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EXHIBIT 2.a. (ii)
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AMENDED AND RESTATED
TRUST AGREEMENT
CONSTITUTING
AMERITRADE AUTOMATIC COMMON EXCHANGE SECURITY TRUST
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DATED AS OF , 1999
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Table of Contents
Page
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ARTICLE I
DEFINITIONS; INTERPRETATION
Section 1.1. Defined Terms...............................................................................1
Section 1.2. Interpretation..............................................................................6
ARTICLE II
TRUST DECLARATION; PURPOSES, POWERS
AND DUTIES OF THE TRUSTEES; ADMINISTRATION
Section 2.1. Declaration of Trust; Purposes of the Trust; Resignation and Appointment
of Trustees......................................................................................6
Section 2.2. General Powers and Duties of the Trustees...................................................7
Section 2.3. Portfolio Acquisition.......................................................................8
Section 2.4. Portfolio Administration....................................................................9
Section 2.5. Manner of Sales............................................................................13
Section 2.6. Limitations on Trustees' Powers............................................................13
ARTICLE III
ACCOUNTS AND PAYMENTS
Section 3.1. The Trust Account..........................................................................14
Section 3.2. Payment of Fees and Expenses...............................................................14
Section 3.3. Distributions to Holders...................................................................14
Section 3.4. Segregation................................................................................15
Section 3.5. Temporary Investments......................................................................15
ARTICLE IV
REDEMPTION
Section 4.1. Redemption.................................................................................15
ARTICLE V
ISSUANCE OF CERTIFICATES; REGISTRY; TRANSFER OF SECURITIES
Section 5.1. Form of Certificate........................................................................15
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Section 5.2. Transfer of Securities; Issuance, Transfer and Interchange of Certificates.................16
Section 5.3. Replacement of Certificates................................................................17
ARTICLE VI
EXECUTION OF THE CONTRACT
Section 6.1. Execution of the Contract[S]...............................................................18
ARTICLE VII
TRUSTEES
Section 7.1. Trustees...................................................................................18
Section 7.2. Vacancies..................................................................................18
Section 7.3. Powers.....................................................................................19
Section 7.4. Meetings...................................................................................19
Section 7.5. Resignation and Removal....................................................................19
Section 7.6. Liability..................................................................................19
Section 7.7. Compensation...............................................................................20
ARTICLE VIII
MISCELLANEOUS
Section 8.1. Meetings of Holders........................................................................20
Section 8.2. Books and Records; Reports.................................................................21
Section 8.3. Termination................................................................................21
Section 8.4. No Assumption of Liability.................................................................22
Section 8.5. Amendment and Waiver.......................................................................22
Section 8.6. Accountants................................................................................23
Section 8.7. Nature of Holder's Interest................................................................24
Section 8.8. Governing Law; Severability................................................................24
Section 8.9. Notices....................................................................................24
Section 8.10. Entire Agreement...........................................................................25
Section 8.11. Non-Assignability..........................................................................25
Section 8.12. No Third Party Rights; Successors and Assigns..............................................25
Section 8.13. Counterparts...............................................................................25
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Exhibits
Exhibit A - Form of Certificate Evidencing the Securities
Exhibit B - Form of Collateral Agreement
Exhibit C - Form of Contract
Exhibit D - Form of Expense Agreement
Exhibit E - Form of Indemnity Agreement
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AMENDED AND RESTATED TRUST AGREEMENT
AMENDED AND RESTATED TRUST AGREEMENT, dated as of , 1999,
among Xxxxxxx, Xxxxx & Co., as sponsor (the "Sponsor"), Xxxx X. Efron, as the
prior trustee, and [Name], [Name] and [Name], as trustees (the "Trustees"),
constituting Ameritrade Automatic Common Exchange Security Trust (the "Trust").
W I T N E S S E T H:
WHEREAS, the Sponsor and Xxxx X. Efron, as trustee, have previously
entered into a Trust Agreement, dated as of April 30, 1999 (the "Original
Agreement"), creating Ninth Automatic Common Exchange Security Trust; and
WHEREAS, upon the execution of this Agreement, Xxxx X. Efron wishes to
resign as trustee and the Sponsor wishes to appoint the Trustees as the trustees
of the Trust; and
WHEREAS, the parties hereto wish to change the name of the Trust to
Ameritrade Automatic Common Exchange Security Trust; and
WHEREAS, the parties hereto wish to amend and restate the Original
Agreement in certain other respects; and
WHEREAS, the Trust has previously issued to the Sponsor one Security in
consideration of a purchase price of $[ ];
NOW, THEREFORE, the parties hereto agree to amend and restate the
Original Agreement as provided in this Agreement and, upon the execution and
delivery of this Agreement by the parties to this Agreement, the Original
Agreement will be automatically amended and restated in its entirety to read as
provided in this Agreement.
ARTICLE I
DEFINITIONS; INTERPRETATION
Section 1.1. Defined Terms. As used in this Agreement, the following
terms have the following meanings:
"Accelerated Portion" has the meaning specified in the Contract.
"Additional Purchase Price" has the meaning specified in the Contract.
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"Administration Agreement" means the Administration Agreement,
dated as of June 7, 1999, between the Administrator and the Trust, and
any substitute agreement therefor entered into pursuant to Section
2.2(a).
"Administrator" means The Chase Manhattan Bank, or its
successor as permitted under Article IV of the Administration Agreement
or appointed pursuant to Section 2.2(a).
"Agreement" means this Amended and Restated Trust Agreement.
"Average Market Price" has the meaning specified in the
Contract.
"Business Day" means a day on which the New York Stock
Exchange, Inc. is open for trading and that is not a day on which
commercial banks in The City of New York are authorized or obligated by
law to close.
"Cash Merger" has the meaning specified in the Contract.
"Cash Settlement Alternative" has the meaning specified in the
Contract.
"Certificate" means any certificate evidencing the ownership
of Securities substantially in the form of Exhibit A.
"Class A Common Stock" means the Class A Common Stock par
value $0.01 per share, of the Company
"Code" means the Internal Revenue Code of 1986.
"Collateral Agent" means The Chase Manhattan Bank, or its
successor as permitted under Article VIII of the Collateral Agreement
or appointed pursuant to Section 2.2(a).
"Collateral Agreement" means the Collateral Agreement, dated
as of June 7, 1999, among Seller[S], the Collateral Agent and the
Trust, securing Seller[S]'S [Sellers'] obligations under the Contract,
substantially in the form of Exhibit B.
"Commencement Date" means the day on which the Underwriting
Agreement is executed.
"Commission" means the United States Securities and Exchange
Commission.
"Company" means Ameritrade Holding Corporation, a Delaware
corporation.
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"Contract" means the Purchase Agreement, dated as of , 1999,
entered into by the Trust with the Seller[S], substantially in the form
of Exhibit C. [REVISE AS NECESSARY]
"Custodian" means The Chase Manhattan Bank, or its successor
as permitted under Section 11 of the Custodian Agreement or appointed
pursuant to Section 2.2(a).
"Custodian Agreement" means the Custodian Agreement, dated as
of , 1999, between the Custodian and the Trust, and any substitute
agreement therefor entered into pursuant to Section 2.2(a).
"Depositary" means The Depository Trust Company, or any
successor depositary appointed pursuant to Section 5.1.
"Distribution Date" means January , each April , July , and
October of each year, commencing October , 1999, to and including
the Exchange Date, or if any such date is not a Business Day, then the
first Business Day thereafter.
"Excess Purchase Payment" has the meaning specified in the
Contract.
"Exchange" means the delivery of Stock by the Trustees to the
Holders, subject to the adjustments and exceptions set forth in the
Contract (or, if Seller[S] elect the Cash Settlement Alternative, the
amount in cash specified in the Contract as payable in respect
thereof), in mandatory exchange for the Securities on the Exchange
Date.
"Exchange Date" has the meaning specified in the Contract.
"Exchange Rate" has the meaning specified in the Contract.
"Expense Agreement" means the Fund Expense Agreement, dated as
of , 1999, among Seller[S], The Chase Manhattan Bank, as Service
Provider, and the Trust substantially in the form of Exhibit D.
"Event of Default" has the meaning specified in the Contract.
"Firm Purchase Price" has the meaning specified in the
Contract.
"First Time of Delivery" has the meaning specified in the
Underwriting Agreement.
"Holder" means the registered owner of any Security as
recorded on the books of the Paying Agent.
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"Indemnity Agreement" means the Fund Indemnity Agreement,
dated as of , 1999, among Seller[S], The Chase Manhattan Bank, as
Service Provider, and the Trust substantially in the form of Exhibit E.
"Investment Company" means an investment company as defined in
Section 3 of the Investment Company Act.
"Investment Company Act" means the Investment Company Act of
1940, as amended from time to time; each reference herein to any
section of such Act or any rule or regulation thereunder shall
constitute a reference to any successor provision thereto.
"Managing Trustee" means the Trustee designated as the
Managing Trustee by resolution of the Trustees.
"Marketable Securities" has the meaning specified in the
Contract.
"Merger Consideration" has the meaning specified in the
Contract.
"Original Agreement" has the meaning specified in the recitals
to this Agreement.
"Participant" means a Person having a book-entry only system
account with the Depositary.
"Paying Agent" means ChaseMellon Shareholder Services, L.L.C.,
or its successor as permitted under Section 6.6 of the Paying Agent
Agreement or appointed pursuant to Section 2.2(a).
"Paying Agent Agreement" means the Paying Agent Agreement,
dated as of , 1999, between the Paying Agent and the Trust, and any
substitute agreement therefor entered into pursuant to Section 2.2(a).
"Person" means an individual, a partnership, a corporation, a
limited liability company, a trust, an unincorporated association, a
joint venture or any other entity or organization, including a
government or political subdivision or an agency or instrumentality
thereof.
"Prospectus" means the prospectus relating to the Securities
constituting a part of the Registration Statement, as first filed with
the Commission pursuant to Rule 497(b) or (h) under the Securities Act,
and as subsequently amended or supplemented by the Trust.
"Quarterly Distribution" means $ per Security paid to each
Holder on each Distribution Date.
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"Record Date" means the Business Day preceding each
Distribution Date.
"Registration Statement" means the Registration Statement on
Form N-2 (Registration Nos. 333- and 811- ) of the Trust, as amended.
"Reorganization Event" has the meaning specified in the
Contract.
"Second Time of Delivery" has the meaning specified in the
Underwriting Agreement.
"Securities Act" means the Securities Act of 1933.
"Security" means a $ Trust Automatic Common Exchange Security
of the Trust evidencing a Holder's undivided interest in the Trust and
right to receive a pro rata distribution upon liquidation of the Trust
Estate.
"Seller[S]" means .
"Spin-Off Distribution" has the meaning specified in the
Contract.
"Sponsor" has the meaning specified in the preamble to this
Agreement.
"Stock" means Class A Common Stock to be exchanged by the
Trustees for the Securities on the Exchange Date; provided that after a
Spin-Off Distribution, all references to "Stock" shall include the
Stock distributed in such event; and provided further that after any
Reorganization Event, all references to "Stock" shall refer to the
Marketable Securities received in such event in lieu of referring to
the Class A Common Stock.
"Temporary Investments" means direct short-term U.S.
government obligations, as specified from time to time as provided in
Section 3.5.
"Transfer Agent and Registrar" means, at any time, the
transfer agent and registrar for the Class A Common Stock or Marketable
Securities, as applicable, at such time.
"Treasury Securities" means the U.S. Government Securities
purchased by the Trustees at the First Time of Delivery and, if
applicable, the Second Time of Delivery as provided in Section 2.3(b)
and, if applicable, the U.S. Government Securities delivered to the
Trust by Seller[S] pursuant to Section 2.3(e) of the Contract.
"Trust" has the meaning specified in the preamble to this
Agreement.
"Trust Account" means the account created pursuant to Section
3.1.
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"Trust Estate" means the Contract and the U.S. Government
Securities held at any time by the Trust, together with any Temporary
Investments held at any time pursuant to Section 3.5, and any proceeds
of or from such U.S. Government Securities or Temporary Investments and
any other moneys held at any time in the Trust Account.
"Trustees" has the meaning specified in the preamble to this
Agreement.
"Underwriters" means the Underwriters named in the
Underwriting Agreement. [REVISE AS NECESSARY]
"Underwriting Agreement" means the Underwriting Agreement,
dated , 1999, as described in the Prospectus. [REVISE AS NECESSARY]
"U.S. Government Securities" means direct obligations of the
United States of America.
Section 1.2. Interpretation.
(a) When a reference is made in this Agreement to Articles, Sections,
Exhibits or Schedules, such reference is to Articles or Sections of, or Exhibits
or Schedules to, this Agreement unless otherwise indicated.
(b) The table of contents and headings contained in this Agreement are
for reference purposes only and are not part of this Agreement, and shall not be
deemed to limit or otherwise affect any of the provisions of this Agreement.
(c) Whenever the words "include", "includes" or "including" are used in
this Agreement, they shall be deemed to be followed by the words "without
limitation".
(d) Any reference to any statute, regulation or agreement shall be a
reference to such statute, regulation or agreement as supplemented or amended
from time to time.
ARTICLE II
TRUST DECLARATION; PURPOSES, POWERS
AND DUTIES OF THE TRUSTEES; ADMINISTRATION
Section 2.1. Declaration of Trust; Purposes of the Trust;
Resignation and Appointment of Trustees.
(a) The Sponsor hereby creates the Trust in order that it may acquire
the Treasury Securities, enter into the Contract, issue and sell to the Sponsor
and the Underwriters the Securities, receive and redeliver additional U.S.
Government Securities upon an extension of the Exchange Date pursuant to the
Contract, hold the Trust Estate
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in trust for the use and benefit of all present and future Holders, and
otherwise carry out the terms and conditions of this Agreement, all for the
purpose of achieving the investment objectives set forth in the Prospectus. The
Trustees hereby declare that they will accept and hold the Trust Estate in trust
for the use and benefit of all present and future Holders. The Sponsor has
heretofore deposited with the Trustees the sum of $10 to accept and hold in
trust hereunder until the issuance and sale of the Securities to the
Underwriters, whereupon such sum shall be donated to an organization satisfying
the requirements of Section 170(c)(2) of the Code selected by unanimous consent
of the Trustees.
(b) Xxxx X. Efron hereby resigns as trustee of the Trust, in accordance
with the provisions of Section 4 of the Original Agreement, and the Sponsor, as
the sole holder of any beneficial interest in the Trust as of the date of this
Agreement, hereby accepts the resignation of Xxxx X. Efron and appoints [Name],
[Name] and [Name] to be the Trustees of the Trust under this Agreement.
(c) Upon the execution of this Agreement, the name of the Trust shall
be changed to Ameritrade Automatic Common Exchange Securities Trust.
Section 2.2. General Powers and Duties of the Trustees. In furtherance
of the provisions of Section 2.1, the Sponsor authorizes and directs the
Trustees:
(a) to enter into and perform (and, in accordance with Section
8.5, amend) the Contract, the Collateral Agreement, the Underwriting
Agreement, the Expense Agreement, the Indemnity Agreement, the
Custodian Agreement, the Administration Agreement and the Paying Agent
Agreement and to perform all obligations of the Trustees (including the
obligation to provide indemnity hereunder and thereunder) and enforce
all rights and remedies of the Trust under each of such agreements; and
if any of the Custodian Agreement, the Administration Agreement, the
Collateral Agreement and the Paying Agent Agreement terminates, or the
agent of the Trust thereunder resigns or is discharged, to appoint a
substitute agent and enter into a new agreement with such substitute
agent containing provisions substantially similar to those contained in
the agreement being terminated; provided that in any such new agreement
(i) the Custodian and the Paying Agent shall each be a commercial bank
or trust company organized and existing under the laws of the United
States of America or any state therein (or, in the case of the initial
Paying Agent, a limited liability company affiliate with such a
commercial bank or trust company), shall have full trust powers and
shall have minimum capital, surplus and retained earnings of not less
than $100,000,000; and (ii) the Administrator and the Collateral Agent
shall each be a reputable financial institution qualified in all
respects to carry out its obligations under the Administration
Agreement or the Collateral Agreement, as the case may be;
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(b) to hold the Trust Estate in trust, to create and
administer the Trust Account, to direct payments received by the Trust
to the Trust Account and to make payments out of the Trust Account as
set forth in Article III;
(c) to issue and sell to the Underwriters an aggregate of up
to Securities (including those Securities subject to the
over-allotment option of the Underwriters provided for in the
Underwriting Agreement) pursuant to the Underwriting Agreement and as
contemplated by the Prospectus; provided, however, that subsequent to
the determination of the public offering price per Security and related
underwriting discount for the Securities to be sold to the Underwriters
but prior to the sale of the Securities to the Underwriters, the
Security originally issued to the Sponsor shall be split into a greater
number of Securities so that immediately following such split the value
of each Security held by the Sponsor will equal the aforesaid public
offering price; [REVISE AS NECESSARY]
(d) to select independent public accountants and, subject to
the provisions of Section 8.5, to engage such independent public
accountants;
(e) to engage legal counsel and, to the extent required by
Section 2.4, to engage professional advisors and pay reasonable
compensation thereto;
(f) to defend any action commenced against the Trustees or the
Trust and to prosecute any action which the Trustees deem necessary to
protect the Trust and the rights and interests of Holders, and to pay
the costs thereof;
(g) to arrange for the bonding of officers and employees of
the Trust as required by Section 17(g) of the Investment Company Act
and the rules and regulations thereunder;
(h) to delegate any and all of its powers and duties hereunder
as contemplated by the Collateral Agreement, the Custodian Agreement,
the Paying Agent Agreement and the Administration Agreement, to the
extent permitted by applicable law; and
(i) to adopt and amend bylaws, and take any and all such other
actions as necessary or advisable to carry out the purposes of the
Trust, subject to the provisions of this Agreement and applicable law,
including, without limitation, the Investment Company Act.
Section 2.3. Portfolio Acquisition. In furtherance of the
provisions of Section 2.1, the Sponsor further specifically authorized and
directs the Trustees:
(a) to enter into the Contract with Seller[S] on the
Commencement Date for settlement on the date or dates provided
thereunder and, subject to satisfaction of the conditions set forth in
the Contract, to pay the Firm Purchase
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Price and the Additional Purchase Price, if any, thereunder with the
proceeds of the sale of the Securities, net of the fees and expenses
of the Trust incurred in connection with the public offering of the
Securities and the costs and expenses incurred in connection with the
organization of the Trust as described in the first sentence of
Section 3.2 and net of the purchase price paid for the Treasury
Securities as provided in paragraph (b) below; and, subject to the
adjustments and exceptions set forth in the Contract, the Contract
shall entitle the Trust to receive from Seller[S] on the Exchange Date
the Stock subject thereto (or, if Seller[S] elects the Cash Settlement
Alternative, the amount in cash specified in the Contract) so that the
Trust may execute the Exchange with the Holders; and
(b) to purchase for settlement (i) at the First Time of
Delivery, with the proceeds of the sale of the Securities issued by the
Trust at such First Time of Delivery, U.S. Government Securities having
the terms set forth on Schedule I(a), from such brokers or dealers as
the Trustees shall designate in writing to the Administrator, and (ii)
at the Second Time of Delivery, if any, with the proceeds of the sale
of the Securities issued by the Trust at such Second Time of Delivery,
U.S. Government Securities that, through the scheduled payment of
principal and interest in accordance with their terms, will provide,
not later than one Business Day before each Distribution Date cash in
an amount as close as practicable to (but in no event less than) the
product of $ and the Additional Share Base Amount (after taking into
account any prior payments under such U.S. Government Securities and
any prior distributions made by the Trust), and otherwise having such
terms as may be determined by the Sponsor (which terms shall be set
forth on a new Schedule I(b), which shall be attached to and form a
part of this Agreement from and after such Second Time of Delivery),
from such brokers or dealers as the Trustees shall designate in writing
to the Administrator.
Section 2.4. Portfolio Administration. In furtherance of the provisions
of Section 2.1, the Sponsor further specifically authorizes and directs the
Trustees:
(a) Determination of Dilution, Merger or Acceleration
Adjustments. Upon receipt of any notice pursuant to Section 5.1(d)(ii)
of the Contract of an event requiring an adjustment to the Exchange
Rate, or upon otherwise acquiring knowledge of such an event, to
calculate the required adjustment and furnish notice thereof to the
Collateral Agent and Seller[S], or to request from Seller[S] such
further information as may be necessary to calculate or effect the
required adjustment;
(b) Selection of Independent Investment Bank. Upon receipt of
notice of (i) the occurrence of a Reorganization Event in which
property other than cash or Marketable Securities is to be received in
respect of the Class A Common Stock as described in Section 6.2 of the
Contract, (ii) an Excess Purchase Payment in which the Company has paid
or will pay consideration other than cash as described in Section
6.1(d) of the Contract, or (iii) the declaration or payment of a
dividend or distribution to all holders of Class A Common Stock of
evidences of
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its indebtedness or other non-cash assets or the issuance
of Class A Common Stock rights or warrants as described in Section
6.1(c) of the Contract, to retain the nationally recognized investment
banking firm selected by the Administrator to determine the market
value of such property as provided in the Contract, and to deliver to
Seller[S] notice pursuant to Section 8.1 of the Contract identifying
the firm proposed to be selected and retained, and to cause the
Administrator to consult with Seller[S] on such selection and retention
as provided in such Section 8.1;
(c) Application to List Securities. If the Securities are
delisted or suspended from trading on the [NEW YORK STOCK EXCHANGE],
Inc., to apply for listing of the Securities on another national or
regional securities exchange or for quotation on another trading
market;
(d) Additional U.S. Government Securities. To accept
additional U.S. Government Securities delivered to the Trust in
connection with an extension of the Exchange Date at Seller[S]'[S]
election in accordance with Section 2.3(c) of the Contract, and to
redeliver such U.S. Government Securities in connection with an
acceleration of the Exchange Date at Seller[S]'[S] election in
accordance with Section 2.3(f) of the Contract;
(e) Delivery of Cash Settlement Alternative Election Notice to
Holders of Securities. Upon receipt of a notice from Seller[S] of its
election of the Cash Settlement Alternative, as provided by Section
2.3(d) of the Contract, of the extension of the Exchange Date, as
provided by Section 2.3(e) of the Contract, or of the acceleration of
the Exchange Date, as provided by Section 2.3(f) of the Contract, to
give notice of such election, extension or acceleration as provided in
the Contract;
(f) Acceleration. In the event (i) an acceleration of the
Contract shall occur due to an Event of Default as provided in Article
VII of the Contract, or (ii) a Cash Merger shall occur in which all of
the Merger Consideration is included in the Accelerated Portion, to
liquidate or cause the Custodian to liquidate all the Treasury
Securities;
(g) Determination of Amounts to be Delivered under the
Contract. (i) To calculate, on the Exchange Date, upon the acceleration
of Seller[S]'[S] obligations under the Contract pursuant to Section 7.1
of the Contract and upon the occurrence of a Cash Merger, the number of
shares of Stock or amount in cash required to be delivered by Seller[S]
under the Contract on such date or as a result of such event, and (ii)
to furnish notice of the amounts so determined to the Collateral Agent
and Seller[S];
(h) Distribution of Exchange Consideration. Unless a
Reorganization Event shall occur in which the Merger Consideration does
not include any Marketable Securities (in which event the distribution
of proceeds shall be
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governed by Section 2.4(i) or 2.4(j), as applicable) or Seller[S] elect
[s] the Cash Settlement Alternative (in which event the distribution of
proceeds shall be governed by Section 2.4(i)), or the Contract shall be
accelerated pursuant to Section 7.1 of the Contract (in which event the
distribution of proceeds shall be governed by Section 2.4(k)):
(i) Determination of Fractional Stock. To determine,
on the Exchange Date: (A) for each Holder of Securities, such
Holder's pro rata share of the total number of shares of Stock
delivered to the Trustees under the Contract on the Exchange
Date; and (B) the number of fractional shares of Stock
allocable to each Holder (including, in the case of the
Depositary, fractional Stock allocable to beneficial owners of
Securities who own through Participants) and in the aggregate;
(ii) Cash for Fractional Stock. To sell, in the
principal market therefor, on the Exchange Date, a number of
shares of Stock equal to the aggregate number of fractional
shares of Stock determined pursuant to clause (i) (B) above,
rounded down to the nearest integral number; and to determine
the difference between (A) the aggregate proceeds of such sale
(net of any brokerage or related expenses) and (B) the product
of the number of shares of Stock so sold and the Average
Market Price; and, in accordance with Section 2.3 of the
Indemnity Agreement, to pay such difference, if positive, to
Seller[S], or to request payment of such difference, if
negative, from Seller[S];
(iii) Delivery of Stock. To deliver the remaining
Stock to the Transfer Agent and Registrar for such Stock on
the Exchange Date, with instructions that such Stock be
re-registered and re-issued as follows: (A) for and in the
name of each Holder (other than the Depositary) who holds
Securities in definitive form, the Transfer Agent and
Registrar for such Stock shall be instructed to issue
definitive certificates representing a number of shares of
Stock equal to such Holder's pro rata share of the total
delivered to the Trust under the Contract on the Exchange
Date, rounded down to the nearest integral number; (B) the
Transfer Agent and Registrar shall be instructed to transfer
all remaining Stock to the account of the Custodian held
through the Depositary, who shall then be instructed to
transfer and credit such Stock to each Participant who holds
Securities, with each Participant receiving its pro rata share
of the total delivered to the Trust under the Contract on the
Exchange Date, reduced by the aggregate fractional Stock
allocable to beneficial owners of Securities who own through
such Participant;
(iv) Distribution of Cash in Respect of Fractional
Stock. To distribute to each Holder of Securities cash in the
amount of: (A) the fraction of a Share, if any, allocable to
such Holder as determined pursuant to clause (i) (B) above;
times (B) the Average Market Price;
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(v) Record Date. The distributions described in this
paragraph (g) shall be made to Holders of record as of the
close of business on the Business Day preceding the Exchange
Date; and
(vi) Reorganization Events. If a Reorganization Event
occurs in which the Merger Consideration includes Marketable
Securities, this Section 2.4(h) shall relate to the portion of
the Merger Consideration that consists of Marketable
Securities.
(i) Distribution of Cash Upon Seller[S]'[S] Election of Cash
Settlement Alternative or Following a Reorganization Event. If
Seller[S] elect[s] the Cash Settlement Alternative, or if Seller[S]
[is] [are] required or elect[s] to deliver cash on the Exchange Date
following a Reorganization Event pursuant to Section 6.2(a) of the
Contract, to distribute to each Holder of record as of the close of
business on the Business Day preceding the Exchange Date such Holder's
pro rata share of any cash received by the Trust from the Seller[S] in
connection therewith;
(j) Distribution of Accelerated Portion. If a Cash Merger
shall occur, to distribute promptly to each Holder of record as of the
close of business on the Business Day preceding the distribution date
such Holder's pro rata share of the Accelerated Portion delivered under
the Contract together with, if applicable, such Holder's pro rata share
of the proceeds of the liquidation of the Treasury Securities pursuant
to Section 2.4(f); and
(k) Distribution of Cash and Stock Received upon Acceleration
of Exchange Date Following a Default by Seller[S] . If the obligations
of Seller[S] [is] [are] accelerated pursuant to Section 7.1 of the
Contract:
(i) Determination of Fractional Stock. To determine,
on the Business Day following the date on which Seller[S] or
the Collateral Agent delivers Class A Common Stock and
Marketable Securities to the Trust, as provided in Section 7.1
of the Contract or Section 7.1 of the Collateral Agreement:
(A) for each Holder of Securities, such Holder's pro rata
share of the total number of shares of Stock delivered to the
Trustees under the Contract on such date; and (B) the number
of fractional shares of Stock allocable to each Holder
(including, in the case of the Depositary, fractional Stock
allocable to beneficial owners of Securities who own through
Participants) and in the aggregate;
(ii) Cash for Fractional Stock. To sell, in the
principal market therefor, on the Business Day following the
date on which Seller[S] or the Collateral Agent delivers Class
A Common Stock and Marketable Securities to the Trust, a
number of shares of Stock equal to the aggregate number of
fractional shares of Stock determined pursuant to clause
(i)(B) above, rounded down to the nearest integral number; and
to
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determine the difference between (A) the aggregate proceeds
of such sale (net of any brokerage or related expenses) and
(B) the product of the number of shares of Stock so sold and
the Average Market Price; and, in accordance with Section 2.3
of the Indemnity Agreement, to pay such difference, if
positive, to Seller[S], or to request payment of such
difference, if negative, from Seller[S] or from the Collateral
Agent from the proceeds of the collateral under the Collateral
Agreement;
(iii) Delivery of Stock. To deliver the remaining
Stock to the Transfer Agent and Registrar for such Stock the
Business Day following the date on which Seller[S] or the
Collateral Agent delivers Class A Common Stock and Marketable
Securities to the Trust, with instructions that such Stock be
re-registered and re-issued as follows: (A) for and in the
name of each Holder (other than the Depositary) who holds
Securities in definitive form, the Transfer Agent and
Registrar for such Stock shall be instructed to issue
definitive certificates representing a number of shares of
Stock equal to such Holder's pro rata share of the total
delivered to the Trust under the Contract on the Exchange
Date, rounded down to the nearest integral number; (B) the
Transfer Agent and Registrar for such Stock shall be
instructed to transfer all remaining Stock to the account of
the Custodian held through the Depositary, who shall then be
instructed to transfer and credit such Stock to each
Participant who holds Securities, with each Participant
receiving its pro rata share of the total delivered to the
Trust under the Contract on such Business Day, reduced by the
aggregate fractional Stock allocable to beneficial owners of
Securities who own through such Participant;
(iv) Distribution of Cash in Respect of Fractional
Stock and Treasury Securities. To distribute to each Holder of
Securities (x) cash in the amount of: (A) the fraction of a
Share, if any, allocable to such Holder as determined pursuant
to clause (i) (B) above; times (B) the Average Market Price,
together with (y) such Holder's pro rata share of the proceeds
of the liquidation of the Treasury Securities pursuant to
Section 2.4(f); and
(v) Record Date. The distributions described in this
paragraph (h) shall be made to Holders of record as of the
close of business on the Business Day following the date on
which Seller[S] or the Collateral Agent delivers Class A
Common Stock and Marketable Securities to the Trust.
Section 2.5. Manner of Sales. Any sale of Trust property permitted or
required under this Agreement shall be made through such executing brokers or to
such dealers as the Trustees, seeking best price and execution for the Trust,
shall designate in writing to the Paying Agent, taking into account such
factors as price, commission, size of order, difficulty of execution and
brokerage skill required.
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Section 2.6. Limitations on Trustees' Powers. The Trustees are not
permitted:
(a) to purchase or hold any securities or instruments except
for the Stock, the Contract, the Treasury Securities, any additional
U.S. Government Securities delivered to the Trust in connection with an
extension of the Exchange Date pursuant to Section 2.3(e) of the
Contract, the Temporary Investments contem plated by Section 3.5 and,
in the event of a Reorganization Event or a Spin-Off Distribution,
Marketable Securities or any other property received in such event;
(b) to dispose of the Contract prior to the Exchange Date;
(c) to issue any securities or instruments except for the
Securities, or to issue any Securities other than the Securities sold
to the Sponsor and the Securities to be sold pursuant to the
Underwriting Agreement and until such Securities have been so purchased
and paid for in full;
(d) to make short sales or purchases on margin;
(e) to write put or call options;
(f) to borrow money;
(g) to underwrite securities;
(h) to purchase or sell real estate, commodities or
commodities contracts;
(i) to purchase restricted securities;
(j) to make loans (other than the purchase of the Treasury
Securities pursuant to Section 2.3); or
(k) to take any action, or direct or permit the Administrator,
the Paying Agent or the Custodian to take any action, that would vary
the investment of the Holders within the meaning of Treasury Regulation
Section 301.7701-4(c), or otherwise take any action or direct or permit
any action to be taken that would or could cause the Trust not to be a
"grantor trust" under the Code.
ARTICLE III
ACCOUNTS AND PAYMENTS
Section 3.1. The Trust Account. The Trustees shall, upon issuance of
the Securities, establish with the Paying Agent an account to be called the
"Trust Account". All moneys received by the Trustees in respect of the Contract,
the Treasury Securities, any other U.S. Government Securities delivered to the
Trust and any Temporary
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Investments held pursuant to Section 3.5, all moneys received from the sale of
the Securities to the Sponsor, and any proceeds from the sale to the
Underwriters of the Securities remaining after the purchase of the Contract and
the Treasury Securities shall be credited to the Trust Account.
Section 3.2. Payment of Fees and Expenses. If so directed by Seller[S],
the Administrator is authorized to pay, from the amounts payable to Seller[S]
pursuant to the Contract, the fees and expenses of the Trust incurred in
connection with the public offering of the Securities and the costs and expenses
incurred in connection with the organization of the Trust. In addition, the
Administrator is authorized to pay, from the assets of the Trust, the fees and
expenses of the Trust incurred in connection with the public offering of the
Securities and the costs and expenses incurred in connection with the
organization and operation of the Trust, to the extent that such fees, costs and
expenses are not paid by third parties.
Section 3.3. Distributions to Holders. On each Distribution Date, the
Trustees shall distribute to each Holder of record at the close of business on
the preceding Record Date, at the post office address of the Holder appearing on
the books of the Paying Agent or by any other means mutually agreed upon by the
Holder and the Trust, an amount equal to the Quarterly Distribution with respect
to all Securities held by such Holder computed as of the close of business on
such Distribution Date.
Section 3.4. Segregation. All moneys and other assets deposited or
received by the Trustees hereunder shall be held by them in trust as part of the
Trust Estate until required to be disbursed or otherwise disposed of in
accordance with the provisions of this Agreement, and the Trustees shall handle
such moneys and other assets in such manner as shall constitute the segregation
and holding in trust within the meaning of the Investment Company Act.
Section 3.5. Temporary Investments. To the extent necessary to enable
the Paying Agent to make the next succeeding Quarterly Distribution, any moneys
deposited with or received by the Trustees in the Trust Account shall be
invested as soon as possible by the Paying Agent in Temporary Investments
maturing no later than the Business Day preceding the next following
Distribution Date. Except as otherwise specifically provided herein or in the
Paying Agent Agreement, the Paying Agent shall not have the power to sell,
transfer or otherwise dispose of any Temporary Investment prior to the maturity
thereof, or to acquire additional Temporary Investments. The Paying Agent shall
hold any Temporary Investment to its maturity and shall apply the proceeds
thereof upon maturity to the payment of the next succeeding Quarterly
Distribution. All such Temporary Investments shall be selected from time to time
by the Trustees or pursuant to standing instructions from the Trustees to the
Administrator, and the Administrator and/or Paying Agent shall have no liability
to the Trust or any Holder or any other Person with respect to the payment or
performance of any such Temporary Investment. Any interest or other income
received on any moneys in the Trust Account shall, upon receipt thereof, be
deposited into the Trust Account. Notwithstanding the foregoing, not more than
5% of the assets of the Trust may be held at any time in the
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form of cash and Temporary Investments, and the Trustees shall distribute cash,
or liquidate Temporary Investments and distribute the proceeds thereof, if, when
and to the extent needed to maintain compliance with the foregoing restriction.
ARTICLE IV
REDEMPTION
Section 4.1. Redemption. The Trustees shall have no right or obligation
to redeem Securities.
ARTICLE V
ISSUANCE OF CERTIFICATES; REGISTRY; TRANSFER OF SECURITIES
Section 5.1. Form of Certificate.
(a) Each Certificate evidencing Securities shall be executed manually
or in facsimile by the Managing Trustee and countersigned manually by the Paying
Agent in substantially the form of Exhibit A with the blanks appropriately
filled in, shall be dated the date of countersignature and delivery by the
Paying Agent and shall represent a fractional undivided interest in the Trust,
the numerator of which fraction shall be the number of Securities set forth on
the face of such Certificate and the denominator of which shall be the total
number of Securities outstanding at that time. All Securities shall be issued in
registered form and shall be numbered serially.
(b) The Certificates delivered to the Underwriters at the First Time of
Delivery and the Second Time of Delivery (if any) will be issued in the form of
a global Certificate or Certificates representing the Securities issued to the
Underwriters, to be delivered to the Depositary, or its custodian, by or on
behalf of the Trust. Such Certificate or Certificates shall initially be
registered on the books and records of the Trust in the name of Cede & Co., the
nominee of the Depositary, and no beneficial owner of such Securities will
receive a definitive Certificate representing such beneficial owner's interest
in such Securities, except as provided in the next paragraph. Unless and until
definitive, fully registered Certificates have been issued pursuant to the next
paragraph, the Trust shall be entitled to deal with the Depositary for all
purposes of this Agreement as the Holder and the sole holder of the Certificates
and shall have no obligation to the beneficial owners thereof, and none of the
Trust, the Trustees, or any agent of the Trust or the Trustees shall have any
liability with respect to or responsibility for the records of the Depositary.
(c) If the Depositary elects to discontinue its services as securities
depository, then definitive Certificates shall be prepared by the Trustees as
provided above. Upon surrender of the global Certificate or Certificates
accompanied by registration
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instructions, the Trustees shall cause definitive Certificates to be delivered
to the beneficial owners in accordance with the instructions of the Depositary.
Neither the Trustees nor the Trust shall be liable for any delay in delivery of
such instructions and may conclusively rely on, and shall be protected in
relying on, such instructions.
(d) Pending the preparation of definitive Certificates, the Managing
Trustee may execute and the Paying Agent shall countersign and deliver temporary
Certificates (printed, lithographed, typewritten or otherwise reproduced, in
each case in form satisfactory to the Paying Agent). Temporary Certificates
shall be issuable as registered Certificates substantially in the form of the
definitive Certificates but with such omissions, insertions and variations as
may be appropriate for temporary Certificates, all as may be determined by the
Trustees with the concurrence of the Paying Agent. Every temporary Certificate
shall be executed by the Managing Trustee and be countersigned manually by the
Paying Agent upon the same conditions and in substantially the same manner, and
with like effect, as the definitive Certificates. Without unreasonable delay the
Managing Trustee shall execute and shall furnish definitive Certificates to the
Paying Agent and thereupon temporary Certificates may be surrendered in exchange
therefor without charge at each office or agency of the Paying Agent and the
Paying Agent shall countersign and deliver in exchange for such temporary
Certificates definitive Certificates for a like aggregate number of Securities.
Until so exchanged, the temporary Certificates shall be entitled to the same
benefits hereunder as definitive Certificates.
Section 5.2. Transfer of Securities; Issuance, Transfer and Interchange
of Certificates.
(a) Securities may be transferred by the Holder thereof by presentation
and surrender of properly endorsed Certificates at the office of the Paying
Agent, accompanied by such documents executed by the Holder or his authorized
attorney as the Paying Agent deems necessary to evidence the authority of the
person making the transfer. Certificates issued pursuant to this Agreement are
interchangeable for one or more other Certificates in an equal aggregate number
of Securities and all Certificates issued shall be issued in denominations of
one Security or any multiple thereof. The Paying Agent may deem and treat the
person in whose name any Security shall be registered upon the books of the
Paying Agent as the owner of such Security for all purposes hereunder and the
Paying Agent shall not be affected by any notice to the contrary. The transfer
books maintained by the Paying Agent for the purposes of this Section 5.2 shall
include the name and address of the record owners of the Securities and shall be
closed in connection with the termination of the Trust pursuant to Section 8.3.
(b) A sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any such transfer shall be paid to the Paying
Agent by the Holder. A Holder may be required to pay a fee for each new
Certificate to be issued pursuant to the preceding paragraph in such amount as
may be specified by the Paying Agent and approved by the Trustees.
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(c) All Certificates canceled pursuant to this Agreement may be voided
by the Paying Agent in accordance with the usual practice of the Paying Agent or
in accordance with the instructions of the Trustees; provided, however, that the
Paying Agent shall not be required to destroy canceled Certificates.
(d) The Paying Agent may adopt other reasonable rules and regulations
for the registration, transfer and tender of Securities as it may, in its
discretion, deem necessary.
Section 5.3. Replacement of Certificates. In case any Certificate shall
become mutilated or be destroyed, stolen or lost, the Paying Agent shall execute
and deliver a new Certificate in exchange and substitution therefor upon the
Holder's furnishing the Paying Agent with proper identification and satisfactory
indemnity of the Trustees and the Paying Agent, complying with such other
reasonable regulations and conditions as the Paying Agent may prescribe and
paying such expenses and charges, including any bonding fee, as the Paying Agent
may incur or reasonably impose; provided that if the Trust has terminated or is
in the process of terminating, the Paying Agent, in lieu of issuing such new
Certificate, may, upon the terms and conditions set forth herein, make the
distributions set forth in Section 8.3(c). Any mutilated Certificate shall be
duly surrendered and canceled before any duplicate Certificate shall be issued
in exchange and substitution therefor. Upon issuance of any duplicate
Certificate pursuant to this Section 5.3, the original Certificate claimed to
have been lost, stolen or destroyed shall become null and void and of no effect,
and any bona fide purchaser thereof shall have only such rights as are afforded
under Article 8 of the Uniform Commercial Code as in effect in the State of New
York to a Holder presenting a Certificate for transfer in the case of an
overissue.
ARTICLE VI
EXECUTION OF THE CONTRACT
Section 6.1. Execution of the Contract[S]. [The] [Each] Contract[S]
shall be executed manually or in facsimile by the Managing Trustee and executed
manually by [THE] Seller[S] [party thereto] and shall be dated the date of
execution and delivery by [THE] Seller[S] [party thereto].
ARTICLE VII
TRUSTEES
Section 7.1. Trustees. The Trust shall have three Trustees who shall
initially be elected by the Sponsor. One Trustee shall be the Managing Trustee
and, as such, is authorized to execute documents and instruments on behalf of
the Trust. The Managing Trustee will be appointed by resolution of the Trustees.
Each Trustee shall serve until
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the next regular annual or special meeting of Holders called for the purpose of
electing Trustees and, then, until such Trustee's successor is duly elected and
qualified. Election shall be by the affirmative vote of Holders of a majority of
the Securities entitled to vote present in person or by proxy at a regular
annual or special meeting of Holders called for the purpose of electing any
Trustee. Holders may not cumulate their votes in the election of Trustees. Each
Trustee shall not be considered to have qualified for the office unless such
Trustee shall agree to be bound by the terms of this Agreement and shall
evidence his consent by executing this Agreement or a supplement hereto. Each
individual Trustee shall be at least 21 years of age and shall not be under any
legal disability. No Trustee who is an "interested person", as defined in the
Investment Company Act, may assume office if it would cause the composition of
the Trustees of the Trust not to be in compliance with the percentage
limitations on interested persons in Section 10 of the Investment Company Act.
Trustees need not be Holders.
Section 7.2. Vacancies. Any vacancy in the office of a Trustee may be
filled in compliance with Sections 10 and 16 of the Investment Company Act by
the vote, within thirty days, of the remaining Trustees; provided that if
required by Section 16 of the Investment Company Act, the Trustees shall
forthwith cause to be held as promptly as possible and in any event within sixty
days (unless the Commission by order shall extend such period) a special meeting
of Holders for the purpose of electing Trustees in compliance with Sections 10
and 16 of the Investment Company Act. Any Trustee elected at such a meeting
shall have the qualifications specified in Section 7.1. Until a vacancy in the
office of any Trustee is filled as provided above, the remaining Trustees in
office, regardless of their number, shall have the powers granted to the
Trustees and shall discharge all the duties imposed upon the Trustees by this
Agreement. Notice of the appointment or election of a successor Trustee shall be
mailed promptly after acceptance of such appointment by the successor Trustee to
each Holder.
Section 7.3. Powers. The Trust will be managed solely by the Trustees,
who will, subject to the provisions of Article II, have complete and exclusive
control over the management, conduct and operation of the Trust's business, and
shall have the rights, powers and authority of a board of directors of a
corporation organized under New York law. The Trustees shall have fiduciary
responsibility for the safekeeping and use of all funds and assets of the Trust
and shall not employ, or permit another to employ, such funds or assets in any
manner except for the exclusive benefit of the Trust and except in accordance
with the terms of this Agreement. Subject to the continuing supervision of the
Trustees and as permitted by applicable law, the functions of the Trust shall be
performed by the Custodian, the Paying Agent, the Administrator and such other
entities engaged to perform such functions as the Trustees may determine,
including, without limitation, any or all administrative functions.
Section 7.4. Meetings. Meetings of the Trustees shall be held from time
to time upon the call of any Trustee on not less than 48 hours' notice (which
may be waived by any or all of the Trustees in writing either before or after
such meeting or by attendance at the meeting unless the Trustee attends the
meeting for the express purpose of objecting to the transaction of any business
on the ground that the meeting has not
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been lawfully called or convened). The Trustees shall act either by majority
vote of the Trustees present at a meeting at which at least a majority of the
Trustees then in office are present or by a unanimous written consent of the
Trustees without a meeting. Except as otherwise required under the Investment
Company Act, all or any of the Trustees may participate in a meeting of the
Trustees by means of a conference telephone call or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and participation in a meeting pursuant to such communications
equipment shall constitute presence in person at such meeting.
Section 7.5. Resignation and Removal. Any Trustee may resign and be
discharged of the trust created by the Agreement by executing an instrument in
writing resigning as Trustee, filing the same with the Administrator and sending
notice thereof to the remaining Trustees, and such resignation shall become
effective immediately unless otherwise specified therein. Any Trustee may be
removed in the event of incapacity by vote of the remaining Trustees and for any
reason by written declaration or vote of the Holders of more than 66 2/3% of the
outstanding Securities, notice of which vote shall be given to the remaining
Trustees and the Administrator. The resignation, removal or failure to reelect
any Trustee shall not cause the termination of the Trust.
Section 7.6. Liability. The Trustees shall not be liable to the Trust
or any Holder for taking any action or for refraining from taking any action
except in the case of willful misfeasance, bad faith, gross negligence or
reckless disregard of the duties of their office. Specifically, without
limitation, the Trustees shall not be responsible for or in respect of the
recitals herein or the validity or sufficiency of this Agreement or for the due
execution hereof by any other Person, or for or in respect of the validity or
sufficiency of Securities or the Certificates representing Securities and shall
in no event assume or incur any liability, duty or obligation to any Holder or
to any other Person, other than as expressly provided for herein. The Trustees
may employ agents, attorneys, administrators, accountants and auditors, and
shall not be answerable for the default or misconduct of any such Persons if
such Persons shall have been selected with reasonable care. Action in good faith
may include action taken in good faith in accordance with an opinion of counsel.
In no event shall any Trustee be personally liable for any expenses with respect
to the Trust. Each Trustee shall be indemnified from the Trust Estate with
respect to any claim, liability, loss or expense incurred in acting as Trustee
of the Trust, including the costs and expenses of the defense against any such
claim or liability, except in the case of willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties of his office.
Section 7.7. Compensation. Each Trustee, other than a Trustee who is a
director, officer or employee of the Sponsor, any Underwriter, or the
Administrator or any affiliate thereof, shall receive a one-time, up-front fee
of [$10,800], in respect of its annual fee and anticipated out-of-pocket
expenses. In addition, the Managing Trustee shall receive an additional
one-time, up-front fee of [$3,600] for serving in such capacity. The Trustees
will not receive any pension or retirement benefits. In the event of the
resignation or removal of a Trustee, such Trustee shall remit to the Trust the
portion of
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its fee ratable for the period from the day of such resignation or
removal through the Exchange Date.
ARTICLE VIII
MISCELLANEOUS
Section 8.1. Meetings of Holders. The Trustees shall hold annual meetings
of Holders to elect Trustees as provided in Section 7.1. A special meeting may
be called at any time by the Trustees or upon petition of Holders of not less
than 51% of the Securities outstanding (unless substantially the same matter was
voted on during the preceding 12 months), and shall be called as provided in
Section 7.2 (or as otherwise required by the Investment Company Act and the
rules and regulations thereunder, including, without limitation, when requested
by the Holders of not less than 10% of the Securities outstanding for the
purposes of voting upon the question of the removal of any Trustee or Trustees).
The Trustees shall establish, and notify the Holders in writing of, the record
date for each such meeting which shall be not less than 10 nor more than 50 days
before the meeting date. Holders at the close of business on the record date
will be entitled to vote at the meeting. The Administrator shall, as soon as
possible after any such record date (or prior to such record date if
appropriate), mail by first class mail to each Holder a notice of meeting and a
proxy statement and form of proxy in the form approved by the Trustees and
complying with the Investment Company Act and the rules and regulations
thereunder. Except as otherwise specified herein or in any provision of the
Investment Company Act and the rules and regulations thereunder, any action may
be taken by vote of Holders of a majority of the Securities outstanding present
in person or by proxy if Holders of a majority of Securities outstanding on the
record date are so represented. Each Security shall have one vote and may be
voted in person or by duly executed proxy. Any proxy may be revoked by notice in
writing, by a subsequently dated proxy or by voting in person at the meeting,
and no proxy shall be valid after eleven months following the date of its
execution. Any Investment Company owning Securities in excess of the limits
imposed by Sections 12(d)(1)(A)(i) and 12(d)(1)(C) of the Investment Company Act
shall vote its Securities in proportion to the votes of all other Holders.
Section 8.2. Books and Records; Reports.
(a) The Trustees shall keep a certified copy or duplicate original of this
Agreement on file at the office of the Trust, which shall be located at 000 Xxxx
00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and the office of the Administrator
available for inspection at all reasonable times during its usual business hours
by any Holder. The Trustees shall keep proper books of record and account for
all the transactions under this Agreement at the office of the Trust and the
office of the Administrator, and such books and records shall be open to
inspection by any Holder at all reasonable times during usual business hours.
The Trustees shall retain all books and records in
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compliance with Section 31 of the Investment Company Act and the rules and
regulations thereunder.
(b) With each payment to Holders the Paying Agent shall set forth,
either in the instruments by means of which payment is made or in a separate
statement, the amount being paid from the Trust Account expressed as a dollar
amount per Security and the other information required under Section 19 of the
Investment Company Act and the rules and regulations thereunder. The Trustees
shall prepare and file or distribute reports as required by Section 30 of the
Investment Company Act and the rules and regulations thereunder. The Trustees
shall prepare and file such reports as may from time to time be required to be
filed or distributed to Holders under any applicable state or Federal statute or
rule or regulation thereunder, and shall file such tax returns as may from time
to time be required under any applicable state or Federal statute or rule or
regulation thereunder. One of the Trustees shall be designated by resolution of
the Trustees to make the filings and give the notices required by Rule 17g-1
under the Investment Company Act.
(c) In calculating the net asset value of the Trust as required by the
Investment Company Act, (i) the Treasury Securities will be valued at the mean
between the last current bid and asked prices or, if quotations are not
available, as determined in good faith by the Trustees, (ii) short-term
investments having a maturity of 60 days or less will be valued at cost with
accrued interest or discount earned included in interest receivable and (iii)
the Contract will be valued on the basis of the bid price received by the Trust
in respect of the Contract, or any portion thereof covering not less than 1,000
shares of Stock, from an independent broker-dealer firm unaffiliated with the
Trust to be named by the Trustees who is in the business of making bids on
financial instruments similar to the Contract and with terms comparable thereto,
or if such a bid quotation is not available, as determined in good faith by the
Trustees.
Section 8.3. Termination.
(a) This Agreement and the Trust created hereby shall terminate upon
the earliest of (i) the date 90 days after the execution of this Agreement if
(x) the Securities have not theretofore been issued to the Underwriters under
the Underwriting Agreement or (y) the net worth of the Trust is not at least
$100.00 at such time, (ii) the date of the repayment, sale or other disposition,
as the case may be, of all of the Contract, the Treasury Securities and any
other securities held hereunder, (iii) the date 10 Business Days after the
Exchange Date (or, if the Contract shall be accelerated pursuant to Article VII
thereof or if Section 6.2 thereof results in the acceleration of all the
obligations of Seller[S], 10 Business Days after the date on which the Trust
shall receive the Stock or other consideration then required to be delivered by
Seller[S], or the proceeds of any sale of collateral pursuant to Section 7.3 of
the Collateral Agreement), and (iv) the date which is 21 years less 91 days
after the death of the last survivor of all of the descendants of Xxxxxx X.
Xxxxxxx living on the date hereof. The Trust is irrevocable, the Sponsor has no
right to withdraw any assets constituting a portion of the Trust Estate, and the
dissolution of the Sponsor shall not operate to terminate the Trust. The
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death or incapacity of any Holder shall not operate to terminate this
Agreement, nor entitle his legal representatives or heirs to claim an accounting
or to take any action or proceeding in any court for a partition or winding up
of the Trust, and shall not otherwise affect the rights, obligations and
liabilities of the parties hereto.
(b) Written notice of any termination shall be sent to Holders specifying
the record date for any distribution to Holders and the time of termination as
determined by the Trustees, upon which the books maintained by the Paying Agent
pursuant to Section 5.2 shall be closed.
(c) For purposes of termination under Sections 8.3(a)(ii), (iii) and (iv),
within five Business Days after such termination, the Trustees shall, subject to
any applicable provisions of law, effect or cause the Custodian to effect the
sale of any remaining property of the Trust, and the Paying Agent shall
distribute pro rata as soon as practicable thereafter to each Holder, upon
surrender for cancellation of its Certificates, its interest in the Trust
Estate. Together with the distribution to the Holders, the Trustees shall
furnish the Holders with a final statement as of the date of the distribution of
the amount distributable with respect to each Security.
Section 8.4. No Assumption of Liability. By executing this Agreement, none
of the Trustees assumes any personal liability under this Agreement except as
expressly set forth in this Agreement.
Section 8.5. Amendment and Waiver.
(a) This Agreement, and any of the agreements referred to in Section
2.2(a), may be amended from time to time by the Trustees for any purpose prior
to the issuance and sale to the Underwriters of the Securities and thereafter
without the consent of any of the Holders (i) to cure any ambiguity or to
correct or supplement any provision contained herein or therein which may be
defective or inconsistent with any other provision contained herein or therein;
(ii) to change any provision hereof or thereof as may be required by applicable
law or the Commission or any successor govern mental agency exercising similar
authority; or (iii) to make such other provisions in regard to matters or
questions arising hereunder or thereunder as shall not materially adversely
affect the interests of the Holders (as determined in good faith by the
Trustees, who may rely on an opinion of counsel).
(b) This Agreement, and any of the agreements referred to in Section
2.2(a), may also be amended from time to time by the Trustees (or the
performance of any of the provisions of this Agreement or any of such other
agreements may be waived) with the consent by the required vote of the Holders
in accordance with Section 8.1; provided that this Agreement may not be amended,
(i) without the consent by vote of the Holders of all Securities then
outstanding, to increase the number of Securities issuable under this Agreement
above the number of Securities specified in Section 2.2(c) or such lesser number
as may be outstanding at any time during the term of this Agreement, (ii) to
reduce the interest in the Trust represented by any Security without the consent
of the
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Holder of such Security, (iii) if such amendment is prohibited by the Investment
Company Act or other applicable law, (iv) without the consent by vote of the
Holders of all Securities then outstanding, if such amendment would effect a
change in the voting requirements set forth in Section 8.1 or this Section 8.4,
or (v) without the consent by vote of the Holders of the lesser of (x) 67% or
more of the Securities represented at a special meeting of Holders, if more than
50% of the Securities outstanding are represented at such meeting, and (y) more
than 50% of the Securities outstanding, if such amendment would effect a change
in Section 2.1 or 2.6.
(c) Promptly after the execution of any amendment, the Trustees shall
furnish written notification of the substance of such amendment to each Holder.
(d) Notwithstanding subsections (a) and (b) of this Section 8.4 no
amendment of this Agreement or the Agreements referred to in Section 2.2(a)
shall permit the Trust, the Trustees, the Administrator, the Paying Agent or the
Custodian to take any action or direct or permit any Person to take any action
that (i) would vary the investment of the Holders within the meaning of Treasury
Regulation Section 301.7701-4(c), or (ii) would or could cause the Trust, or
direct or permit any action to be taken that would or could cause the Trust, not
to be a "grantor trust" under the Code.
Section 8.6. Accountants.
(a) The Trustees shall, in accordance with Section 30 of the Investment
Company Act, file annually with the Commission such information, documents and
reports as investment companies having securities registered on a national
securities exchange are required to file annually pursuant to Section 13(a) of
the Securities Exchange Act of 1934, as amended, and the rules and regulations
issued thereunder. The Trustees shall transmit to the Holders, at least
semi-annually, the reports required by Section 30(d) of the Investment Company
Act and the rules and regulations thereunder, including, without limitation, a
balance sheet accompanied by a statement of the aggregate value of investments
on the date of such balance sheet, a list showing the amounts and values of such
investments owned on the date of such balance sheet, and a statement of income
for the period covered by the report. Financial statements contained in such
annual reports shall be accompanied by a certificate of independent public
accounts based upon an audit not less in scope or procedures than that which
independent public accountants would ordinarily make for the purpose of
presenting comprehensive and dependable financial statements and shall contain
such information as the Commission may prescribe. Each such report shall state
that such independent public accountants have verified investments owned, either
by actual examination or by receipt of a certificate from the Custodian.
(b) The independent public accountants referred to in subsection (a) above
shall be selected at a meeting held within thirty days before or after the
beginning of the fiscal year by the vote, cast in person, of a majority of the
Trustees who are not "interested persons" as defined in the Investment Company
Act and such selection shall be submitted for ratification at the first meeting
of Holders to be held as set forth in Section
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8.1, and thereafter as required by the Investment Company Act and the rules and
regulations thereunder. The employment of any independent public accountant for
the Trust shall be conditioned upon the right of the Holders by a vote of the
lesser of (i) 67% or more of the Securities present at a special meeting of
Holders, if Holders of more than 50% of Securities outstanding are present or
represented by proxy at such meeting or (ii) more than 50% of the Securities
outstanding to terminate such employment at any time without penalty.
(c) The foregoing provisions of this Section 8.5 are in addition to any
applicable requirements of the Investment Company Act and the rules and
regulations thereunder.
Section 8.7. Nature of Holder's Interest. Each Holder holds at any given
time a beneficial interest in the Trust Estate, but does not have any right to
take title or possession of any portion of the Trust Estate. Each Holder
expressly waives any right he may have under any rule of law, or the provisions
of any statute, or otherwise, to require the Trustees at any time to account, in
any manner other than as expressly provided in this Agreement, for the Stock,
the Contract, the Treasury Securities or other assets or monies from time to
time received, held and applied by the Trustees hereunder. No Holder shall have
any right except as provided herein to control or determine the operation and
management of the Trust or the obligations of the parties hereto. Nothing set
forth herein or in the Certificates shall be construed to constitute the Holders
from time to time as partners or members of an association.
Section 8.8. Governing Law; Severability. This Agreement is executed and
delivered in the State of New York, and all laws or rules of construction of the
State of New York shall govern the rights of the parties hereto and the Holders
and the construction, validity and effect of the provisions hereof. To the
extent permitted by law, the unenforceability or invalidity of any provision or
provisions of this Agreement shall not render any other provision or provisions
contained in this Agreement unenforceable or invalid.
Section 8.9. Notices.
(a) All notices and other communications provided for in this Agreement,
unless otherwise specified, shall be in writing and shall be given at the
addresses set forth in the following sentence or at such other addresses as may
be designated by notice duly given in accordance with this Section 8.9 to each
other party to this Agreement. Until such notice is given, (i) notices to
Sponsor shall be directed to it at Xxxxxxx, Sachs & Co., 00 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Registration Department; (ii) notices to the
Trust shall be directed to it in care of the Administrator for Purchaser, The
Chase Manhattan Bank, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Telecopier
No. (000) 000-0000, Attention: Pledged Collateral Control Services and to each
Trustee at the address specified in clause (iii) of this paragraph; (iii)
notices to the Trustees shall be directed to the Trustees at [000 Xxxxxxx
Xxxxxx, Xxxxx 000, Xxxxxx Xxxxxxxx 00000, Telecopier No. (000) 000-0000,
Attention: Xxxxxx X. Xxxxxxx] or the applicable Trustee and (iv) notices to any
Holder shall be duly given if mailed, first class
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30
postage prepaid, or by such other substantially equivalent means as the Trustees
may deem appropriate, or delivered to such Holder at the address of such Holder
appearing on the registry of the Paying Agent.
(b) Each notice given pursuant to Section 8.9(a) shall be effective (i) if
sent by certified mail (return receipt requested), 72 hours after being
deposited in the United States mail, postage prepaid; (ii) if given by telex or
telecopier, when such telex or telecopied notice is transmitted (with electronic
confirmation of transmission or verbal confirmation of receipt); or (iii) if
given by any other means, when delivered at the address specified in this
Section 8.9.
Section 8.10. Entire Agreement. Except as expressly set forth in this
Agreement, this Agreement constitutes the entire agreement among the parties
with respect to the subject matter of this Agreement and supersedes all prior
agreements, understandings and negotiations, both written and oral, among the
parties with respect to the subject matter of this Agreement.
Section 8.11. Non-Assignability. This Agreement and the rights and
obligations of the parties under this Agreement may not be assigned or delegated
by either party without the prior written consent of the other party, and any
purported assignment without such consent shall be void.
Section 8.12. No Third Party Rights; Successors and Assigns. This Agreement
is not intended and shall not be construed to create any rights in any person
other than Sponsor, the Trustees and the Holders and their respective successors
and assigns and no other person shall assert any rights as third party
beneficiary under this Agreement. Whenever any of the parties to this Agreement
is referred to, such reference shall be deemed to include the successors and
assigns of such party. All the covenants and agreements in this Agreement
contained by or on behalf of Sponsor and the Trustees shall bind, and inure to
the benefit of, their respective successors and assigns whether so expressed or
not, and shall be enforceable by and inure to the benefit of the Trustees and
their successors and assigns.
Section 8.13. Counterparts. This Agreement may be executed, acknowledged
and delivered in any number of counterparts, each of which shall be an original,
but all of which shall constitute a single agreement, with the same effect as if
the signatures on each such counterpart were upon the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated Trust Agreement to be duly executed and delivered as of the date
hereof.
THE SPONSOR:
Xxxxxxx, Xxxxx & Co.,
as Sponsor
By:
-----------------------------------------
THE RETIRING TRUSTEE:
---------------------------------------------
Xxxx X. Efron
THE TRUSTEES:
By:
-----------------------------------------
[Xxxxxx X. Xxxxxxx,]
as Trustee
Address: [Department of Economics
University of Delaware
Xxxxxx, Xxxxxxxx 00000]
By:
-----------------------------------------
[Xxxxxxx X. Xxxxxx III,]
as Trustee
Address: [Department of Economics
University of Delaware
Xxxxxx, Xxxxxxxx 00000]
By:
-----------------------------------------
[Xxxxx X. X'Xxxxx,]
as Trustee
Address: [Department of Economics
University of Delaware
Xxxxxx, Xxxxxxxx 00000]
32
Schedule I(a)
TREASURY SECURITIES
All terms specified are for stripped principal or
interest components of U.S. Treasury debt
obligations.
FIRST TIME OF DELIVERY
-----------------------------------------------------------------------------------------------------------------------
PAR ZERO-COUPON RATE PRICE COST CUSIP
STRIP
--------------- ---------------------------- ------------ ------------- ---------------------- ----------------------
--------------- ---------------------------- ------------ ------------- ---------------------- ----------------------
--------------- ---------------------------- ------------ ------------- ---------------------- ----------------------
--------------- ---------------------------- ------------ ------------- ---------------------- ----------------------
--------------- ---------------------------- ------------ ------------- ---------------------- ----------------------
--------------- ---------------------------- ------------ ------------- ---------------------- ----------------------
--------------- ---------------------------- ------------ ------------- ---------------------- ----------------------
--------------- ---------------------------- ------------ ------------- ---------------------- ----------------------
--------------- ---------------------------- ------------ ------------- ---------------------- ----------------------
--------------- ---------------------------- ------------ ------------- ---------------------- ----------------------
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--------------- ---------------------------- ------------ ------------- ---------------------- ----------------------
--------------- ---------------------------- ------------ ------------- ---------------------- ----------------------
SETTLEMENT DATE: , 1999 [FIRST TIME OF DELIVERY]
33
Schedule I(b)
TREASURY SECURITIES
All terms specified are for stripped principal or
interest components of U.S. Treasury debt
obligations.
SECOND TIME OF DELIVERY
-----------------------------------------------------------------------------------------------------------------
PAR ZERO-COUPON RATE PRICE COST CUSIP
STRIP
--------------- ------------------------ ------------ ----------------- ---------------------- ----------------
--------------- ------------------------ ------------ ----------------- ---------------------- ----------------
--------------- ------------------------ ------------ ----------------- ---------------------- ----------------
--------------- ------------------------ ------------ ----------------- ---------------------- ----------------
--------------- ------------------------ ------------ ----------------- ---------------------- ----------------
--------------- ------------------------ ------------ ----------------- ---------------------- ----------------
--------------- ------------------------ ------------ ----------------- ---------------------- ----------------
--------------- ------------------------ ------------ ----------------- ---------------------- ----------------
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--------------- ------------------------ ------------ ----------------- ---------------------- ----------------
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--------------- ------------------------ ------------ ----------------- ---------------------- ----------------
SETTLEMENT DATE:
34
Exhibit A
Form of Certificate Evidencing the Securities
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to Ameritrade
Automatic Common Exchange Security Trust or its agent for registration of
transfer, exchange, or payment, and any certificate issued is registered in the
name of [Cede & Co.] (or in such other name as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, [Cede & Co.], has an interest herein. This certificate may be exchanged
by an authorized representative of DTC in whole or in part for securities in
definitive form, registered in the names of such holders as such representative
of DTC shall specify, in which case, a new certificate will be issued in the
name of [Cede & Co.] (or in such other name as is requested by such authorized
representative of DTC) representing the securities not issued in definitive
form.
THIS CERTIFICATE IS ISSUED UNDER AND IS SUBJECT TO THE TERMS, PROVISIONS AND
CONDITIONS OF THE TRUST AGREEMENT REFERRED TO BELOW TO WHICH THE HOLDER OF THIS
CERTIFICATE BY VIRTUE OF THE ACCEPTANCE HEREOF ASSENTS AND IS BOUND.
$ TRUST AUTOMATIC COMMON EXCHANGE SECURITIES
AMERITRADE AUTOMATIC COMMON EXCHANGE SECURITY TRUST
CUSIP NO.
NO. _______ ____________ Stock
THIS CERTIFIES THAT [CEDE & CO.] IS THE RECORD OWNER OF ____________ OF
THE $ TRUST AUTOMATIC COMMON EXCHANGE SECURITIES OF AMERITRADE AUTOMATIC COMMON
EXCHANGE SECURITY TRUST CONSTITUTING FRACTIONAL UNDIVIDED INTERESTS IN
AMERITRADE AUTOMATIC COMMON EXCHANGE SECURITY TRUST, A TRUST CREATED UNDER THE
LAWS OF THE STATE OF NEW YORK PURSUANT TO A TRUST AGREEMENT AMONG XXXXXXX, SACHS
& CO. AND THE TRUSTEES NAMED THEREIN. THIS CERTIFICATE IS ISSUED UNDER AND IS
SUBJECT TO THE TERMS, PROVISIONS AND CONDITIONS OF THE TRUST AGREEMENT TO WHICH
THE HOLDER OF THIS CERTIFICATE BY VIRTUE OF THE ACCEPTANCE HEREOF ASSENTS AND IS
BOUND, A COPY OF WHICH TRUST AGREEMENT IS AVAILABLE AT THE OFFICE OF THE TRUST'S
ADMINISTRATOR AND PAYING AGENT, 000 XXXX 00XX XXXXXX, XXX XXXX, XXX XXXX 00000.
THIS CERTIFICATE IS TRANSFERABLE AND EXCHANGEABLE BY THE REGISTERED OWNER IN
PERSON OR BY HIS DULY AUTHORIZED ATTORNEY AT THE OFFICE OF THE PAYING AGENT UPON
SURRENDER OF THIS CERTIFICATE PROPERLY ENDORSED OR ACCOMPANIED BY A WRITTEN
INSTRUMENT OF TRANSFER AND ANY OTHER DOCUMENTS THAT THE PAYING AGENT MAY REQUIRE
FOR TRANSFER, IN FORM SATISFACTORY TO THE PAYING AGENT AND PAYMENT OF THE FEES
AND EXPENSES PROVIDED IN THE TRUST AGREEMENT.
THIS CERTIFICATE IS NOT VALID UNLESS MANUALLY COUNTERSIGNED BY
THE PAYING AGENT.
35
WITNESS THE FACSIMILE SIGNATURE OF THE MANAGING TRUSTEE.
AMERITRADE AUTOMATIC
COMMON EXCHANGE SECURITY
TRUST
DATED:
By:
---------------------------------
[Name]
Managing Trustee
COUNTERSIGNED:
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.,
as Paying Agent
By:
---------------------------------------
Authorized Signature
