EX-10.28



 





Exhibit 10.28




CKX FXLR STOCKHOLDER DISTRIBUTION TRUST III AGREEMENT




by and between




CKX, INC.




and




RICHARD G. CUSHING,




as Trustee acting on behalf and for the benefit of certain future

CKX STOCKHOLDERS




Dated as of September 27, 2007









 









 





TABLE OF CONTENTS








	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE I	 	DEFINITIONS
	 	 	1	 
	 	1.01	 	 	Certain Terms Defined
	 	 	1	 
	ARTICLE II	 	CREATION OF THE TRUST
	 	 	2	 
	 	2.01	 	 	Contribution of Assets to be held in Trust
	 	 	2	 
	 	2.02	 	 	Declaration of Trust
	 	 	2	 
	 	2.03	 	 	Incidents of Ownership
	 	 	2	 
	 	2.04	 	 	Purpose and Powers of the Trust
	 	 	2	 
	 	2.05	 	 	Title to Trust Assets
	 	 	3	 
	ARTICLE III	 	THE TRUSTEE
	 	 	3	 
	 	3.01	 	 	Generally
	 	 	3	 
	 	3.02	 	 	Powers and Duties of the Trustee
	 	 	3	 
	 	3.03	 	 	Actions of the Trustee Binding on the Trust
	 	 	5	 
	 	3.04	 	 	Compensation of the Trustee
	 	 	5	 
	 	3.05	 	 	Resignation and Removal of Trustee
	 	 	5	 
	 	3.06	 	 	Effect of Resignation or Removal of the Trustee
	 	 	5	 
	ARTICLE IV	 	PAYMENT OF COSTS
	 	 	6	 
	ARTICLE V	 	STANDARD OF CONDUCT, INDEMNIFICATION AND EXCULPATION
	 	 	6	 
	 	5.01	 	 	Limitation on Liability of the Trustee and Others
	 	 	6	 
	 	5.02	 	 	Indemnification
	 	 	6	 
	 	5.03	 	 	Bond
	 	 	7	 
	ARTICLE VI	 	TRUST INTERESTS AND TRUST INTEREST HOLDERS
	 	 	7	 
	 	6.01	 	 	Trust Interests
	 	 	7	 
	 	6.02	 	 	Limitations on Transferability of Trust Interests
	 	 	8	 
	 	6.03	 	 	Distributions
	 	 	8	 
	 	6.04	 	 	No Suits by Trust Interest Holders
	 	 	8	 
	 	6.05	 	 	List of Holders
	 	 	8	 
	ARTICLE VII	 	TAX MATTERS
	 	 	8	 
	 	7.01	 	 	Income Tax Status
	 	 	8	 
	 	7.02	 	 	Tax Returns and Reports
	 	 	8	 






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TABLE OF CONTENTS

(continued)



	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page	 
	 	 	 	 	 
	 	 	 	 
	 	7.03	 	 	Tax Identification Number; Withholding
	 	 	8	 
	 	7.04	 	 	Fiscal and Tax Year
	 	 	8	 
	ARTICLE VIII	 	TERM AND TERMINATION
	 	 	9	 
	 	8.01	 	 	Term
	 	 	9	 
	 	8.02	 	 	No Termination by CKX Stockholders
	 	 	9	 
	 	8.03	 	 	Continuance of Trust for Winding Up
	 	 	9	 
	ARTICLE IX	 	MISCELLANEOUS
	 	 	9	 
	 	9.01	 	 	Governing Law; Jurisdiction
	 	 	9	 
	 	9.02	 	 	Notices
	 	 	9	 
	 	9.03	 	 	Headings
	 	 	9	 
	 	9.04	 	 	Amendments and Waivers
	 	 	9	 
	 	9.05	 	 	Meanings of Other Terms
	 	 	10	 
	 	9.06	 	 	Counterparts
	 	 	10	 
	 	9.07	 	 	Parties in Interest
	 	 	10	 
	 	9.08	 	 	Entire Agreement
	 	 	10	 
	 	9.09	 	 	Construction
	 	 	10	 
	 	9.10	 	 	Severability
	 	 	10	 






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Schedule I — Initial Trustee Fees




 









 





CKX FXLR STOCKHOLDER DISTRIBUTION TRUST III AGREEMENT




          This Agreement, dated as of September 27, 2007 (this “Agreement” or the “CKX FXLR Stockholder
Distribution Trust III Agreement”), is made by and between CKX, Inc. (“CKX”) and Richard G.
Cushing, as trustee (in such capacity, the “Trustee”) acting on behalf and for the benefit of the
CKX Stockholders (as defined below), for the purpose of establishing the Trust (as defined below).



RECITALS




          WHEREAS, on June 18, 2007, CKX declared a dividend consisting of 25% of the common shares in
FX Luxury Real Estate, Inc., a Delaware corporation, which is now named FX Real Estate and
Entertainment Inc. (“FXREE”), payable to CKX stockholders of record on the record date to be
determined by CKX (the “Record Date”) which shares were to be acquired by contribution of the
outstanding common membership interests (the “FXLR Interests”) in FX Luxury Realty LLC, a Delaware
limited liability company (“FXLR LLC”) to FXREE prior to distribution in accordance with and
pursuant to the Amended and Restated Operating Agreement (“LLC Agreement”) for FXLR LLC, the
Membership Interest Purchase Agreement of FXLR LLC, dated June 1, 2007 (“Purchase Agreement”), and
Amendment No. 1 to the Membership Interest Purchase Agreement of FXLR LLC, dated June 18, 2007
(“Amendment No. 1”);



          WHEREAS, the Record Date shall be the date that is ten days following the declaration of
effectiveness by the United States Securities and Exchange Commission of a registration statement
relating to such distribution, which date shall be ratified by a committee of the board of
directors of CKX established for such purpose, which committee shall also set the payment date at
such time;



          WHEREAS, on June 18, 2007, CKX transferred 9.5% of the FXLR Interests to the CKX FXLR
Stockholder Distribution Trust I (“Trust I”), dated June 18, 2007 for the trustee to hold pending
distribution to the certain CKX Stockholders who are beneficiaries of the CKX FXLR Stockholder
Distribution Trust I;



          WHEREAS, on June 18, 2007, CKX transferred 15.5% of the FXLR Interests to FXREE, a corporation
in which CKX held 100% of the outstanding common shares, and transferred all of such outstanding
common shares to the trustee of the CKX FXLR Stockholder Distribution Trust II (“Trust II”), dated
June 18, 2007 for the trustee to hold all of such common shares pending distribution to the CKX
Stockholders;



          WHEREAS, CKX held 25% of the FXLR Interests after the transfers to Trust I and Trust II
described above;



          WHEREAS, on September 27, 2007, in accordance with and pursuant to the LLC Agreement, the
Purchase Agreement and the Amendment No. 1, CKX, Flag Luxury Properties, LLC, a Delaware limited
liability company (“Flag”), and Trust I transferred all of their respective FXLR Interests to
FXREE, after which FXREE owned all FXLR Interests (except for the Flag Priority Interest (as
defined in the LLC Agreement) issued to Flag);



 









 





          WHEREAS, on September 27, 2007, CKX and Flag purchased additional shares of common stock of
FXREE, as a result of which the outstanding common shares in FXREE presently are owned 25.5% by
CKX, 49.75% by Flag, and 24.75%, in the aggregate, by Trust I and Trust II together;



          WHEREAS, on September 27, 2007, CKX declared a dividend consisting of 23.5% of common shares
in FXREE (such 23.5% of common shares in FXREE, the “FXREE Stock”), payable to CKX stockholders of
record on the Record Date;



          WHEREAS, CKX desires to transfer all of the FXREE Stock to the Trustee of the Trust organized
hereunder and hereby and for the Trustee to hold all of the FXREE Stock pending distribution to the
CKX Stockholders, which distribution will occur when a record date for such distribution is
established following the effective date of a registration statement with respect to the FXREE
Stock; and



          WHEREAS, the Trustee by its execution of this Agreement (the “Initial Trustee”) has agreed to
perform the duties of Trustee hereunder subject to the terms, conditions, limitations, indemnities
and other provisions hereof.



          NOW, THEREFORE, in consideration of the premises and agreements contained herein, and for
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:



ARTICLE I

DEFINITIONS




     1.01 Certain Terms Defined.



          For purposes of this Agreement, the following terms shall have the following meanings:



          “Agreement” has the meaning set forth in the Recitals hereto.



          “CKX Stockholders” shall mean all CKX stockholders as of the Record Date.



          “Costs” means all costs and expenses incurred by or on behalf of the Trustee in connection
with the administration of the Trust, including but not limited to the costs and expenses
contemplated in Section 3.02(b) hereof and any taxes contemplated in Section 7.01 hereof.



          “Date of Effectiveness” means the date the Securities and Exchange Commission declares the
Registration Statement to be effective. The Date of Effectiveness shall be conclusively determined
by the delivery to the Trustee of a written legal opinion of counsel as contemplated by Section
5.05 hereof.



          “Exchange Act” means the Securities Exchange Act of 1934, as amended.



          “Exculpated Parties” has the meaning set forth in Section 5.01 hereof.



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          “Holder List” has the meaning set forth in Section 6.05 hereof.



          “Indemnification Advances” has the meaning set forth in Section 5.02(c) hereof.



          “Indemnification Costs” has the meaning set forth in Section 5.02(a) hereof.



          “Indemnified Parties” has the meaning set forth in Section 5.02(a) hereof.



          “Initial Trustee” has the meaning set forth in the Recitals hereto.



          “IRS” means the Internal Revenue Service of the United States of America.



          “Person” means an individual, corporation, partnership, limited liability company,
association, trust, joint venture, unincorporated organization or other entity.



          “Professionals” has the meaning set forth in Section 3.02(b)(vii) hereto.



          “Registration Statement” means a registration statement on Form S-1 or other applicable form
filed with the Securities and Exchange Commission to register, under the Securities Act of 1933,
the distribution of the FXREE Stock to the CKX Stockholders as contemplated by this Agreement.



          “Trust” means the trust organized hereunder and hereby, to be known as the “CKX FXLR
Stockholder Distribution Trust III,” and any constructive trusts relating thereto, established
pursuant to Section 301.7701-4(a) of the Regulations of the United States Department of the
Treasury and pursuant to this Agreement.



          “Tax Code” means the Internal Revenue Code of 1986, as amended. Any reference to a section of
the Code shall include a reference to any amendatory or successor provision thereto.



          “Termination Date” has the meaning set forth in Section 8.01 hereof.



ARTICLE II

CREATION OF THE TRUST




     2.01 Contribution of Assets to be held in Trust. CKX hereby absolutely and irrevocably
grants, assigns, transfers, conveys and delivers, without representation, warranty or recourse, and
with no reversionary interest in CKX, to the Trustee, and its successors and assigns, to be held in
trust pursuant to the terms of this Agreement, all right, title and interest in and to the FXREE
Stock. Notwithstanding the foregoing, CKX does hereby expressly represent and warrant that the
FXREE Stock is fully paid for and non-assessable. CKX will claim no legal, equitable or beneficial
interest in the FXREE Stock, and will make no statement inconsistent with the complete transfer to
the Trustee. There is no agreement or course of conduct that is inconsistent with this transfer.
CKX will disclose on its financial statements the complete transfer of the FXREE Stock, and has
received an opinion of counsel that the FXREE Stock would not be property of CKX’s estate in the
case of a bankruptcy filing by or against CKX.



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     2.02 Declaration of Trust. The Trustee hereby accepts such rights and properties assigned and
transferred to it, and the trust imposed upon it pursuant to this Agreement and the laws of the
State of New York, on behalf of and for the benefit of, and agrees to administer and manage the
Trust and to hold the FXREE Stock in trust for the sole benefit of, the CKX Stockholders in their
capacity as such in each case pursuant to, but only pursuant to, the terms, conditions,
limitations, indemnities and other provisions hereof.



     2.03 Incidents of Ownership. The CKX Stockholders shall be the sole beneficiaries of the
Trust, and the Trustee shall retain only such incidents of ownership as are necessary to undertake
the actions and transactions authorized herein on behalf of the CKX Stockholders.



     2.04 Purpose and Powers of the Trust.




          (a) Purpose. The purpose of the Trust is to hold the FXREE Stock, pending the approval and
effectiveness of a registration statement pursuant to the Exchange Act, enabling the distribution
of the FXREE Stock to the CKX Stockholders, and to distribute the FXREE Stock to the CKX
Stockholders as soon as is practicable thereafter.



          (b) Powers. Subject to the limitations expressly set forth in this Agreement, the Trust shall
have all powers necessary or appropriate to carry out its purposes, including those set forth in
Section 3.02 hereof.



          (c) Limitations on Powers.




     (i) The Trust shall not conduct, continue or engage in any trade or business,
except to the extent the Trustee would be deemed to engage in any such trade or
business in performing the duties expressly required under the terms of this
Agreement.




     (ii) The Trustee shall have no authority to do any action other than as
expressly set forth herein.



     2.05 Title to Trust Assets. Title to the FXREE Stock shall be held in the name of the
Trustee. The sole interest of the CKX Stockholders in the Trust and the FXREE Stock shall be the
rights and benefits given to such Persons under this Agreement.



ARTICLE III

THE TRUSTEE




     3.01 Generally.



          (a) The Trustee, by its execution of this Agreement, is deemed to have accepted and undertaken
to discharge the duties of Trustee created by this Agreement in each case pursuant to, but only
pursuant to, the terms, conditions, limitations, indemnities, and other provisions hereof.



          (b) The Trustee shall maintain the principal office where the records relating to the Trust
are maintained in the County of New York, State of New York. The Trustee shall



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maintain books and records in relation to the Trust in such detail and for such period of time
as may be necessary to enable it to make a full and proper accounting in respect thereof.



          (c) If the Trustee shall ever change its name or reorganize, reincorporate or merge with or
into or consolidate with any other entity, the Trust shall not be terminated or dissolved and shall
instead continue, and such Trustee shall be deemed to be a continuing entity and shall continue to
act as the Trustee hereunder with the same liabilities, duties, powers, rights, titles, discretions
and privileges as are herein specified for the Trustee, unless otherwise restricted by operation of
law or conflict of interest.



     3.02 Powers and Duties of the Trustee.



          (a) General. Subject to Article IV hereof, the Trustee shall take, and shall have full power
and authority to and shall take any and all actions necessary or appropriate to fulfill the purpose
of the Trust as set forth in this Agreement and to carry out the obligations of the Trustee as
expressly set forth in this Agreement, including:




     (i) voting the FXREE Stock in a manner necessary to constitute a quorum at any
meeting of the stockholders of FXREE; provided that, to the extent permitted under
applicable law and the certificate of incorporation and by-laws of FXREE, the
Trustee shall vote such shares in proportion to the vote of the other stockholders
of FXREE;




     (ii) distributing the FXREE Stock to the CKX Stockholders on or promptly
following the Record Date, subject to receipt of the legal opinion of FXREE as
contemplated in the definition hereof of the term Date of Effectiveness;




     (iii) in the event no registration statement for the FXREE Stock becomes
effective by January 31, 2010, transferring the FXREE Stock to the Comptroller of
State of New York; and




     (iv) to the extent required, filing an Internal Revenue Service Form 1041 in
accordance with the Tax Code and the regulations thereunder.



          (b) Other Powers and Duties. Without limiting the foregoing, the Trustee is expressly
authorized to and shall:




     (i) pay all costs and expenses incurred in connection with the administration
of the Trust, including but not limited to the fees and expenses of Professionals
(as defined below), (ii) taxes, bank charges, filing and registration fees, postage,
telephone, facsimile, copying and messenger costs and secretarial and administrative
costs attendant to the administration and maintenance of the Trust and the
responsibilities of the Trustee hereunder, (iii) the fees of the Trustee, and (iv)
any Indemnification Advances;




     (ii) execute any documents and take any other actions related to, or in
connection with, the acceptance of the transfer of the FXREE Stock until



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termination of the Trust in accordance with this Agreement, and the exercise of
the Trustee’s powers granted herein;




     (iii) hold legal title to the FXREE Stock, and any and all rights in or arising
from the FXREE Stock, on behalf of the Trust and for the benefit of the CKX
Stockholders;




     (iv) protect and enforce the rights to the FXREE Stock vested in the Trustee
and the Trust by this Agreement by any method deemed appropriate, including by
judicial proceedings or pursuant to any applicable bankruptcy, insolvency,
moratorium or similar law and general principles of equity;




     (v) make all necessary filings in accordance with any applicable law, statute
or regulation, including, if necessary, any applicable securities laws, and, in
consultation with counsel, seek any advice or determination that may be necessary or
appropriate under such laws, provided that the Trustee shall not be obligated to
prepare the registration statement but shall only be required to cooperate to the
extent necessary and to the extent notified by counsel to FXREE;




     (vi) pay all ordinary course expenses and make all other payments relating to
the Trust; and




     (vii) retain such law firms, accounting firms, experts, advisors, consultants,
investigators, appraisers, auctioneers or other professionals as it may deem
necessary (collectively, the “Professionals”), in its sole discretion on reasonable
terms and conditions of employment or retention, to aid in the performance of its
responsibilities pursuant to the terms of this Agreement, including the liquidation
and distribution of FXREE Stock, provided, however, that in no event shall the
Trustee hire any one or more employees to the extent any such hiring would result in
the Trust engaging in or conducting, or being deemed to engage in or conduct, a
trade or business contrary to Section 2.04(c)(i) hereof.



          (c) No Obligation to Advance Funds. The Trustee shall have no obligation to advance its
individual funds for any purpose, and shall have no obligation to distribute to the CKX
Stockholders or any third party any property held or to be held by the Trustee or amounts paid to
or to be paid to the Trustee until such property is received or amounts are collected (as
applicable) by the Trustee.



          (d) No Duties Except as Specified in Agreement. The Trustee shall not have any duty or
obligation to manage, control, use, sell, dispose of or otherwise deal with the FX Luxury stock or
any other assets obtained by the Trust except as expressly provided by the terms of this Agreement.



     3.03 Actions of the Trustee Binding on the Trust. Any and all actions taken by the Trustee in
accordance with this Agreement shall be binding upon the Trust and the CKX Stockholders.



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     3.04 Compensation of the Trustee.



          The compensation of the Initial Trustee shall be as set forth on Schedule I hereto.



     3.05 Resignation and Removal of Trustee.



          (a) The Trustee may resign at any point in time, such resignation to be effective upon the
appointment of a successor Trustee by the Trustee.



          (b) The Trustee may not be removed except for its gross negligence or willful misconduct.



     3.06 Effect of Resignation or Removal of the Trustee.



          (a) The resignation, removal, incompetence, bankruptcy or insolvency of the Trustee shall not
operate to terminate the Trust created by this Agreement or to revoke any existing agency created
pursuant to the terms of this Agreement or invalidate any action theretofore taken by the Trustee.



          (b) If a successor Trustee is not appointed, the Trustee shall petition a court with
jurisdiction to appoint a successor Trustee, and such court shall appoint such successor and make
any amendments to this Agreement as may be required in connection with the appointment of such
successor Trustee.



          (c) Any successor Trustee appointed hereunder shall execute an instrument accepting its
appointment. Thereupon, such successor shall, without any further act, become vested with all the
obligations, duties, powers, rights, title, discretion and privileges of its predecessor in the
Trust with like effect as if originally named Trustee and enforce the rights of the Trust as the
holder of the FXREE Stock for the benefit of the CKX Stockholders.



          (d) The departing Trustee shall duly assign, transfer and deliver to the successor Trustee the
FXREE Stock and books and records relating to the Trust held or controlled by such departing
Trustee hereunder and shall, as reasonably requested by such successor, execute and deliver an
instrument or instruments conveying and transferring to such successor upon the trust herein
expressed all the obligations, duties, powers, rights, title, discretion and privileges of such
departing Trustee.



     3.07 Limited Representations or Warranties.



          (a) The trustee makes no representation or warranty, express or implied, as to (i) the FXREE
Stock including their value, or their due authorization, valid issuance full payment or
non-assessability, (ii) the validity of the dividend declared by CKX with respect thereto or the
legality thereof under the Delaware General Corporation Law, (ii) the Trustee’s good title to the
FXREE Stock, except that on the date that the FXREE Stock were delivered to the Trustee the Trustee
shall have received whatever title was conveyed to it by CKX and that the FXREE Stock shall be free
of liens attributable to the Trustee it in its individual capacity except as may be permitted
hereunder, or (iv) the validity or enforceability of the Operating Agreement applicable to FXLR
LLC.



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          (b) The Trustee makes no representation or warranty as to the validity, legality or
enforceability of this Agreement or any other document or instrument referred to herein or as to
the correctness of any statement contained in any thereof, except to the extent that any such
statement is expressly made herein or therein as a representation by the Trustee in its individual
capacity or as Trustee and except that the Trustee, in its individual capacity, hereby represents
and warrants that this Agreement has been executed and delivered by the Trustee and the Trustee, in
its individual capacity, has the power and authority to execute, deliver and perform this
Agreement.



ARTICLE IV

PAYMENT OF COSTS




     4.01 Payment of Costs. The initial Trustee shall be responsible for the payment of Costs and
other expenses incurred by the Trust, including costs and expenses incurred after resignation or
renewal of the initial Trustee. The Trustee shall not be entitled to any reimbursement by the
Trust for any Costs or expenses pursuant to Section 4.01.



ARTICLE V

STANDARD OF CONDUCT, INDEMNIFICATION AND EXCULPATION




     5.01 Limitation on Liability of the Trustee and Others. Neither the Trustee nor any successor
Trustee (collectively, the “Exculpated Parties”) shall be liable for the act, default or misconduct
of any other party or for the Exculpated Party’s own acts, defaults or misconduct except for such
Exculpated Party’s own gross negligence or willful misconduct. The Trustee may, in connection with
the performance of its duties, and in its sole and absolute discretion, consult with the
Professionals, and shall not be liable for anything done or omitted or suffered to be done in
accordance with such advice or opinions. If the Trustee determines not to consult with any of the
Professionals, such determination shall not be deemed to impose any liability on the Trustee.



     5.02 Indemnification.



          (a) The Trust shall indemnify and hold harmless the Trustee and its agents, employees,
officers, directors, Professionals and principals in their capacity as such (collectively, the
“Indemnified Parties”) from and against any and all losses, claims, damages, liabilities or
expenses (including, without limitation, amounts paid in judgment, penalty or otherwise, fees and
expenses of counsel and other professionals (other than any costs of internal personnel), with
respect to claims on whatsoever theory (whether by way of third- or subsequent party complaint,
cross-claim, separate action or otherwise) by any Person to recover in whole or in part any
liability, direct or indirect, whether by way of judgment, penalty or otherwise, of any Person in
connection with, arising out of or which is in any way related to the distribution of the FXREE
Stock or the matters set forth in this Agreement except, with respect to any Indemnified Party, for
its own gross negligence or willful misconduct (the foregoing losses, claims, damages, liabilities
and expenses, collectively, “Indemnification Costs”).



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          (b) Promptly after receipt by an Indemnified Party of notice of the commencement of any action
referred to in Section 5.02(a) of this Agreement, such Indemnified Party shall give written notice
to the Trustee thereof, but the omission so to notify the Trustee will not relieve the Trust from
any liability that it may have to any Indemnified Party, except to the extent the Trust is actually
prejudiced thereby. The Trust shall have no liability for any cost or expense incurred by such
Indemnified Party prior to the notification to the Trustee of such action. In case any such action
is brought against an Indemnified Party, and it notifies the Trustee of the commencement thereof,
the Trustee on behalf of the Trust will be entitled to participate in, and to the extent that it
may wish, to assume, the defense thereof, with counsel reasonably satisfactory to the Indemnified
Party, and after notice from the Trustee to such Indemnified Party, the Trust shall not, except as
hereinafter provided, be responsible for any legal or other expenses subsequently incurred by the
Indemnified Party in connection with the defense thereof. In the event the Trustee assumes the
defense of the action, the Indemnified Party may retain separate counsel at its sole cost and
expense (except that the Trustee shall be responsible for the fees and expenses of such separate
co-counsel to the extent the Indemnified Party is advised, in writing by its counsel, that the
counsel the Trustee has selected has a conflict of interest). Such assumption of the defense shall
not prejudice the right of the Trust to claim at a later date that such third party action is not a
proper matter for indemnification pursuant to this Section 5.02. The Trust shall not be liable for
any settlement of any such action or proceeding effected without its written consent, but if
settled with its written consent, or if there be a final judgment for the plaintiff in any such
action or proceeding, the Trust agrees to indemnify and hold harmless such Indemnified Party from
and against any loss or liability by reason of such settlement or judgment.



          (c) To the extent the Trustee on behalf of the Trust has not assumed the defense of any action
referred to in Section 5.02(a), the Indemnified Parties shall be entitled to obtain advances
(“Indemnification Advances”) from the Trust to cover their expenses of defending themselves in any
action referred to in Section 5.02(a), provided, however, that the Indemnified Parties receiving
such advances shall repay the amounts so advanced to the Trust within 5 days after the entry of a
final order of any court of competent jurisdiction finding that such Indemnified Parties were not
entitled to any indemnity under the provisions of this Section 5.02.



     5.03 Bond. The Trustee shall not be obligated to post a bond hereunder.



     5.04 Survival of Indemnities. The indemnities contained in this Section 8.01 shall survive
the termination of this Agreement.



     5.05 Reliance; Agent; Advice of Counsel. The Trustee shall incur no liability in acting upon
any signature, instrument, notice, resolution, request, consent, order, certificate, report,
opinion, bond or other document or paper reasonably believed by it to be genuine and reasonably
believed by it to be signed by the proper party or parties. Without limiting the generality of the
foregoing, the Trustee may rely, and shall be entitled to require as a condition of its
distribution of the FXREE Stock as contemplated hereby, on an opinion of counsel to FXREE to the
effect that a registration statement permitting the distribution of the FXREE Stock as contemplated
hereby is effective, that the distribution may be made as contemplated hereby without violation



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of the Securities Act of 1933 and that the necessary qualifications for state and other
securities and blue sky laws have been received.



     5.06 Reliance on certificate of FXREE. As to any fact or matter the manner of ascertainment
of which is not specifically described herein, the Trustee may, absent actual knowledge to the
contrary, for all purposes hereof rely on a certificate, signed by any officer of FXREE, as to such
fact or matter, and such certificate shall constitute full protection to the Trustee for any action
taken or omitted to be taken by it in good faith in reliance thereon.



     5.07 Use of Agents by Trustee. In the administration of the trusts hereunder, the Trustee may
execute any of the trusts or powers hereof and perform its powers and duties hereunder directly or
through agents or attorneys and, at the expense of the Trust, consult with independent counsel,
accountants and other skilled persons to be selected and employed by it, and the Trustee shall not
be liable for anything done, suffered or omitted in good faith by it in accordance with the written
advice or opinion of any such counsel, accountants or other skilled persons appointed by it with
due care hereunder.



ARTICLE VI

TRUST INTERESTS AND

TRUST INTEREST HOLDERS




     6.01 Trust Interests.



          (a) The interests of the CKX Stockholders as beneficiaries of the Trust (the “Trust
Interests”) have been created pursuant to this Agreement.



          (b) The Trust Interests shall not be represented by any certificates and shall inure to the
benefit of the CKX Stockholders and their successors and assigns.



          (c) The CKX Stockholders shall not have any right to participate in the management of the
Trust.



          (d) Under no circumstances shall the CKX Stockholders be entitled to any shares of FXREE Stock
prior to the declaration of effectiveness of a registration statement for such shares.



     6.02 Limitations on Transferability of Trust Interests. The Trust Interests are not
transferable and may not be transferred or assigned.



     6.03 Distributions. The Trustee shall distribute the FXREE Stock (or any assets received by
the Trust in exchange therefore) to the CKX Stockholders pro rata based on the number of CKX shares
held by each of the CKX Stockholders on the date specified by CKX when establishing the Record
Date, provided, however, that if the Date of Effectiveness has not occurred prior to January 31,
2010, the FXREE Stock shall be transferred to the Comptroller of the State of New York. Under no
circumstances shall the Trustee be obligated to distribute any fractional shares of the FXREE
Stock. In the event that the Trustee is unable to locate any CKX Stockholder to whom any
distribution of FXREE Stock is due, after customary efforts by the



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transfer agent of FXREE, such shares shall be transferred to the Comptroller of the State of
New York as unclaimed property.



     6.04 No Suits by Trust Interest Holders. No CKX Stockholder shall have any right by virtue of
any provision of this Agreement to institute or participate in any action or proceeding at law or
in equity against any party other than the Trustee in order to enforce the provisions of this
Agreement.



     6.05 List of Holders. The Trustee shall obtain a list of the names and addresses of the CKX
Stockholders and the member of shares held by each (the “Holder List”) from CKX or its transfer
agent upon the establishment of the Record Date. The Trustee may, until otherwise advised in
writing by any CKX Stockholder, rely upon the Holder List.



ARTICLE VII

TAX MATTERS




     7.01 Tax Returns and Reports. The Trustee shall cause to be prepared and filed, at the cost
and expense of the Trust, an annual information tax return (Form 1041) with the Internal Revenue
Service in accordance with the Tax Code and the regulations thereunder. The Trustee shall be
responsible for filing any applicable state and local tax returns for the Trust and shall pay any
taxes shown as due thereon.



     7.02 Tax Identification Number; Withholding. The Trustee may obtain from CKX the tax
identification number of any CKX Stockholder and the Trustee may condition any distribution to any
CKX Stockholder or other distributee upon receipt of such identification number or withhold a
portion of such distribution to the extent authorized or required by the Tax Code and Regulations
then in effect.



     7.03 Fiscal and Tax Year. The fiscal year and taxable year of the Trust shall be the calendar
year.



ARTICLE VIII

TERM AND TERMINATION




     8.01 Term. The existence of the Trust shall terminate upon the earliest of (i) the
distribution of all of the FXREE Stock (or any assets received in exchange therefore) to the CKX
Stockholders in accordance with the terms hereof, (ii) the transfer of all of the FXREE Stock (or
any assets received in exchange therefore) to the Comptroller of the State of New York in
accordance with the terms hereof and (iii) July 1, 2010 (the “Termination Date”).



     8.02 No Termination by CKX Stockholders. The Trust may not be terminated by the CKX
Stockholders.



     8.03 Continuance of Trust for Winding Up. After the termination of the Trust as provided in
Section 8.01 of this Agreement, and solely for the purpose of liquidating and winding up the
affairs of the Trust, the Trustee shall continue to act as Trustee until its duties hereunder have
been fully performed.




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ARTICLE IX

MISCELLANEOUS




     9.01 Governing Law; Jurisdiction. This Agreement shall be governed by and construed in
accordance with the substantive laws of the State of New York applicable to agreements executed and
to be fully performed in the State of New York, without giving effect to any contrary result
otherwise required under applicable choice or conflict of law rules. Each of the parties hereto
hereby irrevocably consents and submits to the jurisdiction of the United States District Court for
the Southern District of New York and the courts of the State of New York located in New York
County in connection with any action or proceeding arising out of or relating to this Agreement or
the transactions contemplated hereby, waives any objection to venue in the United States District
Court for the Southern District of New York and the courts of the State of New York, New York
County, and agrees that service of any summons, complaint, notice or other process relating to such
action or proceeding may be effected in the manner provided by Section 9.02 hereof. In any action
or proceeding arising out of or relating to this Agreement, the parties irrevocably waive trial by
jury.



     9.02 Notices. Any notice or other communication required or permitted to be made under this
Agreement shall be in writing and shall be deemed to have been sufficiently given, for all
purposes, (i) at the time delivered personally by hand, (ii) when receipt is confirmed if delivered
by telex, facsimile or other telegraphic means or (iii) five (5) business days after being
deposited in the mail (postage prepaid), if sent by registered United States mail, return receipt
requested, postage prepaid:




	 	(a)	 	if to the Trustee, to:
	 
	 	 	 	Richard G. Cushing, Esq.

c/o Troutman Sanders LLP

The Chrysler Building

405 Lexington Avenue

New York, New York 10174

Facsimile No.: (212) 704-6288


with a copy to


Troutman Sanders LLP

The Chrysler Building

405 Lexington Avenue

New York, New York 10174

Facsimile No.: (212) 704-6288

Attn: Timothy I. Kahler, Esq.
	 
	 	(b)	 	if to any CKX Stockholder, to the last known business or residential
address of such CKX Stockholder, as the case may be, reflected in the
Holder List.





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     9.03 Headings. The headings contained in this Agreement are solely for convenience of
reference and shall not affect the meaning or interpretation of this Agreement or of any term or
provision hereof.



     9.04 Amendments and Waivers.



          (a) Except as provided below, the Trustee may not amend, modify and supplement this Agreement
in any manner. The failure of any party hereto to enforce at any time any provision of this
Agreement shall not be construed to be a waiver of such provision, nor in any way to affect the
validity of this Agreement or any part hereof or the right of any party thereafter to enforce each
and every such provision. No waiver of any breach of this Agreement shall be held to constitute a
waiver of any other or subsequent breach.




          (b) If, at any time during the term of this Agreement, the Trust is, in the reasonable good
faith judgment of the Trustee, reasonably likely to become subject to the reporting or registration
requirements of the Exchange Act, the Trustee may amend this Agreement to the extent necessary to
ensure that the Trust does not become subject to the reporting or registration requirements of the
Exchange Act.




     9.05 Meanings of Other Terms. Except where the context otherwise requires, words importing
the masculine gender include the feminine and the neuter, if appropriate, and words importing the
singular number include the plural number and vice versa.



     9.06 Counterparts. This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original, but such counterparts shall together constitute but one and the
same instrument.



     9.07 Parties in Interest. Except as expressly provided herein with respect to the Exculpated
Parties and the Indemnified Parties, this Agreement shall not confer any rights or remedies upon
any person or entity other than the parties hereto and their respective permitted successors and
assigns.



     9.08 Entire Agreement. This Agreement constitutes the entire agreement among the parties
hereto with respect to the subject matter hereof, supersedes and is in full substitution for any
and all prior agreements and understandings among them relating to such subject matter, and no
party shall be liable or bound to the other party hereto in any manner with respect to such subject
matter by any warranties, representations, indemnities, covenants, or agreements except as
specifically set forth herein. Any Exhibits or Schedules to this Agreement are hereby incorporated
and made a part hereof and are an integral part of this Agreement.



     9.09 Construction. The language used in this Agreement will be deemed to be the language
chosen by the parties to express their mutual intent, and no rule of strict construction will be
applied against any party. Any references to any federal, state, local or foreign statute or law
will also refer to all rules and regulations promulgated thereunder, unless the context requires
otherwise. Unless the context otherwise requires: (a) a term has the meaning assigned to it by
this Agreement; (b) including means “including but not limited to”; (c) “or” is disjunctive but not
exclusive; (d) words in the singular include the plural, and in the plural include the



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singular; (e) provisions apply to successive events and transactions; and (f) “$” means the
currency of the United States of America.




     9.10 Interpretation by the Trustee. The Trustee may interpret and construe any of the
provisions of this Agreement, insofar as the same may appear ambiguous or inconsistent with any
other provisions hereof, and any such construction by the Trustee in good faith shall be binding
upon the parties hereto and the CKX Stockholders.



     9.11 Severability. In the event that any one or more of the provisions contained in this
Agreement or in any other instrument referred to herein, shall, for any reason, be held to be
invalid, illegal or unenforceable in any respect, then to the maximum extent permitted by law, such
invalidity, illegality or unenforceability shall not affect any other provision of this Agreement
or any other such instrument. Furthermore, in lieu of any such invalid or unenforceable term or
provision, the parties hereto intend that there shall be added as a part of this Agreement a
provision as similar in terms to such invalid or unenforceable provision as may be possible and be
valid and enforceable.



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          IN WITNESS WHEREOF, the parties hereto have executed this Agreement or caused this Agreement
to be duly executed by their respective officers or authorized representatives, effective as of the
date first above written.




	 	 	 	 	 
	 	CKX, INC.

 	 
	 	By:  	/s/ Thomas P. Benson
 	 
	 	 	Name:  	Thomas P. Benson 	 
	 	 	Title:  	Chief Financial Officer 	 
	 
	 	TRUSTEE ACTING ON BEHALF AND FOR

THE BENEFIT OF THE CKX

SHAREHOLDERS



RICHARD G. CUSHING

 	 
	 	/s/ Richard G. Cushing
 	 
	 	 	 
	 	 	 
	 




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