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Exhibit 2.a.(ii)
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AMENDED AND RESTATED
TRUST AGREEMENT
CONSTITUTING
EXPRESS SCRIPTS AUTOMATIC EXCHANGE SECURITY TRUST
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DATED AS OF NOVEMBER , 2000
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS; INTERPRETATION
Section 1.1. Defined Terms.................................................................1
Section 1.2. Interpretation................................................................6
ARTICLE II
TRUST DECLARATION; PURPOSES, POWERS
AND DUTIES OF THE TRUSTEES; ADMINISTRATION
Section 2.1. Declaration of Trust; Purposes of the Trust; Resignation and
Appointment of Trustees.......................................................7
Section 2.2. General Powers and Duties of the Trustees.....................................7
Section 2.3. Portfolio Acquisition.........................................................9
Section 2.4. Portfolio Administration......................................................9
Section 2.5. Manner of Sales..............................................................14
Section 2.6. Limitations on Trustees' Powers..............................................14
ARTICLE III
ACCOUNTS AND PAYMENTS
Section 3.1. The Trust Account............................................................15
Section 3.2. Payment of Fees and Expenses.................................................15
Section 3.3. Distributions to Holders.....................................................15
Section 3.4. Segregation..................................................................15
Section 3.5. Temporary Investments........................................................16
ARTICLE IV
REDEMPTION
Section 4.1. Redemption...................................................................16
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ARTICLE V
ISSUANCE OF CERTIFICATES; REGISTRY; TRANSFER OF SECURITIES
Section 5.1. Form of Certificate..........................................................16
Section 5.2. Transfer of Securities; Issuance, Transfer and Interchange of
Certificates.................................................................18
Section 5.3. Replacement of Certificates..................................................18
ARTICLE VI
EXECUTION OF THE CONTRACT
Section 6.1. Execution of the Contract....................................................19
ARTICLE VII
TRUSTEES
Section 7.1. Trustees.....................................................................19
Section 7.2. Vacancies....................................................................19
Section 7.3. Powers.......................................................................20
Section 7.4. Meetings.....................................................................20
Section 7.5. Resignation and Removal......................................................20
Section 7.6. Liability....................................................................20
Section 7.7. Compensation.................................................................21
ARTICLE VIII
MISCELLANEOUS
Section 8.1. Meetings of Holders..........................................................21
Section 8.2. Books and Records; Reports...................................................22
Section 8.3. Termination..................................................................23
Section 8.4. No Assumption of Liability...................................................23
Section 8.5. Amendment and Waiver.........................................................24
Section 8.6. Accountants..................................................................25
Section 8.7. Nature of Holder's Interest..................................................25
Section 8.8. Governing Law; Severability..................................................26
Section 8.9. Notices......................................................................26
Section 8.10. Entire Agreement.............................................................26
Section 8.11. Non-Assignability............................................................26
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Section 8.12. No Third Party Rights; Successors and Assigns................................27
Section 8.13. Counterparts.................................................................27
Exhibits
Exhibit A - Form of Certificate Evidencing the Securities
Exhibit B - Form of Collateral Agreement
Exhibit C - Form of Contract
Exhibit D - Form of Expense Agreement
Exhibit E - Form of Indemnity Agreement
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AMENDED AND RESTATED TRUST AGREEMENT
AMENDED AND RESTATED TRUST AGREEMENT, dated as of November __, 2000,
among ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., as sponsor (the "Sponsor"), ▇▇▇▇ ▇. Efron, as the
prior trustee, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III and ▇▇▇▇▇ ▇.
▇'▇▇▇▇▇, as trustees (the "Trustees"), constituting Express Scripts Automatic
Exchange Security Trust (the "Trust").
W I T N E S S E T H:
WHEREAS, the Sponsor and ▇▇▇▇ ▇. Efron, as trustee, have previously
entered into a Trust Agreement, dated as of April 30, 1999 (the "Original
Agreement"), creating Ninth Automatic Common Exchange Security Trust; and
WHEREAS, upon the execution of this Agreement, ▇▇▇▇ ▇. Efron wishes to
resign as trustee and the Sponsor wishes to appoint the Trustees as the trustees
of the Trust; and
WHEREAS, the parties hereto wish to change the name of the Trust to
Express Scripts Automatic Exchange Security Trust; and
WHEREAS, the parties hereto wish to amend and restate the Original
Agreement in certain other respects; and
WHEREAS, the Trust has previously issued to the Sponsor one Security in
consideration of a purchase price of $100;
NOW, THEREFORE, the parties hereto agree to amend and restate the
Original Agreement as provided in this Agreement and, upon the execution and
delivery of this Agreement by the parties to this Agreement, the Original
Agreement will be automatically amended and restated in its entirety to read as
provided in this Agreement.
ARTICLE I
DEFINITIONS; INTERPRETATION
Section 1.1. Defined Terms. As used in this Agreement, the following
terms have the following meanings:
"Accelerated Portion" has the meaning specified in the Contract.
"Additional Purchase Price" has the meaning specified in the
Contract.
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"Additional Share Base Amount" has the meaning specified in the
Contract.
"Administration Agreement" means the Administration Agreement,
dated as of November __, 2000, between the Administrator and the Trust,
and any substitute agreement therefor entered into pursuant to Section
2.2(a).
"Administrator" means The Chase Manhattan Bank, or its successor
as permitted under Article IV of the Administration Agreement or
appointed pursuant to Section 2.2(a).
"Agreement" means this Amended and Restated Trust Agreement.
"Average Market Price" has the meaning specified in the Contract.
"Business Day" means a day on which the Nasdaq National Market is
open for trading and that is not a day on which commercial banks in The
City of New York are authorized or obligated by law to close.
"Cash Merger" has the meaning specified in the Contract.
"Cash Settlement Alternative" has the meaning specified in the
Contract.
"Certificate" means any certificate evidencing the ownership of
Securities substantially in the form of Exhibit A.
"Class A Common Stock" means the Class A Common Stock par value
$0.01 per share, of the Company
"Code" means the Internal Revenue Code of 1986.
"Collateral Agent" means The Chase Manhattan Bank, or its
successor as permitted under Article VIII of the Collateral Agreement or
appointed pursuant to Section 2.2(a).
"Collateral Agreement" means the Collateral Agreement, dated as of
November ___, 2000, among Seller, the Collateral Agent and the Trust,
securing Seller's obligations under the Contract, substantially in the
form of Exhibit B.
"Commencement Date" means the day on which the Underwriting
Agreement is executed.
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"Commission" means the United States Securities and Exchange
Commission.
"Company" means Express Scripts, Inc., a Delaware corporation.
"Contract" means the Purchase Agreement, dated as of November __ ,
2000, entered into by the Trust with the Seller, substantially in the
form of Exhibit C.
"Custodian" means The Chase Manhattan Bank, or its successor as
permitted under Section 11 of the Custodian Agreement or appointed
pursuant to Section 2.2(a).
"Custodian Agreement" means the Custodian Agreement, dated as of
November __, 2000, between the Custodian and the Trust, and any
substitute agreement therefor entered into pursuant to Section 2.2(a).
"Depositary" means The Depository Trust Company, or any successor
depositary appointed pursuant to Section 5.1.
"Distribution Date" means February , May , August , and
November ___ of each year, commencing February __ , 2001, to and
including the Exchange Date, or if any such date is not a Business Day,
then the first Business Day thereafter.
"Excess Purchase Payment" has the meaning specified in the
Contract.
"Exchange" means the delivery of Shares by the Trustees to the
Holders, subject to the adjustments and exceptions set forth in the
Contract (or, if Seller elects the Cash Settlement Alternative, the
amount in cash specified in the Contract as payable in respect thereof),
in mandatory exchange for the Securities on the Exchange Date.
"Exchange Date" has the meaning specified in the Contract.
"Exchange Rate" has the meaning specified in the Contract.
"Expense Agreement" means the Fund Expense Agreement, dated as of
November __, 2000, among Seller, The Chase Manhattan Bank, as Service
Provider, and the Trust substantially in the form of Exhibit D.
"Event of Default" has the meaning specified in the Contract.
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"Firm Purchase Price" has the meaning specified in the Contract.
"First Time of Delivery" has the meaning specified in the
Underwriting Agreement.
"Expense Agreement" means the Fund Expense Agreement, dated as of
November __ , 2000, among Seller, The Chase Manhattan Bank, and the
Trust.
"Holder" means the registered owner of any Security as recorded on
the books of the Paying Agent.
"Indemnity Agreement" means the Fund Indemnity Agreement, dated as
of November __ , 2000, among Seller, The Chase Manhattan Bank, as
Service Provider, and the Trust substantially in the form of Exhibit E.
"Investment Company" means an investment company as defined in
Section 3 of the Investment Company Act.
"Investment Company Act" means the Investment Company Act of 1940,
as amended from time to time; each reference herein to any section of
such Act or any rule or regulation thereunder shall constitute a
reference to any successor provision thereto.
"Managing Trustee" means the Trustee designated as the Managing
Trustee by resolution of the Trustees.
"Marketable Securities" has the meaning specified in the Contract.
"Merger Consideration" has the meaning specified in the Contract.
"Original Agreement" has the meaning specified in the recitals to
this Agreement.
"Participant" means a Person having a book-entry only system
account with the Depositary.
"Paying Agent" means ChaseMellon Shareholder Services, L.L.C., or
its successor as permitted under Section 6.6 of the Paying Agent
Agreement or appointed pursuant to Section 2.2(a).
"Paying Agent Agreement" means the Paying Agent Agreement, dated
as of November __ , 2000, between the Paying Agent and the Trust, and
any substitute agreement therefor entered into pursuant to Section
2.2(a).
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"Person" means an individual, a partnership, a corporation, a
limited liability company, a trust, an unincorporated association, a
joint venture or any other entity or organization, including a
government or political subdivision or an agency or instrumentality
thereof.
"Prospectus" means the prospectus relating to the Securities
constituting a part of the Registration Statement, as first filed with
the Commission pursuant to Rule 497(b) or (h) under the Securities Act,
and as subsequently amended or supplemented by the Trust.
"Quarterly Distribution" means $ per Security paid to each Holder
on each Distribution Date.
"Record Date" means the Business Day preceding each Distribution
Date.
"Registration Statement" means the Registration Statement on Form
N-2 (Registration Nos. 333-77547and 811-9319) of the Trust, as amended.
"Reorganization Event" has the meaning specified in the Contract.
"Second Time of Delivery" has the meaning specified in the
Underwriting Agreement.
"Securities Act" means the Securities Act of 1933, as amended from
time to time.
"Security" means a $ Trust Issued Automatic Exchange Security of
the Trust evidencing a Holder's undivided interest in the Trust and
right to receive a pro rata distribution upon liquidation of the Trust
Estate.
"Seller" means NYLIFE LLC, a limited liability company organized
under the laws of the State of Delaware.
"Spin-Off Distribution" has the meaning specified in the Contract.
"Sponsor" has the meaning specified in the preamble to this
Agreement.
"Shares" means the shares of Class A Common Stock to be exchanged
by the Trustees for the Securities on the Exchange Date; provided that
after a Spin-Off Distribution, all references to "Shares" shall include
the shares distributed in such event; and provided further that after
any Reorganization Event, all references to "Shares" shall refer to the
Marketable Securities received in such event in lieu of referring to the
shares of Class A Common Stock.
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"Temporary Investments" means direct short-term U.S. government
obligations, as specified from time to time as provided in Section 3.5.
"Transfer Agent and Registrar" means, at any time, the transfer
agent and registrar for the Class A Common Stock or Marketable
Securities, as applicable, at such time.
"Treasury Securities" means the U.S. Government Securities
purchased by the Trustees at the First Time of Delivery and, if
applicable, the Second Time of Delivery as provided in Section 2.3(b)
and, if applicable, the U.S. Government Securities delivered to the
Trust by Seller pursuant to Section 2.3(e) of the Contract.
"Trust" has the meaning specified in the preamble to this
Agreement.
"Trust Account" means the account created pursuant to Section 3.1.
"Trust Estate" means the Contract and the U.S. Government
Securities held at any time by the Trust, together with any Temporary
Investments held at any time pursuant to Section 3.5, and any proceeds
of or from such U.S. Government Securities or Temporary Investments and
any other moneys held at any time in the Trust Account.
"Trustees" has the meaning specified in the preamble to this
Agreement.
"Underwriters" means the Underwriters of the Securities named in
the Underwriting Agreement.
"Underwriting Agreement" means the Underwriting Agreement, dated
November __, 2000, relating to the Securities as described in the
Prospectus.
"U.S. Government Securities" means direct obligations of the
United States of America.
Section 1.2. Interpretation.
(a) When a reference is made in this Agreement to Articles, Sections,
Exhibits or Schedules, such reference is to Articles or Sections of, or Exhibits
or Schedules to, this Agreement unless otherwise indicated.
(b) The table of contents and headings contained in this Agreement are
for reference purposes only and are not part of this Agreement, and shall not be
deemed to limit or otherwise affect any of the provisions of this Agreement.
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(c) Whenever the words "include", "includes" or "including" are used
in this Agreement, they shall be deemed to be followed by the words "without
limitation".
(d) Any reference to any statute, regulation or agreement shall be a
reference to such statute, regulation or agreement as supplemented or amended
from time to time.
ARTICLE II
TRUST DECLARATION; PURPOSES, POWERS
AND DUTIES OF THE TRUSTEES; ADMINISTRATION
Section 2.1. Declaration of Trust; Purposes of the Trust; Resignation
and Appointment of Trustees.
(a) The Sponsor hereby creates the Trust in order that it may acquire
the Treasury Securities, enter into the Contract, issue and sell to the Sponsor
and the Underwriters the Securities, receive and redeliver additional U.S.
Government Securities upon an extension of the Exchange Date pursuant to the
Contract, hold the Trust Estate in trust for the use and benefit of all present
and future Holders, and otherwise carry out the terms and conditions of this
Agreement, all for the purpose of achieving the investment objectives set forth
in the Prospectus. The Trustees hereby declare that they will accept and hold
the Trust Estate in trust for the use and benefit of all present and future
Holders. The Sponsor has heretofore deposited with the Trustees the sum of $10
to accept and hold in trust hereunder until the issuance and sale of the
Securities to the Underwriters, whereupon such sum shall be donated to an
organization satisfying the requirements of Section 170(c)(2) of the Code
selected by unanimous consent of the Trustees.
(b) ▇▇▇▇ ▇. Efron hereby resigns as trustee of the Trust, in
accordance with the provisions of Section 4 of the Original Agreement, and the
Sponsor, as the sole holder of any beneficial interest in the Trust as of the
date of this Agreement, hereby accepts the resignation of ▇▇▇▇ ▇. Efron and
appoints ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ III and ▇▇▇▇▇ ▇. ▇'▇▇▇▇▇ to be the
Trustees of the Trust under this Agreement.
(c) Upon the execution of this Agreement, the name of the Trust shall
be changed to Express Scripts Automatic Exchange Securities Trust.
Section 2.2. General Powers and Duties of the Trustees. In
furtherance of the provisions of Section 2.1, the Sponsor authorizes and directs
the Trustees:
(a) to enter into and perform (and, in accordance with Section 8.5,
amend) the Contract, the Collateral Agreement, the Underwriting Agreement,
the Expense Agreement, the Indemnity Agreement, the Custodian Agreement, the
Administration Agreement and the Paying Agent Agreement and to perform all
obligations of the
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Trustees (including the obligation to provide indemnity hereunder and
thereunder) and enforce all rights and remedies of the Trust under each of
such agreements; and if any of the Custodian Agreement, the Administration
Agreement, the Collateral Agreement and the Paying Agent Agreement
terminates, or the agent of the Trust thereunder resigns or is discharged, to
appoint a substitute agent and enter into a new agreement with such
substitute agent containing provisions substantially similar to those
contained in the agreement being terminated; provided that in any such new
agreement (i) the Custodian and the Paying Agent shall each be a commercial
bank or trust company organized and existing under the laws of the United
States of America or any state therein (or, in the case of the initial Paying
Agent, a limited liability company affiliate with such a commercial bank or
trust company), shall have full trust powers and shall have minimum capital,
surplus and retained earnings of not less than $100,000,000; and (ii) the
Administrator and the Collateral Agent shall each be a reputable financial
institution qualified in all respects to carry out its obligations under the
Administration Agreement or the Collateral Agreement, as the case may be;
(b) to hold the Trust Estate in trust, to create and administer the
Trust Account, to direct payments received by the Trust to the Trust Account
and to make payments out of the Trust Account as set forth in Article III;
(c) to issue and sell to the Underwriters an aggregate of up to
3,450,000 Securities (including those Securities subject to the
over-allotment option of the Underwriters provided for in the Underwriting
Agreement) pursuant to the Underwriting Agreement and as contemplated by the
Prospectus; provided, however, that subsequent to the determination of the
public offering price per Security and related underwriting discount for the
Securities to be sold to the Underwriters but prior to the sale of the
Securities to the Underwriters, the Security originally issued to the Sponsor
shall be surrendered to the Trust;
(d) to select independent public accountants and, subject to the
provisions of Section 8.5, to engage such independent public accountants;
(e) to engage legal counsel and, to the extent required by Section
2.4, to engage professional advisors and pay reasonable compensation
thereto;
(f) to defend any action commenced against the Trustees or the Trust
and to prosecute any action which the Trustees deem necessary to protect the
Trust and the rights and interests of Holders, and to pay the costs thereof;
(g) to arrange for the bonding of officers and employees of the Trust
as required by Section 17(g) of the Investment Company Act and the rules and
regulations thereunder;
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(h) to delegate any and all of its powers and duties hereunder as
contemplated by the Collateral Agreement, the Custodian Agreement, the Paying
Agent Agreement and the Administration Agreement, to the extent permitted by
applicable law; and
(i) to adopt and amend bylaws, and take any and all such other actions
as necessary or advisable to carry out the purposes of the Trust, subject to
the provisions of this Agreement and applicable law, including, without
limitation, the Investment Company Act.
Section 2.3. Portfolio Acquisition. In furtherance of the provisions
of Section 2.1, the Sponsor further specifically authorizes and directs the
Trustees:
(a) to enter into the Contract with Seller on the Commencement Date
for settlement on the date or dates provided thereunder and, subject to
satisfaction of the conditions set forth in the Contract, to pay the Firm
Purchase Price and the Additional Purchase Price to the Seller, if any,
thereunder with the proceeds of the sale of the Securities, net of the fees
and expenses of the Trust incurred in connection with the public offering of
the Securities and the costs and expenses incurred in connection with the
organization of the Trust as described in the first sentence of Section 3.2
and net of the purchase price paid for the Treasury Securities as provided in
paragraph (b) below; and, subject to the adjustments and exceptions set forth
in the Contract, the Contract shall entitle the Trust to receive from Seller
on the Exchange Date the Shares subject thereto (or, if Seller elects the
Cash Settlement Alternative, the amount in cash specified in the Contract) so
that the Trust may execute the Exchange with the Holders; and
(b) to purchase for settlement (i) at the First Time of Delivery, with
the proceeds of the sale of the Securities issued by the Trust at such First
Time of Delivery, U.S. Government Securities having the terms set forth on
Schedule I(a), from such brokers or dealers as the Trustees shall designate
in writing to the Administrator, and (ii) at the Second Time of Delivery, if
any, with the proceeds of the sale of the Securities issued by the Trust at
such Second Time of Delivery, U.S. Government Securities that, through the
scheduled payment of principal and interest in accordance with their terms,
will provide, not later than one Business Day before each Distribution Date
cash in an amount as close as practicable to (but in no event less than) the
product of $_______ and the Additional Share Base Amount (after taking into
account any prior payments under such U.S. Government Securities and any
prior distributions made by the Trust), and otherwise having such terms as
may be determined by the Sponsor (which terms shall be set forth on a new
Schedule I(b), which shall be attached to and form a part of this Agreement
from and after such Second Time of Delivery), from such brokers or dealers as
the Trustees shall designate in writing to the Administrator.
Section 2.4. Portfolio Administration. In furtherance of the provisions
of Section 2.1, the Sponsor further specifically authorizes and directs the
Trustees:
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(a) Determination of Dilution, Merger or Acceleration Adjustments.
Upon receipt of any notice pursuant to Section 5.1(d) (ii) of the Contract of
an event requiring an adjustment to the Exchange Rate, or upon otherwise
acquiring knowledge of such an event, to calculate the required adjustment
and furnish notice thereof to the Collateral Agent and Seller, or to request
from Seller such further information as may be necessary to calculate or
effect the required adjustment;
(b) Selection of Independent Investment Bank. Upon receipt of notice
of (i) the occurrence of a Reorganization Event in which property other than
cash or Marketable Securities is to be received in respect of the Class A
Common Stock as described in Section 6.2 of the Contract, (ii) an Excess
Purchase Payment in which the Company has paid or will pay consideration
other than cash as described in Section 6.1(d) of the Contract, or (iii) the
declaration or payment of a dividend or distribution to all holders of Class
A Common Stock of evidences of its indebtedness or other non-cash assets or
the issuance of Class A Common Stock rights or warrants as described in
Section 6.1(c) of the Contract, to retain the nationally recognized
investment banking firm selected by the Administrator to determine the market
value of such property as provided in the Contract, and to deliver to Seller
notice pursuant to Section 8.1 of the Contract identifying the firm proposed
to be selected and retained, and to cause the Administrator to consult with
Seller on such selection and retention as provided in such Section 8.1;
(c) Application to List Securities. If the Securities are delisted or
suspended from trading on the Nasdaq National Market to apply for listing of
the Securities on a national securities exchange or for quotation on another
trading market;
(d) Additional U.S. Government Securities. To accept additional U.S.
Government Securities delivered to the Trust in connection with an extension
of the Exchange Date at Seller's election in accordance with Section 2.3(e)
of the Contract, and to redeliver such U.S. Government Securities in
connection with an acceleration of the Exchange Date at Seller's election in
accordance with Section 2.3(f) of the Contract;
(e) Delivery of Cash Settlement Alternative Election Notice to Holders
of Securities. Upon receipt of a notice from Seller of its election of the
Cash Settlement Alternative, as provided by Section 2.3(d) of the Contract,
of the extension of the Exchange Date, as provided by Section 2.3(e) of the
Contract, or of the acceleration of the Exchange Date, as provided by Section
2.3(f) of the Contract, to give notice of such election, extension or
acceleration as provided in the Contract;
(f) Acceleration. In the event (i) an acceleration of the Contract
shall occur due to an Event of Default as provided in Article VII of the
Contract, or (ii) a Cash Merger shall occur in which all of the Merger
Consideration is included in the Accelerated Portion, to liquidate or cause
the Custodian to liquidate all the Treasury Securities;
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(g) Determination of Amounts to be Delivered under the Contract. (i)
To calculate, on the Exchange Date, upon the acceleration of Seller's
obligations under the Contract pursuant to Section 7.1 of the Contract and
upon the occurrence of a Cash Merger, the number of Shares or amount in cash
required to be delivered by Seller under the Contract on such date or as a
result of such event, and (ii) to furnish notice of the amounts so determined
to the Collateral Agent and Seller;
(h) Distribution of Exchange Consideration. Unless a Reorganization
Event shall occur in which the Merger Consideration does not include any
Marketable Securities (in which event the distribution of proceeds shall be
governed by Section 2.4(i) or 2.4(j), as applicable) or Seller elects the
Cash Settlement Alternative (in which event the distribution of proceeds
shall be governed by Section 2.4(i)), or the Contract shall be accelerated
pursuant to Section 7.1 of the Contract (in which event the distribution of
proceeds shall be governed by Section 2.4(k)):
(i) Determination of Fractional Shares. To determine, on the
Exchange Date: (A) for each Holder of Securities, such Holder's pro rata
share of the total number of Shares delivered to the Trustees under the
Contract on the Exchange Date; and (B) the number of fractional Shares
allocable to each Holder (including, in the case of the Depositary,
fractional Shares allocable to beneficial owners of Securities who own
through Participants) and in the aggregate;
(ii) Cash for Fractional Shares. To sell, in the principal
market therefor, on the Exchange Date, a number of Shares equal to the
aggregate number of fractional Shares determined pursuant to clause (i)
(B) above, rounded down to the nearest integral number; and to determine
the difference between (A) the aggregate proceeds of such sale (net of
any brokerage or related expenses) and (B) the product of the number of
Shares so sold and the Average Market Price; and, in accordance with
Section 2.3 of the Indemnity Agreement, to pay such difference, if
positive, to Seller, or to request payment of such difference, if
negative, from Seller;
(iii) Delivery of Shares. To deliver the remaining Shares to
the Transfer Agent and Registrar for such Shares on the Exchange Date,
with instructions that such Shares be re-registered and re-issued as
follows: (A) for and in the name of each Holder (other than the
Depositary) who holds Securities in definitive form, the Transfer Agent
and Registrar for such Shares shall be instructed to issue definitive
certificates representing a number of Shares equal to such Holder's pro
rata share of the total delivered to the Trust under the Contract on the
Exchange Date, rounded down to the nearest integral number; and (B) the
Transfer Agent and Registrar shall be instructed to transfer all
remaining Shares to the account of the Custodian held through the
Depositary, who shall then be instructed to transfer and credit such
Shares to each Participant who holds Securities, with each
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Participant receiving its pro rata share of the total delivered to the
Trust under the Contract on the Exchange Date, reduced by the aggregate
fractional Shares allocable to beneficial owners of Securities who own
through such Participant;
(iv) Distribution of Cash in Respect of Fractional Shares. To
distribute to each Holder of Securities cash in the amount of: (A) the
fraction of a Share, if any, allocable to such Holder as determined
pursuant to clause (i) (B) above; times (B) the Average Market Price;
(v) Record Date. The distributions described in this
paragraph (g) shall be made to Holders of record as of the close of
business on the Business Day preceding the Exchange Date; and
(vi) Reorganization Events. If a Reorganization Event occurs
in which the Merger Consideration includes Marketable Securities, this
Section 2.4(h) shall relate to the portion of the Merger Consideration
that consists of Marketable Securities.
(i) Distribution of Cash Upon Seller's Election of Cash Settlement
Alternative or Following a Reorganization Event. If Seller elects the Cash
Settlement Alternative, or if Seller is required or elects to deliver cash on
the Exchange Date following a Reorganization Event pursuant to Section 6.2(a) of
the Contract, to distribute to each Holder of record as of the close of business
on the Business Day preceding the Exchange Date such Holder's pro rata share of
any cash received by the Trust from the Seller in connection therewith;
(j) Distribution of Accelerated Portion. If a Cash Merger shall occur,
to distribute promptly to each Holder of record as of the close of business on
the Business Day preceding the distribution date such Holder's pro rata share of
the Accelerated Portion delivered under the Contract together with, if
applicable, such Holder's pro rata share of the proceeds of the liquidation of
the Treasury Securities pursuant to Section 2.4(f); and
(k) Distribution of Cash and Shares Received upon Acceleration of
Exchange Date Following a Default by Seller. If the obligations of Seller are
accelerated pursuant to Section 7.1 of the Contract:
(i) Determination of Fractional Shares. To determine, on the
Business Day following the date on which Seller or the Collateral Agent
delivers Class A Common Stock and Marketable Securities to the Trust, as
provided in Section 7.1 of the Contract or Section 7.1 of the Collateral
Agreement: (A) for each Holder of Securities, such Holder's pro rata
share of the total number of Shares delivered to the Trustees under the
Contract on such date; and (B) the number of fractional
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Shares allocable to each Holder (including, in the case of the
Depositary, fractional Shares allocable to beneficial owners of
Securities who own through Participants) and in the aggregate;
(ii) Cash for Fractional Shares. To sell, in the principal
market therefor, on the Business Day following the Exchange Date, a
number of Shares equal to the aggregate number of fractional Shares
determined pursuant to clause (i) (B) above, rounded down to the nearest
integral number; and to determine the difference between (A) the
aggregate proceeds of such sale (net of any brokerage or related
expenses) and (B) the product of the number of Shares so sold and the
Average Market Price; and, in accordance with Section 2.3 of the
Indemnity Agreement, to pay such difference, if positive, to Seller, or
to request payment of such difference, if negative, from Seller or from
the Collateral Agent from the proceeds of the collateral under the
Collateral Agreement;
(iii) Delivery of Shares. To deliver the remaining Shares to
the Transfer Agent and Registrar for such Shares the Business Day
following the date on which Seller or the Collateral Agent delivers
Class A Common Stock and Marketable Securities to the Trust, with
instructions that such Shares be re-registered and re-issued as follows:
(A) for and in the name of each Holder (other than the Depositary) who
holds Securities in definitive form, the Transfer Agent and Registrar
for such Shares shall be instructed to issue definitive certificates
representing a number of Shares equal to such Holder's pro rata share of
the total delivered to the Trust under the Contract on the Exchange
Date, rounded down to the nearest integral number; and (B) the Transfer
Agent and Registrar for such Shares shall be instructed to transfer all
remaining Shares to the account of the Custodian held through the
Depositary, who shall then be instructed to transfer and credit such
Shares to each Participant who holds Securities, with each Participant
receiving its pro rata share of the total delivered to the Trust under
the Contract on such Business Day, reduced by the aggregate fractional
Shares allocable to beneficial owners of Securities who own through such
Participant;
(iv) Distribution of Cash in Respect of Fractional Shares and
Treasury Securities. To distribute to each Holder of Securities (x) cash
in the amount of: (A) the fraction of a Share, if any, allocable to such
Holder as determined pursuant to clause (i) (B) above; times (B) the
Average Market Price, together with (y) such Holder's pro rata share of
the proceeds of the liquidation of the Treasury Securities pursuant to
Section 2.4(f); and
(v) Record Date. The distributions described in this
paragraph (h) shall be made to Holders of record as of the close of
business on the Business Day
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following the date on which Seller or the Collateral Agent delivers
Class A Common Stock and Marketable Securities to the Trust.
Section 2.5. Manner of Sales. Any sale of Trust property permitted or
required under this Agreement shall be made through such executing brokers or to
such dealers as the Trustees, seeking best price and execution for the Trust,
shall designate in writing to the Paying Agent, taking into account such factors
as price, commission, size of order, difficulty of execution and brokerage skill
required.
Section 2.6. Limitations on Trustees' Powers. The Trustees are not
permitted:
(a) to purchase or hold any securities or instruments except for the
Shares, the Contract, the Treasury Securities, any additional U.S. Government
Securities delivered to the Trust in connection with an extension of the
Exchange Date pursuant to Section 2.3(e) of the Contract, the Temporary
Investments contemplated by Section 3.5 and, in the event of a Reorganization
Event or a Spin-Off Distribution, Marketable Securities or any other property
received in such event;
(b) to dispose of the Contract prior to the Exchange Date;
(c) to issue any securities or instruments except for the Securities,
or to issue any Securities other than the Securities sold to the Sponsor and
the Securities to be sold pursuant to the Underwriting Agreement and until
such Securities have been so purchased and paid for in full;
(d) to make short sales or purchases on margin;
(e) to write put or call options;
(f) to borrow money;
(g) to underwrite securities;
(h) to purchase or sell real estate, commodities or commodities
contracts;
(i) to purchase restricted securities;
(j) to make loans (other than the purchase of the Treasury Securities
pursuant to Section 2.3); or
(k) to take any action, or direct or permit the Administrator, the
Paying Agent or the Custodian to take any action, that would vary the
investment of the Holders within the meaning of Treasury Regulation Section
301.7701-4(c), or otherwise take any action
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or direct or permit any action to be taken that would or could cause the
Trust not to be a "grantor trust" under the Code.
ARTICLE III
ACCOUNTS AND PAYMENTS
Section 3.1. The Trust Account. The Trustees shall, upon issuance of
the Securities, establish with the Paying Agent an account to be called the
"Trust Account". All moneys received by the Trustees in respect of the Contract,
the Treasury Securities, any other U.S. Government Securities delivered to the
Trust and any Temporary Investments held pursuant to Section 3.5, all moneys
received from the sale of the Securities to the Sponsor, and any proceeds from
the sale to the Underwriters of the Securities remaining after the purchase of
the Contract and the Treasury Securities shall be credited to the Trust Account.
Section 3.2. Payment of Fees and Expenses. If so directed by Seller,
the Administrator is authorized to pay to the extent not paid by third parties,
from the amounts payable to Seller pursuant to the Contract, the fees and
expenses of the Trust incurred in connection with the public offering of the
Securities and the costs and expenses incurred in connection with the
organization of the Trust.
Section 3.3. Distributions to Holders. On each Distribution Date, the
Trustees shall distribute to each Holder of record at the close of business on
the preceding Record Date, at the post office address of the Holder appearing on
the books of the Paying Agent or by any other means mutually agreed upon by the
Holder and the Trust, an amount equal to the Quarterly Distribution with respect
to all Securities held by such Holder computed as of the close of business on
such Distribution Date.
Section 3.4. Segregation. All moneys and other assets deposited or
received by the Trustees hereunder shall be held by them in trust as part of the
Trust Estate until required to be disbursed or otherwise disposed of in
accordance with the provisions of this Agreement, and the Trustees shall handle
such moneys and other assets in such manner as shall constitute the segregation
and holding in trust within the meaning of the Investment Company Act.
Section 3.5. Temporary Investments. To the extent necessary to enable
the Paying Agent to make the next succeeding Quarterly Distribution, any moneys
deposited with or received by the Trustees in the Trust Account shall be
invested as soon as possible by the Paying Agent in Temporary Investments
maturing no later than the Business Day preceding the next following
Distribution Date. Except as otherwise specifically provided herein or in the
Paying Agent Agreement, the Paying Agent shall not have the power to sell,
transfer or otherwise dispose of any Temporary Investment prior to the maturity
thereof, or to acquire additional
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Temporary Investments. The Paying Agent shall hold any Temporary Investment to
its maturity and shall apply the proceeds thereof upon maturity to the payment
of the next succeeding Quarterly Distribution. All such Temporary Investments
shall be selected from time to time by the Trustees or pursuant to standing
instructions from the Trustees to the Administrator, and the Administrator
and/or Paying Agent shall have no liability to the Trust or any Holder or any
other Person with respect to the payment or performance of any such Temporary
Investment. Any interest or other income received on any moneys in the Trust
Account shall, upon receipt thereof, be deposited into the Trust Account.
Notwithstanding the foregoing, not more than 5% of the assets of the Trust may
be held at any time in the form of cash and Temporary Investments, and the
Trustees shall distribute cash, or liquidate Temporary Investments and
distribute the proceeds thereof, if, when and to the extent needed to maintain
compliance with the foregoing restriction.
ARTICLE IV
REDEMPTION
Section 4.1. Redemption. The Trustees shall have no right or
obligation to redeem Securities.
ARTICLE V
ISSUANCE OF CERTIFICATES; REGISTRY; TRANSFER OF SECURITIES
Section 5.1. Form of Certificate.
(a) Each Certificate evidencing Securities shall be executed manually
or in facsimile by the Managing Trustee and countersigned manually by the Paying
Agent in substantially the form of Exhibit A with the blanks appropriately
filled in, shall be dated the date of countersignature and delivery by the
Paying Agent and shall represent a fractional undivided interest in the Trust,
the numerator of which fraction shall be the number of Securities set forth on
the face of such Certificate and the denominator of which shall be the total
number of Securities outstanding at that time. All Securities shall be issued in
registered form and shall be numbered serially.
(b) The Certificates delivered to the Underwriters at the First Time
of Delivery and the Second Time of Delivery (if any) will be issued in the form
of a global Certificate or Certificates representing the Securities issued to
the Underwriters, to be delivered to the Depositary, or its custodian, by or on
behalf of the Trust. Such Certificate or Certificates shall initially be
registered on the books and records of the Trust in the name of Cede & Co., the
nominee of the Depositary, and no beneficial owner of such Securities will
receive a definitive Certificate representing such beneficial owner's interest
in such Securities, except as provided in
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the next paragraph. Unless and until definitive, fully registered Certificates
have been issued pursuant to the next paragraph, the Trust shall be entitled to
deal with the Depositary for all purposes of this Agreement as the Holder and
the sole holder of the Certificates and shall have no obligation to the
beneficial owners thereof, and none of the Trust, the Trustees, or any agent of
the Trust or the Trustees shall have any liability with respect to or
responsibility for the records of the Depositary.
(c) If the Depositary elects to discontinue its services as securities
depository, then definitive Certificates shall be prepared by the Trustees as
provided above. Upon surrender of the global Certificate or Certificates
accompanied by registration instructions, the Trustees shall cause definitive
Certificates to be delivered to the beneficial owners in accordance with the
instructions of the Depositary. Neither the Trustees nor the Trust shall be
liable for any delay in delivery of such instructions and may conclusively rely
on, and shall be protected in relying on, such instructions.
(d) Pending the preparation of definitive Certificates, the Managing
Trustee may execute and the Paying Agent shall countersign and deliver temporary
Certificates (printed, lithographed, typewritten or otherwise reproduced, in
each case in form satisfactory to the Paying Agent). Temporary Certificates
shall be issuable as registered Certificates substantially in the form of the
definitive Certificates but with such omissions, insertions and variations as
may be appropriate for temporary Certificates, all as may be determined by the
Trustees with the concurrence of the Paying Agent. Every temporary Certificate
shall be executed by the Managing Trustee and be countersigned manually by the
Paying Agent upon the same conditions and in substantially the same manner, and
with like effect, as the definitive Certificates. Without unreasonable delay the
Managing Trustee shall execute and shall furnish definitive Certificates to the
Paying Agent and thereupon temporary Certificates may be surrendered in exchange
therefor without charge at each office or agency of the Paying Agent and the
Paying Agent shall countersign and deliver in exchange for such temporary
Certificates definitive Certificates for a like aggregate number of Securities.
Until so exchanged, the temporary Certificates shall be entitled to the same
benefits hereunder as definitive Certificates.
Section 5.2. Transfer of Securities; Issuance, Transfer and
Interchange of Certificates.
(a) Securities may be transferred by the Holder thereof by
presentation and surrender of properly endorsed Certificates at the office of
the Paying Agent, accompanied by such documents executed by the Holder or his
authorized attorney as the Paying Agent deems necessary to evidence the
authority of the Person making the transfer. Certificates issued pursuant to
this Agreement are interchangeable for one or more other Certificates for an
equal aggregate number of Securities and all Certificates issued shall be issued
in denominations of one Security or any multiple thereof. The Paying Agent may
deem and treat the person in whose name any Security shall be registered upon
the books of the Paying Agent as the owner of such Security for all purposes
hereunder and the Paying Agent shall not be affected by any notice to
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the contrary. The transfer books maintained by the Paying Agent for the purposes
of this Section 5.2 shall include the name and address of the record owners of
the Securities and shall be closed in connection with the termination of the
Trust pursuant to Section 8.3.
(b) A sum sufficient to cover any tax or other governmental charge
that may be imposed in connection with any such transfer shall be paid to the
Paying Agent by the Holder. A Holder may be required to pay a fee for each new
Certificate to be issued pursuant to the preceding paragraph in such amount as
may be specified by the Paying Agent and approved by the Trustees.
(c) All Certificates canceled pursuant to this Agreement may be voided
by the Paying Agent in accordance with the usual practice of the Paying Agent or
in accordance with the instructions of the Trustees; provided, however, that the
Paying Agent shall not be required to destroy canceled Certificates.
(d) The Paying Agent may adopt other reasonable rules and regulations
for the registration, transfer and tender of Securities as it may, in its
discretion, deem necessary.
Section 5.3. Replacement of Certificates. In case any Certificate
shall become mutilated or be destroyed, stolen or lost, the Paying Agent shall
execute and deliver a new Certificate in exchange and substitution therefor upon
the Holder's furnishing the Paying Agent with proper identification and
satisfactory indemnity of the Trustees and the Paying Agent, complying with such
other reasonable regulations and conditions as the Paying Agent may prescribe
and paying such expenses and charges, including any bonding fee, as the Paying
Agent may incur or reasonably impose; provided that if the Trust has terminated
or is in the process of terminating, the Paying Agent, in lieu of issuing such
new Certificate, may, upon the terms and conditions set forth herein, make the
distributions set forth in Section 8.3(c). Any mutilated Certificate shall be
duly surrendered and canceled before any duplicate Certificate shall be issued
in exchange and substitution therefor. Upon issuance of any duplicate
Certificate pursuant to this Section 5.3, the original Certificate claimed to
have been lost, stolen or destroyed shall become null and void and of no effect,
and any bona fide purchaser thereof shall have only such rights as are afforded
under Article 8 of the Uniform Commercial Code as in effect in the State of New
York to a Holder presenting a Certificate for transfer in the case of an
overissue.
ARTICLE VI
EXECUTION OF THE CONTRACT
Section 6.1. Execution of the Contract. The Contract shall be
executed manually or in facsimile by the Managing Trustee and executed manually
by the Seller and shall be dated the date of execution and delivery by the
Seller.
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ARTICLE VII
TRUSTEES
Section 7.1. Trustees. The Trust shall have three Trustees who shall
initially be elected by the Sponsor. One Trustee shall be the Managing Trustee
and, as such, is authorized to execute documents and instruments on behalf of
the Trust. The Managing Trustee will be appointed by resolution of the Trustees.
Each Trustee shall serve until the next regular annual or special meeting of
Holders called for the purpose of electing Trustees and, then, until such
Trustee's successor is duly elected and qualified. Election shall be by the
affirmative vote of Holders of a majority of the Securities entitled to vote
present in person or by proxy at a regular annual or special meeting of Holders
called for the purpose of electing any Trustee. Holders may not cumulate their
votes in the election of Trustees. Each Trustee shall not be considered to have
qualified for the office unless such Trustee shall agree to be bound by the
terms of this Agreement and shall evidence his consent by executing this
Agreement or a supplement hereto. Each individual Trustee shall be at least 21
years of age and shall not be under any legal disability. No Trustee who is an
"interested person", as defined in the Investment Company Act, may assume office
if it would cause the composition of the Trustees of the Trust not to be in
compliance with the percentage limitations on interested persons in Section 10
of the Investment Company Act. Trustees need not be Holders.
Section 7.2. Vacancies. Any vacancy in the office of a Trustee may be
filled in compliance with Sections 10 and 16 of the Investment Company Act by
the vote, within thirty days, of the remaining Trustees; provided that if
required by Section 16 of the Investment Company Act, the Trustees shall
forthwith cause to be held as promptly as possible and in any event within sixty
days (unless the Commission by order shall extend such period) a special meeting
of Holders for the purpose of electing Trustees in compliance with Sections 10
and 16 of the Investment Company Act. Any Trustee elected at such a meeting
shall have the qualifications specified in Section 7.1. Until a vacancy in the
office of any Trustee is filled as provided above, the remaining Trustees in
office, regardless of their number, shall have the powers granted to the
Trustees and shall discharge all the duties imposed upon the Trustees by this
Agreement. Notice of the appointment or election of a successor Trustee shall be
mailed promptly after acceptance of such appointment by the successor Trustee to
each Holder.
Section 7.3. Powers. The Trust will be managed solely by the
Trustees, who will, subject to the provisions of Article II, have complete and
exclusive control over the management, conduct and operation of the Trust's
business, and shall have the rights, powers and authority of a board of
directors of a corporation organized under New York law. The Trustees shall have
fiduciary responsibility for the safekeeping and use of all funds and assets of
the Trust and shall not employ, or permit another to employ, such funds or
assets in any manner except for the exclusive benefit of the Trust and except in
accordance with the terms of this Agreement. Subject to the continuing
supervision of the Trustees and as permitted by applicable law, the functions of
the Trust shall be performed by the Custodian, the Paying Agent, the
Administrator
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and such other entities engaged to perform such functions as the Trustees may
determine, including, without limitation, any or all administrative functions.
Section 7.4. Meetings. Meetings of the Trustees shall be held from
time to time upon the call of any Trustee on not less than 48 hours' notice
(which may be waived by any or all of the Trustees in writing either before or
after such meeting or by attendance at the meeting unless the Trustee attends
the meeting for the express purpose of objecting to the transaction of any
business on the ground that the meeting has not been lawfully called or
convened). The Trustees shall act either by majority vote of the Trustees
present at a meeting at which at least a majority of the Trustees then in office
are present or by a unanimous written consent of the Trustees without a meeting.
Except as otherwise required under the Investment Company Act, all or any of the
Trustees may participate in a meeting of the Trustees by means of a conference
telephone call or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and participation in a meeting
pursuant to such communications equipment shall constitute presence in person at
such meeting.
Section 7.5. Resignation and Removal. Any Trustee may resign and be
discharged of the trust created by the Agreement by executing an instrument in
writing resigning as Trustee, filing the same with the Administrator and sending
notice thereof to the remaining Trustees, and such resignation shall become
effective immediately unless otherwise specified therein. Any Trustee may be
removed in the event of incapacity by vote of the remaining Trustees and for any
reason by written declaration or vote of the Holders of more than 66 2/3% of the
outstanding Securities, notice of which vote shall be given to the remaining
Trustees and the Administrator. The resignation, removal or failure to reelect
any Trustee shall not cause the termination of the Trust.
Section 7.6. Liability. The Trustees shall not be liable to the Trust
or any Holder for taking any action or for refraining from taking any action
except in the case of willful misfeasance, bad faith, gross negligence or
reckless disregard of the duties of their office. Specifically, without
limitation, the Trustees shall not be responsible for or in respect of the
recitals herein or the validity or sufficiency of this Agreement or for the due
execution hereof by any other Person, or for or in respect of the validity or
sufficiency of Securities or the Certificates representing Securities and shall
in no event assume or incur any liability, duty or obligation to any Holder or
to any other Person, other than as expressly provided for herein. The Trustees
may employ agents, attorneys, administrators, accountants and auditors, and
shall not be answerable for the default or misconduct of any such Persons if
such Persons shall have been selected with reasonable care. Action in good faith
may include action taken in good faith in accordance with an opinion of counsel.
In no event shall any Trustee be personally liable for any expenses with respect
to the Trust. Each Trustee shall be indemnified to the extent permitted by law
from the Trust Estate with respect to any claim, liability, loss or expense
incurred in acting as Trustee of the Trust, including the costs and expenses of
the defense against any such claim or liability, except in the case of willful
misfeasance, bad faith, gross negligence or reckless disregard of the duties of
his office.
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Section 7.7. Compensation. Each Trustee, other than a Trustee who is
a director, officer or employee of the Sponsor, any Underwriter, or the
Administrator or any affiliate thereof, shall receive a one-time, up-front fee
of $10,800, in respect of its annual fee and anticipated out-of-pocket expenses.
In addition, the Managing Trustee shall receive an additional one-time, up-front
fee of $3,600 for serving in such capacity. Such amounts shall be paid in
accordance with the provisions of the Expense Agreement. The Trustees will not
receive any pension or retirement benefits. In the event of the resignation or
removal of a Trustee, such Trustee shall remit to the Trust the portion of its
fee ratable for the period from the day of such resignation or removal through
the Exchange Date.
ARTICLE VIII
MISCELLANEOUS
Section 8.1. Meetings of Holders. The Trustees shall hold annual
meetings of Holders to elect Trustees as provided in Section 7.1. A special
meeting may be called at any time by the Trustees or upon petition of Holders of
not less than 51% of the Securities outstanding (unless substantially the same
matter was voted on during the preceding 12 months), and shall be called as
provided in Section 7.2 (or as otherwise required by the Investment Company Act
and the rules and regulations thereunder, including, without limitation, when
requested by the Holders of not less than 10% of the Securities outstanding for
the purposes of voting upon the question of the removal of any Trustee or
Trustees). The Trustees shall establish, and notify the Holders in writing of,
the record date for each such meeting which shall be not less than 10 nor more
than 50 days before the meeting date. Holders at the close of business on the
record date will be entitled to vote at the meeting. The Administrator shall, as
soon as possible after any such record date (or prior to such record date if
appropriate), mail by first class mail to each Holder a notice of meeting and a
proxy statement and form of proxy in the form approved by the Trustees and
complying with the Investment Company Act and the rules and regulations
thereunder. Except as otherwise specified herein or in any provision of the
Investment Company Act and the rules and regulations thereunder, any action may
be taken by vote of Holders of a majority of the Securities outstanding present
in person or by proxy if Holders of a majority of Securities outstanding on the
record date are so represented. Each Security shall have one vote and may be
voted in person or by duly executed proxy. Any proxy may be revoked by notice in
writing, by a subsequently dated proxy or by voting in person at the meeting,
and no proxy shall be valid after eleven months following the date of its
execution. Any Investment Company owning Securities in excess of the limits
imposed by Sections 12(d)(1)(A) (i) and 12(d)(1)(C) of the Investment Company
Act shall vote its Securities in proportion to the votes of all other Holders.
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Section 8.2. Books and Records; Reports.
(a) The Trustees shall keep a certified copy or duplicate original of
this Agreement on file at the office of the Trust, which shall be located at ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, and the office of the Administrator
available for inspection at all reasonable times during its usual business hours
by any Holder. The Trustees shall keep proper books of record and account for
all the transactions under this Agreement at the office of the Trust and the
office of the Administrator, and such books and records shall be open to
inspection by any Holder at all reasonable times during usual business hours.
The Trustees shall retain all books and records in compliance with Section 31 of
the Investment Company Act and the rules and regulations thereunder.
(b) With each payment to Holders the Paying Agent shall set forth,
either in the instruments by means of which payment is made or in a separate
statement, the amount being paid from the Trust Account expressed as a dollar
amount per Security and the other information required under Section 19 of the
Investment Company Act and the rules and regulations thereunder. The Trustees
shall prepare and file or distribute reports as required by Section 30 of the
Investment Company Act and the rules and regulations thereunder. The Trustees
shall prepare and file such reports as may from time to time be required to be
filed or distributed to Holders under any applicable state or Federal statute or
rule or regulation thereunder, and shall file such tax returns as may from time
to time be required under any applicable state or Federal statute or rule or
regulation thereunder. One of the Trustees shall be designated by resolution of
the Trustees to make the filings and give the notices required by Rule 17g-l
under the Investment Company Act.
(c) In calculating the net asset value of the Trust as required by the
Investment Company Act, (i) the Treasury Securities will be valued at the mean
between the last current bid and asked prices or, if quotations are not
available, as determined in good faith by the Trustees, (ii) short-term
investments having a maturity of 60 days or less will be valued at cost with
accrued interest or discount earned included in interest receivable and (iii)
the Contract will be valued on the basis of the bid price received by the Trust
in respect of the Contract, or any portion thereof covering not less than 1,000
Shares, from an independent broker-dealer firm unaffiliated with the Trust to be
named by the Trustees who is in the business of making bids on financial
instruments similar to the Contract and with terms comparable thereto, or if
such a bid quotation is not available, as determined in good faith by the
Trustees.
Section 8.3. Termination.
(a) This Agreement and the Trust created hereby shall terminate upon
the earliest of (i) the date 90 days after the execution of this Agreement if
(x) the Securities have not theretofore been issued to the Underwriters under
the Underwriting Agreement or (y) the net worth of the Trust is not at least
$100.00 at such time, (ii) the date of the repayment, sale or other disposition,
as the case may be, of all of the Contract, the Treasury Securities and any
other
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securities held hereunder, (iii) the date 10 Business Days after the Exchange
Date (or, if the Contract shall be accelerated pursuant to Article VII thereof
or if Section 6.2 thereof results in the acceleration of all the obligations of
Seller, 10 Business Days after the date on which the Trust shall receive the
Shares or other consideration then required to be delivered by Seller, or the
proceeds of any sale of collateral pursuant to Section 7.3 of the Collateral
Agreement), and (iv) the date which is 21 years less 91 days after the death of
the last survivor of all of the descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ living on the
date hereof. The Trust is irrevocable, the Sponsor has no right to withdraw any
assets constituting a portion of the Trust Estate, and the dissolution of the
Sponsor shall not operate to terminate the Trust. The death or incapacity of any
Holder shall not operate to terminate this Agreement, nor entitle his legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the Trust, and shall
not otherwise affect the rights, obligations and liabilities of the parties
hereto.
(b) Written notice of any termination shall be sent to Holders
specifying the record date for any distribution to Holders and the time of
termination as determined by the Trustees, upon which the books maintained by
the Paying Agent pursuant to Section 5.2 shall be closed.
(c) For purposes of termination under Sections 8.3(a)(ii), (iii) and
(iv), within five Business Days after such termination, the Trustees shall,
subject to any applicable provisions of law, effect or cause the Custodian to
effect the sale of any remaining property of the Trust, and the Paying Agent
shall distribute pro rata as soon as practicable thereafter to each Holder, upon
surrender for cancellation of its Certificates, its interest in the Trust
Estate. Together with the distribution to the Holders, the Trustees shall
furnish the Holders with a final statement as of the date of the distribution of
the amount distributable with respect to each Security.
Section 8.4. No Assumption of Liability. By executing this Agreement,
none of the Trustees assumes any personal liability under this Agreement except
as expressly set forth in this Agreement.
Section 8.5. Amendment and Waiver.
(a) This Agreement, and any of the agreements referred to in Section
2.2(a), may be amended from time to time by the Trustees for any purpose prior
to the issuance and sale to the Underwriters of the Securities and thereafter
without the consent of any of the Holders (i) to cure any ambiguity or to
correct or supplement any provision contained herein or therein which may be
defective or inconsistent with any other provision contained herein or therein;
(ii) to change any provision hereof or thereof as may be required by applicable
law or the Commission or any successor governmental agency exercising similar
authority; or (iii) to make such other provisions in regard to matters or
questions arising hereunder or thereunder as shall not materially adversely
affect the interests of the Holders (as determined in good faith by the
Trustees, who may rely on an opinion of counsel).
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(b) This Agreement, and any of the agreements referred to in Section
2.2(a), may also be amended from time to time by the Trustees (or the
performance of any of the provisions of this Agreement or any of such other
agreements may be waived) with the consent by the required vote of the Holders
in accordance with Section 8.1; provided that this Agreement may not be amended,
(i) without the consent by vote of the Holders of all Securities then
outstanding, to increase the number of Securities issuable under this Agreement
above the number of Securities specified in Section 2.2(c) or such lesser number
as may be outstanding at any time during the term of this Agreement, (ii) to
reduce the interest in the Trust represented by any Security without the consent
of the Holder of such Security, (iii) if such amendment is prohibited by the
Investment Company Act or other applicable law, (iv) without the consent by vote
of the Holders of all Securities then outstanding, if such amendment would
effect a change in the voting requirements set forth in Section 8.1 or this
Section 8.5, or (v) without the consent by vote of the Holders of the lesser of
(x) 67% or more of the Securities represented at a special meeting of Holders,
if more than 50% of the Securities outstanding are represented at such meeting,
and (y) more than 50% of the Securities outstanding, if such amendment would
effect a change in Section 2.1 or 2.6.
(c) Promptly after the execution of any amendment, the Trustees shall
furnish written notification of the substance of such amendment to each Holder.
(d) Notwithstanding subsections (a) and (b) of this Section 8.4 no
amendment of this Agreement or the Agreements referred to in Section 2.2(a)
shall permit the Trust, the Trustees, the Administrator, the Paying Agent or the
Custodian to take any action or direct or permit any Person to take any action
that (i) would vary the investment of the Holders within the meaning of Treasury
Regulation Section 301.7701-4(c), or (ii) would or could cause the Trust, or
direct or permit any action to be taken that would or could cause the Trust, not
to be a "grantor trust" under the Code.
Section 8.6. Accountants.
(a) The Trustees shall, in accordance with Section 30 of the
Investment Company Act, file annually with the Commission such information,
documents and reports as investment companies having securities registered on a
national securities exchange are required to file annually pursuant to Section
13(a) of the Securities Exchange Act of 1934, as amended, and the rules and
regulations issued thereunder. The Trustees shall transmit to the Holders, at
least semi-annually, the reports required by Section 30(d) of the Investment
Company Act and the rules and regulations thereunder, including, without
limitation, a balance sheet accompanied by a statement of the aggregate value of
investments on the date of such balance sheet, a list showing the amounts and
values of such investments owned on the date of such balance sheet, and a
statement of income for the period covered by the report. Financial statements
contained in such annual reports shall be accompanied by a certificate of
independent public accountants based upon an audit not less in scope or
procedures than that which independent public accountants would ordinarily make
for the purpose of presenting comprehensive and dependable
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financial statements and shall contain such information as the Commission may
prescribe. Each such report shall state that such independent public accountants
have verified investments owned, either by actual examination or by receipt of a
certificate from the Custodian.
(b) The independent public accountants referred to in subsection (a)
above shall be selected at a meeting held within thirty days before or after the
beginning of the fiscal year by the vote, cast in person, of a majority of the
Trustees who are not "interested persons" as defined in the Investment Company
Act and such selection shall be submitted for ratification at the first meeting
of Holders to be held as set forth in Section 8.1, and thereafter as required by
the Investment Company Act and the rules and regulations thereunder. The
employment of any independent public accountant for the Trust shall be
conditioned upon the right of the Holders by a vote of the lesser of (i) 67% or
more of the Securities present at a special meeting of Holders, if Holders of
more than 50% of Securities outstanding are present or represented by proxy at
such meeting or (ii) more than 50% of the Securities outstanding to terminate
such employment at any time without penalty.
(c) The foregoing provisions of this Section 8.6 are in addition to
any applicable requirements of the Investment Company Act and the rules and
regulations thereunder.
Section 8.7. Nature of Holder's Interest. Each Holder holds at any
given time a beneficial interest in the Trust Estate, but does not have any
right to take title or possession of any portion of the Trust Estate. Each
Holder expressly waives any right he may have under any rule of law, or the
provisions of any statute, or otherwise, to require the Trustees at any time to
account, in any manner other than as expressly provided in this Agreement, for
the Shares, the Contract, the Treasury Securities or other assets or monies from
time to time received, held and applied by the Trustees hereunder. No Holder
shall have any right except as provided herein to control or determine the
operation and management of the Trust or the obligations of the parties hereto.
Nothing set forth herein or in the Certificates shall be construed to constitute
the Holders from time to time as partners or members of an association.
Section 8.8. Governing Law; Severability. This Agreement is executed
and delivered in the State of New York, and all laws or rules of construction of
the State of New York shall govern the rights of the parties hereto and the
Holders and the construction, validity and effect of the provisions hereof. To
the extent permitted by law, the unenforceability or invalidity of any provision
or provisions of this Agreement shall not render any other provision or
provisions contained in this Agreement unenforceable or invalid.
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Section 8.9. Notices.
(a) All notices and other communications provided for in this
Agreement, unless otherwise specified, shall be in writing and shall be given at
the addresses set forth in the following sentence or at such other addresses as
may be designated by notice duly given in accordance with this Section 8.9 to
each other party to this Agreement. Until such notice is given, (i) notices to
Sponsor shall be directed to it at ▇▇▇▇▇▇▇, Sachs & Co., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Registration Department; (ii) notices to the
Trust shall be directed to it in care of the Administrator for Purchaser, The
Chase Manhattan Bank, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Telecopier
No. (▇▇▇) ▇▇▇-▇▇▇▇, Attention: Pledged Collateral Control Services and to each
Trustee at the address specified in clause (iii) of this paragraph; (iii)
notices to the Trustees shall be directed to the Trustees at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇, Attention:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇] or the applicable Trustee and (iv) notices to any Holder
shall be duly given if mailed, first class postage prepaid, or by such other
substantially equivalent means as the Trustees may deem appropriate, or
delivered to such Holder at the address of such Holder appearing on the registry
of the Paying Agent.
(b) Each notice given pursuant to Section 8.9(a) shall be effective
(i) if sent by certified mail (return receipt requested), 72 hours after being
deposited in the United States mail, postage prepaid; (ii) if given by telex or
telecopier, when such telex or telecopied notice is transmitted (with electronic
confirmation of transmission or verbal confirmation of receipt) ; or (iii) if
given by any other means, when delivered at the address specified in this
Section 8.9.
Section 8.10. Entire Agreement. Except as expressly set forth in this
Agreement, this Agreement constitutes the entire agreement among the parties
with respect to the subject matter of this Agreement and supersedes all prior
agreements, understandings and negotiations, both written and oral, among the
parties with respect to the subject matter of this Agreement.
Section 8.11. Non-Assignability. This Agreement and the rights and
obligations of the parties under this Agreement may not be assigned or delegated
by either party without the prior written consent of the other party, and any
purported assignment without such consent shall be void.
Section 8.12. No Third Party Rights; Successors and Assigns. This
Agreement is not intended and shall not be construed to create any rights in any
person other than Sponsor, the Trustees and the Holders and their respective
successors and assigns and no other person shall assert any rights as third
party beneficiary under this Agreement. Whenever any of the parties to this
Agreement is referred to, such reference shall be deemed to include the
successors and assigns of such party. All the covenants and agreements in this
Agreement contained by or on behalf of Sponsor and the Trustees shall bind, and
inure to the benefit of, their respective successors and assigns whether so
expressed or not, and shall be enforceable by and inure to the benefit of the
Trustees and their successors and assigns.
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Section 8.13. Counterparts. This Agreement may be executed,
acknowledged and delivered in any number of counterparts, each of which shall be
an original, but all of which shall constitute a single agreement, with the same
effect as if the signatures on each such counterpart were upon the same
instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated Trust Agreement to be duly executed and delivered as of the date
hereof.
THE SPONSOR:
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.,
as Sponsor
By:
-----------------------------------
THE RETIRING TRUSTEE:
--------------------------------------
▇▇▇▇ ▇. Efron
THE TRUSTEES:
By:
-----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
as Trustee
Address: Department of Finance
University of Delaware
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
By:
-----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ III,
as Trustee
Address: Department of Economics
University of Delaware
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
By:
-----------------------------------
▇▇▇▇▇ ▇. ▇'▇▇▇▇▇,
as Trustee
Address: Department of Economics
University of Delaware
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Schedule I(a)
TREASURY SECURITIES
All terms specified are for stripped principal or
interest components of U.S. Treasury debt
obligations.
--------------------------------------------------------------------------------------------------------------------------------
FIRST TIME OF DELIVERY
--------------------------------------------------------------------------------------------------------------------------------
PAR ZERO-COUPON RATE PRICE COST CUSIP STRIP
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
SETTLEMENT DATE: , 2000 [FIRST TIME OF DELIVERY]
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Schedule I(b)
TREASURY SECURITIES
All terms specified are for stripped principal or
interest components of U.S. Treasury debt
obligations.
--------------------------------------------------------------------------------------------------------------------------------
SECOND TIME OF DELIVERY
--------------------------------------------------------------------------------------------------------------------------------
PAR ZERO-COUPON RATE PRICE COST CUSIP STRIP
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
SETTLEMENT DATE:
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Exhibit A
Form of Certificate Evidencing the Securities
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC") , to Express Scripts
Automatic Exchange Security Trust or its agent for registration of transfer,
exchange, or payment, and any certificate issued is registered in the name of
Cede & Co. (or in such other name as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein. This certificate maybe exchanged by
an authorized representative of DTC in whole or in part for securities in
definitive form, registered in the names of such holders as such representative
of DTC shall specify, in which case, a new certificate will be issued in the
name of Cede & Co. (or in such other name as is requested by such authorized
representative of DTC) representing the securities not issued in definitive
form.
THIS CERTIFICATE IS ISSUED UNDER AND IS SUBJECT TO THE TERMS, PROVISIONS AND
CONDITIONS OF THE TRUST AGREEMENT REFERRED TO BELOW TO WHICH THE HOLDER OF THIS
CERTIFICATE BY VIRTUE OF THE ACCEPTANCE HEREOF ASSENTS AND IS BOUND.
$ TRUST ISSUED AUTOMATIC EXCHANGE SECURITIES
EXPRESS SCRIPTS AUTOMATIC EXCHANGE SECURITY TRUST
CUSIP NO.
NO. __________ ___________ Stock
THIS CERTIFIES THAT CEDE & CO. IS THE RECORD OWNER OF ___________ OF THE
$ TRUST ISSUED AUTOMATIC EXCHANGE SECURITIES OF EXPRESS SCRIPTS AUTOMATIC
EXCHANGE SECURITY TRUST CONSTITUTING FRACTIONAL UNDIVIDED INTERESTS IN EXPRESS
SCRIPTS AUTOMATIC EXCHANGE SECURITY TRUST, A TRUST CREATED UNDER THE LAWS OF THE
STATE OF NEW YORK PURSUANT TO A TRUST AGREEMENT AMONG ▇▇▇▇▇▇▇, SACHS & CO. AND
THE TRUSTEES NAMED THEREIN. THIS CERTIFICATE IS ISSUED UNDER AND IS SUBJECT TO
THE TERMS, PROVISIONS AND CONDITIONS OF THE TRUST AGREEMENT TO WHICH THE HOLDER
OF THIS CERTIFICATE BY VIRTUE OF THE ACCEPTANCE HEREOF ASSENTS AND IS
BOUND, A COPY OF WHICH TRUST AGREEMENT IS AVAILABLE AT THE
OFFICE OF THE TRUST'S ADMINISTRATOR AND PAYING AGENT, [450 WEST 33RD STREET, NEW
YORK, NEW YORK 10001.] THIS CERTIFICATE IS TRANSFERABLE AND
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EXCHANGEABLE BY THE REGISTERED OWNER IN PERSON OR BY HIS DULY AUTHORIZED
ATTORNEY AT THE OFFICE OF THE PAYING AGENT UPON SURRENDER OF THIS CERTIFICATE
PROPERLY ENDORSED OR ACCOMPANIED BY A WRITTEN INSTRUMENT OF TRANSFER AND ANY
OTHER DOCUMENTS THAT THE PAYING AGENT MAY REQUIRE FOR TRANSFER, IN FORM
SATISFACTORY TO THE PAYING AGENT AND PAYMENT OF THE FEES AND EXPENSES PROVIDED
IN THE TRUST AGREEMENT.
THIS CERTIFICATE IS NOT VALID UNLESS MANUALLY COUNTERSIGNED BY THE
PAYING AGENT.
WITNESS THE FACSIMILE SIGNATURE OF THE MANAGING TRUSTEE.
EXPRESS SCRIPTS AUTOMATIC
EXCHANGE SECURITY TRUST
DATED:
By:
-------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Managing Trustee
COUNTERSIGNED:
CHASEMELLON SHAREHOLDER
SERVICES, L.L.C., as Paying Agent
By:
------------------------------
Authorized Signature
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