Exhibit G
THE 2006 X.X. XXXXX VOLARIS TRUST
THIS TRUST AGREEMENT (this "Agreement") is entered into on the 7th day of
March, 2006, by and between X.X. Xxxxx & Co., Inc., a Delaware corporation
(the "Settlor"), and Pitcairn Trust Company, a Pennsylvania corporation (the
"Trustee").
W I T N E S S E T H:
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FIRST: Name of Trust
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This Trust shall be known as the 2006 X.X. Xxxxx Volaris Trust (the
"Trust").
SECOND: Trust Property
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The Settlor hereby transfers, delivers and conveys to the Trustee all
of the Settlor's 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 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 Settlor 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
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Notwithstanding any other provision herein, the Settlor intends to avoid
any conflict of interest or appearance thereof that may arise from the
Settlor's duties and powers as a shareholder up to the date of this Agreement
of American International Group, Inc. (the "Issuer") in exercising any
investment decisions with regard to shares of the Issuer. In furtherance
thereof, the Settlor hereby creates 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
the Settlor, the Settlor's successors-in-interest or any officer, director,
shareholder or other person whose relationship to the 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 Settlor directs 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 Settlor directs 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 Settlor relieves the Trustee of all
responsibility for managing the underlying assets and hereby limits the
Trustee's responsibility to oversight of the Adviser. The Settlor authorizes
the Trustee to rely solely on statements provided by the Adviser to fulfill
its oversight responsibilities as Trustee. The Settlor acknowledges and agrees
that the Settlor and/or its 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.
FOURTH: Trust Administration
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(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 the Settlor the amount of
any cash and cash equivalents on hand 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 the Settlor; provided, however, that the
Trustee shall not distribute (other than pursuant to Article FIFTH herein) any
Shares to the 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 the
Settlor to, and only to, the Settlor or the Settlor's successors-in-interest,
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 Settlor so
directs, and all amounts distributable under this Agreement during the
Settlor's life shall be distributed only to the Settlor or the Settlor's
successors-in-interest.
(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
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Upon the earliest to occur of (a) the Settlor's dissolution, (b) the
occurrence of an event described in Article EIGHTEENTH, or (c) written notice
to the Trustee from the Settlor or the Settlor's duly appointed guardian or
fiduciary, or an agent under a power of attorney revoking or ordering the
termination of this Trust (in any case, the "Termination Date"), the Trustee
shall distribute the principal (and income, to the extent not previously
distributed) as then constituted to anyone previously designated by the
Settlor in writing, including the Settlor or the Settlor's
successors-in-interest, or, in default of the exercise of such general power
of appointment, to the Settlor or the Settlor's successors-in-interest.
SIXTH: Amendments
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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 Settlor's
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 Settlor, Trust, Trustee or Adviser thereunder.
If the Trustee intends to amend the Trust pursuant to this Article SIXTH, it
shall notify the Settlor in writing at least three business days before the
effective date of such amendment.
SEVENTH: General Powers of the Trustee
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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 Settlor confers 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:
(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 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
Settlor 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
Settlor, specifying the power(s) to be released or restricted and the nature
of the restriction.
EIGHTH: Successor Trustees
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(a) If the Trustee shall for any reason cease to act as the Trustee of
the Trust, the Trustee shall promptly notify the Settlor of such occurrence
and such person(s) as the Settlor shall appoint in writing shall act as the
Trustee(s); provided, however, any successor Trustee appointed as hereinabove
provided may not be the Settlor 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 Settlor.
(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
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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
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The Trustee may resign as the Trustee hereunder at any time without leave
of the Court by giving written notice to the Settlor. 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 Settlor, 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
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The Settlor 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 Settlor, 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
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(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 Settlor or the
Settlor's successors-in-interest 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 Settlor or the Settlor's successors-in-interest 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
Settlor or the Settlor's successors-in-interest 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
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(a) The Adviser shall not be liable to the Settlor, the Trustee or the
Settlor's successors-in-interest, 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 Settlor or the Settlor's successors-in-interest 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 Settlor 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 Settlor, 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 Settlor or the Settlor's successors-in-interest
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
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A. The Trustee shall generate general account summary information each
calendar quarter and may provide to Settlor 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
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The Settlor intends that the Trust shall be taxed as a "grantor trust"
pursuant to Section 676 of the Internal Revenue Code of 1986, as amended. 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 the Settlor
with only such information as shall be necessary to enable the Settlor to
timely file its federal, state and local income tax, information and other
returns with respect to its 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 Settlor's tax identification
number if such election can be made under applicable law. If such an election
is made, the Trustee shall provide the Settlor with the information required
by Regulation ss. 1.671-4(b)(2)(ii). Upon Trustee's request the Settlor shall
provide the Trustee with the completed IRS Form 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 Settlor 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 Settlor. The tax advisor
initially authorized by the Settlor shall be the firm of Kronish Xxxx Xxxxxx &
Xxxxxxx LLP.
SIXTEENTH: Blind Trust between the Settlor and the Trustee
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A. Prohibition on Direct or Indirect Communications. Except as otherwise
specifically provided in this Agreement, the Settlor 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 Settlor 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 Settlor
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 Settlor, the Settlor's successors-in-interest 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 the 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 the Settlor upon such
disposition or deemed disposition, the Trustee shall supply the Settlor 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
Settlor's representation that such transfer will comply with the limitations
provided in this paragraph.
D. Compliance with Section 16 by the Settlor. The Settlor 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 the 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 Settlor and the
Settlor's 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 Settlor 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 the Settlor or anyone whose activities may be attributed to
the Settlor, including transactions that are exempt from Section 16(b) of the
Exchange Act.
E. Investment Control by the Settlor. The Settlor and the Trustee
acknowledge and agree that the Settlor does 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 Settlor. The Settlor and the Trustee
acknowledge and agree that the Settlor does 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 Settlor 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 the 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 Settlor. The Settlor acknowledges and
agrees that under no circumstances, whether directly or indirectly, will it
provide any Advice to the Trustee or to any other person associated with
Investment Decisions or Voting Decisions with respect to the Shares. The
Settlor and the Trustee further acknowledge and agree that, should the 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, the 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 Settlor specifically agrees that
it will not provide to the Trustee or its agents or associates any material
non-public information it has obtained from any source regarding the Issuer.
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 Settlor
may or may not take with respect to securities of the Issuer or otherwise.
SEVENTEENTH: Situs of the Trust
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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 Settlor 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
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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 the 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
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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 the Settlor up to the maximum amount permitted
by law, which loans to the Settlor shall be full recourse against the 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 Settlor and the Trustee are merged in this
instrument.
TWENTY-SECOND: Successors
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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 Settlor and the Trustee have duly executed this
agreement as of the 7th day of March, 2006.
SETTLOR:
X.X. XXXXX & CO., INC.
By: /s/ Xxxxxx X. Xxxxxxxx (SEAL) /s/ Bertil P-H Lundqvist
----------------------------- ---------------------------------
Name: Xxxxxx X. Xxxxxxxx WITNESS
Title:
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 SETTLOR
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
On March 7, 2006 before me, Xxxxx X. Xxxxxxxx the undersigned, personally
appeared Xxxxxx X. Xxxxxxxx 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, the
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 9, 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, the
individual, or the person upon behalf of which the individual acted executed the
instrument.
/s/ Xxxxxxxxx Xxxxxx
-----------------------------------
Notary Public
(SEAL)
