Exhibit I
THE 2006 MRG/CPG VOLARIS TRUST
THIS TRUST AGREEMENT (this "Agreement") is entered into on the 9th day
of March, 2006, by and between Xxxxxxx X. Xxxxxxxxx and Xxxxxxx X. Xxxxxxxxx
(each the "Settlor" of his or her one-half of the trust assets and, where
appropriate in the context, the "Settlors"), and Pitcairn Trust Company, a
Pennsylvania corporation (the "Trustee").
W I T N E S S E T H:
-------------------
FIRST: Name of Trust
----- -------------
This Trust shall be known as the 2006 MRG/CPG Volaris Trust (the
"Trust").
SECOND: Trust Property
------ --------------
The Settlors hereby transfer, deliver and convey to the Trustee all of
the Settlors' right, title and interest in and to the property set forth in
Schedule A, and the Trustee acknowledges receipt of such property, IN TRUST,
and agrees to hold, administer and distribute such property, as well as any
other property that may later become subject to this Trust under the terms and
conditions set forth below. The Settlors own the shares being transferred in
equal share, as tenants in common. The Trustee shall administer the assets
transferred hereby as a single trust, for the benefit of each of the Settlors
as to one-half thereof.
The trust property to which the provisions hereof shall apply shall
include not only the property set forth in Schedule A but also any other
property acceptable to the Trustee which the Settlors or either of them may
hereafter add during the Trust term and that may later become subject to this
Trust, for the purposes and on the terms and conditions set forth herein.
THIRD: Trust Purpose
----- -------------
Notwithstanding any other provision herein, the Settlors intend to
avoid any conflict of interest or appearance thereof that may arise from the
Settlors' powers as shareholders up to the date of this Agreement of American
International Group, Inc. (the "Issuer"), or from the duties and powers of
Xxxxxxx X. Xxxxxxxxx, one of the Settlors, as the former chief executive
officer of the Issuer. In furtherance thereof, the Settlors hereby create this
Trust, the primary purpose of which is to entrust to the Trustee the authority
(within the terms herein, including, without limitation, the remaining
provisions of this Article THIRD) to make all decisions and effectuate all
decisions as to when and to what extent any transactions are effected with
regard to any assets transferred to the Trust, including any Issuer stock
transferred hereto (the "Shares"), in all instances without any participation
in or knowledge of such decisions by either of the Settlors, any dependent
child of either Settlor or any officer, director, shareholder or other person
whose relationship to either Settlor or the Issuer gives such person access,
directly or indirectly, to material information about the Issuer that is not
generally available to the public (an "Interested Party"), subject to the
provisions hereof. Although the Trustee shall have full discretion, the
Settlors direct that the Trustee enter into a contract with Credit Suisse
Securities (USA) LLC substantially in the form of Schedule B, attached hereto,
under which the Trustee will retain Credit Suisse Securities (USA) LLC to
extract returns from the trust's assets identified in such contract based on
stock market volatility, utilizing (i) a low risk tolerance strategy (as
defined in Exhibit B of such contract) when Issuer common stock has a market
price below ninety dollars ($90) per share and (ii) a medium risk tolerance
strategy (as defined in Exhibit B of such contract) when Issuer common stock
has a market price equal to or greater than ($90) per share. Should such
contract terminate for any reason, the Settlors direct the Trustee to enter
into a substantially similar contract with another investment manager (each
investment manager under this agreement, including Credit Suisse Securities
(USA) LLC, hereinafter referred to as the "Adviser" and each investment manager
contract hereinafter referred to as the "Adviser Contract"). Furthermore, the
Settlors relieve the Trustee of all responsibility for managing the underlying
assets and hereby limit the Trustee's responsibility to oversight of the
Adviser. The Settlors authorize the Trustee to rely solely on statements
provided by the Adviser to fulfill its oversight responsibilities as Trustee.
The Settlors acknowledge and agree that each Settlor and/or his or her legal
and financial representatives and advisers, has received, reviewed and
understands (i) the disclosures, including, without limitation, the risk
disclosures relating to the Strategy (as defined in the Adviser Contract); (ii)
a copy of Part II of the Adviser's Form ADV; (iii) a copy of the document
entitled Characteristics and Risks of Standardized Options, and understands
that the Adviser shall provide a current copy of such document on request; and
(iv) the Risk Disclosure Statement Concerning Derivatives attached as Exhibit C
to the Adviser Contract.
2
FOURTH: Trust Administration
------ --------------------
(a) The Trustee shall collect the income from the trust property and
shall hold any cash, whether income or principal, received by the Trust in cash
or cash equivalents. The Trustee shall pay to each Settlor the amount of any
cash and cash equivalents on hand in his or her share of the trust to the
extent that the value of such cash and cash equivalents shall be greater than
five percent (5%) of the fair market value of the Shares, measured at the end
of each calendar quarter using for valuation purposes the last sale price as
reported on the last trading day on or prior to the end of such quarter, such
payment to be made within thirty (30) days thereof, provided, however, that the
Trustee may, in its absolute discretion, withhold the payment of any such cash
or cash equivalents as a reserve for any cash requirements of the trust,
including any fees, expenses or other liabilities. The Trustee may pay from
time to time so much of the balance of the net income and principal, including
to the extent of all thereof, to or for the benefit of a Settlor; provided,
however, that the Trustee shall not distribute (other than pursuant to Article
FIFTH herein) any Shares to a Settlor unless otherwise permitted under this
Agreement.
(b) Notwithstanding anything to the contrary in this Agreement, the
Trustee shall distribute all net income of the trust during the life of each
Settlor to, and only to, such Settlor or to such Settlor's order (or, if
deceased, to such Settlor's estate), which income shall be so distributed no
later than as soon as practicable after the end of each calendar year, if and
to the extent that the Settlors so directs, and all amounts distributable under
this Agreement during each Settlor's life shall be distributed only to such
Settlor or to his or her order (or if incapacitated, to the Settlor's duly
appointed guardian or fiduciary).
(c) For purposes of this Article FOURTH, "income" shall include income
from all sources, regardless of whether characterized for other purposes as
principal or income including, without limitation, income generated with
respect to call options and/or other derivative securities.
FIFTH: Trust Termination
----- -----------------
Upon the earliest to occur of (a) a Settlor's death, (b) the
occurrence of an event described in Article EIGHTEENTH, or (c) written notice
to the Trustee from a Settlor or a
3
Settlor's duly appointed guardian or fiduciary, or an agent under a power of
attorney revoking or ordering the termination of his or her portion of this
Trust (in any case, the "Termination Date"), the Trustee shall distribute the
principal (and income, to the extent not previously distributed) allocable to
such Settlor, as then constituted to anyone previously designated by such
Settlor in writing, including the Settlors, the Settlors' estates or creditors
of the Settlors' estates, or, in default of the exercise of such general power
of appointment, to the Settlors in his or her proportionate share if both then
living; or if either Settlor is incapacitated, to such Settlor's duly appointed
guardian or fiduciary, or an agent under a power of attorney executed by such
Settlor; or if deceased, to the duly qualified legal representative of such
Settlor's estate, including the executors and/or administrators of such
Settlor's estate.
SIXTH: Amendments
----- ----------
This Trust can be amended at any time or from time to time by the
Trustee, but only if the Trustee is advised by the Trustee's or the Settlors'
securities counsel in writing that such amendment is necessary or desirable,
and then only to the extent so necessary or desirable (a) to assure that the
Trust and the sale of the Shares, writing, settling and rolling of call options
with regard to the Shares, or any other derivative strategy effectuated by the
Trustee or its investment adviser relating to the Shares are consistent with
(i) then applicable securities laws, regulations or administrative policies or
interpretations, and (ii) any responsibility that the Trustee, Adviser or the
Settlor may have thereunder or (b) to avoid unanticipated liability of the
Settlors, Trust, Trustee or Adviser thereunder. If the Trustee intends to amend
the Trust pursuant to this Article SIXTH, it shall notify the Settlors in
writing at least three business days before the effective date of such
amendment.
SEVENTH: General Powers of the Trustee
------- -----------------------------
In addition to any powers granted specifically or generally to the
Trustee as provided by law, and in addition to every power and discretion
conferred upon the Trustee by any provision hereof, the Settlors confer upon
the Trustee the express powers set forth in this Article to be exercised by the
Trustee in its sole discretion with respect to all property at any time coming
into its hands, whether principal or income and whether by purchase or
otherwise but at all times in accordance with Article THIRD:
4
(a) To take any actions with respect to transactions in the Shares for
so long as the Shares are held as an asset of the Trust; and hold the Shares in
the Trust, sell all or some of the Shares from time to time, write and roll
equity, index and over-the-counter covered calls and use call options and/or
other derivative strategies to generate income, manage risk, and facilitate
exit strategies for the account of the respective Settlor, provided that such
action is not in violation of any applicable laws;
(b) To own, hold and possess such other securities and interests in
the Issuer or other entities, either publicly or closely held, as part of or as
all of the Trust assets for the entire Trust term, and continue to invest the
principal of the Trust as then constituted in any such securities or interests
as the Trustee in its discretion deems appropriate. The Trustee shall not be
liable for any loss resulting from the retention of the Shares, or such
securities or interests as part of or as all of the assets of the Trust. The
Trustee shall have the power to retain the Shares and such securities or
interests, notwithstanding any applicable law relating to the investment of
trust assets, including any laws requiring diversification of trust assets;
(c) With respect to any stock or other securities forming part of this
Trust, to exercise all voting rights, either in person or by proxy; exercise
conversion, subscription, option and similar rights; enter or refuse to enter
any dissolution, liquidation, consolidation, recapitalization, reorganization,
merger or other change in capital structure, and in connection therewith, make
exchanges of stock or other securities and enter into agreements on such terms
and conditions as the Trustee may deem advisable; including without limitation,
the deposit of any property with any protective, reorganization or similar
committee, the delegation of discretionary powers thereto, the sharing in the
payment of its expenses and compensation and the payment of any assessments
levied with respect to such property; receive and retain property under any
such plan whether or not the same is of a class in which fiduciaries are
authorized by law to invest trust funds, and enter into voting trusts and
agreements with other stockholders, and other holders of securities, or any one
or more so such person, for such purposes and for such period of time (whether
or not the same extends beyond the actual or probable duration of any trust
created hereunder), and upon such terms and conditions as the Trustee shall
deem advisable, provided, however, that notwithstanding the foregoing or any
other provision of this Trust, the Trustee shall have full and absolute
discretion with respect to the exercise of all voting rights, such discretion
to include, without limitation, the authority to vote in accordance with any
recommendation, to Issuer securityholders generally, of any independent third
party, including Institutional Shareholder Services, Inc;
(d) To invest in mortgage participations, shares of investment trusts
and regulated investment companies, including those controlled by any
investment advisor or investment counsel employed by the Trustee, mutual funds,
money market funds and index funds that may be acquired by prudent investors;
(e) To hold securities, including stock of the Issuer, or other
property in the Trustee's name as the Trustee under the Trust, in the Trustee's
own name or in the name of a nominee; or the Trustee may hold securities
unregistered in such condition that ownership will pass by delivery;
(f) To make executory contracts and grant options for any period and
for any purpose;
(g) To buy and trade in securities and other financial instruments of
any nature; buy and sell (covered or uncovered) equity, index and over-the
counter options and otherwise deal in puts and calls; and to maintain and
operate margin accounts and other accounts with brokers as security for loans
and advances made to the Trustee; in particular, the Trustee is specifically
authorized to sell securities to cover any of the Trust's expenses;
(h) To prosecute, defend, contest or otherwise litigate, at the
expense of the Trust, legal actions or other proceedings for the protection or
benefit of the Trustee or Trust. The Trustee shall further have the power to
pay, compromise, release, adjust or submit to arbitration any debt, claim or
controversy against or in favor of the Trust, as long as the Trustee reasonably
believes that such action will be beneficial to the Trust;
(i) To carry, at the expense of the Trust, insurance of such types and
in such amounts as the Trustee may deem advisable to insure the trust assets
against any loss or damage and protect the Trustee against third party
liability;
(j) To employ and pay the fees of, at the expense of the Trust,
through the sale of trust assets if necessary, agents, experts, accountants,
counsel, investment advisors, custodians, brokers, and others (including the
Trustee, its successor or any affiliate) and delegate discretionary powers
(including investment functions) to, and rely upon information and advice
furnished by such agents, experts, accountants, counsel, investment advisors,
custodians, brokers and others in connection with issues specific to the Trust,
the Settlors or the trust estate in connection with the Trustee's management,
administration and protection of the trust estate; and
(k) To release or to restrict the scope of any power that the Trustee
may hold in connection with the Trust hereunder, whether such power is
expressly granted in this instrument or implied by law. The Trustee shall
exercise this power in a written instrument executed by the Trustee and
delivered to the Settlors, specifying the power(s) to be released or restricted
and the nature of the restriction.
EIGHTH: Successor Trustees
------ ------------------
(a) If the Trustee shall for any reason cease to act as the Trustee of
the Trust, the Trustee shall promptly notify the Settlors of such occurrence
and such person(s) as the Settlors shall appoint in writing shall act as the
Trustee(s); provided, however, any successor Trustee appointed as hereinabove
provided may not be either of the Settlors or any other Interested Party. All
appointments of successor Trustee(s) shall be exercised in writing, duly
acknowledged and shall be effective upon the written acceptance of the
successor Trustee delivered to the Settlors.
(b) Any successor Trustee shall succeed as the Trustee of the Trust
with like effect as though originally named the Trustee under this instrument.
All authority, powers and discretions conferred on the original Trustee under
this instrument shall pass to any successor Trustee.
(c) No bond or other security shall be required of any Trustee named
herein, or appointed as hereinabove provided, for the faithful performance of
such Trustee's duties in any state or other jurisdiction.
NINTH: Trustee Compensation
----- --------------------
The Trustee shall be entitled to receive compensation for its services
for acting in any fiduciary capacity under this instrument in accordance with
Schedule C attached hereto and incorporated by reference herein.
TENTH: Trustee Resignation
----- -------------------
The Trustee may resign as the Trustee hereunder at any time without
leave of the Court by giving written notice to the Settlors. The resignation
shall become effective on the acceptance of the Trusteeship by the successor
Trustee(s) designated pursuant to Article EIGHTH hereof. Upon the written
acceptance(s) by the appointed successor Trustee(s), and duly acknowledged
receipt and release of the Settlors, the resigning Trustee shall (i) promptly
deliver all trust assets in its possession to the successor Trustee(s), (ii)
execute all documents and (iii) do all such things as may be necessary
therefor.
ELEVENTH: Trustee Removal
-------- ---------------
The Settlors, acting jointly, may remove any acting Trustee, with or
without cause, by giving written notice to the Trustee, and one or more
successors thereto shall be appointed in accordance with Article EIGHTH hereof.
Upon the written acceptance(s) by the appointed successor Trustee(s), and duly
acknowledged receipt and release of the Settlors, the removed Trustee shall (i)
promptly deliver all trust assets in its possession to the successor
Trustee(s), (ii) execute all documents and (iii) do all such things as may be
necessary therefor.
TWELFTH: Trustee Liability
------- -----------------
(a) A successor Trustee shall not be responsible for the acts or
omissions of any prior Trustee.
(b) The original Trustee shall not be liable to the Settlors, or the
estate of either of the Settlors, or their heirs, executors, administrators and
assigns, for any act, omission or default of the Trustee, including but not
limited to exercising voting rights as provided under clause (c) of Article
SEVENTH hereof , in its complete discretion, or of any other person, except by
reason of the Trustee's acting in bad faith, willful misconduct or gross
negligence.
(c) The Trust, the Settlors or the Settlors' estates shall indemnify
the Trustee to the fullest extent permitted by law, and shall save and hold the
Trustee harmless from and in respect of all fees, costs and expenses incurred,
including attorneys' fees, in connection with or resulting from any claim,
action or demand against (or threatened against) the Trust or the Trustee,
which arise out of or in any way relate to the Trust or the trust estate, or
the performance of the Trustee's duties under this instrument, including but
not limited to following the income extraction program as described under
Article THIRD hereof, and all such claims, actions and demands and any losses
or damages resulting therefrom, including amounts paid in settlement or
compromise of any such claim, action or demand; provided, however, this
indemnity shall not extend to conduct by the Trustee that is adjudged to
constitute bad faith, willful misconduct or gross negligence.
(d) Except to the extent any liability, loss or depreciation results
from the Trustee's bad faith, willful misconduct or gross negligence, (i) the
Settlors, their heirs, executors, administrators, and assigns shall indemnify
and hold the Trustee harmless from any and all liability resulting from the
exercise or non-exercise of its discretion to engage in or disengage from any
program designed to diversify or increase the return on the Issuer's common
stock, (ii) the Trustee shall not be responsible for any loss or depreciation
in value of any property authorized to be retained or acquired and (iii) the
judgment of the Trustee with respect to the exercise of its discretion shall be
binding and conclusive upon all persons who are beneficiaries or otherwise
interested parties to this Trust.
(e) Unless resulting from the Trustee's bad faith, willful misconduct
or gross negligence, and upon satisfaction of the conditions set forth herein
with respect to each such action, every election, determination or other
exercise of discretion by the Trustee with respect to the retention,
disposition or acquisition of any trust assets shall be deemed to have been
made with reasonable care, prudence and diligence by the Trustee.
THIRTEENTH: Adviser Liability
---------- -----------------
(a) The Adviser shall not be liable to the Settlors, the Trustee or
the Settlors' estates, heirs, executors, administrators and assigns, for any
act, omission or default of the Adviser or of any other person, except by
reason of the Adviser's acting in bad faith, willful misconduct or gross
negligence.
(b) The Trust, the Settlors or the Settlors' estates shall indemnify
the Adviser to the fullest extent permitted by law, and shall save and hold the
Adviser harmless from and in respect of all fees, costs and expenses incurred,
including reasonable attorneys' fees, in connection with or resulting from any
claim, action or demand against (or threatened against) the Trust or the
Adviser, which arise out of or in any way relate to the Trust or the trust
estate, or the performance of the Adviser's duties hereunder or under the
Adviser Contract, including but not limited to following the investment program
referred to in Article THIRD hereof, and all such claims, actions and demands
and any losses or damages resulting therefrom, including amounts paid in
settlement or compromise of any such claim, action or demand; provided,
however, (1) this indemnity shall not extend to conduct by the Adviser that is
adjudged by a court of appropriate jurisdiction to constitute bad faith,
willful misconduct or gross negligence by the Adviser, (2) the Adviser shall
provide written notice to the Trustee and Settlors of any such claim, action or
demand relating to such indemnification, and (3) the settlement or compromise
of any such claim, action or demand shall be approved in writing by the
Settlors, which consent shall not be unreasonably withheld.
(c) Except to the extent any liability, loss, depreciation or the
Adviser's judgment results from the Adviser's bad faith, willful misconduct or
gross negligence, (i) the Settlors, their heirs, executors, administrators, and
assigns shall indemnify and hold the Adviser harmless from any and all
liability resulting from the exercise or non-exercise of its discretion to
engage in or disengage from any program designed to diversify or increase the
return on the Issuer's common stock, (ii) the Adviser shall not be responsible
for any loss or depreciation in value of any property authorized to be retained
or acquired and (iii) the judgment of the Adviser with respect to the exercise
of its discretion shall be binding and conclusive upon all persons who are
beneficiaries or otherwise interested parties to this Trust.
(d) Unless resulting from the Adviser's bad faith, willful misconduct
or gross negligence, and upon satisfaction of the conditions set forth herein
with respect to each such action, every election, determination or other
exercise of discretion by the Adviser with respect to the retention,
disposition or acquisition of any trust assets shall be deemed to have been
made with reasonable care, prudence and diligence by the Adviser.
FOURTEENTH: Statements of the Trustee
---------- -------------------------
A. The Trustee shall generate general account summary information each
calendar quarter and may provide to the Settlors more detailed statements of
account activity from time to time, subject to Article SIXTEENTH hereof.
Statements shall be provided no earlier than the earlier of (i) 90 days from
the date of the statement and (ii) the last expiration date of open positions
listed on such statement.
B. A successor Trustee may accept as correct any statements of trust
assets made by any predecessor Trustee; and no successor Trustee shall have any
duty to take action to obtain redress for breach of trust committed by any
predecessor Trustee, unless requested in writing by a person having a present
or future beneficial interest in the Trust. A successor Trustee, however, may
institute any action or proceeding for the settlement of the statements, acts
or omissions of any predecessor Trustee.
FIFTEENTH: Grantor Trust Status
--------- --------------------
The Settlors intend that the Trust shall be taxed as a "grantor trust"
pursuant to Section 676 of the Internal Revenue Code of 1986, as amended (the
"Code"), with each Settlor treated as the "owner" of one-half of the Trust
under Section 671 of the Code. The Trustee shall file any required income tax,
information and other returns for the Trust promptly after the close of each
taxable year of the Trust (or, if earlier, as required by applicable law) and
shall timely provide each Settlor with only such information as shall be
necessary to enable the Settlors to timely file his or her federal, state and
local income tax, information and other returns with respect to his or her
interest in the Trust or as otherwise required by applicable law. The Trustee
is hereby authorized to make an election under Regulation ss.
1.671-4(b)(2)(i)(A) to use the Settlors' tax identification numbers if such
election can be made under applicable law. If such an election is made, the
Trustee shall provide the Settlors with the information required by Regulation
ss. 1.671-4(b)(2)(ii). Upon Trustee's request the Settlors shall provide the
Trustee with completed IRS Forms W-9 (or any successor thereof). Any tax advice
or services required by the Trust, or the Trustee with respect to the Trust,
shall be provided, at the expense of the Trust, by a firm authorized by the
Settlors from time to time, and any filing with any tax authority on behalf of
the Trust, or the Trustee with respect to the Trust, shall require the prior
consent of the Settlors. The tax advisor initially authorized by the Settlors
shall be the firm of Kronish Xxxx Xxxxxx & Xxxxxxx LLP.
SIXTEENTH: Blind Trust between the Settlors and the Trustee
--------- ------------------------------------------------
A. Prohibition on Direct or Indirect Communications. Except as
otherwise specifically provided in this Agreement, the Settlors and the Trustee
shall not communicate, directly or indirectly, about the Shares or other
securities in the Issuer.
B. Limitation on Equity Ownership. In no event shall the
Settlors place in the Trust securities that, when aggregated with any
securities of the same issuer already held in the Trust, would represent
beneficial ownership equal to or greater than 10% of the outstanding equity
securities of a corporation or other entity (including the Issuer) if such
class of securities is registered under Section 12 of the Exchange Act.
C. Compliance with Rule 144. With respect to transactions, including
but not limited to, any sales, covered call writing programs, derivative
strategies, or other dispositions by the Trustee with regard to the Shares, the
Trustee shall transact in such securities in compliance with Rule 144 of the
Securities Act of 1933, as amended ("Rule 144") and make, or cause a third
party, including any Adviser, to make, such filings as required. The Settlors
shall promptly give notice to the Trustee of any intended disposition or
activity that may be deemed a disposition of any of the Issuer's securities
held by the Settlors or any other person or entity, including deemed
dispositions pursuant to benefit plans, whose transactions in the Issuer's
securities may be aggregated with or attributable to either Settlor, prior to
such disposition or deemed disposition, which may include, but not be limited
to gifts, sales, hedging activities, or other transfers. Such intended
disposition or deemed disposition shall only take place if approved in writing
by the Trustee if in the Trustee's sole discretion such disposition or deemed
disposition is not in conflict with the Trustee's actions required or allowed
under this Trust and Rule 144. Also, to facilitate any Rule 144 filings
required to be made by either Settlor upon such disposition or deemed
disposition, the Trustee shall supply the Settlors with the information
required to be completed on such filing relating to the Trust's activities. In
accepting any securities, the Trustee may rely on the Settlors' representation
that such transfer will comply with the limitations provided in this paragraph.
D. Compliance with Section 16 by the Settlors. The Settlors shall
comply with any and all reporting requirements under Section 16 of the Exchange
Act upon the transfer of any assets to the Trust or back to either Settlor,
including filing all Form 4's and Form 5's required by applicable Exchange Act
rules. To facilitate such compliance, the Trustee shall notify the Settlors and
the Settlors' designated representatives of all transactions effected by the
Trust that may be reportable under Section 16(a) of the Exchange Act not later
than one day after initiating each such transaction. In addition, the Settlors
will promptly provide to the Trustee a list of all transactions reportable
under Section 16(a) of the Exchange Act executed within seven (7) months
previous to the date hereof by either Settlor or anyone whose activities may be
attributed to either Settlor, including transactions that are exempt from
Section 16(b) of the Exchange Act.
E. Investment Control by the Settlors. The Settlors and the Trustee
acknowledge and agree that the Settlors do not have or share and will not
exercise authority or control over, nor will attempt to influence in any way
the Trustee's decisions that directly or indirectly affect the acquisition or
disposition of any options, derivative securities or other securities of the
Issuer or relating to the Issuer or the Issuer's securities by the Trust,
including decisions to continue to hold an investment ("Investment Decisions").
F. No Voting Control by the Settlors. The Settlors and the Trustee
acknowledge and agree that the Settlors do not have or share and will not
exercise authority or control over, nor will attempt to influence in any way,
the Trustee's decisions relating to the voting of the Shares (or any decision
to refrain from voting on a matter) or the giving of a proxy with respect
thereto ("Voting Decisions").
G. No Solicitation of Advice by the Trustee. The Trustee acknowledges
and agrees that it will not under any circumstances request from any Interested
Party, directly or indirectly, any information, regardless of its form, which
may be written, oral, electronic "soft copy" or any other form used to
communicate, concerning, without limitation, the results of operations,
financial condition, technology, research and development activities,
employees, officers, directors, business or prospects of the Issuer or any
other information that could materially influence an Investment Decision or a
Voting Decision ("Advice"). The foregoing notwithstanding, the Settlors and the
Trustee agree and understand that the Trustee, as part of keeping itself fully
informed regarding the Issuer in particular and regarding its industry segment
and the market in general, may participate in analyst calls and other public
communications from the Issuer irrespective of whether either Settlor or any
other Interested Party serves as the spokesperson for the Issuer during the
course of such public communications and further, that participating in such
analyst calls and other public communications and communications with or on
behalf of the Issuer will not be deemed a violation of the Trust, or the
Trustee's duties hereunder. The parties acknowledge and agree that the
restrictions on the "Trustee" in this clause G shall be deemed to apply solely
to the employees of the trust department of any corporate Trustee responsible
for administering this Trust and not to the Trustee in its corporate capacity
generally, in its capacity as a service provider outside of its trust
department, or in its capacity as a service provider to other accounts within
its trust department.
H. No Provision of Advice by the Settlors. The Settlors acknowledge
and agree that under no circumstances, whether directly or indirectly, will he
or she provide any Advice to the Trustee or to any other person associated with
Investment Decisions or Voting Decisions with respect to the Shares. The
Settlors and the Trustee further acknowledge and agree that, should either
Settlor be approached by any of the foregoing persons seeking to engage in a
dialogue (oral or written) concerning any subject that might have a possible
bearing on an Investment Decision or a Voting Decision, such Settlor will
inform the other person involved in the dialogue of the obligations of the
parties hereunder, and will refrain from providing any Advice during the course
of any such dialogue. Without limiting the foregoing, the Settlors specifically
agree that they will not provide to the Trustee or its agents or associates any
information regarding the Issuer that he has obtained through his position as a
director, officer or employee of the Issuer or an affiliate of any such
director, officer or employee.
I. Material non-public information. The Trustee represents that the
employees of the Trustee administering the Trust have no material non-public
information about the Issuer and shall not execute any transactions in the
Trust property while in possession of such information. The parties acknowledge
and agree that the restrictions on the "Trustee" in this clause shall be deemed
to apply solely to the employees of the trust department of any corporate
Trustee responsible for administering this Trust and not to the Trustee in its
corporate capacity generally, in its capacity as a service provider outside of
its trust department, or in its capacity as a service provider to other
accounts within its trust department. In addition, the parties agree that the
transactions by the Trustee in the Trust property contemplated hereunder are
independent of any other transactions that the Settlors may or may not take
with respect to securities of the Issuer or otherwise.
SEVENTEENTH: Situs of the Trust
----------- ------------------
This Agreement shall be construed in accordance with the custom and
usage prevailing in, and be regulated by the laws of the Commonwealth of
Pennsylvania. As long as the Trust is a Pennsylvania trust, the law governing
the administration of the Trust shall be controlled by Pennsylvania law. If
Trustee proposes to effect any change that would cause the Trust to cease to be
a Pennsylvania trust, it shall notify the Settlors at least ten days in advance
of effecting such change. This Article shall apply regardless of any change of
residence of Trustee, or any beneficiary, or the appointment or substitution of
a Trustee residing or doing business in another state.
EIGHTEENTH: Severability of Provisions
---------- --------------------------
If any provisions of this instrument are declared invalid or
unenforceable, the remaining provisions shall nevertheless be carried into
effect; provided, however, that the parties acknowledge that a principal
purpose of the transactions effectuated by the Trust is that the transactions
not be attributable to either Settlor for purposes of Section 16 of the
Exchange Act and, if any provision of this Agreement that is necessary or
advisable for such purpose is declared by a court of appropriate jurisdiction
to be invalid or unenforceable, then this Trust will terminate.
NINETEENTH: Loans
---------- -----
The Trustee has the power upon any terms, including on a recourse or
non-recourse basis, to borrow money from any person, including itself, its
successor or any affiliate or any Adviser, in an amount up to ten (10%) percent
of the trust assets, valued as of the date of such loan, to be secured by the
trust assets, for any lawful purpose and to pledge assets as security for
repayment. The Trustee, in its corporate capacity, is also authorized, in its
sole discretion, to lend to either Settlor up to the maximum amount permitted
by law, which loans to the Settlor shall be full recourse against such Settlor.
TWENTIETH: Execution in Counterparts
--------- -------------------------
This Agreement may be executed via facsimile, in any number of
counterparts and by different parties hereto in separate counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
TWENTY-FIRST: Sole Agreement
------------ --------------
All prior understandings, agreements, representations and warranties,
oral or written, between the Settlors and the Trustee are merged in this
instrument.
TWENTY-SECOND: Successors
------------- ----------
This instrument shall be binding upon and inure to the benefit of the
parties hereto, their successors, heirs, executors, and administrators.
IN WITNESS WHEREOF, the Settlors and the Trustee have duly executed
this agreement as of the 9th day of March, 2006.
SETTLORS:
/s/ Xxxxxxx X. Xxxxxxxxx /s/ Shake Nahapetian
------------------------------- (SEAL) -----------------------------------
Xxxxxxx X. Xxxxxxxxx WITNESS
/s/ Xxxxxxx X. Xxxxxxxxx /s/ Xxxx Xxxxxxxxx
------------------------------- (SEAL) -----------------------------------
Xxxxxxx X. Xxxxxxxxx WITNESS
TRUSTEE:
PITCAIRN TRUST COMPANY
By: /s/ Xxxxxxx X. Xxxxxx ATTEST: /s/ Xxxxxx X. Xxxxxxx
-------------------------- ---------------------------
Name: Xxxxxxx X. Xxxxxx Ass't. Sec'y.
Title: Senior Vice President
ACKNOWLEDGMENT OF SETTLORS
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
On March 9, 2006 before me, Xxxxx X. Xxxxxxxx the undersigned,
personally appeared Xxxxxxx X. Xxxxxxxxx and Xxxxxxx X. Xxxxxxxxx personally
known to me or provide to me on the basis of satisfactory evidence to be those
individuals whose names are subscribed to the within instrument and acknowledged
to me that he/she executed the same in his/her capacity, and that by his/her
signature on the instrument, each such individual, or the person upon behalf of
which the individual acted executed the instrument.
(SEAL) /s/ Xxxxx X. Xxxxxxxx
---------------------
Notary Public
ACKNOWLEDGMENT OF TRUSTEE
COMMONWEALTH OF PENNSYLVANIA )
) SS.:
COUNTY OF XXXXXXXXXX )
On March 10, 2006 before me, Xxxxxxxxx X. Xxxxxx the undersigned,
personally appeared Xxxxxxx X. Xxxxxx personally known to me or provide to me
on the basis of satisfactory evidence to be the individual whose name is
subscribed to the within instrument and acknowledged to me that he/she executed
the same in his/her capacity, and that by his/her signature on the instrument,
each individual, or the person upon behalf of which the individual acted
executed the instrument.
/s/ Xxxxxxxxx X. Xxxxxx
-----------------------
Notary Public
(SEAL)
