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Exhibit 2.a.(ii)
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AMENDED AND RESTATED
TRUST AGREEMENT
CONSTITUTING
NBCi AUTOMATIC COMMON EXCHANGE SECURITY TRUST
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Dated as of February __, 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.........................................................6
Section 2.2. General Powers and Duties of the Trustees..............................................7
Section 2.3. Portfolio Acquisition..................................................................8
Section 2.4. Portfolio Administration...............................................................9
Section 2.5. Manner of Sales.......................................................................13
Section 2.6. Limitations on Trustees' Powers.......................................................13
ARTICLE III
ACCOUNTS AND PAYMENTS
Section 3.1. The Trust Account.....................................................................14
Section 3.2. Payment of Fees and Expenses..........................................................14
Section 3.3. Distributions to Holders..............................................................14
Section 3.4. Segregation...........................................................................14
Section 3.5. Temporary Investments.................................................................15
ARTICLE IV
REDEMPTION
Section 4.1. Redemption............................................................................15
ARTICLE V
ISSUANCE OF CERTIFICATES; REGISTRY; TRANSFER OF SECURITIES
Section 5.1. Form of Certificate...................................................................15
Section 5.2. Transfer of Securities; Issuance, Transfer and Interchange
of Certificates....................................................................16
Section 5.3. Replacement of Certificates...........................................................17
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ARTICLE VI
EXECUTION OF THE CONTRACT
Section 6.1. Execution of the Contract.............................................................18
ARTICLE VII
TRUSTEES
Section 7.1. Trustees..............................................................................18
Section 7.2. Vacancies.............................................................................18
Section 7.3. Powers................................................................................18
Section 7.4. Meetings..............................................................................19
Section 7.5. Resignation and Removal...............................................................19
Section 7.6. Liability.............................................................................19
Section 7.7. Compensation..........................................................................20
ARTICLE VIII
MISCELLANEOUS
Section 8.1. Meetings of Holders...................................................................20
Section 8.2. Books and Records; Reports............................................................21
Section 8.3. Termination...........................................................................21
Section 8.4. No Assumption of Liability............................................................22
Section 8.5. Amendment and Waiver..................................................................22
Section 8.6. Accountants...........................................................................23
Section 8.7. Nature of Holder's Interest...........................................................24
Section 8.8. Governing Law; Severability...........................................................24
Section 8.9. Notices...............................................................................24
Section 8.10. Entire Agreement......................................................................25
Section 8.11. Non-Assignability.....................................................................25
Section 8.12. No Third Party Rights; Successors and Assigns.........................................25
Section 8.13. Counterparts..........................................................................25
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 February __, 2000,
among Xxxxxxx, Xxxxx & Co., as sponsor (the "Sponsor"), Xxxx X. Efron, as the
prior trustee, and Xxxxxx X. Xxxxxxx, Xxxxxxx X. Xxxxxx III and Xxxxx X.
X'Xxxxx, as trustees (the "Trustees"), constituting NBCi Automatic Common
Exchange Security Trust (the "Trust").
W I T N E S S E T H:
WHEREAS, the Sponsor and Xxxx X. Efron, as trustee, have previously
entered into a Trust Agreement, dated as of May 3, 1999 (the "Original
Agreement"), creating Tenth Automatic Common Exchange Security Trust; and
WHEREAS, upon the execution of this Agreement, Xxxx X. Efron wishes to
resign as trustee and the Sponsor wishes to appoint the Trustees as the
trustees of the Trust; and
WHEREAS, the parties hereto wish to change the name of the Trust to
NBCi Automatic Common Exchange Security Trust; and
WHEREAS, the parties hereto wish to amend and restate the Original
Agreement in certain other respects; and
WHEREAS, the Trust has previously issued to the Sponsor one Security
in consideration of a purchase price of $100.00;
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.
"Administration Agreement" means the Administration
Agreement, dated as of February __, 2000, between the Administrator
and the Trust, and any substitute agreement therefor entered into
pursuant to Section 2.2(a).
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"Administrator" means The Chase Manhattan Bank, or its
successor as permitted under Article IV of the Administration
Agreement or appointed pursuant to Section 2.2(a).
"Agreement" means this Amended and Restated Trust Agreement.
"Average Market Price" has the meaning specified in the
Contract.
"Business Day" means a day on which the New York Stock
Exchange, Inc. is open for trading and that is not a day on which
commercial banks in The City of New York are authorized or obligated
by law to close.
"Cash Merger" has the meaning specified in the Contract.
"Cash Settlement Alternative" has the meaning specified in
the Contract.
"Certificate" means any certificate evidencing the ownership
of Securities substantially in the form of Exhibit A.
"Class A Common Stock" means the Class A Common Stock, par
value $0.0001 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 February __, 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.
"Commission" means the United States Securities and Exchange
Commission.
"Company" means NBC Internet, Inc., a Delaware corporation.
"Contract" means the Purchase Agreement, dated as of February
__, 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).
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"Custodian Agreement" means the Custodian Agreement, dated as
of February __, 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 each February __, May _, August __
and November __ of each year, commencing May __, 2000, 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 elect the Cash Settlement Alternative, the
amount in cash specified in the Contract as payable in respect
thereof), in mandatory exchange for the Securities on the Exchange
Date.
"Exchange Date" has the meaning specified in the Contract.
"Exchange Rate" has the meaning specified in the Contract.
"Expense Agreement" means the Fund Expense Agreement, dated
as of February __, 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.
"Firm Purchase Price" has the meaning specified in the
Contract.
"First Time of Delivery" has the meaning specified in the
Underwriting Agreement.
"Holder" means the registered owner of any Security as
recorded on the books of the Paying Agent.
"Indemnity Agreement" means the Fund Indemnity Agreement,
dated as of February __, 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.
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"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 February __, 2000, between the Paying Agent and the Trust,
and any substitute agreement therefor entered into pursuant to Section
2.2(a).
"Person" means an individual, a partnership, a corporation, a
limited liability company, a trust, an unincorporated association, a
joint venture or any other entity or organization, including a
government or political subdivision or an agency or instrumentality
thereof.
"Prospectus" means the prospectus relating to the Securities
constituting a part of the Registration Statement, as first filed with
the Commission pursuant to Rule 497(b) or (h) under the Securities
Act, and as subsequently amended or supplemented by the Trust.
"Quarterly Distribution" means $[-] per Security paid to each
Holder on each Distribution Date.
"Record Date" means the Business Day preceding each
Distribution Date.
"Registration Statement" means the Registration Statement on
Form N-2 (Registration Nos. 333-77563 and 811-09323) 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.
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"Security" means a $[-] Trust Automatic Common Exchange
Security of the Trust evidencing a Holder's undivided interest in the
Trust and right to receive a pro rata distribution upon liquidation of
the Trust Estate.
"Seller" means CNET Investments II, Inc., a Delaware
corporation.
"Shares" means Class A Common Stock to be exchanged by the
Trustees for the Securities on the Exchange Date; provided that after
a Spin-Off Distribution, all references to "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 Class A Common Stock.
"Spin-Off Distribution" has the meaning specified in the
Contract.
"Sponsor" has the meaning specified in the preamble to this
Agreement.
"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 named in the
Underwriting Agreement.
"Underwriting Agreement" means the Underwriting Agreement,
dated February __, 2000, as described in the Prospectus.
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"U.S. Government Securities" means direct obligations of the
United States of America.
Section 1.2. Interpretation.
(a) When a reference is made in this Agreement to Articles, Sections,
Exhibits or Schedules, such reference is to Articles or Sections of, or
Exhibits or Schedules to, this Agreement unless otherwise indicated.
(b) The table of contents and headings contained in this Agreement are
for reference purposes only and are not part of this Agreement, and shall not
be deemed to limit or otherwise affect any of the provisions of this Agreement.
(c) Whenever the words "include", "includes" or "including" are used
in this Agreement, they shall be deemed to be followed by the words "without
limitation".
(d) Any reference to any statute, regulation or agreement shall be a
reference to such statute, regulation or agreement as supplemented or amended
from time to time.
ARTICLE II
TRUST DECLARATION; PURPOSES, POWERS
AND DUTIES OF THE TRUSTEES; ADMINISTRATION
Section 2.1. Declaration of Trust; Purposes of the Trust; Resignation
and Appointment of Trustees.
(a) The Sponsor hereby creates the Trust in order that it may acquire
the Treasury Securities, enter into the Contract, issue and sell to the Sponsor
and the Underwriters the Securities, receive and redeliver additional U.S.
Government Securities upon an extension of the Exchange Date pursuant to the
Contract, hold the Trust Estate in trust for the use and benefit of all present
and future Holders, and otherwise carry out the terms and conditions of this
Agreement, all for the purpose of achieving the investment objectives set forth
in the Prospectus. The Trustees hereby declare that they will accept and hold
the Trust Estate in trust for the use and benefit of all present and future
Holders. The Sponsor has heretofore deposited with the Trustees the sum of $10
to accept and hold in trust hereunder until the issuance and sale of the
Securities to the Underwriters, whereupon such sum shall be donated to an
organization satisfying the requirements of Section 170(c)(2) of the Code
selected by unanimous consent of the Trustees.
(b) Xxxx X. Efron hereby resigns as trustee of the Trust, in
accordance with the provisions of Section 5 of the Original Agreement, and the
Sponsor, as the sole holder of any beneficial interest in the Trust as of the
date of this Agreement, hereby accepts the resignation of Xxxx X. Efron and
appoints Xxxxxx X. Xxxxxxx, Xxxxxxx X. Xxxxxx III and Xxxxx X. X'Xxxxx to be
the Trustees of the Trust under this Agreement.
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(c) Upon the execution of this Agreement, the name of the Trust shall
be changed to NBCi Automatic Common Exchange Securities Trust.
Section 2.2. General Powers and Duties of the Trustees. In furtherance
of the provisions of Section 2.1, the Sponsor authorizes and directs the
Trustees:
(a) to enter into and perform (and, in accordance with
Section 8.5, amend) the Contract, the Collateral Agreement, the
Underwriting Agreement, the Expense Agreement, the Indemnity
Agreement, the Custodian Agreement, the Administration Agreement and
the Paying Agent Agreement and to perform all obligations of the
Trustees (including the obligation to provide indemnity hereunder and
thereunder) and enforce all rights and remedies of the Trust under
each of such agreements; and if any of the Custodian Agreement, the
Administration Agreement, the Collateral Agreement and the Paying
Agent Agreement terminates, or the agent of the Trust thereunder
resigns or is discharged, to appoint a substitute agent and enter into
a new agreement with such substitute agent containing provisions
substantially similar to those contained in the agreement being
terminated; provided that in any such new agreement (i) the Custodian
and the Paying Agent shall each be a commercial bank or trust company
organized and existing under the laws of the United States of America
or any state therein (or, in the case of the initial Paying Agent, a
limited liability company affiliate with such a commercial bank or
trust company), shall have full trust powers and shall have minimum
capital, surplus and retained earnings of not less than $100,000,000;
and (ii) the Administrator and the Collateral Agent shall each be a
reputable financial institution qualified in all respects to carry out
its obligations under the Administration Agreement or the Collateral
Agreement, as the case may be;
(b) to hold the Trust Estate in trust, to create and
administer the Trust Account, to direct payments received by the Trust
to the Trust Account and to make payments out of the Trust Account as
set forth in Article III;
(c) to issue and sell to the Underwriters an aggregate of up
to ______ Securities (including those Securities subject to the
over-allotment option of the Underwriters provided for in the
Underwriting Agreement) pursuant to the Underwriting Agreement and as
contemplated by the Prospectus; provided, however, that subsequent to
the determination of the public offering price per Security and
related underwriting discount for the Securities to be sold to the
Underwriters but prior to the sale of the Securities to the
Underwriters, the Security originally issued to the Sponsor shall be
split into a greater number of Securities so that immediately
following such split the value of each Security held by the Sponsor
will equal the aforesaid public offering price;
(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;
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(f) to defend any action commenced against the Trustees or
the Trust and to prosecute any action which the Trustees deem
necessary to protect the Trust and the rights and interests of
Holders, and to pay the costs thereof;
(g) to arrange for the bonding of officers and employees of
the Trust as required by Section 17(g) of the Investment Company Act
and the rules and regulations thereunder;
(h) to delegate any and all of its powers and duties
hereunder as contemplated by the Collateral Agreement, the Custodian
Agreement, the Paying Agent Agreement and the Administration
Agreement, to the extent permitted by applicable law; and
(i) to adopt and amend bylaws, and take any and all such
other actions as necessary or advisable to carry out the purposes of
the Trust, subject to the provisions of this Agreement and applicable
law, including, without limitation, the Investment Company Act.
Section 2.3. Portfolio Acquisition. In furtherance of the provisions
of Section 2.1, the Sponsor further specifically 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, 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
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part of this Agreement from and after such Second Time of Delivery),
from such brokers or dealers as the Trustees shall designate in
writing to the Administrator.
Section 2.4. Portfolio Administration. In furtherance of the
provisions of Section 2.1, the Sponsor further specifically authorizes and
directs the Trustees:
(a) Determination of Dilution, Merger or Acceleration
Adjustments. Upon receipt of any notice pursuant to Section 5.1(d)(ii)
of the Contract of an event requiring an adjustment to the Exchange
Rate, or upon otherwise acquiring knowledge of such an event, to
calculate the required adjustment and furnish notice thereof to the
Collateral Agent and Seller, 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. To apply for listing of
the Securities on the New York Stock Exchange, Inc. If the Securities
are delisted or suspended from trading on the New York Stock Exchange,
Inc., to apply for listing of the Securities on another national or
regional securities exchange or for quotation on another trading
market;
(d) Additional U.S. Government Securities. To accept
additional U.S. Government Securities delivered to the Trust in
connection with an extension of the Exchange Date at Seller's election
in accordance with Section 2.3(c) of the Contract, and to redeliver
such U.S. Government Securities in connection with an acceleration of
the Exchange Date at Seller's 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
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Contract, to give notice of such election, extension or acceleration
as provided in the Contract;
(f) Acceleration. In the event (i) an acceleration of the
Contract shall occur due to an Event of Default as provided in Article
VII of the Contract, or (ii) a Cash Merger shall occur in which all of
the Merger Consideration is included in the Accelerated Portion, to
liquidate or cause the Custodian to liquidate all the Treasury
Securities;
(g) Determination of Amounts to be Delivered under the
Contract. (i) To calculate, on the Exchange Date, upon the
acceleration of Seller's 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
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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;
(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 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,
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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 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
date on which Seller or the Collateral Agent delivers Class A
Common Stock and Marketable Securities to the Trust, 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; (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
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(v) Record Date. The distributions described in this
paragraph (h) shall be made to Holders of record as of the
close of business on the Business Day following the date on
which Seller 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 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.
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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, 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. In
addition, the Administrator is authorized to pay, from the assets of the Trust,
the fees and expenses of the Trust incurred in connection with the public
offering of the Securities and the costs and expenses incurred in connection
with the organization and operation of the Trust, to the extent that such fees,
costs and expenses are not paid by third parties.
Section 3.3. Distributions to Holders. On each Distribution Date, the
Trustees shall distribute to each Holder of record at the close of business on
the preceding Record Date, at the post office address of the Holder appearing
on the books of the Paying Agent or by any other means mutually agreed upon by
the Holder and the Trust, an amount equal to the Quarterly Distribution with
respect to all Securities held by such Holder computed as of the close of
business on such Distribution Date.
Section 3.4. Segregation. All moneys and other assets deposited or
received by the Trustees hereunder shall be held by them in trust as part of
the Trust Estate until required to be disbursed or otherwise disposed of in
accordance with the provisions of this Agreement, and the Trustees shall handle
such moneys and other assets in such manner as shall constitute the segregation
and holding in trust within the meaning of the Investment Company Act.
Section 3.5. Temporary Investments. To the extent necessary to enable
the Paying Agent to make the next succeeding Quarterly Distribution, any moneys
deposited with or received by the Trustees in the Trust Account shall be
invested as soon as possible by the Paying Agent in Temporary Investments
maturing no later than the Business Day preceding the next following
Distribution Date. Except as otherwise specifically provided herein or in the
Paying Agent Agreement, the Paying Agent shall not have the power to sell,
transfer or otherwise dispose of any Temporary Investment prior to the maturity
thereof, or to acquire additional Temporary Investments. The Paying Agent shall
hold any Temporary Investment to its maturity and shall apply the proceeds
thereof upon maturity to the payment of the next succeeding Quarterly
Distribution. All such Temporary Investments shall be selected from time to
time by the Trustees or pursuant to standing instructions from the Trustees to
the Administrator, and the
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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 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.
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(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 in an
equal aggregate number of Securities and all Certificates issued shall be
issued in denominations of one Security or any multiple thereof. The Paying
Agent may deem and treat the person in whose name any Security shall be
registered upon the books of the Paying Agent as the owner of such Security for
all purposes hereunder and the Paying Agent shall not be affected by any notice
to the contrary. The transfer books maintained by the Paying Agent for the
purposes of this Section 5.2 shall include the name and address of the record
owners of the Securities and shall be closed in connection with the termination
of the Trust pursuant to Section 8.3.
(b) A sum sufficient to cover any tax or other governmental charge
that may be imposed in connection with any such transfer shall be paid to the
Paying Agent by the Holder. A Holder may be required to pay a fee for each new
Certificate to be issued pursuant to the preceding paragraph in such amount as
may be specified by the Paying Agent and approved by the Trustees.
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(c) All Certificates canceled pursuant to this Agreement may be voided
by the Paying Agent in accordance with the usual practice of the Paying Agent
or in accordance with the instructions of the Trustees; provided, however, that
the Paying Agent shall not be required to destroy canceled Certificates.
(d) The Paying Agent may adopt other reasonable rules and regulations
for the registration, transfer and tender of Securities as it may, in its
discretion, deem necessary.
Section 5.3. Replacement of Certificates. In case any Certificate
shall become mutilated or be destroyed, stolen or lost, the Paying Agent shall
execute and deliver a new Certificate in exchange and substitution therefor
upon the Holder's furnishing the Paying Agent with proper identification and
satisfactory indemnity of the Trustees and the Paying Agent, complying with
such other reasonable regulations and conditions as the Paying Agent may
prescribe and paying such expenses and charges, including any bonding fee, as
the Paying Agent may incur or reasonably impose; provided that if the Trust has
terminated or is in the process of terminating, the Paying Agent, in lieu of
issuing such new Certificate, may, upon the terms and conditions set forth
herein, make the distributions set forth in Section 8.3(c). Any mutilated
Certificate shall be duly surrendered and canceled before any duplicate
Certificate shall be issued in exchange and substitution therefor. Upon
issuance of any duplicate Certificate pursuant to this Section 5.3, the
original Certificate claimed to have been lost, stolen or destroyed shall
become null and void and of no effect, and any bona fide purchaser thereof
shall have only such rights as are afforded under Article 8 of the Uniform
Commercial Code as in effect in the State of New York to a Holder presenting a
Certificate for transfer in the case of an overissue.
ARTICLE VI
EXECUTION OF THE CONTRACT
Section 6.1. Execution of the Contract. The Contract shall be executed
manually or in facsimile by the Managing Trustee and executed manually by
Seller and shall be dated the date of execution and delivery by Seller.
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
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for the purpose of electing any Trustee. Holders may not cumulate their votes
in the election of Trustees. Each Trustee shall not be considered to have
qualified for the office unless such Trustee shall agree to be bound by the
terms of this Agreement and shall evidence his consent by executing this
Agreement or a supplement hereto. Each individual Trustee shall be at least 21
years of age and shall not be under any legal disability. No Trustee who is an
"interested person", as defined in the Investment Company Act, may assume
office if it would cause the composition of the Trustees of the Trust not to be
in compliance with the percentage limitations on interested persons in Section
10 of the Investment Company Act. Trustees need not be Holders.
Section 7.2. Vacancies. Any vacancy in the office of a Trustee may be
filled in compliance with Sections 10 and 16 of the Investment Company Act by
the vote, within thirty days, of the remaining Trustees; provided that if
required by Section 16 of the Investment Company Act, the Trustees shall
forthwith cause to be held as promptly as possible and in any event within
sixty days (unless the Commission by order shall extend such period) a special
meeting of Holders for the purpose of electing Trustees in compliance with
Sections 10 and 16 of the Investment Company Act. Any Trustee elected at such a
meeting shall have the qualifications specified in Section 7.1. Until a vacancy
in the office of any Trustee is filled as provided above, the remaining
Trustees in office, regardless of their number, shall have the powers granted
to the Trustees and shall discharge all the duties imposed upon the Trustees by
this Agreement. Notice of the appointment or election of a successor Trustee
shall be mailed promptly after acceptance of such appointment by the successor
Trustee to each Holder.
Section 7.3. Powers. The Trust will be managed solely by the Trustees,
who will, subject to the provisions of Article II, have complete and exclusive
control over the management, conduct and operation of the Trust's business, and
shall have the rights, powers and authority of a board of directors of a
corporation organized under New York law. The Trustees shall have fiduciary
responsibility for the safekeeping and use of all funds and assets of the Trust
and shall not employ, or permit another to employ, such funds or assets in any
manner except for the exclusive benefit of the Trust and except in accordance
with the terms of this Agreement. Subject to the continuing supervision of the
Trustees and as permitted by applicable law, the functions of the Trust shall
be performed by the Custodian, the Paying Agent, the Administrator and such
other entities engaged to perform such functions as the Trustees may determine,
including, without limitation, any or all administrative functions.
Section 7.4. Meetings. Meetings of the Trustees shall be held from
time to time upon the call of any Trustee on not less than 48 hours' notice
(which may be waived by any or all of the Trustees in writing either before or
after such meeting or by attendance at the meeting unless the Trustee attends
the meeting for the express purpose of objecting to the transaction of any
business on the ground that the meeting has not 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
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participating in the meeting can hear each other, and participation in a
meeting pursuant to such communications equipment shall constitute presence in
person at such meeting.
Section 7.5. Resignation and Removal. Any Trustee may resign and be
discharged of the trust created by the Agreement by executing an instrument in
writing resigning as Trustee, filing the same with the Administrator and
sending notice thereof to the remaining Trustees, and such resignation shall
become effective immediately unless otherwise specified therein. Any Trustee
may be removed in the event of incapacity by vote of the remaining Trustees and
for any reason by written declaration or vote of the Holders of more than 66
2/3% of the outstanding Securities, notice of which vote shall be given to the
remaining Trustees and the Administrator. The resignation, removal or failure
to reelect any Trustee shall not cause the termination of the Trust.
Section 7.6. Liability. The Trustees shall not be liable to the Trust
or any Holder for taking any action or for refraining from taking any action
except in the case of willful misfeasance, bad faith, gross negligence or
reckless disregard of the duties of their office. Specifically, without
limitation, the Trustees shall not be responsible for or in respect of the
recitals herein or the validity or sufficiency of this Agreement or for the due
execution hereof by any other Person, or for or in respect of the validity or
sufficiency of Securities or the Certificates representing Securities and shall
in no event assume or incur any liability, duty or obligation to any Holder or
to any other Person, other than as expressly provided for herein. The Trustees
may employ agents, attorneys, administrators, accountants and auditors, and
shall not be answerable for the default or misconduct of any such Persons if
such Persons shall have been selected with reasonable care. Action in good
faith may include action taken in good faith in accordance with an opinion of
counsel. In no event shall any Trustee be personally liable for any expenses
with respect to the Trust. Each Trustee shall be indemnified from the Trust
Estate with respect to any claim, liability, loss or expense incurred in acting
as Trustee of the Trust, including the costs and expenses of the defense
against any such claim or liability, except in the case of willful misfeasance,
bad faith, gross negligence or reckless disregard of the duties of his office.
Section 7.7. Compensation. Each Trustee, other than a Trustee who is a
director, officer or employee of the Sponsor, any Underwriter, or the
Administrator or any affiliate thereof, shall receive a one-time, up-front fee
of $10,800, in respect of its annual fee and anticipated out-of-pocket
expenses. In addition, the Managing Trustee shall receive an additional
one-time, up-front fee of $3,600 for serving in such capacity. The Trustees
will not receive any pension or retirement benefits. In the event of the
resignation or removal of a Trustee, such Trustee shall remit to the Trust the
portion of its fee ratable for the period from the day of such resignation or
removal through the Exchange Date.
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ARTICLE VIII
MISCELLANEOUS
Section 8.1. Meetings of Holders. The Trustees shall hold annual
meetings of Holders to elect Trustees as provided in Section 7.1. A special
meeting may be called at any time by the Trustees or upon petition of Holders
of not less than 51% of the Securities outstanding (unless substantially the
same matter was voted on during the preceding 12 months), and shall be called
as provided in Section 7.2 (or as otherwise required by the Investment Company
Act and the rules and regulations thereunder, including, without limitation,
when requested by the Holders of not less than 10% of the Securities
outstanding for the purposes of voting upon the question of the removal of any
Trustee or Trustees). The Trustees shall establish, and notify the Holders in
writing of, the record date for each such meeting which shall be not less than
10 nor more than 50 days before the meeting date. Holders at the close of
business on the record date will be entitled to vote at the meeting. The
Administrator shall, as soon as possible after any such record date (or prior
to such record date if appropriate), mail by first class mail to each Holder a
notice of meeting and a proxy statement and form of proxy in the form approved
by the Trustees and complying with the Investment Company Act and the rules and
regulations thereunder. Except as otherwise specified herein or in any
provision of the Investment Company Act and the rules and regulations
thereunder, any action may be taken by vote of Holders of a majority of the
Securities outstanding present in person or by proxy if Holders of a majority
of Securities outstanding on the record date are so represented. Each Security
shall have one vote and may be voted in person or by duly executed proxy. Any
proxy may be revoked by notice in writing, by a subsequently dated proxy or by
voting in person at the meeting, and no proxy shall be valid after eleven
months following the date of its execution. Any Investment Company owning
Securities in excess of the limits imposed by Sections 12(d)(1)(A)(i) and
12(d)(1)(C) of the Investment Company Act shall vote its Securities in
proportion to the votes of all other Holders.
Section 8.2. Books and Records; Reports.
(a) The Trustees shall keep a certified copy or duplicate original of
this Agreement on file at the office of the Trust, which shall be located at
000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and the office of the
Administrator available for inspection at all reasonable times during its usual
business hours by any Holder. The Trustees shall keep proper books of record
and account for all the transactions under this Agreement at the office of the
Trust and the office of the Administrator, and such books and records shall be
open to inspection by any Holder at all reasonable times during usual business
hours. The Trustees shall retain all books and records in 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
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reports as required by Section 30 of the Investment Company Act and the rules
and regulations thereunder. The Trustees shall prepare and file such reports as
may from time to time be required to be filed or distributed to Holders under
any applicable state or Federal statute or rule or regulation thereunder, and
shall file such tax returns as may from time to time be required under any
applicable state or Federal statute or rule or regulation thereunder. One of
the Trustees shall be designated by resolution of the Trustees to make the
filings and give the notices required by Rule 17g-1 under the Investment
Company Act.
(c) In calculating the net asset value of the Trust as required by the
Investment Company Act, (i) the Treasury Securities will be valued at the mean
between the last current bid and asked prices or, if quotations are not
available, as determined in good faith by the Trustees, (ii) short-term
investments having a maturity of 60 days or less will be valued at cost with
accrued interest or discount earned included in interest receivable and (iii)
the Contract will be valued on the basis of the bid price received by the Trust
in respect of the Contract, or any portion thereof covering not less than 1,000
shares, from an independent broker-dealer firm unaffiliated with the Trust to
be named by the Trustees who is in the business of making bids on financial
instruments similar to the Contract and with terms comparable thereto, or if
such a bid quotation is not available, as determined in good faith by the
Trustees.
Section 8.3. Termination.
(a) This Agreement and the Trust created hereby shall terminate upon
the earliest of (i) the date 90 days after the execution of this Agreement if
(x) the Securities have not theretofore been issued to the Underwriters under
the Underwriting Agreement or (y) the net worth of the Trust is not at least
$100.00 at such time, (ii) the date of the repayment, sale or other
disposition, as the case may be, of all of the Contract, the Treasury
Securities and any other securities held hereunder, (iii) the date 10 Business
Days after the Exchange Date (or, if the Contract shall be accelerated pursuant
to Article VII thereof or if Section 6.2 thereof results in the acceleration of
all the obligations of Seller, 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
Xxxxxx X. Xxxxxxx living on the date hereof. The Trust is irrevocable, the
Sponsor has no right to withdraw any assets constituting a portion of the Trust
Estate, and the dissolution of the Sponsor shall not operate to terminate the
Trust. The 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.
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(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).
(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.
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(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 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
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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.
Section 8.9. Notices.
(a) All notices and other communications provided for in this
Agreement, unless otherwise specified, shall be in writing and shall be given
at the addresses set forth in the following sentence or at such other addresses
as may be designated by notice duly given in accordance with this Section 8.9
to each other party to this Agreement. Until such notice is given, (i) notices
to Sponsor shall be directed to it at Xxxxxxx, Sachs & Co., 00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Registration Department; (ii) notices to
the Trust shall be directed to it in care of the Administrator for Purchaser,
The Chase Manhattan Bank, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Telecopier No. (000) 000-0000, Attention: Pledged Collateral Control Services
and to each Trustee at the address specified in clause (iii) of this paragraph;
(iii) notices to the Trustees shall be directed to the Trustees at 000 Xxxxxxx
Xxxxxx, Xxxxx 000, Xxxxxx Xxxxxxxx 00000, Telecopier No. (000) 000-0000,
Attention: Xxxxxx X. Xxxxxxx or the applicable Trustee and (iv) notices to any
Holder shall be duly given if mailed, first class 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.
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Section 8.11. Non-Assignability. This Agreement and the rights and
obligations of the parties under this Agreement may not be assigned or
delegated by either party without the prior written consent of the other party,
and any purported assignment without such consent shall be void.
Section 8.12. No Third Party Rights; Successors and Assigns. This
Agreement is not intended and shall not be construed to create any rights in
any person other than Sponsor, the Trustees and the Holders and their
respective successors and assigns and no other person shall assert any rights
as third party beneficiary under this Agreement. Whenever any of the parties to
this Agreement is referred to, such reference shall be deemed to include the
successors and assigns of such party. All the covenants and agreements in this
Agreement contained by or on behalf of Sponsor and the Trustees shall bind, and
inure to the benefit of, their respective successors and assigns whether so
expressed or not, and shall be enforceable by and inure to the benefit of the
Trustees and their successors and assigns.
Section 8.13. Counterparts. This Agreement may be executed,
acknowledged and delivered in any number of counterparts, each of which shall
be an original, but all of which shall constitute a single agreement, with the
same effect as if the signatures on each such counterpart were upon the same
instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated Trust Agreement to be duly executed and delivered as of the date
hereof.
THE SPONSOR:
Xxxxxxx, Xxxxx & Co.,
as Sponsor
By:
--------------------------------------
THE RETIRING TRUSTEE:
-----------------------------------------
Xxxx X. Efron
THE TRUSTEES:
By:
--------------------------------------
Xxxxxx X. Xxxxxxx,
as Trustee
Address: Department of Economics
University of Delaware
Xxxxxx, Xxxxxxxx 00000
By:
--------------------------------------
Xxxxxxx X. Xxxxxx III,
as Trustee
Address: Department of Economics
University of Delaware
Xxxxxx, Xxxxxxxx 00000
By:
--------------------------------------
Xxxxx X. X'Xxxxx,
as Trustee
Address: Department of Economics
University of Delaware
Xxxxxx, Xxxxxxxx 00000
30
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 STRIP RATE PRICE COST CUSIP
--------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------
==============================================================================================================
SETTLEMENT DATE:
31
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 STRIP RATE PRICE COST CUSIP
--------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------
==============================================================================================================
SETTLEMENT DATE:
32
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 NBCi Automatic
Common Exchange Security Trust or its agent for registration of transfer,
exchange, or payment, and any certificate issued is registered in the name of
Cede & Co. (or in such other name as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein. This certificate may be exchanged
by an authorized representative of DTC in whole or in part for securities in
definitive form, registered in the names of such holders as such representative
of DTC shall specify, in which case, a new certificate will be issued in the
name of Cede & Co. (or in such other name as is requested by such authorized
representative of DTC) representing the securities not issued in definitive
form.
THIS CERTIFICATE IS ISSUED UNDER AND IS SUBJECT TO THE TERMS, PROVISIONS AND
CONDITIONS OF THE TRUST AGREEMENT REFERRED TO BELOW TO WHICH THE HOLDER OF THIS
CERTIFICATE BY VIRTUE OF THE ACCEPTANCE HEREOF ASSENTS AND IS BOUND.
$____ TRUST AUTOMATIC COMMON EXCHANGE SECURITIES
NBCi AUTOMATIC COMMON EXCHANGE SECURITY TRUST
CUSIP NO. ____________
NO. _______ ____________ SHARES
THIS CERTIFIES THAT CEDE & CO. IS THE RECORD OWNER OF ____________ OF
THE $___ TRUST AUTOMATIC COMMON EXCHANGE SECURITIES OF NBCi AUTOMATIC COMMON
EXCHANGE SECURITY TRUST CONSTITUTING FRACTIONAL UNDIVIDED INTERESTS IN NBCi
AUTOMATIC COMMON EXCHANGE SECURITY TRUST, A TRUST CREATED UNDER THE LAWS OF THE
STATE OF NEW YORK PURSUANT TO A TRUST AGREEMENT AMONG XXXXXXX, SACHS & CO. AND
THE TRUSTEES NAMED THEREIN. THIS CERTIFICATE IS ISSUED UNDER AND IS SUBJECT TO
THE TERMS, PROVISIONS AND CONDITIONS OF THE TRUST AGREEMENT TO WHICH THE HOLDER
OF THIS CERTIFICATE BY VIRTUE OF THE ACCEPTANCE HEREOF ASSENTS AND IS BOUND, A
COPY OF WHICH TRUST AGREEMENT IS AVAILABLE AT THE OFFICE OF THE TRUST'S
ADMINISTRATOR AND PAYING AGENT, 000 XXXX 00XX XXXXXX, XXX XXXX, XXX XXXX 00000.
THIS CERTIFICATE IS TRANSFERABLE AND EXCHANGEABLE BY THE REGISTERED OWNER IN
PERSON OR BY HIS DULY AUTHORIZED ATTORNEY AT THE OFFICE OF THE PAYING AGENT
UPON SURRENDER OF THIS CERTIFICATE PROPERLY ENDORSED OR ACCOMPANIED BY A
WRITTEN INSTRUMENT OF TRANSFER AND ANY OTHER DOCUMENTS THAT THE PAYING AGENT
MAY REQUIRE FOR TRANSFER, IN FORM SATISFACTORY TO THE PAYING AGENT AND PAYMENT
OF THE FEES AND EXPENSES PROVIDED IN THE TRUST AGREEMENT.
THIS CERTIFICATE IS NOT VALID UNLESS MANUALLY COUNTERSIGNED BY THE
PAYING AGENT.
33
WITNESS THE FACSIMILE SIGNATURE OF THE MANAGING TRUSTEE.
NBCi AUTOMATIC COMMON
EXCHANGE SECURITY TRUST
DATED:
By:
--------------------
[Name]
Managing Trustee
COUNTERSIGNED:
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.,
as Paying Agent
By:
---------------------------------------
Authorized Signature
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