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EXHIBIT 2.k(iii)B
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PURCHASE AGREEMENT
Between
J. ▇▇▇ ▇▇▇▇▇▇▇▇,
As Seller
and
AMERITRADE AUTOMATIC COMMON EXCHANGE SECURITY TRUST,
As Purchaser
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Dated as of July __, 1999
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Table of Contents
ARTICLE I
DEFINITIONS; INTERPRETATION Page
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Section 1.1. Defined Terms...............................................................................2
Section 1.2. Interpretation..............................................................................8
ARTICLE II
SALE AND PURCHASE
Section 2.1. Sale and Purchase...........................................................................8
Section 2.2. Purchase Price..............................................................................9
Section 2.3. Payment for and Delivery of Additional Stock................................................9
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.1. Representations and Warranties of Seller...................................................11
Section 3.2. Representations and Warranties of Purchaser................................................11
ARTICLE IV
CONDITIONS TO PURCHASER'S OBLIGATIONS
Section 4.1. Condition to Delivery of Additional Purchase Price.........................................12
ARTICLE V
COVENANTS
Section 5.1. Covenants of Seller........................................................................12
Section 5.2. Further Assurances.........................................................................13
ARTICLE VI
ADJUSTMENTS TO EXCHANGE RATE, APPRECIATION THRESHOLD PRICE,
INITIAL PRICE AND CLOSING PRICE; REORGANIZATION EVENTS
Section 6.1. Dilution Adjustments.......................................................................13
Section 6.2. Adjustment for Consolidation, Merger or Other Reorganization Event.........................16
Section 6.3. Spin-Off Distributions.....................................................................18
Section 6.4. Adjustments with Respect to Marketable Securities..........................................18
ARTICLE VII
ACCELERATION UPON AN EVENT OF DEFAULT
Section 7.1. Events of Default..........................................................................18
ARTICLE VIII
MISCELLANEOUS
Section 8.1. Adjustments of Exchange Rate; Selection of Independent Investment
Banking Firm............................................................................19
Section 8.2. No Assumption of Liability.................................................................19
Section 8.3. Notices....................................................................................19
Section 8.4. Governing Law; Severability................................................................20
Section 8.5. Entire Agreement...........................................................................20
Section 8.6. Amendments; Waivers........................................................................20
Section 8.7. Non-Assignability..........................................................................20
Section 8.8. No Third Party Rights; Successors and Assigns..............................................20
Section 8.9. Counterparts...............................................................................21
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Exhibits
Exhibit A - Form of Certificate for Extension of Exchange Date
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PURCHASE AGREEMENT
PURCHASE AGREEMENT, dated as of July __, 1999, between J. ▇▇▇
▇▇▇▇▇▇▇▇ ("Seller"), and Ameritrade Automatic Common Exchange Security Trust, a
trust organized under the laws of the State of New York under and by virtue of
an Amended and Restated Trust Agreement, dated as of July __, 1999 (such trust
and the trustees thereof acting in their capacity as such being referred to in
this Agreement as "Purchaser").
WITNESSETH:
WHEREAS, Seller owns Class A Common Stock, par value $0.01 per
share (the "Class A Common Stock"), of Ameritrade Holding Corporation, a
Delaware corporation (the "Company"); and
WHEREAS, Purchaser has filed with the Securities and Exchange
Commission a registration statement on Form N-2 contemplating the offering of up
to 4,000,000 $- Trust Automatic Common Exchange Securities (the "Securities"),
the terms of which contemplate delivery by Purchaser to the holders of such
Securities of a number of shares of Class A Common Stock (or, in certain
circumstances, cash in lieu of such Class A Common Stock) on the Exchange Date
referred to below; and
WHEREAS, Seller has agreed, pursuant to the Collateral
Agreement, dated as of July __, 1999 (the "Collateral Agreement"), among Seller,
as Pledgor, The Chase Manhattan Bank, as collateral agent, and Purchaser to
grant to the Collateral Agent, for the benefit of Purchaser, a security interest
in Class A Common Stock and, in certain circumstances, certain other collateral
to secure the obligations of Seller under this Agreement; and
WHEREAS, Purchaser has agreed, pursuant to an underwriting
agreement, dated July __, 1999 (the "Underwriting Agreement"), among Purchaser,
[OTHER SELLER], Seller, the Company, and ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., as representatives
of the several underwriters named in such agreement (the "Underwriters"), to
issue and sell to the Underwriters, at the Underwriters' option, up to 600,000
additional Securities (such additional Securities as the Underwriters shall
actually purchase pursuant to the Underwriting Agreement, the "Optional
Securities") to cover overallotments;
NOW, THEREFORE, the parties to this Agreement, intending to be
bound, agree as follows:
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ARTICLE I
DEFINITIONS; INTERPRETATION
Section 1.1. Defined Terms. As used in this Agreement, the
following terms have the following meanings:
"Accelerated Portion" means, in relation to any Cash
Merger, the portion of the Merger Consideration, other than
Marketable Securities, that has a Value equal to the amount
determined by multiplying the Basic Reorganization Event Amount
by a fraction, the numerator of which is the Value of the
portion of the Merger Consideration delivered in exchange for a
single share of Class A Common Stock that consists of assets
other than Marketable Securities, and the denominator of which
is the aggregate Transaction Value of the Merger Consideration
received in exchange for a single Share of Class A Common Stock.
"Additional Purchase Price" has the meaning specified
in Section 2.2.
"Additional Stock Base Amount" means a number equal to
the number of Optional Securities that the Underwriters elect to
purchase under the Underwriting Agreement.
"Additional Stock" has the meaning specified in
Section 2.1(a).
"Additional Treasury Securities" means the U.S.
Government Securities purchased by Purchaser pursuant to section
2.3(b)(ii) of the Trust Agreement for settlement at the Second
Time of Delivery.
"Administrator" means The Chase Manhattan Bank,
administrator for Purchaser under the Administration Agreement,
dated as of July __, 1999, between the Administrator and
Purchaser, or its successor in such capacity, or any other
Administrator appointed pursuant to the Trust Agreement.
"Agreement" means this Purchase Agreement.
"Appreciation Threshold Price" has the meaning
specified in Section 2.1(b).
"Average Market Price" per share of Class A Common
Stock or share of Marketable Securities on any date means the
average Closing Price of a share of Class A Common Stock or
share of Marketable Securities for the Calculation Period
consisting of the 20 Trading Days immediately prior to but not
including such date; provided that if no Closing Price for the
Class A Common Stock or Marketable Securities is determined for
one or more (but not all) of such Trading Days, such Trading
Days shall be disregarded in the calculation of the Average
Market Price (but no additional Trading Days shall be added to
the Calculation Period). If no Closing Price for the Class A
Common Stock or Marketable Securities may be determined for any
of such Trading Days, the Average Market Price shall be the
Closing Price for the Class A Common Stock or Marketable
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Securities for the most recent Trading Day prior to such 20
Trading Days for which a Closing Price for the Class A Common
Stock or Marketable Securities may be determined pursuant to the
definition of "Closing Price". Notwithstanding the foregoing,
for purposes of determining the payment required upon cash
settlement of this Agreement in connection with a Rollover
Offering, "Average Market Price" means the Closing Price per
share of Class A Common Stock or share of Marketable Securities
on the Trading Day immediately preceding the date that the
Rollover Offering is priced (the "Pricing Date") or, if the
Rollover Offering is priced after 4:00 P.M., New York City time,
on the Pricing Date, the Closing Price per share on the Pricing
Date.
"Basic Reorganization Event Amount" has the meaning
provided in Section 6.2(a).
"Business Day" means a day on which the NYSE 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.
"Calculation Period" means any period of Trading Days
for which an average security price must be determined pursuant
to this Agreement.
"Cash Merger" has the meaning specified in Section
6.2(b).
"Cash Settlement Alternative" has the meaning provided
in Section 2.3(c).
"Class A Common Stock" has the meaning specified in
the recitals to this Agreement.
"Closing Price" of any common equity security on any
date of determination means the closing sale price (or, if no
closing sale price is reported, the last reported sale price) of
such common equity security as reported on the NYSE Consolidated
Tape on such date of determination or, if such common equity
security is not listed for trading on the NYSE on such date, as
reported in the composite transactions for the principal United
States national or regional securities exchange on which such
common equity security is so listed, or if such common equity
security is not so listed on a United States national or
regional securities exchange on such date, as reported by the
NASDAQ National Market or, if such common equity security is not
so reported on such date, the last quoted bid price for such
common equity security in the over-the-counter market as
reported by the National Quotation Bureau or any similar
organization; provided that if any event that results in an
adjustment to the number of shares of Class A Common Stock or
shares of Marketable Securities deliverable under this Agreement
pursuant to Article VI occurs during any Calculation Period, the
Closing Price as determined pursuant to the foregoing for each
Trading Day in the Calculation Period occurring prior to the day
on which such adjustment is effected will be adjusted in
accordance with Article VI to reflect the occurrence of such
event.
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"Collateral Agent" means The Chase Manhattan Bank, in
its capacity as Collateral Agent under the Collateral Agreement,
or its successor in such capacity, or any other Collateral Agent
appointed pursuant to the Trust Agreement.
"Collateral Agreement" has the meaning specified in
the recitals to this Agreement.
"common equity security" means any security of any
class of capital stock (whether voting or non-voting) that has
no preference in respect of dividends or of amounts payable in
the event of any voluntary or involuntary liquidation,
dissolution or winding up of the issuer of such capital stock
and that is not subject to redemption by the issuer of such
capital stock.
"Company" has the meaning specified in the recitals to
this Agreement.
"Company Successor" has the meaning specified in
Section 6.2.
"Custodian" means The Chase Manhattan Bank, as
custodian for Purchaser under the Custodian Agreement, dated as
of July __, 1999, between the Custodian and Purchaser, or its
successor in such capacity, or any other Custodian appointed
pursuant to the Trust Agreement.
"Dilution Adjustment" means any fraction or number by
which the Exchange Rate shall be multiplied pursuant to Section
6.1(a), (b), (c) or (d).
"Event of Default" has the meaning specified in
Section 7.1.
"Excess Purchase Payment" means the excess, if any, of
(x) the cash and the value (as determined by a nationally
recognized independent investment banking firm retained for this
purpose by the Administrator, whose determination shall be
final) of all other consideration paid by the Company with
respect to one share of Class A Common Stock acquired in a
tender offer or exchange offer by the Company, over (y) the
Then-Current Market Price of the Class A Common Stock.
"Exchange Date" means July __, 2002, subject to (i)
extension by Seller pursuant to Section 2.3(d) and (ii)
subsequent acceleration by Seller pursuant to Section 2.3(e).
"Exchange Rate" has the meaning specified in Section
2.1(b).
"First Time of Delivery" means the First Time of
Delivery specified pursuant to section 4(a) of the Underwriting
Agreement.
"Initial Price" has the meaning specified in Section
2.1(b).
"Liens" means any lien, mortgage, security interest,
pledge, charge, encumbrance or adverse claim of any kind.
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"Marketable Securities" means any common equity
securities listed on a U.S. national or regional securities
exchange or reported by the NASDAQ National Market.
"Merger Consideration" has the meaning specified in
Section 6.2(a).
"NYSE" means the New York Stock Exchange, Inc.
"Optional Securities" has the meaning specified in the
recitals to this Agreement.
"Permitted Dividend" means any quarterly cash dividend
in respect of the Class A Common Stock, except to the extent
that the per share amount of such dividend results in an
annualized dividend yield on the Class A Common Stock in excess
of 12.5%.
"Pricing Date" has the meaning specified in the
definition of "Average Market Price".
"Purchaser" has the meaning specified in the preamble
to this Agreement.
"Reorganization Event" has the meaning specified in
Section 6.2.
"Rollover Offering" means a reoffering or refinancing
of Securities effected not earlier than July __, 2002 by means
of a completed public offering or offerings, or another similar
offering (which may include one or more exchange offers), by or
on behalf of Seller.
"Second Time of Delivery" means the Second Time of
Delivery specified pursuant to section 4(a) of the Underwriting
Agreement.
"Securities" has the meaning specified in the recitals
to this Agreement.
"Seller" has the meaning specified in the preamble to
this Agreement.
"Spin-Off Distribution" means a distribution by the
Company to holders of Class A Common Stock of Marketable
Securities issued by an issuer other than the Company.
"Then-Current Market Price" of the Class A Common
Stock means the average Closing Price per share of Class A
Common Stock for the Calculation Period consisting of five
Trading Days immediately prior to the time such adjustment is
effected (or, in the case of an adjustment effected at the
opening of business on the Business Day next following a record
date as described in Section 6.1(f)(i), immediately prior to the
earlier of the time such adjustment is effected and the related
ex-date); provided that if no Closing Price for the Class A
Common Stock is determined for one or more (but not all) of such
Trading Days,
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such Trading Days shall be disregarded in the calculation of the
Then-Current Market Price (but no additional Trading Days shall
be added to the Calculation Period). If no Closing Price for the
Class A Common Stock may be determined for any of such Trading
Days, the Then-Current Market Price shall be the Closing Price
for the Class A Common Stock for the most recent Trading Day
prior to such five Trading Days for which a Closing Price for
the Class A Common Stock may be determined pursuant to the
definition of "Closing Price". The "ex-date" with respect to any
dividend, distribution or issuance shall mean the first date on
which the Class A Common Stock trade regular way on their
principal market without the right to receive such dividend,
distribution or issuance.
"Trading Day" in respect of any common equity security
means a day on which such common equity security (A) is not
suspended from trading on any United States national or regional
securities exchange or association or over-the-counter market at
the close of business and (B) has traded at least once on the
United States national or regional securities exchange or
association or over-the-counter market that is the primary
market for the trading of such security.
"Transaction Value" means, with respect to any
Reorganization Event, the sum of: (x) for any cash received in
such Reorganization Event, the amount of such cash received per
share of Class A Common Stock; (y) for any property other than
cash or Marketable Securities received in such Reorganization
Event, an amount equal to the market value on the date such
Reorganization Event is consummated of such property received
per share of Class A Common Stock (as determined by a nationally
recognized independent investment banking firm retained for this
purpose by the Administrator, whose determination shall be
final); and (z) for any Marketable Securities received in such
Reorganization Event, an amount equal to the average Closing
Price per share of such Marketable Securities for the
Calculation Period consisting of 20 Trading Days immediately
prior to the Exchange Date (or, in the case of a Cash Merger,
for the Calculation Period consisting of the 20 Trading Days
immediately prior to the date the Reorganization Event is
consummated), multiplied by the number of such Marketable
Securities received for each share of Class A Common Stock;
provided that if no Closing Price for such Marketable Securities
may be determined for one or more (but not all) of such Trading
Days, such Trading Days shall be disregarded in the calculation
of such average Closing Price (but no additional Trading Days
shall be added to the Calculation Period). If no Closing Price
for the Marketable Securities may be determined for any of such
Trading Days, the calculation in the preceding clause (z) shall
be based on the Closing Price for the Marketable Securities for
the most recent Trading Day prior to such 20 Trading Days for
which a Closing Price for the Marketable Securities may be
determined pursuant to the definition of "Closing Price".
"Transfer Restrictions" has the meaning provided in
the Collateral Agreement.
"Transferred Securities" has the meaning specified in
Section 2.3(f).
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"Trust Agreement" means the Amended and Restated Trust
Agreement, dated as of July __, 1999, constituting Ameritrade
Automatic Common Exchange Security Trust.
"Underwriters" has the meaning specified in the
recitals to this Agreement.
"Underwriting Agreement" has the meaning specified in
the recitals to this Agreement.
"U.S. Government Securities" means direct obligations
of the United States of America.
"Value" means (i) in respect of cash, the amount of
such cash; (ii) in respect of any property other than cash or
Marketable Securities, an amount equal to the market value on
the date the relevant Reorganization Event is consummated (as
determined by a nationally recognized independent investment
banking firm retained for this purpose by the Administrator,
whose determination shall be final); and (iii) in respect of any
share of Marketable Securities, an amount equal to the average
Closing Price per share of such Marketable Securities for the
Calculation Period consisting of the 20 Trading Days immediately
prior to the date the relevant Reorganization Event is
consummated; provided that if no Closing Price for such
Marketable Securities may be determined for one or more (but not
all) of such Trading Days, such Trading Days shall be
disregarded in the calculation of such average Closing Price
(but no additional Trading Days shall be added to the
Calculation Period). If no Closing Price for the Marketable
Securities may be determined for any of such Trading Days, the
calculation in the preceding clause (iii) shall be based on the
Closing Price for the Marketable Securities for which a Closing
Price for the Marketable Securities may be determined pursuant
to the definition of "Closing Price".
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 is a
reference to such statute, regulation or agreement as supplemented or amended
from time to time.
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ARTICLE II
SALE AND PURCHASE
Section 2.1. Sale and Purchase.
(a) Additional Stock. Upon the terms and subject to the conditions of
this Agreement, if the Underwriters exercise the option to purchase Optional
Securities pursuant to the Underwriting Agreement, Seller agrees to sell
to Purchaser on the Exchange Date, and Purchaser agrees to purchase from Seller
on the Exchange Date, the number of additional shares of Class A Common Stock
(the "Additional Stock") equal to the product of the Additional Stock Base
Amount and the Exchange Rate. If the Underwriters exercise their option to
purchase Optional Securities pursuant to the Underwriting Agreement, Purchaser
shall notify Seller in writing that Purchaser will purchase the Additional
Stock on the Exchange Date, which notice shall specify the Additional Stock
Base Amount and the Second Time of Delivery.
(b) Exchange Rate. The "Exchange Rate" shall be the rate determined
in accordance with the following formula, subject to adjustment as provided in
Article VI:
(i) if the Average Market Price is less than $o (the
"Appreciation Threshold Price") but equal to or greater than $ - (the
"Initial Price"), a fraction (rounded upward or downward to the
nearest 1/10,000th or, if there is not a nearest 1/10,000th, to the
next lower 1/10,000th) equal to the Initial Price divided by the
Average Market Price;
(ii) if the Average Market Price is equal to or
greater than the Appreciation Threshold Price, o; and
(iii) if the Average Market Price is less than the
Initial Price, 1.
Section 2.2. Purchase Price.
Additional Purchase Price. The purchase price for the Additional Stock
(the "Additional Purchase Price") shall be [$O IN CASH.] [AN AMOUNT EQUAL TO THE
DIFFERENCE BETWEEN (I) THE AGGREGATE PROCEEDS TO PURCHASER FROM THE SALE OF THE
OPTIONAL SECURITIES AND (II) THE AGGREGATE COST TO PURCHASER, AS NOTIFIED BY
PURCHASER TO SELLER AT THE SECOND TIME OF DELIVERY, OF THE ADDITIONAL TREASURY
SECURITIES.]
Section 2.3. Payment for and Delivery of Additional Stock.
(a) Second Time of Delivery. Upon the terms and subject to the
conditions of this Agreement, Purchaser shall deliver to Seller the Additional
Purchase Price at the Second Time of Delivery at the offices of ▇▇▇▇▇, ▇▇▇▇▇ &
▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other place
as shall be agreed upon by Purchaser and Seller, paid by wire transfer to an
account designated by Seller, in Federal (immediately available) funds.
(b) Sale and Delivery of Additional Stock. Seller agrees to sell and
deliver the Additional Stock to Purchaser on the Exchange Date. Unless Seller
elects the Cash
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Settlement Alternative as provided in Section 2.3(c), sale and delivery shall be
effected by delivery by the Collateral Agent to the Custodian, for the account
of Purchaser, of Class A Common Stock then held by the Collateral Agent as
collateral under the Collateral Agreement, in an amount equal to the number of
shares of Additional Stock, rounded down to the nearest whole number. Seller
agrees to make a cash payment in respect of any fractional shares included in
the Additional Stock at the Exchange Date, in an amount equal to the value of
such fractional shares at the Average Market Price. In addition, if the
difference between (A) the aggregate proceeds of any sale (net of any brokerage
or related expenses) of any Class A Common Stock or Marketable Securities sold
by Purchaser pursuant to section 2.4(f)(ii) of the Trust Agreement and (B) the
product of the number of shares of Class A Common Stock or Marketable Securities
so sold and the Average Market Price, is negative, Seller shall pay such
difference to Purchaser; if such difference is positive, Purchaser shall pay the
difference to Seller. Notwithstanding the foregoing, if a Reorganization Event
shall have occurred prior to the Exchange Date then, in lieu of the foregoing,
delivery shall be effected as follows: (i) in the case of any cash required to
be delivered on the Exchange Date as provided in Section 6.2, by wire transfer
to an account designated by Purchaser, in Federal (immediately available) funds;
(ii) in the case of any Marketable Securities to be delivered in lieu of cash as
provided in Section 6.2, by delivery by the Collateral Agent to the Custodian,
for the account of Purchaser, of the applicable number of Marketable Securities
then held as collateral under the Collateral Agreement, as provided in Section
5.7 of the Collateral Agreement; and (iii) in the case of any cash included in
the Accelerated Portion as provided in Section 6.2(b), by wire transfer as
provided in clause (i) above or in the case of any non-cash assets included in
such Accelerated Portion, by delivery of such assets to the Custodian, for the
account of Purchaser.
(c) Cash Settlement Alternative. At its option, Seller may deliver to
Purchaser on the Exchange Date (whether or not extended pursuant to Section
2.3(d) or accelerated pursuant to Section 2.3(e)), in lieu of the Additional
Stock, an amount in cash equal to the aggregate Average Market Price of the
Additional Stock on the Exchange Date (the "Cash Settlement Alternative"), paid
by wire transfer to an account designated by Purchaser, in Federal (immediately
available) funds; provided that if Seller elects the Cash Settlement Alternative
in connection with a Rollover Offering, as provided below, and such Rollover
Offering has been consummated on or before the Exchange Date, such cash payment
shall be made not later than the fifth Trading Day after the Exchange Date.
Seller may elect the Cash Settlement Alternative in respect of all, but not less
than all, Additional Stock and may do so by notice to Purchaser, the Collateral
Agent and the Custodian not less than 35 days prior to the Exchange Date as then
in effect (specifying whether such cash settlement is being made in connection
with a Rollover Offering). If Seller elects the Cash Settlement Alternative,
Purchaser shall provide notice of such election (specifying whether such cash
settlement is being made in connection with a Rollover Offering) to the holders
of the Securities, not less than 30 nor more than 90 days prior to the Exchange
Date as then in effect.
(d) Extension of Exchange Date at Election of Purchaser. Seller may, at
its option, by notice to Purchaser not earlier than [MAY -, 2002], and not later
than [JUNE -, 2002], elect to extend the Exchange Date to October -, 2002, and
the number of shares of Additional Stock and amount of cash to be delivered
pursuant to Section 2.3(b) shall be
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calculated as of such extended Exchange Date; provided that such extension shall
be effective only if, on or before the date of such notice, Seller shall have:
(i) delivered to the Custodian, for the account of and subject
to the exclusive control of Purchaser, free and clear of any Liens and
Transfer Restrictions, 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 October -,
2002, cash in an amount equal to not less than the product of (1) $-
and (2) the Additional Stock Base Amount; and
(ii) delivered to Purchaser (1) a certificate of Seller
substantially in the form of Exhibit A and dated the date of such
delivery (A) identifying the U.S. Government Securities being
transferred, (B) certifying that with respect to such U.S. Government
Securities the representations and warranties contained in Exhibit A
are true and correct on and as of the date of such transfer, and (C)
certifying that such U.S. Government Securities satisfy the conditions
set forth in Section 2.3(d)(i); and (2) an opinion, dated the date of
such delivery, of counsel addressed to Purchaser confirming the
representations contained in the second sentence of paragraph 2(c) of
Exhibit A.
In addition, Seller hereby covenants and agrees to take all other
actions necessary for Seller to take in order for Purchaser to be a protected
purchaser of such U.S. Government Securities, within the meaning of Article 8 of
the New York Uniform Commercial Code.
If Seller elects to extend the Exchange Date, Purchaser shall provide
notice of such election to the holders of the Securities not later than June -,
2002.
(e) Acceleration of Exchange Date at Election of Seller. At any time
after the Exchange Date has been extended pursuant to Section 2.3(d), Seller
may, at its option in connection with the consummation of a Rollover Offering,
accelerate the Exchange Date to any date on or after July -, 2002, by notice to
Purchaser not later than 10:00 a.m. on the date to which the Exchange Date is
accelerated, and the number of shares of Additional Stock and amount of cash to
be delivered pursuant to Section 2.3(b) shall be calculated as of such
accelerated Exchange Date; provided that such acceleration shall be effective
only if, at or prior to 10:00 a.m. on such accelerated Exchange Date, Seller
shall have paid to Purchaser, by wire transfer to an account designated by the
Custodian, in Federal (immediately available) funds, an amount equal to the
product of (i) the aggregate accrued and unpaid quarterly distributions on each
Security (computed on the basis of a quarterly distribution of $- and a 360-day
year comprised of twelve 30-day months) and (ii) the Additional Stock Base
Amount. Upon receipt of such amount in Federal (immediately available) funds,
Purchaser shall promptly deliver to Seller, free and clear of any Liens and
Transfer Restrictions, the U.S. Government Securities previously delivered by
Seller to Purchaser pursuant to Section 2.3(d)(i) (together with any payments
received by Purchaser before the date of such transfer in respect of such U.S.
Government Securities).
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If Seller elects to accelerate the Exchange Date, Purchaser shall
provide notice of such election to the holders of the Securities not later than
the accelerated Exchange Date.
(f) Satisfaction of Obligations. Notwithstanding any other provision of
this Agreement, if on or prior to the Exchange Date as then in effect, Seller
transfers Securities to Purchaser, free and clear of any Liens and Transfer
Restrictions, for cancellation (any Securities so transferred being referred to
in this Agreement as the "Transferred Securities") then the number of shares of
Additional Stock deliverable by Seller pursuant to this Agreement shall be
reduced by a number equal to the product of (i) the number of shares of
Additional Stock before giving effect to any such transfers and (ii) a fraction,
the numerator of which is the number of Transferred Securities and the
denominator of which is the Additional Stock Base Amount (rounded down to the
nearest whole share).
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.1. Representations and Warranties of Seller. Seller
represents and warrants to Purchaser that each representation and warranty made
by Seller pursuant to section 1(b) of the Underwriting Agreement is true and
correct on the date of this Agreement.
Section 3.2. Representations and Warranties of Purchaser. Purchaser
represents and warrants to Seller that each representation and warranty made by
Purchaser pursuant to section 1(c) of the Underwriting Agreement is true and
correct on the date of this Agreement.
ARTICLE IV
CONDITIONS TO PURCHASER'S OBLIGATIONS
Section 4.1. Condition to Delivery of Additional Purchase Price. The
obligation of Purchaser to deliver the Additional Purchase Price at the Second
Time of Delivery is subject to the condition that the purchase by the
Underwriters of the Optional Securities shall have been consummated as
contemplated under the Underwriting Agreement.
ARTICLE V
COVENANTS
Section 5.1. Covenants of Seller.
(a) Taxes. Seller shall pay any and all documentary, stamp, transfer or
similar taxes and charges that may be payable in respect of the execution of
this Agreement and
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the transfer and delivery of the Additional Stock (or any cash or Marketable
Securities in lieu of the Additional Stock) pursuant to this Agreement.
(b) Forward Contract. Seller hereby agrees that: (i) it will not treat
this Agreement, any portion of this Agreement, or any obligation under this
Agreement as giving rise to any interest income or other inclusions of ordinary
income; (ii) it will not treat the delivery of any portion of the Additional
Stock, cash, Marketable Securities or other property to be delivered pursuant to
this Agreement as the payment of interest or ordinary income; (iii) it will
treat this Agreement in its entirety as a forward contract for the delivery of
such Additional Stock, cash, Marketable Securities or other property; and (iv)
it will not take any action (including filing any tax return or form or taking
any position in any tax proceeding) that is inconsistent with the obligations
contained in clauses (i) through (iii) of this Section 5.1(b). Notwithstanding
the preceding sentence, Seller may take any action or position required by law,
provided that Seller delivers to Purchaser an unqualified opinion of counsel,
nationally recognized as expert in Federal tax matters, to the effect that such
action or position is required by a statutory change, Treasury regulation, or
applicable court decision published after the date of this Agreement.
(c) Limitations on Trading During Certain Days. Seller hereby agrees
that it will not buy Class A Common Stock for its own account during the 60 days
prior to the Exchange Date.
(d) Notices. Seller will cause to be delivered to Purchaser:
(i) Immediately upon the occurrence of any Event of Default,
or upon Seller's obtaining knowledge that any of the conditions or
events described in Section 7.1(a) or (b) shall have occurred with
respect to the Company, notice of such occurrence; and
(ii) If at any time prior to the Exchange Date Seller receives
notice, or otherwise obtains knowledge, that any event requiring an
adjustment to be effected pursuant to Article VI shall have occurred or
be pending, then Seller shall promptly cause to be delivered to
Purchaser a notice identifying such event and stating, if known to
Seller, the date on which such event occurred or is to occur and, if
applicable, the record date relating to such event. Seller shall cause
further notices to be delivered to Purchaser if Seller shall
subsequently receive notice, or otherwise obtain knowledge, of any
further or revised information regarding the terms or timing of such
event or any record date relating to such event.
Section 5.2. Further Assurances. From time to time on and after the
date of this Agreement through the Exchange Date, each of the parties to this
Agreement shall use its reasonable best efforts to take, or cause to be taken,
all action and to do, or cause to be done, all things reasonably necessary,
proper or advisable to consummate and make effective as promptly as practicable
the transactions contemplated by this Agreement in accordance with the terms and
conditions of this Agreement, including (i) using reasonable best efforts to
remove any legal impediment to the consummation of such transactions and (ii)
the execution and delivery of all such deeds, agreements, assignments and
further instruments of transfer and conveyance necessary, proper or
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advisable to consummate and make effective the transactions contemplated by this
Agreement in accordance with the terms and conditions of this Agreement.
ARTICLE VI
ADJUSTMENTS TO EXCHANGE RATE, APPRECIATION THRESHOLD PRICE,
INITIAL PRICE AND CLOSING PRICE; REORGANIZATION EVENTS
Section 6.1. Dilution Adjustments. The Exchange Rate, Appreciation
Threshold Price and Initial Price shall be subject to adjustment from time to
time as follows:
(a) Stock Dividends, Splits, Reclassifications, Etc. If the Company
shall, after the date of this Agreement,
(i) pay a stock dividend or make a distribution with respect
to the Class A Common Stock in the form of Class A Common Stock;
(ii) subdivide or split the outstanding Class A Common Stock
into a greater number of shares of Class A Common Stock;
(iii) combine the outstanding Class A Common Stock into a
smaller number of shares of Class A Common Stock; or
(iv) issue by reclassification of Class A Common Stock any
other capital shares of the Company;
then, in each such case, the Exchange Rate shall be multiplied by a Dilution
Adjustment equal to the number of shares of Class A Common Stock (or in the case
of a reclassification referred to in clause (iv) above, the number of other
capital shares of the Company issued pursuant to such reclassification), or the
fraction of such shares, that a shareholder who held one Share of Class A Common
Stock immediately prior to such event would be entitled solely by reason of such
event to hold immediately after such event. The Appreciation Threshold Price and
Initial Price shall also be adjusted in the manner described in Section 6.1(e).
(b) Right or Warrant Issuances. If the Company shall, after the date of
this Agreement, issue, or declare a record date in respect of an issuance of,
rights or warrants to all holders of Class A Common Stock entitling them to
subscribe for or purchase Class A Common Stock at a price per share less than
the Then-Current Market Price of the Class A Common Stock (other than rights to
purchase Class A Common Stock pursuant to a plan for the reinvestment of
dividends or interest), then, in each such case, the Exchange Rate shall be
multiplied by a Dilution Adjustment equal to a fraction, (i) the numerator of
which shall be the number of shares of Class A Common Stock outstanding
immediately prior to the time the adjustment resulting from the issuance of such
rights or warrants is effected, plus the number of additional shares of Class A
Common Stock offered for subscription or purchase pursuant to such rights or
warrants, and (ii) the denominator of which shall be the number of shares of
Class A Common Stock outstanding immediately prior to the time such adjustment
is effected plus the
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number of additional shares of Class A Common Stock that the aggregate offering
price of the total number of shares of Class A Common Stock so offered for
subscription or purchase pursuant to such rights or warrants would purchase at
the Then-Current Market Price of the Class A Common Stock, which shall be
determined by multiplying the total number of shares so offered for subscription
or purchase by the exercise price of such rights or warrants and dividing the
product so obtained by such Then-Current Market Price. To the extent that, after
the expiration of such rights or warrants, any of the Class A Common Stock
offered thereby shall not have been delivered, the Exchange Rate shall be
further adjusted to equal the Exchange Rate which would have been in effect had
such adjustment for the issuance of such rights or warrants been made upon the
basis of delivery of only the number of shares of Class A Common Stock actually
delivered. The Appreciation Threshold Price and Initial Price shall also be
adjusted in the manner described in Section 6.1(e).
(c) Distributions of Other Assets. If the Company shall, after the date
of this Agreement, declare or pay a dividend or make a distribution to all
holders of Class A Common Stock, in either case, of evidences of its
indebtedness or other non-cash assets (excluding (A) any dividends or
distributions referred to in Section 6.1(a) and (B) any Spin-Off Distributions)
or shall issue to all holders of Class A Common Stock rights or warrants to
subscribe for or purchase any of its securities (other than rights or warrants
referred to in Section 6.1(b)), then, in each such case, the Exchange Rate shall
be multiplied by a Dilution Adjustment equal to a fraction, the numerator of
which shall be the Then-Current Market Price per share of Class A Common Stock,
and the denominator of which shall be such Then-Current Market Price per share
less the fair market value (as determined by a nationally recognized independent
investment banking firm retained for this purpose by the Administrator, whose
determination shall be final) as of the time the adjustment is effected of the
portion of the evidences of indebtedness or assets so distributed or of such
subscription rights or warrants so issued applicable to one Share of Class A
Common Stock. The Appreciation Threshold Price and Initial Price shall also be
adjusted in the manner described in Section 6.1(e).
(d) Cash Dividends; Excess Purchase Payments. If the Company shall,
after the date of this Agreement, declare a record date in respect of a
distribution of cash (other than any Permitted Dividend, any cash distributed in
consideration of fractional Class A Common Stock and any cash distributed in a
Reorganization Event), by dividend or otherwise, to all holders of Class A
Common Stock, or make an Excess Purchase Payment, then the Exchange Rate will be
multiplied by a Dilution Adjustment equal to a fraction, the numerator of which
shall be the Then-Current Market Price of the Class A Common Stock on such
record date, and the denominator of which shall be such Then-Current Market
Price less the amount of such distribution applicable to one Share of Class A
Common Stock which would not be a Permitted Dividend or, in the case of an
Excess Purchase Payment, less the aggregate amount of such Excess Purchase
Payment for which adjustment is being made at such time divided by the number of
shares of Class A Common Stock outstanding on such record date. The Appreciation
Threshold Price and Initial Price shall also be adjusted in the manner described
in Section 6.1(e).
(e) Corresponding Adjustments to Initial Price, Appreciation Threshold
Price and Closing Price.
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(i) If any adjustment is made to the Exchange Rate pursuant
to Section 6.1(a), (b), (c) or (d), the Appreciation Threshold Price
and the Initial Price shall also be adjusted by dividing each of the
Appreciation Threshold Price and the Initial Price by the applicable
Dilution Adjustment.
(ii) If, during any Calculation Period used in calculating the
Average Market Price, the Then-Current Market Price or the Transaction
Value, there shall occur any event requiring an adjustment to be
effected pursuant to this Section 6.1, then the Closing Price for each
Trading Day in the Calculation Period occurring prior to the day on
which such adjustment is effected shall be adjusted by being divided by
the relevant Dilution Adjustment.
(f) Timing of Dilution Adjustments. Each Dilution Adjustment shall be
effected:
(i) in the case of any dividend, distribution or issuance, as
of the opening of business on the Business Day next following the
record date for determination of holders of Class A Common Stock
entitled to receive such dividend, distribution or issuance or, if the
announcement of any such dividend, distribution or issuance is after
such record date, at the time such dividend, distribution or issuance
is announced by the Company;
(ii) in the case of any subdivision, split, combination or
reclassification, on the effective date of such transaction;
(iii) in the case of any Excess Purchase Payment for which the
Company shall announce, at or prior to the time it commences the
relevant stock repurchase, the repurchase price per share for shares
proposed to be repurchased, on the date of such announcement; and
(iv) in the case of any other Excess Purchase Payment, on the
date that the holders of the repurchased shares become entitled to
payment of such Excess Purchase Payment.
(g) General; Failure of Dilution Event to Occur. All Dilution
Adjustments shall be rounded upward or downward to the nearest 1/10,000th or, if
there is not a nearest 1/10,000th, to the next lower 1/10,000th. No adjustment
in the Exchange Rate shall be required unless such adjustment would require an
increase or decrease of at least one percent in the Exchange Rate; provided,
however, that any adjustments that by reason of this sentence are not required
to be made shall be carried forward and taken into account in any subsequent
adjustment. If any announcement or declaration of a record date in respect of a
dividend, distribution, issuance or repurchase requiring an adjustment pursuant
to this Section 6.1 shall subsequently be canceled by the Company or shall fail
to occur for any other reason, then, upon such cancellation or failure to occur,
the Exchange Rate shall be further adjusted to the Exchange Rate that would then
have been in effect had adjustment for such event not been made. If, after an
announcement of a stock repurchase requiring an adjustment pursuant to this
Section 6.1, the Company reduces the repurchase price or repurchases fewer
shares than announced, then upon completion of such stock repurchase the
Exchange Rate shall be further adjusted to
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equal the Exchange Rate that would have been in effect had the adjustment for
such repurchase been based on the actual price and amount repurchased. If a
Reorganization Event shall occur after the occurrence of one or more events
requiring an adjustment pursuant to this Section 6.1, the Dilution Adjustments
previously applied to the Exchange Rate in respect of such events shall not be
rescinded but shall be applied to the new Exchange Rate provided for under
Section 6.2.
Section 6.2. Adjustment for Consolidation, Merger or Other
Reorganization Event.
(a) In the event of (i) any consolidation, amalgamation or merger of
the Company, or any surviving entity or subsequent surviving entity of the
Company (a "Company Successor"), with or into another entity (other than a
consolidation, amalgamation or merger in which the Company is the continuing
corporation and in which the Class A Common Stock outstanding immediately prior
to the consolidation, amalgamation or merger are not exchanged for cash,
securities or other property of the Company or another corporation), (ii) any
sale, transfer, lease or conveyance to another corporation of the property of
the Company or any Company Successor as an entirety or substantially as an
entirety, (iii)(x) any statutory exchange of securities of the Company or any
Company Successor with another corporation or (y) any sale of all or
substantially all of the outstanding equity securities of the Company or any
Successor Company, including pursuant to any plan of arrangement or similar
scheme with the Company's stockholders under any applicable law, rule or
regulation or order of any court or governmental authority (in the case of each
of the preceding clauses (x) and (y), other than in connection with a
consolidation, amalgamation or merger referred to in clause (i) immediately
above), or (iv) any liquidation, dissolution or winding up of the Company or any
Company Successor (any such event described in clause (i), (ii), (iii) or (iv),
a "Reorganization Event"), Seller shall deliver on the Exchange Date, in lieu of
the Additional Stock, cash in an amount (the "Basic Reorganization Event
Amount") equal to the result of applying the Dilution Adjustment (or successive
Dilution Adjustments), if any, that have been to the Exchange Rate pursuant to
Section 6.1 at or prior to the time of such Reorganization Event, multiplied by
the product of (x) the Additional Stock Base Amount and (y)(i) if the
Transaction Value is less than the Appreciation Threshold Price but equal to or
greater than the Initial Price, the Initial Price, (ii) if the Transaction Value
is equal to or greater than the Appreciation Threshold Price, o multiplied by
the Transaction Value, and (iii) if the Transaction Value is less than the
Initial Price, the Transaction Value. Notwithstanding the foregoing, if the
consideration received by the holders of the Class A Common Stock in the
Reorganization Event (the "Merger Consideration") includes any Marketable
Securities, Seller may, at its option, in lieu of delivering cash as described
above, deliver an equivalent amount (based on the value determined in accordance
with clause (z) of the definition of Transaction Value) of such Marketable
Securities, but not exceeding, as a percentage of the total consideration
required to be delivered, the percentage of the total Transaction Value
attributable to such Marketable Securities.
(b) Notwithstanding Section 6.2(a), if at least 30% of the Merger
Consideration in any Reorganization Event consists of cash or cash equivalents
(a "Cash Merger"), then Seller shall be required (i) within five Business Days
after Seller receives the Merger Consideration, to deliver the Accelerated
Portion to Purchaser, provided that to the extent
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the Accelerated Portion consists of property other than cash or cash
equivalents, Seller may, at its option, deliver, in lieu of such other property,
cash in an amount equal to the Value of such other property; and (ii) on the
Exchange Date, to deliver to Purchaser the number of Marketable Securities equal
to the product of (x) the Additional Stock Base Amount and (y) the Exchange
Rate, adjusted as described in the next sentence, and the provisions of Section
2.3(b) shall apply mutatis mutandis to such Marketable Securities, provided that
Seller may exercise the Cash Settlement Alternative in respect of such
Marketable Securities, in which case Section 2.3(c) shall apply mutatis mutandis
to such Marketable Securities. For purposes of calculating such Exchange Rate,
(A) the Initial Price and Appreciation Threshold Price shall each be adjusted by
multiplying the Initial Price or Appreciation Threshold Price, as applicable, as
then in effect, by a fraction, the numerator of which is the Value of a share of
the Marketable Securities included in the Merger Consideration on the date the
Cash Merger is closed, and the denominator of which shall be the Transaction
Value; and (B) the Exchange Rate shall be adjusted by multiplying the Exchange
Rate (computed on the basis of the adjusted Initial Price and Appreciation
Threshold Price and the Average Market Price of the Marketable Securities) by a
fraction, the numerator of which is the aggregate Value of the Marketable
Securities included in the Merger Consideration received in exchange for a
single share of Class A Common Stock, and the denominator of which is the Value
of a share of the Marketable Securities included in the Merger Consideration on
the date the Cash Merger is closed.
Section 6.3. Spin-Off Distributions. If the Company shall, after the
date of this Agreement, effect a Spin-Off Distribution, then for all purposes of
this Agreement, from and after the record date in respect of such Spin-Off
Distribution, (i) the Additional Stock shall be deemed to include both (A) that
number of shares of Class A Common Stock equal to the product of (x) the
Additional Stock Base Amount and (y) the Exchange Rate, and (B) that number of
Marketable Securities of the class distributed in respect of the Additional
Stock in such Spin-Off Distribution equal to the product of (x) the Additional
Stock Base Amount, (y) the Exchange Rate, and (z) the number of shares of such
Marketable Securities distributed per share of Class A Common Stock in the Spin-
Off Distribution; (ii) Seller's obligations under Section 2.3 shall include
delivery of such Marketable Securities together with the Class A Common Stock
comprising the Additional Stock and the provisions of Section 2.3(b) shall apply
mutatis mutandis to such Marketable Securities; and (iii) the "Closing Price" of
the Class A Common Stock shall thereafter be deemed to be equal to the sum of
(A) the Closing Price per share of Class A Common Stock and (B) the product of
(x) the Closing Price per share of the spun-off Marketable Securities and (y)
the number of shares of such Marketable Securities distributed per share of
Class A Common Stock in the Spin-Off Distribution.
Section 6.4. Adjustments with Respect to Marketable Securities. The
number of shares of any Marketable Securities included in any calculation
pursuant to this Agreement shall be subject to adjustment if any event that
would, had it occurred with respect to the Class A Common Stock or the Company,
have required an adjustment pursuant to Section 6.1 or Section 6.2, shall occur
with respect to such Marketable Securities or the issuer of such Marketable
Securities between the time of the Spin-Off Distribution or Reorganization Event
(or, in the case of any adjustment occurring during a Calculation Period, the
first day of such Calculation Period) and the Exchange Date. Adjustment for such
subsequent events shall be as nearly equivalent as practicable to the
adjustments provided for in Section 6.1 or Section 6.2.
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ARTICLE VII
ACCELERATION UPON AN EVENT OF DEFAULT
Section 7.1. Events of Default. If one or more of the following events
(each an "Event of Default") shall occur:
(a) Seller shall commence a voluntary case or other proceeding
seeking a liquidation, reorganization or other relief with respect to
Seller or Seller's debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar official of
Seller or any substantial part of Seller's property, or shall consent
to any such relief or to the appointment of or taking possession by any
such official in an involuntary case or other proceeding commenced
against Seller, or shall make a general assignment for the benefit of
creditors, or shall take any action to authorize any of the foregoing;
or
(b) an involuntary case or other proceeding shall be commenced
against Seller seeking liquidation, reorganization or other relief with
respect to Seller or Seller's debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect or seeking the appointment
of a trustee, receiver, liquidator, custodian or other similar official
of Seller or any substantial part of Seller's property, and such
involuntary case or other proceeding shall remain undismissed and
unstayed for a period of 60 days; or an order for relief shall be
entered against Seller under the federal bankruptcy laws as now or
hereafter in effect; or
(c) a Collateral Event of Default within the meaning of the
Collateral Agreement shall occur;
then, upon the occurrence of any such event, Seller shall become obligated to
deliver the Additional Stock (or the Marketable Securities or cash or
combination of Marketable Securities and cash deliverable in respect of such
Additional Stock), or any U.S. Government Securities then pledged under the
Collateral Agreement in respect of such Additional Stock. Purchaser and Seller
agree that such amount is a reasonable preestimate of loss and not a penalty.
Such amount is payable for the loss of bargain and Purchaser will not be
entitled to recover additional damages as a consequence of any loss resulting
from an Event of Default.
ARTICLE VIII
MISCELLANEOUS
Section 8.1. Adjustments of Exchange Rate; Selection of Independent
Investment Banking Firm. Purchaser shall be responsible for the effectuation and
calculation of any adjustment pursuant to Article VI and shall furnish Seller
notice of any such adjustment and shall provide Seller reasonable opportunity to
review the
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calculations pertaining to any such adjustment. If, pursuant to the terms and
conditions of this Agreement, the Administrator shall be required to retain a
nationally recognized independent investment banking firm for any purpose
provided in this Agreement, such nationally recognized independent investment
banking firm shall be selected and retained by the Administrator only after
consultation with Seller.
Section 8.2. No Assumption of Liability. By executing this Agreement,
none of the Trustees assumes any personal liability under this Agreement.
Section 8.3. 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 8.3 to
each other party to this Agreement. Until such notice is given, (i) notices to
Purchaser shall be directed to it in care of the Administrator, The Chase
Manhattan Bank, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Telecopier No.
(▇▇▇) ▇▇▇-▇▇▇▇, Attention: Pledge Asset Control Services; and (ii) notices to
Seller [REVISE AS NECESSARY] shall be directed to it at -, Telecopier No. -.
(b) Each notice given pursuant to Section 8.3(a) shall be effective (i)
if sent by certified mail (return receipt requested), three Business Days 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 from the
addressee of receipt); or (iii) if given by any other means, when delivered at
the address specified in this Section 8.3.
Section 8.4. Governing Law; Severability. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York.
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 8.5. 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 8.6. Amendments; Waivers. Any provision of this Agreement may
be amended or waived (either generally or in a particular instance and either
retrospectively or prospectively) if, and only if, such amendment or waiver is
in writing and signed, in the case of an amendment, by Purchaser and Seller or,
in the case of a waiver, by the party against whom the waiver is to be
effective. Purchaser agrees that it will not, without Seller's written consent,
agree to amend or waive any provision of the Trust Agreement in any manner that
materially and adversely affects the rights or obligations of Seller hereunder.
No failure or delay by either party in exercising any right, power or privilege
under this Agreement shall operate as a waiver of such right, power or privilege
nor shall any single or partial exercise of any such right, power or privilege
preclude any other or
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further exercise of such right, power or privilege or the exercise of any other
right, power or privilege. The rights and remedies provided in this Agreement
shall be cumulative and not exclusive of any rights or remedies provided by law.
Section 8.7. 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 8.8. 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 Seller and Purchaser and their respective successors and
assigns and no 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 contained in this Agreement by or on
behalf of Seller and Purchaser shall bind and be enforceable by, and inure to
the benefit of, their respective successors and assigns whether so expressed or
not.
Section 8.9. 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 have caused this Purchase Agreement to
be duly executed and delivered as of the first date set forth above.
SELLER:
J. ▇▇▇ ▇▇▇▇▇▇▇▇
By:________________________________
Name:
Title:
PURCHASER:
AMERITRADE AUTOMATIC COMMON
EXCHANGE SECURITY TRUST
By:________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
as Trustee
By:________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ III,
as Trustee
By:________________________________
▇▇▇▇▇ ▇. ▇'▇▇▇▇▇,
as Trustee
25
Exhibit A
to
Purchase Agreement
CERTIFICATE FOR EXTENSION OF EXCHANGE DATE
The undersigned, - ("Seller"), hereby certifies, pursuant to Section
2.3(e) of the Purchase Agreement, dated as of July __, 1999 (the "Contract"),
between Seller and Ameritrade Automatic Common Exchange Security Trust, that:
1. Seller is transferring the following U.S. Government Securities to
Purchaser:
[INSERT LIST OF TRANSFERRED U.S. GOVERNMENT SECURITIES]
2. Seller hereby represents and warrants to Purchaser that:
(a) Consents to Transfer. No Transfer Restrictions exist with respect
to or otherwise apply to the transfer by Seller of such U.S. Government
Securities to Purchaser.
(b) Delivery. Seller has delivered to the Custodian, for the account of
and subject to the exclusive control of Purchaser, free and clear of any Liens
and Transfer Restrictions, 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 October -, 2002, cash in an
amount equal to not less than the product of - and the Additional Stock Base
Amount.
(c) Title. Seller has good and marketable title to such U.S. Government
Securities, free and clear of all Liens and Transfer Restrictions. Upon delivery
of such U.S. Government Securities to Purchaser, Purchaser will obtain good and
marketable title to such U.S. Government Securities free and clear of all Liens
and Transfer Restrictions.
Capitalized terms defined in the Contract are used in this Certificate
as defined in the Contract.
IN WITNESS WHEREOF, the undersigned has executed this certificate this
____ day of ____________, _____.
J. ▇▇▇ ▇▇▇▇▇▇▇▇
__________________________
A-1