EXHIBIT 9.3
EXCHANGE TRUST AGREEMENT
This Exchange Trust Agreement (Agreement) is made and entered into as
of the 30th day of December, 1998, by and among Consumer Investment Corporation
("CIC"), AutoCorp Equities, Inc., a Nevada corporation ("AutoCorp"), ▇▇▇▇▇▇▇
▇▇▇▇▇▇, a resident of Collin County, Texas, as trustee (the "Trustee"), and
AutoPrime, Inc., a Delaware corporation ("AutoPrime"), to create an Exchange
Trust (the "Exchange Trust") to hold certain Shares of Common Stock, $0.001 par
value (the "Common Stock"), of AutoCorp for the benefit of (i) CIC to be used
for the benefit of the Holders of certain issued and outstanding debentures of
CIC (the "Debentures"), for the purpose of enabling CIC to offer to the Holders
of Debentures an exchange of herein described Shares for Debentures, and (ii)
for the benefit of AutoPrime to be used in conjunction with the terms and
conditions of a certain "Unconditional Tender of AutoCorp Preferred and Common
Stock" listed as an "Additional Document" on Exhibit "A" to the "Master
Agreement", on the terms and conditions set forth in this Agreement and the
Master Agreement between the foregoing parties and others of even date (the
"Master Agreement"), including the "Additional Documents" as that term is
defined in the Master Agreement.
R E C I T A L S
A. CIC, AutoCorp, AutoPrime and various other parties have entered into a
Master Agreement of even date providing for the restructuring and
refinancing of AutoCorp.
B. CIC covenants and agrees in the Master Agreement to use its best efforts,
along with the efforts of others, to effect, prior to December 31, 1999, an
exchange of Shares of Common Stock of AutoCorp for outstanding Debentures
of CIC at the exchange rate of one (1) Share for each $4.00 in principal
amount of Debentures.
C. Toward this end, AutoCorp agrees in the Master Agreement to place 1,425,887
Shares of Common Stock in this Exchange Trust for the benefit of CIC. Any
of such 1,425,887 Common Stock remaining in this Exchange Trust at the
close of business December 31, 1999, shall be returned to AutoCorp.
D. In that certain Pledge Agreement of even date, CIC pledges to AutoPrime the
Certificates of Beneficial Interest issued and to be issued to CIC pursuant
to this Exchange Trust Agreement. The purpose of the pledge is to secure
certain of its obligations to AutoPrime, as well as the obligations of
others.
E. AutoPrime has agreed to release from the pledge and return to CIC, prior to
the termination of the Exchange Trust, certificates evidencing such number
of shares of Beneficial Interest as may be necessary to effect any
exchanges of the nature described above. Such certificates are to be
returned within a timeframe that will facilitate such exchanges.
F. In addition, pursuant to the Master Agreement and the Unconditional Tender
of AutoCorp Preferred and common Stock, AutoCorp has tendered 1,091,113
Shares of its Common Stock to AutoPrime in full satisfaction of
$1,091,113.00 of indebtedness owed by AutoCorp to AutoPrime. In order to
assure AutoPrime that is interests in such tendered common Stock are fully
protected and preserved, AutoCorp has delivered such 1,091,113 shares, in
trust, to the Trustee hereof, subject to and in accordance with the
Unconditional Tender of AutoCorp Preferred and common stock which is
referred to and incorporated herein. Any of such 1,091,113 Shares of Common
Stock remaining in this Exchange Trust at the close of business on December
1, 1999, shall be returned to AutoCorp, although it is anticipated that,
prior to such date, AutoPrime will accept AutoCorp's tender of such common
Stock, in which event the 1,091,113 shares shall be promptly delivered to
AutoPrime.
F. The purpose of this Exchange Trust Agreement is to implement the foregoing
agreements.
G. Certain terms used in this Agreement shall have the meanings assigned to
them in Article 7 of this Agreement, including, without limitation, the
terms 'Shares' and "AutoCorp".
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises contained herein, the parties agree as follows:
ARTICLE 1
TRUSTEE
1.01 Number and Term of Trustees. There will be one (1) Trustee of this
Exchange Trust. The initial Trustee is the individual named above. His
successor, as Trustee, will be appointed as provided in Paragraph 1.05. The
Trustee will serve for the entire term of this Exchange Trust in the absence of
his resignation, removal, incapacity or death.
1.02 Death, etc. of Trustee. The Trustee is serving in a representative
capacity only. The powers, authority, rights, and duties of the Trustee shall
terminate on his death, incapacity, or bankruptcy, and no interest in any of the
property owned or held by the Exchange Trust nor any of the powers, authority,
rights, or duties of the Trustee may be transferred by will, devise, succession,
incapacity, divorce, or bankruptcy, in any other manner, except as provided in
this Agreement. The heirs, administrators, executors, successors and assigns for
the Trustee shall, however, have the right and duty to convey any property held
by the Trustee to the successor Trustee. No creditor or creditors of the Trustee
shall have any interest in or rights whatsoever with respect to any property
owned or held by the Exchange Trust.
1.03 Resignation. The Trustee may resign by giving notice of his
resignation to CIC , AutoPrime and to AutoCorp. When the Trustee resigns, either
CIC or AutoPrime or AutoCorp may settle any account or transaction with the
resigning Trustee.
1.04 Removal. The Trustee may be removed for cause at any time by any
of CIC. AutoPrime or AutoCorp. The Trustee may also be removed at any time
without cause by the mutual agreement of CIC, AutoPrime and AutoCorp.
1.05 Successor Trustees. Subject to Paragraph 1.01 above, in the event
of the resignation, removal, incapacity or death of the Trustee (or any
successor Trustee), a successor Trustee shall be elected by the mutual agreement
of CIC and AutoPrime or, in the event of disagreement, by AutoPrime.
ARTICLE 2
DEPOSIT AND TRANSFER OF SHARES;
ISSUANCE AND TRANSFER OF
EXCHANGE TRUST CERTIFICATES;
PLEDGE AND RELEASE OF TRUST CERTIFICATES
2.01 Deposit of Shares. On the execution of this Agreement, AutoCorp
shall deposit with the Trustee two share certificates, one for 1,425,887 Shares
and one for 1,091,113 Shares of AutoCorp Common Stock, in trust for the benefit
of (i) CIC (1,425,887 Shares and (ii) one for AutoPrime (1,091,113 Shares) to be
utilized only as agreed under the terms of this Exchange Trust Agreement and the
Master Agreement. All of such share certificates shall be endorsed in blank or
to the Trustee and be accompanied by instruments of transfer that will enable
the Trustee to cause the share certificates to be transferred into the name of
the Trustee.
CIC, in its capacity as beneficiary, hereby and in order to encourage
the exchange of Common Stock for Debenture debt, hereby covenants and agrees to
deposit in a like manner any additional certificates evidencing Common Stock of
AutoCorp which may be registered in its name in the future, regardless of the
capacity or manner in which such shares of Common Stock are received or
registered in its name. This includes Common Stock registered in CIC's name in a
representative capacity, as well as Common Stock registered in the names of CIC
and one or more other persons.
Any shares of Common Stock which are received by the Trustee during the
term of this Agreement, whether received pursuant to the paragraph above,
Paragraph 4.02, Paragraph 4.05, or otherwise, shall become part of the assets of
the Exchange Trust and shall be subject to all the terms and conditions of this
Agreement.
2.02 Transfer of Shares to Trustee. All share certificates delivered to
the Trustee shall be surrendered by the Trustee to AutoCorp and canceled. New
share certificates shall be issued in the name of the Trustee. The new share
certificates shall state that they are issued pursuant to this Agreement. That
fact shall also be noted in AutoCorp's stock transfer records as part of the
entry of the Trustees' ownership of the Shares. The Trustee shall hold all share
certificates for all Common Stock subject to the terms of this Agreement. Such
share certificates shall be and remain in the possession of the Trustee.
2.03 CIC Pledge of Trust CIC Certificate. The Trust Certificate being
issued to CIC for 1,425,887 Shares is being pledged to AutoPrime, Inc., a
Delaware corporation, pursuant to a certain Pledge Agreement of even date. CIC
is executing and delivering the Pledge Agreement concurrently with the execution
and delivery of this Agreement in order to pledge such Trust Certificate and all
subsequently acquired Trust Certificates to AutoPrime, Inc., to secure the
performance of CIC's obligations under the Pledge Agreement. In connection
therewith, CIC are also delivering possession of all now or hereafter issued
Trust Certificates to AutoPrime, Inc. in pledge to perfect the security interest
granted to AutoPrime, Inc. in the Pledge Agreement.
CIC also covenants and agrees to deliver to AutoPrime, Inc. any
additional certificates evidencing shares of Common Stock which may come into
its possession during the term of the Pledge Agreement, whether received
pursuant to Paragraph 4.02, Paragraph 4.05, or otherwise.
The parties understand and acknowledge that in the event of an Event of
Default as defined in the Pledge Agreement, AutoPrime, Inc., or its successor in
interest, may foreclose on such securities.
2.04 Transfer of Shares to Successor Trustees. Notwithstanding any
changes in the identity of the Trustee, the Certificates for Common Stock
standing in the name of the Trustee may be endorsed and transferred by any
successor Trustee with the same effect as if endorsed and transferred by the
Trustee who has ceased to act. The Trustee is authorized and empowered to cause
any further transfer of the Common Stock that may be necessary because of any
change of persons holding the office of Trustee.
2.05 No Mortgage or Sale of Assets of the Exchange Trust. The Trustee
has no authority to sell or otherwise dispose of or mortgage, pledge or encumber
in any manner any of the Common Stock deposited pursuant to the provisions of
this Agreement, or any other shares or securities received by the Trustee during
the term of this Agreement, except for the benefit of AutoPrime as set forth in
this Trust Agreement and the Master Agreement.
2.06 Trust Certificates. All right, title, and interest of the Trust
Certificate Holders in and to the Exchange Trust shall be divided into Shares of
Beneficial Interest. One share of Beneficial Interest shall correspond to one
share of Common Stock deposited pursuant to this Agreement. Trust Certificates
shall evidence Shares of Beneficial Interest in the Exchange Trust. The Trustee
shall issue and deliver to (i) CIC, against receipt of the shares initially
deposited pursuant to Paragraph 2.01 above, one Trust Certificate in
substantially the form of Exhibit "A-1" attached to this Agreement evidencing
the same number of Shares of Beneficial Interest as the number of shares of
Common Stock have been deposited for the benefit of CIC, and (ii) AutoPrime,
against receipt of the shares initially deposited pursuant to Paragraph 2.01
above, on Trust Certificate in substantially the form of Exhibit "A-2" attached
to this Agreement evidencing the same number of Shares of Beneficial Interest as
the number of shares of Common Stock have been deposited for the benefit of
AutoPrime. The aggregate number of Shares of Beneficial Interest represented by
all Trust Certificates shall at all times equal the aggregate number of all
shares of Common Stock deposited pursuant to this Agreement.
Each Trust Certificate shall contain a statement that the shares of
Common Stock represented by the certificate are subject to the provisions of
this Exchange Trust Agreement and shall contain a statement that a counterpart
of the Exchange Trust Agreement has been deposited with AutoCorp at its
registered office.
2.07 Fractional Trust Certificates. If an interest in this trust that
is owned by a Holder cannot be fully represented by whole Trust Certificates,
the Trustee may issue fractional share Trust Certificates, scrip, or other
evidence of ownership of the fractional part of one Trust Certificate that in
his discretion properly indicates ownership of the fractional interest. When
such an issue is made, the fractional interest shall not under any circumstances
have any greater rights or lesser liabilities than any other Trust Certificate.
2.08 Transfer of Trust Certificates. Trust Certificates shall be
transferable only as provided in the Certificates and in this Agreement, and on
payment of any charges payable at the time of transfer. All transfers shall be
recorded in the Trust Certificate Register provided for in Paragraph 5.02. Any
transfer made of any Trust Certificate shall vest in the transferee all rights
of the transferor and shall subject the transferee to the same limitations as
those imposed on the transferor by the terms of the Trust Certificate and by
this Agreement and the perfected lien rights of AutoPrime.
During the term of the Pledge Agreement (see Paragraph 2.03), Trust
Certificates are transferable only upon the transferee executing and becoming a
party to the Pledge Agreement and delivering possession of any Trust Certificate
to be registered in his name to AutoPrime, Inc. or its successor(s) in pledge to
secure the performance of the obligations of CIC under the Pledge Agreement.
In addition, during the term of the Pledge Agreement, the Trustee shall
deliver all Trust Certificates to AutoPrime, Inc. or its successor(s) (instead
of to the transferee) to be held in pledge to secure the performance of CIC's
obligations under the Pledge Agreement, for the number of shares of Common Stock
represented by the Trust Certificate so transferred. Thereafter, the Trustee
shall deliver to the transferee Trust Certificates for the number of shares of
Common Stock represented by the Trust Certificate so transferred.
2.09 Proof of Ownership. The Trustee shall not be required to recognize
any transfer of a Trust Certificate not made in accordance with the provisions
of this Agreement unless the persons claiming ownership have produced indicia of
title satisfactory to the Trustee, and shall have deposited with the Trustee
indemnity satisfactory to him.
2.10 Holder of Certificate as Owner. The Trustee may treat any
Trust Certificate Holder as the absolute owner and Holders of the Trust
Certificates registered in his or her name and as having all of the rights and
interests represented by them for all purposes, and the Trustee shall not be
bound or affected by any notice to the contrary.
2.11 Replacement of Certificates. If a Trust Certificate becomes
mutilated or is destroyed, stolen, or lost, the Trustee, in his discretion, may
issue a new Trust Certificate of like tenor and denomination in exchange and
substitution for and on cancellation of the mutilated Trust Certificate, or in
substitution for the Certificate so destroyed, stolen, or lost. The applicant
for a substituted Trust Certificate shall furnish to the Trustee evidence of the
destruction, theft, or loss of the Certificate satisfactory to him in his sole
discretion. The applicant shall also furnish indemnity satisfactory to the
Trustee and to his agents.
2.12 Securities Law Matters. The Trust Certificates will be issued
without registration under the Securities Act of 1933, as amended (the "1933
Act"), or the Texas Securities Act, in reliance on exemptions contained in such
statutes or in the rules and regulations promulgated by the Securities and
Exchange Commission under the 1933 Act.
There will not be any public market for the Trust Certificates, and the
sale or transfer of Trust Certificates will be subject to significant
restrictions on transferability.
Trust Certificate Holders may not resell or transfer the Trust
Certificates except in accordance with the provisions of the 1933 Act and the
Texas Securities Act. A Trust Certificate Holders may be required to bear the
economic risk of holding such securities for an indefinite period of time unless
they are subsequently registered under applicable securities laws, or an
exemption from such registration is available. The Trustee does not intend to
cause any of such securities to be so registered or such an exemption to be made
available.
As a condition to sale or other transfer of Trust Certificates, the
Trustee may, at his option, require:
(a) The proposed transferor or transferee to deliver to the Trustee
an opinion of counsel satisfactory to the Trustee, to the effect
that such registration or qualification is not required for such
proposed sale or other transfer; and/or
(b) The proposed transferee to deliver to the Trustee an investment
letter in substantially the form of either Exhibit "B-1" or
Exhibit "B-2" attached hereto.
2.13 Legends. All Trust Certificates, whether original issue or issued
upon transfer of a Trust Certificate, will have the following legend imprinted
on them:
"THE SECURITY EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS, AND
MAY NOT BE SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN EXEMPTION THEREFROM UNDER SUCH ACT AND SUCH LAWS. AS
A CONDITION TO SALE OR OTHER TRANSFER OF THIS SECURITY, THE COMPANY
MAY, AT ITS OPTION, REQUIRE THE PROPOSED TRANSFEROR HEREOF TO DELIVER
TO AutoCorp AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY, TO THE
EFFECT THAT SUCH REGISTRATION OR QUALIFICATION IS NOT REQUIRED FOR SUCH
PROPOSED SALE OR OTHER TRANSFER.
(For the Exhibit "A-1" Certificate (CIC only):
IN ADDITION, THIS TRUST CERTIFICATE IS SUBJECT TO A SECURITY INTEREST
IN FAVOR OF AUTOPRIME, INC. SUCH SECURITIES HAVE BEEN PLEDGED TO
AUTOPRIME, INC. PURSUANT TO THAT CERTAIN PLEDGE AGREEMENT DATED
DECEMBER 30, 1998, TO SECURE THE OBLIGATIONS OF CONSUMER INVESTMENT
CORPORATION AND LENDERS LIQUIDATION CENTERS, INC. CONTAINED IN THAT
CERTAIN PLEDGE AGREEMENT DATED DECEMBER 30, 1998, BETWEEN SUCH
CORPORATIONS AND AUTOPRIME, INC.; IN THE EVENT OF AN EVENT OF DEFAULT,
AS DEFINED IN THE PLEDGE AGREEMENT, AUTOPRIME, INC. MAY FORECLOSE ON
THE PLEDGED SECURITIES. DURING THE TERM OF THE PLEDGE AGREEMENT, THIS
TRUST CERTIFICATE MAY BE TRANSFERRED ONLY UPON THE TRANSFEREE EXECUTING
AND BECOMING A PARTY TO THE PLEDGE AGREEMENT AND DELIVERING POSSESSION
OF THIS TRUST CERTIFICATE TO AUTOPRIME, INC. IN PLEDGE FOR THE PURPOSE
DESCRIBED ABOVE."
2.14 Exchange of CIC Beneficial Shares for CIC Debentures. CIC,
AutoCorp, AutoPrime and various other parties have entered into a Master
Agreement of even date providing in part for the restructuring and refinancing
of AutoCorp. CIC covenants and agrees in the Master Agreement, and reaffirms
here in this Trust Agreement, to use its best efforts to effect, prior to
December 31, 1999, an exchange of Shares of Common Stock for indebtedness due
under the outstanding Debentures of CIC at the exchange rate of one (1) shares
of Common Stock for each $4.00 in principal amount of Debentures.
2.15. Return of Shares. All parties to this Agreement agree that one
of the two purposes of the Exchange Trust is to effect the exchanges described
in this Agreement and that any of the 1,425,887 Shares held for the benefit of
CIC which remain in this Exchange Trust at the close of business on December 31,
1999, shall be returned to AutoCorp, free and clear of the provisions and
conditions of this Exchange Trust and free and clear of all liens, claims,
encumbrances and taxes. In addition, pursuant to the Unconditional Tender of
AutoCorp Preferred and Common Stock, any of the 1,091,113 Shares held for the
benefit of AutoPrime which remain in this Exchange Trust at the close of
business on December 1, 1999, shall be returned to AutoCorp, free and clear of
the provisions and conditions of this Exchange Trust and free and clear of all
liens, claims, encumbrances and taxes.
2.16. Pledge and Release of CIC Beneficial Interests. In that certain
Pledge Agreement of even date, (see Paragraph 2.03) CIC pledges to AutoPrime all
Certificates of Beneficial Interest issued and to be issued to it pursuant to
the Exchange Trust Agreement. The purpose of the pledge is to secure certain of
its obligations to AutoPrime. AutoPrime has agreed, and reaffirms here in this
Agreement, that it will release from the pledge of the Pledge Agreement and
return to CIC prior to the termination of this Agreement, certificates
evidencing such number of shares of Beneficial Interest as may be necessary to
effect any exchanges of the nature described in this Agreement. AutoPrime agrees
to return such certificates within a timeframe that will facilitate exchanges.
ARTICLE 3
ACTION BY TRUSTEE
3.01 Exchange of Shares. While the Trustee holds Common Stock deposited
pursuant to the provisions of this Agreement, he shall, subject to Paragraph
2.05, possess and shall be entitled to exercise in person or by his nominee(s),
agent(s), attorney(s)-in-fact, or proxies all rights and powers of an absolute
owner and to vote, assent, or consent with respect to those rights and powers
and to take part in and consent to any corporate or shareholders' actions, and
to receive dividends and distributions on such Common Stock. No other person
shall have any rights in respect to the such Common Stock so long as this
Agreement is in effect and the shares are registered in the name of the Trustee.
On any issue presented to shareholders of AutoCorp, the Trustee shall
vote the shares deposited pursuant to this Agreement, or consent with respect to
them, in his sole and absolute discretion.
3.02 Voting in Interest of Company. Subject to the requirements of
Paragraph 3.01 above, in doing any act not subject to Paragraph 3.01 above
regarding the control or management of AutoCorp or its affairs, as Holders of
stock deposited pursuant to this Agreement, the Trustee shall exercise his best
judgment in the interest of AutoCorp to the end that its affairs shall be
properly managed, but he shall assume no responsibility regarding management or
any action taken by management or taken by AutoCorp in pursuance of his consent
to it as a shareholder or in pursuance of his vote so cast.
3.03 Action of Trustee. All action to be taken on any question
presented to the Trustee, except as otherwise expressly provided in this
Agreement, shall from time to time be determined by a signed writing of the
Trustee. The Trustee may provide for the authentication of evidence of any
action taken by him.
3.04 Meeting with Certificate Holders. On any issue presented to the
shareholders of AutoCorp for vote, upon which the Trustee desires the opinion of
either Trust Certificate Holders, the Trustee may call a meeting for this
purpose. At the meeting, the Holders may opine concerning the manner in which it
desires the Trustee to act, but the Trustee shall be bound to act in the manner
designated. The Trustee shall not be called upon or expected to take any action
as a result of this meeting unless and until he has been fully indemnified
against all loss, damage, claim, or injury to which he might be subjected,
either by reason of his action or by reason of his position as Trustee under
this Agreement.
3.05 Trustee's Relationship with Company. The Trustee, his employees or
agents, and any firm, corporation, trust, or association of which he may be a
trustee, stockholder, director, officer, member, agent, or employee may contract
with or be or become pecuniarily interested, directly or indirectly, in any
matter or transaction to which AutoCorp or AutoPrime, Inc., or any subsidiary or
controlled or affiliated corporation, may be a party or in which he may be
concerned, as fully and freely as thought the Trustee were not a Trustee
pursuant to this Agreement. The Trustee, his employees, or agents may act as
directors or officers of AutoCorp or AutoPrime, Inc., or of any subsidiary or
controlled or affiliated corporation.
3.06 Compensation of Trustee. The Trustee shall serve without
compensation, except as may be agreed, from time to time, by AutoCorp, AutoPrime
and the Trustee.
3.07 Expenses. The Trustee is expressly authorized to incur and pay
those reasonable charges and expenses that he may deem necessary and proper for
the administration of this Agreement. CIC or AutoPrime, as may be appropriate as
the two Trust Certificate Holders, shall reimburse and indemnify the Trustee for
all claims, expenses, and liabilities incurred by him in connection with the
discharge of his duties under this Agreement. Any such claims, expenses, or
liabilities shall be charged to the Trust Certificate Holders, pro rata, and may
be deducted from dividends or other assets available to (i) CIC or AutoPrime, as
appropriate, and for (ii) to the corpus of this Exchange Trust, or may be made a
charge payable following termination of the Exchange Trust as a condition to the
delivery of shares of Common Stock in exchange for Trust Certificates, pursuant
to Paragraph 6.03, and the Trustee shall be entitled to a lien for this charge
on the share certificates, the shares, the common Stock, all funds or other
property in his possession.
3.08 Trustee's Liability. The Trustee shall be free from liability in
acting upon any paper, document, or signature believed by him to be genuine and
to have been signed by the proper party. The Trustee shall not be liable for any
error of judgment, nor for any act done or omitted, nor for any mistake of fact
or law, nor for anything that he may do or refrain from doing in good faith, nor
generally shall the Trustee have any accountability pursuant to this Agreement,
except that the Trustee shall be liable for his own intentional misconduct or
gross negligence. The Trustee may be advised by legal counsel, and any action
under this Agreement taken or suffered in good faith by him in accordance with
the opinion of counsel shall be conclusive on the parties to this Agreement, and
the Trustee shall be fully protected and be subject to no liability in respect
to any action taken or suffered under this Agreement.
ARTICLE 4
DIVIDEND, DISTRIBUTION AND SUBSCRIPTION RIGHTS
OF CERTIFICATE HOLDERS
4.01 Cash Dividends. The Holders shall be entitled to receive from time
to time payments equal to the amount of cash dividends, if any, collected or
received by the Trustee on the Common Stock in regard to which Trust
Certificates were issued, less the deductions provided for in Paragraph 4.05.
These payments shall be made to the Holders as soon as practicable after the
receipt of the dividends. Instead of receiving cash dividends and paying them to
the Holders, the Trustee may instruct AutoCorp in writing to pay the dividends
directly to the Holders. When these instructions are given to AutoCorp, all
liability of the Trustee with regard to the dividends shall cease, until the
instructions are revoked. The Trustee may at any time revoke the instructions
and by written notice to AutoCorp direct it to make dividend payments to the
Trustee.
4.02 Share Distributions. If the Trustee receives as a dividend or
other distribution on any securities held by him under this Agreement, any
additional Common Stock or other securities, the Trustee shall hold them subject
to this Agreement for the benefit of the Holders, and the securities shall
become subject to all of the terms and conditions of this Agreement to the same
extent as if they were originally deposited under it. The Trustee may, in his
discretion, issue Trust Certificates in respect of these securities to the
appropriate Holder. If so, such newly-issued Trust Certificates issued for the
benefit of CIC shall be delivered to AutoCorp for purposes of the pledge
described in Paragraph 2.03.
4.03 Other CIC Distributions. If at any time during the term of this
Agreement the Trustee shall receive or collect any moneys (including payment of
cash dividends) for the benefit of CIC through a distribution by AutoCorp to its
shareholders or shall receive any property through a distribution by AutoCorp to
its security holders, the Trustee shall distribute same to CIC, which, in turn,
shall pledge such property as additional collateral to secure the obligations
described in the Pledge Agreement. The Trustee may withhold from the
distribution the deductions provided for in Paragraph 4.04. Any securities
received by the Trustee through any such distribution for the benefit of either
or both of CIC and AutoPrime shall be retained by the Trustee as part of the
assets of the Exchange Trust, pursuant to Paragraphs 2.01 and 4.02 above.
4.04 Deductions for Distributions. There shall be deducted and withheld
from every distribution of every kind under this Agreement any taxes,
assessments, or other charges that may be required by law to be deducted or
withheld, as well as expenses and charges incurred pursuant to Paragraph 3.07,
to the extent that the expenses and charges remain unpaid or unreimbursed.
4.05 Subscription Rights. If the Trustee shall receive notice of an
offer by AutoCorp of additional securities for subscription, the Trustee shall
promptly mail a copy of the notice to the Holders. On receipt by the Trustee, at
least three (3) days prior to the last date fixed by AutoCorp for subscription,
of a request from a Holders to be subscribed in its behalf, accompanied by the
sum of money required to be paid for the securities, the Trustee shall make the
subscription and payment on behalf of such Holders.
With respect to, and during the term of the Pledge Agreement, on being
entitled to receive the certificate for the securities subscribed for, if the
securities are voting securities, AutoCorp shall retain possession of the
certificate, to hold it in pledge to secure the performance of CIC's obligations
under the Pledge Agreement, the Trustee shall issue in the name of the
subscribing Holders a Trust Certificate in respect of those securities and shall
deliver same to AutoCorp, also to be held in pledge to secure the performance of
CIC's obligations under the Pledge Agreement. If the securities subscribed are
nonvoting securities, AutoCorp shall deliver the certificate for the subscribed
securities to the Trustee, and the Trustee shall deliver them to the respective
subscribing Holders.
If the Pledge Agreement is not in effect, on receiving from AutoCorp
the certificate for the securities subscribed for, if the securities are voting
securities, the Trustee shall issue to the subscribing Holders a Trust
Certificate in respect of those securities, and, if they are nonvoting
securities, the Trustee shall deliver the certificate to the subscribing
Holders.
4.06 Record Date for Distributions. The Trustee may, if he deems it
advisable, fix a date not exceeding ten (10) days preceding any date for the
payment or distribution of dividends, or for the distribution of assets or
rights, as a record date for the determination of the Trust Certificate Holders
entitled to receive the payment or distribution, and the Trust Certificate
Holders of record on that date shall be exclusively entitled to participate in
the payment or distribution. If the Trustee fails to fix a record date, the date
three (3) days prior to the date of payment or distribution of dividends or the
distribution of assets or rights shall constitute the record date for the
determination of the Trust Certificate Holders entitled to receive the payment
or distribution.
ARTICLE 5
BOOKS AND RECORDS
5.01 Record of Shares. It shall be the duty of the Trustee to maintain
a record of all AutoCorp share certificates that are transferred to the Trustee,
indicating the name in which the stock was held, the date of issuance of the
stock, the class of the stock, the number of shares, and the number of the
certificates representing those shares. The Trustee shall also maintain a record
of the date on which he received any share certificates and the date on which
they were delivered to AutoCorp for transfer to the Trustee, and shall obtain a
receipt for any certificates so delivered. The Trustee shall receive and hold
the new share certificates issued by AutoCorp in the name of the Trustee and
shall maintain a record indicating the date of issuance of the certificates, the
date of receipt of the certificates, and the place in which he is holding the
certificates.
5.02 Record of Trust Certificates. The Trustee shall maintain a record
showing the names and addresses of the Holders. The record shall show the number
of Certificates held by each such Holders. The record shall show the dates on
which the Trust Certificates were issued, canceled, transferred, or replaced.
The record shall be known as the Trust Certificate Register and shall be open to
inspection by any of the parties to this Agreement or their successors at any
reasonable time. The first Trust Certificate Holders to appear in such Register
shall be CIC and the second shall be AutoPrime. The record shall show any
subsequent transfer, assignment, pledge, attachment, execution, and any other
matter affecting the title to the Trust Certificates that comes to the attention
of the Trustee. Any documents purporting to affect the title of the Trust
Certificates shall also be kept in the Trust Certificate Register, together with
a sample copy of the Trust Certificate.
5.03 Books of Account. The Trustee or his agent shall maintain books of
account that shall be in the form prescribed from time to time by the Trustee.
In addition to other matters that the Trustee may insert in the record, the
record shall show all sums of money received by the Trustee, all disbursements
made by the Trustee, and all obligations incurred by the Trustee that are
unpaid. Information concerning these accounts shall be posted at least monthly.
5.04 Other Records. The Trustee shall maintain such other books and
records and shall perform the duties required of him to be performed elsewhere
in this Agreement.
5.05 Inspection of Records. The parties to this Agreement shall deposit
a counterpart of this Agreement with AutoCorp at its registered office, and the
Agreement shall be subject to the same right of examination by a shareholders of
AutoCorp, in person or by agent or attorney, as are the books and records of
AutoCorp.
ARTICLE 6
TERM OF TRUST
6.01 Irrevocability of Trust. The trust created by this Agreement is
expressly declared to be irrevocable, except as otherwise provided in this
Agreement.
6.02 Termination. This Agreement shall terminate upon the earlier to
happen of the following events;
(a) December 31, 1999;
(b) All Debentures have been exchanged, and no Debentures
remain outstanding and the 1,091,113 shares held for
the benefit of AutoPrime have been either returned to
AutoCorp or delivered to AutoPrime, as provided in the
Unconditional Tender of AutoCorp Preferred and Common
Stock
(c) The conversion to Common Stock of 3,500,000 shares of
then-outstanding Shares of AutoCorp Series A
Non-Cumulative Convertible Preferred Stock and the
1,091,113 Shares held for the benefit of AutoPrime have
been either returned to AutoCorp or delivered to
AutoPrime, as provided in the Unconditional Tender of
AutoCorp Preferred and Common Stock.
(d) The mutual agreement evidenced in writing of (i) the
Holders of all Trust Certificates, (ii) AutoCorp, and
(iii) AutoPrime, Inc. or their respective successors in
interest; or
(e) At the election of AutoPrime Inc., upon the occurrence
of an Event of Default under the Master Agreement or
any of the Additional Documents.
6.03 Distribution of Share Certificates After Termination. Within
thirty (30) days after the termination of this Agreement, the Trustee shall
distribute to the Trust Certificate Holders, subject to Paragraphs 3.07 and 4.04
above, share certificates representing the number of shares of Common Stock in
respect of which Trust Certificates were issued, in exchange for the surrender
of the Trust Certificates properly endorsed and on payment by the persons
entitled to receive the share certificates of a sum sufficient to cover (a) any
governmental charge on the transfer or delivery of the share certificates, and
(b) any items described in Paragraphs 3.07 and 4.04 to the extent they remain
unpaid or unreimbursed.
6.04 Final Accounting. Within sixty (60) days after termination of this
Agreement, the Trustee shall render a final accounting to the Trust Certificate
Holders, to AutoCorp and to AutoPrime and shall distribute any funds or other
assets held by him to the parties entitled to them.
ARTICLE 7
CERTAIN DEFINITIONS
When used in this Agreement, the following terms shall have the
meanings assigned to them below, unless the context otherwise requires:
"Beneficial Interest" shall mean the right, title, and interest of the
Holders in and to the Exchange Trust and shall be divided into Shares and
evidenced as provided in Paragraph 2.04.
"Debentures" shall mean those certain outstanding and issued of
Debentures issued by CIC.
"Holder" shall mean a Trust Certificate Holder.
"Pledge Agreement" shall mean that certain Pledge Agreement of even
date executed by CIC and LLIC, pursuant to which they have granted AutoPrime
certain security interests, including a security interest in all shares of
Common Stock deposited pursuant to this Agreement in order to secure CIC and
LLIC's obligations under the Pledge Agreement.
"Shares" shall mean, unless the context otherwise requires, (a) the
Shares of Common Stock of AutoCorp Equities, Inc. being initially deposited
pursuant to this Agreement in connection with the execution and delivery of this
Agreement;
"Trust Certificate Holder", "Certificate Holder", or "Holder" shall
mean a holder of a Trust Certificate. The first Trust Certificate Holder shall
be CIC and the second shall be AutoPrime.. When there is more than one Trust
Certificate Holder, action by all Holders may be authorized by them in the
manner provided in Paragraph 4.07.
ARTICLE 8
MISCELLANEOUS
8.01 Place of Performance. This Agreement is made, executed, and
entered into at Dallas, Dallas County, Texas, and it is mutually agreed that the
performance of all parts of this contract shall be made at Dallas, Dallas
County, Texas, and any dispute arising hereunder must be resolved in the United
States District Court for the Northern District of Texas, Dallas Division, or a
Civil District Court, in and for Dallas County, Texas.
8.02 Governing Law. This Agreement is intended by the parties to be
governed and construed in accordance with the laws of the State of Texas, except
that all matters considered to be internal corporate matters of AutoCorp,
including requirements of the formation and operation of all trusts for shall be
governed by Nevada law.
8.03 Construction by Trustee. The Trustee is authorized and empowered
to construe this Agreement. His reasonable construction made in good faith shall
be conclusive and binding on all parties to this Agreement and on any Trust
Certificate Holders.
8.04 Notices to Parties. If given to a party to this Agreement, any
notice, demand, waiver, or consent required or permitted under this Agreement or
a Trust Certificate shall be in writing and shall be given by personal delivery,
courier, overnight service, facsimile transmission, prepaid telegram or prepaid
registered or certified mail, with return receipt requested, addressed to the
last address know to the Trustee.
The date of any such notice and of service thereof shall be deemed to
be the day of its receipt by the party to whom it is addressed. Any party hereto
may at any time and from time to time change its address for the receipt of
notice pursuant to this Agreement by giving notice to the other parties hereto
in the manner set forth herein for the giving of notice.
8.05 Notice to Holders. Any notice to be given to a Trust Certificate
Holder other than CIC shall be sufficiently given if mailed, postage prepaid, to
him or her at the address of the Trust Certificate Holder appearing in the Trust
Certificate Register to be maintained by the Trustee. Every notice so given
shall be effective whether or not received, and such notice shall for all
purposes be deemed to have been given on the date of its mailing.
8.06 Notice and Reports from Company. Each Holder shall have the right
to:
(a) Receive from AutoCorp, in the same manner and at the
same time as if the Holder were a shareholder, copies
of such reports, financial statements, notices, proxy
statements, and other documents as AutoCorp shall
distribute to its shareholders.
(b) Receive from AutoCorp notice of each annual and special
meeting of shareholders, in the same manner and at the
same time as if the Holder were a shareholder.
8.07 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original but all of which, taken
together, shall constitute one and the same instrument.
8.08 Amendment of Agreement. This Agreement may be amended by the
agreement in writing by AutoCorp and the Trustee.
8.09 Advice of Counsel. Each of the parties agrees and represents that
he or she has been represented by his or her own counsel with regard to the
execution of this Agreement or, if acting without counsel, that he or she has
had adequate opportunity and has been encouraged to take the advice of his or
her own counsel prior to the execution of this Agreement.
8.10 Duplicate of this Agreement. A duplicate of this Agreement shall
be filed in the registered office of AutoCorp in the State of Nevada. Such
duplicate shall at all times during the term of this Agreement be open to
inspection by any stockholder or his attorney.
IN WITNESS WHEREOF, the parties have executed this Agreement or caused
this Agreement to be duly executed on their behalf as of the day and year first
above written.
ADDRESSES:
AutoCorp Equities, Inc. AUTOCORP EQUITIES, INC.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇
Secretary
THE "TRUSTEE"
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Trustee
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Trustee
THE TRUST
CERTIFICATE HOLDER
Consumers Investment Corporation CONSUMERS INVESTMENT
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇)
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
No. of Shares: 1,425,887
OTHER PARTIES
AutoPrime, Inc. AUTOPRIME, INC.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
▇▇▇▇▇▇▇ "▇- ▇"
(▇▇▇)
THE SECURITY EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS, AND MAY NOT BE SOLD OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION
THEREFROM UNDER SUCH ACT AND SUCH LAWS. AS A CONDITION TO SALE OR OTHER TRANSFER
OF THIS SECURITY, THE COMPANY MAY, AT ITS OPTION, REQUIRE THE PROPOSED
TRANSFEROR HEREOF TO DELIVER TO AUTOCORP AN OPINION OF COUNSEL SATISFACTORY TO
THE COMPANY, TO THE EFFECT THAT SUCH REGISTRATION OR QUALIFICATION IS NOT
REQUIRED FOR SUCH PROPOSED SALE OR OTHER TRANSFER.
IN ADDITION, THIS TRUST CERTIFICATE IS SUBJECT TO A SECURITY INTEREST
IN FAVOR OF AUTOPRIME, INC. SUCH SECURITIES HAVE BEEN PLEDGED TO AUTOPRIME, INC.
PURSUANT TO THAT CERTAIN PLEDGE AGREEMENT DATED DECEMBER 30, 1998, TO SECURE THE
OBLIGATIONS OF CONSUMER INVESTMENT CORPORATION AND LENDERS LIQUIDATION CENTERS,
INC. CONTAINED IN THAT CERTAIN PLEDGE AGREEMENT DATED DECEMBER 30, 1998, BETWEEN
SUCH CORPORATIONS AND AUTOPRIME, INC.; IN THE EVENT OF AN EVENT OF DEFAULT, AS
DEFINED IN THE PLEDGE AGREEMENT, AUTOPRIME, INC. MAY FORECLOSE ON THE PLEDGED
SECURITIES.
DURING THE TERM OF THE PLEDGE AGREEMENT, THIS TRUST CERTIFICATE MAY BE
TRANSFERRED ONLY UPON THE TRANSFEREE EXECUTING AND BECOMING A PARTY TO THE
PLEDGE AGREEMENT AND DELIVERING POSSESSION OF THIS TRUST CERTIFICATE TO
AUTOPRIME, INC. IN PLEDGE FOR THE PURPOSE DESCRIBED ABOVE.
TRUST CERTIFICATE
AUTOCORP EQUITIES, INC.
Certificate Number
_______
This Trust Certificate ("Certificate") evidences that _________________
(referred to in this Certificate as the "Certificate Holder") is the owner and
holder of _______ Shares of Beneficial Interest in the Exchange Trust (the
"Exchange Trust") created pursuant to that certain Exchange Trust Agreement (the
Exchange Trust Agreement) dated as of December 30, 1998, by and among certain
Certificate Holders, AutoCorp Equities, Inc. (the "Company"), AutoPrime, Inc.,
("AutoPrime") and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, as Trustee (the "Trustee").
Capitalized terms used herein, which are not defined herein, shall have
the same meanings when used herein as they do when used in the Exchange Trust
Agreement.
This Certificate is issued by the Trustee to the Certificate Holder on
the following terms and conditions:
1. Rights of Certificate Holder. The Certificate Holders hereby accepts
and ratifies all of the terms, conditions, and covenants of the Exchange Trust
Agreement. A counterpart of this Agreement is on file at the registered office
of AutoCorp at ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and is incorporated by
reference in this Certificate as though set forth in full herein.
This Certificate evidences ownership of only a Beneficial Interest in
the Exchange Trust. Pursuant to the Exchange Trust Agreement, the Trustee is the
owner and holder of the legal title of all Shares of Common Stock of AutoCorp
deposited pursuant to the Agreement. The Certificate Holders has rights with
respect to the Shares of stock of AutoCorp deposited pursuant to the Exchange
Trust Agreement only as provided in the Agreement.
THE CERTIFICATE HOLDER UNDERSTANDS AND ACKNOWLEDGES THAT (A) THESE
SHARES OF BENEFICIAL INTEREST IN THE EXCHANGE TRUST HAVE BEEN PLEDGED TO
AUTOPRIME, INC. TO SECURE THE OBLIGATIONS OF CONSUMER INVESTMENT CORPORATION AND
LENDERS LIQUIDATION CENTERS, INC. CONTAINED IN THAT CERTAIN PLEDGE AGREEMENT
DATED DECEMBER 30, 1998, BETWEEN SUCH CORPORATIONS AND AUTOPRIME, INC.; AND (B)
IN THE EVENT OF AN EVENT OF DEFAULT UNDER THE PLEDGE AGREEMENT, AUTOPRIME, INC.
MAY FORECLOSE ON SUCH SECURITIES.
2. Voting Rights. The undersigned Trustee during the term of the
Exchange Trust Agreement is the legal owner of the Shares of stock of AutoCorp
deposited pursuant
to the Exchange Trust Agreement for all purposes relating to the Exchange Trust
Agreement and in all matters of AutoCorp for which the Shares may be voted. No
voting rights of Shares deposited pursuant to the Exchange Trust Agreement are
granted to the Certificate Holder by this Certificate. Only the rights as a
Holder of a Beneficial Interest in the Exchange Trust provided to the
Certificate Holder in the Exchange Trust Agreement are represented by this
Certificate.
3. Dividends and Distributions. The Certificate Holder is entitled to
receive, subject to the limitations in the Exchange Trust Agreement, all cash
dividends or other distributions of non-voting securities of AutoCorp received
by the undersigned Trustee. In the event of share dividends, the Trustee shall
receive and hold them pursuant to the terms of the Exchange Trust Agreement and
may, in his discretion, issue to the Certificate Holder additional Trust
Certificates representing the share dividends.
4. Termination. The Exchange Trust shall terminate upon the earlier to
happen of the following events;
(a) December 31, 1999;
(b) All Debentures have been exchanged, and no Debentures
remain outstanding and the 1,091,113 shares held for
the benefit of AutoPrime have been either returned to
AutoCorp or delivered to AutoPrime, as provided in the
Unconditional Tender of AutoCorp Preferred and Common
Stock
(c) The conversion to Common Stock of 3,500,000 shares of
then-outstanding Shares of AutoCorp Series A
Non-Cumulative Convertible Preferred Stock and the
1,091,113 Shares held for the benefit of AutoPrime have
been either returned to AutoCorp or delivered to
AutoPrime, as provided in the Unconditional Tender of
AutoCorp Preferred and Common Stock.
(d) The mutual agreement evidenced in writing of (i) the
Holders of all Trust Certificates, (ii) AutoCorp, and
(iii) AutoPrime, Inc. or their respective successors in
interest; or
(e) At the election of AutoPrime Inc., upon the occurrence
of an Event of Default under the Master Agreement or
any of the Additional Documents.
5. Distribution of Share Certificates After Termination. Subject to the
terms and provisions of the Exchange Trust Agreement, within thirty (30) days
after the termination of the Exchange Trust Agreement, the Trustee shall
distribute to the Certificate Holder, subject to Paragraphs 3.07 and 4.04 of the
Exchange Trust Agreement, certificates for Shares representing the number of
Shares in respect of which this Certificate was issued, in exchange for the
surrender of this Certificate properly endorsed and on payment by the
Certificate Holder of a sum sufficient to cover (a) any governmental charge on
the transfer or delivery of the share certificates, and (b) the pro rata share
attributable to this Certificate of any items described in Paragraphs 3.07 and
4.04 of the Exchange Trust Agreement to the extent they remain unpaid or
unreimbursed.
6. Transfer of Certificates. Subject to the terms of the Exchange Trust
Agreement, this Certificate is transferable in the same manner as any other
security. Any transfer shall be on the books of the Trustee or his agent and
shall be made only on the surrender of this Certificate by the Certificate
Holder or his or her attorney endorsed in blank or to the transferee. The
Trustee may treat the registered Certificate Holder or, at the election of the
Trustee in his sole and absolute discretion, when presented duly endorsed in
blank, the bearer of this Certificate as its absolute owner and as the owner of
all rights and interests in the Exchange Trust represented by this Certificate
for all purposes whatsoever. The Trustee shall not be bound or affected by any
notice to the contrary.
IN WITNESS WHEREOF, the Trustee has executed and delivered this Trust
Certificate as of the 30th day of December, 1998.
TRUSTEE
___________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Trustee
ASSIGNMENT
For value received, the undersigned hereby sells, assigns, and
transfers to ___________________ this Trust Certificate and the Beneficial
Interest in the Exchange Trust represented by this Trust Certificate. The
undersigned irrevocably appoints _________________ his or her attorney with full
power of substitution to transfer this Certificate on the books of the Trustee.
Dated: ______________, 19____. ________________________________________
(Please sign exactly as name appears on
Certificate)
________________________________________
(Typed or Printed Name)
Taxpayer ID No._________________________
SIGNATURE GUARANTEED
________________________________________
(Name of Bank, trust company or broker)
By: ________________________________
Name: ________________________________
Its: ________________________________
Address:________________________________
________________________________________
▇▇▇▇▇▇▇ "▇- ▇"
(▇▇▇)
THE SECURITY EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS, AND MAY NOT BE SOLD OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION
THEREFROM UNDER SUCH ACT AND SUCH LAWS. AS A CONDITION TO SALE OR OTHER TRANSFER
OF THIS SECURITY, THE COMPANY MAY, AT ITS OPTION, REQUIRE THE PROPOSED
TRANSFEROR HEREOF TO DELIVER TO AUTOCORP AN OPINION OF COUNSEL SATISFACTORY TO
THE COMPANY, TO THE EFFECT THAT SUCH REGISTRATION OR QUALIFICATION IS NOT
REQUIRED FOR SUCH PROPOSED SALE OR OTHER TRANSFER.
TRUST CERTIFICATE
AUTOCORP EQUITIES, INC.
Certificate Number
_________
This Trust Certificate ("Certificate") evidences that _________________
(referred to in this Certificate as the "Certificate Holder") is the owner and
holder of _______ Shares of Beneficial Interest in the Exchange Trust (the
"Exchange Trust") created pursuant to that certain Exchange Trust Agreement (the
Exchange Trust Agreement) dated as of December 30, 1998, by and among certain
Certificate Holders, AutoCorp Equities, Inc. (the "Company"), AutoPrime, Inc.,
("AutoPrime") and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, as Trustee (the "Trustee").
Capitalized terms used herein, which are not defined herein, shall have
the same meanings when used herein as they do when used in the Exchange Trust
Agreement.
This Certificate is issued by the Trustee to the Certificate Holder on
the following terms and conditions:
1. Rights of Certificate Holder. The Certificate Holders hereby accepts
and ratifies all of the terms, conditions, and covenants of the Exchange Trust
Agreement. A counterpart of this Agreement is on file at the registered office
of AutoCorp at ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and is incorporated by
reference in this Certificate as though set forth in full herein.
This Certificate evidences ownership of only a Beneficial Interest in
the Exchange Trust. Pursuant to the Exchange Trust Agreement, the Trustee is the
owner and holder of the legal title of all Shares of Common Stock of AutoCorp
deposited pursuant to the Agreement. The Certificate Holders has rights with
respect to the Shares of stock of AutoCorp deposited pursuant to the Exchange
Trust Agreement only as provided in the Agreement.
2. Voting Rights. The undersigned Trustee during the term of the
Exchange Trust Agreement is the legal owner of the Shares of stock of AutoCorp
deposited pursuant to the Exchange Trust Agreement for all purposes relating to
the Exchange Trust Agreement and in all matters of AutoCorp for which the Shares
may be voted. No voting rights of Shares deposited pursuant to the Exchange
Trust Agreement are granted to the Certificate Holder by this Certificate. Only
the rights as a Holder of a Beneficial Interest in the Exchange Trust provided
to the Certificate Holder in the Exchange Trust Agreement are represented by
this Certificate.
3. Dividends and Distributions. The Certificate Holder is entitled to
receive, subject to the limitations in the Exchange Trust Agreement, all cash
dividends or other distributions of non-voting securities of AutoCorp received
by the undersigned Trustee. In the event of share dividends, the Trustee shall
receive and hold them pursuant to the terms of the Exchange Trust Agreement and
may, in his discretion, issue to the Certificate Holder additional Trust
Certificates representing the share dividends.
4. Termination. The Exchange Trust shall terminate upon the earlier to
happen of the following events;
(a) December 31, 1999;
(b) All Debentures have been exchanged, and no Debentures
remain outstanding and the 1,091,113 shares held for
the benefit of AutoPrime have been either returned to
AutoCorp or delivered to AutoPrime, as provided in the
Unconditional Tender of AutoCorp Preferred and Common
Stock
(c) The conversion to Common Stock of 3,500,000 shares of
then-outstanding Shares of AutoCorp Series A
Non-Cumulative Convertible Preferred Stock and the
1,091,113 Shares held for the benefit of AutoPrime have
been either returned to AutoCorp or delivered to
AutoPrime, as provided in the Unconditional Tender of
AutoCorp Preferred and Common Stock.
(d) The mutual agreement evidenced in writing of (i) the
Holders of all Trust Certificates, (ii) AutoCorp, and
(iii) AutoPrime, Inc. or their respective successors in
interest; or
(e) At the election of AutoPrime Inc., upon the occurrence
of an Event of Default under the Master Agreement or
any of the Additional Documents.
5. Distribution of Share Certificates After Termination. Subject to the
terms and provisions of the Exchange Trust Agreement, within thirty (30) days
after the termination of the Exchange Trust Agreement, the Trustee shall
distribute to the Certificate Holder, subject to Paragraphs 3.07 and 4.04 of the
Exchange Trust Agreement, certificates for Shares representing the number of
Shares in respect of which this Certificate was issued, in exchange for the
surrender of this Certificate properly endorsed and on payment by the
Certificate Holder of a sum sufficient to cover (a) any governmental charge on
the transfer or delivery of the share certificates, and (b) the pro rata share
attributable to this Certificate of any items described in Paragraphs 3.07 and
4.04 of the Exchange Trust Agreement to the extent they remain unpaid or
unreimbursed.
6. Transfer of Certificates. Subject to the terms of the Exchange Trust
Agreement, this Certificate is transferable in the same manner as any other
security. Any transfer shall be on the books of the Trustee or his agent and
shall be made only on the surrender of this Certificate by the Certificate
Holder or his or her attorney endorsed in blank or to the transferee. The
Trustee may treat the registered Certificate Holder or, at the election of the
Trustee in his sole and absolute discretion, when presented duly endorsed in
blank, the bearer of this Certificate as its absolute owner and as the owner of
all rights and interests in the Exchange Trust represented by this Certificate
for all purposes whatsoever. The Trustee shall not be bound or affected by any
notice to the contrary.
IN WITNESS WHEREOF, the Trustee has executed and delivered this Trust
Certificate as of the 30th day of December, 1998.
TRUSTEE
------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Trustee
ASSIGNMENT
For value received, the undersigned hereby sells, assigns, and
transfers to ___________________ this Trust Certificate and the Beneficial
Interest in the Exchange Trust represented by this Trust Certificate. The
undersigned irrevocably appoints _________________ his or her attorney with full
power of substitution to transfer this Certificate on the books of the Trustee.
Dated: ______________, 19____. _______________________________________
(Please sign exactly as name appears on
Certificate)
_______________________________________
(Typed or Printed Name)
Taxpayer ID No.________________________
SIGNATURE GUARANTEED
________________________________________
(Name of Bank, trust company or broker)
By: __________________________________
Name:__________________________________
Its: __________________________________
Address: ______________________________
EXHIBIT "B-1"
FORM OF INVESTMENT LETTER
To: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Trustee
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
In connection with the transfer to the undersigned of Shares of
Beneficial Interest in the Exchange Trust established by that certain Exchange
Trust Agreement dated December 30, 1998, by and among certain Certificate
Holders, AutoCorp Equities, Inc., and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (the "Trustee"), the
undersigned hereby represents that he/she/it is acquiring such Shares of
Beneficial Interest (as evidenced by one or more certain Trust Certificates
issued pursuant to the Exchange Trust Agreement) for his/her/its own account for
investment and not with a view to or for sale in connection with any
distribution of said Shares.
THE CERTIFICATE HOLDER UNDERSTANDS AND ACKNOWLEDGES THAT (A) THESE
SHARES OF BENEFICIAL INTEREST IN THE EXCHANGE TRUST HAVE BEEN PLEDGED TO
AUTOPRIME, INC. TO SECURE THE OBLIGATIONS OF CONSUMER INVESTMENT CORPORATION AND
LENDERS LIQUIDATION CENTERS, INC. CONTAINED IN THAT CERTAIN PLEDGE AGREEMENT
DATED DECEMBER 30, 1998, BETWEEN SUCH CORPORATIONS AND AUTOPRIME, INC.; AND (B)
IN THE EVENT OF AN EVENT OF DEFAULT UNDER THE PLEDGE AGREEMENT, AUTOPRIME, INC.
MAY FORECLOSE ON SUCH SECURITIES.
Capitalized terms used herein, which are not defined herein, shall have
the same meanings when used herein as they do when used in the Exchange Trust
Agreement.
Dated:_______________________________ _______________________________
By:_______________________________
(Signature)
_______________________________
(Printed or Typed Name)
EXHIBIT "B-2"
FORM OF INVESTMENT LETTER
To: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Trustee
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
In connection with the transfer to the undersigned of Shares of
Beneficial Interest in the Exchange Trust established by that certain Exchange
Trust Agreement dated December 30, 1998, by and among certain Certificate
Holders, AutoCorp Equities, Inc., and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (the "Trustee"), the
undersigned hereby represents that he/she/it is acquiring such Shares of
Beneficial Interest (as evidenced by one or more certain Trust Certificates
issued pursuant to the Exchange Trust Agreement) for his/her/its own account for
investment and not with a view to or for sale in connection with any
distribution of said Shares.
Capitalized terms used herein, which are not defined herein, shall have
the same meanings when used herein as they do when used in the Exchange Trust
Agreement.
Dated:_______________________________ __________________________________
By:__________________________________
(Signature)
__________________________________
(Printed or Typed Name)