SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(Rule 13d-101)
Under the Securities Exchange Act of 1934
(Amendment No. 0)
NETLIVE COMMUNICATIONS, INC.
(Name of Issuer)
Common Stock, $0.0001 par value
(Title of Class of Securities)
641142104
(CUSIP Number)
R. Andrew Lee, Trustee
NetLive Communications, Inc. Performance Share Trust
2100 Connecticut Avenue, N.W., Suite 705
Washington, D.C. 20008
(202) 462-2485
with a copy to:
Arthur E. Cirulnick
Tucker, Flyer & Lewis
a professional corporation
1615 L Street, N.W., Suite 400
Washington, D.C. 20036-5612
(202) 452-8600
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
March 5, 1997
(Date of Event which Requires Filing
of this Statement)
If the filing person has previously filed a statement on
Schedule 13G to report the acquisition which is the subject of
this Schedule 13D, and is filing this schedule because of Rule
13d-1(b)(3) or (4), check the following box [ ].
(Continued on following pages)
(Page 1 of __ Pages)
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CUSIP No. 641142104
1. Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
NetLive Communications, Inc. Performance Share Trust
2. Check the appropriate box if a member of a group
(a) [ ]
(b) [ ]
3. SEC USE ONLY
4. Source of Funds
SC
5. Check Box if Disclosure of Legal Proceedings is Required
Pursuant to Items 2(d) or 2(e) [ ]
6. Citizenship or Place of Organization
Delaware
NUMBER OF SHARES 7. Sole Voting Power
BENEFICIALLY 300,000 shares
OWNED BY
EACH 8. Shared Voting Power
REPORTING 0 shares
PERSON
WITH 9. Sole Dispositive Power
300,000 shares
10. Shared Dispositive Power
0 shares
11. Aggregate Amount Beneficially Owned by Each Reporting
Person
300,000 shares
12. Check Box if the Aggregate Amount in Row (11) Excludes
Certain Shares [ ]
13. Percent of Class Represented by Amount in Row (11)
10.2%
14. Type of Reporting Person
OO
<PAGE>
CUSIP No. 641142104
1. Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
R. Andrew Lee
2. Check the appropriate box if a member of a group
(a) [ ]
(b) [ ]
3. SEC USE ONLY
4. Source of Funds
SC
5. Check Box if Disclosure of Legal Proceedings is Required
Pursuant to Items 2(d) or 2(e) [ ]
6. Citizenship or Place of Organization
United States
NUMBER OF SHARES 7. Sole Voting Power
BENEFICIALLY 300,000 shares
OWNED BY
EACH 8. Shared Voting Power
REPORTING 0 shares
PERSON
WITH 9. Sole Dispositive Power
300,000 shares
10. Shared Dispositive Power
0 shares
11. Aggregate Amount Beneficially Owned by Each Reporting
Person
300,000 shares
12. Check Box if the Aggregate Amount in Row (11) Excludes
Certain Shares [ ]
13. Percent of Class Represented by Amount in Row (11)
10.2%
14. Type of Reporting Person
IN
<PAGE>
Item 1. Security and Issuer.
This Schedule 13D ("Schedule 13D") relates to the Common
Stock, par value $0.0001 per share (the "Common Stock"), of
NetLive Communications, Inc., a Delaware corporation (the
"Company"). The principal executive offices of the Company are
located at 584 Broadway, New York, New York 10012.
Item 2. Identity and Background.
(a), (b), (c), (f) This statement is filed on behalf of
NetLive Communications, Inc. Performance Share Trust (the
"Trust") and Mr. R. Andrew Lee, the trustee for the Trust. The
Trust is a recently formed trust that has not conducted business
other than in connection with the transactions described herein.
Both the Trust's principal address and Mr. Lee's address are 2100
Connecticut Avenue, N.W., Suite 705, Washington, D.C. 20008.
(d), (e) During the last five years, neither the Trust nor
Mr. Lee has been convicted in a criminal proceeding (excluding
traffic violations or similar misdemeanors), nor has either been
a party to a civil proceeding of a judicial or administrative
body of competent jurisdiction nor as a result of such proceeding
was or is subject to a judgment, decree or final order enjoining
future violations of, or prohibiting or mandating activities
subject to, federal or state securities laws or finding any
violation with respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration.
The Trust received the shares which it beneficially owns in
a grant from the Issuer pursuant to the terms and conditions set
forth in the Issuer's Performance Share Program Deferred Employee
Compensation Plan (the "Plan") and the Performance Share Program
Trust Agreement dated March 4, 1997 by and between the Issuer and
Mr. Lee, as trustee (the "Trust Agreement") (the Plan and Trust
Agreement are discussed further in Item 4 below).
Item 4. Purpose of Transaction.
On February 27, 1997, the Issuer adopted the Plan, an
employee deferred compensation plan. The Issuer's stated purpose
for the Plan is to provide an incentive for, and to help retain,
the Issuer's employees and to facilitate the hiring of new
employees.
On March 4, 1997, the Issuer entered into the Trust
Agreement with Mr. Lee whereby the Trust was created in order to
hold and oversee the terms of the Plan. On March 5, 1997, the
Issuer irrevocably granted to the Trust 300,000 shares of Common
Stock.
<PAGE>
Pursuant to the terms of the Plan and the Trust Agreement,
the Trust holds the shares of Common Stock on behalf of the
participants in the Plan until such time as a Participant (as
defined in the Plan) is eligible to receive the shares allocated
to such Participant pursuant to the Plan and as set forth by the
Issuer at the date of the grant to the Participant. Upon such
vesting date, the Trust must distribute such shares to the
Participant. Until the Trust distributes the shares of Common
Stock to the Participants, the trustee has full voting power with
respect to the shares in the Trust.
The Trust has no right or power to return the shares of
Common Stock to the Issuer or divert such shares to any other
person, except (i) to Participants in the Plans and only to the
extent provided within the Plan, (ii) to the Issuer upon
termination of the Trust at such time as there are no longer any
Participants entitled to any benefits pursuant to terms of the
Plan, and (iii) to the Issuer upon termination of the Trust after
written approval of all Participants, if any, entitled to
distribution of benefits pursuant to the terms of the Plan.
Except as set forth above, neither the Trust nor Mr. Lee has
any plans or proposals which relate to or would result in any of
paragraphs (a) through (j) enumerated on Schedule 13D Item 4.
The foregoing descriptions of the Plan and the Trust
Agreement are qualified in their entirety by the text of the Plan
and the Trust Agreement, which are attached hereto as Exhibits
0.1 and 0.2 respectively and are incorporated herein by
reference.
Item 5. Interest in Securities of the Issuer.
The Trust beneficially owns 300,000 shares of Common Stock.
The 300,000 shares beneficially owned by the Trust represent
approximately 10.2% of the outstanding Common Stock of the
Issuer. The Trust and Mr. Lee have sole voting power with
respect to such shares. The Trust and Mr. Lee have sole power to
dispose of such shares of Common Stock pursuant to the
restrictions and requirements of the Plan.
Item 6. Contracts, Arrangements, Understandings or
Relationships With Respect to Securities of the Issuer.
Trust Agreement
A summary description of selected provisions of the Trust
Agreement is provided in Item 4. Such description, as qualified
in its entirety by reference to the Trust Agreement, is
incorporated by reference in this Item 6.
<PAGE>
Item 7. Material to be Filed as Exhibits.
Exhibit Description
0.1 NetLive Communications, Inc. Performance Share Program
Deferred Employee Compensation Plan
0.2 NetLive Communications, Inc. Performance Share Program
Trust Agreement, dated March 4, 1997 by and between
NetLive Communications, Inc. and R. Andrew Lee, as
Trustee
<PAGE>
SIGNATURES
After reasonable inquiry and to the best knowledge and belief
of the undersigned, the undersigned hereby certifies that the
information set forth in this amendment is true, complete and
correct.
Dated: March 17, 1997
NETLIVE COMMUNICATIONS, INC.
PERFORMANCE SHARE PROGRAM TRUST
/s/ R. Andrew Lee
By: R. Andrew Lee, Trustee
/s/ R. Andrew Lee
R. Andrew Lee
<PAGE>
EXHIBIT INDEX
Exhibit Description Page
0.1 NetLive Communications, Inc. Performance Share
Program Deferred Employee Compensation Plan
0.2 NetLive Communications, Inc. Performance
Share Program Trust Agreement, dated March 4,
1997 by and between NetLive Communications,
Inc. and R. Andrew Lee, as Trustee
NETLIVE COMMUNICATIONS, INC.
PERFORMANCE SHARE PROGRAM
DEFERRED EMPLOYEE COMPENSATION PLAN
Effective February 27, 1997
INTRODUCTION
The NetLive Communications, Inc. Performance Share Program
is a funded deferred compensation plan for a select group of key
employees of NetLive Communications, Inc.
ARTICLE I
DEFINITIONS
1.1 "Award" shall mean the right granted to a Participant
under the Program to receive a specified number of Shares at a
future date if applicable conditions are satisfied.
1.2 "Board" shall mean the Board of Directors of the
Company.
1.3 "Change of Control" shall mean the: (1) purchase or
other acquisition by any person, entity or group of persons,
within the meaning of 13(d) or 14(d) of the Securities Exchange
Act of 1934 ("Act"), or any comparable successor provisions, of
beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Act) of 30 percent or more of either the
outstanding shares of common stock or the combined voting power
of Company's then outstanding voting securities entitled to vote
generally (however, this definition excludes a proxy or consent
solicitation complying with applicable law); or (2) the approval
by the stockholders of Company of a reorganization, merger, or
consolidation, in each case, with respect to which persons who
were stockholders of Company immediately prior to such
reorganization, merger or consolidation do not, immediately
thereafter, own more than 50 percent of the combined voting power
entitled to vote generally in the election of directors of the
reorganized, merged or consolidated Company's then outstanding
securities; or (3) a liquidation or dissolution of Company or of
the sale of all or substantially all of Company's assets.
1.4 "Committee" shall mean the Performance Share Program
Committee, which is appointed by the Board, and which shall be
composed of three members who need not be employees of the
Company.
1.5 "Company" shall mean NetLive Communications, Inc., a
Delaware corporation.
1.6 "Participant" shall mean an employee of the Company to
whom an Award has been granted. Employees who are members of the
Board of Directors of the Company are not eligible to be
Participants in the Plan.
1.7 "Program" shall mean the NetLive Communications, Inc.
Performance Share Program.
1.8 "Share" shall mean either a share of common stock,
$.0001 par value, or a share of preferred stock, issued by the
Company.
ARTICLE II
AWARDS
2.1 Grant of Awards. The Committee shall, in its discretion,
grant awards to employees of the Company it determines to be key
employees. A Participant's Award shall be determined by the
Committee based upon the Participant's position with the Company,
the relative impact of that position upon the long-term
performance of the Company and the number of Shares previously
awarded under the Program and under the Company's several stock
option programs.
2.2 Participant's Interest. No Participant shall have any
right or interest in or to any Award until such time as payment
actually is made to him in accordance with the provisions of the
Program.
2.3 Maximum Number of Shares. The maximum total number of
Shares subject to the grant of Awards under the Program is
300,000 Shares.
2.4 Stock Split. The number of Shares subject to Awards
shall be adjusted to reflect stock splits, stock dividends, and
the like.
ARTICLE III
PAYMENT OF AWARDS
3.1 Entitlement to Payment. A Participant shall be entitled
to the Shares granted to him in an Award on the first to occur of
the following events:
(a) One hundred percent of such Shares upon the
completion by the Participant of the specified number of years of
service for the Company set forth in the Participant's Award
certificate, not to exceed ten years of service, or
(b) Fifty percent of such Shares either upon a Change
of Control, or upon occurrence of such other events related to a
Change of Control specifically set forth in the Participant's
Award certificate, or
(c) The applicable percentage of such Shares upon
occurrence of any other events or conditions specifically set
forth in the Participant's Award certificate.
3.2 Distribution. The Shares under an Award shall be
distributed to the Participant on his becoming entitled to them
pursuant to Section 3.1.
3.3 Source of Awards. Shares payable under Awards shall be
paid directly to the Participant from the irrevocable trust
established by the Company.
3.4 Forfeiture of Awards. A Participant will forfeit all
right to an Award under this Program upon termination of service
to the Company by the Participant for any reason before being
entitled to distribution under Section 3.2.
ARTICLE IV
ADMINISTRATION
4.1 Administrator. The Board, or a committee it designates,
shall be the Administrator of the Program.
4.2 Duties of the Administrator. The Administrator shall
administer the Program in accordance with its terms and purposes
and shall have authority to interpret the Program, to make any
necessary rules and regulations, to determine benefits and to
disburse Shares under the Program. The Administrator shall also
be responsible for complying with statutory reporting and
disclosure requirements. The Administrator's interpretations,
determinations, rules and regulations shall be final and binding
on all persons and parties concerned. The Administrator shall not
be subject to liability with respect to the administration of the
Program.
4.3 Claims Procedures/Decision of Administrator. In general,
distributions under this Program are automatic and no claim for
benefits needs to be filed. However, a Participant may submit a
claim for benefits under this Program, to the Administrator, in
writing. The following procedure shall apply in such case:
(a) If such claim for benefits is wholly or partially
denied, the Administrator shall notify the claimant of the denial
of the claim within a reasonable period of time, but no later
than 90 days after receipt of the written claim, unless special
circumstances require an extension of time for processing the
claim. In such event, written notice of the extension shall be
furnished to the claimant prior to the end of the 90 day period
and shall indicate the special circumstances requiring the
extension and the date by which a final decision is expected. In
no event shall the extension period exceed 90 days from the end
of the initial 90 day period. The notice of denial: (i) shall be
in writing; (ii) shall be written in a manner calculated to be
understood by the claimant; and (iii) shall contain (A) the
specific reason or reasons for denial of the claim; (B) a
specific reference to the pertinent Program provisions upon which
the denial is based; (C) a description of any additional material
or information necessary for the claimant to perfect the claim;
and (D) an explanation of the Program claims review procedure.
(b) Within 60 days of the receipt by the claimant of
the written notice of denial of the claim, or if the claim has
not been granted within the applicable time period, the claimant
may file a written request with the Administrator that it conduct
a full and fair review of the denial of the claimant's claim for
benefits. In connection with the claimant's appeal of the denial
of his benefit, the claimant may review pertinent documents and
may submit issues and comments in writing.
(c) The Administrator shall deliver to the claimant a
written decision on the claim promptly, but not later than 60
days after the receipt of the claimant's request for review,
except that if there are special circumstances which require an
extension of time for processing, the 60 day period shall be
extended to a maximum of 120 days, in which case written notice
of the extension shall be furnished to the claimant prior to the
end of the 60 day period. The Administrator's decision shall:
(i) be written in a manner calculated to be understood by the
claimant, (ii) include specific reasons for the decision; and
(iii) contain specific references to the pertinent Program
provisions upon which the decision is based. If a written
decision on review is not furnished to the claimant within the
applicable time period, the claim shall be deemed denied on
review.
ARTICLE V
AMENDMENT AND TERMINATION
5.1 Amendment and Termination of the Program. Although the
Company intends to maintain the Program for as long as necessary,
the Company reserves the right to amend or terminate the Program
at any time for whatever purposes it may deem appropriate. Any
amendments shall be in writing, and shall be authorized by the
Board.
5.2 Contractual Obligation. Notwithstanding Section 5.1, no
Awards granted under the Program as of the date of amendment or
termination shall be diminished.
ARTICLE VI
MISCELLANEOUS
6.1 Employment Rights. Nothing contained in the Program
shall be construed as a contract of employment between the
Company and any Participant, or as a right of any employee to be
continued in the employment of the Company, or as a limitation of
the right of the Company to discharge any of its employees, with
or without cause.
6.2 Assignment. No amount payable to or in respect of any
participant or beneficiary at any time under the Program shall be
subject in any manner to alienation by anticipation, sale,
transfer, assignment, bankruptcy, pledge, attachment, charge or
encumbrance of any kind, and any attempt to so alienate, sell,
transfer, assign, pledge, attach, charge or otherwise encumber
any such amount, whether presently or thereafter payable, shall
be void.
6.3 Program Costs. The Company shall provide for all
benefits arising under this Program and for all costs, charges
and expenses relating to the ongoing administration thereof.
6.4 Severability of Provisions. If any of the provisions of
this Program shall be held invalid, the remainder of this Program
shall not be affected thereby.
6.5 Applicable Law. All questions pertaining to the
construction, validity and effect of the Program shall be
determined in accordance with the laws of the United States and
to the extent not preempted by such laws, by the laws of the
State of Delaware.
IN WITNESS WHEREOF, the Company has by its appropriate
officer signed this document, which sets forth the Program
adopted as of February 27, 1997, as amended through and including
March 6, 1997, and affixed its seal as of the 6th day of March,
1997, as amended as of March 6, 1997.
WITNESS: NETLIVE COMMUNICATIONS, INC.
/s/ Jodi Schwartz 3/6/97 By: /s/ Laurence Rosen
Title: Chief Executive Officer
NETLIVE COMMUNICATIONS, INC.
PERFORMANCE SHARE PROGRAM TRUST
This Trust Agreement made this 4 day of March, 1997, by and
between NetLive Communications, Inc. ("Company") and R. Andrew
Lee(the "Trustee").
WHEREAS, Company has adopted the NetLive Communications, Inc.
Performance Share Program as a nonqualified deferred compensation
plan;
WHEREAS, Company wishes to establish a trust (hereinafter
called "Trust") and to contribute to the Trust Company stock that
shall be held therein, until distributed to Plan Participants in
such manner and at such times as specified in the Plan;
WHEREAS, it is the intention of Company to tie performance of
the Participants' Accounts under this Trust to the performance of
the Company, which is, in turn, tied in significant part to the
performance of the key employees participating in the Plan;
NOW, THEREFORE, the parties do hereby establish the Trust and
agree that the Trust shall be comprised, held and disposed of as
follows:
Section 1. Establishment of Trust
(a) Company hereby deposits with the Trust in trust 300,000
shares of its common stock, which shall become the principal of the
Trust to be held, administered and disposed of by Trustee as
provided in this Trust Agreement.
(b) The Trust hereby established shall be irrevocable. It
shall not be subject to the claims of the Company's creditors, but
shall be maintained for the exclusive purpose of providing benefits
to Plan Participants.
(c) The Trust is not intended to be a grantor trust, but is
intended to be a taxable trust pursuant to Section 641 et seq. of
the Internal Revenue Code of 1986, as amended, and shall be
construed accordingly. The Trust is a funded trust and, as such,
it is intended that each Participant in respect of whom an Account
is maintained be taxed in accordance with Section 402(b) of the
said Code.
Section 2. Definitions
(a) "Account" means the separate account established and
maintained under the Fund with respect to each Participant to
provide a source of funds for the benefits payable by the Company
to, or with respect to, each such Participant under the Plan.
(b) "Change of Control" means a change of control of the
Company as defined in Article I, Section 1.3 of the Plan.
(c) "Company" means NetLive Communications, Inc. and any
successor thereto, or to the business thereof, by whatever form or
manner resulting.
(d) "Fund" means the stock, and any money and other property
held by the Trustee under this Agreement.
(e) "Participant" means a participant in the Plan.
(f) "Plan" means the NetLive Communications, Inc. Performance
Share Program.
(g) "Share" means common stock and/or preferred stock issued
by the Company.
(h) "Trust" means the trust provided for under this
Agreement.
(i) "Trustee" means the trustee of the Trust.
Section 3. Accounts
(a) At the time the Company allocates Shares contributed to
the Trust for a Participant, it shall notify the Trustee of such
fact and an Account shall be established by the Trustee under the
Fund with respect to such Participant and the amount so contributed
or directed to be allocated shall be credited to such Account. Any
subsequent contributions to the Trust with respect to the benefits
of such Participant and all earnings thereon also shall be credited
to such Account. Any taxes or other expenses paid with respect to
an Account shall be debited to that Account. The Company shall
provide the Trustee with such information or reports as are
necessary to credit contributions to the Account maintained with
respect to each Participant.
(b) The Trustee shall have responsibility for the maintenance
of Account records.
(c) Any benefits becoming payable under the Plan to a
Participant shall be paid form the Fund and charged against the
Account maintained with respect to the benefits of such
Participant. No payment shall be made form the Fund to or with
respect to a Participant to the extent that such payment would
exceed the balance then remaining in the Account maintained with
respect to the benefits of such Participant.
(d) Once established, an Account shall be maintained with
respect to the benefits of each Participant until it has been
liquidated through distribution to the Participant, or a
beneficiary thereof.
Section 4. Distributions to Plan
Participants and Their Beneficiaries
(a) Company shall deliver to Trustee a schedule (the
"Distribution Schedule") that indicates the distributions in
respect to each Plan participant, that provides instructions
acceptable to Trustee for determining what is to be distributed,
the form in which such amount is to be paid (as provided for or
available under the Plan), and the time of distribution. Except as
otherwise provided herein, Trustee shall make distributions to the
Plan Participants in accordance with such Distribution Schedule.
The Trustee shall make provision for the reporting and withholding
of any federal, state or local taxes that may be required to be
withheld with respect to the distribution of benefits pursuant to
the terms of the Plan.
(b) The entitlement of a Plan participant to benefits under
the Plan shall be determined by Company or such party as it shall
designate under the Plan, and any claim for such benefits shall be
considered and reviewed under the procedures set out in the Plan.
Section 5. Return to Company
Company shall have no right or power to direct Trustee to
return to Company or to divert to others any of the Trust assets
before all distribution of benefits have been made to Plan
Participants pursuant to the terms of the Plan. Any Shares
forfeited by a Participant when such Participant's service to the
Company is terminated, or upon occurrence of any other forfeiture
event set forth in the Participant's Award certificate, shall
revert to the Trust and shall not be returned to the Company. Such
forfeited Shares shall be available for future award to
Participants under the Plan.
Section 6. Investment Authority
(a) Trustee shall hold the Shares deposited in the Trust and
any dividends of Shares received by the Fund. All voting or other
rights associated with Shares held in the Fund shall be exercised
by Trustee or the person designated by Trustee, and shall in no
event be exercisable by or rest with Plan Participants or the
Company.
(b) Trustee shall reinvest any cash dividends on Shares as
Trustee deems appropriate.
Section 7. Disposition of Income
During the term of this Trust, all income received by the
Trust, net of expenses and taxes, shall be accumulated and
reinvested.
Section 8. Accounting by Trustee
Trustee shall keep accurate and detailed records of all
investments, receipts, disbursements, and all other transactions
required to be made, including such specific records as shall be
agreed upon in writing between Company and Trustee. Within 60 days
following the close of each calendar year and within 60 days after
the removal or resignation of Trustee, Trustee shall deliver to
Company a written account of its administration of the Trust during
such year or during the period from the close of the last preceding
year to the date of such removal or resignation, setting forth all
investments, receipts, disbursements and other transactions
effected by it, including a description of all securities and
investments purchased and sold with the cost or net proceeds of
such purchases or sales (accrued interest paid or receivable being
shown separately), and showing all cash, securities and other
property held in the trust at the end of such year or as of the
date of such removal or resignation, as the case may be.
Section 9. Responsibility of Trustee
(a) Trustee shall act with the care, skill, prudence and
diligence under the circumstances then prevailing that a prudent
person acting in like capacity and familiar with such matters would
use in the conduct of an enterprise of a like character and with
like aims, provided, however, that Trustee shall incur no liability
to any person for any action taken pursuant to a direction, request
or approval given by Company which is contemplated by, and in
conformity with, the terms of the Plan or this Trust and is given
in writing by Company. In the event of a dispute between Company
and a party, Trustee may apply to a court of competent jurisdiction
to resolve the dispute.
(b) If Trustee undertakes or defends any litigation arising
in connection with this Trust, Company agrees to indemnify Trustee
against Trustee's costs, expenses and liabilities (including,
without limitation, attorneys' fees and expenses) relating thereto
and to be primarily liable for such distributions. If Company does
not pay such costs, expenses and liabilities in a reasonably timely
manner, Trustee may obtain payment from the Trust, including
without limitation by disposing of any Shares in the Trust not
awarded to Participants.
(c) Trustee may consult with legal counsel (who may also be
counsel for Company generally) with respect to any of its duties or
obligations hereunder.
(d) Trustee may hire agents, accountants, actuaries,
investment advisors, financial consultants or other professionals
to assist it in performing any of its duties or obligations
hereunder.
(e) Trustee shall have, without exclusion, all powers
conferred on Trustees by applicable law, unless expressly provided
otherwise herein.
(f) Notwithstanding any powers granted to Trustee pursuant to
this Trust Agreement or to applicable law, Trustee shall not have
any power that could give this Trust the objective of carrying on
a business and dividing the gains therefrom, within the meaning of
section 301.7701-2 of the Procedure and Administrative Regulations
promulgated pursuant to the Internal Revenue Code.
Section 10. Compensation of Trustee
Company shall pay all administrative and Trustee's fees and
expenses. If not so paid, the fees and expenses shall be paid from
the Trust.
Section 11. Resignation and Removal of Trustee
(a) Trustee may resign at any time by written notice to
Company, which shall be effective 30 days after receipt of such
notice unless Company and Trustee agree otherwise.
(b) Trustee may be removed by the affirmative vote of
majority of the Board of Directors on 30 days notice or upon,
shorter notice accepted by Trustee.
(c) Upon a Change of Control, Trustee may not be removed by
Company for eighteen months.
(d) Upon resignation or removal of Trustee and appointment of
a successor Trustee, all assets shall subsequently be transferred
to the successor Trustee. The transfer shall be completed within
30 days after receipt of notice of resignation, removal or transfer
unless Company extends the time limit.
(e) If Trustee resigns or is removed, a successor shall be
appointed, in accordance with Section 12 hereof, by the effective
date of resignation or removal under paragraph(s) (a) or (b) of
this section. If no such appointment has been made, Trustee may
apply to a court of competent jurisdiction for appointment of a
successor or for instructions. All expenses of Trustee in
connection with the proceeding shall be allowed as administrative
expenses of the Trust.
Section 12.
Appointment of Successor
(a) If Trustee resigns [or is removed] in accordance with
Section 11(a) or (b) hereof, the Board of Directors may appoint any
third party, such as a bank trust department or other party that
may be granted corporate trustee powers under state law, or an
individual permitted to serve as trustee under state law, as a
successor to replace Trustee upon resignation or removal. The
appointment shall be effective when accepted in writing by the new
Trustee, who shall have all of the rights and powers of the former
Trustee, including ownership rights in the Trust Assets. The
former Trustee shall execute any instrument necessary or reasonably
requested by Company or the successor Trustee to evidence the
transfer.
(b) The successor Trustee need not examine the records and
acts of any prior Trustee and may retain or dispose of existing
Trust assets, subject to Sections 7 and 8 hereof. The successor
Trustee shall not be responsible for and Company shall indemnify
and defend the successor Trustee from any claim or liability
resulting from any action or inaction of any prior Trustee or from
any other past event, or any condition existing at the time it
becomes successor Trustee.
Section 13. Amendment
or Termination
(a) This Trust Agreement may be amended by a written
instrument executed by Trustee and Company, provided that no such
amendment shall conflict with the terms of the Plan or make the
Trust revocable.
(b) The Trust shall not terminate until the date on which
Plan Participants are not longer entitled to benefits pursuant to
the terms of the Plan. Upon termination of the Trust any assets
remaining in the Trust shall be returned to Company.
(c) Upon written approval of Participants entitled to
distribution of benefits pursuant to the terms of the Plan, Company
may terminate this Trust prior to the time all benefit
distributions under the Plan have been made. All assets in the
Trust at termination shall be returned to Company.
Section 14. Miscellaneous
(a) Any provision of this Trust Agreement prohibited by law
shall be ineffective to the extent of any such prohibition, without
invalidating the remaining provisions hereof.
(b) Benefits payable to Plan Participants under this Trust
Agreement may not be anticipated, assigned (either at law or in
equity), alienated, pledged, encumbered or subjected to attachment,
garnishment, levy, execution or other legal or equitable process.
(c) This Trust Agreement shall be governed by and construed
in accordance with the laws of Delaware.
Section 15. Effective Date
The effective date of this Trust Agreement shall be March 4,
1997.
IN WITNESS WHEREOF, the Company has by its authorized officer
signed this agreement and affixed its seal and the Trustee has by
its appropriate officer signed this Agreement and fixed its seal on
and as of the day and year written below.
WITNESS NETLIVE COMMUNICATIONS, INC.
/s/ Jodi Schwartz 3/5/97 By: /s/ Laurence Rosen
Title: Chief Executive Officer
WITNESS
/s/ Steve Harrell /s/ R. Andrew Lee
Trustee
