Exhibit A attached hereto with respect to each holder of Ceres Class B Units.
(7) Each Ceres Class A Unit or Class B Unit issued and outstanding as
of immediately prior to the Effective Time held by eCBOT or CBOT shall be
canceled and no cash, stock or other consideration shall be delivered in
exchange therefor.
(8) The General Partnership Interest issued and outstanding as of
immediately prior to the Effective Time held by eCBOT shall remain outstanding
and shall be unchanged after the Merger and no stock or other consideration
shall be delivered in exchange therefor. The General Partner of Ceres
immediately prior to the Effective Time is eCBOT and from and after the
Effective Time, eCBOT shall remain the General Partner of the Surviving
Partnership.
C. Payment of Merger Consideration. As soon as practicable after the
Effective Time, each holder of record of Ceres Units immediately prior to the
Effective Time (other than any Units held by eCBOT or CBOT) will be entitled to
receive, and the CBOT shall, or shall cause its paying agent to pay, to each
such record holder or to such persons as such holder may request, the amount of
cash into which such Ceres Units will have been converted pursuant to this
Agreement.
D. Closing of Transfer Records. From and after the Effective Time,
transfers of Ceres Units outstanding prior to the Effective Time shall not be
made on the books and records of the Surviving Partnership or otherwise.
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ARTICLE II
CONDITIONS TO CLOSE
The obligation of the Parties to consummate the transactions contemplated
hereby is subject to satisfaction or waiver of the Conditions Precedent.
ARTICLE III
TERMINATION
A. Termination of Agreement. CBOT may, in its sole and exclusive
discretion, terminate this Agreement at any time prior to the Effective Time.
B. Effect of Termination. If CBOT terminates this Agreement pursuant
to Paragraph (A) above, all rights and obligations of the Parties shall
terminate without any liability of any Party or Person to any other Party or
Person.
ARTICLE IV
MISCELLANEOUS
A. No Third Party Beneficiaries. This Agreement shall not confer any
rights or remedies upon any person or entity other than the Parties and their
respective successors and permitted assigns.
B. Entire Agreement. This Agreement constitutes the entire agreement
between the Parties and supersedes any prior understandings, agreements, or
representations by or between the Parties, written or oral, to the extent they
related in any way to the subject matter hereof.
C. Succession and Assignment. This Agreement shall be binding upon
and inure to the benefit of the Parties named herein and their respective
successors and permitted assigns. No Party may assign either this Agreement or
any of its rights, interests, or obligations hereunder without the prior written
approval of the other Party.
D. Counterparts. This Agreement may be executed in one or more
counterparts (including by means of telecopied signatures), each of which shall
be deemed an original but all of which together will constitute one and the same
instrument.
E. Headings. The section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
F. Governing Law. This Agreement shall be governed by and construed in
accordance with the domestic laws of the State of Delaware without giving effect
to any choice or conflict of law provision or rule (whether of the State of
Delaware or any other jurisdiction) that would cause the application of the laws
of any jurisdiction other than the State of Delaware.
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G. Amendments. Subject to applicable law, the Parties may mutually amend
any provision of this Agreement at any time prior to the Effective Time with the
prior authorization of their respective boards of directors or general partner.
No amendment of any provision of this Agreement shall be valid unless the same
shall be in writing and signed by all of the Parties.
H. Severability. Any term or provision of this Agreement that is invalid
or unenforceable in any situation in any jurisdiction shall not affect the
validity or enforceability of the remaining terms and provisions hereof or the
validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
I. Construction. Any reference to any federal, state, local, or foreign
statute or law shall be deemed also to refer to all rules and regulations
promulgated thereunder, unless the context otherwise requires. The term
"including" shall mean "including without limitation" and all variants shall
have similarly inclusive, but not limiting, meanings.
J. Further Assurances. From time to time, as and when requested by either
Party hereto, the other Party shall execute and deliver, or cause to be executed
and delivered, all such documents and instruments and shall take, or cause to be
taken, all such further or other actions, which documents, instruments or
actions are consistent with, and customary and necessary for, the consummation
of the transactions contemplated by this Agreement.
J. Incorporation of Exhibit. Exhibit A hereto is incorporated herein by
reference and made a part hereof.
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of
the date first written above.
CERES TRADING LIMITED
PARTNERSHIP
By: Electronic Board of Trade of the
City of Chicago, Inc.
Its: General Partner
By:
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Name:
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Title:
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CERES MERGER SUB, INC.
By:
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Name:
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Title:
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BOARD OF TRADE OF THE CITY OF CHICAGO, INC.
By:
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Name:
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Title:
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Exhibit A
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[To be inserted in the execution copy of the Agreement. To be determined as
described in the Registration Statement]
