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Exhibit 1.1
iShares GSCI
Commodity-Indexed Trust
[ · ] iShares
Distribution
Agreement
[•] ,
200[•]
[ · ]
Ladies and Gentlemen:
Barclays Global Investors
International, Inc., a [ · ]
corporation (the “Sponsor”), has sponsored the
formation of a trust, known as “iShares GSCI
Commodity-Indexed Trust” (the “Trust”) pursuant
to the laws of the State of
[ ]
for which Barclays Global Investors, N.A. acts as trustee (the
“Trustee”).
Upon the basis of the
representations and warranties set forth in Section 1 hereof and
subject to the applicable terms and conditions set forth herein, on
the date hereof the Trust will issue and sell to you (the
“Initial Purchaser”), an aggregate of [
·
] units of fractional
undivided beneficial interest in and ownership of the Trust (the
“iShares ® ” and, such 150,000 units,
the “Purchased Shares”) upon transfer by the Initial
Purchaser to the Trust (as described herein) of [
·
] baskets as described in the
Prospectus (as defined herein) (the “Initial Baskets”).
The Sponsor and the Trust are advised by the Initial Purchaser
that, upon satisfaction (or waiver by the Initial Purchaser) of the
conditions set forth in Section 7 hereof, the Initial Purchaser
intends to make a public offering of the Purchased Shares as soon
after the effective date of the Registration Statement, and on such
terms, as in its judgment is advisable
1. The Sponsor, on its own
behalf and in its capacity as sponsor of the Trust, represents and
warrants to, and agrees with, the Initial Purchaser
that:
(a) A registration statement
on Form S-1 (File No. 333-[ · ]) (the “Initial Registration Statement”) in
respect of the iShares has been filed with the Securities and
Exchange Commission (the “Commission”); at the time the
conditions set forth in Section 7 have been waived or satisfied
(such time, the “Closing Time”), the Initial
Registration Statement and any post-effective amendment thereto,
each in the form heretofore delivered to you, and, excluding
exhibits thereto, shall have been declared effective by the
Commission in such form; as of the Closing Time, other than a
registration statement, if any, increasing the size of the offering
(a “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 Registration
Statement shall have been filed with the Commission; and no stop
order suspending the effectiveness of the Initial Registration
Statement, any post-effective amendment thereto or the Rule 462(b)
Registration Statement, if any, shall have been issued and no
proceeding for that purpose shall have been initiated or threatened
by the Commission (any preliminary prospectus included in the
Initial Registration Statement or filed with the Commission
pursuant to Rule 424(a) of the rules and regulations of
the
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Commission under the Act is hereinafter
called a “Preliminary Prospectus”; the various parts of
the Initial Registration Statement and the 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 Registration Statement at the
time it was declared effective, each as amended at the time such
part of the Initial Registration Statement became effective or such
part of the Rule 462(b) Registration Statement, if any, became or
hereafter becomes effective, are hereinafter collectively called
the “Registration Statement”; and such final
prospectus, in the form first filed pursuant to Rule 424(b) under
the Act, is hereinafter called the
“Prospectus”;
(b) As of the Closing Time,
no order preventing or suspending the use of any Preliminary
Prospectus shall have been issued by the Commission, and each
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 Sponsor by the Initial
Purchaser expressly for use therein;
(c) As of the Closing Time,
the Registration Statement, the Prospectus and any further
amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the
requirements of the Act and the rules and regulations of the
Commission thereunder and will not, as of the applicable effective
date as to the Registration Statement and any amendment thereto,
and as of the Closing Time or the applicable filing date as to the
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 Sponsor by the Initial
Purchaser expressly for use therein;
(d) The Sponsor has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of Delaware, with power and authority
(corporate and other) to own its properties and conduct its
business as described in the Registration Statement and the
Prospectus;
(e) As of the date hereof,
the Trust has been duly formed and is validly existing as a
statutory trust under the laws of the State of Delaware, with trust
power and authority to issue and deliver the Purchased Shares as
contemplated herein;
(f) As of the date hereof,
iShares GSCI ® Commodity-Indexed Investing Pool
LLC (the “Investing Pool”) has been duly organized and
is validly existing as a limited liability company 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
Registration Statement and the Prospectus;
(g) The Purchased Shares
shall be duly and validly authorized and, when issued and delivered
against payment therefor as provided herein, will be duly and
validly issued and fully paid and non-assessable and as of the
Closing Time will conform in all material respects to the
description of the Purchased Shares contained in the
Prospectus;
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(h) The issue and sale of the
iShares by the Trust and the compliance by the Sponsor and the
Trust 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 Sponsor or the Trust is a
party or by which the Sponsor or the Trust is bound or to which any
of the property or assets of the Sponsor or the Trust is subject,
except where such conflict, breach or violation, as the case may
be, would not have a material adverse effect on the ability of the
Sponsor or the Trust to perform its obligations under the
Agreement, nor will such action result in any violation of the
provisions of the constitutive documents of the Sponsor, the Trust
or the Investing Pool or any statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Sponsor, the Trust or the Investing Pool or
any of their properties, except where such violation would not have
a material adverse effect on the ability of the Sponsor or the
Trust to perform its obligations under the Agreement; 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 iShares hereunder or
the consummation by the Sponsor or the Trust of the transactions
contemplated by this Agreement, except the registration under the
Act of the iShares, filing of the disclosure document with respect
to the iShares under the Commodities Exchange Act (the
“CEA”) and such consents, approvals, authorizations,
registrations or qualifications as may be required under the rules
of the National Association of Securities Dealers, Inc.
(“NASD”), the CEA, state securities, commodities or
Blue Sky laws in connection with the purchase and distribution of
the Purchased Shares by the Initial Purchaser;
(i) As of the Closing Time,
none of the Sponsor, the Trust or the Investing Pool shall be in
violation of its constitutive documents or in default 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 agreement or instrument to
which it is a party or by which it or any of its properties may be
bound;
(j) Other than as set forth
in the Prospectus, there are no legal or governmental proceedings
pending to which the Sponsor, the Trust or the Investing Pool is a
party or of which any property of the Sponsor, the Trust or the
Investing Pool is the subject which, if determined adversely to the
Sponsor, the Trust or the Investing Pool, would individually or in
the aggregate have a material adverse effect on the current or
future consolidated financial position, shareholders’ equity
or results of operations of the Sponsor, the Trust or the Investing
Pool; and, to the best of the Sponsor’s knowledge, no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(k) As of the Closing Time,
the statement of financial position is as set forth in the section
of the Registration Statement and the Prospectus entitled
“Form of Statement of Financial Condition”; the audited
statement of financial condition included in the Prospectus,
together with the related notes and schedules, presents fairly the
financial position of the Trust as of the date indicated and has
been prepared in compliance with the requirements of the Act and in
conformity with generally accepted accounting principles; there are
no financial statements (historical or pro forma) that are required
to be included in the Registration Statement and the Prospectus
that are not included as required; and the Trust does not have any
material liabilities or obligations, direct or contingent
(including any off-balance sheet obligations), not disclosed in the
Registration Statement and the Prospectus;
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(l) Neither the Trust nor the
Investing Pool is subject to any tax filing or any payment
obligation of any tax or other assessment of a similar nature
(whether imposed directly or through withholding) including any
interest, additions to tax or penalties applicable thereto due or
claimed to be due;
(m) As of the Closing Time,
complete and correct copies of the Trust Agreement and LLC
Agreement, and any and all amendments thereto, have been delivered
to you; and
(n) Except as set forth in
the Registration Statement and the Prospectus (including, without
limitation, pursuant to any AP Agreement (as defined therein)), (i)
no person has the right, contractual or otherwise, to cause the
Trust to issue or sell to it any iShares or other equity interest
of the Trust, and (ii) no person has the right to act as an
underwriter or as a financial advisor to the Trust in connection
with the offer and sale of the iShares, in the case of each of the
foregoing clauses (i) and (ii), whether as a result of the filing
or effectiveness of the Registration Statement or the sale of the
iShares as contemplated thereby or otherwise; no person has the
right, contractual or otherwise, to cause the Sponsor on behalf of
the Trust to register under the Act any other equity interests of
the Trust, or to include any such shares or interests in the
Registration Statement or the offering contemplated thereby,
whether as a result of the filing or effectiveness of the
Registration Statement or the sale of the shares as contemplated
thereby or otherwise;
2. On the date of this
Agreement, the Initial Purchaser shall irrevocably transfer the
Initial Baskets to the account of the Trust, and the Trust shall
cause the Purchased Shares to be delivered to the Initial Purchaser
through the facilities of The Depository Trust Company
(“DTC”) for the account of the Initial Purchaser
(without regard to whether the conditions in Section 7 hereof are
satisfied as of the date hereof or whether representations stated
herein to be made as of the Closing Time are true and correct as of
the date of this Agreement).
3. Upon the authorization by
the Initial Purchaser of the release of the Purchased Shares, the
Initial Purchaser proposes to offer the Purchased Shares for sale
upon the terms and conditions set forth in the
Prospectus.
4. The documents to be
delivered as of the Closing Time by or on behalf of the parties
hereto pursuant to Section 7 hereof will be delivered at the
offices of [ · ]
(the “Closing Location”). A meeting will be held at the
Closing Location at 2:00 p.m., New York City time, on the New York
Business Day next preceding the Closing Time, 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 are generally authorized or obligated by
law or executive order to close.
5. The Sponsor agrees with
the Initial Purchaser:
(a) To prepare the Prospectus
and to file such 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 424(b) or Rule 430A(a)(3) under the Act; to advise you,
promptly after it receives notice thereof, of the time when any
amendment to the Registration Statement has been filed or becomes
effective or any supplement to the Prospectus or any amended
Prospectus has been filed and to furnish you, upon written request,
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 an
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