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Exhibit 2.k.(iii)
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PURCHASE AGREEMENT
Between
CNET INVESTMENTS II, INC.
As Seller
and
NBCi AUTOMATIC COMMON EXCHANGE SECURITY TRUST,
As Purchaser
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Dated as of February __, 2000
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Table of Contents
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ARTICLE I
DEFINITIONS; INTERPRETATION
Section 1.1. Defined Terms..........................................................................2
Section 1.2. Interpretation.........................................................................8
ARTICLE II
SALE AND PURCHASE
Section 2.1. Sale and Purchase......................................................................8
Section 2.2. Purchase Price.........................................................................9
Section 2.3. Payment for and Delivery of Contract Shares............................................9
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.1. Representations and Warranties of Seller..............................................12
Section 3.2. Representations and Warranties of Purchaser...........................................12
ARTICLE IV
CONDITIONS TO PURCHASER'S OBLIGATIONS
Section 4.1. Condition to Delivery of Firm Purchase Price..........................................12
Section 4.2. Condition to Delivery of Additional Purchase Price....................................12
ARTICLE V
COVENANTS
Section 5.1. Covenants of Seller...................................................................13
Section 5.2. Further Assurances....................................................................14
ARTICLE VI
ADJUSTMENTS TO EXCHANGE RATE, APPRECIATION THRESHOLD PRICE,
INITIAL PRICE AND CLOSING PRICE; REORGANIZATION EVENTS
Section 6.1. Dilution Adjustments..................................................................14
Section 6.2. Adjustment for Consolidation, Merger or Other Reorganization Event....................17
Section 6.3. Spin-Off Distributions................................................................18
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Section 6.4. Adjustments with Respect to Marketable Securities.....................................19
ARTICLE VII
ACCELERATION UPON AN EVENT OF DEFAULT
Section 7.1. Events of Default.....................................................................19
ARTICLE VIII
MISCELLANEOUS
Section 8.1. Adjustments of Exchange Rate; Selection of Independent
Investment Banking Firm......................................................20
Section 8.2. No Assumption of Liability............................................................20
Section 8.3. Notices...............................................................................20
Section 8.4. Governing Law; Severability...........................................................21
Section 8.5. Entire Agreement......................................................................21
Section 8.6. Amendments; Waivers...................................................................21
Section 8.7. Non-Assignability.....................................................................21
Section 8.8. No Third Party Rights; Successors and Assigns.........................................21
Section 8.9. Counterparts..........................................................................21
Exhibits
Exhibit A - Form of Certificate for Extension of Exchange Date
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PURCHASE AGREEMENT
PURCHASE AGREEMENT, dated as of February __, 2000, between CNET
Investments II, Inc., a Delaware corporation ("Seller"), and 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 "Purchaser").
WITNESSETH:
WHEREAS, Seller owns Class A common stock, par value Pound Sterling
0.0001 per share (the "Class A Common Stock"), of NBC Internet, Inc., a Delaware
corporation (the "Company"); and
WHEREAS, Purchaser has filed with the Securities and Exchange
Commission a registration statement on Form N-2 contemplating the offering of
up to ______________ $____ Trust Automatic Common Exchange Securities (the
"Securities"), the terms of which contemplate delivery by Purchaser to the
holders of such Securities of a number of Class A Common Stock (or, in certain
circumstances, cash in lieu of such shares) on the Exchange Date referred to
below; and
WHEREAS, Seller has agreed, pursuant to the Collateral Agreement,
dated as of February __, 2000 (the "Collateral Agreement"), among Seller, as
Pledgor, The Chase Manhattan Bank, as collateral agent, and Purchaser to grant
to the Collateral Agent, for the benefit of Purchaser, a security interest in
Class A Common Stock and, in certain circumstances, certain other collateral to
secure the obligations of Seller under this Agreement; and
WHEREAS, Purchaser has agreed, pursuant to an underwriting agreement,
dated February __, 2000 (the "Underwriting Agreement"), among Purchaser,
Seller, the Company, and ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., as representatives of the several
underwriters named in such agreement (the "Underwriters"), to issue and sell to
the Underwriters an aggregate of ______________ Securities (the "Firm
Securities") and, at the Underwriters' option, up to ____________ additional
Securities (such additional Securities as the Underwriters shall actually
purchase pursuant to the Underwriting Agreements, the "Optional Securities") to
cover overallotments;
NOW, THEREFORE, the parties to this Agreement, intending to be bound,
agree as follows:
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ARTICLE I
DEFINITIONS; INTERPRETATION
Section 1.1. Defined Terms. As used in this Agreement, the following
terms have the following meanings:
"Accelerated Portion" means, in relation to any Cash Merger,
the portion of the Merger Consideration, other than Marketable
Securities, that has a Value equal to the amount determined by
multiplying the Basic Reorganization Event Amount by a fraction, the
numerator of which is the Value of the portion of the Merger
Consideration delivered in exchange for a single Ordinary Share that
consists of assets other than Marketable Securities, and the
denominator of which is the aggregate Transaction Value of the Merger
Consideration received in exchange for a single Ordinary Share.
"Additional Purchase Price" has the meaning specified in
Section 2.2(b).
"Additional Share Base Amount" means a number equal to the
number of Optional Securities that the Underwriters elect to purchase
under the Underwriting Agreement.
"Additional Shares" has the meaning specified in Section
2.1(b).
"Additional Treasury Securities" means the U.S. Government
Securities purchased by Purchaser pursuant to section 2.3(b)(ii) of
the Trust Agreement for settlement at the Second Time of Delivery.
"Administrator" means The Chase Manhattan Bank, administrator
for Purchaser under the Administration Agreement, dated as of February
__, 2000, between the Administrator and Purchaser, or its successor in
such capacity, or any other Administrator appointed pursuant to the
Trust Agreement.
"Agreement" means this Purchase Agreement.
"Appreciation Threshold Price" has the meaning specified in
Section 2.1(c).
"Average Market Price" per Ordinary Share or share of
Marketable Securities on any date means the average Closing Price of
an Ordinary Share or share of 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 shall be added to the Calculation
Period). If no Closing Price for the Class A Common Stock or
Marketable Securities may be
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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 this
Agreement in connection with a Rollover Offering, "Average Market
Price" means the Closing Price per Ordinary Share or share of
Marketable Securities on the Trading Day immediately preceding 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.
"Basic Reorganization Event Amount" has the meaning provided
in Section 6.2(a).
"Business Day" means a day on which the NYSE is open for
trading and that is not a day on which commercial banks in The City of
New York are authorized or obligated by law to close.
"Calculation Period" means any period of Trading Days for
which an average security price must be determined pursuant to this
Agreement.
"Cash Merger" has the meaning specified in Section 6.2(b).
"Cash Settlement Alternative" has the meaning provided in
Section 2.3(d).
"Class A Common Stock" has the meaning specified in the
recitals to this Agreement.
"Closing Price" of any common equity security 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 National Market 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 Class A
Common Stock or shares of Marketable Securities deliverable under this
Agreement pursuant to Article VI 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 day on
which
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such adjustment is effected will be adjusted in accordance with
Article VI to reflect the occurrence of such event.
"Collateral Agent" means The Chase Manhattan Bank, in its
capacity as Collateral Agent under the Collateral Agreement, or its
successor in such capacity, or any other Collateral Agent appointed
pursuant to the Trust Agreement.
"Collateral Agreement" has the meaning specified in the
recitals to this Agreement.
"common equity security" means any security of any class of
capital stock (whether voting or non-voting) that has no preference in
respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the
issuer of such capital stock and that is not subject to redemption by
the issuer of such capital stock.
"Company" has the meaning specified in the recitals to this
Agreement.
"Company Successor" has the meaning specified in Section 6.2.
"Contract Shares" has the meaning specified in Section
2.1(b).
"Custodian" means The Chase Manhattan Bank, as custodian for
Purchaser under the Custodian Agreement, dated as of February __,
2000, between the Custodian and Purchaser, or its successor in such
capacity, or any other Custodian appointed pursuant to the Trust
Agreement.
"Dilution Adjustment" means any fraction or number by which
the Exchange Rate shall be multiplied pursuant to Section 6.1(a), (b),
(c) or (d).
"Event of Default" has the meaning specified in Section 7.1.
"Excess Purchase Payment" means the excess, if any, of (x)
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 Ordinary Share
acquired in a tender offer or exchange offer by the Company, over (y)
the Then-Current Market Price of the Class A Common Stock.
"Exchange Date" means February __, 2003, subject to (i)
extension by Seller pursuant to Section 2.3(e) and (ii) subsequent
acceleration by Seller pursuant to Section 2.3(f).
"Exchange Rate" has the meaning specified in Section 2.1(c).
"Firm Purchase Price" has the meaning specified in Section
2.2(a).
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"Firm Securities" has the meaning specified in the recitals
to this Agreement.
"Firm Share Base Amount" means ___________ Class A Common
Stock.
"Firm Shares" has the meaning specified in Section 2.1(a).
"First Time of Delivery" means the First Time of Delivery
specified pursuant to section 2 of the Underwriting Agreement.
"Initial Price" has the meaning specified in Section 2.1(c).
"Liens" means any lien, mortgage, security interest, pledge,
charge, encumbrance or adverse claim of any kind.
"Marketable Securities" means any common equity securities
listed on a U.S. national or regional securities exchange or reported
by the NASDAQ National Market.
"Merger Consideration" has the meaning specified in Section
6.2(a).
"NYSE" means the New York Stock Exchange, Inc.
"Optional Securities" has the meaning specified in the
recitals to this Agreement.
"Permitted Dividend" means any quarterly cash dividend in
respect of the Class A Common Stock, except 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" has the meaning specified in the definition of
"Average Market Price".
"Purchaser" has the meaning specified in the preamble to this
Agreement.
"Reorganization Event" has the meaning specified in Section
6.2.
"Rollover Offering" means a reoffering or refinancing of
Securities effected not earlier than February __, 2003 and not later
than April __, 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 Seller.
"Second Time of Delivery" means the Second Time of Delivery
specified pursuant to Section 2 of the Underwriting Agreement.
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"Securities" has the meaning specified in the recitals to
this Agreement.
"Seller" has the meaning specified in the preamble to this
Agreement.
"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 means
the average Closing Price per Ordinary Share for the Calculation
Period consisting of 5 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 next following a record
date as described in Section 6.1(f)(i), 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 shall be disregarded in the calculation of the
Then-Current Market Price (but no additional Trading Days shall be
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 such 5 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 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 such security.
"Transaction Value" means, with respect to any Reorganization
Event, the sum of: (x) for any cash received in such Reorganization
Event, the amount of such cash received per Ordinary Share; (y) 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
Ordinary Share (as determined by a nationally recognized independent
investment banking firm retained for this purpose by the
Administrator, whose determination shall be final); and (z) for any
Marketable Securities received in such Reorganization Event, an amount
equal to the average Closing Price per share of such Marketable
Securities for the Calculation Period consisting of 20 Trading Days
immediately prior to the Exchange Date (or, in the case of a Cash
Merger, for the Calculation Period consisting of the 20 Trading Days
immediately prior to the date the Reorganization Event is
consummated), multiplied by the number of such
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Marketable Securities received for each Ordinary Share; 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 (z) shall 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".
"Transfer Restrictions" has the meaning provided in the
Collateral Agreement.
"Transferred Securities" has the meaning specified in Section
2.3(g).
"Trust Agreement" means the Amended and Restated Trust
Agreement, dated as of February __, 2000, constituting NBCi Automatic
Common Exchange Security Trust.
"Underwriters" has the meaning specified in the recitals to
this Agreement.
"Underwriting Agreement" has the meaning specified in the
recitals to this Agreement.
"U.S. Government Securities" means direct obligations of the
United States of America.
"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
relevant Reorganization Event is consummated (as determined by a
nationally recognized independent investment banking firm retained for
this purpose by the Administrator, whose determination shall be
final); and (iii) in respect of any share of Marketable Securities, an
amount equal to the average Closing Price per share of such Marketable
Securities for the Calculation Period consisting of the 20 Trading
Days immediately prior to the date the relevant 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
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) shall be
based on the Closing Price for the Marketable Securities for which a
Closing Price for the Marketable Securities may be determined pursuant
to the definition of "Closing Price".
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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
SALE AND PURCHASE
Section 2.1. Sale and Purchase.
(a) Firm Shares. Upon the terms and subject to the conditions of this
Agreement, Seller agrees to sell to Purchaser on the Exchange Date, and
Purchaser agrees to purchase from Seller on the Exchange Date, the number of
Class A Common Stock (the "Firm Shares") equal to the product of the Firm Share
Base Amount and the Exchange Rate.
(b) Additional Shares. Upon the terms and subject to the conditions of
this Agreement, if the Underwriters exercise the option to purchase Optional
Securities pursuant to the Underwriting Agreement, Seller agrees to sell to
Purchaser on the Exchange Date, and Purchaser agrees to purchase from Seller on
the Exchange Date, the number of additional Class A Common Stock (the
"Additional Shares") equal to the product of the Additional Share Base Amount
and the Exchange Rate. If the Underwriters exercise their option to purchase
Optional Securities pursuant to the Underwriting Agreement, Purchaser shall
notify Seller in writing that Purchaser will purchase the Additional Shares on
the Exchange Date, which notice shall specify the Additional Share Base Amount
and the Second Time of Delivery. The Firm Shares and the Additional Shares (if
any) are collectively referred to in this Agreement as the "Contract Shares".
(c) Exchange Rate. The "Exchange Rate" shall be the rate determined in
accordance with the following formula, subject to adjustment as provided in
Article VI:
(i) if the Average Market Price is less than $__________ (the
"Appreciation Threshold Price") but equal to or greater than
$_________ (the "Initial Price"), a fraction (rounded upward or
downward to the nearest 1/10,000th
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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, _________; and
(iii) if the Average Market Price is less than the Initial
Price, 1.
Section 2.2. Purchase Price.
(a) Firm Purchase Price. The purchase price for the Firm Shares (the
"Firm Purchase Price") shall be $______________ in cash.
(b) Additional Purchase Price. The purchase price for the Additional
Shares (the "Additional Purchase Price") shall be an amount equal to the
difference between (i) the aggregate proceeds to Purchaser from the sale of the
Optional Securities and (ii) the aggregate cost to Purchaser, as notified by
Purchaser to Seller at the Second Time of Delivery, of the Additional Treasury
Securities.
Section 2.3. Payment for and Delivery of Contract Shares.
(a) First Time of Delivery. Upon the terms and subject to the
conditions of this Agreement, Purchaser shall deliver to Seller the Firm
Purchase Price at the First Time of Delivery, at the offices of ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at
such other place as shall be agreed upon by Purchaser and Seller, paid by wire
transfer to an account designated by Seller, in Federal (immediately available)
funds.
(b) Second Time of Delivery. Upon the terms and subject to the
conditions of this Agreement, Purchaser shall deliver to Seller the Additional
Purchase Price at the Second Time of Delivery at the offices of ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, at
such other place as shall be agreed upon by Purchaser and Seller, paid by wire
transfer to an account designated by Seller, in Federal (immediately available)
funds.
(c) Sale and Delivery of Contract Shares. Seller agrees to sell and
deliver the Contract Shares to Purchaser on the Exchange Date. Unless Seller
elects the Cash Settlement Alternative as provided in Section 2.3(d), sale and
delivery shall be effected by delivery by the Collateral Agent to the
Custodian, for the account of Purchaser, of Class A Common Stock then held by
the Collateral Agent as collateral under the Collateral Agreement, in an amount
equal to the number of Contract Shares, rounded down to the nearest whole
number. Seller agrees to make a cash payment in respect of any fractional
shares included in the Contract Shares at the Exchange Date, in an amount equal
to the value of such fractional shares at the Average Market Price. In
addition, if the difference between (A) the aggregate proceeds of any sale (net
of any brokerage or related expenses) of any Class A Common Stock or Marketable
Securities sold by Purchaser pursuant to Section 2.4(g)(ii) of the Trust
Agreement and (B) the product of the number of Class A Common Stock or
Marketable Securities so sold and
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the Average Market Price, is negative, Seller shall pay such difference to
Purchaser; if such difference is positive, Purchaser shall pay the difference
to Seller. Notwithstanding the foregoing, if a Reorganization Event shall have
occurred prior to the Exchange Date then, in lieu of the foregoing, delivery
shall be effected as follows: (i) in the case of any cash required to be
delivered on the Exchange Date as provided in Section 6.2, by wire transfer to
an account designated by Purchaser, in Federal (immediately available) funds;
(ii) in the case of any Marketable Securities to be delivered in lieu of cash
as provided in Section 6.2, by delivery by the Collateral Agent to the
Custodian, for the account of Purchaser, of the applicable number of Marketable
Securities then held as collateral under the Collateral Agreement, as provided
in Section 5.7 of the Collateral Agreement; and (iii) in the case of any cash
included in the Accelerated Portion as provided in Section 6.2(b), by wire
transfer as provided in clause (i) above or in the case of any non-cash assets
included in such Accelerated Portion, by delivery of such assets to the
Custodian, for the account of Purchaser.
(d) Cash Settlement Alternative. At its option, Seller may deliver to
Purchaser on the Exchange Date (whether or not extended pursuant to Section
2.3(e) or accelerated pursuant to Section 2.3(f)), in lieu of the Contract
Shares, an amount in cash equal to the Average Market Price of the Contract
Shares on the Exchange Date (the "Cash Settlement Alternative"), paid by wire
transfer to an account designated by Purchaser, in Federal (immediately
available) funds; provided that if Seller elects the Cash Settlement
Alternative in connection with a Rollover Offering, as provided below, and such
Rollover Offering has been consummated on or before the Exchange Date, such
cash payment shall be made not later than the fifth Trading Day after the
Exchange Date. Seller may elect the Cash Settlement Alternative in respect of
all, but not less than all, Contract Shares and may do so by notice to
Purchaser, the Collateral Agent and the Custodian not less than 35 days prior
to the Exchange Date as then in effect (specifying whether such cash settlement
is being made in connection with a Rollover Offering). Any such notice of cash
settlement shall be irrevocable, except that a notice electing cash settlement
in connection with a Rollover Offering may be conditioned on consummation of
such Rollover Offering. If Seller elects the Cash Settlement Alternative,
Purchaser shall provide notice of such election (specifying whether such cash
settlement is being made in connection with a Rollover Offering) to the holders
of the Securities, not less than 30 nor more than 90 days prior to the Exchange
Date as then in effect.
(e) Extension of Exchange Date in Connection with Rollover Offering.
If Seller proposes to effect a Rollover Offering, Seller may, at its option, by
notice to Purchaser not earlier than December __, 2002, and not later than
January __, 2003, (which notice shall state Seller's intention to effect such
Rollover Offering), elect to extend the Exchange Date to May __, 2003, and the
number of Contract Shares and amount of cash to be delivered pursuant to
Section 2.3(c) shall be calculated as of such extended Exchange Date; provided
that such extension shall be effective only if, on or before the date of such
notice, Seller shall have:
(i) delivered to the Custodian, for the account of and
subject to the exclusive control of Purchaser, free and clear of any
Liens and Transfer Restrictions, U.S. Government Securities that,
through the scheduled payment of principal and interest in accordance
with their terms, will provide, not later than
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one Business Day before May __, 2003, cash in an amount equal to not
less than the product of (1) $________ and (2) the sum of the Firm
Share Base Amount and the Additional Share Base Amount; and
(ii) delivered to Purchaser (1) a certificate of Seller
substantially in the form of Exhibit A and dated the date of such
delivery (A) identifying the U.S. Government Securities being
transferred, (B) certifying that with respect to such U.S. Government
Securities the representations and warranties contained in Exhibit A
are true and correct on and as of the date of such transfer, and (C)
certifying that such U.S. Government Securities satisfy the conditions
set forth in Section 2.3(e)(i); and (2) an opinion, dated the date of
such delivery, of counsel addressed to Purchaser confirming the
representations contained in the second sentence of paragraph 2(c) of
Exhibit A.
In addition, Seller hereby covenants and agrees to take all other actions
necessary to cause Purchaser to be a protected purchaser of such U.S.
Government Securities, within the meaning of Article 8 of the New York Uniform
Commercial Code.
If Seller elects to extend the Exchange Date, Purchaser shall provide
notice of such election to the holders of the Securities not later than January
__, 2032.
(f) Acceleration of Exchange Date at Election of Purchaser. At any
time after the Exchange Date has been extended pursuant to Section 2.3(e), if
Seller has duly elected cash settlement, to be effected in connection with a
Rollover Offering, pursuant to Section 2(d), then Seller may, at its option in
connection with the consummation of such Rollover Offering, accelerate the
Exchange Date to any date on or after February __, 2003 and before April __,
2003, by notice to Purchaser not later than 10:00 a.m. on the date to which the
Exchange Date is accelerated, and the amount of cash to be delivered pursuant
to Section 2.3(c) shall be calculated as of such accelerated Exchange Date;
provided that such acceleration shall be effective only if, at or prior to
10:00 a.m. on such accelerated Exchange Date, Seller shall have paid to
Purchaser, by wire transfer to an account designated by the Custodian, in
Federal (immediately available) funds, an amount equal to the product of (i)
the aggregate accrued and unpaid quarterly distributions on each Security
(computed on the basis of a quarterly distribution of $_________ and a 360-day
year comprised of twelve 30-day months) and (ii) the sum of the Firm Share Base
Amount and the Additional Share Base Amount. Upon receipt of such amount in
Federal (immediately available) funds, Purchaser shall promptly deliver to
Seller, free and clear of any Liens and Transfer Restrictions, the U.S.
Government Securities previously delivered by Seller to Purchaser pursuant to
Section 2.3(e)(i) (together with any payments received by Purchaser before the
date of such transfer in respect of such U.S. Government Securities).
If Seller elects to accelerate the Exchange Date, Purchaser shall
provide notice of such election to the holders of the Securities not later than
the accelerated Exchange Date.
(g) Satisfaction of Obligations. Notwithstanding any other provision
of this Agreement, if on or prior to the Exchange Date as then in effect,
Seller transfers
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Securities to Purchaser, free and clear of any Liens and Transfer Restrictions,
for cancellation (any Securities so transferred being referred to in this
Agreement as the "Transferred Securities") then the number of Contract Shares
deliverable by Seller pursuant to this Agreement shall be reduced by a number
equal to the product of (i) the number of Contract Shares before giving effect
to any such transfers and (ii) a fraction, the numerator of which is the number
of Transferred Securities and the denominator of which is the sum of the Firm
Share Base Amount and the Additional Share Base Amount (rounded down to the
nearest whole share).
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.1. Representations and Warranties of Seller. Seller
represents and warrants to Purchaser that each representation and warranty made
by Seller pursuant to section 1(b) of the Underwriting Agreement is true and
correct on the date of this Agreement.
Section 3.2. Representations and Warranties of Purchaser. Purchaser
represents and warrants to Seller that each representation and warranty made by
Purchaser pursuant to section 1(a) of the Underwriting Agreement is true and
correct on the date of this Agreement.
ARTICLE IV
CONDITIONS TO PURCHASER'S OBLIGATIONS
Section 4.1. Condition to Delivery of Firm Purchase Price. The
obligation of Purchaser to deliver the Firm Purchase Price at the First Time of
Delivery is subject to the condition that the purchase by the Underwriters of
the Firm Securities pursuant to the Underwriting Agreement shall have been
consummated as contemplated under the Underwriting Agreement.
Section 4.2. Condition to Delivery of Additional Purchase Price. The
obligation of Purchaser to deliver the Additional Purchase Price at the Second
Time of Delivery is subject to the condition that the purchase by the
Underwriters of the Optional Securities shall have been consummated as
contemplated under the Underwriting Agreement.
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ARTICLE V
COVENANTS
Section 5.1. Covenants of Seller.
(a) Taxes. Seller shall pay any and all documentary, stamp, transfer
or similar taxes and charges that may be payable in respect of the execution of
this Agreement and the transfer and delivery of the Contract Shares (or any
cash or Marketable Securities in lieu of the Contract Shares) pursuant to this
Agreement.
(b) Forward Contract. Seller hereby agrees that: (i) it will not treat
this Agreement, any portion of this Agreement, or any obligation under this
Agreement as giving rise to any interest income or other inclusions of ordinary
income; (ii) it will not treat the delivery of any portion of the Contract
Shares, cash, Marketable Securities or other property to be delivered pursuant
to this Agreement as the payment of interest or ordinary income; (iii) it will
treat this Agreement in its entirety as a forward contract for the delivery of
such Contract Shares, cash, Marketable Securities or other property; and (iv)
it will not take any action (including filing any tax return or form or taking
any position in any tax proceeding) that is inconsistent with the obligations
contained in clauses (i) through (iii) of this Section 5.1(b). Notwithstanding
the preceding sentence, Seller may take any action or position required by law,
provided that Seller delivers to Purchaser an unqualified opinion of counsel,
nationally recognized as expert in Federal tax matters, to the effect that such
action or position is required by a statutory change, Treasury regulation, or
applicable court decision published after the date of this Agreement.
(c) Limitations on Trading During Certain Days. Seller hereby agrees
that it will not buy Class A Common Stock for its own account during the 60
days prior to the Exchange Date.
(d) Notices. Seller will cause to be delivered to Purchaser:
(i) Immediately upon the occurrence of any Event of Default,
or upon Seller's obtaining knowledge that any of the conditions or
events described in Section 7.1(a) or (b) shall have occurred with
respect to the Company, notice of such occurrence; and
(ii) If at any time prior to the Exchange Date Seller
receives notice, or otherwise obtains knowledge, that any event
requiring an adjustment to be effected pursuant to Article VI shall
have occurred or be pending, then Seller shall promptly cause to be
delivered to Purchaser a notice identifying such event and stating, if
known to Seller, the date on which such event occurred or is to occur
and, if applicable, the record date relating to such event. Seller
shall cause further notices to be delivered to Purchaser if Seller
shall subsequently receive notice, or otherwise obtain knowledge, of
any further or revised information regarding the terms or timing of
such event or any record date relating to such event.
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Section 5.2. Further Assurances. From time to time on and after the
date of this Agreement through the Exchange Date, each of the parties to this
Agreement shall use its reasonable best efforts to take, or cause to be taken,
all action and to do, or cause to be done, all things reasonably necessary,
proper or advisable to consummate and make effective as promptly as practicable
the transactions contemplated by this Agreement in accordance with the terms
and conditions of this Agreement, including (i) using reasonable best efforts
to remove any legal impediment to the consummation of such transactions and
(ii) the execution and delivery of all such deeds, agreements, assignments and
further instruments of transfer and conveyance necessary, proper or advisable
to consummate and make effective the transactions contemplated by this
Agreement in accordance with the terms and conditions of this Agreement.
ARTICLE VI
ADJUSTMENTS TO EXCHANGE RATE, APPRECIATION THRESHOLD PRICE,
INITIAL PRICE AND CLOSING PRICE; REORGANIZATION EVENTS
Section 6.1. Dilution Adjustments. The Exchange Rate, Appreciation
Threshold Price and Initial Price shall be subject to adjustment from time to
time as follows:
(a) Stock Dividends, Splits, Reclassifications, Etc. If the Company
shall, after the date of this Agreement,
(i) pay a stock dividend or make a distribution with respect
to the Class A Common Stock in the form of Class A Common Stock;
(ii) subdivide or split the outstanding Class A Common Stock
into a greater number of Class A Common Stock;
(iii) combine the outstanding Class A Common Stock into a
smaller number of shares; or
(iv) issue by reclassification of Class A Common Stock any
other Class A Common Stock of the Company;
then, in each such case, the Exchange Rate shall be multiplied by a Dilution
Adjustment equal to the number of Class A Common Stock (or in the case of a
reclassification referred to in clause (iv) above, the number of other Class A
common stock of the Company issued pursuant to such reclassification), or the
fraction of such shares, that a shareholder who held one Ordinary Share
immediately prior to such event would be entitled solely by reason of such
event to hold immediately after such event. The Appreciation Threshold Price
and Initial Price shall also be adjusted in the manner described in Section
6.1(e).
(b) Right or Warrant Issuances. If the Company shall, after the date
of this Agreement, issue, or declare a record date in respect of an issuance
of, rights or warrants to all holders of Class A Common Stock entitling them to
subscribe for or
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purchase Class A Common Stock at a price per share less than the Then-Current
Market Price 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, in each such case, the Exchange Rate shall be multiplied by a Dilution
Adjustment equal to a fraction, (i) the numerator of which shall be the number
of Class A Common Stock outstanding immediately prior to the time the
adjustment resulting from the issuance of such rights or warrants is effected,
plus the number of additional Class A Common Stock offered for subscription or
purchase pursuant to such rights or warrants, and (ii) the denominator of which
shall be the number of Class A Common Stock outstanding immediately prior to
the time such adjustment is effected plus the number of additional Class A
Common Stock that the aggregate offering price of the total number of Class A
Common Stock so offered for subscription or purchase pursuant to such rights or
warrants would purchase at the Then-Current Market Price of the Class A Common
Stock, which shall be determined by multiplying the total number of shares so
offered for subscription or purchase by the exercise price of such rights or
warrants and dividing the product so obtained by such Then-Current Market
Price. To the extent that, after the expiration of such rights or warrants, any
of the Class A Common Stock offered thereby shall not have been delivered, the
Exchange Rate shall be further adjusted to equal the Exchange Rate which would
have been in effect had such adjustment for the issuance of such rights or
warrants been made upon the basis of delivery of only the number of Class A
Common Stock actually delivered. The Appreciation Threshold Price and Initial
Price shall also be adjusted in the manner described in Section 6.1(e).
(c) Distributions of Other Assets. If the Company shall, after the
date of this Agreement, declare or pay a dividend or make a distribution to all
holders of Class A Common Stock, in either case, of evidences of its
indebtedness or other non-cash assets (excluding (A) any dividends or
distributions referred to in Section 6.1(a) and (B) any Spin-Off Distributions)
or shall issue 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 Section 6.1(b)), then, in each such case, the Exchange Rate
shall be multiplied by a Dilution Adjustment equal to a fraction, the numerator
of which shall be the Then-Current Market Price per Ordinary Share, and the
denominator of which shall be such Then-Current Market Price per share less the
fair market value (as determined by a nationally recognized independent
investment banking firm retained for this purpose by the Administrator, whose
determination shall be final) as of the time the adjustment is effected of the
portion of the evidences of indebtedness or assets so distributed or of such
subscription rights or warrants so issued applicable to one Ordinary Share. The
Appreciation Threshold Price and Initial Price shall also be adjusted in the
manner described in Section 6.1(e).
(d) Cash Dividends; Excess Purchase Payments. If the Company shall,
after the date of this Agreement, declare a record date in respect of a
distribution of cash (other than any Permitted Dividend, any cash distributed
in consideration of fractional Class A Common Stock and any cash distributed in
a Reorganization Event), by dividend or otherwise, to all holders of Class A
Common Stock, or make an Excess Purchase Payment, then the Exchange Rate will
be multiplied by a Dilution Adjustment equal to a fraction, the numerator of
which shall be the Then-Current Market Price of the Class A Common Stock on
such record date, and the denominator of which shall be such Then-
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Current Market Price less the amount of such distribution applicable to one
Ordinary Share which would not be a Permitted Dividend or, in the case of an
Excess Purchase Payment, less the aggregate amount of such Excess Purchase
Payment for which adjustment is being made at such time divided by the number
of Class A Common Stock outstanding on such record date. The Appreciation
Threshold Price and Initial Price shall also be adjusted in the manner
described in Section 6.1(e).
(e) Corresponding Adjustments to Initial Price, Appreciation Threshold
Price and Closing Price.
(i) If any adjustment is made to the Exchange Rate pursuant
to Section 6.1(a), (b), (c) or (d), the Appreciation Threshold Price
and the Initial Price shall also be adjusted by dividing each of the
Appreciation Threshold Price and the Initial Price by the applicable
Dilution Adjustment.
(ii) If, during any Calculation Period used in calculating
the Average Market Price, the Then-Current Market Price or the
Transaction Value, there shall occur any event requiring an adjustment
to be effected pursuant to this Section 6.1, then the Closing Price
for each Trading Day in the Calculation Period occurring prior to the
day on which such adjustment is effected shall be adjusted by being
divided by the relevant Dilution Adjustment.
(f) Timing of Dilution Adjustments. Each Dilution Adjustment shall be
effected:
(i) in the case of any dividend, distribution or issuance, as
of the opening of business on the Business Day next following the
record date for determination of holders of Class A Common Stock
entitled to receive such dividend, distribution or issuance or, if the
announcement of any such dividend, distribution or issuance is after
such record date, at the time such dividend, distribution or issuance
is announced by the Company;
(ii) in the case of any subdivision, split, combination or
reclassification, on the effective date of such transaction;
(iii) in the case of any Excess Purchase Payment for which
the Company shall announce, at or prior to the time it commences the
relevant share repurchase, the repurchase price per share for shares
proposed to be repurchased, on the date of such announcement; and
(iv) in the case of any other Excess Purchase Payment, on the
date that the holders of the repurchased shares become entitled to
payment of such Excess Purchase Payment.
(g) General; Failure of Dilution Event to Occur. All Dilution
Adjustments shall be 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. No
adjustment in the Exchange Rate shall be required unless such adjustment would
require an increase or decrease of at least one percent in the Exchange Rate;
provided, however, that any adjustments that by reason
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of this sentence are not required to be made shall be carried forward and taken
into account in any subsequent adjustment. If any announcement or declaration
of a record date in respect of a dividend, distribution, issuance or repurchase
requiring an adjustment pursuant to this Section 6.1 shall subsequently be
canceled by the Company or shall fail to occur for any other reason, then, upon
such cancellation or failure to occur, the Exchange Rate shall be further
adjusted to the Exchange Rate that would then have been in effect had
adjustment for such event not been made. If, after an announcement of a share
repurchase requiring an adjustment pursuant to this Section 6.1, the Company
reduces the repurchase price or repurchases fewer shares than announced, then
upon completion of such share repurchase the Exchange Rate shall be further
adjusted to equal the Exchange Rate that would have been in effect had the
adjustment for such repurchase been based on the actual price and amount
repurchased. If a Reorganization Event shall occur after the occurrence of one
or more events requiring an adjustment pursuant to this Section 6.1, the
Dilution Adjustments previously applied to the Exchange Rate in respect of such
events shall not be rescinded but shall be applied to the new Exchange Rate
provided for under Section 6.2.
Section 6.2. Adjustment for Consolidation, Merger or Other
Reorganization Event.
(a) In the event of (i) any consolidation, amalgamation 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
consolidation, amalgamation or merger in which the Company is the continuing
corporation and in which the Class A Common Stock outstanding immediately prior
to the consolidation, amalgamation or merger are not exchanged for cash,
securities or other property of the Company or another corporation), (ii) 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, (iii)(x) any statutory exchange of securities of the Company or any
Company Successor with another corporation or (y) any sale of all or
substantially all of the outstanding equity securities of the Company or any
Successor Company, including pursuant to any plan of arrangement or similar
scheme with the Company's shareholders under any applicable law, rule or
regulation or order of any court or governmental authority (in the case of each
of the preceding clauses (x) and (y), other than in connection with a
consolidation, amalgamation or merger referred to in clause (i) immediately
above), or (iv) any liquidation, dissolution or winding up of the Company or
any Company Successor (any such event described in clause (i), (ii), (iii) or
(iv), a "Reorganization Event"), Seller shall deliver on the Exchange Date, in
lieu of the Contract Shares, cash in an amount (the "Basic Reorganization Event
Amount") equal to the Dilution Adjustment (or successive Dilution Adjustments),
if any, that have been applied to the Exchange Rate pursuant to Section 6.1 at
or prior to the time of such Reorganization Event, multiplied by the product of
(x) the Firm Share Base Amount plus the Additional Share Base Amount and (y)(i)
if the Transaction Value is less than the Appreciation Threshold Price but
equal to or greater than the Initial Price, the Initial Price, (ii) if the
Transaction Value is equal to or greater than the Appreciation Threshold Price,
0.8403 multiplied by the Transaction Value, and (iii) if the Transaction Value
is less than the Initial Price, the Transaction Value. Notwithstanding the
foregoing, if the
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consideration received by the holders of the Class A Common Stock in the
Reorganization Event (the "Merger Consideration") includes any Marketable
Securities, Seller may, at its option, in lieu of delivering cash as described
above, deliver an equivalent amount (based on the value determined in
accordance with clause (z) of the definition of Transaction Value) of such
Marketable Securities, but not exceeding, as a percentage of the total
consideration required to be delivered, the percentage of the total Transaction
Value attributable to such Marketable Securities.
(b) Notwithstanding Section 6.2(a), if at least 30% of the Merger
Consideration in any Reorganization Event consists of cash or cash equivalents
(a "Cash Merger"), then Seller shall be required (i) within five Business Days
after Seller receives the Merger Consideration, to deliver the Accelerated
Portion to Purchaser, provided that to the extent the Accelerated Portion
consists of property other than cash or cash equivalents, Seller may, at its
option, deliver, in lieu of such other property, cash in an amount equal to the
Value of such other property; and (ii) on the Exchange Date, to deliver to
Purchaser the number of Marketable Securities equal to the product of (x) the
sum of the Firm Share Base Amount and the Additional Share Base Amount and (y)
the Exchange Rate, adjusted as described in the next sentence, and the
provisions of Section 2.3(c) shall apply mutatis mutandis to such Marketable
Securities, provided that Seller may exercise the Cash Settlement Alternative
in respect of such Marketable Securities, in which case Section 2.3(d) shall
apply mutatis mutandis to such Marketable Securities. For purposes of
calculating such Exchange Rate, (A) the Initial Price and Appreciation
Threshold Price shall each be adjusted by multiplying the Initial Price or
Appreciation Threshold Price, as applicable, as then in effect, by a fraction,
the numerator of which is the Value of a share of the Marketable Securities
included in the Merger Consideration on the date the Cash Merger is closed, and
the denominator of which shall be the Transaction Value; and (B) the Exchange
Rate shall be adjusted by multiplying 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) by a fraction, the numerator of
which is the aggregate Value of the Marketable Securities included in the
Merger Consideration received in exchange for a single Ordinary Share, and the
denominator of which is the Value of a share of the Marketable Securities
included in the Merger Consideration on the date the Cash Merger is closed.
Section 6.3. Spin-Off Distributions. If the Company shall, after the
date of this Agreement, effect a Spin-Off Distribution, then for all purposes
of this Agreement, from and after the record date in respect of such Spin-Off
Distribution, (i) the Contract Shares shall be deemed to include both (A) that
number of Class A Common Stock equal to the product of (x) the sum of the Firm
Share Base Amount and the Additional Share Base Amount and (y) the Exchange
Rate, and (B) that number of Marketable Securities of the class distributed in
respect of the Contract Shares in such Spin-Off Distribution equal to the
product of (x) the sum of the Firm Share Base Amount and the Additional Share
Base Amount, (y) the Exchange Rate, and (z) the number of shares of such
Marketable Securities distributed per Ordinary Share in the Spin-Off
Distribution; (ii) Seller's obligations under Section 2.3 shall include
delivery of such Marketable Securities together with the Class A Common Stock
comprising the Contract Shares and the provisions of Section 2.3(c) shall apply
mutatis mutandis to such Marketable Securities;
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and (iii) the "Closing Price" of the Class A Common Stock shall thereafter be
deemed to be equal to the sum of (A) the Closing Price per Ordinary Share 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 Ordinary Share in the Spin-Off Distribution.
Section 6.4. Adjustments with Respect to Marketable Securities. The
number of shares of any Marketable Securities included in any calculation
pursuant to this Agreement shall be subject to adjustment if any event that
would, had it occurred with respect to the Class A Common Stock or the Company,
have required an adjustment pursuant to Section 6.1 or Section 6.2, shall occur
with respect to such Marketable Securities or the issuer of such Marketable
Securities between the time of the Spin-Off Distribution or Reorganization
Event (or, in the case of any adjustment occurring during a Calculation Period,
the first day of such Calculation Period) and the Exchange Date. Adjustment for
such subsequent events shall be as nearly equivalent as practicable to the
adjustments provided for in Section 6.1 or Section 6.2.
ARTICLE VII
ACCELERATION UPON AN EVENT OF DEFAULT
Section 7.1. Events of Default. If one or more of the following events
(each an "Event of Default") shall occur:
(a) Seller shall commence a voluntary case or other
proceeding seeking a liquidation, reorganization or other relief with
respect to Seller or Seller's debts under any bankruptcy, insolvency
or other similar law now or hereafter in effect or seeking the
appointment of a trustee, receiver, liquidator, custodian or other
similar official of Seller or any substantial part of Seller's
property, or shall consent to any such relief or to the appointment of
or taking possession by any such official in an involuntary case or
other proceeding commenced against Seller, or shall make a general
assignment for the benefit of creditors, or shall take any action to
authorize any of the foregoing; or
(b) an involuntary case or other proceeding shall be
commenced against Seller seeking liquidation, reorganization or other
relief with respect to Seller or Seller's debts under any bankruptcy,
insolvency or other similar law now or hereafter in effect or seeking
the appointment of a trustee, receiver, liquidator, custodian or other
similar official of Seller or any substantial part of Seller's
property, and such involuntary case or other proceeding shall remain
undismissed and unstayed for a period of 60 days; or an order for
relief shall be entered against Seller under the federal bankruptcy
laws as now or hereafter in effect; or
(c) a Collateral Event of Default within the meaning of the
Collateral Agreement shall occur;
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then, upon the occurrence of any such event, Seller shall become obligated to
deliver the Contract Shares (or the Marketable Securities or cash or
combination of Marketable Securities and cash deliverable in respect of such
Contract Shares), or any U.S. Government Securities then pledged under the
Collateral Agreement in respect such Contract Shares. Purchaser and Seller
agree that such amount is a reasonable pre-estimate of loss and not a penalty.
Such amount is payable for the loss of bargain and Purchaser will not be
entitled to recover additional damages as a consequence of any loss resulting
from an Event of Default.
ARTICLE VIII
MISCELLANEOUS
Section 8.1. Adjustments of Exchange Rate; Selection of Independent
Investment Banking Firm. Purchaser shall be responsible for the effectuation
and calculation of any adjustment g Firm pursuant to Article VI and shall
furnish Seller notice of any such adjustment and shall provide Seller
reasonable opportunity to review the calculations pertaining to any such
adjustment. If, pursuant to the terms and conditions of this Agreement, the
Administrator shall be required to retain a nationally recognized independent
investment banking firm for any purpose provided in this Agreement, such
nationally recognized independent investment banking firm shall be selected and
retained by the Administrator only after consultation with Seller.
Section 8.2. No Assumption of Liability. By executing this Agreement,
none of the Trustees assumes any personal liability under this Agreement.
Section 8.3. 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 8.3 to
each other party to this Agreement. Until such notice is given, (i) notices to
Purchaser shall be directed to it in care of the Administrator, The Chase
Manhattan Bank, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Telecopier No.
(▇▇▇) ▇▇▇-▇▇▇▇, Attention: Pledge Asset Control Services; and (ii) notices to
Seller shall be directed to it at CNET Investments II, Inc., ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇,
Attention: ▇▇▇▇▇▇ ▇▇ ▇▇▇.
(b) Each notice given pursuant to Section 8.3(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 8.3.
Section 8.4. 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
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permitted by law, the unenforceability or invalidity of any provision or
provisions of this Agreement shall not render any other provision or provisions
contained in this Agreement unenforceable or invalid.
Section 8.5. 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.
Section 8.6. 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 Purchaser and Seller or,
in the case of a waiver, by the party against whom the waiver is to be
effective. Purchaser agrees that it will not, without Seller's written consent,
agree to amend or waive any provision of the Trust Agreement in any manner that
materially and adversely affects the rights or obligations of Seller hereunder.
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
provided in this Agreement shall be cumulative and not exclusive of any rights
or remedies provided by law.
Section 8.7. 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 8.8. 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 Seller and Purchaser 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 contained in this Agreement by or on
behalf of Seller and Purchaser shall bind and be enforceable by, 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 Purchaser and its
successors and assigns.
Section 8.9. 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.
25
IN WITNESS WHEREOF, the parties have caused this Purchase Agreement to
be duly executed and delivered as of the first date set forth above.
SELLER:
CNET INVESTMENTS II, INC.
By:
----------------------------------------
Name:
Title:
PURCHASER:
NBCi AUTOMATIC COMMON EXCHANGE
SECURITY TRUST
By:
----------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
as Trustee
By:
----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ III,
as Trustee
By:
----------------------------------------
▇▇▇▇▇ ▇. ▇'▇▇▇▇▇,
as Trustee
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Exhibit A
to
Purchase Agreement
CERTIFICATE FOR EXTENSION OF EXCHANGE DATE
The undersigned, CNET Investments II, Inc. ("Seller"), hereby
certifies, pursuant to Section 2.3(e) of the Purchase Agreement, dated as of
February __, 2000 (the "Contract"), between Seller and NBCi Automatic Common
Exchange Security Trust, that:
1. Seller is transferring the following U.S. Government Securities to
Purchaser:
[INSERT LIST OF TRANSFERRED U.S. GOVERNMENT SECURITIES]
2. Seller hereby represents and warrants to Purchaser that:
(a) Consents to Transfer. No Transfer Restrictions exist with respect
to or otherwise apply to the transfer by Seller of such U.S. Government
Securities to Purchaser.
(b) Delivery. Seller has delivered to the Custodian, for the account
of and subject to the exclusive control of Purchaser, free and clear of any
Liens and Transfer Restrictions, U.S. Government Securities that, through the
scheduled payment of principal and interest in accordance with their terms,
will provide, not later than one Business Day before May ___, 2003, cash in an
amount equal to not less than the product of (1) $________ and (2) the sum of
the Firm Share Base Amount and the Additional Share Base Amount.
(c) Title. Seller has good and marketable title to such U.S.
Government Securities, free and clear of all Liens and Transfer Restrictions.
Upon delivery of such U.S. Government Securities to Purchaser, Purchaser will
obtain good and marketable title to such U.S. Government Securities free and
clear of all Liens and Transfer Restrictions.
3. Such U.S. Government Securities satisfy the conditions set forth in
Section 2.3(e)(i) of the Contract.
Capitalized terms defined in the Contract are used in this Certificate
as defined in the Contract.
IN WITNESS WHEREOF, the undersigned has executed this certificate this
____ day of____________, _____.
CNET INVESTMENTS II, INC.
By:
--------------------------------------
Name:
Title:
A-1