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Exhibit 6
IRREVOCABLE TRUST AGREEMENT
FOR THE BENEFIT OF
XXXXXX X. XXXXX
This trust agreement (sometimes hereinafter called this
"AGREEMENT") made at Columbus, Ohio, as of December 29, 1995, between Xxxx Xxxxx
(sometimes hereinafter called the "SETTLOR") and The Huntington Trust Company,
N.A. (sometimes hereinafter called the "TRUSTEE");
W I T N E S S E T H:
WHEREAS, the SETTLOR desires to create an inter vivos trust
upon the terms and conditions hereinafter set forth in this AGREEMENT; and
WHEREAS, the TRUSTEE desires to administer said trust in
accordance with the terms and provisions hereinafter set forth in this
AGREEMENT; and
WHEREAS, it is anticipated that Xxxxxx X. Xxxxx will pay, or
cause to be paid, all costs (including reasonable compensation to the TRUSTEE)
incurred in connection with the administration of the TRUST ESTATE; and
WHEREAS, it is anticipated that the TRUSTEE will enter into a
subscription agreement for 16,450,000 (subject to adjustment as provided in the
SUBSCRIPTION AGREEMENT) common shares, without par value, of Wendy's
International, Inc., an Ohio corporation, with payment for said shares to be
made in the form of Non-Voting Exchangeable Shares of 1149658 Ontario Inc., an
Ontario corporation and a subsidiary of Wendy's International, Inc., or shares
of a successor corporation having terms substantially equivalent to those of the
Non-Voting Exchangeable Shares of 1149658 Ontario Inc. ("Exchangeable Shares");
and
WHEREAS, it is anticipated that the TRUSTEE will enter into a
guaranty agreement with Xxxxxx X. Xxxxx whereby Xxxxxx X. Xxxxx (or, in the
event of his incompetence, his legally appointed guardian or other personal
representative) will be obligated to deliver to the TRUSTEE any Exchangeable
Shares which the TRUSTEE is obligated to deliver to Wendy's International, Inc.
pursuant to the provisions of the SUBSCRIPTION AGREEMENT; and
WHEREAS, it is anticipated that Wendy's International, Inc.,
1149658 Ontario Inc., and Xxxxxx X. Xxxxx will enter into a share exchange
agreement providing, among other provisions, for the immediate and direct
exchange of Xxxxxx X. Xxxxx'x Exchangeable Shares for common shares, without par
value, of
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Wendy's International, Inc. under certain specified circumstances; and
WHEREAS, it is anticipated that the TRUSTEE will join as a
party to an escrow agreement among The Trust Company of Bank of Montreal,
Wendy's International, Inc., 0000000 Ontario Inc., and Xxxxxx X. Xxxxx involving
the escrow of certain of Xxxxxx X. Xxxxx'x Exchangeable Shares for the limited
purposes specified in the ESCROW AGREEMENT;
NOW, THEREFORE, the SETTLOR and the TRUSTEE hereby make the
following agreement, intending to be bound thereby:
ARTICLE ONE
Definition of Certain Terms
1.1. The terms defined in this Article One shall have the
meanings indicated herein when used in this AGREEMENT.
1.2. The term "BENEFICIARY" means Xxxxxx X. Xxxxx together
with all other persons (a) to whom Xxxxxx X. Xxxxx may assign part of his
beneficial interest under this AGREEMENT in compliance with any agreements by
which Xxxxxx X. Xxxxx may be legally bound from time to time, and (b) who are
legally bound and able to comply with, or cause to be complied with, all of the
obligations of Xxxxxx X. Xxxxx under the GUARANTY AGREEMENT with respect to the
assigned beneficial interest.
1.3. The term "ESCROW AGREEMENT" means the escrow agreement,
dated as of the date of this AGREEMENT, among The Trust Company of Bank of
Montreal, Wendy's, Newco, and Xxxxxx X. Xxxxx involving the escrow of certain of
Xxxxxx X. Xxxxx'x Exchangeable Shares, which escrow agreement the TRUSTEE will
be joining as a party for the limited purposes specified in the ESCROW
AGREEMENT.
1.4. The term "Exchangeable Shares" means Non-Voting
Exchangeable Shares of 1149658 Ontario Inc. or shares of a successor corporation
having terms substantially equivalent to those of the Non-Voting Exchangeable
Shares of 1149658 Ontario Inc.
1.5. The term "GUARANTY AGREEMENT" means the guaranty
agreement, dated as of the date of this AGREEMENT, by and between Xxxxxx X.
Xxxxx and the TRUSTEE requiring, among other provisions, Xxxxxx X. Xxxxx to
deliver his Exchangeable Shares to the TRUSTEE in order to permit the TRUSTEE to
comply with the provisions of the SUBSCRIPTION AGREEMENT.
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1.6. The term "Newco" means 1149658 Ontario Inc., an Ontario
corporation and a subsidiary of Wendy's, or any successor corporation having a
class of shares with terms identical to those of the Non-Voting Exchangeable
Shares of 1149658 Ontario Inc.
1.7. The term "SHARE EXCHANGE AGREEMENT" means the share
exchange agreement, dated as of the date of this AGREEMENT, by and among
Wendy's, Newco, and Xxxxxx X. Xxxxx providing, among other provisions, for the
immediate and direct exchange of Xxxxxx X. Xxxxx'x Exchangeable Shares for
Wendy's Shares under certain specified circumstances.
1.8. The term "SUBSCRIBED SHARES" means any Wendy's Shares
subscribed for by the TRUSTEE under the SUBSCRIPTION AGREEMENT.
1.9. The term "SUBSCRIPTION AGREEMENT" means the subscription
agreement, dated as of the date of this AGREEMENT, whereby the TRUSTEE will
subscribe to purchase 16,450,000 (subject to adjustment as provided in the
SUBSCRIPTION AGREEMENT) Wendy's Shares with payment therefor to be made in the
form of Exchangeable Shares.
1.10. The term "TRUST ESTATE" means all property (together
with any income therefrom) held by the TRUSTEE (whether acquired from the
SETTLOR or otherwise) subject to the provisions of this AGREEMENT and not
previously distributed as provided in this AGREEMENT.
1.11. The term "TRUSTEE" means the person holding the TRUST
ESTATE in trust subject to the provisions of this AGREEMENT.
1.12. The term "Wendy's" means Wendy's International, Inc., an
Ohio corporation, or its successors or assigns.
1.13. The term "Wendy's Shares" means the common shares,
without par value, of Wendy's.
ARTICLE TWO
Irrevocability
2.1. This AGREEMENT shall be irrevocable, and the SETTLOR
hereby expressly acknowledges that the SETTLOR shall have no right or power in
any capacity whatsoever to alter, amend,
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revoke or terminate this AGREEMENT, or any of the terms of this AGREEMENT, in
whole or in part, or to designate the persons who shall possess or enjoy the
TRUST ESTATE or the income therefrom. By this AGREEMENT, the SETTLOR intends to,
and does hereby, (a) relinquish absolutely and forever all possession and
enjoyment of, and the right to the income from, the TRUST ESTATE whether
directly, indirectly or constructively, (b) relinquish absolutely and forever
every other interest of any nature, present or future, in the TRUST ESTATE, (c)
relinquish absolutely and forever all right to designate the persons who shall
possess or enjoy the TRUST ESTATE or the income therefrom, and (d) exclude the
income and principal of the TRUST ESTATE from the SETTLOR'S income and from the
SETTLOR'S estate.
ARTICLE THREE
General Administration of the TRUST ESTATE
3.1. The TRUSTEE shall pay to or for the benefit of the
BENEFICIARY all or such part of the TRUST ESTATE, whether out of income or
principal, as the TRUSTEE, in the sole discretion of the TRUSTEE, shall
determine to be in the best interests of the BENEFICIARY; provided, however,
that any Wendy's Shares obtained by the TRUSTEE pursuant to the SUBSCRIPTION
AGREEMENT shall be distributed to the BENEFICIARY upon the demand of the
BENEFICIARY subject to the provisions of (a) this AGREEMENT, (b) the
SUBSCRIPTION AGREEMENT, (c) the SHARE EXCHANGE AGREEMENT, (d) the GUARANTY
AGREEMENT, and (e) the ESCROW AGREEMENT.
3.2. In the event that the BENEFICIARY is adjudicated legally
incompetent by a court having jurisdiction in the premises, this trust shall
continue, and the legally appointed guardian (or other personal representative)
of the BENEFICIARY shall be entitled to exercise all of the BENEFICIARY'S rights
and powers under this AGREEMENT.
3.3. In the event that the SUBSCRIPTION AGREEMENT terminates
(whether pursuant to the provisions of the SUBSCRIPTION AGREEMENT or in any
other manner), this trust shall terminate, and the TRUSTEE shall distribute the
TRUST ESTATE to the BENEFICIARY or, if the BENEFICIARY is then deceased, to the
BENEFICIARY'S estate.
3.4. Notwithstanding the provisions of paragraph 3.3 of this
AGREEMENT, in the event that Wendy's ceases to be an Ohio corporation and is
reincorporated in another jurisdiction, and in the further event that (as a
result of such change) the validity, enforceability, or efficacy of the
SUBSCRIPTION AGREEMENT or the GUARANTY AGREEMENT is, in the opinion of the
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TRUSTEE, adversely affected to a material extent, the TRUSTEE shall seek to,
and, with the prior written consent of the BENEFICIARY, is authorized to (a)
amend or modify, or cause or consent to, the amendment or modification of, the
SUBSCRIPTION AGREEMENT, the GUARANTY AGREEMENT, and the ESCROW AGREEMENT, and
(b) enter into such additional agreements and execute, or cause the execution
of, such additional documents, as may be required to provide the parties to the
SHARE EXCHANGE AGREEMENT with substantially the same rights and obligations and
economic benefits under the laws of such jurisdiction of reincorporation.
3.5. In the event that Xxxxxx X. Xxxxx is permitted to, and
assigns part of his beneficial interest under this AGREEMENT, then each person
constituting a part of the BENEFICIARY shall, to the extent of such person's
share of the total beneficial interest under this AGREEMENT, have all of the
benefits, rights, powers and authority of the BENEFICIARY under this AGREEMENT
with respect to such person's proportionate share of the TRUST ESTATE,
including, without limitation, the SUBSCRIBED SHARES.
ARTICLE FOUR
Special Administration
With Respect to SUBSCRIBED SHARES
4.1. Voting Rights as to SUBSCRIBED SHARES. Subject to the
provisions of this AGREEMENT, the TRUSTEE, as the holder of record of the
SUBSCRIBED SHARES, shall be entitled to all of the Voting Rights (as hereinafter
defined), including the right to consent to or to vote in person or by proxy the
SUBSCRIBED SHARES on any matter, question or proposition whatsoever that may
properly come before the shareholders of Wendy's at a Wendy's Meeting or in
connection with a Wendy's Consent (in each case, as hereinafter defined). The
Voting Rights shall be and remain vested in and exercised by the TRUSTEE. The
TRUSTEE shall exercise the Voting Rights only: (a) on the basis of written
instructions received pursuant to this Article Four from the BENEFICIARY at the
time at which the Wendy's Consent is effective or the Wendy's Meeting is held or
(b) to the extent that no instructions are received from the BENEFICIARY with
respect to the Voting Rights to which the BENEFICIARY is entitled, the TRUSTEE
shall not exercise or permit the exercise of such Voting Rights.
4.2. Entitlement to Instruct TRUSTEE. The BENEFICIARY shall be
entitled to instruct the TRUSTEE in writing at or prior to, or in respect of, as
the case may be:
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(a) any annual or special meeting of shareholders of
Wendy's, or of any class or series of shareholders of
Wendy's, at which the holder of the SUBSCRIBED SHARES
shall be entitled to vote (a "Wendy's Meeting"), and
(b) any action taken without a meeting by written consent
of shareholders of Wendy's, or of any class or series
of shareholders of Wendy's, with respect to which the
holder of the SUBSCRIBED SHARES shall be entitled to
act (a "Wendy's Consent"), as to the exercise of
votes attached to the SUBSCRIBED SHARES (the "Voting
Rights").
4.3. Mailings to Shareholders. With respect to each Wendy's
Meeting and Wendy's Consent, the TRUSTEE shall mail or cause to be mailed or
send by commercial express delivery service (or otherwise communicate in the
same manner as Wendy's utilizes in communications to holders of Wendy's Shares)
to the BENEFICIARY within three business days after the TRUSTEE receives any
mailing or notice (or other communication) with respect thereto from Wendy's:
(a) a copy of such notice, together with any related
materials to be provided to shareholders of Wendy's;
(b) a statement that the BENEFICIARY is entitled to
instruct the TRUSTEE as to the exercise of the Voting
Rights to which the BENEFICIARY is entitled with
respect to such Wendy's Meeting or Wendy's Consent,
as the case may be, or, pursuant to Section 4.5, to
attend such Wendy's Meeting and to exercise
personally such Voting Rights thereat;
(c) a statement as to the manner in which such
instructions may be given to the TRUSTEE (and the
method for revoking the same), including an express
indication that instructions may be given to the
TRUSTEE to give:
(i) a proxy to the BENEFICIARY or the
BENEFICIARY'S designee to exercise
personally the Voting Rights to which the
BENEFICIARY is entitled; or
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(ii) a proxy to a designated agent or other
representative of the management of Wendy's
to exercise such Voting Rights;
(d) a statement that if no such instructions are received
from the BENEFICIARY, the Voting Rights to which the
BENEFICIARY is entitled will not be exercised;
(e) a form of direction whereby the BENEFICIARY may so
direct and instruct the TRUSTEE as contemplated
herein; and
(f) a statement of the time and date by which such
instructions must be received by the TRUSTEE in order
to be binding upon it, which in the case of a Wendy's
Meeting shall not be earlier than the close of
business on the second business day prior to such
meeting, and of the method for revoking or amending
such instructions.
4.4. Copies of Shareholder Information. The TRUSTEE shall
promptly mail or otherwise send to the BENEFICIARY copies of all proxy
materials, information statements, reports (including all interim and annual
financial statements) and other written communications that are distributed from
time to time to holders of Wendy's Shares (and all materials specifically
directed to the BENEFICIARY or to the TRUSTEE for the benefit of the BENEFICIARY
by Wendy's) and that are received by the TRUSTEE from Wendy's. The TRUSTEE shall
also make available for inspection by the BENEFICIARY at the TRUSTEE'S principal
corporate trust office in the city of Columbus, Ohio, all proxy materials,
information statements, reports and other written communications that are:
(a) received by the TRUSTEE as the registered holder of
the SUBSCRIBED SHARES and made available by Wendy's
to the holders of Wendy's Shares; or
(b) specifically directed to the BENEFICIARY or to the
TRUSTEE for the benefit of the BENEFICIARY by
Wendy's.
4.5. Entitlement to Direct Votes. The BENEFICIARY, in
connection with any Wendy's Meeting or any Wendy's Consent, shall be entitled:
(a) to instruct the TRUSTEE in the manner described in
Section 4.2 with respect to the exercise of the
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Voting Rights to which the BENEFICIARY is entitled;
(b) to obtain from the TRUSTEE:
(i) a proxy to the BENEFICIARY or the
BENEFICIARY'S designee to exercise
personally the Voting Rights to which the
BENEFICIARY is entitled, or
(ii) a proxy to a designated agent or other
representative of the management of Wendy's
to exercise such Voting Rights; or
(c) to attend such meeting and personally to exercise
thereat (or to exercise with respect to any written
consent), as the proxy of the TRUSTEE, the Voting
Rights to which the BENEFICIARY is entitled.
4.6. Voting by TRUSTEE. In connection with each Wendy's
Meeting and Wendy's Consent, the TRUSTEE shall exercise, either in person or by
proxy, in accordance with the instructions received from the BENEFICIARY
pursuant to Section 4.2, the Voting Rights as to which the BENEFICIARY is
entitled to direct the vote.
4.7. Attendance of TRUSTEE Representative at Meeting. The
TRUSTEE shall cause a representative (who is empowered by the TRUSTEE to sign
and deliver, on behalf of the TRUSTEE, proxies for Voting Rights) to attend each
Wendy's Meeting. At the BENEFICIARY'S request, such representative shall sign
and deliver to the BENEFICIARY (or the BENEFICIARY'S designee) a proxy to
exercise personally the Voting Rights as to which the BENEFICIARY is otherwise
entitled hereunder to direct the vote, if the BENEFICIARY either (a) has not
previously given the TRUSTEE instructions pursuant to Section 4.2 in respect of
such Wendy's Meeting, or (b) submits to such representative written revocation
of any such previous instructions. Pursuant to such proxy, the BENEFICIARY
exercising personally such Voting Rights shall have the same rights as the
TRUSTEE to speak at the Wendy's Meeting in respect of any matter, question or
proposition, to vote by way of ballot at the Wendy's Meeting in respect of any
manner, question or proposition, and to vote at the Wendy's Meeting by way of a
show of hands in respect of any matter, question or proposition.
4.8. Manner of Distribution of Written Materials. Any written
materials distributed by the TRUSTEE pursuant to this AGREEMENT shall be
delivered in person or sent by mail or commercial express delivery service (or
otherwise communicated in
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the same manner as Wendy's utilizes in communications to holders of Wendy's
Shares) to the BENEFICIARY.
4.9. Acquisition of SUBSCRIBED SHARES. In accordance with the
provisions of the SUBSCRIPTION AGREEMENT and the GUARANTY AGREEMENT, the TRUSTEE
shall make payment for the SUBSCRIBED SHARES if (i) the BENEFICIARY shall so
direct and (ii) the BENEFICIARY shall provide, or cause to be provided, to the
TRUSTEE the number of Exchangeable Shares needed by the TRUSTEE to make payment
in full for such of the SUBSCRIBED SHARES as are to be paid for; and the TRUSTEE
shall distribute such Wendy's Shares pursuant to the provisions of paragraph 3.1
of this AGREEMENT.
4.10. Exercise of Dissenters' Rights. At the direction of the
BENEFICIARY, the TRUSTEE shall exercise any and all dissenter's rights to which
the TRUSTEE is entitled either as the holder of the SUBSCRIPTION AGREEMENT or as
the holder of Wendy's Shares.
4.11. Exercise of Other Shareholder's Rights. At the direction
of the BENEFICIARY, the TRUSTEE shall exercise any and all other shareholder's
rights to which the TRUSTEE is entitled either as the holder of the SUBSCRIPTION
AGREEMENT or as the holder of Wendy's Shares.
4.12. TRUSTEE'S Right to Rely. The TRUSTEE shall be protected
in acting and relying reasonably upon any written notice, direction,
instruction, order, certificate, confirmation, request, waiver, consent,
receipt, statutory declaration or other paper or document (collectively referred
to as "Documents") furnished to the TRUSTEE by the BENEFICIARY in connection
with this AGREEMENT, not only as to the Document's due execution and the
validity and effectiveness of the Document's provisions, but also as to the
truth and accuracy of any information therein contained, which Document the
TRUSTEE in good faith believes to be genuine.
ARTICLE FIVE
Limitations on TRUSTEE
5.1. Notwithstanding any provisions of this AGREEMENT to the
contrary, no power enumerated in this AGREEMENT or accorded to the TRUSTEE
generally pursuant to law shall be construed so as to enable any person to
purchase, exchange, or otherwise deal with or dispose of the principal or income
of the TRUST ESTATE for less than an adequate or full consideration in money or
money's worth; nor enable the TRUSTEE to lend the
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principal or income of the TRUST ESTATE, directly or indirectly, to any person
who is not beneficially interested in the TRUST ESTATE without adequate interest
and security; nor enable the SETTLOR to reacquire any part of the TRUST ESTATE
by substituting other property of equivalent value; nor enable the TRUSTEE to
make any payment that would discharge any legal obligation of the TRUSTEE
personally.
ARTICLE SIX
Administrative Powers of the TRUSTEE
SUBJECT, IN EACH CASE, TO ALL OF THE REQUIREMENTS AND
LIMITATIONS CONTAINED IN ARTICLES THREE AND FOUR OF THIS AGREEMENT, AND ALSO
SUBJECT, IN EACH CASE, TO ALL OF THE PROVISIONS OF THE SUBSCRIPTION AGREEMENT,
THE SHARE EXCHANGE AGREEMENT, THE GUARANTY AGREEMENT, AND THE ESCROW AGREEMENT,
the TRUSTEE shall have and may exercise from time to time and at any time the
following rights, powers and authority:
6.1. The Trustee shall have and may exercise all rights,
powers and authority incident to the office or required in the administration of
this AGREEMENT and those impliedly conferred upon or vested in the TRUSTEE,
together with all rights, powers and authority specified in this Article Six,
which are set forth by way of example and not by way of limitation. However, it
is the intent of the SETTLOR that no TRUSTEE shall possess, or have the ability
to participate in the exercise of, any power, discretion or authority which
would cause the TRUSTEE, in the TRUSTEE'S individual capacity, to be treated as
the owner of the TRUST ESTATE or any part thereof for tax purposes, and no
TRUSTEE shall possess or have the ability to participate in the exercise of, any
such power, discretion or authority.
6.2. The TRUSTEE may enforce, abandon, defend against,
compromise or have adjudicated by legal proceedings or arbitration any claim or
demand whatsoever arising from or out of or which may exist in favor of or
against the TRUST ESTATE.
6.3. The TRUSTEE may invest any money in the TRUST ESTATE in
stocks, bonds, investment trusts, common trust funds and any other securities or
property, real or personal, secured or unsecured, whether the obligations of
individuals, trusts, associations, governments, corporations, or otherwise,
either within or outside of the State of Ohio, without being limited as to the
character of investment under any present or future statute or rule of law
regarding trust funds or investments by fiduciaries or otherwise.
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6.4. The TRUSTEE may obtain all appropriate tax-identification
numbers from the U.S. Internal Revenue Service; and the TRUSTEE may prepare and
file all appropriate fiduciary tax returns.
6.5. The TRUSTEE may employ and follow the advice of counsel
(including investment counsel) and agents and may determine and pay such counsel
and agents reasonable compensation.
6.6. The TRUSTEE may, without personal liability, borrow money
and add such money to the TRUST ESTATE for any purpose in the administration of
this AGREEMENT; may mortgage, pledge or otherwise encumber all or any part of
the TRUST ESTATE to secure any such loans; and may continue or renew any such
loans.
6.7. The TRUSTEE may cause all or any part of the TRUST ESTATE
to be issued, held, recorded or registered in the TRUSTEE'S name without
disclosing the fiduciary relationship, in the TRUSTEE'S name as TRUSTEE, in the
name of the TRUSTEE'S nominee, or in such other form that title will pass by
delivery; and the TRUSTEE may enter into the SUBSCRIPTION AGREEMENT, the SHARE
EXCHANGE AGREEMENT, the GUARANTY AGREEMENT, the ESCROW AGREEMENT, and any other
agreements in the name of this trust itself rather than in the name of the
TRUSTEE.
6.8. The TRUSTEE may, but shall not be required to, obtain the
authority or approval of any court for any act which the TRUSTEE may desire to
perform in the receipt, retention, disbursement, investment, reinvestment,
administration or management of the TRUST ESTATE.
6.9. The TRUSTEE may pay, out of the TRUST ESTATE, all costs
(including reasonable compensation to the TRUSTEE) incurred in connection with
the administration of the TRUST ESTATE unless the same are paid, or caused to be
paid, by Xxxxxx X. Xxxxx or any other person.
6.10. The TRUSTEE may include in any contract terms which
expressly limit liability under such contract to the TRUST ESTATE, and which
expressly exempt from liability under such contract the assets of the TRUSTEE.
6.11. The TRUSTEE may at any time resign as the TRUSTEE upon
30 days' written notice to the BENEFICIARY.
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ARTICLE SEVEN
Successors to the TRUSTEE
7.1. If The Huntington Trust Company, N.A. shall resign, a
successor TRUSTEE (which must be an Ohio trust company or an Ohio corporation
authorized by Ohio law to administer this AGREEMENT) may be appointed by the
resigning TRUSTEE, or, if the resigning TRUSTEE declines to make such an
appointment, by the senior member of the Columbus law firm of Vorys, Xxxxx,
Xxxxxxx and Xxxxx, or its successors.
7.2. Subject to the condition that any successor TRUSTEE must
be an Ohio trust company or an Ohio corporation authorized by Ohio law to
administer this AGREEMENT, if the TRUSTEE shall at any time change its name or
combine (by merger, consolidation or otherwise) with one or more other
corporations having one or more different names, or if its assets or business
shall at any time be purchased or otherwise acquired by a trust company or
corporation authorized by law to administer this AGREEMENT, the successor
corporation shall continue, shall be considered as the TRUSTEE, and shall be
legally bound by all of the provisions of this AGREEMENT and by all of the
actions of the predecessor TRUSTEE.
ARTICLE EIGHT
Miscellaneous Provisions
8.1. Transactions with the TRUSTEE. Anyone dealing with the
TRUSTEE shall be under no obligation to see to the application of any proceeds
of such transaction, and the execution of any instrument by the TRUSTEE shall be
conclusive evidence to those dealing with the TRUSTEE of the TRUSTEE'S authority
to engage in such act.
8.2. Rule Against Perpetuities. Anything contained in this
AGREEMENT or elsewhere to the contrary notwithstanding, the TRUST ESTATE and
this AGREEMENT shall terminate 21 years after the death of Xxxxxx X. Xxxxx, and
the TRUSTEE shall thereupon distribute the TRUST ESTATE to the persons for whose
benefit the TRUST ESTATE is then administered by the TRUSTEE.
8.3. Additional Transfers to the TRUSTEE. Except as provided
below, the SETTLOR or any other person shall have the right and power to give,
assign, transfer, convey, appoint or deliver additional real or personal
property to the TRUSTEE, or by Will to devise, bequeath or appoint additional
real or personal property to the TRUSTEE to be held, managed, invested
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and distributed as a part of the TRUST ESTATE subject to all the terms and
conditions of this AGREEMENT. The TRUSTEE shall have the power to disclaim the
succession to any property or any right, power, privilege or immunity with
respect to any property other than the SUBSCRIBED SHARES, if the TRUSTEE, in the
sole discretion of the TRUSTEE, determines that such property or interest in
property may cause the TRUSTEE to incur liability under the Comprehensive
Environmental Response, Compensation and Liability Act, as amended from time to
time, or under any similar federal state or local law or regulation.
8.4. Governing Law. This AGREEMENT shall be governed by and
construed in accordance with the laws of the State of Ohio.
Executed at Columbus, Ohio, as of the date first above
written.
SETTLOR:
/s/ Xxxx Xxxxx
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Xxxx Xxxxx
TRUSTEE:
The Huntington Trust Company, N.A.
By /s/ Candada X. Xxxxx
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Title: Vice President
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