Exhibit E
THE 2006 EEM VOLARIS TRUST
THIS TRUST AGREEMENT (this "Agreement") is entered into on the 7th day
of March, 2006, by and between Xxxxxx X. Xxxxxxxx (the "Settlor"), 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 EEM Volaris Trust (the "Trust").
SECOND: Trust Property
------ --------------
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
----- -------------
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 spouse, any dependent child of the Settlor or the Settlor's spouse, 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 his 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
------ --------------------
(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 to the Settlor's order (or, if deceased,
to the 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 Settlor so directs, and all amounts distributable under this Agreement
during the Settlor's life shall be distributed only to the Settlor or to his
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) the Settlor's death, (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, the Settlor's estate or creditors of the
Settlor's Estate, or, in default of the exercise of such general power of
appointment, to the Settlor if then living; or if incapacitated, to the
Settlor's duly appointed guardian or fiduciary, or an agent under a power of
attorney executed by the Settlor; or if deceased, to the duly qualified legal
representative of the Settlor's estate, including the executors and/or
administrators of the 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 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
------- -----------------------------
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
------ ------------------
(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
----- --------------------
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 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
-------- ---------------
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
------- -----------------
(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 estate, 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 Settlor or the Settlor's estate 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, his 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 Settlor, the Trustee or the
Settlor's estate, 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 Settlor or the Settlor's estate 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, his 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 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
--------- --------------------
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 his federal, state and local income tax, information and other returns with
respect to his 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
--------- -----------------------------------------------
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 spouse 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 he
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 he 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 Settlor 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 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
---------- --------------------------
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
---------- -----
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
------------- ----------
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:
/s/ Xxxxxx X. Xxxxxxxx /s/ Bertil P-H Lundqvist
-------------------------------- (SEAL) ------------------------------------
Xxxxxx X. Xxxxxxxx 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 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)
