TRUST AGREEMENT (Public Record Version)
This Trust Agreement ("Trust Agreement") entered into this 22nd day of August, 2001 by and among Metso Oyj ("Metso"), Svedala Industri AB ("Svedala") (where "Respondents," as used herein, means Metso and Svedala, individually and collectively), and James S. Feltman provides as follows:
WHEREAS, the United States Federal Trade Commission (the "Commission") has accepted or will shortly accept for Public Comment an Agreement Containing Consent Order, incorporating a Decision and Order ("Decision and Order") and an Order to Maintain Assets, with Respondents (collectively, the "Orders"), which, among other things, require Respondents to divest or transfer certain defined assets and maintain those assets pending such divestiture or transfer, and provide for the appointment of one or more Interim Monitors to ensure that Respondents comply with their obligations under the Orders;
WHEREAS, in connection with the divestiture, Metso will engage in certain internal restructuring prior to consummation and will also enter into a Jaw Crusher Supply Agreement (as defined in the Decision and Order);
WHEREAS, the Commission may appoint James S. Feltman of Arthur Andersen LLP ("Mr. Feltman") as such monitor (the "Interim Monitor") pursuant to the Orders to monitor Respondents' compliance with the terms of the Consent Agreement and Orders and with each of the Divestiture Agreements referenced in the Orders, and Mr. Feltman has consented to such appointment;
WHEREAS, the Orders further provide or will provide that Respondents shall execute a trust agreement, subject to the prior approval of the Commission, conferring all the rights, powers and authority necessary to permit the Interim Monitor to carry out such duties and responsibilities pursuant to the Orders;
WHEREAS, the Interim Monitor has concluded the agreement attached as Attachment 1 with Sandvik AB, which is to acquire certain assets pursuant to the Orders;
WHEREAS, this Trust Agreement, although executed by the Interim Monitor and Metso and Svedala is not effective for any purpose, including but not limited to imposing rights and responsibilities on Respondents or the Interim Monitor under the Orders, until it has been approved by the Commission; and
WHEREAS, the parties to this Trust Agreement intend to be legally bound;
NOW, THEREFORE, the parties agree as follows:
1. Capitalized terms used herein and not specifically defined herein shall have the respective definitions given to them in the Orders. The term "Trust Assets" means the assets identified in Paragraphs I.Q., I.Z., I.FF. and I.OO. of the Decision and Order.
2. The Interim Monitor shall have all of the powers and responsibilities conferred upon the Interim Monitor by the Orders.
3. Respondents hereby agree that, no later than three (3) Business Days after the Commission approves this Trust Agreement, Respondents will fully comply with all terms of the Orders requiring them to confer all rights, powers, authority and privileges upon the Interim Monitor, or to impose upon themselves any duties or obligations with respect to the Interim Monitor, to enable the Interim Monitor to perform the duties and responsibilities of the Interim Monitor thereunder.
4. Respondents further agree that:
5. Respondents shall promptly notify the Interim Monitor of any significant written or oral communication that occurs after the date of this Trust Agreement between the Commission and Respondents related to the Restructuring or the Jaw Crusher Supply Agreement, together with copies (or, in the case of oral communications, summaries) of such communications.
6. Respondents and the Interim Monitor understand and agree that the Commission or its staff may request, pursuant to and consistent with the Orders, that the Interim Monitor monitor, investigate and/or audit the Respondents' compliance with the Respondents' obligations to maintain assets pursuant to the Orders, and submit such additional written or oral reports, under applicable confidentiality restrictions, to the Commission as the Commission or its staff may at any time request concerning the Respondents' compliance with the Respondents' obligations to maintain assets pursuant to the Orders.
7. [Redacted from Public Record Version]
8. The Interim Monitor shall maintain the confidentiality of all information provided to the Interim Monitor by Respondents. Such information shall be used by the Interim Monitor only in connection with the performance of the Interim Monitor's duties pursuant to this Trust Agreement. Such information shall not be disclosed by the Interim Monitor to any third party other than:
9. The Interim Monitor shall maintain a record and inform the Commission of all persons (other than representatives of the Commission) to whom confidential information related to this Agreement has been disclosed.
10. The Interim Monitor shall have fiduciary duties to the Commission.
11. Upon termination of the Interim Monitor's duties under this Trust Agreement, the Interim Monitor shall promptly return to Respondents all material provided to the Interim Monitor by Respondents and shall destroy any material prepared by the Interim Monitor that contains or reflects any confidential information of Respondents. Nothing herein shall abrogate the Interim Monitor's duty of confidentiality, including the obligation to keep such information confidential for a period of five (5) years after the termination of this Trust Agreement.
12. In addition, the Interim Monitor shall keep confidential for a period of five (5) years all other aspects of the performance of his duties under this Trust Agreement and shall not disclose any confidential or proprietary information relating thereto. To the extent that the Interim Monitor wishes to retain any employee, agent, consultant or any other third party to assist the Interim Monitor in accordance with the Orders, the Interim Monitor shall ensure that, prior to being retained, such persons execute a confidentiality agreement in a form agreed upon by the Interim Monitor and Respondents.
For the purposes of this Section, information shall not be considered confidential or proprietary to the extent that it is or becomes part of the public domain (other than as the result of any action by the Interim Monitor or by any employee, agent, affiliate or consultant of the Interim Monitor), or to the extent that the recipient of such information can demonstrate that such information was already known to the recipient at the time of receipt from a source other than Respondents or any director, officer, employee, agent, consultant or affiliate of Respondents when such source is entitled to make such disclosure to such recipient.
13. Nothing in this Trust Agreement shall require Respondents to disclose any material or information that is subject to a legally recognized privilege or that Respondents are prohibited from disclosing by reason of law or an agreement with a third party.
14. Each party shall be reasonably available to the other to discuss any questions or issues that either party may have concerning compliance with the Orders as they relate to Respondents.
15. Respondents hereby confirm their obligation to indemnify the Interim Monitor and hold the Interim Monitor harmless in accordance with and to the extent required by the Orders. Respondents shall indemnify the Interim Monitor and any subcontractor and their respective agents, partners, principals, officers and employees working with the Interim Monitor on matters covered by this Trust Agreement (the "Indemnified Parties") and hold the Indemnified Parties harmless (regardless of form of action, whether in contract, statutory law, tort or otherwise) against any liabilities, losses, damages, claims or expenses arising out of, or in connection with, the performance of the Interim Monitor's duties and obligations including all reasonable fees of counsel and other expenses incurred in connection with the reasonable preparation for, or defense of any claim, whether or not resulting in liability, except to the extent that such liabilities, losses, damages, claims or expenses are judicially determined to result from misfeasance, nonfeasance, negligence, gross negligence, willful or wanton acts or misconduct, recklessness, bad faith, fraud or willful default by the Interim Monitor or any of his subcontractors, agents, partners, principals, officers or employees.
16. The Interim Monitor's maximum liability to the Respondents relating to services rendered pursuant to this Agreement (regardless of the form of the action, whether in contract, statutory law, tort, or otherwise) shall be limited to the total sum of the fees paid to the Interim Monitor by Respondents, except to the extent resulting from the misfeasance, nonfeasance, negligence, gross negligence, willful or wanton acts or misconduct, recklessness, bad faith, fraud, or willful default by the Interim Monitor or any of his subcontractors, agents, partners, principals, officers or employees, in which case the liability is not so limited.
17. Respondents agree that the Respondents' obligations to indemnify the Interim Monitor relates to the Interim Monitor's responsibilities under the Trust Agreement and/or the Orders.
18. Upon this Trust Agreement's becoming effective, the Interim Monitor shall be permitted, and Respondents shall be required, to notify all current Commission-approved Acquirers and potential future Acquirers with respect to his appointment as Interim Monitor.
19. In the event of a disagreement or dispute between Respondents and the Interim Monitor concerning Respondents' obligations under the Orders, and in the event that such disagreement or dispute cannot be resolved by the parties, either party may seek the assistance of the individual in charge of the Commission's Compliance Division to resolve this issue. In the case of any disagreement or dispute between Respondents and the Interim Monitor not relating to Respondents' obligations under the Orders, and in the event that such disagreement or dispute cannot be resolved by the parties, the parties shall submit the matter to binding arbitration before the American Arbitration Association under its Commercial Arbitration Rules. Binding arbitration shall not be available, however, to resolve any disagreement or dispute concerning the Respondents' obligations pursuant to the Orders.
20. This agreement shall be subject to the substantive law of the State of New York (regardless of the choice of law principles of New York or those of any other jurisdiction).
21. This Trust Agreement shall terminate when the last obligation under the relevant Divestiture Agreement(s) has been fully performed, except for Respondents' obligations under paragraph VI.B. of the Decision and Order, or the Commission has appointed a substitute Interim Monitor pursuant to the Orders; provided however, that the Commission may extend this Trust Agreement as may be necessary or appropriate to accomplish the purposes of the Orders.
22. In the event that, during the term of this Trust Agreement, the Interim Monitor becomes aware that he has or may have a conflict of interest that may affect or could have the appearance of affecting the performance by the Interim Monitor of any of his duties under this Trust Agreement, the Interim Monitor shall promptly inform both Respondents and the Commission of such conflict or potential conflict.
23. In the performance of his functions and duties under this Trust Agreement, the Interim Monitor shall exercise the standard of care and diligence that would be expected of a reasonable person in the conduct of his or her own business affairs.
24. This Agreement is for the sole benefit of the Parties hereto and their permitted assigns and the Commission, and nothing herein express or implied shall give or be construed to give any other person any legal or equitable rights hereunder.
25. Any notices or other communication required to be given hereunder shall be deemed to have been properly given if sent by mail, fax (with acknowledgment of receipt of such fax having been received), or electronic mail, to the applicable party at its address below (or to such other address as to which such party shall hereafter notify the other party):
26. This Trust Agreement shall not become binding until it has been approved by the Commission and the Orders have been accepted for public comment.
IN WITNESS WHEREOF, the parties hereto have executed this Trust Agreement as of the date first above written.