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EXHIBIT 2.k.(iii)
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PURCHASE AGREEMENT
Between
,
As Seller
and
AMERITRADE AUTOMATIC COMMON EXCHANGE SECURITY TRUST,
As Purchaser
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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.................................................................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 Contract Stock....................................9
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.1. Representations and Warranties of Seller.....................................12
Section 3.2. Representations and Warranties of Purchaser..................................12
ARTICLE IV
CONDITIONS TO PURCHASER'S OBLIGATIONS
Section 4.1. Condition to Delivery of Firm Purchase Price.................................12
Section 4.2. 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.........................................................14
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Section 6.2. Adjustment for Consolidation, Merger or Other Reorganization Event.........17
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..........................................................19
ARTICLE VIII
MISCELLANEOUS
Section 8.1. Adjustments of Exchange Rate; Selection of Independent Investment
Banking Firm............................................................20
Section 8.2. No Assumption of Liability.................................................20
Section 8.3. Notices....................................................................20
Section 8.4. Governing Law; Severability................................................20
Section 8.5. Entire Agreement...........................................................20
Section 8.6. Amendments; Waivers........................................................21
Section 8.7. Non-Assignability..........................................................21
Section 8.8. No Third Party Rights; Successors and Assigns..............................21
Section 8.9. Counterparts...............................................................21
Exhibits
Exhibit A - Form of Certificate for Extension of Exchange Date
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PURCHASE AGREEMENT
PURCHASE AGREEMENT, dated as of , 1999, between [REVISE AS
NECESSARY] ("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 , 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 - $- 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 Stock) on the Exchange Date referred to below; and
WHEREAS, Seller has agreed, pursuant to the Collateral Agreement,
dated as of -, 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 -, 1999 (the "Underwriting Agreement"), among Purchaser, Seller, the
Company, and ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., as representatives of the several underwriters
named in such agreement (the "Underwriters"), to issue and sell to the
Underwriters an aggregate of - Securities (the "Firm Securities") and, at the
Underwriters' option, up to - additional Securities (such additional Securities
as the Underwriters shall actually purchase pursuant to the Underwriting
Agreements, the "Optional Securities") to cover overallotments; [REVISE AS
NECESSARY]
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(b).
"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(b).
"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 [Date],
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(c).
"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
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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
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(d).
"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
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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 Class A Common Stock or Stock 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.
"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.
"Contract Stock" has the meaning specified in Section 2.1(b).
"Custodian" means The Chase Manhattan Bank, as custodian for Purchaser
under the Custodian Agreement, dated as of [Date], 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
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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 [CLOSING DATE], 2002, subject to (i) extension
by Seller pursuant to Section 2.3(e) and (ii) subsequent acceleration
by Seller pursuant to Section 2.3(f).
"Exchange Rate" has the meaning specified in Section 2.1(c).
"Firm Purchase Price" has the meaning specified in Section 2.2(a).
"Firm Securities" has the meaning specified in the recitals to this
Agreement.
"Firm Stock Base Amount" means shares of Class A Common Stock.
"Firm Stock" has the meaning specified in Section 2.1(a).
"First Time of Delivery" means the First Time of Delivery specified
pursuant to section 2 of the Underwriting Agreement.
"Initial Price" has the meaning specified in Section 2.1(c).
"Liens" means any lien, mortgage, security interest, pledge, charge,
encumbrance or adverse claim of any kind.
"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".
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"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 [CLOSING DATE], 2000 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 2 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, 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
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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(g).
"Trust Agreement" means the Amended and Restated Trust Agreement,
dated as of [Date], 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. [REVISE AS NECESSARY]
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"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.
ARTICLE II
SALE AND PURCHASE
Section 2.1. Sale and Purchase.
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(a) Firm Stock. Upon the terms and subject to the conditions of this
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
shares of Class A Common Stock (the "Firm Stock") equal to the product of the
Firm Share Base Amount and the Exchange Rate.
(b) 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 Share 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 Share Base Amount
and the Second Time of Delivery. The Firm Stock and the Additional Stock (if
any) are collectively referred to in this Agreement as the "Contract Stock".
(c) 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 $ (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, ; and
(iii) if the Average Market Price is less than the Initial Price, 1.
Section 2.2. Purchase Price.
(a) Firm Purchase Price. The purchase price for the Firm Stock (the
"Firm Purchase Price") shall be $ in cash.
(b) Additional Purchase Price. The purchase price for the Additional
Stock (the "Additional Purchase Price") shall be 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 Contract Stock.
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(a) First Time of Delivery. Upon the terms and subject to the
conditions of this Agreement, Purchaser shall deliver to Seller the Firm
Purchase Price at the First 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) 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.
(c) Sale and Delivery of Contract Stock. Seller agrees to sell and
deliver the Contract Stock to Purchaser on the Exchange Date. Unless Seller
elects the Cash Settlement Alternative as provided in Section 2.3(d), 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 Contract Stock, rounded down to the nearest
whole number. Seller agrees to make a cash payment in respect of any fractional
shares included in the Contract 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(g)(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.
(d) Cash Settlement Alternative. At its option, Seller may deliver to
Purchaser on the Exchange Date (whether or not extended pursuant to Section
2.3(e) or accelerated pursuant to Section 2.3(f)), in lieu of the Contract
Stock, an amount in cash equal to the Average Market Price of the Contract Stock
on the Exchange Date (the "Cash
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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, Contract 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.
(e) 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 o, 2002, elect to extend the Exchange Date to October , 2002,
and the number of shares of Contract Stock and amount of cash to be delivered
pursuant to Section 2.3(c) shall be 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 sum of the Firm Share Base Amount and the Additional Share
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(e)(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 to cause 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.
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(f) Acceleration of Exchange Date at Election of Purchaser. At any
time after the Exchange Date has been extended pursuant to Section 2.3(e),
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 Contract Stock and amount of
cash to be delivered pursuant to Section 2.3(c) 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 sum of the Firm Share Base
Amount and the Additional Share 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(e)(i) (together with any payments received by Purchaser before the
date of such transfer in respect of such U.S. Government Securities).
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.
(g) 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
Contract 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 Contract 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 sum of the Firm Stock Base Amount and 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 [REVISE AS
NECESSARY] is true and correct on the date of this Agreement.
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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(a) of the Underwriting Agreement [REVISE AS
NECESSARY] is true and correct on the date of this Agreement.
ARTICLE IV
CONDITIONS TO PURCHASER'S OBLIGATIONS
Section 4.1. Condition to Delivery of Firm Purchase Price. The
obligation of Purchaser to deliver the Firm Purchase Price at the First Time of
Delivery is subject to the condition that the purchase by the Underwriters of
the Firm Securities pursuant to the Underwriting Agreement shall have been
consummated as contemplated under the Underwriting Agreement.
Section 4.2. 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 the transfer and delivery of the Contract Stock (or any cash
or Marketable Securities in lieu of the Contract 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 Contract
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 Contract 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
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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 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:
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(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
shares of Class A Common Stock 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
shares of stock 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 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 stock 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
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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.
(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.
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(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 share 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 share 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 share repurchase the
Exchange Rate shall be further adjusted to 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
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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 shareholders 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 Contract Stock, cash in an amount (the "Basic Reorganization Event Amount")
equal to the Dilution Adjustment (or successive Dilution Adjustments), if any,
that have been applied 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
Firm Share Base Amount plus the Additional Share 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, 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
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Consideration, to deliver the Accelerated Portion to Purchaser, provided that to
the extent 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 sum of the Firm Share Base Amount and the Additional
Share Base Amount and (y) the Exchange Rate, adjusted as described in the next
sentence, and the provisions of Section 2.3(c) 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(d) 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 Contract Stock shall be deemed to include both (A) that
number of shares of Class A Common Stock equal to the product of (x) the sum of
the Firm Stock Base Amount and 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 Contract Stock in such Spin-Off Distribution equal
to the product of (x) the sum of the Firm Stock Base Amount and 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 Contract Stock and the provisions of Section 2.3(c) 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
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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.
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 Contract Stock (or the Marketable Securities or cash or combination
of Marketable Securities and cash deliverable in respect of such Contract
Stock), or any U.S. Government Securities then pledged under the Collateral
Agreement in respect of such Contract 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
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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 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), 72 hours after being
deposited in the United States mail, postage prepaid or five days after being
deposited in the mail of another country, 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 8.3.
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.
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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 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, and shall be enforceable by and inure to the benefit of Purchaser and its
successors and assigns.
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:
By:
---------------------------------------
Name:
Title:
PURCHASER:
AMERITRADE AUTOMATIC COMMON
EXCHANGE SECURITY TRUST
By:
---------------------------------------
[Name],
as Trustee
By:
---------------------------------------
[Name],
as Trustee
By:
---------------------------------------
[Name],
as Trustee
27
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 , 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 (1) and (2) the sum of the Firm
Share Base Amount and the Additional Share 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.
3. Such U.S. Government Securities satisfy the conditions set forth in
Section 2.3(e)(i) of the Contract.
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 ____________, _____.
By:
---------------------------------
Name:
Title:
A-1