<PAGE> 1
As filed with the Securities and Exchange Commission on February 3, 2000
Securities Act File No. 333-77563
Investment Company Act File No. 811-09323
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
U.S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM N-2
<TABLE>
<S> <C>
[X] REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
[X] PRE-EFFECTIVE AMENDMENT NO. 4
[ ] POST-EFFECTIVE AMENDMENT NO.
AND/OR
[X] REGISTRATION STATEMENT UNDER THE
[X] INVESTMENT COMPANY ACT OF 1940
AMENDMENT NO. 4
</TABLE>
------------------------
NBCi
AUTOMATIC COMMON EXCHANGE SECURITY TRUST
(Exact Name of Registrant as Specified in Charter)
c/o GOLDMAN, SACHS & CO.
85 Broad Street
New York, New York 10004
(Address of Principal Executive Offices)
Registrant's Telephone Number, including Area Code: (212) 902-1000
KENNETH L. JOSSELYN, ESQ.
85 Broad Street
New York, New York 10004
(Name and Address of Agent for Service)
COPIES TO:
<TABLE>
<S> <C> <C>
Robert E. Buckholz, Jr., Esq. Bruce Alan Mann, Esq. Nora Gibson, Esq.
Sullivan & Cromwell P. Rupert Russell, Esq. Laura M. De Petr, Esq.
125 Broad Street Kristian E. Wiggert, Esq. Lora D. Blum, Esq.
New York, New York 10004 Brian D. Lewandowski, Esq. Brobeck, Phleger & Harrison, LLP
Morrison & Foerster LLP One Market
425 Market Street Spear Street Towers
San Francisco, California 94105 San Francisco, California 94105
</TABLE>
------------------------
APPROXIMATE DATE OF PROPOSED PUBLIC OFFERING:
As soon as practicable after the effective date of this Registration Statement.
If any securities being registered on this form will be offered on a
delayed or continuous basis in reliance on Rule 415 under the Securities Act of
1933, other than securities offered in connection with a dividend reinvestment
plan, check the following box. [ ]
It is proposed that this filing will become effective when declared
effective pursuant to section 8(c).
If appropriate, check the following box:
[ ] This amendment designates a new effective date for a previously filed
registration statement.
[ ] This form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act and the Securities Act
registration statement number of the earlier effective registration statement
for the same offering is 333- .
------------------------
CALCULATION OF REGISTRATION FEE UNDER THE SECURITIES ACT OF 1933
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
BEING REGISTERED REGISTERED UNIT(1) PRICE(1) REGISTRATION FEE (1)(2)
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
$ Trust Automatic Common
Exchange Securities............... 1,437,500 $91.25 $131,171,875 $34,629.38
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) under the Securities Act of 1933, as amended, based
upon the average of high and low prices of the Class A Common Stock on the
price of which the offering price per unit of the Securities will be based
as reported on The Nasdaq Market-National Market ("Nasdaq") on February 2,
2000.
(2) Registration fees in the total amount of $34,769.38 have been paid by the
Registrant as follows: (i) a registration fee of $2,780 was initially paid
for a proposed maximum aggregate offering price of $10,000,000 on May 3,
1999; (ii) an additional registration fee of $23,760 was subsequently paid
for an additional $90,000,000 aggregate offering price in connection with
the first amendment of this registration statement on January 14, 2000; and
(iii) an additional registration fee of $8,229.38 has been paid for an
additional $31,171,875 of Trust Automatic Commission Exchange Securities to
be registered pursuant to this the fourth amendment of this registration
statement.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 2
NBCI
AUTOMATIC COMMON EXCHANGE SECURITY TRUST
CROSS-REFERENCE SHEET
(PURSUANT TO RULE 481(A) UNDER THE SECURITIES ACT OF 1933)
PART A & B OF PROSPECTUS*
<TABLE>
<CAPTION>
ITEM
NUMBER CAPTION LOCATION IN PROSPECTUS
- ------ ---------------------------------------- ----------------------------------------
<C> <S> <C>
1. Outside Front Cover..................... Front Cover Page
2. Cover Pages; Other Offering
Information........................... Front Cover Page; Underwriting
3. Fee Table and Synopsis.................. Prospectus Summary
4. Financial Highlights.................... Not Applicable
5. Plan of Distribution.................... Front Cover Page; Prospectus Summary;
Underwriting
6. Selling Shareholders.................... Not Applicable
7. Use of Proceeds......................... Prospectus Summary-The Trust's
Investment Policies; Use of Proceeds;
Investment Objective and Policies
8. General Description of the Registrant... Front Cover Page; Prospectus Summary;
The Trust; Investment Objective and
Policies; Risk Factors
9. Management.............................. The Trust
10. Capital Stock, Long-Term Debt, and Other
Securities............................ Investment Objective and Policies;
Description of the Securities; Certain
Federal Income Tax Considerations
11. Defaults and Arrears on Senior
Securities............................ Not Applicable
12. Legal Proceedings....................... Not Applicable
13. Table of Contents of the Statement of
Additional Information................ Not Applicable
14. Cover Page.............................. Not Applicable
15. Table of Contents....................... Not Applicable
16. General Information and History......... The Trust
17. Investment Objective and Policies....... Investment Objective and Policies
18. Management.............................. The Trust
19. Control Persons and Principal Holders of
Securities............................ The Trust
20. Investment Advisory and Other
Services.............................. The Trust
21. Brokerage Allocation and Other
Practices............................. Investment Objective and Policies
22. Tax Status.............................. Certain Federal Income Tax
Considerations
23. Financial Statements.................... Statement of Assets and Liabilities
</TABLE>
- ---------------
* Pursuant to the General Instructions to Form N-2, all information required to
be set forth in Part B: Statement of Additional Information has been included
in Part A: The Prospectus. Information required to be included in Part C is
set forth under the appropriate item so numbered in Part C of this
Registration Statement.
<PAGE> 3
SUBJECT TO COMPLETION, DATED FEBRUARY 3, 2000
1,250,000 Securities
NBCI
AUTOMATIC COMMON EXCHANGE SECURITY TRUST
$ Trust Automatic Common Exchange Securities (TRACES(TM)/(SM))
(Subject to exchange into Shares of Class A Common Stock of NBC Internet, Inc.)
------------------------
The $ Trust Automatic Common Exchange Securities are a new series
of securities issued by the NBCi Automatic Common Exchange Security Trust. The
Trust will pay quarterly distributions of $ on each Security. On
February , 2003, the Trust will exchange each Security for either:
- Between 0. shares and one share of Class A Common Stock of NBC
Internet, Inc.,
- Cash equal to the value of those shares, or
- A combination of shares and cash.
The number of shares or amount of cash that will be delivered in exchange
for each Security will be based on the price of the Class A Common Stock during
the twenty business days before February , 2003.
Under the circumstances described in this prospectus, the shares or cash
may be delivered between February , 2003 and May , 2003 instead of on
February , 2003.
This is the first issuance of Securities by the Trust. As a result, there
is currently no public market for the Securities. The Trust will apply to list
the Securities on the New York Stock Exchange under the symbol "NIE". Trading
of the Securities on the New York Stock Exchange is expected to commence no
earlier than the opening of business on February 7, 2000.
The Class A Common Stock is currently traded on The Nasdaq Market-National
Market ("Nasdaq") and on the European Association of Securities Dealers
Automated Quotation System under the symbol "NBCi". The last reported sale price
of the Class A Common Stock on the Nasdaq on January 31, 2000, was $95.13 per
share. The Company is not affiliated with the Trust.
THE TRUST IS A NEWLY ORGANIZED, FINITE TERM CLOSED-END INVESTMENT COMPANY.
SHARES OF THIS TYPE OF FUND FREQUENTLY TRADE AT A DISCOUNT FROM NET ASSET VALUE.
THIS RISK IS SEPARATE FROM THE RISK THAT THE TRUST'S NET ASSET VALUE WILL FALL.
THE TRUST CANNOT PREDICT WHETHER THE SECURITIES WILL TRADE AT, BELOW OR ABOVE
NET ASSET VALUE. THE RISK OF PURCHASING INVESTMENTS IN A CLOSED-END COMPANY THAT
MIGHT TRADE AT A DISCOUNT MAY BE GREATER FOR INVESTORS WHO WISH TO SELL THEIR
INVESTMENTS SOON AFTER COMPLETION OF THIS OFFERING.
------------------------
This prospectus sets forth concisely information about the Trust that you
should know before investing. You are advised to read this prospectus and to
retain it for future reference. Additional information about the Trust has been
filed with the Securities and Exchange Commission and is available upon written
or oral request and without charge. See "Further Information".
------------------------
Consider carefully the "risk factors" beginning on page [ ] of
this prospectus.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY OTHER REGULATORY
BODY HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE ACCURACY
OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
------------------------
<TABLE>
<CAPTION>
PER SECURITY TOTAL
--------------- ---------------
<S> <C> <C>
Initial Public Offering Price............................... $ -- $ --
Sales Load.................................................. Not applicable Not applicable
Proceeds to the Trust....................................... $ -- $ --
</TABLE>
The Underwriters may, under certain circumstances, purchase up to an
additional 187,500 Securities from the Trust at the Initial Public Offering
Price.
The Underwriters expect to deliver the Securities against payment in New
York, New York on February , 2000.
GOLDMAN, SACHS & CO. SALOMON SMITH BARNEY
------------------------
PROSPECTUS DATED , 2000.
<PAGE> 4
PROSPECTUS SUMMARY
This summary is not a complete description of the Trust or the Securities.
It does not contain all the information that may be important to you. To
understand this offering fully, you must read this entire prospectus carefully,
including the Risk Factors beginning on page [ ].
This prospectus includes a Glossary, beginning on page [ ]. You
should refer to the Glossary if you wish to understand the terms used in this
prospectus in detail.
THE TRUST
The Trust is a newly organized trust that exists only to offer the
Securities. The Trust's only activities will be to issue the Securities and to
invest in the U.S. Treasury securities and stock purchase contracts described in
this prospectus.
THE TRUST'S INVESTMENT OBJECTIVE
The Trust's investment objective is to give the holder of each Security a
quarterly cash distribution of $ and, on February , 2003 (the
"Exchange Date"), between 0. shares and 1 share of Class A Common Stock
(or cash equal to the value of those shares). The number of shares, or amount of
cash, that a holder will receive in exchange for a single Security will vary,
depending on the average market price of the Class A Common Stock over the
twenty business days before the Exchange Date.
- If the average market price is less than $ but equal to or
greater than $ , the holder of each Security will receive the
number of shares of Class A Common Stock that has a value equal to
$ .
- If the average market price is equal to or greater than $ , the
holder of each Security will receive 0. shares of Class A Common
Stock.
- If the average market price is less than $ , the holder of each
Security will receive one share of Class A Common Stock.
This formula will be adjusted if the Company takes certain steps that combine,
split or dilute the value of the Class A Common Stock. If this formula would
require the Trust to deliver a fraction of a share of Class A Common Stock to
any holder, the Trust will instead deliver cash equal to the value of that
fraction of a share.
Because of this formula, the holders of the Securities will receive part of
any increase in the value of the Class A Common Stock above $ .
However, the holders of the Securities will not receive any increase in the
value of the Class A Common Stock unless that value rises higher than
$ . The holders will bear the entire amount of any decrease in the
value of the Class A Common Stock.
For more detail, please see "Investment Objective and Policies".
THE TRUST'S INVESTMENT POLICIES
To achieve its investment objective, the Trust will invest all the proceeds
of the Securities in:
- "Stripped" U.S. Treasury securities that will mature during each quarter
through February , 2003. The Trust will use the payments it receives as
these U.S. Treasury securities mature to pay the quarterly distributions
on the Securities.
- A Stock purchase contract (the "Contract") with a stockholder of the
Company (the "Seller"). The Seller will be required to deliver shares of
Class A Common Stock to the Trust on the Exchange Date. Alternatively,
the Seller may choose to deliver the equivalent amount of cash. If the
Seller performs its obligations, the Contract will provide the Trust with
the shares of Class A Common Stock or cash that the Trust must deliver to
the holders of the Securities on the Exchange Date.
The Seller has the right to extend the Exchange Date under its Contract to
May , 2003. If the Seller extends the Exchange Date under the Contract, the
Seller will not be required to deliver the shares of Class A
2
<PAGE> 5
Common Stock or cash under the Contract until May , 2003. However, the Seller
can then accelerate the delivery of shares or cash to any date between February
, 2003 and May , 2003. If the Seller extends or accelerates the
Exchange Date under the Contract, the holders of the Securities will not receive
the shares or cash until the extended or accelerated Exchange Date, and the
number of shares or amount of cash included in that delivery would be calculated
as of the extended or accelerated Exchange Date. However, the holders of the
Securities would receive an additional, partial cash distribution on the
Securities for the period of the delay.
In some circumstances, the holders of the Securities may receive cash or
other common equity securities instead of or in addition to the Class A Common
Stock. For more detail, please see " -- The Securities -- Modifications to
Delivery Requirements".
The Seller will pledge collateral to the Trust to secure the Seller's
obligations under the Contract. The collateral will initially be the shares of
Class A Common Stock that the Seller must deliver under the Contract. However,
if the Seller complies with its obligations under the Contract and its pledge,
the Seller may pledge U.S. Treasury securities instead of the shares of Class A
Common Stock.
The Trust will not change its investments, even if the value of the
Contract or the Class A Common Stock falls significantly or the financial
condition of the Company suffers. Furthermore, because the Trust is a grantor
trust for purposes of the U.S. federal tax laws, the trustees of the Trust will
not have the power to change the Trust's investments.
For more detail, please see "Investment Objective and Policies".
THE OFFERING
The Trust is offering 1,250,000 Securities to the public at a purchase
price of $ per Security. This price is equal to the last reported sale price
of the Class A Common Stock on the date of this prospectus. The Securities are
being offered through Goldman, Sachs & Co. ("Goldman Sachs"), 85 Broad Street,
New York, New York 10004 and Salomon Smith Barney, Inc. ("Salomon Smith Barney")
388 Greenwich Street, New York, New York 10003 (together the "Underwriters" and
each an "Underwriter").
In addition, the Trust has granted the Underwriters an option to purchase
up to 187,500 additional Securities. These Securities may be used only to cover
over-allotments. For more detail, please see "Underwriting".
THE SECURITIES
The Trust will pass through to the holders of the Securities all payments
that it receives on the U.S. Treasury securities that it purchases with the
proceeds of the Securities. Similarly, the Trust will deliver to the holders of
the Securities all shares of Class A Common Stock, cash or other securities,
that it receives from the Seller under the Contract.
DISTRIBUTIONS. The holder of each Security will receive a distribution of
$ each quarter. The Trust will pay these distributions on each February
, May , August and November . However, if the Trust
would be required to make a distribution on a Saturday, Sunday or legal holiday,
the Trust will pay that distribution on the next business day instead. The Trust
will make each payment to the holder of the Security whose name appears in the
Trust's books on the business day before the applicable payment date. The first
distribution will be payable on May , 2000 to holders of record on the
previous business day.
The only source of cash for the quarterly distributions on the Securities
will be the cash received from the U.S. Treasury securities purchased by the
Trust with the proceeds of the Securities. Part of each year's distributions on
the Securities will be treated as a return of capital under the U.S. federal
income tax laws. For more detail, please see "Description of
Securities -- Distributions -- Tax Treatment of Distributions" and "Certain
Federal Income Tax Considerations".
3
<PAGE> 6
EXCHANGE FOR CLASS A COMMON STOCK. On the Exchange Date, each Security
will be exchanged automatically for between 0. shares and one share of
Class A Common Stock, as determined by the formula described under " -- The
Trust's Investment Objective". However, if the Seller delivers cash instead of
Class A Common Stock under the Contract, the holders of the Securities will
receive cash instead of the Class A Common Stock. The amount of cash will be
based on the average market price of the Class A Common Stock during the twenty
business days before the cash is delivered. The number of shares of Class A
Common Stock or amount of cash that will be delivered in exchange for the
Securities will be adjusted if the Company takes certain actions that have the
effect of combining, splitting or diluting the value of the Class A Common
Stock.
MODIFICATIONS TO DELIVERY REQUIREMENTS. In some circumstances, the holders
of the Securities may receive cash, other common equity securities or other
property instead of or in addition to the Class A Common Stock, or the holders
of the Securities may receive the Class A Common Stock, cash or other securities
on a date other than February , 2003:
- The Exchange Date for the shares and cash may be extended and then
accelerated by the Seller under the Contract as described above. In this
case, the holders of the Securities would not receive the shares and cash
until the extended or accelerated date, but the holders would receive an
additional, partial cash distribution on the Securities for the period of
delay. For further detail, please see "Investment Objective and
Policies -- The Contract -- Extension and Acceleration of the Exchange
Date at the Option of the Seller".
- The Seller may elect to deliver cash instead of Class A Common Stock
under the Contract. If the Seller decides to deliver cash instead of
Class A Common Stock under the Contract, it may do so in connection with
a "rollover offering" -- that is, an offering of securities that
refinances the Securities. If the Seller completes a rollover offering,
the Seller will deliver the cash under the Contract by the fifth business
day after completing that offering. In this case, the holders of the
Securities would not receive the cash payable on exchange of the
Securities until the Seller pays it to the Trust. If the Seller elects to
carry out a rollover offering, the Trust must give notice of the Seller's
election to all holders of the Securities, no less than 30 days and no
more than 90 days prior to the Exchange Date as then in effect. For
further detail, please see "Investment Objective and Policies -- The
Contract -- Cash Settlement; Rollover Offerings".
- If the Company merges with another entity, the Company is liquidated, or
certain similar events occur, holders of Securities may receive other
common equity securities, cash or other property equal to the value of
the other consideration received by the Company's stockholders in that
transaction, rather than shares of Class A Common Stock. If at least 30%
of the consideration received by the Company's stockholders in the merger
consists of cash or cash equivalents, then the Seller will be required to
deliver any consideration other than common equity securities to the
Trust within five business days after the Seller receives that
consideration. On the Exchange Date, the Seller would be required to
deliver the common equity securities included in the merger
consideration. In this case, the holders of the Securities would receive
cash or other property representing part of the merger consideration on a
date before the scheduled Exchange Date, and common equity securities
representing the rest of the merger consideration on the Exchange Date.
Instead of delivering any non-cash consideration at the time of the merger,
the Seller may choose to deliver cash equal to the value of those assets.
Similarly, instead of delivering the common equity securities on the Exchange
Date, the Seller may choose to deliver cash equal to the value of those
securities.
For further detail, please see "Investment Objective and Policies -- The
Contract -- Reorganization Events".
- If the Company declares a dividend consisting of the shares of common
stock of another issuer, the Seller will be required to deliver to the
Trust the shares received in the dividend, together with the Class A
Common Stock. In this case, the holders of Securities will receive both
shares of Class A
4
<PAGE> 7
Common Stock and shares of the other issuer, or cash equal to the value
of those shares. For further detail, please see "Investment Objective and
Policies -- The Contract -- Spin-Off Distributions".
- If the Seller defaults under the Contract or its collateral arrangements,
the Contract would be accelerated. In this case, the holder of each
Security would then receive an early distribution of the shares of Class
A Common Stock, cash or other common equity securities, instead of
receiving the Class A Common Stock, cash or other securities that would
otherwise be delivered on the Exchange Date. For further detail, please
see "Investment Objective and Policies -- The Contract -- Collateral
Arrangements; Acceleration Upon Default By the Seller".
For more detail, please see "Investment Objective and Policies".
VOTING RIGHTS. Holders will have the right to vote on changes to the terms
of the Securities, on the replacement of the trustees of the Trust and the
Trust's custodian, paying agent, transfer agent, registrar and other agents, and
on other matters affecting the Trust, as described below under the caption
"Description of Securities". However, holders of the Securities will not have
any voting rights with respect to the Class A Common Stock until they actually
receive shares of Class A Common Stock in exchange for the Securities. For more
detail, please see "Description of Securities -- Voting".
LISTING. The Trust will apply to list the Securities on the New York Stock
Exchange (the "NYSE") under the symbol "NIE". Trading of the Securities on the
New York Stock Exchange is expected to commence no earlier than the opening of
business on February 7, 2000.
THE COMPANY
The Company is an integrated Internet media company that combines portal,
community and e-commerce services designed to deliver a comprehensive,
next-generation on-line experience to a global audience. The Company delivers
enhanced branded services and content with a growing emphasis on services that
take advantage of Internet ubiquity and broadband access. The Company integrates
fast-growing and premier assets such as Snap.com, Xoom.com, NBC.com,
VideoSeeker.com and NBC-IN.com and content for AccessHollywood.com. It combines
the NBC media brand and related content with the complementary portal and
navigation services of Snap.com and community and direct e-commerce services of
Xoom.com to deliver a comprehensive, entertaining and compelling Internet
experience to a broad audience. The Company believes its core services will
provide the foundation for a next-generation media company whose e-commerce and
community orientation will reach a diverse user base through a variety of
interactive media including broadcast and cable television, radio and the
Internet.
The Company has prepared a prospectus that describes the Company and the
Class A Common Stock (the "Company Prospectus"). The Company Prospectus is
attached as Appendix A to this prospectus. The Company is not affiliated with
the Trust and will not receive any of the proceeds from the sale of the
Securities.
CERTAIN FEDERAL INCOME TAX CONSIDERATIONS
The Trust will be treated as a grantor trust under the U.S. federal income
tax laws. This means that under these laws, each holder will be treated as if it
owned directly its proportionate share of the assets held by the Trust.
Similarly, income and original issue discount received by the Trust will
generally be treated as income of the holders.
Under the U.S. federal income tax laws, the U.S. Treasury securities held
by the Trust will be treated as having "original issue discount" that will
accrue over the term of the U.S. Treasury securities. However, when the Trust
actually receives cash on these U.S. Treasury securities, these cash payments
will not be included in the holders' income. Instead, these payments will reduce
the holders' aggregate tax basis in the Securities. A holder will have taxable
gain or loss if the Trust receives cash instead of Class A Common Stock.
Holders should be aware that the Trust's assets could be characterized
differently under the federal income tax laws. Other characterizations could
require holders to include more interest in income than they
5
<PAGE> 8
would under the analysis outlined above. For more detail, please see "Certain
Federal Income Tax Considerations".
RISK FACTORS
An investment in the Securities involves risk. Some of the risks of an
investment in the Securities are described under "Risk Factors", beginning on
page [ ]. These risks include the following:
- The Trust will not dispose of the Contract even if the price of the Class
A Common Stock falls significantly or the financial condition of the
Company suffers. The holders will bear the entire amount of any decrease
in the value of the Class A Common Stock.
- Similarly, the Trust will not dispose of the U.S. Treasury securities
before they mature or the Trust terminates, whichever comes first, even
if their value falls significantly.
- If the price of Class A Common Stock rises, a holder of a Security will
not receive all of this increase in value. Holders will not receive any
of this increase if the average market price of the Class A Common Stock
at the Exchange Date is below $ . Holders will receive only
% of any increase in the value of the Class A Common Stock over
$ . On the other hand, holders of Securities will bear all of
any decrease in the value of the Class A Common Stock.
- The Company has never paid a dividend on the Class A Common Stock. The
distributions on the Securities will remain fixed. As a result, if the
Company were to begin paying dividends, the distributions on the
Securities may then be lower than the dividends paid on the Class A
Common Stock.
- The number of shares of Class A Common Stock or amount of cash that
holders may receive on the Exchange Date will be adjusted if the Company
takes certain actions that have the effect of combining, splitting or
diluting the value of the Class A Common Stock. The number of shares to
be received by holders may not be adjusted for other events that may
adversely affect the price of the Class A Common Stock, such as offerings
of Class A Common Stock for cash or in connection with acquisitions.
- The only assets held by the Trust will be the U.S. Treasury securities
and the Contract. An investment in the Trust will be riskier than an
investment in an investment company with diversified investments.
- The trading prices of the Securities in the secondary market will be
directly affected by the trading prices of the Class A Common Stock in
the secondary market. The trading prices of the Class A Common Stock will
be influenced by the Company's operating results and prospects and by
economic, financial and other factors and market conditions. The trading
prices of the Securities will also be affected by fluctuations in
interest rates and other factors that are difficult to predict and beyond
the Trust's control.
- There can be no assurance that a secondary market will develop for the
Securities. If a secondary market does develop, there can be no assurance
that it will provide the holders with liquidity for their investment or
that it will continue for the life of the Securities.
- Holders of the Securities will not be entitled to any rights with respect
to the Class A Common Stock unless they actually receive Class A Common
Stock in exchange for the Securities. For example, holders of Securities
will not be entitled to vote the shares of Class A Common Stock or
receive dividends or other distributions.
FEES AND EXPENSES
UNDERWRITERS' COMPENSATION. The Seller will compensate the Underwriters
for the offering of the Securities because a significant portion of the proceeds
of the sale of the Securities will be used by the Trust to purchase the Contract
from the Seller. The Underwriting Agreement requires the Seller to pay the
Underwriters $ for each Security sold in the offering.
6
<PAGE> 9
ORGANIZATIONAL AND OFFERING COSTS. The Trust's organizational costs will
be approximately $10,000. The Trust's costs in connection with the offering of
the Securities will be approximately $ . The Seller and the
Underwriters will pay these organizational and offering costs.
COSTS OF OTHER SERVICE PROVIDERS. At the closing of the offering of the
Securities, the Seller and the Underwriters will make a one-time, up-front
payment to the Trust's administrator, custodian, paying agent and trustees as
compensation for their services to the Trust. The Seller and the Underwriters
will also pay the Trust's administrator $ to cover the Trust's
anticipated expenses. The Seller and the Underwriters will pay any ongoing
expenses of the Trust above these estimated amounts and the Seller and the
Underwriters will reimburse the Trust for any amounts it may pay as
indemnification to the Trust's administrator, custodian, paying agent or any
trustee. If the Seller and the Underwriters do not pay these expenses and
obligations, the Trust will have to pay them, and this will reduce the amount
available to distribute to holders.
DISCLOSURE REQUIRED BY THE SECURITIES AND EXCHANGE COMMISSION. The
Securities and Exchange Commission (the "SEC") requires the Trust to present its
expenses in the following format. The SEC has stated that it intends this
requirement to assist investors in understanding the various costs and expenses
that an investor in the Securities will bear directly or indirectly.
Because the Trust will not bear any fees or expenses, investors will not
bear any expenses directly.
<TABLE>
<S> <C>
INVESTOR TRANSACTION EXPENSES
Maximum Sales Load (as a percentage of Initial Public
Offering Price)........................................ --%(a)
Dividend Reinvestment and Cash Purchase Plan Fees......... N/A
ANNUAL EXPENSES (AS A PERCENTAGE OF NET ASSETS)
Management Fees(b)........................................ 0%
Other Expenses(c)......................................... 0%
---
Total Annual Expenses(c).......................... 0%
===
</TABLE>
- ---------------
(a) See "Underwriting".
(b) See "The Trust". The Trust will be internally managed; consequently, there
will be no separate investment advisory fee paid by the Trust. The Chase
Manhattan Bank will act as the administrator of the Trust.
(c) The organizational costs of the Trust in the amount of $10,000, compensation
payable to the Trust's administrator, custodian, paying agent and trustees
in the amount of $ and approximately $ in costs in
connection with the offering of the Securities will be paid by the Seller
and the Underwriters. Anticipated ongoing expenses of the Trust over the
term of the Trust, estimated to be approximately $ , as well as any
unanticipated operating expenses of the Trust, will also be paid by the
Seller and the Underwriters. See "The Trust -- Expenses of the Trust".
Absent these arrangements, the Trust's "Other Expenses" and "Total Annual
Expenses" would be approximately % of the Trust's net assets.
The SEC also requires that closed-end investment companies present an
illustration of cumulative expenses (both direct and indirect) that an investor
would bear. The example must factor in the applicable Sales Load and must assume
that investors will receive a 5% annual return and will reinvest all
distributions at net asset value. PLEASE NOTE THAT THE ASSUMPTION OF A 5% ANNUAL
RETURN DOES NOT ACCURATELY REFLECT THE TRUST'S TERMS. SEE "INVESTMENT OBJECTIVE
AND POLICIES". ALSO, THE TRUST DOES NOT PERMIT HOLDERS TO REINVEST THE
DISTRIBUTIONS ON THE SECURITIES.
<TABLE>
<CAPTION>
EXAMPLE 1 YEAR 3 YEARS
------- ------- -------
<S> <C> <C>
You would bear the following expenses on a $10,000
investment, including the applicable Sales Load of $ and
assuming (1) no annual expenses and (2) a 5% annual return
throughout the period....................................... $ $
</TABLE>
7
<PAGE> 10
THE TRUST
CREATION AND FORM OF THE TRUST
The Trust is a newly organized New York trust. It is a registered,
non-diversified, closed-end management investment company under the Investment
Company Act of 1940 (the "Investment Company Act"). The Trust was formed on May
3, 1999 under a trust agreement, which was amended and restated as of February
, 2000 to reflect the terms of this offering (the "Trust Agreement"). The
Trust's address is 85 Broad Street, New York, New York 10004 (telephone no.
(212) 902-1000).
THE TRUSTEES
The Trust will be internally managed by three trustees (the "Trustees").
One of the Trustees will be designated as the Trust's "Managing Trustee". The
Trustees will be responsible for the Trust's general management and operations.
However, the Trustees will not have the power to vary the investments held by
the Trust. See "Investment Objective and Policies". The Seller and the
Underwriters will pay each Trustee, on behalf of the Trust, a one-time, up-front
fee to cover the Trustee's annual fee and anticipated out-of-pocket expenses.
The Managing Trustee will also receive an additional up-front fee for serving in
that capacity.
Goldman Sachs, as the Trust's sponsor and the initial holder of the Trust's
Securities, has elected three individuals to serve as the Trustees. Their names,
ages, addresses and titles, their principal occupations during the past five
years and their compensation are as follows:
<TABLE>
<CAPTION>
PRINCIPAL OCCUPATION
DURING
NAME, AGE AND ADDRESS TITLE PAST FIVE YEARS COMPENSATION
--------------------- ---------------- ---------------------- ------------
<S> <C> <C> <C>
Donald J. Puglisi, 54 Managing Trustee Professor of Finance $
Department of Finance University of Delaware
University of Delaware
Newark, DE 19716
William R. Latham, III, 55 Trustee Professor of Economics $
Department of Economics University of Delaware
University of Delaware
Newark, DE 19716
James B. O'Neill, 60 Trustee Professor of Economics $
Center for Economic University of Delaware
Education & Entrepreneurship
University of Delaware
Newark, DE 19716
</TABLE>
None of the Trustees is an "interested person" of the Trust as defined in
the Investment Company Act. Furthermore, none of the Trustees is a director,
officer or employee of any Underwriter or of the Trust's administrator, or of
any affiliate of any Underwriter or the Trust's administrator. Each of the
Trustees serves as a trustee of other similar trusts, but none of the Trustees
receives any compensation for serving as a trustee or director of any other
affiliated investment company.
OTHER SERVICE PROVIDERS
ADMINISTRATOR. The Trust's day-to-day affairs will be managed by The Chase
Manhattan Bank as Administrator under an Administration Agreement, dated as of
February , 2000 (the "Administration Agreement"). Under the Administration
Agreement, the Trustees have delegated most of their operational duties to the
Administrator, including the duties to:
- receive and pay invoices for expenses incurred by the Trust;
- with the approval of the Trustees, engage legal and other professional
advisors (other than the independent public accountants for the Trust);
8
<PAGE> 11
- instruct the Trust's paying agent to pay the distributions on the
Securities;
- prepare, mail, file and publish all notices, proxies, reports, tax
returns and other documents for the Trust, or direct the Trust's paying
agent to do so, and keep the Trust's books and records;
- select and engage an independent investment banking firm (after
consultation with the Seller), when the Trust is required to do so under
the Contract;
- at the direction of the Trustees, institute and prosecute legal and other
appropriate proceedings to enforce the Trust's rights and remedies, but
the Administrator is required to do so only if it receives any indemnity
that it requests; and
- make all necessary arrangements for meetings of the Trustees and any
meetings of holders.
The Administrator will not select the independent public accountants for
the Trust. The Administrator also will not sell any of the Trust's assets, or
permit any other agent of the Trust to do so, except when the Contract requires
the Trust to make a delivery, when the Trust is required to sell fractional
shares, when the collateral agreement securing the Contract requires the Trust
to sell collateral posted by the Seller, and when the Trust terminates.
CUSTODIAN. The Trust's assets will be held by The Chase Manhattan Bank as
the Trust's custodian (the "Custodian") under a Custodian Agreement, dated as of
February , 2000 (the "Custodian Agreement").
COLLATERAL AGENT. The Custodian will also act as collateral agent (the
"Collateral Agent") under the collateral agreement among the Collateral Agent,
the Trust and the Seller (the "Collateral Agreement"). The Collateral Agent will
hold a perfected security interest in the Class A Common Stock and U.S.
Government obligations or other assets pledged by the Seller under the
Collateral Agreement. If the Seller defaults under the Contract or Collateral
Agreement, it will be the Collateral Agent that sells the collateral posted by
the Seller and pays the proceeds of that sale to the Custodian for distribution
to the holders of the Securities.
PAYING AGENT. ChaseMellon Shareholder Services, L.L.C. will serve as the
transfer agent, registrar and paying agent (the "Paying Agent") for the
Securities under a Paying Agent Agreement, dated as of February , 2000 (the
"Paying Agent Agreement").
OTHER INFORMATION CONCERNING THE TRUST'S AGENTS. The Administrator, the
Custodian, the Collateral Agent and the Paying Agent each have the right to
resign at any time on 60 days' notice to the Trust. The Trustees have the right
to remove any of these agents of the Trust at any time on 60 days' notice or
immediately if the agent defaults under the applicable agreement or the
Investment Company Act, suffers a bankruptcy, merges without the Trust's
consent, or under several other circumstances. In order to ensure that all the
agents of the Trust are the same financial institution or affiliate financial
institutions, if any of these agents resigns or is removed, the appointment of
each of the other agents automatically terminates. However, no resignation or
removal of any of these agents will be effective until a successor is appointed.
If any of these agents resigns or is removed, the Trustees are required to
appoint a successor with the qualifications specified in the Trust Agreement.
Except for their respective roles as Administrator, Custodian and
Collateral Agent and as Paying Agent, The Chase Manhattan Bank and ChaseMellon
Shareholder Services, L.L.C. have no other affiliation with, and are not engaged
in any other transactions with, the Trust.
INDEMNIFICATION
The Trust will indemnify each Trustee, the Administrator, the Custodian,
the Collateral Agent and the Paying Agent against any liabilities or costs
(including the costs of defending against any liability) that it may incur in
acting in that capacity, except for willful misfeasance, bad faith, gross
negligence or reckless disregard of their respective duties or where applicable
law prohibits that indemnification. The Seller and the Underwriters have agreed
to reimburse the Trust for any amounts it may be required to pay under these
indemnifications. If the Seller and the Underwriters do not pay these amounts,
the Trust will have to pay them, and this will reduce the amount available to
distribute to holders.
9
<PAGE> 12
EXPENSES OF THE TRUST
At the closing of the offering of the Securities, the Seller and the
Underwriters will pay to the Administrator, the Custodian, the Collateral Agent
and the Paying Agent a one-time, up-front payment of $ to cover their
fees and the Trustees' compensation described above. The Seller and the
Underwriters will also pay the Administrator a one-time, up-front payment of
$ to cover the Trust's anticipated expenses. The anticipated Trust
expenses to be paid by the Administrator out of this amount include, among other
things:
- expenses for legal and independent accountants' services;
- costs of printing proxies, Securities certificates and holder reports;
and
- fidelity bond coverage for the Trustee.
In addition, the Seller and the Underwriters will pay the costs of
organizing the Trust in the amount of $ and estimated costs in
connection with the initial registration and public offering of the Securities
in the amount of $ .
The amount that the Seller and the Underwriters will pay to the
Administrator to cover the Trust's ongoing expenses was determined based on
estimates made in good faith on the basis of information currently available to
the Trust, including estimates furnished by the Trust's agents. It is possible,
however, that the actual operating expenses of the Trust will be substantially
more than this amount. The Seller and the Underwriters have agreed to pay any
excess expenses beyond this amount. If the Seller and the Underwriters do not
pay those excess expenses, the Trust will have to pay them, and this will reduce
the amount available to distribute to holders.
TRUST TERMINATION
The Trust will terminate automatically ten business days after the final
Exchange Date. However, if the Contract is accelerated, then the Trust will
terminate 10 business days after the Class A Common Stock, cash or other common
equity securities required to be delivered under the Contract are delivered. If
the Trust terminates before all the distributions on the Securities have been
paid, the Trust's Administrator will sell any U.S. Treasury securities then held
in the Trust and distribute the proceeds pro rata to the holders of the
Securities, together with the shares or cash delivered under the Contract.
VALUATION FOR INVESTMENT COMPANY ACT PURPOSES
In calculating the Trust's net asset value as required by the Investment
Company Act, the Trust Agreement provides that (i) the U.S. Treasury securities
held by the Trust 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 for the Contract, or any portion of the Contract
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
comparable terms, or if such a bid quotation is not available, as determined in
good faith by the Trustees.
INVESTMENT COMPANY ACT EXEMPTION
The SEC has issued an order that exempts the Trust from the requirements of
Section 12(d)(1) of the Investment Company Act that restrict the amount of
Securities that registered investment companies could otherwise own.
Accordingly, registered investment companies may hold Securities in excess of
the limits imposed by Sections 12(d)(1)(A)(i) and 12(d)(1)(C) of the Investment
Company Act. However, any such investment company will be required to vote its
Securities in proportion to the votes of all other holders.
10
<PAGE> 13
USE OF PROCEEDS
The net proceeds of this offering will be used immediately upon the closing
of this offering to:
- purchase a portfolio of stripped U.S. Treasury securities with face
amounts and maturities corresponding to the quarterly distributions
payable with respect to the Securities; and
- pay the purchase price to the Seller under the Contract.
INVESTMENT OBJECTIVE AND POLICIES
This prospectus includes a Glossary that states the definitions given to
some of the capitalized terms used in this prospectus in the Contract, the Trust
Agreement and the Collateral Agreement. You should refer to the Glossary if you
wish to understand the terms used in this prospectus in detail. Some of these
definitions are summarized in the descriptions below.
INVESTMENT OBJECTIVE, POLICIES AND RESTRICTIONS; FUNDAMENTAL POLICIES
The Trust's investment objective is to give the holder of each Security a
quarterly cash distribution of $ and, on the Exchange Date, between
0. shares and 1 share of Class A Common Stock (or cash equal to the
value of those shares). The number of shares, or amount of cash, that a holder
will receive in exchange for a single Security will vary, depending on the
average market price of the Class A Common Stock over the twenty business days
before the Exchange Date. The value of the Class A Common Stock (or cash or
Marketable Securities received in lieu of Class A Common Stock) that will be
received by a holder under the Securities may be more or less than the amount
the holder paid for the Securities.
To achieve its investment objective, the Trust will use the proceeds of the
Securities to buy and hold:
- a portfolio of stripped U.S. Treasury securities that will mature during
each quarter through February , 2003; and
- the Contract.
The Trust has adopted the following fundamental policies:
- the Trust will invest at least 70% of its total assets in the Contract;
- the Contract may not be disposed of during the term of the Trust;
- the U.S. Treasury securities held by the Trust may not be disposed of
before the earliest of their respective maturities, the occurrence of a
Reorganization Event where the consideration does not include any
Marketable Securities, a default by the Seller under the Contract, and
the termination of the Trust; and
- the Trust may not purchase any securities or instruments other than the
U.S. Treasury securities, the Contract and the Class A Common Stock or
other assets received pursuant to the Contract and, for cash management
purposes, the short-term obligations of the U.S. Government described
under "-- Temporary Investments" below; issue any securities or
instruments except for the Securities; make short sales or purchases on
margin; write put or call options; borrow money; underwrite securities;
purchase or sell real estate, commodities or commodities contracts; make
loans (other than the purchase of stripped U.S. Treasury securities as
described in this prospectus); or take any action that would or could
cause the Trust not to be a "grantor trust" for purposes of the U.S.
federal income tax laws.
The foregoing investment objective and policies are fundamental policies of
the Trust that may not be changed without the approval of a majority of the
Trust's outstanding Securities. A "majority of the Trust's outstanding
Securities" means the lesser of (i) 67% of the Securities represented at a
meeting at which more than 50% of the outstanding Securities are represented,
and (ii) more than 50% of the outstanding Securities.
11
<PAGE> 14
Because of the foregoing limitations, the Trust's investments will be
concentrated in the Internet industry, which is the industry in which the
Company operates. The Trust is not permitted to purchase restricted securities.
THE COMPANY AND THE COMMON STOCK
The Company is an integrated Internet media company that combines portal,
community and e-commerce services designed to deliver a comprehensive,
next-generation on-line experience to a global audience. The Company delivers
enhanced branded services and content with a growing emphasis on services that
take advantage of Internet ubiquity and broadband access. The Company integrates
fast-growing and premier assets such as Snap.com, Xoom.com, NBC.com,
VideoSeeker.com and NBC-IN.com and content from AccessHollywood.com. It combines
the NBC media brand and related content with the complementary portal and
navigation services of Snap.com and community and direct e-commerce services of
Xoom.com to deliver a comprehensive, entertaining and compelling Internet
experience to a broad audience. The Company believes its core services will
provide the foundation for a next-generation media company whose e-commerce and
community orientation will reach a diverse user base through a variety of
interactive media including broadcast and cable television, radio and the
Internet.
The shares of Class A Common Stock have been traded on the Nasdaq and on
the European Association of Securities Dealers Automated Quotation System under
the symbol "NBCI" since November 30, 1999. The following table sets forth, for
the calendar quarters indicated, the reported high and low sales prices of the
shares of Class A Common Stock on Nasdaq. As of January 31, 2000, there were
358 record holders of the Class A Common Stock, including The Depository Trust
Company, which holds Class A Common Stock on behalf of an indeterminate number
of beneficial owners.
<TABLE>
<CAPTION>
HIGH LOW
-------- --------
<S> <C> <C>
1999
Fourth Quarter (from November 30, 1999).................... $ 95.00 $59.00
2000
First Quarter (through January 31, 2000)................. $106.13 $69.50
</TABLE>
Holders will not be entitled to any rights with respect to the Class A
Common Stock (including voting rights and rights to receive dividends or other
distributions on the Class A Common Stock) unless they actually receive shares
of Class A Common Stock in exchange for the Securities.
Please refer to the attached Company Prospectus, dated January 12, 2000
(attached as Appendix A hereto), which describes the Company and the Class A
Common Stock. The Company is not affiliated with the Trust and will not receive
any of the proceeds from the sale of the Securities. The Company Prospectus
relates to an aggregate of 1,250,000 shares of Class A Common Stock (or up to
1,437,500 shares if the Underwriters exercise their over-allotment option).
Simultaneously with this offering of Class A Common Stock, the Seller will be
selling shares of Class A Common Stock.
THE CONTRACT
The Trust will enter into a Contract with the Seller obligating the Seller
to deliver to the Trust on the Exchange Date a number of shares of Class A
Common Stock equal to the product of the Exchange Rate (as defined below) times
the initial number of shares of Class A Common Stock covered by the Contract.
The aggregate initial number of shares of Class A Common Stock under the
Contract will equal the aggregate number of Securities offered by this
prospectus (and will be increased if the Underwriters exercise their over-
allotment option).
The aggregate purchase price that the Trust will pay under the Contract
will be $ . The Trust will pay this purchase price on the closing date
of this offering (or, for the portion of the Contract relating to the Securities
to be sold under the Underwriters' over-allotment option, on the closing date
for the exercise of that option). This purchase price was arrived at by
arm's-length negotiation between the Trust and the Seller,
12
<PAGE> 15
taking into consideration factors including the price, the expected dividend
level and volatility of the Class A Common Stock, current interest rates, the
term of the Contract, current market volatility generally, the collateral
pledged by the Seller, the value of other similar instruments and the costs and
anticipated proceeds of the offering of the Securities.
The Contract provides that if the Seller delivers Securities to the Trust
on or before the Exchange Date, the Seller's obligation to deliver Class A
Common Stock (or cash) will be proportionately reduced. The delivery of
Securities in partial or complete satisfaction of the Seller's obligations will
not, however, affect the amount of Class A Common Stock or cash that will be
received by the holder of each Security that remains outstanding on the Exchange
Date.
All matters relating to the administration of the Contract will be the
responsibility of either the Administrator or the Custodian.
THE EXCHANGE RATE. The "Exchange Rate" will be calculated by a formula
based on the "Average Market Price" of the Class A Common Stock on the Exchange
Date:
- If the Average Market Price is less than $ (the "Appreciation
Threshold Price") but equal to or greater than $ (the "Initial
Price"), the Exchange Rate will be the number of shares of Class A Common
Stock having a value (determined at the Average Market Price) equal to
the Initial Price.
- If the Average Market Price is equal to or greater than the Appreciation
Threshold Price, the Exchange Rate will be shares of Class A
Common Stock.
- If the Average Market Price is less than the Initial Price, the Exchange
Rate will be one share of Class A Common Stock.
This formula will be adjusted if the Company takes certain steps that
combine, split or dilute the value of the Class A Common Stock. See " -- The
Contract -- Dilution Adjustments". The Exchange Rate will be rounded upward or
downward to the nearest 1/10,000 (or if there is not a nearest 1/10,000, to the
next lower 1/10,000). If this formula would require the Trust to deliver a
fraction of a share of Class A Common Stock to any holder, the Trust will
instead deliver cash equal to the value of that fraction of a share.
The "Average Market Price" per share of Class A Common Stock on any date
means the average Closing Price of a share of Class A Common Stock on the 20
Trading Days immediately before but not including that date. The Average Market
Price will be calculated in a different manner if the Seller carries out a
Rollover Offering (as defined below), as described under " -- Cash Settlement;
Rollover Offerings".
The "Closing Price" of the Class A Common Stock (or any other common equity
security) on any date means the closing sale price (or, if no closing sale price
is reported, the last reported sale price) of that security as reported on the
NYSE Consolidated Tape on that date or, if the security is not listed for
trading on the NYSE on that date, as reported in the composite transactions for
the principal United States national or regional securities exchange on which
the security is so listed, or if the security is not listed on a United States
national or regional securities exchange on that date, as reported by Nasdaq or,
if the security is not reported by that market on that date, the last quoted bid
price for the security in the over-the-counter market as reported by the
National Quotation Bureau or any similar organization. However, if any event
that results in an adjustment to the number of shares of Class A Common Stock
deliverable under the Contract, as described under " -- The Contract -- Dilution
Adjustments", occurs before the Exchange Date, the Closing Price as determined
pursuant to the foregoing will be appropriately adjusted to reflect the
occurrence of that event.
A "Trading Day" for any common equity security means a day on which the
security (A) is not suspended from trading on any United States national or
regional securities exchange or association or over-the-counter market at the
close of business and (B) has traded at least once on the United States national
or regional securities exchange or association or over-the-counter market that
is the primary market for the trading of that security.
13
<PAGE> 16
For illustrative purposes only, the following chart shows the number of
shares of Class A Common Stock that a holder would receive for each Security at
various Average Market Prices. The chart assumes that there would be no
adjustments to the number of shares of Class A Common Stock deliverable under
the Contract by reason of the occurrence of any of the events described under
"-- The Contract-Dilution Adjustments". There can be no assurance that the
Average Market Price on the Exchange Date will be within the range set forth
below. Given the Initial Price of $ per Security and the Appreciation
Threshold Price of $ , a holder would receive in connection with the
exchange of Securities on the Exchange Date the following number of shares of
Class A Common Stock:
<TABLE>
<CAPTION>
NUMBER OF SHARES
AVERAGE MARKET PRICE OF CLASS A COMMON STOCK
OF CLASS A COMMON STOCK PER SECURITY
----------------------- -----------------------
<S> <C>
</TABLE>
EXTENSION AND ACCELERATION OF THE EXCHANGE DATE AT THE OPTION OF THE
SELLER. The Seller has the right to extend the Exchange Date under the Contract
to May , 2003. If the Seller extends the Exchange Date, the Seller will not be
required to deliver the shares of Class A Common Stock or cash under the
Contract until May , 2003. However, once the Seller extends the Exchange Date,
the Seller can then accelerate the delivery of shares or cash to any date
between February , 2003 and May , 2003. If the Seller extends or accelerates
the Exchange Date, the holders of the Securities will not receive the
corresponding portion of the shares or cash until the extended or accelerated
Exchange Date, and the number of shares and amount of cash included in that
delivery would be calculated as of the extended or accelerated Exchange Date.
However, the holders of the Securities would receive an additional, partial cash
distribution on the Securities on the extended or accelerated Exchange Date.
That additional distribution will be funded from proceeds of U.S. Treasury
securities, deposited by the Seller at the time of extension, or from cash paid
by the Seller at the time of acceleration.
The amount of the additional, partial distribution that would be paid on
the Securities would be a portion of the regular quarterly distribution on the
Securities proportionate to the number of shares of Class A Common Stock covered
by the Contract. For example, if the Exchange Date is extended to May , 2003
for half the shares or cash deliverable on the Exchange Date, the additional
distribution would be equal to half the regular quarterly distribution. If the
final Exchange Date falls between February , 2003 and May , 2003, the
additional distribution will be pro-rated both to reflect the number of
securities covered by the extended and accelerated Contract and the number of
days by which the Exchange Date is extended. For example, if the Exchange Date
for half the shares or cash deliverable on the Exchange Date is extended to May
, 2003 and then accelerated to March , 2003 (i.e., one-third of the time
between February , 2003 and May , 2003), the additional distribution would
be equal to one-third of one-half (or one-sixth) of the regular quarterly
distribution.
CASH SETTLEMENT; ROLLOVER OFFERINGS. The Seller may elect to deliver cash,
instead of shares of Class A Common Stock, on the Exchange Date (whether or not
extended or accelerated). If the Seller chooses to deliver cash instead of
shares of Class A Common Stock, the amount of that cash will be equal to the
value, based on the Average Market Price at the Exchange Date, of the number of
shares that the Seller would otherwise be required to deliver on the Exchange
Date.
The Seller may choose to deliver cash, instead of shares of Class A Common
Stock, in connection with a "Rollover Offering". A "Rollover Offering" is a
reoffering or refinancing of Securities effected by the Seller not earlier than
February , 2003, by means of a completed public offering or offerings or
another similar offering (which may include one or more exchange offers) by or
on behalf of the Seller. If the Seller chooses to carry out a Rollover Offering,
the "Average Market Price" will be the Closing Price per share of Class A Common
Stock on the Trading Day immediately before the date that the Rollover Offering
is priced (the "Pricing Date") or, if the Rollover Offering is priced after 4:00
P.M., New York City time, on the Pricing Date, the Closing Price per share on
the Pricing Date.
14
<PAGE> 17
If the Seller carries out a Rollover Offering that is consummated on or
before the Exchange Date, the cash payable by the Seller will be delivered to
the Trust within five Trading Days of the Exchange Date (which may be extended
and accelerated as described above), instead of on the Exchange Date itself.
Accordingly, the holders of the Securities may not receive a portion of the cash
deliverable in exchange for the Securities until the fifth Trading Day after the
Exchange Date.
If the Seller chooses to carry out a Rollover Offering, the Trust must give
notice of the Seller's election to all holders of the Securities, no less than
30 days and no more than 90 days prior to the Exchange Date as then in effect.
DILUTION ADJUSTMENTS. The Exchange Rate will be adjusted if the Company
(i) pays a stock dividend or makes a distribution with respect to the Class A
Common Stock in shares of that stock, (ii) subdivides or splits its outstanding
shares of Class A Common Stock, (iii) combines its outstanding shares of Class A
Common Stock into a smaller number of shares, or (iv) issues by reclassification
of its shares of Class A Common Stock any shares of other common stock of the
Company. In any such event, the Exchange Rate will be adjusted as follows: for
each share of Class A Common Stock that would have been deliverable under a
Security upon exchange before the adjustment, the holder of that Security will
receive the number of shares of Class A Common Stock (or, in the case of a
reclassification referred to in clause (iv) above, the number of shares of other
common stock of the Company issued pursuant to that reclassification), or the
fraction of such shares, that a stockholder who held one share of Class A Common
Stock immediately before that event would be entitled solely by reason of that
event to hold immediately after that event.
In addition, if the Company issues rights or warrants to all holders of
Class A Common Stock entitling them to purchase shares of Class A Common Stock
at a price per share less than the Then-Current Market Price (as defined below)
of the Class A Common Stock (other than rights to purchase Class A Common Stock
pursuant to a plan for the reinvestment of dividends or interest), then the
Exchange Rate will be adjusted pursuant to the following formula:
<TABLE>
<S> <C> <C> <C> <C>
OS + AS
A = ER X -------
OS + PS
</TABLE>
where
<TABLE>
<S> <C> <C>
ER the Exchange Rate before the adjustment;
=
OS the number of shares of Class A Common Stock outstanding
immediately before the time (determined as described below)
the adjustment is effected by reason of the issuance of
those rights or warrants;
=
AS the number of additional shares of Class A Common Stock
offered for purchase pursuant to those rights or warrants;
and
=
PS the number of additional shares of Class A Common Stock that
the aggregate offering price of the total number of shares
of Class A Common Stock so offered for purchase would
purchase at the Then-Current Market Price.
=
</TABLE>
To the extent that, after expiration of those rights or warrants, any of
the shares of Class A Common Stock offered by such rights or warrants are not
actually delivered, the Exchange Rate will be further adjusted to equal the
Exchange Rate that would have been in effect if the foregoing adjustment had
been made upon the basis of delivery of only the number of shares of Class A
Common Stock actually delivered.
The "Then-Current Market Price" of the Class A Common Stock, for the
purpose of making any dilution adjustment, means the average Closing Price per
share of Class A Common Stock for the five Trading Days immediately before the
time that adjustment is effected (or, in the case of an adjustment effected at
the opening of business on the business day after a record date, as described
below, immediately before the earlier of the time the adjustment is effected and
the related "ex-date" on which the shares of Class A Common Stock first trade
regular way on their principal market without the right to receive the relevant
dividend, distribution or issuance).
15
<PAGE> 18
In addition, if the Company pays a dividend or makes a distribution to all
holders of Class A Common Stock of evidences of its indebtedness or other
non-cash assets (excluding any stock dividends or distributions in shares of
Class A Common Stock described above and any Spin-Off Distributions (as defined
below)) or issues to all holders of Class A Common Stock rights or warrants to
subscribe for or purchase any of its securities (other than rights or warrants
referred to in the second paragraph of this subsection), then the Exchange Rate
will be adjusted pursuant to the following formula:
<TABLE>
<S> <C> <C> <C> <C>
T
A = ER X ---
T-V
</TABLE>
where
<TABLE>
<S> <C> <C>
ER the Exchange Rate before the adjustment;
=
T the Then-Current Market Price per share of Class A Common
Stock; and
=
V the fair market value (as determined by a nationally
recognized independent investment banking firm retained for
this purpose by the Administrator) as of the time the
adjustment is effected of the portion of those evidences of
indebtedness, non-cash assets or rights or warrants
applicable to one share of Class A Common Stock.
=
</TABLE>
In addition, if the Company distributes cash (other than any Permitted
Dividend (as defined below), any cash distributed in consideration of fractional
shares of Class A Common Stock and any cash distributed in a Reorganization
Event (as defined below), by dividend or otherwise, to all holders of Class A
Common Stock or makes an Excess Purchase Payment (as defined below), then the
Exchange Rate will be adjusted pursuant to the following formula:
<TABLE>
<S> <C> <C> <C> <C>
T
A = ER X ---
T-D
</TABLE>
where
<TABLE>
<S> <C> <C>
ER the Exchange Rate before the adjustment;
=
T the Then-Current Market Price per share of Class A Common
Stock on the record date for that distribution; and
=
D the amount of that distribution applicable to one share of
Class A Common Stock that would not be a Permitted Dividend
or, in the case of an Excess Purchase Payment, the aggregate
amount of that Excess Purchase Payment divided by the number
of outstanding shares of Class A Common Stock on that record
date.
=
</TABLE>
For purposes of these adjustments,
(a) the term "Permitted Dividend" means any quarterly cash dividend on the
Class A Common Stock, other than a quarterly cash dividend that exceeds
the immediately preceding quarterly cash dividend, and then only to the
extent that the per share amount of that dividend results in an
annualized dividend yield on the Class A Common Stock above %; and
(b) the term "Excess Purchase Payment" means the excess, if any, of (i) the
cash and the value (as determined by a nationally recognized
independent investment banking firm retained for this purpose by the
Administrator) of all other consideration paid by the Company with
respect to one share of Class A Common Stock acquired in a tender offer
or exchange offer by the Company, over (ii) the Then-Current Market
Price per share of Class A Common Stock.
If any adjustment in the Exchange Rate must be made pursuant to the
formulas described above, corresponding adjustments will be made to the Initial
Price and the Appreciation Threshold Price.
Dilution adjustments will be effected: (i) in the case of any dividend,
distribution or issuance described above, as of the opening of business on the
business day after the record date for determination of holders of
16
<PAGE> 19
Class A Common Stock entitled to receive that dividend, distribution or issuance
or, if the announcement of any such dividend, distribution or issuance is after
that record date, at the time that dividend, distribution or issuance is
announced by the Company; (ii) in the case of any subdivision, split,
combination or reclassification described above, on the effective date of that
transaction; (iii) in the case of any Excess Purchase Payment for which the
Company announces, at or before the time it commences the relevant share
repurchase, the repurchase price for those shares to be repurchased, on the date
of that announcement; and (iv) in the case of any other Excess Purchase Payment,
on the date that the holders of Class A Common Stock become entitled to payment
with respect to that Excess Purchase Payment. There will be no adjustment under
the Contract for any dividends, distributions, issuances or repurchases that may
be declared or announced after the Exchange Date.
If an adjustment is made because the Company announces or declares a record
date for a dividend, distribution, issuance or repurchase, and the dividend,
distribution, issuance or repurchase does not actually occur, then the Exchange
Rate will be further adjusted to equal the Exchange Rate that would have been in
effect if the adjustment for that dividend, distribution, issuance or repurchase
had not been made. If an adjustment is made because the Company announces a
share repurchase, and the Company reduces the repurchase price or repurchases
fewer shares than announced, then upon completion of that share repurchase, the
Exchange Rate will be further adjusted to equal the Exchange Rate that would
have been in effect if the adjustment for that repurchase had been based on the
actual price and amount repurchased. All dilution adjustments will be rounded
upward or downward to the nearest 1/10,000 (or if there is not a nearest
1/10,000, to the next lower 1/10,000). No adjustment in the Exchange Rate will
be required unless that adjustment would require an increase or decrease of at
least one percent in the Exchange Rate. However, any adjustments that are not
required to be made because of this limit will be carried forward and taken into
account in any subsequent adjustment.
REORGANIZATION EVENTS. If a Reorganization Event occurs, the Seller will
be required to deliver on the Exchange Date, in lieu of each share of Class A
Common Stock subject to the Contract, cash in an amount equal to:
- If the Transaction Value (as defined below) is less than the Appreciation
Threshold Price but equal to or greater than the Initial Price, the
Initial Price.
- If the Transaction Value is greater than or equal to the Appreciation
Threshold Price, 0. multiplied by the Transaction Value.
- If the Transaction Value is less than the Initial Price, the Transaction
Value.
This amount of cash is referred to as the "Basic Reorganization Event
Amount".
If the consideration received by the holders of Class A Common Stock in the
Reorganization Event (the "Merger Consideration") includes Marketable
Securities, the Seller may choose to deliver those Marketable Securities on the
Exchange Date in lieu of delivering the cash value of those Marketable
Securities as described above. If the Seller chooses to deliver Marketable
Securities on the Exchange Date, the holders of the Securities will be
responsible for paying all brokerage and other transaction costs when they
resell those securities.
Notwithstanding the foregoing, if at least 30% of the Merger Consideration
consists of cash or cash equivalents (a "Cash Merger"), then delivery of the
Merger Consideration, other than any consideration consisting of Marketable
Securities, will be accelerated as follows. The Seller will be required:
- within five business days after the Seller receives the Merger
Consideration, to deliver to the Trust the portion of the Merger
Consideration, other than Marketable Securities, calculated as described
below (the "Accelerated Portion") (and the Trust will promptly distribute
this property to the holders of the Securities); and
- on the Exchange Date, to deliver to the Trust the number of Marketable
Securities calculated as described below.
17
<PAGE> 20
Instead of delivering any non-cash consideration at the time of a merger,
the Seller may choose to deliver cash equal to the Value of those assets.
Similarly, instead of delivering Marketable Securities on the Exchange Date, the
Seller may choose to deliver cash equal to the value, based on the Average
Market Price at the Exchange Date, of the number of Marketable Securities that
the Seller would otherwise be required to deliver on the Exchange Date.
The Accelerated Portion per Security will be the portion of the Merger
Consideration, other than Marketable Securities, that has a Value (as defined
below) equal to the amount determined pursuant to the following formula:
<TABLE>
<S> <C> <C>
BREA X OC
AP = ---------
TV
</TABLE>
where
<TABLE>
<S> <C> <C>
AP = the Value of the Accelerated Portion;
BREA = the Basic Reorganization Event Amount;
OC = the Value of the portion of the Merger Consideration
received in exchange for a single share of Class A Common
Stock that consists of assets other than Marketable
Securities; and
TV = the Transaction Value.
</TABLE>
The number of Marketable Securities that the Trust will be required to
deliver on the Exchange Date in exchange for each Security will be determined by
applying the Exchange Rate, adjusted as described below, to the Average Market
Price of the Marketable Securities on the Exchange Date. To calculate the
Exchange Rate, the Initial Price will be adjusted pursuant to the following
formula:
<TABLE>
<S> <C> <C> <C> <C>
MS
A = IP X ---
TV
</TABLE>
where
<TABLE>
<S> <C> <C>
IP = the Initial Price before the adjustment;
MS = the Value of a share of the Marketable Securities; and
TV = the Transaction Value.
</TABLE>
Similarly, the Appreciation Threshold Price will be adjusted pursuant to
the following formula:
<TABLE>
<S> <C> <C> <C> <C>
MS
A = ATP X ---
TV
</TABLE>
where
<TABLE>
<S> <C> <C>
ATP = the Appreciation Threshold Price before the adjustment;
MS = the Value of a share of the Marketable Securities; and
TV = the Transaction Value.
</TABLE>
18
<PAGE> 21
The Exchange Rate will be adjusted pursuant to the following formula:
<TABLE>
<S> <C> <C> <C> <C>
SC
A = ER X ---
MS
</TABLE>
where
<TABLE>
<S> <C> <C>
ER the Exchange Rate (computed on the basis of the adjusted
Initial Price and Appreciation Threshold Price and the
Average Market Price of the Marketable Securities);
=
SC the aggregate Value of the Marketable Securities included in
the Merger Consideration received in exchange for a single
share of Class A Common Stock; and
=
MS the Value of a share of the Marketable Securities.
=
</TABLE>
For purposes of the foregoing formulas, "Value" means (i) in respect of
cash, the amount of such cash; (ii) in respect of any property other than cash
or Marketable Securities, an amount equal to the market value on the date the
Reorganization Event is consummated (as determined by a nationally recognized
independent investment banking firm retained for this purpose by the
Administrator); and (iii) in respect of any share of Marketable Securities, an
amount equal to the average Closing Price per share of those Marketable
Securities for the 20 Trading Days immediately before the date the
Reorganization Event is consummated.
A "Reorganization Event" is (A) any consolidation or merger of the Company,
or any surviving entity or subsequent surviving entity of the Company (a
"Company Successor"), with or into another entity (other than a merger or
consolidation in which the Company is the continuing corporation and in which
the Class A Common Stock outstanding immediately before the merger or
consolidation is not exchanged for cash, securities or other property of the
Company or another corporation), (B) any sale, transfer, lease or conveyance to
another corporation of the property of the Company or any Company Successor as
an entirety or substantially as an entirety, (C) any statutory exchange of
securities of the Company or any Company Successor with another corporation
(other than in connection with a merger or acquisition) or (D) any liquidation,
dissolution or winding up of the Company or any Company Successor.
"Transaction Value" means the sum of (i) for any cash received in the
Reorganization Event, the amount of such cash received per share of Class A
Common Stock, (ii) for any property other than cash or Marketable Securities
received in the Reorganization Event, an amount equal to the market value on the
date the Reorganization Event is consummated of the property received per share
of Class A Common Stock (as determined by a nationally recognized independent
investment banking firm retained for this purpose by the Administrator) and
(iii) for any Marketable Securities received in the Reorganization Event, an
amount equal to the average Closing Price per share of those Marketable
Securities for the 20 Trading Days immediately before the Exchange Date (or, in
the case of a Cash Merger, for the 20 Trading Days immediately before the date
the Reorganization Event is consummated) multiplied by the number of those
Marketable Securities received for each share of Class A Common Stock.
The number of shares of Marketable Securities included in the calculation
of Transaction Value for purposes of the preceding clause (iii) will be adjusted
if a dilution event of the type described under "-- Dilution Adjustments" occurs
with respect to the issuer of the Marketable Securities between the time of the
Reorganization Event and the Exchange Date.
"Marketable Securities" means any common equity securities (whether voting
or non-voting) listed on a U.S. national or regional securities exchange or
reported by Nasdaq.
No dilution adjustments will be made for events, other than those described
above, such as offerings of Class A Common Stock (other than through the
issuance of rights or warrants described above) for cash or in connection with
acquisitions.
19
<PAGE> 22
SPIN-OFF DISTRIBUTIONS. If the Company makes a "Spin-Off Distribution"
during the term of the Contract, then the Seller will be required to deliver on
the Exchange Date, together with each share of Class A Common Stock delivered
under the Contract, the number of Marketable Securities distributed in respect
of a single share of Class A Common Stock in that Spin-Off Distribution. After
the Company makes such a distribution, the "Closing Price" of Class A Common
Stock, for purposes of calculating the Exchange Rate and for all other purposes
under the Contract, will be determined by reference to (A) the Closing Price per
share of the Class A Common Stock and (B) the product of (x) the Closing Price
per share of the spun-off Marketable Securities and (y) the number of shares of
such Marketable Securities distributed per share of Class A Common Stock in the
Spin-Off Distribution. The number of shares of Marketable Securities that the
Seller is required to deliver, and the formula for determining the "Closing
Price" in the preceding sentence, will be adjusted if any event that would, if
it had occurred with respect to the Class A Common Stock or the Company, have
required an adjustment pursuant to the provisions described under " -- Dilution
Adjustments" occurs with respect to those Marketable Securities or their issuer
between the time of the Spin-Off Distribution and the Exchange Date.
A "Spin-Off Distribution" means a distribution by the Company to holders of
Class A Common Stock of Marketable Securities issued by an issuer other than the
Company.
COLLATERAL ARRANGEMENTS; ACCELERATION UPON DEFAULT BY THE SELLER. The
Seller's obligations under the Contract between the Seller and the Trust
initially will be secured by a security interest in the maximum number of shares
of Class A Common Stock deliverable under the Contract (adjusted in accordance
with the dilution adjustment provisions of the Contract, described above),
pursuant to a Collateral Agreement among the Trust, the Seller and the
Collateral Agent.
If a Reorganization Event occurs, the Collateral Agreement will require the
Seller to pledge as alternative collateral all Marketable Securities deliverable
in such event in exchange for the maximum number of shares of Class A Common
Stock deliverable under the Contract at the time of the Reorganization Event,
plus cash in an amount equal to 100% of the Seller's Cash Delivery Obligations
(as defined below). Instead of delivering cash, the Seller may choose to deliver
U.S. Government obligations with an aggregate market value, when pledged and at
daily mark-to-market valuations after that time, of not less than 105% of those
Cash Delivery Obligations. The Collateral Agent will be required, under the
Collateral Agreement, to invest any such cash in U.S. Treasury securities
maturing on or before February , 2003. The Seller's "Cash Delivery
Obligations" will be the Transaction Value of any Merger Consideration, other
than Marketable Securities, in respect of the maximum number of shares covered
by the Contract at the time of the Reorganization Event. The number of shares of
Marketable Securities required to be pledged will be adjusted if any event
requiring a dilution adjustment under the Contract occurs. If the Reorganization
Event is a Cash Merger, the collateral in respect of the Seller's Cash Delivery
Obligations will be released when the Seller delivers the Accelerated Portion.
If the Company makes a Spin-Off Distribution, the Collateral Agreement will
require the Seller to pledge as additional collateral all Marketable Securities
deliverable in such distribution in respect of the maximum number of shares of
Class A Common Stock deliverable under the Contract at the time of such Spin-Off
Distribution. The number of these Marketable Securities required to be pledged
will also be adjusted if any event requiring a dilution adjustment under the
Contract occurs.
Unless the Seller is in default in its obligations under the Collateral
Agreement, the Seller will be permitted to substitute for the pledged shares of
Class A Common Stock collateral consisting of short-term, direct obligations of
the U.S. Government. The Seller may substitute short-term, direct U.S.
Government obligations in substitution for the pledged shares of Marketable
Securities at any time. Any U.S. Government obligations pledged as substitute
collateral for the Class A Common Stock, or for Marketable Securities received
in a Reorganization Event or Spin-Off Distribution, will be required to have an
aggregate market value at the time of delivery and at daily mark-to-market
valuations after that time of not less than 150% (or, from and after any
Insufficiency Determination that is not cured by the close of business on the
second business day thereafter, as described below, 200%) of the product of the
market price of the Class A Common Stock or Marketable Securities at the time of
each valuation times the number of shares of Class A Common Stock or Marketable
Securities for which those obligations are being substituted.
20
<PAGE> 23
The Collateral Agent will promptly pay over to the Seller any dividends,
interest, principal or other payments received by the Collateral Agent on any
collateral pledged by the Seller, including any substitute collateral, unless
the Seller is in default in its obligations under the Collateral Agreement, or
unless the payment of that amount to the Seller would cause the collateral to
become insufficient under the Collateral Agreement. The Seller will have the
right to vote any pledged shares of Marketable Securities for so long as those
shares are owned by it and pledged under the Collateral Agreement, unless an
event of default occurs under the Contract or Collateral Agreement.
If the Collateral Agent determines (an "Insufficiency Determination") that
the collateral pledged by the Seller fails to meet the foregoing requirements at
any valuation, and that failure is not cured by the close of business on the
second business day after that determination, then, unless a Collateral Event of
Default (as defined below) under the Collateral Agreement has occurred and is
continuing, the Collateral Agent will commence (i) sales of the collateral
consisting of U.S. Government obligations and (ii) purchases, using the proceeds
of those sales, of shares of Class A Common Stock or Marketable Securities in an
amount sufficient to cause the collateral to meet the requirements under the
Collateral Agreement. The Collateral Agent will discontinue those sales and
purchases if a Collateral Event of Default occurs under the Collateral
Agreement.
A "Collateral Event of Default" under the Collateral Agreement means, at
any time, (A) if no U.S. Government obligations are pledged as substitute
collateral at that time, failure of the collateral to include at least the
maximum number of shares of Class A Common Stock covered by the Contract at that
time (or, if a Reorganization Event or Spin-Off Distribution has occurred at or
before that time, failure of the collateral to include the maximum number of
shares of any Marketable Securities required to be pledged as described above);
(B) if any U.S. Government obligations are pledged as substitute collateral for
shares of Class A Common Stock (or shares of Marketable Securities) at that
time, failure of those U.S. Government obligations to have a market value at
that time of at least 105% of the market price per share of Class A Common Stock
(or Shares of Marketable Securities) times the difference between (x) the
maximum number of shares of Class A Common Stock (or shares of Marketable
Securities) deliverable under the Contract at that time and (y) the number of
shares of Class A Common Stock (or shares of Marketable Securities) pledged as
collateral at that time; and (C) at any time after a Reorganization Event in
which consideration other than Marketable Securities was delivered, failure of
any U.S. Government obligations pledged as collateral for Cash Delivery
Obligations to have a market value at that time of at least 105% of those Cash
Delivery Obligations, if that failure is not cured within one business day after
notice of that failure is delivered to the Seller.
If a Collateral Event of Default occurs under the Collateral Agreement, or
the Seller suffers a bankruptcy or insolvency, the Seller's obligations under
the Contract will automatically be accelerated. In that event, the Seller will
become obligated to deliver the number of shares of Class A Common Stock (or,
after a Reorganization Event or Spin-Off Distribution, the Marketable Securities
or cash or a combination of Marketable Securities and cash deliverable instead
of or in addition to those shares of Class A Common Stock) then deliverable
under the Contract, or any U.S. Government obligations then pledged as
collateral for the Seller's obligations.
If the Contract is accelerated, (i) the Collateral Agent will distribute to
the Trust, for distribution pro rata to the holders of the Securities, the
shares of Class A Common Stock and Marketable Securities then pledged by the
Seller and/or cash generated from the sale of U.S. Government obligations then
pledged by the Seller and (ii) the Custodian will sell the stripped U.S.
Treasury securities acquired by the Trust at the closing of this offering and
then held by the Trust, and distribute the proceeds pro rata to the holders. In
accordance with the previous sentence, the number of shares of Class A Common
Stock or Marketable Securities, as applicable, deliverable to holders on the
Exchange Date will be proportionately reduced. In addition, if, by the Exchange
Date, any substitute collateral has not been replaced by Class A Common Stock
(or, after a Reorganization Event or Spin-Off Distribution, cash or Marketable
Securities, as applicable) sufficient to meet the Seller's obligations under the
Contract, the Collateral Agent will distribute to the Trust for distribution pro
rata to the holders the market value of the Class A Common Stock and Marketable
Securities required to be delivered under the Contract, in the form of any
shares of Class A Common Stock or Marketable Securities then pledged by the
Seller plus cash generated from the sale of U.S. Government
21
<PAGE> 24
obligations then pledged by the Seller (or, after a Reorganization Event, the
market value of the alternative consideration required to be delivered under the
Contract, in the form of any Marketable Securities then pledged, plus any cash
then pledged, plus cash generated from the sale of U.S. Government obligations
then pledged).
CALCULATION OF MARKET PRICES. In calculating any market price, including
any Average Market Price, Then-Current Market Price, Value or Transaction Value:
- If no Closing Price for the Class A Common Stock is determined for one or
more (but not all) of the Trading Days during the relevant period, those
Trading Days will be disregarded in the calculation of the market price.
No additional Trading Days will be added to the calculation period.
- If no Closing Price for the Class A Common Stock is determined for any of
the Trading Days during the relevant period, the market price will be the
most recently available Closing Price for the Class A Common Stock before
that period began.
THE SELLER. The Seller is CNET Investments II, Inc., a Delaware
corporation. Please see the caption "Principal and Selling Stockholders" in the
Company Prospectus for information about the Seller.
THE U.S. TREASURY SECURITIES
The Trust will purchase and hold a series of zero-coupon ("stripped") U.S.
Treasury securities with face amounts and maturities corresponding to the
distributions payable with respect to the Securities and the payment dates under
the Securities. See "Description of Securities -- Distributions". Up to 30% of
the Trust's total assets may be invested in these U.S. Treasury securities. If
the Contract is accelerated, then those U.S. Treasury securities then held in
the Trust will be sold by the Administrator and the proceeds of that sale will
be distributed pro rata to the holders, together with the amounts distributed
upon acceleration. See " -- Collateral Arrangements; Acceleration Upon Default
By the Seller" and "The Trust -- Trust Termination".
If the Seller extends the Exchange Date under the Contract, it will be
required to deliver additional U.S. Treasury securities to the Trust to pay the
Seller's additional, partial distribution described above under " -- The
Contract -- Extension and Acceleration of the Exchange Date at the Option of the
Seller". If the Seller later accelerates the Exchange Date, the Seller will be
required to repurchase those additional U.S. Treasury securities from the Trust
on or before the Exchange Date, at a price equal to the Seller's unpaid
distributions on the Securities through the Exchange Date.
TEMPORARY INVESTMENTS
For cash management purposes, the Trust may invest the proceeds of the U.S.
Treasury securities and any other cash held by the Trust in short-term
obligations of the U.S. Government maturing no later than the business day
before the next distribution date. Under the Paying Agent Agreement, the Paying
Agent is responsible for investing, as instructed by the Trustees, all such cash
that is not paid to cover Trust expenses in short-term U.S. Treasury securities
maturing on or shortly before the next quarterly distribution date. Not more
than 5% of the Trust's total assets will be invested in those short-term
obligations or held in cash at any one time.
DESCRIPTION OF SECURITIES
Each Security represents an equal proportional interest in the Trust, and a
total of 1,250,000 Securities will be issued (assuming that the Underwriters do
not exercise their over-allotment option). The Securities have no preemptive,
redemption or conversion rights. The Securities are fully paid and nonassessable
by the Trust. The only securities that the Trust is authorized to issue are the
Securities offered hereby and those sold to the initial holder referred to
below. See "Underwriting".
22
<PAGE> 25
DISTRIBUTIONS
AMOUNT AND TIMING. The Trust intends to distribute to holders on a
quarterly basis an amount equal to $ per Security. This amount equals the
pro rata portion of the fixed quarterly cash distributions from the proceeds of
the maturing U.S. Treasury securities held by the Trust. The first distribution
will be made on May , 2000 to holders of record as of the preceding business
day. Distributions will then be made on February , May , August
and November of each year to holders of record as of the preceding
business day. Part of each distribution will be treated as a tax-free return of
the holder's investment. See " -- Tax Treatment of Distributions" and "Certain
Federal Income Tax Considerations -- Recognition of Original Issue Discount on
the U.S. Treasury Securities".
Upon termination of the Trust, as described under the caption "The
Trust -- Trust Termination", each holder will receive any remaining net assets
of the Trust.
Quarterly distributions on the Securities will consist solely of the cash
received from the U.S. Treasury securities. The Trust will not be entitled to
any dividends that may be declared on the Class A Common Stock. See "Risk
Factors -- Shareholder Rights".
The Trust does not permit the reinvestment of distributions.
TAX TREATMENT OF DISTRIBUTIONS. The following table sets forth information
regarding the distributions to be received on the stripped U.S. Treasury
securities described under "Investment Objective and Policies" above (assuming
that the Underwriters do not exercise their over-allotment option), the portion
of each year's distributions that will constitute a return of capital for U.S.
federal income tax purposes and the amount of original issue discount accruing
(assuming a yield-to-maturity accrual election in respect of any short-term U.S.
Treasury securities) on those U.S. Treasury securities with respect to a holder
that acquires its Securities at the issue price from an Underwriter pursuant to
the original offering. See "Certain Federal Income Tax
Considerations -- Recognition of Original Issue Discount on the U.S. Treasury
Securities".
<TABLE>
<CAPTION>
ANNUAL
GROSS
DISTRIBUTIONS ANNUAL GROSS ANNUAL INCLUSION OF
FROM DISTRIBUTIONS FROM ANNUAL RETURN ORIGINAL ISSUE
U.S. U.S. TREASURY OF DISCOUNT
TREASURY SECURITIES CAPITAL PER IN INCOME PER
SECURITIES PER SECURITY SECURITY SECURITY
------------- ------------------ ------------- -------------------
<S> <C> <C> <C> <C>
Year
2000................................
2001................................
2002................................
2003................................
</TABLE>
VOTING
Holders are entitled to a full vote for each Security held on all matters
to be voted on by holders and are not able to cumulate their votes in the
election of Trustees. The Trustees have been selected initially by Goldman
Sachs, as the Trust's sponsor and the initial holder of the Trust's Securities.
The Trust intends to hold annual meetings as required by the rules of the NYSE.
The Trustees may call special meetings of holders for action by holder vote as
may be required by either the Investment Company Act or the Trust Agreement. The
holders have the right, upon the declaration in writing or vote of more than
two-thirds of the outstanding Securities, to remove a Trustee. The Trustees will
call a meeting of holders to vote on the removal of a Trustee upon the written
request of the holders of record of 10% of the Securities or to vote on other
matters upon the written request of the holders of record of 51% of the
Securities (unless substantially the same matter was voted on during the
previous 12 months). The Trustees will establish, and notify the holders in
writing of, the record date for each such meeting. The record date must be not
less than 10 nor more than 50 days before the
23
<PAGE> 26
meeting date. Holders at the close of business on the record date will be
entitled to vote at the meeting. The Trust will also assist in communications
with other holders as required by the Investment Company Act.
BOOK-ENTRY-ONLY ISSUANCE
The Depository Trust Company ("DTC") will act as securities depository for
the Securities. The information in this section concerning DTC and DTC's
book-entry system is based upon information obtained from DTC. The Securities
will be issued only as fully-registered securities registered in the name of
Cede & Co. (as nominee for DTC). One or more fully-registered global Security
certificates will be issued, representing in the aggregate the total number of
Securities, and will be deposited with DTC or ChaseMellon Shareholder Services,
L.L.C., as DTC's custodian.
DTC is a limited-purpose trust company organized under the New York Banking
Law, a "banking organization" within the meaning of the New York Banking Law, a
member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Exchange Act. DTC
holds securities that its participants ("Participants") deposit with DTC. DTC
also facilitates the settlement among Participants of securities transactions,
such as transfers and pledges, in deposited securities through electronic
computerized book-entry changes in Participants' accounts, eliminating the need
for physical movement of securities certificates. Direct Participants include
securities brokers and dealers, banks, trust companies, clearing corporations
and certain other organizations ("Direct Participants"). Access to the DTC
system is also available to others such as securities brokers and dealers, banks
and trust companies that clear through or maintain a custodial relationship with
a Direct Participant, either directly or indirectly ("Indirect Participants").
Purchases of Securities within the DTC system must be made by or through a
Direct Participant, which will receive a credit for the Securities on DTC's
records. The ownership interest of each actual purchaser of a Security
("Beneficial Owner") is in turn to be recorded on the Direct or Indirect
Participants' records. Beneficial Owners will not receive written confirmation
from DTC of their purchases, but Beneficial Owners are expected to receive
written confirmations providing details of the transactions, as well as periodic
statements of their holdings, from the Direct or Indirect Participants through
which the Beneficial Owners purchased Securities. Transfers of ownership
interests in Securities are to be accomplished by entries made on the books of
Participants acting on behalf of Beneficial Owners. Beneficial Owners will not
receive certificates representing their ownership interests in Securities,
except upon a resignation of DTC.
DTC has no knowledge of the actual Beneficial Owners of the Securities;
DTC's records reflect only the identity of the Direct Participants to whose
accounts those Securities are credited, which may or may not be the Beneficial
Owners. The Participants will remain responsible for keeping account of their
holdings on behalf of their customers.
Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by Direct
Participants and Indirect Participants to Beneficial Owners will be governed by
arrangements among them, subject to any statutory or regulatory requirements as
may be in effect from time to time.
Payments on the Securities will be made to DTC. DTC's practice is to credit
Direct Participants' accounts on the relevant payment date in accordance with
their respective holdings shown on DTC's records unless DTC has reason to
believe that it will not receive payments on that payment date. Payments by
Participants to Beneficial Owners will be governed by standing instructions and
customary practices and will be the responsibility of that Participant and not
of DTC or the Trust, subject to any statutory or regulatory requirements as may
be in effect from time to time. Payment of dividends to DTC is the
responsibility of the Trust, disbursement of those payments to Direct
Participants is the responsibility of DTC, and disbursement of those payments to
the Beneficial Owners is the responsibility of Direct and Indirect Participants.
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<PAGE> 27
Except as provided herein, a Beneficial Owner of an interest in a global
Security will not be entitled to receive physical delivery of Securities.
Accordingly, each Beneficial Owner must rely on the procedures of DTC to
exercise any rights under the Securities.
DTC may discontinue providing its services as securities depository with
respect to the Securities at any time by giving reasonable notice to the Trust.
Under those circumstances, if a successor securities depository is not obtained,
certificates representing the Securities will be printed and delivered in
accordance with DTC's instructions.
25
<PAGE> 28
RISK FACTORS
INTERNAL MANAGEMENT; NO PORTFOLIO MANAGEMENT AND NO CHANGE IN ASSETS
The Trust will not be managed like a typical closed-end investment company.
The Trust will be internally managed by its Trustees and will not have any
separate investment adviser.
The Trust will not dispose of the Contract even if the price of the Class A
Common Stock falls significantly or the financial condition of the Company
suffers (or if, after a Reorganization Event or Spin-Off Distribution,
comparable developments occur affecting any Marketable Securities or the issuer
of those Marketable Securities).
Similarly, the Trust will not dispose of the U.S. Treasury securities held
by the Trust before they mature or the Trust terminates, whichever comes first,
even if their value falls significantly.
LIMITED OPPORTUNITY FOR INCREASE IN VALUE; RISK OF DECREASE IN VALUE OF CLASS A
COMMON STOCK
Because the Contract allows the Seller to deliver less than a full share of
Class A Common Stock for each outstanding Security if the Average Market Price
is higher than the Initial Price, the Securities have more limited appreciation
potential than the Class A Common Stock. If the price of Class A Common Stock
rises, a holder of a Security will not receive all of this increase in value.
Holders will not receive any of this increase if the average market price of the
Class A Common Stock at the Exchange Date is below $ . Holders will
receive only % of any increase in the value of the Class A Common Stock
over $ . On the other hand, holders of Securities will bear all of any
decrease in the value of the Class A Common Stock. The value of the Class A
Common Stock to be received by holders on the Exchange Date (and any cash
received in lieu of those shares) may be less than the amount paid for the
Securities. Furthermore, the Securities may trade below the value of the Class A
Common Stock if the Class A Common Stock appreciates in value.
FIXED RATE OF DISTRIBUTIONS
The distributions on the Securities will be at a fixed rate for the entire
term of the Trust. If the Company begins to pay dividends on the Class A Common
Stock, distributions on the Securities may be lower than the dividends paid on
the Class A Common Stock.
DILUTION ADJUSTMENTS
The number of shares of Class A Common Stock that holders are entitled to
receive at the termination of the Trust will be adjusted for some events, like
stock splits and combinations, stock dividends and certain other actions of the
Company that modify its capital structure. See "Investment Objective and
Policies--The Contract--Dilution Adjustments". The number of shares to be
received by holders may not be adjusted for other events, such as offerings of
Class A Common Stock for cash or in connection with acquisitions, that may
adversely affect the price of the Class A Common Stock. These other events may
adversely affect the trading price of the Securities. There can be no assurance
that the Company will not take any of the foregoing actions, or that it will not
make offerings of Class A Common Stock, or that major stockholders will not sell
any Class A Common Stock, in the future, or as to the amount of any such
offerings or sales.
NON-DIVERSIFIED STATUS
The Trust is considered non-diversified under the Investment Company Act,
which means that the Trust is not limited in the proportion of its assets that
may be invested in the obligations of a single issuer. The only assets held by
the Trust will be the U.S. Treasury securities and the Contract, and potentially
a small amount of other short-term investments. As a result, an investment in
the Trust will be riskier than an investment in an investment company with
diversified investments.
26
<PAGE> 29
TRADING VALUE AFFECTED BY CLASS A COMMON STOCK PRICE AND OTHER FACTORS
THE TRUST IS A NEWLY ORGANIZED CLOSED-END INVESTMENT COMPANY WITH NO
PREVIOUS OPERATING HISTORY AND THE SECURITIES ARE INNOVATIVE SECURITIES. IT IS
NOT POSSIBLE TO PREDICT HOW THE SECURITIES WILL TRADE IN THE SECONDARY MARKET.
The trading prices of the Securities in the secondary market will be
directly affected by the trading prices of the Class A Common Stock in the
secondary market. The trading prices of the Class A Common Stock may fluctuate,
due to changes in the Company's financial condition, results of operations or
prospects, or because of complex and interrelated political, economic, financial
and other factors that can affect the capital markets generally, the stock
exchanges or quotation systems on which the Class A Common Stock is traded and
the market segment of which the Company is a part. The trading price of the
Securities may also fluctuate due to, among other things, fluctuations in
interest rates and other factors that are difficult to predict and beyond the
Trust's control. The Trust believes, however, that because of the yield on the
Securities and the formula for determining the number of shares of Class A
Common Stock to be delivered on the Exchange Date, the Securities will tend to
trade at a premium to the market value of the Class A Common Stock if the Class
A Common Stock price falls and at a discount to the market value of the Class A
Common Stock if the Class A Common Stock price rises. There can, however, be no
assurance that the Securities will trade at a premium to the market value of the
Class A Common Stock.
SHARES OF CLOSED-END INVESTMENT COMPANIES FREQUENTLY TRADE AT A DISCOUNT
FROM NET ASSET VALUE. THIS CHARACTERISTIC OF INVESTMENTS IN A CLOSED-END
INVESTMENT COMPANY IS A RISK SEPARATE AND DISTINCT FROM THE RISK THAT THE
TRUST'S NET ASSET VALUE WILL FALL. THE TRUST CANNOT PREDICT WHETHER ITS SHARES
WILL TRADE AT, BELOW OR ABOVE NET ASSET VALUE. THE RISK OF PURCHASING
INVESTMENTS IN A CLOSED-END INVESTMENT COMPANY THAT MIGHT TRADE AT A DISCOUNT
MAY BE GREATER FOR INVESTORS WHO WISH TO SELL THEIR INVESTMENTS SOON AFTER
COMPLETION OF AN INITIAL PUBLIC OFFERING BECAUSE FOR THOSE INVESTORS,
REALIZATION OF A GAIN OR LOSS ON THEIR INVESTMENTS IS LIKELY TO BE MORE
DEPENDENT UPON THE EXISTENCE OF A PREMIUM OR DISCOUNT THAN UPON PORTFOLIO
PERFORMANCE.
LIMITED TRADING MARKET FOR SECURITIES
The Underwriters currently intend, but are not obligated, to make a market
in the Securities. There can be no assurance that a secondary market will
develop or, if a secondary market does develop, that it will provide the holders
with liquidity of investment or that it will continue for the life of the
Securities. The Underwriters may stop making a market in the Securities at any
time without notice. The Trust will apply to list the Securities on the NYSE. If
that application is accepted, there can be no assurance that the Securities will
not later be delisted or that trading in the Securities on the NYSE will not be
suspended. If the Securities are delisted or suspended from trading on that
exchange, the Trust will apply for listing of the Securities on another national
or regional securities exchange or for quotation on another trading market. If
the Securities are not listed or traded on any securities exchange or trading
market, or if trading of the Securities is suspended, pricing information for
the Securities may be more difficult to obtain, and the price and liquidity of
the Securities may be adversely affected.
SHAREHOLDER RIGHTS
Holders of the Securities will not be entitled to any rights with respect
to the Class A Common Stock unless and until they actually receive Class A
Common Stock in exchange for the Securities. For example, holders of Securities
will not be entitled to vote the shares of Class A Common Stock or receive
dividends.
CERTAIN FEDERAL INCOME TAX CONSIDERATIONS
The following discussion of the principal United States federal income tax
consequences of ownership of Securities represents the opinion of Sullivan &
Cromwell, counsel to the Trust. It deals only with Securities held as capital
assets by a holder who acquires its Securities at the issue price from an
Underwriter pursuant to the original offering, and not with special classes of
holders, such as dealers in securities or currencies, traders that elect to mark
to market, banks, life insurance companies, persons who are not United States
Holders (as
27
<PAGE> 30
defined below), persons that hold Securities that are part of a hedging
transaction, straddle or conversion transaction, or persons whose functional
currency is not the U.S. dollar. The summary is based on the Internal Revenue
Code of 1986, as amended (the "Code"), its legislative history, existing and
proposed regulations under the Code, published rulings and court decisions, all
as currently in effect and all subject to change or different interpretation at
any time, perhaps with retroactive effect. It should be noted that the Trust has
not sought a ruling from the Internal Revenue Service with respect to the
federal income tax consequences of ownership of Securities, and the Internal
Revenue Service is not required to agree with the opinion of Sullivan &
Cromwell.
PROSPECTIVE PURCHASERS OF SECURITIES SHOULD CONSULT THEIR OWN TAX ADVISORS
CONCERNING THE CONSEQUENCES, IN THEIR PARTICULAR CIRCUMSTANCES, UNDER THE CODE
AND THE LAWS OF ANY STATE, LOCAL OR OTHER TAXING JURISDICTION, OF OWNERSHIP OF
SECURITIES.
A "United States Holder" is a beneficial owner of Securities who or that is
(i) a citizen or resident of the United States, (ii) a domestic corporation,
(iii) an estate the income of which is subject to United States federal income
tax without regard to its source or (iv) a trust if a court within the United
States is able to exercise primary supervision over the administration of the
trust and one or more United States persons have the authority to control all
substantial decisions of the trust.
Holders should be aware that there are alternative characterizations of the
Trust's assets which could result in different federal income tax consequences.
See " -- Alternative Characterizations" below. While Sullivan & Cromwell does
not believe these alternative characterizations should apply for federal income
tax purposes, there can be no assurance in this regard, and holders should
consult their tax advisors concerning the risks associated with alternative
characterizations. The following discussion assumes that no such alternative
characterizations will apply.
TAX STATUS OF THE TRUST. The Trust will be treated as a grantor trust for
federal income tax purposes and, under the grantor trust rules of the Code, each
holder will be considered the owner of its pro rata portions of the stripped
U.S. Treasury securities and the Contract in the Trust. Income received by the
Trust will be treated as income of the holders in the manner set forth below.
RECOGNITION OF ORIGINAL ISSUE DISCOUNT ON THE U.S. TREASURY
SECURITIES. The U.S. Treasury securities in the Trust will consist of stripped
U.S. Treasury securities. A holder will be required to treat its pro rata
portion of each U.S. Treasury security initially acquired by the Trust as a bond
that was originally issued on the date the Trust acquired such security. A
holder will include original issue discount in income over the life of the U.S.
Treasury securities in an amount equal to the holder's pro rata portion of the
excess of the amounts payable on those U.S. Treasury securities over the amount
paid for the U.S. Treasury securities by the Trust. The amount of that excess
will constitute only part of the total amounts payable in respect of U.S.
Treasury securities held by the Trust, however. Consequently, a substantial
portion of each quarterly cash distribution to the holders will be treated as a
tax-free return of the holders' investment in the U.S. Treasury securities and
will not be considered current income for federal income tax purposes. See
"Description of Securities -- Distributions -- Tax Treatment of Distributions".
A holder (whether on the cash or accrual method of tax accounting) will be
required to include original issue discount (other than original issue discount
on short-term U.S. Treasury securities as defined below) in income for federal
income tax purposes as it accrues on a constant yield basis. The Trust expects
that more than 20% of the holders will be accrual basis taxpayers, in which case
original issue discount on any short-term U.S. Treasury security (i.e., any U.S.
Treasury security with a maturity of one year or less from the date it is
purchased) held by the Trust also will be required to be included in income by
the holders as it is accrued. Unless a holder elects to accrue the original
issue discount on a short-term U.S. Treasury security according to a constant
yield method based on daily compounding, that original issue discount will be
accrued on a straight-line basis.
EXTENSION OF THE EXCHANGE DATE. Holders should not be required to include
any amounts in income upon the Trust's receipt of additional U.S. Treasury
securities as a result of an extension of the Exchange Date
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<PAGE> 31
under the Contract and should not be required to include any original issue
discount in respect of such U.S. Treasury securities. See "Investment Objective
and Policies -- The Contract".
Although there is no direct authority for the treatment of the cash
distribution paid on the Securities on the extended Exchange Date, it is likely
that such distribution should not be considered income to a holder upon receipt,
but instead should be considered to reduce a holder's basis with respect to such
holder's pro rata portion of the Contract held by the Trust, by analogy to the
treatment of rebates or option premiums. If this treatment is respected, receipt
of the cash distribution on the extended Exchange Date will increase the amount
of gain (or decrease the amount of loss) recognized by a holder on a sale or
other disposition of the Contract (including a disposition pursuant to cash
settlement of the Contract) or on a subsequent sale or other disposition of the
Class A Common Stock delivered pursuant to the Contract. Because there can be no
assurance that the Internal Revenue Service will agree with this
characterization of the cash distribution paid on the extended Exchange Date,
holders are urged to consult their tax advisors concerning the tax consequences
of receiving such payment.
TAX BASIS OF THE U.S. TREASURY SECURITIES AND THE CONTRACT. A holder's
initial tax basis in the Contract and the U.S. Treasury securities,
respectively, will equal its pro rata portion of the amounts paid for them by
the Trust. It is currently anticipated that % and % of the net
proceeds of the offering will be used by the Trust to purchase the U.S. Treasury
securities and as payments for the Contract, respectively. A holder's tax basis
in the U.S. Treasury securities will be increased by the amounts of original
issue discount included in income in respect of U.S. Treasury securities and
decreased by each amount of cash received in respect of U.S. Treasury
securities.
TREATMENT OF THE CONTRACT. Each holder will be treated as having entered
into a pro rata portion of the Contract and, at the Exchange Date under the
Contract, as having received a pro rata portion of the Class A Common Stock or
cash, Marketable Securities or a combination of Class A Common Stock, Marketable
Securities and cash delivered to the Trust.
DISTRIBUTION OF THE CLASS A COMMON STOCK. The delivery of Class A Common
Stock to the Trust pursuant to the Contract and the Trust's distribution of
Class A Common Stock to the holders will not be taxable to the holders. Each
holder's basis in its Class A Common Stock will be equal to its basis in its pro
rata portion of the Contract which are settled in Class A Common Stock less the
portion of that basis allocable to any fractional shares of Class A Common Stock
for which cash is received. A holder will recognize short-term capital gain or
loss upon receipt by the Trust of cash in lieu of fractional shares of Class A
Common Stock equal to the difference between the holder's allocable portion of
the amount of cash received and the holder's basis in those fractional shares.
The holding period for the Class A Common Stock will begin on the day after it
is acquired by the Trust.
DISTRIBUTION OF CASH. If the Trust receives cash upon settlement of the
Contract, a holder will recognize capital gain or loss equal to the difference
between the holder's allocable portion of the amount of cash received and the
holder's basis in the Contract settled for cash. Any gain or loss will be
capital gain or loss which is taxable to holders as described below under
" -- Sale of Securities".
SALE OF SECURITIES. A holder who sells Securities will be treated as
having sold its pro rata portions of the U.S. Treasury securities and the
Contract underlying the Securities. As a result, the holder will recognize
capital gain or loss equal to the difference between the amount realized and the
holder's aggregate tax bases in its pro rata portions of the U.S. Treasury
securities and the Contract. Any gain or loss will be long-term capital gain or
loss if the holder has held the Securities for more than one year. Long-term
capital gain of an individual holder will be subject to a maximum tax rate of
20%.
ALTERNATIVE CHARACTERIZATIONS. Sullivan & Cromwell believes the Contract
should be treated for federal income tax purposes as prepaid forward contracts
for the purchase of a variable number of shares of Class A Common Stock.
The Internal Revenue Service could conceivably seek to treat the Contract
differently. The Internal Revenue Service might, for example, seek to treat the
cash paid to the Seller pursuant to the Contract as loans to the Seller in
exchange for contingent debt obligations of the Seller. If the Internal Revenue
Service were to
29
<PAGE> 32
prevail in making such an assertion, a holder might be required to include
original issue discount in income over the life of the Securities at a market
rate of interest for the Seller, taking account of all the relevant facts and
circumstances. In addition, a holder would be required to include interest
(rather than capital gain) in income on the Exchange Date in an amount equal to
the excess, if any, of the value of the Class A Common Stock received on the
Exchange Date (or the proceeds from cash settlement of the Contract) over the
aggregate of the basis of the Contract and any interest on the Contract
previously included in income (or might be entitled to an ordinary deduction to
the extent of interest previously included in income and not ultimately
received) and any gain or loss attributable to the sale of the Contract could be
treated as ordinary income or loss. The Internal Revenue Service could also
conceivably take the view that a holder should include in income the amount of
cash actually received each year on the Securities.
BACKUP WITHHOLDING AND INFORMATION REPORTING. The payments of principal
and original issue discount on the U.S. Treasury securities, and the proceeds
received from cash settlement of the Contract or the sale of Securities, may be
subject to U.S. backup withholding tax at the rate of 31% if the holder of those
Securities fails to supply an accurate taxpayer identification number or
otherwise to comply with applicable U.S. information reporting or certification
requirements. Any amounts so withheld will be allowed as a credit against that
holder's U.S. federal income tax liability and may entitle that holder to a
refund, provided that the required information is furnished to the Internal
Revenue Service.
After the end of each calendar year, the Trust will furnish to each record
holder of Securities an annual statement containing information relating to the
payments on the U.S. Treasury securities received by the Trust. The Trust will
also furnish annual information returns to each record holder of the Securities
and to the Internal Revenue Service.
UNDERWRITING
Subject to the terms and conditions of the Underwriting Agreement, the
Trust has agreed to sell the Securities to the Underwriters, and the
Underwriters have agreed to purchase the Securities from the Trust. Subject to
certain conditions, each Underwriter has severally agreed to purchase the number
of Securities indicated in the following table.
<TABLE>
<CAPTION>
UNDERWRITERS NUMBER OF SECURITIES
------------ --------------------
<S> <C>
Goldman, Sachs & Co. .......................................
Salomon Smith Barney Inc. ..................................
---------
Total....................................................... 1,250,000
=========
</TABLE>
Securities sold by the Underwriters to the public will initially be offered
at the initial public offering price set forth on the cover of this prospectus.
Any Securities sold by the Underwriters to securities dealers may be sold at a
discount of up to $ per Security from the initial public offering price. Any
such securities dealers may resell any Securities purchased from the
Underwriters to certain other brokers or dealers at a discount of up to $
per Security from the initial public offering price. If all the Securities are
not sold at the initial public offering price, the Underwriters may change the
initial public offering price and the other selling terms. The sales load of
$ per Security is equal to % of the initial public offering price.
Investors must pay for any Securities purchased in the initial public offering
on or before February , 2000.
In connection with the offering, the Underwriters may purchase and sell
Securities in the open market. These transactions may include short sales,
stabilizing transactions and purchases to cover positions created by short
sales. Short sales involve the sale by the Underwriters of a greater number of
Securities than it is required to purchase in the offering. Stabilizing
transactions consist of certain bids or purchases made for the
30
<PAGE> 33
purpose of preventing or retarding a decline in the market price of the
Securities while the offering is in progress.
These activities by the Underwriters may stabilize, maintain or otherwise
affect the market price of the Securities. As a result, the price of the
Securities may be higher than the price that otherwise might exist in the open
market. If these activities are commenced, they may be discontinued by the
Underwriters at any time. These transactions may be effected on the NYSE, in the
over-the-counter market or otherwise.
In light of the fact that proceeds from the sale of the Securities will be
used by the Trust to purchase the Contract from the Seller, the Underwriting
Agreement provides that the Seller will pay to the Underwriters the
Underwriters' Compensation of $ per Security.
The Trust has granted the Underwriters an option exercisable for 30
calendar days after the date of this prospectus to purchase up to an aggregate
of 187,500 additional Securities solely to cover over-allotments, if any. If the
Underwriters exercise their over-allotment option, they will receive the
Underwriters' Compensation referred to above for each Security so purchased.
The Company and the Seller have agreed that, during the period beginning
from the date of this prospectus and continuing to and including the date
days after the date of this prospectus, they will not offer, sell,
contract to sell or otherwise dispose of any Class A Common Stock or other
securities that are substantially similar to the Class A Common Stock, including
but not limited to any securities that are convertible or exchangeable for, or
that represent the right to receive, Class A Common Stock or any such
substantially similar securities, or enter into any swap, option future, forward
or other agreement that transfers, in whole or in part, the economic
consequences of ownership of Class A Common Stock or such other substantially
similar securities, without the prior written consent of Goldman Sachs and
except as otherwise provided in the Underwriting Agreement.
The Securities will be a new issue of securities with no established
trading market. An application will be made to list the Securities on the NYSE
under the symbol "NIE". Trading of the Securities on the New York Stock
Exchange will commence no earlier than the opening of business on February 3,
2000. The Underwriters have advised the Company that they intend to make a
market in the Securities, but they are not obligated to do so and may
discontinue market making at any time without notice. No assurance can be given
as to the liquidity of the trading market for the Securities.
The Underwriters have informed the Trust that it does not expect sales to
any accounts over which it exercises discretionary authority to exceed 5% of the
total Securities offered by this prospectus.
The Company and the Seller have agreed to indemnify the Underwriters
against certain liabilities, including certain liabilities under the Securities
Act of 1933.
Goldman Sachs has subscribed for one Security at a purchase price of
$100.00. Goldman Sachs will surrender this Security upon the closing of the
offering made by this prospectus. No Securities will be sold to the public until
the Securities subscribed for have been purchased and the purchase price of the
Securities paid in full to the Trust.
VALIDITY OF SECURITIES
The validity of the Securities will be passed upon for the Trust by
Sullivan & Cromwell, New York, New York, and for the Underwriters by Brobeck,
Phleger & Harrison, LLP, New York, New York.
EXPERTS
The financial statement included in this prospectus has been audited by,
PricewaterhouseCoopers LLP, independent accountants, as stated in their opinion
appearing herein, and has been so included in reliance upon that opinion given
upon the authority of that firm as experts in accounting and auditing.
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<PAGE> 34
FURTHER INFORMATION
The Trust has filed with the Securities and Exchange Commission,
Washington, D.C. 20549, a Registration Statement under the Securities Act of
1933, as amended, with respect to the Securities offered hereby. More
information concerning the Securities and the Trust may be found in the
Registration Statement of which this prospectus constitutes a part. The
Registration Statement may be inspected without charge at the Commission's
office in Washington, D.C., and copies of all or any part of the Registration
Statement may be obtained from that office after payment of the fees prescribed
by the Commission. The Registration Statement is also available on the
Commission's website (http://www.sec.gov). The Securities will be listed on the
NYSE and information concerning the Trust and the Securities may also be
inspected at the offices of the NYSE, 20 Broad Street, New York, New York 10005.
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<PAGE> 35
REPORT OF INDEPENDENT ACCOUNTANTS
To the Board of Trustees and Securityholders of
NBCi Automatic Common Exchange Security Trust:
In our opinion, the accompanying statement of assets and liabilities
presents fairly, in all material respects, the financial position of NBCi
Automatic Common Exchange Security Trust (the "Trust") as of January 14, 2000,
in conformity with generally accepted accounting principles in the United
States. This financial statement is the responsibility of the Trust's
management; our responsibility is to express an opinion on this financial
statement based on our audit. We conducted our audit of this financial statement
in accordance with generally accepted auditing standards in the United States
which require that we plan and perform the audit to obtain reasonable assurance
about whether the statement of assets and liabilities is free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statement, assessing the accounting
principles used and significant estimates made by the Trust's management and
evaluating the overall financial statement presentation. We believe that our
audit provides a reasonable basis for our opinion.
/s/ PricewaterhouseCoopers LLP
New York, New York
January 14, 2000
33
<PAGE> 36
NBCI
AUTOMATIC COMMON EXCHANGE SECURITY TRUST
STATEMENT OF ASSETS AND LIABILITIES
January 14, 2000
<TABLE>
<S> <C>
ASSETS
Cash........................................................ $100
----
Total assets...................................... $100
====
LIABILITIES
$ 0
----
NET ASSETS
Balance applicable to 1 Security outstanding.............. $100
----
Net asset value per Security.............................. $100
====
</TABLE>
- ---------------
(1) NBCi Automatic Common Exchange Security Trust (the "Trust") was established
on May 3, 1999 and has had no operations to date other than matters relating
to its organization and registration as a non-diversified, closed-end
management investment company under the Investment Company Act of 1940, as
amended. Costs incurred in connection with the Trust's organization will be
paid by the Seller referred to below and by Goldman, Sachs & Co. and Salomon
Smith Barney Inc. (the "Underwriters").
(2) The Trust proposes to sell Trust Automatic Common Exchange Securities (the
"Securities") to the public pursuant to a Registration Statement on Form N-2
under the Securities Act of 1933, as amended, and the Investment Company Act
of 1940.
The Trust is a newly organized, finite-term trust established to purchase
and hold a portfolio of stripped U.S. treasury securities and a forward
purchase contract with CNET Investments II, Inc. (the "Seller") relating to
the Class A Common Stock of NBC Internet, Inc. The Trust will be internally
managed and will not have an investment adviser. The Trust's administration,
which will be overseen by the trustees, will be carried out by The Chase
Manhattan Bank as administrator of the Trust. ChaseMellon Shareholder
Services, L.L.C will act as paying agent with respect to the Securities and
The Chase Manhattan Bank will also serve as custodian, registrar and
transfer agent with respect to the Securities. Ongoing fees and anticipated
expenses for the term of the Trust will be paid for by the Seller.
(3) The Trust issued one Security on January 14, 2000 to Goldman, Sachs & Co. in
consideration for a purchase price of $100. The Trust Agreement provides
that before the offering, the Trust will split the outstanding Security as
of the date that the price and underwriting discount of the Securities being
offered to the public is determined, but before the sale of the Securities
to the Underwriters. The initial Security will be split into the smallest
whole number of Securities that would result in the per Security amount
recorded as shareholders' equity after effecting the split not exceeding the
public offering price per Security.
GLOSSARY
"Administration Agreement" means the Administration Agreement, dated as of
February , 2000, between the Trust and The Chase Manhattan Bank, as
Administrator.
"Administrator" means The Chase Manhattan Bank (or its successor) in its
capacity as Administrator under the Administration Agreement.
"Appreciation Threshold Price" means $ , subject to adjustment as
described under "-The Contract-Dilution Adjustments".
"Average Market Price" per share of Class A Common Stock or Marketable
Securities on any date means the average Closing Price per share of Class A
Common Stock or Marketable Securities for the Calculation Period consisting of
the 20 Trading Days immediately prior to but not including such date; provided
that if no Closing Price for the Class A Common Stock or Marketable Securities
is determined for one or more (but not all) of such Trading Days, such Trading
Days shall be disregarded in the calculation of the Average Market Price (but no
additional Trading Days will be added to the Calculation Period). If no Closing
Price for the Class A Common Stock or Marketable Securities may be determined
for any of such Trading Days, the Average Market Price shall be the Closing
Price for the Class A Common Stock or Marketable Securities for the most recent
Trading Day prior to such 20 Trading Days for which a Closing Price for the
Class A Common Stock or Marketable Securities may be determined pursuant to the
definition of "Closing Price". Notwithstanding the foregoing, for purposes of
determining the payment required upon cash settlement of a Contract in
connection with a Rollover Offering, "Average Market Price" means the Closing
Price per share of Class A Common Stock or Marketable Securities on the Trading
Day immediately
34
<PAGE> 37
prior to the date that the Rollover Offering is priced (the "Pricing Date") or,
if the Rollover Offering is priced after 4:00 P.M., New York City time, on the
Pricing Date, the Closing Price per share on the Pricing Date.
"Beneficial Owner" means an actual purchaser of a Security, which will not
receive written confirmation from DTC of its purchases of Securities but which
is expected to receive written confirmations providing details of the
transactions, as well as periodic statements of its holdings, from the Direct or
Indirect Participants through which the Beneficial Owner purchased Securities.
"Calculation Period" means any period of Trading Days for which an average
security price must be determined pursuant to the Contract.
"Cash Delivery Obligations" means, at any time, (A) if no Reorganization
Event has occurred, zero, and (B) from and after any Reorganization Event, the
Transaction Value of any Consideration other than Marketable Securities included
in the Merger Consideration in such Reorganization Event, multiplied by the
maximum number of shares of Class A Common Stock covered by the Contract at the
time of the Reorganization Event; provided that if the Reorganization Event is a
Cash Merger, the Seller's Cash Delivery Obligation will be zero after the Seller
delivers the Accelerated Portion as required under the Contract.
"Class A Common Stock" means the Class A Common Stock, par value $0.0001
per share, of the Company.
"Closing Price" of any common equity security (including the Class A Common
Stock or any Marketable Securities) on any date of determination means the
closing sale price (or, if no closing sale price is reported, the last reported
sale price) of such common equity security as reported on the NYSE Consolidated
Tape on such date of determination or, if such common equity security is not
listed for trading on the NYSE on such date, as reported in the composite
transactions for the principal United States national or regional securities
exchange on which such common equity security is so listed, or if such common
equity security is not so listed on a United States national or regional
securities exchange on such date, as reported by the Nasdaq or, if such common
equity security is not so reported on such date, the last quoted bid price for
such common equity security in the over-the-counter market as reported by the
National Quotation Bureau or any similar organization; provided that if any
event that results in an adjustment to the number of shares of Class A Common
Stock or Marketable Securities deliverable under the Contract, as described
under " -- The Contract-Dilution Adjustments", occurs during any Calculation
Period, the Closing Price as determined pursuant to the foregoing for each
Trading Day in the Calculation Period occurring prior to the date on which such
adjustment is effected will be appropriately adjusted to reflect the occurrence
of such event.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collateral Agent" means The Chase Manhattan Bank (or its successor) in its
capacity as Collateral Agent under the Collateral Agreements.
"Collateral Agreement" means the Collateral Agreement, dated as of February
, 2000, among the Seller, The Chase Manhattan Bank, as Collateral Agent, and
the Trust, securing the Seller's obligations under the Contract.
"Collateral Event of Default" under the Collateral Agreement means, at any
time, (A) if no U.S. Government obligations are pledged as substitute collateral
at or before that time, failure of the collateral to include at least the
maximum number of shares of Class A Common Stock covered by the Contract at that
time (or, if a Reorganization Event or Spin-Off Distribution has occurred at or
before that time, failure of the collateral to include the maximum number of
shares of any Marketable Securities required to be pledged as described under
"Investment Objective and Policies-The Contract-Collateral Arrangements;
Acceleration Upon Default By the Seller" above); (B) if any U.S. Government
obligations are pledged as substitute collateral for shares of Class A Common
Stock (or shares of Marketable Securities deliverable pursuant to the Contract)
at that time, failure of those U.S. Government obligations to have a market
value at that time of at least 105% of the market price per share of Class A
Common Stock (or shares of Marketable Securities, as the case may be) times the
difference between (x) the maximum number of shares of Class A Common Stock (or
shares of Marketable Securities) covered by the Contract at that time and (y)
the number of shares
35
<PAGE> 38
of Class A Common Stock (or shares of Marketable Securities) pledged as
collateral at that time; and (C) at any time after a Reorganization Event in
which consideration other than Marketable Securities has been delivered, failure
of any U.S. Government obligations pledged as collateral for Cash Delivery
Obligations to have a market value at that time of at least 105% of those Cash
Delivery Obligations, if that failure is not cured within one business day after
notice of that failure is delivered to the Seller.
"Company" means NBC Internet, Inc., a Delaware corporation.
"Company Prospectus" means the prospectus of the Company, dated January 12,
2000 (attached as Appendix A hereto), which describes the Company and the Class
A Common Stock.
"Company Successor" means a surviving entity or subsequent surviving entity
of the Company.
"Contract" means the forward purchase contract between the Seller and the
Trust relating to the Class A Common Stock.
"Custodian" means The Chase Manhattan Bank (or its successor) in its
capacity as Custodian under the Custodian Agreement.
"Custodian Agreement" means the Custodian Agreement, dated as of February
, 2000, between the Trust and The Chase Manhattan Bank, as Custodian.
"Direct Participants" means Participants of DTC, including brokers and
dealers, banks, trust companies, clearing corporations and certain other
organizations, that are direct Participants of DTC.
"DTC" means The Depository Trust Company.
"Excess Purchase Payment" means the excess, if any, of (i) the cash and the
value (as determined by a nationally recognized independent investment banking
firm retained for this purpose by the Administrator, whose determination shall
be final) of all other consideration paid by the Company with respect to one
share of Class A Common Stock acquired in a tender offer or exchange offer by
the Company, over (ii) the Then-Current Market Price per share of Class A Common
Stock.
"Exchange Date" means February , 2003, subject to extension and
acceleration by the Seller under the Contract.
"Exchange Rate" means the rate of exchange of Class A Common Stock for
Securities on the Exchange Date, and will be determined as follows (adjusted in
certain events):
(i) If the Average Market Price is less than the Appreciation Threshold
Price but equal to or greater than the Initial Price, the Exchange
Rate will be a fraction (rounded upward or downward to the nearest
1/10,000th or, if there is not a nearest 1/10,000th, to the next
lower 1/10,000th) equal to the Initial Price divided by the Average
Market Price.
(ii) If the Average Market Price is equal to or greater than the
Appreciation Threshold Price, the Exchange Rate will be
0. shares of Class A Common Stock.
(iii) If the Average Market Price is less than the Initial Price, the
Exchange Rate will be one share of Class A Common Stock.
"holders" means the registered holders of the Securities.
"Indirect Participants" means Participants of DTC, such as securities
brokers and dealers, banks and trust companies, that clear through or maintain a
custodial relationship with a Direct Participant, either directly or indirectly.
"Initial Price" means $ , subject to adjustment as described under
" -- The Contract-Dilution Adjustments".
"Insufficiency Determination" means a determination by the Collateral Agent
that the collateral pledged by the Seller fails to meet the requirements
described under "Investment Objective and Policies -- The Contract-Collateral
Arrangements; Acceleration Upon Default By the Seller".
36
<PAGE> 39
"Investment Company Act" means the Investment Company Act of 1940, as
amended.
"majority of the Trust's outstanding Securities" means the lesser of (i)
67% of the Securities represented at a meeting at which more than 50% of the
outstanding Securities are represented, and (ii) more than 50% of the
outstanding Securities.
"Managing Trustee" means the Trustee designated to serve as Managing
Trustee.
"Marketable Securities" means any common equity securities (whether voting
or non-voting) listed on a U.S. national or regional securities exchange or
reported by the NASDAQ National Market.
"Nasdaq" means The NASDAQ Market -- National Market.
"NYSE" means the New York Stock Exchange, Inc.
"Participants" means participants of DTC.
"Paying Agent" means ChaseMellon Shareholder Services, L.L.C. (or its
successor) in its capacity as transfer agent, registrar and paying agent under
the Paying Agent Agreement.
"Paying Agent Agreement" means the Paying Agent Agreement, dated as of
February , 2000, between the Trust and ChaseMellon Shareholder Services,
L.L.C., as transfer agent, registrar and paying agent.
"Permitted Dividend" means any quarterly cash dividend in respect of the
Class A Common Stock, other than a quarterly cash dividend that exceeds the
immediately preceding quarterly cash dividend, and then only to the extent that
the per share amount of such dividend results in an annualized dividend yield on
the Class A Common Stock in excess of 12.5%.
"Pricing Date" means the date that a Rollover Offering is priced.
"Reorganization Event" means (A) any consolidation or merger of the
Company, or any Company Successor, with or into another entity (other than a
consolidation or merger in which the Company is the continuing corporation and
in which the Class A Common Stock outstanding immediately prior to the
consolidation or merger is not exchanged for cash, securities or other property
of the Company or another corporation), (B) any sale, transfer, lease or
conveyance to another corporation of the property of the Company or any Company
Successor as an entirety or substantially as an entirety, (C) any statutory
exchange of securities of the Company or any Company Successor with another
corporation (other than in connection with a consolidation or merger referred to
in clause (A)) or (D) any liquidation, dissolution or winding up of the Company
or any Company Successor.
"Rollover Offering" means a reoffering or refinancing of Securities
effected not earlier than February , 2003, by means of a completed public
offering or offerings, or another similar offering (which may include one or
more exchange offers), by or on behalf of the Seller.
"SEC" means the Securities and Exchange Commission.
"Securities" means the Trust's $ Trust Automatic Common Exchange
Securities.
"Seller" means CNET Investments II, Inc., a Delaware corporation.
"Spin-Off Distribution" means a distribution by the Company to holders of
Class A Common Stock of Marketable Securities issued by an issuer other than the
Company.
"Then-Current Market Price" of the Class A Common Stock, for the purpose of
applying any adjustment described in "Investment Objective and Policies -- The
Contract-Dilution Adjustments", means the average Closing Price per share of
Class A Common Stock for the Calculation Period consisting of five Trading Days
immediately prior to the time such adjustment is effected (or, in the case of an
adjustment effected at the opening of business on the business day after a
record date, immediately prior to the earlier of the time such adjustment is
effected and the related ex-date); provided that if no Closing Price for the
Class A Common Stock is determined for one or more (but not all) of such Trading
Days, such Trading Days will be disregarded in the calculation of the
Then-Current Market Price (but no additional Trading Days will be
37
<PAGE> 40
added to the Calculation Period). If no Closing Price for the Class A Common
Stock may be determined for any of such Trading Days, the Then-Current Market
Price shall be the Closing Price for the Class A Common Stock for the most
recent Trading Day prior to five Trading Days for which a Closing Price for the
Class A Common Stock may be determined pursuant to the definition of "Closing
Price". The ex-date with respect to any dividend, distribution or issuance shall
mean the first date on which the shares of Class A Common Stock trade regular
way on their principal market without the right to receive such dividend,
distribution or issuance.
"Trading Day" in respect of any common equity security means a day on which
such common equity security (A) is not suspended from trading on any United
States national or regional securities exchange or association or
over-the-counter market at the close of business and (B) has traded at least
once on the United States national or regional securities exchange or
association or over-the-counter market that is the primary market for the
trading of that security.
"Transaction Value" means, with respect to any Reorganization Event, the
sum of: (i) for any cash received in such Reorganization Event, the amount of
such cash received per share of Class A Common Stock; (ii) for any property
other than cash or Marketable Securities received in such Reorganization Event,
an amount equal to the market value on the date such Reorganization Event is
consummated of such property received per share of Class A Common Stock as
determined by a nationally recognized independent investment banking firm
retained for this purpose by the Administrator, whose determination shall be
final; and (iii) for any Marketable Securities received in such Reorganization
Event, an amount equal to the average Closing Price per share of these
Marketable Securities for the Calculation Period of 20 Trading Days immediately
prior to the Exchange Date (or, in the case of a Cash Merger, for the 20 Trading
Days immediately before the date the Reorganization Event is consummated),
multiplied by the number of such Marketable Securities received for each share
of Class A Common Stock; provided that if no Closing Price for such Marketable
Securities may be determined for one or more (but not all) of such Trading Days,
such Trading Days shall be disregarded in the calculation of such average
Closing Price (but no additional Trading Days shall be added to the Calculation
Period). If no Closing Price for the Marketable Securities may be determined for
any of such Trading Days, the calculation in the preceding clause (iii) will be
based on the Closing Price for the Marketable Securities for the most recent
Trading Day prior to such 20 Trading Days for which a Closing Price for the
Marketable Securities may be determined pursuant to the definition of "Closing
Price".
"Trust" means the NBCi Automatic Common Exchange Security Trust.
"Trust Agreement" means the trust agreement dated as of May 3, 1999
pursuant to which the Trust was formed, as amended and restated as of February
, 2000.
"Trustees" means the three trustees who will internally manage the Trust.
"Underwriters" means Goldman, Sachs & Co. and Salomon Smith Barney Inc. the
Underwriters of the Securities.
"Underwriters' Compensation" means the compensation of $ per Security
payable to the Underwriters by the Seller pursuant to the Underwriting
Agreement.
"United States Holder" means a beneficial owner of Securities who or that
is (i) a citizen or resident of the United States, (ii) a domestic corporation
or (iii) otherwise covered by United States federal income taxation on a net
income basis in respect of Securities.
"Value" means (i) in respect of cash, the amount of such cash; (ii) in
respect of any property other than cash or Marketable Securities, an amount
equal to the market value on the date the Reorganization Event is consummated
(as determined by a nationally recognized independent investment banking firm
retained for this purpose by the Administrator); and (iii) in respect of any
share of Marketable Securities, an amount equal to the average Closing Price per
share of those Marketable Securities for the 20 Trading Days immediately before
the date the Reorganization Event is consummated; provided that if no Closing
Price for such Marketable Securities may be determined for one or more (but not
all) of such Trading Days, such Trading Days shall be disregarded in the
calculation of such average Closing Price (but no additional Trading
38
<PAGE> 41
Days shall be added to the Calculation Period). If no Closing Price for the
Marketable Securities may be determined for any of such Trading Days, the
calculation in the preceding clause (iii) will be based on the Closing Price for
the Marketable Securities for the most recent Trading Day prior to such 20
Trading Days for which a Closing Price for the Marketable Securities may be
determined pursuant to the definition of "Closing Price".
39
<PAGE> 42
- ----------------------------------------------------------
- ----------------------------------------------------------
NO DEALER, SALESPERSON OR OTHER PERSON IS AUTHORIZED TO GIVE ANY
INFORMATION OR TO REPRESENT ANYTHING NOT CONTAINED IN THIS PROSPECTUS. YOU MUST
NOT RELY ON ANY UNAUTHORIZED INFORMATION OR REPRESENTATIONS. THIS PROSPECTUS IS
AN OFFER TO SELL ONLY THE SECURITIES OFFERED HEREBY, BUT ONLY UNDER
CIRCUMSTANCES AND IN JURISDICTIONS WHERE IT IS LAWFUL TO DO SO. THE INFORMATION
CONTAINED IN THIS PROSPECTUS IS CURRENT ONLY AS OF ITS DATE.
------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Prospectus Summary....................... 2
The Trust................................ 8
Use of Proceeds.......................... 11
Investment Objective and Policies........ 11
Description of Securities................ 22
Risk Factors............................. 26
Certain Federal Income Tax
Considerations......................... 27
Underwriting............................. 30
Validity of Securities................... 31
Experts.................................. 31
Further Information...................... 31
Report of Independent Accountants........ 32
Statement of Assets and Liabilities...... 33
Glossary................................. 33
Appendix A: Prospectus of NBC Internet,
Inc.
</TABLE>
------------------------
Through and including , 2000 (the 25th day after the date of this
prospectus), all dealers effecting transactions in these Securities, whether or
not participating in this offering, may be required to deliver a prospectus.
This is in addition to a dealer's obligation to deliver a prospectus when acting
as an underwriter and with respect to an unsold allotment or subscription.
- ----------------------------------------------------------
- ----------------------------------------------------------
- ----------------------------------------------------------
- ----------------------------------------------------------
1,250,000 Shares
NBCI AUTOMATIC
Common Exchange
Security Trust
$ TRUST AUTOMATIC COMMON
EXCHANGE SECURITIES
(TRACES(TM)/(SM))
------------------------
PROSPECTUS
------------------------
GOLDMAN, SACHS & CO.
SALOMON SMITH BARNEY
- ----------------------------------------------------------
- ----------------------------------------------------------
<PAGE> 43
PART C
OTHER INFORMATION
ITEM 24. FINANCIAL STATEMENTS AND EXHIBITS
<TABLE>
<S> <C> <C>
(a) Financial Statements
Part
A -- Report of Independent Accountants.
Statement of Assets and Liabilities.
Part
B -- None.
(b) Exhibits
2.a.(i) Trust Agreement+
2.a.(ii) Form of Amended and Restated Trust Agreement+
Form of Specimen Certificate of $ Trust Automatic
2.d Common Exchange
Security (included in Exhibit 2.a.(ii))+
2.h Form of Underwriting Agreement
2.j Form of Custodian Agreement+
2.k.(i) Form of Administration Agreement+
2.k.(ii) Form of Paying Agent Agreement+
2.k.(iii) Form of Purchase Contract+
2.k.(iv) Form of Collateral Agreement+
2.k.(v) Form of Fund Expense Agreement
2.k.(vi) Form of Fund Indemnity Agreement
2.l Opinion and Consent of Counsel to the Trust
2.n.(i) Tax Opinion and Consent of Counsel to the Trust
2.n.(ii) Consent of Independent Public Accountants+
2.n.(iii) Consents to Being Named as Trustee
2.p Form of Subscription Agreement+
2.r Financial Data Schedule
2.s Powers of Attorney
</TABLE>
- ---------------
+ Filed previously.
ITEM 25. MARKETING ARRANGEMENTS
See the Form of Underwriting Agreement to be filed as Exhibit 2.h to this
Registration Statement.
ITEM 26. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the estimated expenses to be incurred in
connection with the offering described in this Registration Statement:
<TABLE>
<S> <C>
Registration fees........................................... $
New York Stock Exchange listing fee.........................
Printing (other than certificates)..........................
Fees and expenses of qualification under state securities
laws (excluding fees of counsel)..........................
Accounting fees and expenses................................
Legal fees and expenses.....................................
NASD fees...................................................
Miscellaneous...............................................
Total............................................. $
</TABLE>
C-1
<PAGE> 44
ITEM 27. PERSON CONTROLLED BY OR UNDER COMMON CONTROL WITH REGISTRANT
Before May 3, 1999 the Trust had no existence. As of the effective date,
the Trust will have entered into a Subscription Agreement for one Security with
Goldman, Sachs & Co. and an Underwriting Agreement with Goldman, Sachs & Co. and
Salomon Smith Barney with respect to the Securities offered by the prospectus.
ITEM 28. NUMBER OF HOLDERS OF SECURITIES
<TABLE>
<CAPTION>
NUMBER OF
TITLE OF CLASS RECORD HOLDERS
-------------- --------------
<S> <C>
$ Trust Automatic Common Exchange Securities....... 1
</TABLE>
ITEM 29. INDEMNIFICATION
The Underwriting Agreement, to be filed as Exhibit 2.h to this Registration
Statement, provides for indemnification of the Underwriters against certain
liabilities, including liabilities under the Securities Act of 1933, as amended
(the "Securities Act").
The Amended and Restated Trust Agreement filed as Exhibit 2.a.(ii) to this
Registration Statement provides for indemnification to each Trustee against any
claim or liability incurred in acting as Trustee of the Trust, except in the
case of willful misfeasance, bad faith, gross negligence or reckless disregard
of the Trustee's duties. The Custodian Agreement, Administration Agreement and
Paying Agent Agreement filed as Exhibits 2.j, 2.k.(i) and 2.k.(ii) to this
Registration Statement provide for indemnification to the Custodian,
Administrator and Paying Agent against any loss or expense incurred in the
performance of their obligations under the respective agreements, unless such
loss or expense is due to willful misfeasance, bad faith, gross negligence or
reckless disregard of their obligations. The Fund Indemnity Agreement filed as
Exhibit 2.k.(vi) to this Registration Statement provides that the Seller and the
Underwriters will indemnify the Trust for certain indemnification expenses
incurred under the Trust Agreement, the Custodian Agreement, the Administration
Agreement and the Paying Agent Agreement.
Insofar as indemnification for liability arising under the Securities Act
may be permitted to trustees, officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. If a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred or
paid by a trustee, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
trustee, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
ITEM 30. BUSINESS AND OTHER CONNECTIONS OF INVESTMENT ADVISER
Not Applicable.
ITEM 31. LOCATION OF ACCOUNTS AND RECORDS
The Trust's accounts, books and other documents are currently located at
the offices of the Registrant, c/o Goldman, Sachs & Co., 85 Broad Street, New
York, New York 10004 and at the offices of The Chase Manhattan Bank, 450 West
33rd Street, 10th Floor, New York, New York 10001, the Registrant's
administrator.
ITEM 32. MANAGEMENT SERVICES
Not applicable.
C-2
<PAGE> 45
ITEM 33. UNDERTAKINGS
(a) The Registrant hereby undertakes to suspend offering of the Securities
until it amends its prospectus if (1) subsequent to the effective date of its
Registration Statement, the net asset value falls more than 10 percent from its
net asset value as of the effective date of the Registration Statement or (2)
the net asset value increases to an amount greater than its net proceeds as
stated in the prospectus.
(b) The Registrant hereby undertakes that (i) for the purpose of
determining any liability under the Securities Act, the information omitted from
the form of prospectus filed as part of this registration statement in reliance
upon Rule 430A and contained in a form of prospectus filed by the Registrant
under Rule 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective; (ii) for the
purpose of determining any liability under the Securities Act, each
post-effective amendment that contains a form of prospectus shall be deemed to
be a new registration statement relating to the securities offered therein, and
the offering of the securities at that time shall be deemed to be the initial
bona fide offering thereof.
C-3
<PAGE> 46
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933 and the
Investment Company Act of 1940, the Registrant has duly caused this Amendment
No. 4 to the Registration Statement to be signed on its behalf by the
undersigned, thereto duly authorized, in the City of New York, State of New
York, on the 3rd day of February, 2000.
NBCi AUTOMATIC COMMON
EXCHANGE SECURITY TRUST
By: /s/ RIZWAN JAMAL
------------------------------------
(Rizwan Jamal as Attorney-in-Fact
for
Paul S. Efron Sole Trustee)
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 4 to the Registration Statement has been signed below by the following
person, in the capacities and on the date indicated.
<TABLE>
<CAPTION>
NAME TITLE DATE
---- ----- ----
<S> <C> <C>
* Sole Trustee February 3, 2000
- ---------------------------------------------------
PAUL S. EFRON
*By: /s/ RIZWAN JAMAL
- ---------------------------------------------------
(Rizwan Jamal
as Attorney-in-Fact for
the person indicated)
</TABLE>
<PAGE> 47
EXHIBIT INDEX
<TABLE>
<CAPTION>
SEQUENTIAL
EXHIBIT PAGE
NUMBER DESCRIPTION NUMBER
------- ----------- ----------
<S> <C> <C>
2.a.(i) Trust Agreement+
2.a.(ii) Form of Amended and Restated Trust Agreement+
2.d Form of Specimen Certificate of $ Trust Automatic
Common Exchange Security (included in Exhibit 2.a.(ii)+
2.h Form of Underwriting Agreement
2.j Form of Custodian Agreement+
2.k.(i) Form of Administration Agreement+
2.k.(ii) Form of Paying Agent Agreement+
2.k.(iii) Form of Purchase Agreement+
2.k.(iv) Form of Collateral Agreement+
2.k.(v) Form of Fund Expense Agreement
2.k.(vi) Form of Fund Indemnity Agreement
2.l Opinion and Consent of Counsel to the Trust
2.n.(i) Tax Opinion and Consent of Counsel to the Trust
2.n.(ii) Consent of Independent Public Accountants+
2.n.(iii) Consents to Being Named as Trustee
2.p Form of Subscription Agreement+
2.r Financial Data Schedule
2.s Powers of Attorney
</TABLE>
- ---------------
+ Filed previously.
<PAGE> 1
EXHIBIT 2.h
NBCI AUTOMATIC COMMON
EXCHANGE SECURITY TRUST
--------------------------------------------------
$ ______ TRUST AUTOMATIC COMMON EXCHANGE
SECURITIES (SUBJECT TO EXCHANGE INTO CLASS A
COMMON STOCK (PAR VALUE $0.0001 PER SHARE)
OF NBC INTERNET, INC.)
--------------------------------------------------
UNDERWRITING AGREEMENT
--------------------------------------------------
February __, 2000
Goldman, Sachs & Co.,
Salomon Smith Barney Inc.,
c/o Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004
Ladies and Gentlemen:
NBCi Automatic Common Exchange Security Trust, a trust duly created
under the laws of the State of New York (such trust and the trustees thereof
acting in their capacities as such being referred to herein as the "Trust"),
proposes, subject to the terms and conditions stated herein, to issue and sell
to the Underwriters named in Schedule I hereto (the "Underwriters") an aggregate
of 1,250,000 shares of the $_____ Automatic Common Exchange Securities of the
Trust specified above (the "Firm Securities") and, at the election of the
Underwriters, up to an aggregate of 187,500 additional shares of the $_____
Automatic Common Exchange Securities (the "Optional Securities") (the Firm
Securities and the Optional Securities which the Underwriters elect to purchase
pursuant to Section 2 hereof are herein collectively called the "Securities").
The $____ Automatic Common Exchange Securities of the Trust to be
outstanding after giving effect to the sales contemplated hereby are hereinafter
called the "Automatic Common Exchange Securities". Each Automatic Common
Exchange Security will be exchanged for one or fewer shares of Class A Common
Stock, par value $0.0001 per share ("Stock"), of NBC Internet, Inc., a Delaware
corporation (the "Company") on February , 2003 (the "Exchange Date") to be
delivered pursuant to a forward purchase contract (the "Contract"), dated
February __, 2000, between the Trust and a certain existing stockholder of the
Company identified in Schedule II hereto (the "Seller"). In lieu of delivery of
shares of Stock, the Contract provides that the Seller may elect (a) to pay cash
or deliver other securities on the Exchange Date for each share of Stock then
deliverable and (b) to extend the Exchange Date to a date not later than May __,
2003, in each case subject to the terms and conditions of the Contract. The
Trust has
<PAGE> 2
entered into a Contract with the Seller obligating that Seller to deliver to the
Trust on the Exchange Date a number of shares of Stock equal to the product of
the Exchange Rate (as such term is defined in the Trust Prospectus (as defined
in Section 1(c)(i))) times the initial number of shares of Stock subject to such
Contract. Each Seller's obligations under the Contract will be secured by a
pledge of collateral pursuant to the terms of a collateral agreement, dated
February __, 2000, between the Seller, The Chase Manhattan Bank ("Chase"), as
collateral agent (in such capacity, the "Collateral Agent"), and the Trust (the
"Collateral Agreements").
It is understood and agreed to by all parties that the Company, Seller
and a certain other stockholder of the Company (together with the Seller, the
"Selling Stockholders") are concurrently entering into: an agreement (the
"Underwriting Agreement") providing for the sale by the Company and the Selling
Stockholders of up to a total of 4,600,000 shares of Stock and, at the election
of the underwriters who are parties to the Underwriting Agreement, up to 690,000
additional shares of Stock, through arrangements with certain underwriters, for
whom Goldman, Sachs & Co., Bear, Stearns & Co. Inc., Deutsche Bank Securities,
Inc., FleetBoston Robertson Stephens Inc., Hambrecht & Quist LLC, Salomon Smith
Barney Inc., Banc of America Securities LLC, Gruntal & Co., L.L.C. and Allen &
Company Incorporated.
1. (a) The Company hereby represents and warrants to, and agrees
with, each of the Underwriters, the Trust and the Seller that:
(i) A registration statement on Form S-1 (File No. 333-94655)
(the "Initial Company Registration Statement") in respect of the shares
of Stock deliverable pursuant to the Contract has been filed with the
Securities and Exchange Commission (the "Commission"); the Initial
Company Registration Statement and any post-effective amendment
thereto, each in the form heretofore, made available to you, and,
excluding exhibits thereto, have been declared effective by the
Commission, in such form; other than a registration statement, if any,
increasing the size of the offering (a "Company Rule 462(b)
Registration Statement"), filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended (the "Act"), which became effective
upon filing, no other document with respect to the Initial Company
Registration Statement has heretofore been filed with the Commission;
and no stop order suspending the effectiveness of the Initial Company
Registration Statement, any post-effective amendment thereto or the
Company Rule 462(b) Registration Statement, if any, has been issued and
no proceeding for that purpose has been initiated or to the Company's
knowledge threatened by the Commission (any preliminary prospectus in
respect of the shares of stock deliverable pursuant to the Contract and
included in the Initial Company Registration Statement or filed with
the Commission pursuant to Rule 424(a) of the rules and regulations of
the Commission under the Act is hereinafter called a "Company
Preliminary Prospectus"; the various parts of the Initial Company
Registration Statement and the Company Rule 462(b) Registration
Statement, if any, including all exhibits thereto and including the
information contained in the form of final prospectus filed with the
Commission pursuant to Rule 424(b) under the Act in accordance with
Section 5(a) hereof and deemed by virtue of Rule 430A under the Act to
be part of the Initial Company Registration Statement at the time it
was declared effective or such part of the Company Rule 462(b)
Registration Statement, if any, became or hereafter becomes effective,
are hereinafter collectively called the "Company Registration
Statement"; such final prospectus, in the form first filed pursuant to
Rule
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424(b) under the Act, is hereinafter called the "Company Prospectus";
and the Trust Registration Statement (as defined in Section 1(c)(i)
hereof) and the Company Registration Statement are hereinafter
collectively called the "Registration Statements" and the Trust
Prospectus and the Company Prospectus are hereinafter collectively
called the "Prospectuses"; and any reference herein to any Company
Preliminary Prospectus or the Company Prospectus shall be deemed to
refer to any reference to any amendment or supplement to any Company
Preliminary Prospectus;
(ii) No order preventing or suspending the use of any Company
Preliminary Prospectus has been issued by the Commission, and each
Company Preliminary Prospectus, at the time of filing thereof,
conformed in all material respects to the requirements of the Act and
the rules and regulations of the Commission thereunder, and did not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that this representation
and warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in writing
to the Company by an Underwriter through Goldman, Sachs & Co. expressly
for use therein or by a Selling Stockholder or Seller expressly for use
in the preparation of the answers therein;
(iii) The Company Registration Statement conforms, and the
Company Prospectus and any further amendments or supplements to the
Company Registration Statement or the Company Prospectus will conform,
in all material respects to the requirements of the Act and the rules
and regulations of the Commission thereunder and do not and will not,
as of the applicable effective date as to the Company Registration
Statement and any amendment thereto, and as of the applicable filing
date as to the Company Prospectus and any amendment or supplement
thereto, contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading; provided, however, that
this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through Goldman,
Sachs & Co. expressly for use therein or by a Selling Stockholder or
Seller expressly for use in the preparation of the answers therein;
(iv) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included in the Company Prospectus any material loss or interference
with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court
or governmental action, order or decree, otherwise than as set forth or
contemplated in the Company Prospectus; and, since the respective dates
as of which information is given in the Company Registration Statement
and the Company Prospectus, there has not been any change in the
capital stock (except for the grant of stock options or issuances of
stock upon the exercise of options or warrants or pursuant to stock
plans) or long-term debt (except such changes in long-term debt as do
not exceed $500,000) of the Company or any of its subsidiaries or any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of
operations of the Company and its
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<PAGE> 4
subsidiaries taken as a whole, otherwise than as set forth or
contemplated in the Company Prospectus;
(v) The Company and its subsidiaries have good and marketable
title in fee simple to all real property and good and marketable title
to all personal property owned by them, in each case free and clear of
all liens, encumbrances and defects except such as are described in the
Company Prospectus or such as do not materially affect the value of
such property and do not materially interfere with the use made and
proposed to be made of such property by the Company and its
subsidiaries; and any real property and buildings held under lease by
the Company and its subsidiaries are held by them under valid,
subsisting and enforceable leases with such exceptions as are not
material and do not interfere with the use made and proposed to be made
of such property and buildings by the Company and its subsidiaries;
(vi) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Company
Prospectus, and has been duly qualified as a foreign corporation for
the transaction of business and is in good standing under the laws of
each other jurisdiction in which it owns or leases properties or
conducts any business so as to require such qualification, except where
the failure to be so qualified & in good standing shall not have a
material adverse effect on the business, prospects, results of
operations or financial condition of the Company and its subsidiaries
taken as a whole (a "Material Adverse Effect); and each subsidiary of
the Company has been duly incorporated and is validly existing as a
corporation in good standing with the laws of its jurisdiction of
incorporation;
(vii) The Company has an authorized capitalization as set forth
in the Company Prospectus, and all of the issued shares of capital
stock of the Company (including the shares of Stock to be pledged under
Collateral Agreements) have been duly and validly authorized and
issued, are fully paid and non-assessable and conform in all material
respects to the description of the Company's capital stock contained in
the Company Prospectus; and all of the issued shares of capital stock
of each subsidiary of the Company issued to the Company have been duly
and validly authorized and issued, are fully paid and non-assessable
and (except for directors' qualifying shares) are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances,
equities or claims;
(viii) The compliance by the Company with all of the provisions
of this Agreement and the consummation of the transactions herein
contemplated will not conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its subsidiaries
is a party or by which the Company or any of its subsidiaries is
subject, except where such breach or violation could not reasonably be
expected to have a Material Adverse Effect, nor will such action result
in any violation of the provisions of the Certificate of Incorporation
or By-laws of the Company or any statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of
their properties, except where such breach of violation could not
reasonably be expected to have a Material Adverse Effect; and no
consent, approval, authorization, order,
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<PAGE> 5
registration or qualification of or with any such court or governmental
agency or body is, or at the Time of Delivery will be, required for the
issue and sale of the shares of Stock or the consummation by the
Company of the transactions contemplated by this Agreement, except the
registration under the Act of the shares of Stock and such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with the
purchase and distribution of the shares of Stock pursuant to the
Contract;
(ix) Neither the Company nor any of its subsidiaries is in
violation of its Certificate of Incorporation or By-laws or in breach
in the performance or observance of any material obligation, agreement,
covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement, lease or other material agreement or instrument
to which it is a party or by which it or any of its properties may be
bound, except where such breach or violation could not reasonably be
expected to have a Material Adverse Effect;
(x) The statements set forth in the Company Prospectus under
the caption "Description of Capital Stock", insofar as they purport to
constitute a summary of the terms of the Stock and under the caption
"Underwriting", insofar as they purport to describe the provisions of
the laws and the documents referred to therein, are accurate and
complete in all material respects;
(xi) Other than as set forth in the Company Prospectus, there
are no legal or governmental proceedings pending to which the Company
or any of its subsidiaries is a party or of which any property of the
Company or any of its subsidiaries is the subject which, if determined
adversely to the Company or any of its subsidiaries, would individually
or in the aggregate have a Material Adverse Effect; and, to the best of
the Company's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(xii) The Company is not and, after giving effect to the
offering and sale of Stock under the Underwriting Agreement, will not
be subject to registration as an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended;
(xiii) Ernst & Young LLP, who have certified certain financial
statements of the Company and its subsidiaries and certain financial
statements of Xoom.com, Inc., Paralogic Corporation, Global Bridges
Technologies, Inc., Pagecount, Inc., Paralogic Software Corporation and
Mighty Mail Networks, Inc., and KPMG LLP, who have certified certain
financial statements of Snap! LLC and NBC Multimedia Division, and
PricewaterhouseCoopers LLP, who have certified certain financial
statements of LiquidMarket, Inc., are each independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder;
(xiv) The Company has reviewed its operations and that of its
subsidiaries and any third parties with which the Company or any of its
subsidiaries has a material relationship to evaluate the extent to
which the business or operations of the Company or
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<PAGE> 6
any of its subsidiaries has been or will be affected by the Year 2000
Problem. As a result of such review, the Company has no reason to
believe, and does not believe, that the Year 2000 Problem has had or
will have material adverse effect on the general affairs, management,
the current or future consolidated financial position, business
prospects, stockholders' equity or results of operations of the Company
and its subsidiaries has resulted or will result in any material loss
or interference with the Company's business or operations. The "Year
2000 Problem" as used herein means any significant risk that computer
hardware or software used in the receipt, transmission, processing,
manipulation, storage, retrieval, retransmission or other utilization
of data or in the operation of mechanical or electrical systems of any
kind is not functioning or will not function, in the case of dates or
time periods occurring after December 31, 1999, at least as effectively
as in the case of dates or time periods occurring prior to January 1,
2000; and
(xv) The Company owns, or possesses adequate rights to use,
all material patents necessary for the conduct of its business: to the
Company's knowledge, no valid United States patent is or would be
infringed by the activities of the Company, except as would not have a
Material Adverse Effect; there are no actions, suits or judicial
proceedings pending relating to patents or proprietary information to
which the Company is a party or of which any property of the Company is
subject, and, to the knowledge of the Company, no actions, suits or
judicial proceedings are threatened by governmental authorities or,
except as set forth in the Prospectus, others, in each case except as
would not result in any Material Adverse Effect, or, to the Company's
knowledge, in any development which the Company reasonably expects to
cause a Material Adverse Effect. The Company is not aware of any claim
by others that the Company is infringing or otherwise violating the
patents or other intellectual property of others and is not aware of
any rights of third parties to any of the Company's patent
applications, licensed patents or licenses which could affect
materially the use thereof by the Company.
(b) The Seller represents and warrants to, and agrees with, each
of the Underwriters, the Company and the Trust that:
(i) The Seller has been duly incorporated, is validly
existing as a corporation under the laws of the jurisdiction of its
organization and has the power and authority to own and sell its
property and to conduct its business;
(ii) The compliance by the Seller with all of the applicable
provisions of this Agreement, the Contract, the Collateral Agreement,
the Fund Indemnity Agreement and Fund Expense Agreement to which the
Seller is a party, and the consummation of the transactions herein and
therein contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Seller is a party or by which the
Seller is bound or to which any of the property or assets of the Seller
is subject, nor will such action result in any violation of the
provisions of the certificate of incorporation and by-laws of the
Seller or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Seller or any
of its properties; and no consent, approval, authorization, order,
registration
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<PAGE> 7
or qualification of or filing with any court or governmental agency or
body is required for the compliance by the Seller with or the
consummation by the Seller of the transactions contemplated by this
Agreement, the Contract, the Collateral Agreement, the Fund Indemnity
Agreement and the Fund Expense Agreement, except such as may be
required by the National Association of Securities Dealers ("NASD") or
the registration under the Act of the Stock and such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws or any laws of
jurisdictions outside the United States in connection with the purchase
and distribution of the Stock by the Trust pursuant to the Contract;
(iii) This Agreement has been duly authorized, executed and
delivered by the Seller; the Contract, the Collateral Agreement, the
Fund Indemnity Agreement and the Fund Expense Agreement have been duly
authorized, executed and delivered by the Seller and, assuming due
authorization, execution and delivery by the other parties thereto,
constitute valid and legally binding agreements of the Seller,
enforceable in accordance with their respective terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws
of general applicability relating to or affecting creditors' rights and
to general equity principles and except as rights to indemnity and
contribution thereunder may be limited by state or federal securities
laws or the public policy underlying such laws;
(iv) The Seller has, and immediately prior to each Time of
Delivery (as defined in Section 4(a) hereof) the Seller will have, good
and valid title to the shares of Stock to be pledged and assigned by it
under the Collateral Agreement, free and clear of all liens,
encumbrances, or claims other than those created pursuant to the
Collateral Agreement; all consents, approvals, authorizations and
orders necessary for the Seller to pledge and assign the shares of
Stock to be pledged and assigned by the Seller pursuant to the
Collateral Agreement have been obtained; the Seller has full right,
power and authority to pledge and assign the shares of Stock to be
pledged and assigned by the Seller pursuant to the Collateral
Agreement; and upon delivery of such shares of Stock to the Collateral
Agent, as defined in the Collateral Agreement, for the benefit of the
Trust pursuant to the Collateral Agreement, the Collateral Agent will
obtain a first priority perfected security interest in such shares of
Stock, and upon delivery of such shares of Stock by the Collateral
Agent to the Trust pursuant to the Collateral Agreement and payment
therefor pursuant to the Contract, good and valid title to such shares
of Stock, free and clear of all liens, encumbrances, equities or
claims, will pass to the Trust;
(v) The representations and warranties of the Seller set
forth in Section 3 of the Collateral Agreement are true and correct on
and as of the date hereof with the same effect as though such
representations and warranties had been set forth in full in this
Agreement;
(vi) During the period beginning from the date hereof and
continuing to and including the date 270 days after the date of the
Trust Prospectus, the Seller will not offer, sell, contract to sell or
otherwise dispose of, except as provided hereunder or in the
Underwriting Agreement, any Stock or any securities of the Company that
are substantially similar to the Stock, including but not limited to
any securities that are
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<PAGE> 8
convertible into or exchangeable for, or that represent the right to
receive, Stock or any such substantially similar securities;
(vii) The Seller has not taken, nor will the Seller take,
directly or indirectly, any action which is designed to or which has
constituted or which might reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities;
(viii) To the extent that any statements or omissions made in
the Registration Statements, any Preliminary Prospectus, the
Prospectuses or any amendment or supplement thereto are made in
reliance upon and in conformity with written information furnished to
the Company by the Seller expressly for use therein, (A) such
Preliminary Prospectus and the Registration Statements did, and the
Prospectuses and any further amendments or supplements to the
Registration Statements and the Prospectuses, when they become
effective or are filed with the Commission, as the case may be, will
conform in all material respects to the requirements of the Acts and
the rules and regulations of the Commission thereunder, (B) the
Registration Statements and any amendment or supplement thereto do not
and will not, as of the applicable effective date, contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading and (C) the Prospectuses do not, and as amended
or supplemented will not, as of the applicable filing date, contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; and
(ix) In order to document the Underwriters' compliance with
the reporting and withholding provisions of the Tax Equity and Fiscal
Responsibility Act of 1982 with respect to the transactions herein
contemplated, the Seller agrees to deliver to you prior to or at the
First Time of Delivery (as hereinafter defined) a properly completed
and executed United States Treasury Department Form W-9 (or other
applicable form or statement specified by Treasury Department
regulations in lieu thereof).
(c) The Trust represents and warrants to, and agrees with, each
of the Underwriters, the Seller and the Company that:
(i) A notification on Form N-8A (the "Notification") of
registration of the Trust as an investment company has been filed with
the Commission; a registration statement on Form N-2 (File No.
333-77563 and File No. 811-09323) (the "Initial Trust Registration
Statement") in respect of the Securities has been filed with the
Commission; the Initial Trust Registration Statement and any
post-effective amendment thereto, each in the form heretofore made
available to you, and, excluding exhibits thereto, have been declared
effective by the Commission in such form; no other document with
respect to the Initial Trust Registration Statement has heretofore been
filed with the Commission; and no stop order suspending the
effectiveness of the Initial Trust Registration Statement, or any
post-effective amendment thereto has been issued and no proceeding for
that purpose has been initiated or threatened by the Commission (any
preliminary prospectus included in the Initial Trust Registration
Statement or filed with the Commission pursuant
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<PAGE> 9
to Rule 497(a) of the rules and regulations of the Commission under the
Act, is hereinafter called a "Trust Preliminary Prospectus"; the
various parts of the Initial Trust Registration Statement including all
exhibits thereto and including the information contained in the form of
final prospectus filed with the Commission pursuant to Rule 497(h)
under the Act in accordance with Section 5(a) hereof and deemed by
virtue of Rule 430A under the Act to be part of the Initial Trust
Registration Statement at the time it was declared effective, as
amended at the time such part of the registration statement became
effective, are hereinafter collectively called the "Trust Registration
Statement"; and such final prospectus, in the form first filed pursuant
to Rule 497(h) under the Act, is hereinafter called the "Trust
Prospectus");
(ii) No order preventing or suspending the use of any Trust
Preliminary Prospectus has been issued by the Commission, and each
Trust Preliminary Prospectus, at the time of filing thereof, conformed
in all material respects to the requirements of the Acts, and the rules
and regulations of the Commission thereunder, and did not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in writing
to the Trust by the Underwriters through Goldman, Sachs & Co. or by the
Seller expressly for use therein;
(iii) The Notification and the Trust Registration Statement
conform, and the Trust Prospectus and any further amendments or
supplements to the Notification, the Trust Registration Statement or
the Trust Prospectus will conform, in all material respects to the
requirements of the Acts and the rules and regulations of the
Commission thereunder and do not and will not, as of the applicable
effective date as to the Trust Registration Statement and any amendment
thereto and as of the applicable filing date as to the Trust Prospectus
and any amendment or supplement thereto, contain an untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Trust by the
Underwriters through Goldman, Sachs & Co. or by the Seller expressly
for use therein;
(iv) Since the respective dates as of which information is
given in the Trust Registration Statement and the Trust Prospectus,
there has not been any material adverse change, or any development
involving a prospective material adverse change, in or affecting the
general affairs, management, financial position, results of operations,
prospects, investment objectives, investment policies, or liabilities
of the Trust, otherwise than as set forth or contemplated in the Trust
Prospectus, and there have been no transactions entered into by the
Trust which are material to the Trust other than those in the ordinary
course of its business or as described in the Trust Prospectus;
(v) The Trust has been duly created, is validly existing as a
trust under the laws of the State of New York, with power and authority
to own its properties and conduct its business as described in the
Trust Prospectus and to enter into and perform its
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<PAGE> 10
obligations under this Agreement and the Fundamental Agreements (as
defined in Section 1(c)(vii) hereof); the Trust has all necessary
consents, approvals, authorizations, orders, registrations or
qualifications, of and from, and has made all declarations and filings
with, all courts and governmental agencies and bodies, to own and use
its assets and to conduct its business in the manner described in the
Trust Prospectus, except to the extent that the failure to obtain or
file the foregoing would not have a material adverse effect on the
Trust and except such as may be required by the NASD or the
registration under the Act of the Securities and such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Securities by the Underwriters; the
Trust has no subsidiaries;
(vi) The Trust is registered with the Commission as a
non-diversified, closed-end management investment company under the
Investment Company Act and no order of suspension or revocation of such
registration has been issued or proceedings therefor initiated or, to
the knowledge of the Trust, threatened by the Commission; no person is
serving or acting as an officer or trustee of the Trust except in
accordance with the provisions of the Investment Company Act;
(vii) Each of the Contract, the Collateral Agreements, the
Administration Agreement between Chase and the Trust (the
"Administration Agreement"), the Custodian Agreement between Chase and
the Trust (the "Custodian Agreement"), the Paying Agent Agreement
between ChaseMellon Shareholder Services, L.L.C. and the Trust (the
"Paying Agent Agreement"), the Fund Expense Agreement among the Seller,
the Underwriters the Trust and Chase (the "Fund Expense Agreement") and
the Fund Indemnity Agreement among the Seller, the Underwriters Chase
and the Trust (the "Fund Indemnity Agreement") (the Contract, the
Collateral Agreements, the Administration Agreement, the Custodian
Agreement, the Paying Agent Agreement, the Fund Expense Agreement and
the Fund Indemnity Agreement are herein collectively called the
"Fundamental Agreements") has been duly authorized, executed and
delivered by the Trust and, assuming due authorization, execution and
delivery by the other parties thereto, constitutes a valid and legally
binding agreement of the Trust, enforceable in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles;
(viii) The Amended and Restated Trust Agreement Constituting
NBCi Automatic Common Exchange Security Trust dated as of February __,
2000 (the "Trust Agreement") and the Fundamental Agreements comply with
all applicable provisions of the Acts, and all approvals of such
agreements required under the Investment Company Act by the holders of
the Automatic Common Exchange Securities and the trustees have been
obtained and are in full force and effect;
(ix) All of the outstanding Automatic Common Exchange
Securities have been duly and validly authorized and issued and are
fully paid and non-assessable, and the form of certificates used to
evidence the Automatic Common Exchange Securities is in due and proper
form and complies with all provisions of applicable law; the Trust
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<PAGE> 11
Agreement and the Fundamental Agreements conform to the descriptions
thereof contained in the Trust Prospectus;
(x) The Securities have been duly authorized and, when issued
and delivered pursuant to this Agreement, will be validly issued, fully
paid and non-assessable; the Securities will conform to the description
thereof in the Trust Prospectus; no person has rights to registration
of any securities because of the filing of the Trust Registration
Statement;
(xi) The issue and sale of the Securities and the compliance
by the Trust with all of the provisions of the Securities, this
Agreement and each Fundamental Agreement and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions of,
or constitute a default under, the Trust Agreement or any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Trust is a party or by which the Trust is bound
or to which any of the property or assets of the Trust is subject, nor
will such action result in any violation of any statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Trust or any of its properties; and no consent,
approval, authorization, order, registration or qualification of or
with any such court or governmental agency or body is required for the
issue and sale of the Securities or the consummation by the Trust of
the transactions contemplated by this Agreement or the Fundamental
Agreements, except such as may be required by the NASD or the
registration under the Act of the Securities and such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Securities by the Underwriters;
(xii) Assuming due authorization, execution and delivery by the
parties other than the Trust, the Fundamental Agreements are in full
force and effect and the Trust is not in default in the performance or
observance of any obligation, covenant or condition thereunder and, to
the knowledge of the Trust, no event has occurred which with the
passage of time or the giving of notice or both would constitute a
default thereunder; the Trust is not in default in the performance or
observance of any obligation, covenant or condition contained in any
other agreement or instrument to which it is a party or by which it or
any of its properties may be bound;
(xiii) The statements set forth in the Trust Prospectus under
the caption "Description of Securities", insofar as they purport to
constitute a summary of the terms of the Securities, under the caption
"Certain Federal Income Tax Considerations", and under the caption
"Underwriting", insofar as they purport to describe the provisions of
the laws and agreements referred to therein, are accurate, complete and
fair in all material respects;
(xiv) Other than as set forth in the Trust Prospectus, there
are no legal or governmental proceedings pending to which the Trust is
a party or of which any property of the Trust is the subject which, if
determined adversely to the Trust, would individually or in the
aggregate have a material adverse effect on the current or future
financial
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<PAGE> 12
position, or results of operations of the Trust; and, to the best of
the Trust's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(xv) There are no material restrictions, limitations or
regulations with respect to the ability of the Trust to invest its
assets as described in the Trust Prospectus, other than as described
therein;
(xvi) The Securities have been approved for listing on the New
York Stock Exchange subject to notice of issuance; the Trust's
Registration Statement on Form 8-A under the Exchange Act is effective;
and
(xvii) PricewaterhouseCoopers LLP, who have certified certain
financial statements included in the Trust Registration Statement, are
independent accountants as required by the Act and the rules and
regulations of the Commission thereunder.
2. Subject to the terms and conditions herein set forth, (a) the Trust
agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Trust, at a
purchase price of $________ per Security, the number of Firm Securities set
forth opposite the name of such Underwriter in Schedule I hereto and (b) in the
event and to the extent that the Underwriters shall exercise the election to
purchase Optional Securities as provided below, the Trust agrees to issue and
sell to each of the Underwriters, and each of the Underwriters agrees, severally
and not jointly, to purchase from the Trust, at the same purchase price set
forth in clause (a) of this Section 2, that portion of the aggregate number of
Optional Securities as to which such election shall have been exercised (to be
adjusted by you so as to eliminate fractional securities) determined by
multiplying such number of Optional Securities by a fraction, the numerator of
which is the maximum aggregate number of Optional Securities which such
Underwriter is entitled to purchase as set forth opposite the name of such
Underwriter in Schedule I hereto and the denominator of which is the maximum
aggregate number of Optional Securities that all of the Underwriters are
entitled to purchase hereunder. The agreements in this Section made by the Trust
are for the benefit of and enforceable by the Underwriters and the Seller. The
agreements in this Section made by the Underwriters are for the benefit of and
are enforceable by the Seller and the Trust.
The Trust hereby grants to the Underwriters the right to purchase at
their election up to 187,500 Optional Securities, at the purchase price set
forth in clause (a) of the first paragraph of this Section 2, for the sole
purpose of covering overallotments in the sale of the Firm Securities. Any such
election to purchase Optional Securities may be exercised only by written notice
from you to the Trust (with copies to Sullivan & Cromwell, 125 Broad Street, New
York, New York 10004, Attention: Robert E. Buckholz, Jr.), given within a
period of 30 calendar days after the date of this Agreement, setting forth the
aggregate principal amount of Optional Securities to be purchased and the date
on which such Optional Securities are to be delivered, as determined by you but
in no event earlier than the First Time of Delivery (as defined in Section 4(a)
hereof) or, unless you and the Trust otherwise agree in writing, earlier than
two or later than ten business days after the date of such notice.
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<PAGE> 13
As compensation to the Underwriters for their commitments hereunder,
and in view of the fact that the proceeds of the sale of the Securities will be
used by the Trust as specified in the Contract, the Seller at each Time of
Delivery will pay to Goldman, Sachs & Co., for the accounts of the several
Underwriters, an amount equal to $________ per Security for the Securities to be
delivered at such Time of Delivery. Alternatively, as a matter of convenience,
Goldman, Sachs & Co. may deduct such amount from the purchase price of the
Securities, and in such event the Seller shall be deemed to have paid the same.
3. Upon the authorization by you of the release of the Firm Securities,
the several Underwriters propose to offer the Firm Securities for sale upon the
terms and conditions set forth in the Trust Prospectus.
4. (a) The Securities to be purchased by each Underwriter hereunder,
in definitive form, and in such authorized denominations and registered in such
names as Goldman, Sachs & Co. may request upon at least forty-eight hours' prior
notice to the Trust, shall be delivered by or on behalf of the Trust to Goldman,
Sachs & Co., for the account of such Underwriter, against payment by or on
behalf of such Underwriter of the purchase price therefor by wire transfer or
certified or official bank check or checks, payable to the order of the Trust in
Federal (same day) funds. The Trust will cause the certificates representing the
Securities to be made available for checking and packaging at least twenty-four
hours prior to the Time of Delivery (as defined below) at the office of Goldman,
Sachs & Co., 85 Broad Street, New York, New York 10004 (the
"Designated Office"). The time and date of such delivery and payment shall be,
with respect to the Firm Securities, 9:30 a.m., New York City time, on February
__, 2000 or such other time and date as Goldman, Sachs & Co. and the Trust may
agree upon in writing, and, with respect to the Optional Securities, 9:30 a.m.,
New York City time, on the date specified by Goldman, Sachs & Co. in the written
notice given by Goldman, Sachs & Co. of the Underwriters' election to purchase
such Optional Securities, or such other time and date as Goldman, Sachs & Co.
and the Trust may agree upon in writing. Such time and date for delivery of the
Firm Securities is herein called the "First Time of Delivery", such time and
date for delivery of the Optional Securities, if not the First Time of Delivery,
is herein called the "Second Time of Delivery", and each such time and date for
delivery is herein called a "Time of Delivery". The documents to be delivered at
each Time of Delivery by or on behalf of the parties hereto pursuant to Section
7 hereof, including the cross-receipt for the Securities and any additional
documents requested by the Underwriters pursuant to Section 7(m) hereof, will be
delivered at the offices of Morrison & Foerster LLP, 425 Market Street, San
Francisco, California 94105 (the "Closing Location"), and the Securities will be
delivered at the Designated Office, all at such Time of Delivery. A meeting will
be held at the Closing Location at 4:30 p.m., New York City time, on the New
York Business Day next preceding such Time of Delivery, at which meeting the
final drafts of the documents to be delivered pursuant to the preceding sentence
will be available for review by the parties hereto. For the purposes of this
Section 4, "New York Business Day" shall mean each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking institutions in New York
City are generally authorized or obligated by law or executive order to close.
5. (a) The Trust agrees with each of the Underwriters:
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<PAGE> 14
(i) To prepare the Trust Prospectus in a form approved by you
and to file such Trust Prospectus pursuant to Rule 497(h) under the Act
not later than the Commission's close of business on the second
business day following the execution and delivery of this Agreement,
or, if applicable, such earlier time as may be required by Rule
430A(a)(3) under the Act; to make no further amendment or any
supplement to the Trust Registration Statement or Trust Prospectus
prior to the last Time of Delivery which shall be disapproved by you
promptly after reasonable notice thereof; to advise you, promptly after
it receives notice thereof, of the time when any amendment to the Trust
Registration Statement has been filed or becomes effective or any
supplement to the Trust Prospectus or any amended prospectus has been
filed and to furnish you with copies thereof; to file promptly all
reports and any definitive proxy or information statements required to
be filed by the Trust with the Commission pursuant to the Acts and the
Exchange Act subsequent to the date of the Trust Prospectus and for so
long as the delivery of a prospectus is required in connection with the
offering or sale of the Securities; to advise you, promptly after it
receives notice thereof, of the issuance by the Commission of any stop
order or of any order preventing or suspending the use of any Trust
Preliminary Prospectus or Prospectus or any order pursuant to Section
8(e) of the Investment Company Act, of the suspension of the
qualification of the Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for
any such purpose, or of any request by the Commission for the amending
or supplementing of the Trust Registration Statement or Trust
Prospectus or for additional information; and, in the event of the
issuance of any stop order or of any order preventing or suspending the
use of any Trust Preliminary Prospectus or Prospectus or suspending any
such qualification or order pursuant to Section 8(e) of the Investment
Company Act, promptly to use its reasonable best efforts to obtain the
withdrawal of such order;
(ii) Promptly from time to time to take such action as you may
reasonably request to qualify the Securities for offering and sale
under the securities laws of such jurisdictions in the United States as
you may request and to comply with such laws so as to permit the
continuance of sales and dealings therein in such jurisdictions for as
long as may be reasonably necessary to complete the distribution of the
Securities, provided that in connection therewith the Trust shall not
be required to qualify as a foreign trust or association or to file a
general consent to service of process or subject itself to taxation in
any jurisdiction;
(iii) Prior to 12:00 P.M. (noon), New York City time, on the
New York Business Day next succeeding the date of this Agreement and
from time to time, at the expense of the Company, to furnish the
Underwriters with copies of the Trust Prospectus in New York City in
such quantities as you may reasonably request, and, if the delivery of
a prospectus is required at any time prior to the expiration of nine
months after the time of issue of the Trust Prospectus in connection
with the offering or sale of the Securities and if at such time any
event shall have occurred as a result of which the Trust Prospectus as
then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made when such Trust Prospectus is delivered, not
misleading, or, if for any other reason it shall be necessary during
such period to amend or supplement the Trust Prospectus in order to
comply with
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<PAGE> 15
the Act, to notify you and upon your request to prepare and furnish
without charge to each Underwriter and to any dealer in securities as
many copies as you may from time to time reasonably request of an
amended Trust Prospectus or a supplement to the Trust Prospectus which
will correct such statement or omission or effect such compliance; and
in case any Underwriter is required to deliver a prospectus in
connection with sales of any of the Securities at any time nine months
or more after the time of issue of the Trust Prospectus, upon your
request but at the expense of such Underwriter, to prepare and deliver
to such Underwriter as many copies as you may request of an amended or
supplemented Trust Prospectus complying with Section 10(a)(3) of the
Act;
(iv) To make generally available to the Trust's
securityholders as soon as practicable, but in any event not later than
eighteen months after the effective date of the Trust Registration
Statement an earnings statement (as defined in Rule 158(c) under the
Act) of the Trust (which need not be audited) complying with Section
11(a) of the Act and the rules and regulations of the Commission
thereunder (including, at the option of the Trust, Rule 158);
(v) To use the net proceeds received by it from the sale of
the Securities pursuant to this Agreement in the manner specified in
the Trust Prospectus under the caption "Use of Proceeds"; and
(vi) To use its best efforts to have the Securities approved
for listing on the New York Stock Exchange, subject to notice of
issuance, and to maintain the listing of the Securities on the New York
Stock Exchange.
(b) The Company agrees with each of the Underwriters:
(i) To prepare the Company Prospectus in a form approved by
you and to file the Company Prospectus pursuant to Rule 424(b) under
the Act not later than the Commission's close of business on the second
business day following the execution and delivery of this Agreement,
or, if applicable, such earlier time as may be required by Rule
430A(a)(3) under the Act; to make no further amendment or any
supplement to the Company Registration Statement or Company Prospectus
prior to the last Time of Delivery which shall be disapproved by you
promptly after reasonable notice thereof; to advise you, promptly after
it receives notice thereof, of the time when any amendment to the
Company Registration Statement has been filed or becomes effective or
any supplement to the Company Prospectus or any amended Company
Prospectus has been filed and to furnish you with copies thereof; to
advise you, promptly after it receives notice thereof, of the issuance
by the Commission of any stop order or of any order preventing or
suspending the use of any Company Preliminary Prospectus or Prospectus,
of the suspension of the qualification of the shares of Stock to be
delivered pursuant to the Contract for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for
any such purpose, or of any request by the Commission for the amending
or supplementing of the Company Registration Statement or Company
Prospectus or for additional information; and, in the event of the
issuance of any stop order or any order preventing or suspending the
use of any Company Preliminary Prospectus or Prospectus
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<PAGE> 16
or suspending any such qualification, to promptly use its reasonable
best efforts to obtain the withdrawal of such order;
(ii) If the Company elects to rely upon Rule 462(b), to file a
Company Rule 462(b) Registration Statement with the Commission in
compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on
the date of this Agreement, and at the time of filing either pay to the
Commission the filing fee for the Rule 462(b) Registration Statement or
give irrevocable instructions for the payment of such fee pursuant to
Rule 111(b) under the Act;
(iii) Promptly from time to time to take such action as you may
reasonably request to qualify the Securities for offering and sale
under the securities laws of such jurisdictions as you may request and
to comply with such laws so as to permit the continuance of sales and
dealings therein in such jurisdictions for as long as may be reasonably
necessary to complete the distribution of the Securities, provided that
in connection therewith the Company shall not be required to qualify as
a foreign corporation or to file a general consent to service of
process in any jurisdiction;
(iv) Prior to 10:00 A.M. New York City time, on the New York
Business Day next succeeding the date of this Agreement and from time
to time, at the expense of the Company, to furnish the Underwriters
with copies of the Company Prospectus in New York City in such
quantities as you may reasonably request, and, if the delivery of a
prospectus is required at any time prior to the expiration of nine
months after the time of issue of the Company Prospectus in connection
with the offering or sale of the Securities and if at such time any
events shall have occurred as a result of which the Company Prospectus
as then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in light of the circumstances under which
they were made when such Company Prospectus is delivered, not
misleading, or, if for any other reason it shall be necessary during
such same period to amend or supplement the Company Prospectus in order
to comply with the Act, to notify you and upon your request to file
such document and to prepare and, at the expense of the Company,
furnish, without charge to each Underwriter and to any dealer in
securities as many copies as you may from time to time reasonably
request of an amended Company Prospectus or a supplement to the Company
Prospectus which will correct such statement or omission or effect such
compliance; and in case any Underwriter is required to deliver a
prospectus in connection with sales of any of the Securities at any
time nine months or more after the time of issue of the Company
Prospectus, upon your request but at the expense of such Underwriter,
to prepare and deliver to such Underwriter as many copies as you may
request of an amended or supplemented Company Prospectus complying with
Section 10(a)(3) of the Act;
(v) To make generally available to its securityholders as
soon as practicable, but in any event not later than eighteen months
after the effective date of the Registration Statement an earnings
statement (as defined in Rule 158(c) under the Act) of the Company and
its subsidiaries (which need not be audited) complying with Section
11(a) of the Act and the rules and regulations of the Commission
thereunder (including, at the option of the Company, Rule 158);
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<PAGE> 17
(vi) During the period beginning from the date hereof and
continuing to and including the date 90 days after the date of the
Prospectuses, not to offer, sell, contract to sell or otherwise dispose
of, except as provided in the Underwriting Agreement, any securities of
the Company that are substantially similar to the Stock, including but
not limited to any securities that are convertible into or exchangeable
for, or that represent the right to receive, Stock or any such
substantially similar securities (other than (i) pursuant to employee
stock option plans a employee or stock purchase plans existing on, or
upon the conversion or exchange of convertible or exchangeable
securities outstanding as of, the date of this Agreement), (ii)
pursuant to an outstanding warrant to purchase 244,000 shares of Class
A Common Stock issued to Value Vision International, Inc. and (iii)
pursuant to an acquisition transaction, strategic investment in the
Company or a business combination which may or may not involve a change
in control of the Company provided that any receipt of Stock of the
Company pursuant to such an acquisition transaction, strategic
investment, or business combination agrees to receive and index such
without your prior written consent;
(vii) To furnish to its stockholders as soon as practicable
after the end of each fiscal year an annual report (including a balance
sheet and statements of income, stockholders' equity and cash flows of
the Company and its consolidated subsidiaries certified by independent
public accountants) and, as soon as practicable after the end of each
of the first three quarters of each fiscal year (beginning with the
fiscal quarter ending after the effectiveness of the Registration
Statements), to make available to its stockholders consolidated summary
financial information of the Company and its consolidated subsidiaries
for such quarter in reasonable detail;
(viii) During a period of three years from the effective date of
the Registration Statement, to make available to you copies of all
reports or other communications (financial or other) furnished to
stockholders, and to make available to you as soon as they are
available, copies of any reports and financial statements furnished to
or filed with the Commission or any securities exchange on which any
class of securities of the Company is listed (such financial statements
to be on a consolidated basis to the extent the accounts of the Company
and its subsidiaries are consolidated in reports furnished to its
stockholders generally or to the Commission);
(ix) To use the net proceeds received by it from the sale of
the Stock pursuant to the Underwriting Agreement in the manner
specified in the Company Prospectus under the caption "Use of
Proceeds"; and
(x) To use its reasonable best efforts to list for quotation
the Stock on the National Association of Securities Dealers Automated
Quotations National Market System ("Nasdaq").
6. [Except as otherwise disclosed in the Prospectuses, the Trust, the
Company and the Seller covenant and agree with the several Underwriters that (a)
the Company and the Seller will pay or cause to be paid (i) the fees,
disbursements and expenses of the Company's outside counsel and the Company's
outside accountants in connection with the registration of the Securities under
the Act and all other expenses in connection with the preparation, printing and
filing of the Notification, the Trust Registration Statement, any Trust
Preliminary Prospectus and the Trust Prospectus and amendments and supplements
thereto and the mailing and delivering of copies thereof to the Underwriters and
dealers; (ii) the cost of printing or producing any Agreement among
Underwriters, this Agreement and Blue Sky Memorandum and the closing documents
(including any compilations thereof); (iii) all reasonable expenses in
connection with the qualification of the Securities for offering and sale under
state securities laws as provided in
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<PAGE> 18
Section 5(b)(iii) hereof, including the reasonable fees and disbursements of
counsel for the Underwriters in connection with such qualification and in
connection with the Blue Sky survey; (iv) the filing fees incident to, and the
fees and disbursements of counsel for the Underwriters in connection with,
securing any required review by the NASD of the terms of the sale of the
Securities; (v) all reasonable fees and expenses in connection with the
preparation and filing of a registration statement under the Exchange Act
relating to the Securities and all fees and expenses in connection with having
the Securities approved for listing on the New York Stock Exchange or other
national or regional exchange; (vi) the cost of preparing certificates
representing the Securities; (vii) the cost and charges of any transfer agent or
registrar for the Securities; (viii) the cost of preparing Stock certificates;
(ix) the cost and charges of any transfer agent or registrar for the Stock; (x)
the fees and expenses of the Attorneys-in-Fact and the Custodian, if any; (xi)
all fees, expenses and costs in connection with the marketing of the Securities;
(xii) all reasonable costs and expenses incident to the performance of all
obligations hereunder which are not otherwise specifically provided for in this
Section, including (A) any fees and expenses of counsel for the Seller and (B)
all expenses and taxes incident to the sale and delivery of the shares of Stock
to be sold or pledged by the Seller; (xiii) all other costs and expenses
incident to the performance by the Trust, the Company and the Seller of their
respective obligations hereunder which are not otherwise specifically provided
for in this Section; and (b) the Seller and Goldman, Sachs & Co. will pay or
cause to be paid all fees, disbursements and expenses of the Trust's counsel and
the Trust's accountants in connection with the registration of the Securities
under the Acts. In connection with clause (a)(xii)(B) of the preceding sentence,
Goldman, Sachs & Co. agrees to pay New York State stock transfer tax, and the
Seller agrees to reimburse Goldman, Sachs & Co. for associated carrying costs if
such tax payment is not rebated on the day of payment and for any portion of
such tax payment not rebated. It is understood, however, that, except as
provided in this Section, and Sections 8 and 11 hereof, the Underwriters will
pay all of their own costs and expenses, including the fees of their counsel,
transfer taxes on resale of any of the Securities by them, and any advertising
expenses connected with any offers they may make.]
7. The obligations of the Underwriters hereunder, as to the Securities
to be delivered at each Time of Delivery, shall be subject, in their discretion,
to the condition that all representations and warranties and other statements of
the Trust, the Company and the Seller herein are, at and as of such Time of
Delivery, true and correct, the condition that the Trust, the Company and the
Seller shall have performed all of their respective obligations hereunder
theretofore to be performed, and the following additional conditions:
(a) The Prospectuses shall have been filed with the Commission
pursuant to Rule 424(b) or Rule 497(h), as applicable, within the applicable
time period prescribed for such filing by the rules and regulations under the
Act and in accordance with Sections 5(a)(i) and 5(b)(i) hereof; if the Company
has elected to rely upon Rule 462 (b), the Company Rule 462 (b) Registration
Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on
the date of this Agreement; no stop order suspending the effectiveness of the
Registration Statements or any part thereof, and no order pursuant to Section
8(e) of the Investment Company Act, shall have been issued and no proceeding for
that purpose shall have been initiated or threatened by the Commission; and all
requests for additional information on the part of the Commission shall have
been complied with to your reasonable satisfaction;
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<PAGE> 19
(b) You shall have received from Brobeck, Phleger & Harrison LLP
such written opinion or opinions, dated such Time of Delivery, in form and
substance satisfactory to you, and such counsel shall have received such papers
and information as they may reasonably request to enable them to pass upon such
matters;
(c) Sullivan & Cromwell, counsel for the Trust, shall have
furnished to you their written opinion or opinions, dated such Time of Delivery,
in form and substance satisfactory to you, to the effect that:
(i) The Trust (x) has been duly formed and is validly
existing as a trust under the laws of the State of New York and (y) is
registered with the Commission under the Investment Company Act as a
non-diversified, closed-end management investment company;
(ii) The Securities have been duly authorized and validly
issued and are fully paid and non-assessable and are entitled to the
benefits provided by the Trust Agreement;
(iii) The Securities will be exchanged for shares of Stock in
accordance with the terms of the Trust Agreement and the Contract
(unless a Reorganization Event (as such term is defined in the
Contract) occurs or the Seller elects the Cash Settlement Alternative
under the Contract), subject to bankruptcy, insolvency, reorganization
and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles;
(iv) All regulatory consents, authorizations, approvals and
filings required to be obtained or made by the Trust under the Federal
laws of the United States and the laws of the State of New York for the
issuance, sale and delivery of the Securities by the Trust to you have
been obtained or made;
(v) This Agreement has been duly authorized, executed and
delivered by the Trust;
(vi) Each Fundamental Agreement has been duly authorized,
executed and delivered by the Trust and, assuming due authorization,
execution and delivery by the other parties thereto, constitutes a
valid and legally binding agreement of the Trust, enforceable in
accordance with its terms, subject to bankruptcy, insolvency,
reorganization, and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles;
(vii) The statements in the Trust Prospectus under the caption
"Certain Federal Income Tax Considerations", to the extent that such
statements constitute summaries of the legal matters referred to
therein, fairly represent their opinion as to such matters;
(viii) On the basis of information which was reviewed in the
course of the performance of the services referred to in their opinion
considered in the light of their understanding of the applicable law
and the experience they have gained through their practice under the
Acts, such counsel are of the opinion that the Trust Registration
Statement, as of its effective date, and the Trust Prospectus, as of
the date of the Trust
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<PAGE> 20
Prospectus, appeared on their face to be appropriately responsive in
all material respects to the requirements of the Acts and the
applicable rules and regulations of the Commission thereunder; and that
nothing that came to their attention in the course of such review has
caused them to believe that the Trust Registration Statement, as of its
effective date, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Trust Prospectus, as of the date of the Trust Prospectus, contained any
untrue statement of a material fact or omitted to state any material
fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; also,
nothing that has come to such counsel's attention in the course of
certain procedures (as described in such opinion) has caused such
counsel to believe that the Trust Prospectus, as of the date and time
of delivery of such opinion, contained any untrue statement of a
material fact or omitted to state any material fact necessary in order
to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that such
opinion may state that the limitations inherent in the independent
verification of factual matters and the character of determinations
involved in the registration process are such, however, that such
counsel do not assume any responsibility for the accuracy, completeness
or fairness of the statements contained in the Trust Registration
Statement or the Trust Prospectus except for those made under the
captions "Underwriting", "Investment Objective and Policies", and
"Description of Securities" in the Trust Prospectus insofar as they
relate to provisions of documents therein described, and such counsel
need not express any opinion or belief as to the financial statements
or other financial data; and provided further that such counsel may
state that they have not participated in the preparation of the Company
Registration Statement or the Company Prospectus and need not express
any opinion or belief with respect thereto or with respect to
information relating to the Company contained in the Trust Prospectus
under the Caption: "Prospectus Summary - The Company" and "Investment
Objectives and Policies - The Company".
In rendering such opinion, such counsel may state that they
express no opinion as to the laws of any jurisdiction other than the laws of the
State of New York and the Federal laws of the United States.
(d) Morrison & Foerster LLP, counsel for the Company, shall have
furnished to you their written opinion, dated such Time of Delivery, in form and
substance reasonably satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with power and authority to own its properties and conduct
its business as described in the Company Prospectus;
(ii) The Company has an authorized capitalization as set forth
in the Company Prospectus, and all of the issued shares of capital
stock of the Company have been duly and validly authorized and issued,
and are fully paid and nonassessable and conform in all material
respects to the description of the Company's capital stock contained in
the Company Prospectus;
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(iii) The Company has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases
properties or conducts any business so as to require such
qualification, except where the failure to be so qualified and in good
standing would not have a Material Adverse Effect (such counsel being
entitled to rely in respect of the opinion in this clause upon opinions
of local counsel and in respect of matters of fact upon certificates of
officers of the Company, provided that such counsel shall state that
they believe that both you and they are justified in relying upon such
opinions and certificates);
(iv) Each subsidiary of the Company that is a significant
subsidiary as defined under 1-02(w) of Regulation S-X (each a
"Subsidiary") has been duly incorporated and is validly existing as a
corporation in good standing under the laws of its jurisdiction of
incorporation; and all of the issued shares of capital stock issued to
the Company of each such Subsidiary have been duly and validly
authorized and issued, are fully paid and non-assessable, and, (except
for directors' qualifying shares) are owned directly or indirectly free
and clear of all liens, encumbrances, equities or claims (such counsel
being entitled to rely in respect of the opinion in this clause upon
opinions of local counsel and in respect of matters of fact upon
certificates of officers of the Company or its Subsidiaries, provided
that such counsel shall state that they believe that both you and they
are justified in relying upon such opinions and certificates);
(v) The Company does not own any real property. Any real
property and buildings listed as an attachment to such opinion held
under lease by the Company and its Subsidiaries are held by them under
valid, subsisting and enforceable leases with such exceptions as are
not material and do not interfere with the use made and proposed to be
made of such property and buildings by the Company and its Subsidiaries
(in giving the opinion in this clause, such counsel may state that no
examination of record titles for the purpose of such opinion has been
made, and that they are relying upon a general review of the titles of
the Company and its Subsidiaries, upon opinions of local counsel and
abstracts, reports and policies of title companies rendered or issued
at or subsequent to the time of acquisition of such property by the
Company or its Subsidiaries, upon opinions of counsel to the lessors of
such property and, in respect of matters of fact, upon certificates of
officers of the Company or its Subsidiaries, provided that such counsel
shall state that they believe that both you and they are justified in
relying upon such opinions, abstracts, reports, policies and
certificates);
(vi) To such counsel's knowledge and other than as set forth
in the Company Prospectus, there are no legal or governmental
proceedings pending or threatened against the Company or any of its
Subsidiaries which is of a character required to be disclosed in the
Registration Statement or the Prospectus;
(vii) This Agreement has been duly authorized, executed and
delivered by the Company;
(viii) The compliance by the Company with all of the provisions
of this Agreement and the consummation of the transactions herein and
therein contemplated will not to such counsel's knowledge result in a
breach or violation of any of the terms or provisions of, or constitute
a default under, any indenture, mortgage, deed of trust, loan
agreement
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<PAGE> 22
or other agreement or instrument known to such counsel to which the
Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries is bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject, nor will
such action result in any violation of the provisions of the
Certificate of Incorporation or By-laws of the Company or any statute,
order, rule or regulation known to such counsel of any court or
governmental agency or body having jurisdiction over the Company or any
of its subsidiaries or any of their properties;
(ix) No consent, approval, authorization, order,
registration or qualification of or with any such court or governmental
agency or body is required for the consummation by the Company of the
transactions contemplated by this Agreement, except the registration
under the Act and Investment Company Act of the Securities and the
Stock and such consents, approvals, authorizations, registrations or
qualifications as may be required under state or foreign securities or
Blue Sky laws in connection with the purchase and distribution of the
Securities and the Stock (as to which such counsel need express no
opinion);
(x) To such counsel's knowledge, neither the Company nor any
of its Subsidiaries is in violation of its Certificate of Incorporation
or By-Laws;
(xi) The statements set forth in the Company Prospectus under
the caption "Description of Capital Stock", insofar as they purport to
constitute a summary of the terms of the Stock, and under the caption
"Underwriting", insofar as they purport to describe the provisions of
the laws and documents referred to therein, are accurate and complete
in all material respects;
(xii) The Company is not an "investment company" as such term
is defined in the Investment Company Act; and
(xiii) The Company Registration Statement and the Company
Prospectus and any further amendments and supplements thereto made by
the Company prior to such Time of Delivery (other than the financial
statements and related schedules and financial data therein, as to
which such counsel need express no opinion) comply as to form in all
material respects with the requirements of the Act and the rules and
regulations thereunder; although they do not assume any responsibility
for the accuracy, completeness or fairness of the statements contained
in the Company Registration Statement or the Company Prospectus, except
for those referred to in the opinion in subsection (ix) of this Section
7(d), they have no reason to believe that, as of its effective date,
the Company Registration Statement or any further amendment thereto
made by the Company prior to such Time of Delivery (other than the
financial statements and related schedules and financial data therein
and other financial information therein, as to which such counsel need
express no opinion) contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or that, as of
its date, the Company Prospectus or any further amendment or supplement
thereto made by the Company prior to such Time of Delivery (other than
the financial statements and related schedules and financial data
therein and other financial information therein, as to which such
counsel need express no opinion) contained an untrue statement of a
material fact or omitted to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading or that, as of such Time of Delivery, either
the
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<PAGE> 23
Company Prospectus or any further amendment or supplement thereto made
by the Company prior to such Time of Delivery (other than the financial
statements and related schedules and financial data therein and other
financial information therein, as to which such counsel need express no
opinion) contains an untrue statement of a material fact or omits to
state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
and they do not know of any contracts or other documents of a character
required to be filed as an exhibit to the Company Registration
Statement or required to be described in the Company Registration
Statement or the Company Prospectus which are not filed or described as
required. In rendering such opinion, such counsel may state that they
express no opinion as to the laws of any jurisdiction other than as to
the laws of the State of New York, the General Corporation Law of the
State of Delaware and the Federal laws of the United States;
(e) Hughes & Luce, L.L.P. shall have furnished to you their
written opinion with respect to the Seller, dated such Time of Delivery, in form
and substance reasonably satisfactory to you, to the effect that:
(i) The Seller validly exists as a corporation incorporated
in Delaware, and has the requisite power and authority to enter into
this Agreement, the Contract, the Collateral Agreement, the Fund
Indemnity Agreement and the Fund Expense Agreement, and to consummate
the transactions contemplated hereby and thereby;
(ii) This Agreement has been duly executed and delivered by or
on behalf of the Seller; the Contract, the Collateral Agreement, the
Fund Indemnity Agreement and the Fund Expense Agreement have been duly
executed and delivered by or on behalf of the Seller and, assuming due
authorization, execution and delivery by the other parties thereto,
each constitutes a valid and legally binding agreement of the Seller,
enforceable against the Seller in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors'
rights generally, general equitable principles (whether considered in a
proceeding in equity or at law); and the compliance by the Seller with
all of the provisions of this Agreement, the Contract, the Collateral
Agreement, the Fund Indemnity Agreement and the Fund Expense Agreement
and the consummation of the transactions herein and therein
contemplated will not breach or result in a default under any
indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which the Seller is a party or by which the Seller is
bound or to which any of the property or assets of the Seller are
subject, nor will such action violate any Federal or New York statute
or any rule or regulation issued pursuant to any Federal or New York
statute or any order known to such counsel issued pursuant to any
Federal or New York statute by any court or governmental agency or body
having jurisdiction over the Seller or any of its properties;
(iii) No authorization of the United States or the State of
Delaware is required for the compliance by the Seller with all of the
provisions of this Agreement, the Contract, the Collateral Agreement,
the Fund Indemnity Agreement and the Fund Expense Agreement, except for
the registration of the Securities and the Stock under the
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<PAGE> 24
Acts and such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky
laws in connection with the purchase and distribution of the Securities
and the Stock (as to which such counsel need express no opinion);
(iv) Assuming due authorization, execution and delivery
thereof by the Trust and the Collateral Agent, the Collateral
Agreement, together with the delivery of (x) the certificates in
registered form representing the Stock pledged thereunder by the Seller
and (y) undated stock powers with respect thereto duly endorsed in
blank, to the Collateral Agent for the benefit of the Trust in the
State of New York creates in favor of the Collateral Agent for the
benefit of the Trust a perfected security interest in such Stock under
the Uniform Commercial Code as in effect in the State of New York (the
"New York UCC"); upon such delivery, at the First Time of Delivery,
assuming that (A) the Collateral Agent and the Trust will acquire the
security interest in such shares in good faith and without notice of
any adverse claim (within the meaning of the New York UCC) and (B) the
Seller has rights in the shares of Stock subject to the Collateral
Agreement, the Collateral Agent will acquire such security interest in
such shares of Stock for the benefit of the Trust free of any adverse
claims (within the meaning of the New York UCC); and
(v) Upon payment for and delivery of certificates
representing the shares of Stock together with undated stock powers
with respect thereto duly endorsed in blank in accordance with the
Contract and the Collateral Agreement, assuming due authorization,
execution and delivery thereof by the Trust and, in the case of the
Collateral Agreement, the Collateral Agent, and assuming that (A) the
Seller continues to be the sole registered owner of the shares of Stock
to be sold by it with the Collateral Agent having a security
entitlement to the pledged shares, (B) the certificates representing
the shares to be sold do not contain any notation of liens or
restrictions and (C) the purchasers of Securities will acquire such
shares in good faith and without notice of any adverse claims (within
the meaning of the New York UCC), the purchasers will acquire all of
the rights of the Seller in the shares of Stock to be sold by them and
will also acquire their interest in such shares free of any adverse
claims (within the meaning of the New York UCC).
In rendering such opinion, such counsel may state that they express no
opinion as to the laws of any jurisdiction other than as to the laws of the
State of New York, the General Corporation Law of the State of Delaware and the
Federal laws of the United States;
(f) On the date of the Trust Prospectus at a time prior to the
execution of this Agreement, at 9:30 a.m., New York City time, on the effective
date of any post-effective amendment to the Trust Registration Statement filed
subsequent to the date of this Agreement and also at each Time of Delivery,
Ernst & Young LLP shall have furnished to you a letter or letters, dated the
respective dates of delivery thereof, in form and substance satisfactory to you
to the effect set forth in Annex I hereto. In addition, on the date of the Trust
Prospectus at a time and prior to the execution of this Agreement, at 9:30 a.m.,
New York City time, on the effective date of any post-effective amendment to the
Trust Registration Statement filed subsequent to the date of this Agreement and
also at each Time of Delivery, KPMG LLP shall have furnished to you a letter or
letters, dated the respective dates of delivery thereof, in form and substance
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<PAGE> 25
satisfactory to you, related to the financial statements of SNAP! LLC and NBC
Multimedia Division;
(g) (i) Since the respective dates as of which information is
given in the Trust Registration Statement and the Trust Prospectus, there shall
not have been any change, or any development involving a prospective change, in
or affecting the general affairs, management, financial position, results of
operations, prospects, investment objectives, investment policies or liabilities
of the Trust, otherwise than as set forth or contemplated in the Trust
Prospectus, (ii) neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included in
the Company Prospectus any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Company Prospectus, and (iii) since the
respective dates as of which information is given in the Company Prospectus
there shall not have been any change in the capital stock, net current assets,
stockholders' equity or long-term debt of the Company or any of its subsidiaries
or any change, or any development involving a prospective change, in or
affecting the general affairs, management, financial position, stockholders'
equity or results of operations of the Company and its subsidiaries, otherwise
than as set forth or contemplated in the Company Prospectus, the effect of
which, in any such case described in clause (i), (ii) or (iii), is in the
judgment of the Underwriters so material and adverse as to make it impracticable
or inadvisable to proceed with the public offering or the delivery of the
Securities being issued at such Time of Delivery on the terms and in the manner
contemplated in the Trust Prospectus;
(h) On or after the date hereof there shall not have occurred any
of the following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange; (ii) a suspension or
material limitation in trading in the Company's securities on the Nasdaq or the
NYSE; (iii) a general moratorium on commercial banking activities in New York
declared by the relevant authorities; (iv) the outbreak or escalation of
hostilities involving the United States or the declaration by the United States
of a national emergency or war, if the effect of any such event specified in
this clause (iv) in the judgment of the Underwriters makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Securities being issued at such Time of Delivery on the terms and in the manner
contemplated in the Trust Prospectus or (v) the occurrence of any material
adverse change in the existing financial, political or economic conditions in
the United States or elsewhere which, in the judgment of the Underwriters, would
materially and adversely affect the financial markets or the market for the
Securities and other equity securities;
(i) The Securities shall have been duly listed, subject to notice
of issuance, on the New York Stock Exchange;
(j) Each Fundamental Agreement shall have been executed and
delivered by all parties thereto and the Seller shall have delivered to the
Collateral Agent the number of shares of Stock required by the Collateral
Agreement to be initially pledged thereunder in accordance with the requirements
of the Collateral Agreement;
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<PAGE> 26
(k) The Trust and the Company shall have complied with the
provisions of Sections 5(a)(iii) and 5(b)(iv) hereof with respect to the
furnishing of prospectuses on the New York Business Day next succeeding the date
of this Agreement;
(l) The Company shall have obtained and delivered to the
Underwriters executed copies of the lock-up agreements from each of the
stockholders of the Company set forth in the Underwriting Agreement in form and
substance reasonably satisfactory to the Underwriters; and
(m) The Trust, the Company and the Seller shall have furnished
or caused to be furnished to you at such Time of Delivery certificates of
officers of the Trust, the Company and the Seller reasonably satisfactory to you
as to the accuracy of the representations and warranties of the Trust, the
Company and the Seller, respectively, herein and in the Contract and Collateral
Agreements at and as of such Time of Delivery, as to the satisfaction and
performance by the Trust, the Company and the Seller of all of their respective
obligations hereunder and thereunder to be performed at or prior to such Time of
Delivery and as to such other matters as you may reasonably request, and the
Company and the Trust shall have furnished or caused to be furnished
certificates as to the matters set forth in subsections (a) and (g) of this
Section.
8. (a)(1) The Company will indemnify and hold harmless the Trust and
each Underwriter against any losses, claims, damages or liabilities, joint or
several, to which the Trust or such Underwriter may become subject, under the
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue statement
or alleged untrue statement of a material fact contained in any Company
Preliminary Prospectus, the Company Registration Statement or the Company
Prospectus, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and will reimburse the Trust and each Underwriter for any legal or other
expenses reasonably incurred by the Trust or such Underwriter in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Company Preliminary Prospectus, the Company
Registration Statement or the Company Prospectus, or any such amendment or
supplement thereto, in reliance upon and in conformity with written information
furnished to the Company by any Underwriter through Goldman, Sachs & Co.
expressly for use therein;
(a)(2) The Seller will indemnify and hold harmless the Trust and
each Underwriter against any losses, claims, damages or liabilities, joint or
several, to which the Trust or such Underwriter may become subject, under the
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue statement
or alleged untrue statement of a material fact contained in any Company
Preliminary Prospectus, the Company Registration Statement or the Company
Prospectus, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in any
Company Preliminary Prospectus, the Company Registration Statement or the
Company
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<PAGE> 27
Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by such Seller
expressly for use therein; and will reimburse each Underwriter for any legal or
other expenses reasonably incurred by the Trust or such Underwriter in
connection with investigating or defending any such action or claim as such
expenses are incurred; provided, however, that the Seller shall not be liable in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in any Company Preliminary Prospectus, the
Company Registration Statement or the Company Prospectus or any such amendment
or supplement in reliance upon and in conformity with written information
furnished to the Company by any Underwriter through Goldman, Sachs & Co.
expressly for use therein; provided further, that the liability of the Seller to
this subsection 8(a)(2) shall not exceed the product of the number of Securities
sold by such Seller and the initial public offering price of the Securities as
set forth in the Prospectus.
(b) Each Underwriter will indemnify and hold harmless the
Company, the Trust and each Seller against any losses, claims, damages or
liabilities to which the Company, the Trust or such Seller may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Company Preliminary Prospectus or Trust Preliminary Prospectus, either of the
Registration Statements or either of the Prospectuses, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in any Company Preliminary
Prospectus or Trust Preliminary Prospectus, either of the Registration
Statements or either of the Prospectuses, or any amendment or supplement
thereto, in reliance upon and in conformity with written information furnished
to the Trust or the Company by such Underwriter through Goldman, Sachs & Co.
expressly for use therein; and will reimburse the Company, the Trust and such
Seller for any legal or other expenses reasonably incurred by the Company, the
Trust or such Seller in connection with investigating or defending any such
action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party (which
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of
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<PAGE> 28
investigation. No indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or claim
in respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability arising out of
such action or claim and (ii) does not include a statement as to or an admission
of fault, culpability or a failure to act, by or on behalf of any indemnified
party. The indemnifying party shall not be required to indemnify the indemnified
party for any amount paid or payable by the indemnified party in the settlement
of any action or proceeding without the written consent of the indemnifying
party, which consent shall not be unreasonably withheld or delayed.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company, the Trust and the Seller on the one
hand and the Underwriters on the other from the offering of the Securities. If,
however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party failed to give the
notice required under subsection (c) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Company, the Trust and the Seller on the one hand and
the Underwriters on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities (or actions in
respect thereof), as well as any other relevant equitable considerations. The
relative benefits received by the Company, the Trust and the Seller on the one
hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company, the Trust and the Seller bear to the total
compensation received by the Underwriters, in each case as set forth in the
Trust Prospectus. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company, the Trust or the Seller on the one hand or
the Underwriters on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company, the Trust, the Seller and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this subsection (d)
were determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d) no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the
Securities underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter has otherwise
been
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required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission and the Seller shall not be required to indemnify
or contribute under this Section 8 any amount in excess of the product of the
number of Securities sold by the Seller and the initial public offering price of
the Securities as set forth in the Prospectus. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company, the Trust and the Seller
under this Section 8 shall be in addition to any liability which the Company,
the Trust and the Seller may otherwise have and shall extend, upon the same
terms and conditions, to each person, if any, who controls any Underwriter
within the meaning of the Act; and the obligations of the Underwriters under
this Section 8 shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company or the Seller (if any),
to each trustee of the Trust and to each person, if any, who controls the
Company, the Trust or the Seller within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Securities which it has agreed to purchase hereunder, you may in your
discretion arrange for you or another party or other parties reasonably
satisfactory to the Company to purchase such Securities on the terms contained
herein at a Time of Delivery. If within thirty-six hours after such default by
any Underwriter you do not arrange for the purchase of such Securities, then the
Company, the Trust and the Seller shall be entitled to a further period of
thirty-six hours within which to procure another party or other parties
reasonably satisfactory to you to purchase such Securities on such terms. In the
event that, within the respective prescribed periods, you notify the Company,
the Trust and the Seller that you have so arranged for the purchase of such
Securities, or the Company, the Trust and the Seller notify you that it has so
arranged for the purchase of such Securities, you or the Company, the Trust and
the Seller shall have the right to postpone such Time of Delivery for a period
of not more than seven days, in order to effect whatever changes may thereby be
made necessary in the Registration Statements or the Prospectuses, or in any
other documents or arrangements, and the Company, the Trust and the Seller agree
to file promptly any amendments to the Registration Statements or the
Prospectuses which in your opinion may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person substituted
under this Section with like effect as if such person had originally been a
party to this Agreement with respect to such Securities
(b) If, after giving effect to any arrangements for the purchase of
the Securities of a defaulting Underwriter or Underwriters by you and the
Company, the Trust and the Seller as provided in subsection (a) above, the
aggregate principal amount of such Securities which remains unpurchased exceeds
one-eleventh of the aggregate principal amount of all the Securities to be
purchased at such Time of Delivery, or if the Company, the Trust and the Seller
shall not exercise the right described in subsection (b) above to require
non-defaulting Underwriters to purchase Securities of a defaulting Underwriter
or Underwriters, then this Agreement (or, with respect to the Second Time of
Delivery, the obligations of the Underwriters to purchase and of the Trust to
sell the Optional Securities) shall thereupon terminate, without liability on
the part of any non-defaulting Underwriter or the Company, the Trust and the
Seller, except for the expenses to be borne by the Company, the Trust, the
Seller and the Underwriters as provided in Section 6 hereof and the indemnity
and contribution agreements in Section 8 hereof; but nothing herein shall
relieve a defaulting Underwriter from liability for its default.
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10. The respective indemnities, agreements, representations, warranties
and other statements of the Company, the Trust, the Seller and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Underwriter or any controlling person of any
Underwriter, or the Company, the Trust or the Seller or any officer or director
or controlling person of the Company, the Trust or the Seller and shall survive
delivery of and payment for the Securities.
11. If this Agreement shall be terminated pursuant to Section 9 hereof,
none of the Company, the Trust or the Seller shall then be under any liability
to any Underwriter except as provided in Sections 6 and 8 hereof; but, if for
any other reason, any Securities are not delivered by or on behalf of the Trust
as provided herein, the Seller will reimburse the Underwriters through you for
all out-of-pocket expenses approved in writing by you, including fees and
disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of the Securities not so
delivered, but the Company, the Trust and the Seller shall then be under no
further liability to any Underwriter in respect of the Securities not so
delivered except as provided in Sections 6 and 8 hereof.
12. All statements, requests, notices and agreements hereunder shall be
in writing, and if to the Underwriters shall be delivered or sent by mail, telex
or facsimile transmission to you as the representatives at 85 Broad Street, New
York, New York 10004, Attention: Registration Department; if to the Trust shall
be delivered or sent by mail, telex or facsimile transmission to the Trust at
450 West 33rd Street, New York, New York 10001; if to the Company shall be
delivered or sent by mail, telex or facsimile transmission to the Company in
care of NBC Internet, Inc., 300 Montgomery Street, Suite 300, San Francisco,
California 94104, Attention: General Counsel; and if to the Seller shall be
delivered or sent by mail, telex or facsimile transmission to Hughes & Luce,
L.L.P., 1717 Main Street, Suite 2800, Dallas, Texas 75201, Attention: Dudley
Murray; provided, however, that any notice to an Underwriter pursuant to Section
8(c) hereof shall be delivered or sent by mail, telex or facsimile transmission
to such Underwriter at its address set forth in its Underwriters' Questionnaire,
or telex constituting such Questionnaire, which address will be supplied to the
Company by you upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Company, the Trust, the Seller and, to the
extent provided in Sections 8 and 10 hereof, the officers and directors of the
Company, the Trust, the Seller and each person who controls the Company or any
Underwriter, and their respective heirs, executors, administrators, successors
and assigns, and no other person shall acquire or have any right under or by
virtue of this Agreement. No purchaser of any of the Securities from any
Underwriter shall be deemed a successor or assign by reason merely of such
purchase.
14. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
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16. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument.
If the foregoing is in accordance with your understanding, please
sign and return to us ten counterparts hereof, and upon the acceptance hereof by
you, on behalf of each of the Underwriters, this letter and such acceptance
hereof shall constitute a binding agreement between each of the Underwriters,
the Trust, the Company and the Seller. It is understood that your acceptance of
this letter on behalf of each of the Underwriters is pursuant to the authority
set forth in a form of Agreement among Underwriters, the form of which shall be
submitted to the Company for examination upon request, but without warranty on
your part as to the authority of the signers thereof.
Very truly yours,
NBC Internet, Inc.
By:
------------------------------------------
Name:
Title:
NBCi Automatic Common Exchange Security Trust
By:
------------------------------------------
Donald J. Puglisi
By:
------------------------------------------
William R. Latham III
By:
------------------------------------------
James B. O'Neill
Each a trustee of the NBCi Automatic common
Exchange Trust
CNET Investments II, Inc.
By:
------------------------------------------
Name:
Title:
Accepted as of the date hereof:
Goldman, Sachs & Co.
Salomon Smith Barney Inc.
31
<PAGE> 32
By:
-------------------------------------
(Goldman, Sachs & Co.)
On behalf of each of the Underwriters
32
<PAGE> 33
SCHEDULE I
<TABLE>
<CAPTION>
NUMBER OF OPTIONAL
TOTAL NUMBER OF FIRM SECURITIES TO BE PURCHASED
UNDERWRITER SECURITIES TO BE PURCHASED IF MAXIMUM OPTION EXERCISED
---------------------------- ------------------------------
<S> <C> <C>
Goldman, Sachs & Co......................................
Salomon Smith Barney Inc.................................
------------------ ----------------
Total............................................... 1,250,000 187,500
================== ================
</TABLE>
I-1
<PAGE> 34
SCHEDULE II
<TABLE>
<CAPTION>
NUMBER OF OPTIONAL
TOTAL NUMBER OF FIRM SECURITIES TO BE SOLD IF
SECURITIES TO BE SOLD MAXIMUM OPTION EXERCISED
---------------------------- ----------------------------
<S> <C> <C>
The Seller:
CNET Investments II, Inc............................ 1,250,000 187,500
--------------- ---------------
Total......................................... 1,250,000 187,500
=============== ===============
</TABLE>
II-1
<PAGE> 35
ANNEX I
FORM OF ANNEX I DESCRIPTION OF COMFORT LETTER
FOR REGISTRATION STATEMENTS ON FORM S-1
Pursuant to Section 7(f) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with
respect to the Company and its subsidiaries within the meaning of the
Act and the applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules (and, if applicable,
financial forecasts and/or pro forma financial information) examined by
them and included in the Prospectus or the Registration Statement
comply as to form in all material respects with the applicable
accounting requirements of the Act and the related published rules and
regulations thereunder; and, if applicable, they have made a review in
accordance with standards established by the American Institute of
Certified Public Accountants of the unaudited consolidated interim
financial statements, selected financial data, pro forma financial
information, financial forecasts and/or condensed financial statements
derived from audited financial statements of the Company for the
periods specified in such letter, as indicated in their reports
thereon, copies of which have been furnished to the representatives of
the Underwriters (the "Representatives");
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants
of the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus as indicated in their reports thereon copies
of which have been separately furnished to the Representatives and on
the basis of specified procedures including inquiries of officials of
the Company who have responsibility for financial and accounting
matters regarding whether the unaudited condensed consolidated
financial statements referred to in paragraph (vi)(A)(i) below comply
as to form in all material respects with the applicable accounting
requirements of the Act and the related published rules and
regulations, nothing came to their attention that caused them to
believe that the unaudited condensed consolidated financial statements
do not comply as to form in all material respects with the applicable
accounting requirements of the Act and the related published rules and
regulations;
(iv) The unaudited selected financial information with respect to
the consolidated results of operations and financial position of the
Company for the five most recent fiscal years included in the
Prospectus agrees with the corresponding amounts (after restatements
where applicable) in the audited consolidated financial statements for
such five fiscal years which were included or incorporated by reference
in the Company's Annual Reports on Form 10-K for such fiscal years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K
and on the basis of limited procedures specified in such letter nothing
came to their attention as a result of the foregoing procedures that
caused them to believe that this information does not conform in all
material respects with the disclosure requirements of Items 301, 302,
402 and 503(d), respectively, of Regulation S-K;
A-I-1
<PAGE> 36
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available
interim financial statements of the Company and its subsidiaries,
inspection of the minute books of the Company and its subsidiaries
since the date of the latest audited financial statements included in
the Prospectus, inquiries of officials of the Company and its
subsidiaries responsible for financial and accounting matters and such
other inquiries and procedures as may be specified in such letter,
nothing came to their attention that caused them to believe that:
(A) (i) the unaudited consolidated statements of income,
consolidated balance sheets and consolidated statements of cash
flows included in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of
the Act and the related published rules and regulations, or (ii)
any material modifications should be made to the unaudited
condensed consolidated statements of income, consolidated balance
sheets and consolidated statements of cash flows included in the
Prospectus for them to be in conformity with generally accepted
accounting principles;
(B) any other unaudited income statement data and balance
sheet items included in the Prospectus do not agree with the
corresponding items in the unaudited consolidated financial
statements from which such data and items were derived, and any
such unaudited data and items were not determined on a basis
substantially consistent with the basis for the corresponding
amounts in the audited consolidated financial statements included
in the Prospectus;
(C) the unaudited financial statements which were not
included in the Prospectus but from which were derived any
unaudited condensed financial statements referred to in clause
(A) and any unaudited income statement data and balance sheet
items included in the Prospectus and referred to in clause (B)
were not determined on a basis substantially consistent with the
basis for the audited consolidated financial statements included
in the Prospectus;
(D) any unaudited pro forma consolidated condensed
financial statements included in the Prospectus do not comply as
to form in all material respects with the applicable accounting
requirements of the Act and the published rules and regulations
thereunder or the pro forma adjustments have not been properly
applied to the historical amounts in the compilation of those
statements;
(E) as of a specified date not more than five days prior
to the date of such letter, there have been any changes in the
consolidated capital stock (other than issuances of capital stock
upon exercise of options and stock appreciation rights, upon
earn-outs of performance shares and upon conversions of
convertible securities, in each case which were outstanding on
the date of the latest financial statements included in the
Prospectus) or any increase in the consolidated long-term debt of
the Company and its subsidiaries, or any decreases in
consolidated net current assets or stockholders' equity or other
items specified by the Representatives, or any increases in any
items specified by the Representatives, in each case as compared
with amounts shown in the latest balance sheet included in the
Prospectus, except in each case for changes, increases or
decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
A-I-2
<PAGE> 37
(F) for the period from the date of the latest financial
statements included in the Prospectus to the specified date
referred to in clause (E) there were any decreases in
consolidated net revenues or operating profit or the total or per
share amounts of consolidated net income or other items specified
by the Representatives, or any increases in any items specified
by the Representatives, in each case as compared with the
comparable period of the preceding year and with any other period
of corresponding length specified by the Representatives, except
in each case for decreases or increases which the Prospectus
discloses have occurred or may occur or which are described in
such letter; and
(vii) In addition to the examination referred to in their
report(s) included in the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred to
in paragraphs (iii) and (vi) above, they have carried out certain
specified procedures, not constituting an examination in accordance
with generally accepted auditing standards, with respect to certain
amounts, percentages and financial information specified by the
Representatives, which are derived from the general accounting records
of the Company and its subsidiaries, which appear in the Prospectus, or
in Part II of, or in exhibits and schedules to, the Registration
Statement specified by the Representatives, and have compared certain
of such amounts, percentages and financial information with the
accounting records of the Company and its subsidiaries and have found
them to be in agreement.
A-I-3
<PAGE> 1
EXHIBIT 2.k.(v)
================================================================================
FUND EXPENSE AGREEMENT
Among
CNET INVESTMENTS II, INC.,
GOLDMAN, SACHS & CO.,
SALOMON SMITH BARNEY,
THE CHASE MANHATTAN BANK,
for Itself and Its Affiliate
and
NBCi AUTOMATIC COMMON EXCHANGE SECURITY TRUST
-----------------------------
Dated as of February __ 2000
-----------------------------
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
ARTICLE I
DEFINITIONS; INTERPRETATION
<S> <C> <C>
Section 1.1. Defined Terms..........................................................1
Section 1.2. Interpretation.........................................................2
ARTICLE II
PAYMENTS BY THE SELLER AND THE UNDERWRITERS
Section 2.1. Agreement to Pay Up-Front Fees and Expenses............................2
Section 2.2. Agreement to Pay Additional Expenses...................................3
Section 2.3. Condition to Payments..................................................3
ARTICLE III
CERTAIN AGREEMENTS OF THE SERVICE PROVIDER
Section 3.1. Statements and Reports.................................................4
Section 3.2. Trust Termination; Refund of Unused Expense Funds......................4
Section 3.3. Termination of Administration Agreement................................4
Section 3.4. Amendments.............................................................4
Section 3.5. Payment to ChaseMellon Shareholder Services, L.L.C.....................5
ARTICLE IV
MISCELLANEOUS
Section 4.1. Term of Contract.......................................................5
Section 4.2. No Assumption of Liability.............................................5
Section 4.3. Notice.................................................................5
Section 4.4. Governing Law; Severability............................................5
Section 4.5. Entire Agreement.......................................................6
Section 4.6. Amendments; Waivers....................................................6
Section 4.7. Non-Assignability......................................................6
Section 4.8. No Third Party Rights; Successors and Assigns..........................6
Section 4.9. Counterparts...........................................................6
</TABLE>
<PAGE> 3
FUND EXPENSE AGREEMENT
FUND EXPENSE AGREEMENT, dated as of February __, 2000, among CNET
Investments II, Inc. (the "Seller"), Goldman, Sachs & Co. ("Goldman Sachs"),
Salomon Smith Barney ("Salomon Smith Barney", and together with Goldman Sachs,
the Underwriters), The Chase Manhattan Bank (the "Service Provider"), for itself
in its capacities as Administrator, Custodian and Collateral Agent and for its
affiliate, ChaseMellon Shareholder Services, L.L.C., in its capacity as Paying
Agent for NBCi Automatic Common Exchange Security Trust, a trust organized under
the laws of the State of New York under and by virtue of an Amended and Restated
Trust Agreement, dated as of February __, 2000 (such trust and the trustees
thereof acting in their capacity as such being referred to in this Agreement as
the "Trust"), and the Trust.
WITNESSETH:
WHEREAS, the Trust is a trust organized under the laws of the State of New
York under and by virtue of the Amended and Restated Trust Agreement, dated as
of February __, 2000 (the "Trust Agreement"); and
WHEREAS, the Seller and the Underwriters desire to make provision for the
payment of certain initial and on-going expenses of the Trust;
NOW, THEREFORE, the parties to this Agreement, intending to be bound, agree
as follows:
ARTICLE I
DEFINITIONS; INTERPRETATION
Section 1.1. Defined Terms.
(a) Capitalized terms used and not otherwise defined in this Agreement have
the respective meanings specified in the Trust Agreement.
(b) As used in this Agreement, the following terms have the following
meanings:
"Additional Expense" means the Ordinary Expense the incurrence of
which will require the Service Provider to provide the Additional Expense
Notice pursuant to Section 2.2(a) and any Ordinary Expense incurred
thereafter.
"Additional Expense Notice" has the meaning specified in Section
2.2(a).
"Agreement" means this Fund Expense and Indemnity Agreement.
"Goldman Sachs" has the meaning specified in the preamble to this
Agreement.
"Ordinary Expense" of the Trust means any expense of the Trust other
than any expense of the Trust arising under Section 3.4 of the
Administration Agreement, Section 3.5 or 3.6 of the Custodian Agreement,
Section 5.6 of the Paying Agent Agreement or Section 7.6 of the Trust
Agreement.
"Salomon Smith Barney" has the meaning specified in the preamble to
this Agreement.
<PAGE> 4
"Seller" has the meaning specified in the preamble to this Agreement.
"Service Provider" has the meaning specified in the preamble to this
Agreement.
"Trust" has the meaning specified in the preamble to this Agreement.
"Trust Agreement" has the meaning specified in the recitals to this
Agreement.
"Underwriters" has the meaning specified in the preamble to this
Agreement.
"Up-Front Fee Amount" means the amount set forth as such on Schedule I
hereto payable as a one-time payment to the Service Provider in respect of
its services, as Administrator, Custodian and Collateral Agent, and those
of ChaseMellon Shareholder Services, L.L.C., as Paying Agent, for the
entire term of the Trust.
"Up-Front Expense Amount" means the amount set forth as such on
Schedule I hereto payable as a one-time payment to the Service Provider in
respect of Ordinary Expenses anticipated to be incurred by the
Administrator on behalf of the Trust, pursuant to the Administration
Agreement, during the term of the Trust.
Section 1.2. Interpretation.
(a) When a reference is made in this Agreement to Articles, Sections,
Exhibits or Schedules, such reference is to Articles or Sections of, or Exhibits
or Schedules to, this Agreement unless otherwise indicated.
(b) The table of contents and headings contained in this Agreement are for
reference purposes only and are not part of this Agreement, and shall not be
deemed to limit or otherwise affect any of the provisions of this Agreement.
(c) Whenever the words "include", "includes" or "including" are used in
this Agreement, they shall be deemed to be followed by the words "without
limitation".
(d) Any reference to any statute, regulation or agreement is a reference to
such statute, regulation or agreement as supplemented or amended from time to
time.
ARTICLE II
PAYMENTS BY THE SELLER
Section 2.1. Agreement to Pay Up-Front Fees and Expenses. The Seller and
the Underwriters agree to pay or cause to be paid to the Service Provider in
Federal (immediately available) funds at the First Time of Delivery respective
proportional shares of the Up-Front Fee Amount and the Up-Front Expense Amount
as set forth in the following table:
<TABLE>
<CAPTION>
- ---------------------------------------------
Proportional Share
------------------
- ---------------------------------------------
<S> <C>
The Seller 50%
- ---------------------------------------------
The Underwriters 50%
- ---------------------------------------------
</TABLE>
-2-
<PAGE> 5
Section 2.2. Agreement to Pay Additional Expenses.
(a) Before incurring on behalf of the Trust any Ordinary Expense that,
together with all prior Ordinary Expenses incurred by the Administrator on
behalf of the Trust, would cause the aggregate amount of Ordinary Expenses of
the Trust to exceed the Up-Front Expense Amount, the Administrator shall provide
to the Seller and the Underwriters (i) prompt written notice (the "Additional
Expense Notice") to the effect that the aggregate amount of Ordinary Expenses of
the Trust will exceed the Up-Front Expense Amount, and (ii) an accounting, in
such detail as shall be reasonably acceptable to Goldman Sachs, for itself and
for the Seller and Salomon Smith Barney, of all Ordinary Expenses incurred on
behalf of the Trust through the date of the Additional Expense Notice.
(b) From and after the date of the Additional Expense Notice, the Service
Provider agrees that it will not, without the prior written consent of Goldman
Sachs, for the Seller and the Underwriters, incur on behalf of the Trust (i) any
single expense in excess of $1,000 or (ii) in any calendar period, expenses
aggregating in excess of $3,000. Subject to the foregoing, the Service Provider
shall give notice to the Seller in writing promptly after incurring any
Additional Expense. Such notice shall be accompanied by any demand, bill,
invoice or other similar document or true and complete copies thereof in respect
of such Additional Expense.
(c) Subject to the first sentence of Section 2.2(b), the Seller and the
Underwriters agree, severally in the respective proportional shares as set forth
in the table in Section 2.2(a), but not jointly agrees to pay to the Service
Provider from time to time the amount of any Additional Expense. The Seller and
the Underwriters shall pay any such Additional Expense in Federal (immediately
available) funds by the later of (i) five Business Days after the receipt by the
Seller and the Underwriters from the Service Provider of notice of the
incurrence of such Additional Expense, or (ii) the due date for the payment of
such Additional Expense. Goldman Sachs may, at its sole discretion, elect to pay
such additional Expense in the first instance, for the Seller and the
Underwriters, and if Goldman Sachs so elects, the Seller and the Underwriters
agree to reimburse Goldman Sachs for their respective proportional share thereof
as set forth in Section 2.2 (a).
(d) Goldman Sachs may for the Seller and for the Underwriters contest in
good faith the reasonableness of any Additional Expense and Goldman Sachs and
The Trust shall attempt in good faith to resolve amicably the disagreement;
provided that if the parties cannot resolve the dispute by the due date
specified in Section 2.2(c) with respect to such Additional Expense, then
subject to the first sentence of Section 2.2(b), the Seller and the Underwriters
shall pay their respective proportional amounts as set forth in the table in
Section 2.2(a). shall pay the amount of such Additional Expense as provided in
Section 2.2(c) subject to later adjustment and credit if such dispute is
resolved in favor of the Seller and the Underwriters.
Section 2.3. Condition to Payments. The Seller's and the Underwriters'
obligations under Sections 2.1 and 2.2 shall be subject to the condition that
the Securities that are deliverable under the Underwriting Agreement at the
First Time of Delivery shall have been issued and paid for at the First Time of
Delivery.
-3-
<PAGE> 6
ARTICLE III
CERTAIN AGREEMENTS OF THE SERVICE PROVIDER
Section 3.1. Statements and Reports.
(a) The Service Provider shall
(i) collect and safekeep all demands, bills, invoices or other
written communications received from third parties in connection with
any Ordinary Expenses and Additional Expenses; and
(ii) prepare and maintain adequate books and records showing all
receipts and disbursements of funds in connection therewith.
(b) The Seller and the Underwriters shall have the right to inspect and to
copy, each at its own expense, all such documents, books and records at all
reasonable times and from time to time during the term of this Agreement.
Section 3.2. Trust Termination; Refund of Unused Expense Funds. In
consideration of the agreements of the Seller and the Underwriters in this
Agreement:
(a) if, at the termination of the Trust in accordance with Section 8.3 of
the Trust Agreement, the aggregate amount of Ordinary Expenses incurred by the
Service Provider on behalf of the Trust through the date of termination shall be
less than the Up-Front Expense Amount, the Service Provider shall, promptly
following the date of such termination, pay to the Seller and the Underwriters
in Federal (immediately available) funds their respective proportional shares as
set forth in the table in Section 2.2(a) of the amount of such excess; and
(b) the Trust shall reimburse the Seller and the Underwriters for any
payments made by the Seller under this Agreement by paying over to the Seller
and the Underwriters prior to the termination of the Trust, their respective
proportional shares as set forth in the table in Section 2.2(a) of any funds
held by the Trust after satisfaction in full of the obligation of the Trust to
pay distributions in respect of the Securities, the obligation of the Trust to
distribute cash, Ordinary Shares, Marketable Securities and other property to
the holders of the Securities, and satisfaction of or provision for all other
obligations and liabilities of the Trust, whether present or future, contingent
or otherwise, as principal or surety or otherwise.
Section 3.3. Termination of Administration Agreement. If the Service
Provider shall resign or be removed as Administrator pursuant to the
Administration Agreement, the Service Provider shall promptly repay to the
Seller and the Underwriters their respective proportional shares as set forth in
the table in Section 2.2(a) of a ratable portion of the Up-Front Fee Amount for
the period from the date of such resignation or removal to the Exchange Date,
together with any unexpended portion of the Up-Front Expense Amount.
Section 3.4. Amendments to Other Agreements. The Service Provider agrees
that it will not consent to any amendment of the Administration Agreement, the
Custodian Agreement or the Collateral Agreement without the prior written
consent of the Seller and the Underwriters.
-4-
<PAGE> 7
Section 3.5. Payment to ChaseMellon Shareholder Services, L.L.C. The
Service Provider agrees that it shall pay over to ChaseMellon Shareholder
Services, L.L.C. that portion of the payments made to the Service Provider under
this Agreement that is due and payable to ChaseMellon Shareholder Services,
L.L.C. in connection with its role as Paying Agent for the Trust.
ARTICLE IV
MISCELLANEOUS
Section 4.1. Term of Contract. This Agreement shall continue in effect
until the completion of the liquidation of the Trust in accordance with Section
8.3(c) of the Trust Agreement.
Section 4.2. No Assumption of Liability. By executing this Agreement, none
of the Trustees assumes any personal liability under this Agreement.
Section 4.3. Notices.
(a) All notices and other communications provided for in this Agreement,
unless otherwise specified, shall be in writing and shall be given at the
addresses set forth in the following sentence or at such other addresses as may
be designated by notice duly given in accordance with this Section 4.3 to each
other party to this Agreement. Until such notice is given, (i) notices to the
Seller shall be directed to it at CNET Investments II, Inc., 150 Chestnut
Street, San Francisco, California 94111, Telecopier No. (415) 395-9330,
Attention: Chief Executive Officer; (ii) notices to Goldman Sachs shall be
directed to it at 85 Broad Street, New York, New York 10004, Telecopier No.
(212) 357-1500, Attention: Kenneth L. Josselyn; (iii) notices to Salomon Smith
Barney shall be directed to it at 388 Greenwich Street, New York, New York
10003, Telecopier No. (212) 816-7912 Attention: IBD Legal; (iv) notices to the
Service Provider (for itself or for the Paying Agent) shall be directed to it at
The Chase Manhattan Bank, 450 West 33rd Street, New York, New York 10001,
Telecopier No. (212) 946-3638, Attention: Pledged Asset Control Services; and
(v) notices to the Trust or the Trustees shall be directed to the Trustees at
850 Library Avenue, Suite 204, Newark, Delaware 19715, Telecopier No. (302)
738-7210, Attention: Donald J. Puglisi or the applicable Trustee.
(b) Each notice given pursuant to Section 4.3(a) shall be effective (i) if
sent by certified mail (return receipt requested), 72 hours after being
deposited in the United States mail, postage prepaid; (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 4.3.
Section 4.4. Governing Law; Severability. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York. To the
extent permitted by law, the unenforceability or invalidity of any provision or
provisions of this Agreement shall not render any other provision or provisions
contained in this Agreement unenforceable or invalid.
Section 4.5. Entire Agreement. Except as expressly set forth in this
Agreement, this Agreement constitutes the entire agreement among the parties
with respect to the subject matter of this Agreement and supersedes all prior
agreements, understandings
-5-
<PAGE> 8
and negotiations, both written and oral, among the parties with respect to the
subject matter of this Agreement.
Section 4.6. Amendments; Waivers. Any provision of this Agreement may be
amended or waived (either generally or in a particular instance and either
retrospectively or prospectively) if, and only if, such amendment or waiver is
in writing and signed, in the case of an amendment, by the Seller, each of the
Underwriters, the Service Provider and the Trust or, in the case of a waiver, by
the party against whom the waiver is to be effective. No failure or delay by
either party in exercising any right, power or privilege under this Agreement
shall operate as a waiver of such right, power or privilege nor shall any single
or partial exercise of any such right, power or privilege preclude any other or
further exercise of such right, power or privilege or the exercise of any other
right, power or privilege. The rights and remedies in this Agreement provided
shall be cumulative and not exclusive of any rights or remedies provided by law.
Section 4.7. Non-Assignability. This Agreement and the rights and
obligations of the parties under this Agreement may not be assigned or delegated
by either party without the prior written consent of the other party, and any
purported assignment without such consent shall be void.
Section 4.8. No Third Party Rights; Successors and Assigns. This Agreement
is not intended and shall not be construed to create any rights in any person
other than the Seller, each of the Underwriters, the Service Provider, the Trust
and their respective successors and assigns and no person shall assert any
rights as third party beneficiary under this Agreement. Whenever any of the
parties to this Agreement is referred to, such reference shall be deemed to
include the successors and assigns of such party. All the covenants and
agreements in this Agreement contained by or on behalf of the Seller, each of
the Underwriters, the Service Provider, the Trust 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 Service Provider and
its successors and assigns.
Section 4.9. Counterparts. This Agreement may be executed, acknowledged and
delivered in any number of counterparts, each of which shall be an original, but
all of which shall constitute a single agreement, with the same effect as if the
signatures on each such counterpart were upon the same instrument.
-6-
<PAGE> 9
IN WITNESS WHEREOF, the parties have caused this Fund Expense Agreement to
be duly executed and delivered as of the first date set forth above.
CNET INVESTMENTS II, INC.
By:
---------------------------------
Name:
Title:
GOLDMAN, SACHS & CO.
By:
---------------------------------
Name:
Title:
SALOMON SMITH BARNEY INC.
By:
---------------------------------
Name:
Title:
THE SERVICE PROVIDER:
THE CHASE MANHATTAN BANK,
as Service Provider
By:
---------------------------------
Name:
Title:
THE TRUST:
AMDOCS AUTOMATIC COMMON EXCHANGE
SECURITY TRUST
By:
---------------------------------
Donald J. Puglisi,
as Trustee
By:
---------------------------------
William R. Latham III,
as Trustee
By:
---------------------------------
James B. O'Neill,
as Trustee
<PAGE> 10
SCHEDULE I
Expenses of Organization of the Trust and the
Public Offering of the Securities
Up-Front Fee Amount: $
Up-Front Expense Amount:
Trustees Fees
Wall Street Concepts Fees
Accounting Fees
Fidelity Bond
Other $
========
Total Up-Front Expense Amount $
========
-8-
<PAGE> 1
EXHIBIT 2.k.(vi)
================================================================================
FUND INDEMNITY AGREEMENT
Among
CNET INVESTMENTS II, INC.,
GOLDMAN, SACHS & CO.,
SALOMON SMITH BARNEY
THE CHASE MANHATTAN BANK,
for Itself and Its Affiliate
and
NBCi AUTOMATIC COMMON EXCHANGE SECURITY TRUST
--------------------------------
Dated as of February __, 2000
--------------------------------
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
ARTICLE I
DEFINITIONS; INTERPRETATION
<S> <C> <C>
Section 1.1. Defined Terms........................................................1
Section 1.2. Interpretation.......................................................2
ARTICLE II
PAYMENTS BY SELLER AND UNDERWRITERS
Section 2.1. Agreement to Pay Indemnification Expenses............................2
Section 2.2. Condition to Payments................................................3
ARTICLE III
CERTAIN AGREEMENTS OF THE SERVICE PROVIDER
Section 3.1. Statements and Reports...............................................3
Section 3.2. Amendments...........................................................3
Section 3.3. Payment to ChaseMellon Shareholder Services, L.L.C...................3
ARTICLE IV
MISCELLANEOUS
Section 4.1. Term of Contract.....................................................4
Section 4.2. No Assumption of Liability...........................................4
Section 4.3. Notice...............................................................4
Section 4.4. Governing Law; Severability..........................................4
Section 4.5. Entire Agreement.....................................................4
Section 4.6. Amendments; Waivers..................................................5
Section 4.7. Non-Assignability....................................................5
Section 4.8. No Third Party Rights; Successors and Assigns........................5
Section 4.9. Counterparts.........................................................5
</TABLE>
<PAGE> 3
FUND INDEMNITY AGREEMENT
FUND INDEMNITY AGREEMENT, dated as of February __, 2000, among CNET
Investments II, Inc., a Delaware corporation (the "Seller"), Goldman, Sachs &
Co., ("Goldman Sachs"), Salomon Smith Barney Inc. ("Salomon Smith Barney", and,
together with Goldman Sachs, the "Underwriters"), The Chase Manhattan Bank (the
"Service Provider"), for itself in its capacities as Administrator, Custodian
and Collateral Agent and for its affiliate, ChaseMellon Shareholder Services,
L.L.C., in its capacity as Paying Agent for NBCi Automatic Common Exchange
Security Trust, a trust organized under the laws of the State of New York under
and by virtue of an Amended and Restated Trust Agreement, dated as of February
__, 2000 (such trust and the trustees thereof acting in their capacity as such
being referred to in this Agreement as the "Trust"), and the Trust.
WITNESSETH:
WHEREAS, the Trust is a trust organized under the laws of the State of New
York under and by virtue of the Amended and Restated Trust Agreement, dated as
of February __, 2000 (the "Trust Agreement"); and
WHEREAS, Seller and the Underwriters desire to make provision for the
payment of certain indemnification expenses of the Trust;
NOW, THEREFORE, the parties to this Agreement, intending to be bound, agree
as follows:
ARTICLE I
DEFINITIONS; INTERPRETATION
Section 1.1. Defined Terms.
(a) Capitalized terms used and not otherwise defined in this Agreement have
the respective meanings specified in the Trust Agreement.
(b) As used in this Agreement, the following terms have the following
meanings:
"Agreement" means this Fund Indemnity Agreement.
"Claimant" has the meaning specified in Section 2.1(b).
"Goldman Sachs" has the meaning specified in the preamble to this
Agreement.
"Indemnification Expenses" has the meaning specified in Section
2.1(a).
"Salomon Smith Barney" has the meaning specified in the Preamble to
this Agreement.
"Seller" has the meaning specified in the preamble to this Agreement.
"Service Provider" has the meaning specified in the preamble to this
Agreement.
"Trust" has the meaning specified in the preamble to this Agreement.
<PAGE> 4
"Trust Agreement" has the meaning specified in the recitals to this
Agreement.
"Underwriters" has the meaning specified in the preamble to this
Agreement.
Section 1.2. Interpretation.
(a) When a reference is made in this Agreement to Articles, Sections,
Exhibits or Schedules, such reference is to Articles or Sections of, or Exhibits
or Schedules to, this Agreement unless otherwise indicated.
(b) The table of contents and headings contained in this Agreement are for
reference purposes only and are not part of this Agreement, and shall not be
deemed to limit or otherwise affect any of the provisions of this Agreement.
(c) Whenever the words "include", "includes" or "including" are used in
this Agreement, they shall be deemed to be followed by the words "without
limitation".
(d) Any reference to any statute, regulation or agreement is a reference to
such statute, regulation or agreement as supplemented or amended from time to
time.
ARTICLE II
PAYMENTS BY SELLER
Section 2.1. Agreement to Pay Indemnification Expenses.
(a) Seller and the Underwriters severally, in their respective proportional
shares set forth in the table below in this Section 2.1(a), and not jointly,
agree to pay to and indemnify the Trust, and hold the Trust harmless from,
any expenses of the Trust arising under Section 2.2(g) or 3.4 of the
Administration Agreement, Section 8.1(a)(v) of the Collateral Agreement, Section
3.5 or 3.6 of the Custodian Agreement, Section 5.6 of the Paying Agent Agreement
and the last sentence of Section 7.6 of the Trust Agreement (collectively,
"Indemnification Expenses"). Subject to Section 2.1(b), Seller and the
Underwriters shall pay any Indemnification Expense in Federal (immediately
available) funds no later than five Business Days after the receipt by Seller,
pursuant to Section 2.1(b), of written notice of any claim for Indemnification
Expenses. Goldman Sachs may, at its sole discretion, elect to pay any such
Indemnification Expense in the first instance, for the Seller
and the Underwriters, and if Goldman Sachs so elects, the Seller and the
Underwriters agree to reimburse Goldman Sachs for their respective proportional
share thereof as set forth in the table below:
<TABLE>
<CAPTION>
- -----------------------------------
Proportional Share
------------------
- -----------------------------------
<S> <C>
The Seller 50%
The Underwriters 50%
- -----------------------------------
</TABLE>
(b) The Trustees shall give notice to, or cause notice to be given to,
Seller and the Underwriters in writing of any claim for Indemnification Expenses
or any threatened claim for Indemnification Expenses immediately upon their
acquiring knowledge of such claim, event or occurrence. Such written notice
shall be accompanied by any demand, bill, invoice or other communication
received from any third party claimant (a "Claimant") in respect of such
Indemnification Expense.
-2-
<PAGE> 5
(c) The Trust agrees that Seller and the Underwriters may, and Seller and
the Underwriters are jointly authorized on behalf of the Trust to, contest in
good faith with any Claimant any amount contained in any claim for
Indemnification Expense, provided that if, within such time period as the Trust
shall determine to be reasonable, Seller and the Underwriters and such Claimant
are unable to resolve amicably any disagreement regarding such claim for
Indemnification Expense, Seller and the Underwriters shall retain counsel
reasonably satisfactory to the Trust to represent the Trust in any resulting
proceeding and shall pay the fees and disbursements of such counsel related to
such proceeding. It is understood that Seller and the Underwriters shall not, in
respect of the legal expenses of any indemnified party in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel). Seller and the Underwriters shall not be liable for any settlement of
any proceeding effected without their written consent, but if settled with such
consent or if there be a final judgment for the Claimant, Seller and the
Underwriters agree to indemnify the Trustees and the Trust from and against any
loss or liability by reason of such settlement or judgment.
Section 2.2. Condition to Payments. Seller's and Underwriters' obligations
under Section 2.1 shall be subject to the condition that the Securities that are
deliverable under the Underwriting Agreement at the First Time of Delivery shall
have been issued and paid for at the First Time of Delivery.
ARTICLE III
CERTAIN AGREEMENTS OF THE SERVICE PROVIDER
Section 3.1. Statements and Reports.
(a) The Service Provider shall
(i) collect and safekeep all demands, bills, invoices or other written
communications received from third parties in connection with any claim for
Indemnification Expenses; and
(ii) prepare and maintain adequate books and records showing all
receipts and disbursements of funds in connection therewith.
(b) Seller and the Underwriters shall have the right to inspect and to
copy, each at its own expense, all such documents, books and records at all
reasonable times and from time to time during the term of this Agreement.
Section 3.2. Amendments to Other Agreements. The Service Provider agrees
that it will not consent to any amendment of the Administration Agreement, the
Custodian Agreement or the Collateral Agreement without the prior written
consent of Seller and the Underwriters.
Section 3.3. Payment to ChaseMellon Shareholder Services, L.L.C. The
Service Provider agrees that it shall pay over to ChaseMellon Shareholder
Services, L.L.C. that portion of the payments made to the Service Provider under
this Agreement that is due
-3-
<PAGE> 6
and payable to ChaseMellon Shareholder Services, L.L.C. in connection with its
role as Paying Agent for the Trust.
ARTICLE IV
MISCELLANEOUS
Section 4.1. Term of Contract. This Agreement shall continue in effect
until the completion of the liquidation of the Trust in accordance with Section
8.3(c) of the Trust Agreement.
Section 4.2. No Assumption of Liability. By executing this Agreement, none
of the Trustees assumes any personal liability under this Agreement.
Section 4.3. Notices.
(a) All notices and other communications provided for in this Agreement,
unless otherwise specified, shall be in writing and shall be given at the
addresses set forth in the following sentence or at such other addresses as may
be designated by notice duly given in accordance with this Section 4.3 to each
other party to this Agreement. Until such notice is given, (i) notices to Seller
shall be directed to it at CNET Investments II, Inc., 150 Chestnut Street, San
Francisco, California 94111, Telecopier No. (415) 395-9330, Attention: Chief
Executive Officer; (ii) notices to Goldman Sachs shall be directed to it at 85
Broad Street, New York, New York 10004, Telecopier No. (212) 357-1500,
Attention: Kenneth L. Josselyn; (iii) notices to Salomon Smith Barney shall be
directed to it at 388 Greenwich Street, New York, New York 10003, Telecopier No:
(212) 816-7912, Attention: IBD Legal; (iv) notices to the Service Provider (for
itself or for the Paying Agent) shall be directed to it at The Chase Manhattan
Bank, 450 West 33rd Street, New York, New York 10001, Telecopier No. (212)
946-3638, Attention: Pledged Asset Control Services; and (v) notices to the
Trust or the Trustees shall be directed to the Trustees at 850 Library Avenue,
Suite 204, Newark, Delaware 19715, Telecopier No. (302) 738-6680, Attention:
Donald J. Puglisi or the applicable Trustee.
(b) Each notice given pursuant to Section 4.3(a) shall be effective (i) if
sent by certified mail (return receipt requested), 72 hours after being
deposited in the United States mail, postage prepaid or five days after being
deposited in the mail of another country, postage prepaid; (ii) if given by
telex or telecopier, when such telex or telecopied notice is transmitted (with
electronic confirmation of transmission or verbal confirmation of receipt); or
(iii) if given by any other means, when delivered at the address specified in
this Section 4.3.
Section 4.4. Governing Law; Severability. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York. To the
extent permitted by law, the unenforceability or invalidity of any provision or
provisions of this Agreement shall not render any other provision or provisions
contained in this Agreement unenforceable or invalid.
Section 4.5. Entire Agreement. Except as expressly set forth in this
Agreement, this Agreement constitutes the entire agreement among the parties
with respect to the subject matter of this Agreement and supersedes all prior
agreements, understandings and negotiations, both written and oral, among the
parties with respect to the subject matter of this Agreement.
-4-
<PAGE> 7
Section 4.6. Amendments; Waivers. Any provision of this Agreement may be
amended or waived (either generally or in a particular instance and either
retrospectively or prospectively) if, and only if, such amendment or waiver is
in writing and signed, in the case of an amendment, by the Seller, the
Underwriters the Service Provider and the Trust or, in the case of a waiver, by
the party against whom the waiver is to be effective. No failure or delay by
either party in exercising any right, power or privilege under this Agreement
shall operate as a waiver of such right, power or privilege nor shall any single
or partial exercise of any such right, power or privilege preclude any other or
further exercise of such right, power or privilege or the exercise of any other
right, power or privilege. The rights and remedies in this Agreement provided
shall be cumulative and not exclusive of any rights or remedies provided by law.
Section 4.7. Non-Assignability. This Agreement and the rights and
obligations of the parties under this Agreement may not be assigned or delegated
by either party without the prior written consent of the other party, and any
purported assignment without such consent shall be void.
Section 4.8. No Third Party Rights; Successors and Assigns. This Agreement
is not intended and shall not be construed to create any rights in any person
other than the Seller,the Underwriters the Service Provider, the Trust and their
respective successors and assigns and no person shall assert any rights as
third party beneficiary under this Agreement. Whenever any of the parties to
this Agreement is referred to, such reference shall be deemed to include the
successors and assigns of such party. All the covenants and agreements in this
Agreement contained by or on behalf of the Seller, the Underwriters the Service
Provider, the Trust 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 Service Provider and its successors and assigns.
Section 4.9. Counterparts. This Agreement may be executed, acknowledged and
delivered in any number of counterparts, each of which shall be an original, but
all of which shall constitute a single agreement, with the same effect as if the
signatures on each such counterpart were upon the same instrument.
-5-
<PAGE> 8
IN WITNESS WHEREOF, the parties have caused this Fund Indemnity Agreement
to be duly executed and delivered as of the first date set forth above.
CNET INVESTMENTS II, INC.
By:
---------------------------------
Name:
Title:
GOLDMAN, SACHS & CO.
By:
---------------------------------
Name:
Title:
SALOMON SMITH BARNEY INC.
By:
---------------------------------
Name:
Title:
THE SERVICE PROVIDER:
THE CHASE MANHATTAN BANK,
as Service Provider
By:
---------------------------------
Name:
Title:
THE TRUST:
AMDOCS AUTOMATIC COMMON EXCHANGE
SECURITY TRUST
By:
---------------------------------
Donald J. Puglisi,
as Trustee
By:
---------------------------------
William R. Latham III,
as Trustee
By:
---------------------------------
James B. O'Neill,
as Trustee
-6-
<PAGE> 1
EXHIBIT 2.1
February 3, 2000
SULLIVAN & CROMWELL
125 Broad Street
New York, New York 10004
NBCi Automatic Common Exchange Security Trust,
c/o Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004.
Ladies and Gentlemen:
In connection with the registration under the Securities Act of 1933
(the "Act") and the Investment Company Act of 1940 (the "Investment Company
Act") of the $____ Trust Automatic Common Exchange Securities (the "Securities")
of NBCi Automatic Common Exchange Security Trust, a New York trust (the
"Trust"), we, as your counsel, have examined such trust records, certificates
and other documents, and such questions of law, as we have considered necessary
or appropriate for the purposes of this opinion. Upon the basis of such
examination, we advise you that, in our opinion, when the registration statement
relating to the Securities (the "Registration Statement") has become effective
under the Act, the Trust's Amended and Restated Trust Agreement has been duly
executed and delivered by the parties thereto, and the Securities have been duly
issued and sold as contemplated by the Registration Statement, the Securities
will be validly issued, fully paid and nonassessable.
<PAGE> 2
NBCi Automatic Common Exchange
Security Trust -2-
The foregoing opinion is limited to the Federal laws of the United
States and the laws of the State of New York, and we are expressing no opinion
as to the effect of the laws of any other jurisdiction.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to us under the heading "Validity of
Securities" in the Prospectus. In giving such consent, we do not thereby admit
that we are in a category of persons whose consent is required under Section 7
of the Act.
Very truly yours,
/s/ SULLIVAN & CROMWELL
<PAGE> 1
EXHIBIT 2.n.(i)
February 3, 2000
SULLIVAN & CROMWELL
125 Broad Street
New York, New York 10004
NBCi Automatic Common Exchange Security Trust,
c/o Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004.
Ladies and Gentlemen:
We have acted as special tax counsel to NBCi Common Exchange Security
Trust (the "Trust") in connection with the Registration Statement on Form N-2 of
the Trust filed with the Securities and Exchange Commission (the "Registration
Statement") and hereby confirm to you our opinion as set forth under the heading
"Certain Federal Income Tax Considerations" in the Prospectus included in the
Registration Statement.
We hereby consent to the filing with the Securities and Exchange
Commission of this letter as an exhibit to the Registration Statement and the
reference to us under the heading "Certain Federal Income Tax Considerations".
In giving such consent, we do not thereby admit that we are in the category of
persons whose consent is required under Section 7 of the Securities Act of 1933.
Very truly yours,
/s/ SULLIVAN & CROMWELL
<PAGE> 1
Exhibit 2.n.(iii)
CONSENT TO BEING NAMED AS TRUSTEE
The undersigned hereby consents to being named in the Registration
Statement on Form N-2 of NBCi Automatic Common Exchange Security Trust
(formerly, the Tenth Automatic Common Exchange Security Trust)(the "Trust") and
any amendments thereto, as a person about to become a trustee of the Trust.
Dated: January 14, 2000
/s/ DONALD J. PUGLISI
----------------------
Donald J. Puglisi
<PAGE> 2
CONSENT TO BEING NAMED AS TRUSTEE
The undersigned hereby consents to being named in the Registration
Statement on Form N-2 of NBCi Automatic Common Exchange Security Trust
(formerly, the Tenth Automatic Common Exchange Security Trust) (the "Trust") and
any amendments thereto, as a person about to become a trustee of the Trust.
Dated: January 14, 2000
/s/ WILLIAM R. LATHAM
----------------------
William R. Latham III
<PAGE> 3
CONSENT TO BEING NAMED AS TRUSTEE
The undersigned hereby consents to being named in the Registration
Statement on Form N-2 of NBCi Automatic Common Exchange Security Trust(formerly,
the Tenth Automatic Common Exchange Security Trust) (the "Trust") and any
amendments thereto, as a person about to become a trustee of the Trust.
Dated: January 14, 2000
/s/ JAMES B. O'NEILL
-----------------
James B. O'Neill
<TABLE> <S> <C>
<ARTICLE> 6
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM NBCI
AUTOMATIC COMMON EXCHANGE SECURITY TRUST STATEMENT OF ASSESTS AND LIABILITIES
AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<S> <C>
<PERIOD-TYPE> OTHER
<FISCAL-YEAR-END> DEC-31-2000
<PERIOD-START> JAN-14-2000
<PERIOD-END> JAN-14-2000
<INVESTMENTS-AT-COST> 0
<INVESTMENTS-AT-VALUE> 100
<RECEIVABLES> 0
<ASSETS-OTHER> 0
<OTHER-ITEMS-ASSETS> 0
<TOTAL-ASSETS> 100
<PAYABLE-FOR-SECURITIES> 0
<SENIOR-LONG-TERM-DEBT> 0
<OTHER-ITEMS-LIABILITIES> 0
<TOTAL-LIABILITIES> 0
<SENIOR-EQUITY> 0
<PAID-IN-CAPITAL-COMMON> 100
<SHARES-COMMON-STOCK> 1
<SHARES-COMMON-PRIOR> 0
<ACCUMULATED-NII-CURRENT> 0
<OVERDISTRIBUTION-NII> 0
<ACCUMULATED-NET-GAINS> 0
<OVERDISTRIBUTION-GAINS> 100
<ACCUM-APPREC-OR-DEPREC> 0
<NET-ASSETS> 0
<DIVIDEND-INCOME> 0
<INTEREST-INCOME> 0
<OTHER-INCOME> 0
<EXPENSES-NET> 0
<NET-INVESTMENT-INCOME> 0
<REALIZED-GAINS-CURRENT> 0
<APPREC-INCREASE-CURRENT> 0
<NET-CHANGE-FROM-OPS> 0
<EQUALIZATION> 0
<DISTRIBUTIONS-OF-INCOME> 0
<DISTRIBUTIONS-OF-GAINS> 0
<DISTRIBUTIONS-OTHER> 0
<NUMBER-OF-SHARES-SOLD> 1
<NUMBER-OF-SHARES-REDEEMED> 0
<SHARES-REINVESTED> 0
<NET-CHANGE-IN-ASSETS> 0
<ACCUMULATED-NII-PRIOR> 0
<ACCUMULATED-GAINS-PRIOR> 0
<OVERDISTRIB-NII-PRIOR> 0
<OVERDIST-NET-GAINS-PRIOR> 0
<GROSS-ADVISORY-FEES> 0
<INTEREST-EXPENSE> 0
<GROSS-EXPENSE> 0
<AVERAGE-NET-ASSETS> 0
<PER-SHARE-NAV-BEGIN> 0
<PER-SHARE-NII> 0
<PER-SHARE-GAIN-APPREC> 0
<PER-SHARE-DIVIDEND> 0
<PER-SHARE-DISTRIBUTIONS> 0
<RETURNS-OF-CAPITAL> 0
<PER-SHARE-NAV-END> 0
<EXPENSE-RATIO> 0
</TABLE>
<PAGE> 1
Exhibit 2.s
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that Paul S. Efron, whose signature
appears below makes, constitutes and appoints Rizwan Jamal, Michael E. Kaine,
Lisa Kijewski and Matthew D. Leavitt, and each of them, as his true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for them and in their name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this registration statement, and to sign any registration statement for the
same offering covered by the registration statement that is to be effective upon
filing pursuant to Rule 462(b) promulgated under the Securities Act of 1933 and
to file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
connection therewith and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, or any of the them, or their or his
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, Paul S. Efron, as sole trustee of the NBCi Automatic
Common Security Exchange Trust, hereunto signed his name on the 14th day of
January, 2000.
/s/ Paul S. Efron
---------------------------
Paul S. Efron, Sole Trustee
