TO BREACH A DUTY OF
LOYALTY TO SUCH PERSON'S EMPLOYER.
1.5
CERTAIN UNDERSTANDINGS.
EACH PARTY TO THIS
AGREEMENT ACKNOWLEDGES THAT THE INITIAL HOLDER OF THE CLASS B COMMON STOCK AND
ITS AFFILIATES (COLLECTIVELY, THE "CLASS B HOLDER") WILL ENGAGE IN TRANSACTIONS
WITH THE COMPANY AND ITS SUBSIDIARIES PURSUANT TO CERTAIN MASTER ISDA AGREEMENTS
(AS DEFINED IN THE CERTIFICATE OF INCORPORATION).
NEITHER THIS AGREEMENT NOR
THE MASTER ISDA AGREEMENTS SHALL PRECLUDE THE CLASS B HOLDER FROM ENGAGING IN
TRANSACTIONS OF A NATURE LIKE THE TRANSACTIONS CONTEMPLATED BY THE MASTER ISDA
AGREEMENTS WITH ANY OTHER PERSON.
WITHOUT LIMITING THE FOREGOING, EACH PARTY
ACKNOWLEDGES THAT THE CLASS B HOLDER IS ENGAGED IN, AMONG OTHER THINGS, DEALING
IN FUEL, AND POWER AND RELATED COMMODITIES FOR ITS OWN ACCOUNT IN THE U.S.
WHOLESALE FUEL AND POWER MARKETS, AND MANAGES POSITIONS IN FUEL AND POWER AND
RELATED COMMODITIES FOR OTHERS.
THE CLASS B HOLDER MAY (I) TAKE ACTIONS UNDER
THE MASTER ISDA AGREEMENTS THAT MAY BE DIFFERENT THAN THE ACTIONS THE CLASS B
HOLDER TAKES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF OTHERS, EVEN THOUGH THE
CIRCUMSTANCES MAY BE THE SAME OR SIMILAR AND (II) EFFECT TRANSACTIONS WITH
COUNTERPARTIES THAT ARE ALSO COUNTERPARTIES TO OTHER TRANSACTIONS IN FUEL AND/OR
POWER OR RELATED COMMODITIES WITH THE CLASS B HOLDER OR FOR WHICH THE CLASS B
HOLDER IS ACTING IN AN AGENCY CAPACITY.
THE CLASS B HOLDER MAY FROM TIME TO
TIME TAKE PROPRIETARY POSITIONS AND/OR MAKE A MARKET IN COMMODITIES AND/OR
INSTRUMENTS IDENTICAL OR ECONOMICALLY RELATED TO THE TRANSACTIONS CONTEMPLATED
BY THE MASTER ISDA AGREEMENTS, OR MAY HAVE AN INVESTMENT BANKING OR OTHER
COMMERCIAL RELATIONSHIP WITH AND ACCESS TO INFORMATION FROM THE ISSUER(S) OF
FINANCIAL INSTRUMENTS OR OTHER INTERESTS UNDERLYING SUCH TRANSACTIONS DURING THE
TERM OF THE MASTER ISDA AGREEMENTS.
THE CLASS B HOLDER MAY ALSO UNDERTAKE
LAWFUL PROPRIETARY ACTIVITIES, INCLUDING HEDGING TRANSACTIONS RELATED TO THE
INITIATION OR TERMINATION OF A TRANSACTION, THAT MAY ADVERSELY AFFECT THE MARKET
PRICE, RATE, INDEX OR OTHER MARKET FACTOR(S) UNDERLYING THE TRANSACTIONS
CONTEMPLATED BY THE MASTER ISDA AGREEMENTS AND CONSEQUENTLY THE VALUE OF THE
TRANSACTIONS CONTEMPLATED BY THE MASTER ISDA AGREEMENTS.
THE PARTIES
ACKNOWLEDGE THAT THE RELATIONSHIP BETWEEN THE CLASS B HOLDER AND THE COMPANY AND
ITS SUBSIDIARIES UNDER THE MASTER ISDA AGREEMENTS IS A COMMERCIAL AND NOT A
FIDUCIARY RELATIONSHIP AND THAT NEITHER THE MASTER ISDA AGREEMENTS NOR THIS
AGREEMENT (EXCEPT AS EXPRESSLY SET FORTH HEREIN) SHALL LIMIT IN ANY MANNER THE
ABILITY OF THE CLASS B HOLDER TO ENTER INTO ANY TRANSACTION OF ANY NATURE WITH
ANY OTHER PERSON, PROVIDED THAT THE CLASS B HOLDER MUST ESTABLISH AN INFORMATION
WALL WITHIN ITS ORGANIZATION SO THAT ANY INFORMATION IT OBTAINS IN ITS CAPACITY
AS A STOCKHOLDER OR THAT IS DISCLOSED TO THE CLASS B DIRECTOR IS KEPT
CONFIDENTIAL AND IS NOT USED BY THE CLASS B HOLDER OTHER THAN IN CONNECTION WITH
THE OPERATION OF THE COMPANY AND ITS SUBSIDIARIES, AND PROVIDED FURTHER, FOR THE
AVOIDANCE OF DOUBT, THAT NOTHING IN THIS SECTION 1.5 RELIEVES THE CLASS B