-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Li7l1mEje2YpsRXtU46EB/MCfGb1b/cSlDkL+PGd325eNxIxTyG+/4OUz0N4/3r7 8A/kPaDVZejrJSKdRiWyZQ== 0001193805-03-001119.txt : 20031121 0001193805-03-001119.hdr.sgml : 20031121 20031121170844 ACCESSION NUMBER: 0001193805-03-001119 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20031121 GROUP MEMBERS: DAFNA KAPLAN SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: CADENCE RESOURCES CORP CENTRAL INDEX KEY: 0000933157 STANDARD INDUSTRIAL CLASSIFICATION: METAL MINING [1000] IRS NUMBER: 870306609 STATE OF INCORPORATION: UT FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-49608 FILM NUMBER: 031018847 BUSINESS ADDRESS: STREET 1: 6 EAST ROSE ST CITY: WALLA WALLA STATE: WA ZIP: 99362 BUSINESS PHONE: 509-526-3491 MAIL ADDRESS: STREET 1: 6 EAST ROSE STREET STREET 2: NO SUITE CITY: WALLA WALLA STATE: WA ZIP: 99362 FORMER COMPANY: FORMER CONFORMED NAME: ROYAL SILVER MINES INC DATE OF NAME CHANGE: 19960223 FORMER COMPANY: FORMER CONFORMED NAME: CONSOLIDATED ROYAL MINES INC DATE OF NAME CHANGE: 19950908 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: KAPLAN THOMAS SCOTT CENTRAL INDEX KEY: 0001124803 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 154 WEST 18TH STREEET APT 8C CITY: NEW YORK STATE: NY ZIP: 10011 BUSINESS PHONE: 2129408800 MAIL ADDRESS: STREET 1: 154 WEST 18TH STREET APT 8C CITY: NEW YORK STATE: NY ZIP: 10011 SC 13D/A 1 e300780_sc13d-cadence.txt AMENDMENT NO. 2 TO SCHEDULE 13D UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No. 2)* CADENCE RESOURCES CORPORATION - -------------------------------------------------------------------------------- (Name of Issuer) Common Stock, $0.01 par value per share - -------------------------------------------------------------------------------- (Title of Class of Securities) 78069310 - -------------------------------------------------------------------------------- (CUSIP Number) Thomas S. Kaplan Dafna Kaplan c/o Katten Muchin Zavis Rosenman 575 Madison Avenue New York, New York 10022 Attn: William Natbony, Esq. (212) 940-8930 - -------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) March 19, 2002 - -------------------------------------------------------------------------------- (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1 (b)(3) or (4), check the following box |_|. Note: Six copies of this statement, including all exhibits, should be filed with the Commission. See Rule 13d-1(a) for other parties to whom copies are to be sent. *The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 (the "Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). SCHEDULE 13D CUSIP No. 78069310 - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) Thomas Scott Kaplan - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |X| (b) |_| - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS* N/A - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) |_| - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION United States - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER 2,290,922 Shares (comprised of 1,329,370 shares of Common Stock owned by Electrum Capital LLC, 480,811 shares of Common Stock owned by Electrum Resources LLC and 480,811 shares of Common Stock owned by LCM Holdings LDC) ----------------------------------------------------------------- NUMBER OF 8 SHARED VOTING POWER SHARES BENEFICIALLY 0 OWNED BY ----------------------------------------------------------------- EACH 9 SOLE DISPOSITIVE POWER REPORTING PERSON 2,290,922 Shares (comprised of 1,329,370 shares of Common WITH Stock owned by Electrum Capital LLC, 480,811 shares of Common Stock owned by Electrum Resources LLC and 480,811 shares of Common Stock owned by LCM Holdings LDC) ----------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER 0 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,290,922 Shares (comprised of 1,329,370 shares of Common Stock owned by Electrum Capital LLC, 480,811 shares of Common Stock owned by Electrum Resources LLC and 480,811 shares of Common Stock owned by LCM Holdings LDC) - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* |_| - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 18.5% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* IN - -------------------------------------------------------------------------------- *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D CUSIP No. 78069310 - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) Dafna Kaplan - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |X| (b) |_| - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS* N/A - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) |_| - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Israel - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER 0 ----------------------------------------------------------------- NUMBER OF 8 SHARED VOTING POWER SHARES BENEFICIALLY 0 OWNED BY ----------------------------------------------------------------- EACH 9 SOLE DISPOSITIVE POWER REPORTING PERSON 0 WITH ----------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER 0 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 0 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* |_| - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* IN - -------------------------------------------------------------------------------- *SEE INSTRUCTIONS BEFORE FILLING OUT! This Amendment No. 2 amends and restates the statement on Schedule 13D (the "Schedule 13D") filed on May 21, 2002 by Thomas Scott Kaplan, as amended by Amendment No. 1 filed on November 13, 2002, relating to shares of Common Stock, par value $0.01 per share of Cadence Resources Corporation. The purpose of this Amendment No. 2 is to add Dafna Kaplan, Mr. Kaplan's wife, as a reporting person, to report shares of Common Stock that were previously beneficially owned by Mrs. Kaplan, and to reflect that Mr. and Mrs. Kaplan may be deemed to constitute a "group" for purposes of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"). Item 2. Identity and Background Item 2 is hereby amended and restated to read as follows: (a) This Statement is being filed on behalf of (i) Mr. Thomas Kaplan, voting trustee for securities held by each of Electrum Capital LLC ("Electrum"), Electrum Resources LLC ("Resources") and LCM Holdings LDC ("LCM"), pursuant to Voting Trust Agreements (the "Voting Trust Agreements"), with respect to shares of the Common Stock held by Electrum, Resources and LCM and (ii) Dafna Kaplan, with respect to shares of the Common Stock and warrants to purchase Common Stock held by LCM. Mr. and Mrs. Kaplan are collectively referred to herein as the "Reporting Persons." The Reporting Persons are making a group filing because, due to the relationships between them, the Reporting Persons may be deemed to constitute a "group" for purposes of Section 13(d)(3) of the Exchange Act. (b) The address of the principal business and principal office of Thomas S. Kaplan is Ch. des Moulins 53, 1936 Verbier, Switzerland. Mrs. Kaplan's principal business address is Ch. des Moulins 53, 1936 Verbier, Switzerland. (c) The principal business of each of Electrum, Resources and LCM is that of a holding company for securities. Mr. Kaplan's principal occupation is investor. Mrs. Kaplan's principal occupation is that of homemaker. (d) The Reporting Persons have not during the last five years been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors). (e) The Reporting Persons have not during the last five years been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and, as a result of such proceeding, were or are subject to a judgment, decrees or final order enjoining future violations of or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect thereto. (f) Mr. Kaplan is a citizen of the United States. Mrs. Kaplan is a citizen of Israel. Item 3. Source and Amount of Funds or Other Consideration. Item 3 is hereby amended and restated to read as follows: The aggregate amount of funds used to purchase the shares of Common Stock held by Electrum was $217,000. The source of funds used by Electrum to purchase such shares was working capital of Electrum. The aggregate amount of funds used to purchase the shares of Common Stock held by Resources was $99,000. The source of funds used by Resources to purchase such shares was working capital of Resources. The aggregate amount of funds used to purchase the shares of Common Stock held by LCM was $104,000. The source of funds for such purchases was working capital of LCM. Item 4. Purpose of Transaction. Item 4 is hereby amended and restated to read as follows: The Reporting Persons acquired the shares of Common Stock reported herein for investment purposes. Depending upon market conditions and other factors the Reporting Persons may deem material to their respective investment decisions, the Reporting Persons may acquire additional securities of the Company in the open market or in private transactions, or may dispose of all or a portion of the securities of the Company that the Reporting Persons currently beneficially own or hereafter may acquire. Except as otherwise set forth herein, neither of the Reporting Persons has any plans or proposals which relate to, or could result, in any of the matters referred to in Paragraphs (b) through (j) of Item 4 of Schedule 13D. However, the Reporting Persons intend to periodically evaluate the performance of the Company and of the Company's management as well as market conditions and other factors which the Reporting Persons deem relevant to their investment, and, in connection therewith, the Reporting Persons reserve the right to take any actions which could relate to, or result in, any of the matters referred to in paragraphs (b) through (j) of Item 4 of Schedule 13D. Any change in the plans or proposals of the Reporting Persons would be reported promptly in accordance with the provisions of the Exchange Act and the rules promulgated thereunder. Item 5. Interest in Securities of the Issuer. Item 5 is hereby amended and restated to read as follows: (a) The aggregate percentage of the outstanding shares of Common Stock reported owned by each Reporting Person is based upon 12,372,827 shares of the Company's Common Stock outstanding as of September 30, 2003. Mr. Kaplan owns no shares of Common Stock directly. Pursuant to the Voting Trust Agreements, Mr. Kaplan beneficially owns, as of November 20, 2003, 2,290,922 shares of Common Stock, comprised of 1,329,370 shares of Common Stock held by Electrum, 480,811 shares of Common Stock held by Resources and 480,811 shares of Common Stock held by LCM. Such shares of Common Stock, in the aggregate, constitute approximately 18.5% of the shares of Common Stock outstanding; As of August 27, 2003, Mrs. Kaplan no longer owned any shares of Common Stock. Until August 27, 2003, as the sole shareholder of LCM, Mrs. Kaplan beneficially owned the shares held by LCM. (b) Mr. Kaplan has the sole power to vote or direct the vote and sole power to dispose of the 2,290,922 shares in the aggregate, that are held by Electrum. Resources and LCM except that, until August 27, 2003, Mrs. Kaplan held such sole power with respect to the shares held by LCM. (c) On March 19, 2002, LCM acquired from the Company 180,000 shares of Common Stock and warrants to purchase 180,000 shares of Common Stock in a private offering for an aggregate purchase price of $54,000. On March 19, 2002, Electrum purchased from the Company 723,334 shares of Common Stock and warrants to purchase 723,334 shares of Common Stock in a private offering for an aggregate purchase price of $217,000. On March 19, 2002, Resources purchased from the Company 330,000 shares of Common Stock and warrants to purchase 180,000 shares of Common Stock in a private offering for an aggregate purchase price of $99,000. On October 23, 2002, LCM converted all of its warrants into 180,000 shares of Common Stock at an exercise price of $0.30 per share. The exercise price was paid by the delivery by LCM of 29,189 shares of Common Stock, resulting in a net acquisition of 150,811 shares of Common Stock. On October 23, 2002, Electrum converted all of its warrants into 723,334 shares of common stock for $0.30 per share. The exercise price was paid by the delivery of 117,298 shares of Common Stock resulting in a net acquisition of 606,036 shares of Common Stock. On October 23, 2002, Resources converted all of its warrants into 180,000 shares of Common Stock for $0.30 per share. The exercise price was paid by the delivery of 29,189 shares of Common Stock, resulting in a net acquisition of 150,811 shares of Common Stock. Until August 27, 2003, each of LCM, Resources and Electrum was wholly-owned by Mrs. Kaplan. On August 27, 2003, Mrs. Kaplan transferred by gift all of the capital stock of LCM, Resources and Electrum to the Mare Toledo Trust (the "Trust"), the beneficiaries of which are members of the Kaplan family. On such date, LCM and Mr. Kaplan entered into a voting trust agreement with respect to the shares held by LCM (which agreement is filed herewith as Exhibit 3) pursuant to which Mr. Kaplan acquired sole voting and dispositive power over the shares held by LCM. (d) The Trust has the right to receive dividends from, and the proceeds from the sale of the shares of, Common Stock reported herein as beneficially owned by Mr. Kaplan. Until August 27, 2003, Mrs. Kaplan, as the sole shareholder of each of Electrum, Resources and LCM, had the power to receive dividends from, and the proceeds from the sale of, all such shares. (e) As of August 27, 2003, Mrs. Kaplan ceased to be the beneficial owner of any of the shares of Common Stock. Item 6. Contracts, Arrangements, Understandings or Relationships with respect to Securities of the Issuer. Item 6 is hereby amended and restated in its entirety as follows: Each of Electrum, Resources and LCM has entered into the Voting Trust Agreements attached as Exhibits hereto, respectively, with Mr. Kaplan with respect to the Company's Common Stock. Under the terms of the Voting Trust Agreements, Mr. Kaplan has sole voting and dispositive power over all of the shares of Common Stock that are held by Electrum, Resources and LCM. The Voting Trust Agreements are automatically renewed annually, unless terminated by either party at least 90 days prior to the end of the calendar year. Except as otherwise described herein, neither of the Reporting Persons has any contracts, arrangements, understandings or relationships (legal or otherwise) with any person with respect to the securities of the Company. Item 7. Material to be Filed as Exhibits. Item 7 is hereby amended and restated in its entirety as follows: Exhibit 1: Voting Trust Agreement, dated as of May 17, 2002, between Mr. Kaplan and Electrum Capital LLC (incorporated by reference to the Schedule 13D filed by Mr. Kaplan with the Securities and Exchange Commission on May 21, 2002). Exhibt 2: Voting Trust Agreement, dated as of May 17, 2002, between Mr. Kaplan and Electrum Resources LLC (incorporated by reference to the Schedule 13D filed by Mr. Kaplan with the Securities and Exchange Commission on May 21, 2002). Exhibit 3: Voting Trust Agreement, dated as of August 27, 2003, between Mr. Kaplan and LCM Holdings LDC. SIGNATURE After reasonable inquiry and to the best of their knowledge and belief, the undersigned certify that the information set forth in this statement is true, complete and correct. Dated: November 20, 2003 /s/ Thomas S. Kaplan -------------------- Thomas Scott Kaplan /s/ Dafna Kaplan ---------------- Dafna Kaplan Joint Filing Agreement In accordance with Rule 13d-1(f) under the Securities Exchange Act of 1934, as amended, the undersigned hereby agree to the joint filing on behalf of each of them of a statement on Schedule 13D (including amendments thereto) with respect to the Common Stock, par value $0.01 per share, of Cadence Resources Corporation, and that this Agreement be included as an Exhibit to such joint filing. This Agreement may be executed in any number of counterparts all of which taken together shall constitute one and the same instrument. In witness whereof, the undersigned hereby execute this Agreement this 20th day of November, 2003. /s/ Thomas S. Kaplan - -------------------- Thomas S. Kaplan /s/ Dafna Kaplan - ---------------- Dafna Kaplan EX-99.3 3 e300780_ex99-3.txt VOTING TRUST AGREEMENT, DATED AS OF 9/27/2003 VOTING TRUST AGREEMENT, entered into as of the 27th day of August 2003 (this "Agreement"), between THOMAS KAPLAN, as Trustee (hereinafter the "Trustee") and on behalf of LCM Holdings LDC, company organized and existing under the laws of the Bahamas (hereinafter the "Beneficiary"). W I T N E S S E T H: WHEREAS, the Beneficiary is the holder of shares of common stock, par value US $0.01 per share (each a "Share" and collectively the "Shares") of Cadence Resources Corporation, a Utah corporation (the "Company"); and WHEREAS, in order to vest in the Trustee the sole right to vote the Shares and all investment authority and power with respect to the Shares, the Beneficiary is willing to deposit the Shares owned by it with the Trustee under this Agreement for the period commencing on the date hereof and ending upon the termination of this Agreement in accordance with its terms. NOW, THEREFORE, the parties hereto agree as follows: 1. Delivery to Trustee of Certificates for Shares. Simultaneously with the execution and delivery of this Agreement, the Beneficiary shall deliver to the Trustee certificates representing all of the Shares held by the Beneficiary, endorsed in blank or accompanied by duly completed instruments of share transfer executed by the Beneficiary. Immediately subsequent to the execution and delivery of this Agreement and such instruments of share transfer, the Trustee shall deliver a copy of this Agreement to the Company, shall surrender to the Company said certificates and instruments of share transfer, and the Trustee and Beneficiary shall take all further necessary or appropriate actions to cause the directors to enter the name of the Trustee in the register of Stockholders in respect thereof and to cancel said certificates and to issue to the Trustee a new certificate, representing the Shares, in the name of the Trustee. Said new certificate shall be held by the Trustee, in trust, for the benefit of the Beneficiary and the heirs, executors, successors and/or assigns of the Beneficiary (each sometimes hereinafter referred to as a "Beneficiary"), subject to the terms and conditions hereinafter set forth. 2. Delivery to Trustee of Certificates for Additional Shares. Any and all certificates for additional shares or any other securities of the Company issued to the Beneficiary while it is the Beneficiary under this Agreement, including without limitation shares acquired by Beneficiary pursuant to warrant shall be in like manner endorsed and delivered to the Trustee together with a duly completed and executed form of share transfer to be held by him subject to the terms and conditions hereof. All such additional shares shall be deemed to be "Shares" for all purposes of this Agreement. 3. Delivery of Trustee's Certificates. Upon the delivery to the Trustee of the certificates and forms of share transfer referred to in paragraph 1 hereof, the Trustee shall deliver to the Beneficiary a certificate (the "Trustee's Certificate") for the number of Shares delivered to the Trustee by the Beneficiary, substantially in the form hereinafter set forth. Upon each receipt of certificates for additional Shares issued to a Beneficiary, the Trustee shall deliver to such Beneficiary a Trustee's Certificate for the number of Shares so deposited, substantially in the form hereinafter set forth. The Trustee's Certificate (the terms and provisions of which are a part of this Agreement) shall be substantially in the following form: TRUSTEE'S CERTIFICATE This is to certify that the undersigned Trustee has received a certificate or certificates issued in the name of Thomas Kaplan, Trustee, evidencing the ownership of ___ shares, par value US $0.01 per share, of Cadence Resources Corporation, a Utah corporation (the "Shares"), and that the Shares are held subject to all the terms and conditions of that certain Agreement (the "Voting Trust Agreement"), dated August 27, 2003, by and between LCM Holdings LDC and Thomas Kaplan, as Trustee. During the term of the Voting Trust Agreement, the Trustee shall, as provided in the Voting Trust Agreement, possess and be entitled to exercise the right to vote and otherwise represent all of the Shares for all purposes, and to exercise all investment authority and power with respect to all of the Shares for all purposes, it being agreed that no voting right and no investment authority or power shall pass to the holder hereof by virtue of the ownership of this Certificate. This Certificate is assignable with the right to issuance of a new certificate of like tenor only upon the surrender to the Trustee of this certificate properly endorsed. Upon the termination of the Voting Trust Agreement, this certificate shall be surrendered to the Trustee by the holder hereof upon delivery to the holder hereof of a certificate representing the Shares not sold or otherwise disposed of by the Trustee pursuant to the Voting Trust Agreement. IN WITNESS WHEREOF, the undersigned has executed this Certificate this ____ day of _______________, ____. -------------------------------- Thomas Kaplan, Trustee Each Trustee's Certificate may be transferred by endorsement by the person to whom issued, or by his, her or its attorney-in-fact, or by the administrator or executor of his, her or its estate, by delivery of such Trustee's Certificate so endorsed to the Trustee; but such transfer shall not be evidence to or be binding upon the Trustee until such Trustee's Certificate is surrendered to the Trustee and the transfer is entered upon the "Trustee's Certificate Book", which shall be kept by the Trustee to show the names of the parties by whom and to whom transferred, the numbers of the certificates, the number of shares and the date of transfer. No new Trustee's Certificate shall be issued until the Trustee's Certificate for the shares represented thereby shall have been surrendered to and cancelled by the Trustee, and the Trustee shall preserve the certificates so cancelled as vouchers. In case any Trustee's Certificate shall be claimed to be lost or destroyed, a new Trustee's Certificate may be issued in lieu thereof, upon such proof of loss as may be required by the Trustee. 2 4. Voting and Investment Authority and Power of Trustee. (a) During the term of this Agreement, the Trustee shall have the sole and exclusive voting and investment authority and power with respect to the Shares held by the Trustee hereunder. The Trustee shall have the power to vote the Shares held by the Trustee at all regular and special meetings of the shareholders of the Company and may vote for, do or assent or consent to and shall have all the powers, rights and privileges of a shareholder of the Company. (b) The Trustee may vote in person or by proxy, and a proxy in writing signed by the Trustee shall be sufficient authority to the person named therein to vote all the Shares held by the Trustee hereunder at any meeting, regular or special, of the shareholder of the Company. (c) The Trustee shall have complete investment authority and power with respect to the Shares held by the Trustee hereunder, including, without limitation, the authority and power to sell or otherwise dispose of any or all of the Shares on such terms and subject to such conditions, as the Trustee in his sole discretion shall deem appropriate. The Beneficiary and each holder of Trustee's Certificates hereby appoints the Trustee as his, her or its attorney-in-fact to execute any documents or instruments necessary (in the determination of the Trustee) to effect such sale or disposition. Without limiting the foregoing, each holder of Trustee's Certificates hereby agrees, following written notification from the Trustee of any such contemplated sale or other disposition of Shares, to surrender to the Trustee at the time and place indicated in such notice, his, her or its Trustee's Certificates. The Trustee, promptly following the closing of any such sale or other disposition of Shares, shall issue and deliver to each such holder of Trustee's Certificates: (a) a replacement Trustee's Certificate, reflecting such holder's pro rata interest in the unsold Shares, as shown on the books of the Trustee, and (b) such holder's pro rata interest in the net proceeds of any such sale or other disposition of Shares (after deduction of expenses incurred in connection with such sale or other disposition), as shown on the books of the Trustee. Upon such surrender of such Trustee's Certificates, and such payment of such net proceeds, this Agreement shall terminate as to the shares so sold or otherwise disposed of. 5. Distribution of Cash Dividends. (a) The Trustee shall distribute directly any cash dividends or distributions declared and paid on the Shares deposited hereunder (other than dividends or distributions made in the form of voting securities of the Company) to the holders of Trustee's Certificates in proportion to their respective interests therein as shown on the books of the Trustee, such distribution to be equivalent to the dividends or distribution which each respective holder would have been entitled to receive had the Shares not been deposited hereunder. (b) The Trustee shall receive and hold, subject to the terms of this Agreement, any voting securities of the Company issued in respect thereof by reason of any dividend, distribution, capital reorganization, stock split, combination or the like and shall issue and deliver Trustee's Certificates therefor to the holders of the Trustee's Certificates in proportion to their respective interests therein as shown on the books of the Trustee. 3 6. Term of Agreement. This Agreement and the trust hereby created shall terminate on August 27, 2003 (the "Initial Term"). Upon expiration of the Initial Term, this Agreement will automatically renew for additional, successive one year periods (each a "Successive Term" and, together with the Initial Term, the "Term"), unless either the Trustee or the Beneficiary shall give written notice to the other, at least 90 days prior to the expiration of the Initial Term or the then current Successive Term, that the Term shall not renew. Notwithstanding the foregoing, the Term shall terminate not later than August 27, 2013. 7. Liability for Willful Misconduct. The Trustee shall not be liable for any error of judgment or mistake of fact or law, or for any act or omission undertaken in good faith in connection with his powers and duties under this Agreement, except for his own willful misconduct or gross negligence. The Trustee shall not be liable for acts or omissions of any employee or agent of the Company. The Trustee shall not be liable for acting in reliance on any notice, request, consent, certificate, instruction, or other paper or document or signature believed to be genuine and to have been signed by the proper party or parties. The Trustee may consult with legal and other counsel of his choosing, and any act or omission undertaken by the Trustee in good faith in accordance with the opinion of legal or other counsel shall be binding and conclusive on the parties to this Agreement. 8. Binding Agreement. Every registered holder of a Trustee's Certificate, and every bearer of a Trustee's Certificate properly endorsed in blank or properly assigned, by the acceptance or holding thereof, shall be deemed conclusively for all purposes to have assented to this Agreement and to all of its terms, conditions and provisions and shall be bound thereby with the same force and effect as if such holder or bearer had executed this Agreement. Without limiting the foregoing, this Agreement shall be binding upon and inure to the benefit of each of the parties hereto and their respective heirs, executors, administrators, successors and assigns. 9. Severability. The invalidity of any term or provision of this Agreement shall not affect the validity of the remainder of this Agreement. 10. Governing Law. Regardless of the place of execution, delivery, performance or any other aspect of this Agreement, this Agreement and all of the rights of the parties under this Agreement shall be governed by, construed under and enforced in accordance with the substantive law of New York without regard to conflicts of law principles. 11. No Waiver. No waiver of any covenant or condition or the breach of any covenant or condition of this Agreement shall be deemed to constitute a waiver of any subsequent breach of such covenant or condition nor justify or authorize a nonobservance upon any occasion of such covenant or condition or any other covenant or condition of this Agreement. 12. Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto with regard to the subject matter thereof, and shall not be modified or amended except in a writing executed by both of the parties hereto. 4 IN WITNESS WHEREOF, the Trustee and the Beneficiary have executed this Agreement as of the date set forth above. /s/ Thomas S. Kaplan -------------------- Thomas S. Kaplan, as Trustee LCM Holdings LDC By: /s/ Sean Hanna ------------------ Name: Sean Hanna Title: Director 5 -----END PRIVACY-ENHANCED MESSAGE-----