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HomeMy WebLinkAbout12-30-10Ronald L. Finck, Esquire Sup. Ct. I.D. #89985 METTE, EVANS & WOODSIDE 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 rlfinck,~a,mette.com In re: THE MOSHER FAMILY IRREVOCABLE TRUST FRANK A. MOSHER, ANNE CORBIN and EILEEN MOSHER FREEBY, Petitioners v. PAUL M. MOSHER, Respondent rv ` c s t~7 ` ~~ n W c.~ I C7 Q "fin ~ p ~ ~"; ~ ~:~. IN THE COURT OF COMMON 'LEAS, _ CUMBERLAND COUNTY, PENNSYLVANIA No: 21-10-1039 ORPHANS' CO~J~tT OBJECTIONS TO ACCOUNTING The Petitioners/Objectors, Frank A. Mosher, Anne Corbin, and Eileen Mosher ~'reeby (collectively the "Objectors"), by and through their attorneys, Mette, Evans & Wood~i~le, file these Objections to the Accounting of the Respondent/Accountant, Paul M. Mosher (!`haul" or "Accountant"), as follows: FACTUAL BACKGROUND The Parties 1. Frank A. Mosher ("Frank") and his now deceased wife, Virginia B.1'Nlpsher ("Virginia") are the settlors of The Mosher Family Irrevocable Trust (the "Trust"). 2. Virginia died testate on July 12, 2009. 3. The Trust was created pursuant to a Trust Agreement dated August 31,1993. A true and correct copy of the August 3, 1993 Trust Agreement is attached hereto as E'Ix~ibit `A' and made a part hereof by reference. 4. Anne Corbin ("Anne") and Eileen Mosher Freeby ("Eileen") are the ~i~ughters of Frank and Virginia and are beneficiaries of the Trust. 5. Paul is the son of Frank and Virginia and is the sole Trustee of the Tr1u~t. 6. The Trust Agreement designated Paul as the sole trustee of the Trust grid Paul has been acting in that capacity since the Trust's inception. Backsround of the Trust Agreement 7. Frank and Virginia created the Trust in 1993 to acquire life insurance lok~ their lives for the benefit of their daughters, Anne and Eileen, as primary beneficiaries. 8. Paul, as trustee of the Trust, purchased an insurance policy issued by l~i~w York Life Insurance Company, Policy #44964091 (the "Insurance Policy"), on the lives of blrank and Virginia to Paul M. Mosher, Trustee. 9. As of the date of the most recent information available to the Objectorls, December 31, 2008, the Insurance Policy provided a death benefit of $545,256.25 anal ~ cash value of $267,046.00. 10. All of the premiums paid to maintain the Insurance Policy have been plaid by Frank by his contributions to the Trust. 2 11. Pursuant to Article III of the Trust Agreement, the Trust corpus wasdivided into two equal shares for each Anne and Eileen upon creation. One share was designated for Anne and one share was designated for Eileen. 12. Pursuant to the terms of the Trust Agreement, upon the death of the ~ujrvivor of Frank and Virginia, the remaining balances of the separate shares are to be paid to fine and Eileen. 13. The primary purpose of the Trust was to provide for an immediate. ca`s~ payment to Anne and Eileen upon the death of the last to die of Frank and Virginia. Security Savings Systems. Inc. 14. At all times relevant hereto, Frank and Virginia and Virginia's estate ~Ih~ve owned the majority of the issued and outstanding voting common stock of a Tennessee bus~n~ss corporation known as Security Savings Systems, Inc., having its principal place of b~$iness at 901 Market Street, New Cumberland, Pennsylvania. 15. Security Savings Systems, Inc. was incorporated on January 18, 19301>~y Frank's father and several others, as a Tennessee business corporation. 16. Security Savings Systems, Inc. was authorized to do business in Penn~~¢lvania as a foreign business corporation on or about November 22, 1999. 17. Security Savings Systems, Inc. is a printing company. Its business is ~h~e production of financial documents. 18. Paul and his wife, Jean M. Mosher ("Jean") were employed by Securi~y~, Savings Systems, Inc. until October 28, 2009. 19. Until October 28, 2009, Paul was the president of Security Savings Sy~~ems, Inc. 20. In contrast to Paul, Frank's daughters, Anne and Eileen, have never b~'e~ involved in the management of Security Savings Systems, Inc. ~I 3 21. Security Savings Systems, Inc. is an "S corporation" under the tax lavws of the United States and the Commonwealth of Pennsylvania. 22. Frank and Virginia have from time to time made gifts of the common stock of Security Savings Systems, Inc. to Paul and Jean.' 23. As a result of these transfers, as of July 12, 2009, Paul and Jean each), dwned 30.50% of the voting and non-voting, common stock in Security Savings Systems, I~tC. 24. As of July 12, 2009, Frank owned 24.29% of the voting and non-voti~g common '~ stock in Security Savings Systems, Inc. and Virginia owned 14.71% of the voting ar~d, non-voting common stock. 25. When Virginia died on July 12, 2009, her shares of Security Savings ~~stems, Inc. common stock passed to Frank as Trustee of a testamentary trust established by ~iti!irginia's Will. Overview of Frank and Vir¢inia's Estate Plan 26. In arranging their estate plan, Frank and Virginia wanted to treat their) dhildren as equitably as possible giving due consideration to Paul's involvement in Security Sav~rzgs Systems, Inc. 27. To counterbalance the significant gifts of the common stock of Securi Savings Systems, Inc. to Paul and his wife, Jean, Frank and Virginia arranged their estates su~l~ that upon the death of their survivor, Anne and Eileen would receive their non-business related~a~sets, including the life insurance proceeds collected on their deaths by the Trust. 28. The intent was to provide Anne and Eileen with an immediate cash patient when the survivor of Frank and Virginia died. ~ Paul maintains that the common stock was transferred to Paul and Jean as a result of an employment ~greement with Security Savings Systems, Inc. Objectors submit that this issue has no relevance to the instant O j ctions. 4 Paul's actions as Trustee of Mosher Family Trust 29. In or about October of 2009, a dispute arose between Frank and Pain,. 30. By letter dated October 28, 2009, Jean and Paul notified Security Sa~ip~gs Systems, Inc. of their resignations from Security Savings Systems, Inc., effective as~i, df November 10, 2009. A true and correct copy of said resignation is attached hereto ~I~ Exhibit `B' and made a part hereof by reference. 31. In their October 28, 2009 notice, Paul and Jean requested that Frank ~i~her purchase their stock in Security Savings Systems, Inc. or alternatively, transfer all S~~urity Savings Systems, Inc stock from Virginia's Estate to Paul and Jean. ~', 32. Frank declined Paul and Jean's request that he purchase their stock ir~ security Savings Systems, Inc. 33. A gift of Virginia's stock in Security Savings Systems, Inc. would ha~~ been a violation of Frank's fiduciary duties as Trustee of the testamentary trust established ~~ Virginia's will. I 34. It is believed and therefore averred, that Paul and/or Jean offered som~'pf their stock in Securit Savings Systems, Inc. for sale to several potential purchasers, all of~vrhom y declined the offer. 35. On April 16, 2010, Paul, as Trustee of the Trust, as the buyer, and his v~ife, Jean, '~'~ as the seller, entered into a Stock Purchase Agreement whereby Jean would sell her 12070 shares of common stock in Security Savings Systems, Inc. to the Trust for Three Hund~ed Thousand ($300,000) Dollars, payable One Hundred Fifty Thousand ($150,000) Dolls now and the remaining One Hundred Fifty Thousand ($150,000) Dollars within sixty (60) d~y$ Following the death of Frank. A true and correct copy of the Stock Purchase Agreement of Apr~l 16, 2010 is attached hereto as Exhibit "C" and made a part hereof by reference. II, , 5 ~Ii iii 36. On September 1, 2010, Paul and Jean attempted to revoke the Internal' Revenue Code "S" election of Security Savings Systems, Inc. by filing a revocation with the (Internal Revenue Service pursuant to Section 1362(d)(1)(B) of the Internal Revenue Code, ~6' U.S.C. § 1362(d)(1)(B). Such revocation is in violation of their obligations as set forth in th~ Security Inc. Shareholders A Bement of January 11, 1997 between Security! Savings Savings Systems, ~' Systems and Paul and Jean. 37. On September 7, 2010, counsel for Paul and Jean delivered a document entitled "Stock Power" executed by Jean purporting to sell, assign and transfer Jean's 12,07 shares of common stock in Security Savings Systems, Inc. to the Trust. 38. In order to finance the sale of Jean's stock to the Trust, Paul as Trust~e'~ of the Trust and legal owner of the life insurance policy on Frank's life, withdrew Two Hu$~c~red Thousand ($200,000) Dollars as a policy loan by check from New York Life Insura~c~ Company to Paul as Trustee, and paid One Hundred Fifty Thousand ($150,000) Dollars to his wife Jean for her 12,070 shares of common stock of Security Savings Systems, Inc. to be transferred to the Trust. i 39. The stock in Security Savings Systems, Inc. in the Trust has little valu~ejto Anne and Eileen. 40. Inasmuch as the Security Savings Systems, Inc. stock is stock in a clo~~ly held i corporation, it has relatively little value on the open market. PROCEDURAL HISTORY 41. On October 14, 2010, the Objectors initiated this action with a Petition $or Citation to Account ("Petition") seeking an Accounting from Paul, in has capacity as ~rustee of the Trust. 6 42. On October 15, 2010, this Court issued a Citation upon Paul directinjg'Paul to show cause why he should not be directed to file an Accounting of his actions as trustee of the Trust. 43. On November 4, 2010, Paul filed an Answer to the Objectors' Petitic~ru. In this Answer, Paul sufficiently explains his activities as Trustee of the Trust such that 0 I'~ctors are satisfied that no further accounting is necessary for purposes of resolving the issues ~ic~entified in these objections. 44. On November 29, 2010, the Court held a Status Conference before tl~e (Honorable M.L. Ebert, Jr. During the status conference, the Objectors informed the Court that ~hley were satisfied that the Accounting provided by Paul in his Answer to the Petition sufficiently '~ described Accountant's activities for purposes of the filing of these objections. Accc~rldingly, the Objectors requested leave to file objections to the Accountant's Accounting. 45. By Order dated November 29, 2010, the Court directed, inter alia, that (the Objectors file their Objections to the Accounting on or before December 30, 2010. 't'hese Objections are filed in accordance therewith. OBJECTION TO ACCOUNTING 46. The Accountant's Accounting shows that Paul used the Trust assets fc~r',his own benefit and not for the benefit of Trust beneficiaries, namely Anne and Eileen. 47. The Objectors submit that the Accountant's use of Trust funds to purc~~se Security Savings Systems, Inc. stock from his wife, Jean, is a violation of the Accaur~t~.nt's fiduciary duties to the Trust. 48. Pursuant to 20 Pa C.S. §7772(a) a trustee is required to administer the ~rjust solely in the interests of the beneficiaries. 7 49. Subject to certain exceptions, none of which are applicable here, the !I)niform Trust Act provides that a purchase and sale between a trust and the trustee or the truls~ee's spouse is voidable upon application by a beneficiary affected by the transaction. 20 Pa. C.S. 50. The purchase of Jean's shares in Security Savings Systems, Inc. by tl~~ Trust does not benefit the beneficiaries of the Trust, Anne and Eileen, for the following reason: '', a. Anne and Eileen aze not employees of Security Savings Systen~#s, Inc. and had no involvement in the management thereof; have b. Security Savings Systems, Inc. has no immediate plans to liq~i~ate and without voting control of the company, Anne and Eileen have rho way of i liquidating their interests in the company; and c. Anne and Eileen have no control over the salability of the sto~kl in Security Systems, Inc. 51. Moreover, Paul failed to get a valuation of the stock prior to purchasi~~ it in his capacity as Trustee of the Trust. 52. Paul's activities constitute self-dealing and breach of his fiduciary dut~~s to the Trust, and the beneficiaries thereof, such that Paul should make restitution to the Tru~t~ be surcharged for all damages, including counsel fees, and removed as Trustee of the Trlu$t. 53. Objectors submit that Frank's grandson, Silas Mosher, should be appointed as Trustee of The Mosher Family Irrevocable Trust. ~' ~' WHEREFORE, the Objectors respectfully request that this Honorable Court c~e~laze the transfer of Security Savings Systems, Inc. stock to the Trust as void. The Objectors i~ther request that Paul be surchazged for any loss caused to the Trust and that he be remow~d as Trustee. The Objectors further request such other relief as is deemed just and appropriate. Date: December 30, 2010 Respectfully submitted, METTE, EVANS & WOODSIDE Howell C. Mette, Esquire Sup. Ct. I.D. No. Ronald L. Finck, Esquire Sup. Ct. I.D. No. 89985 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 -Phone ~~ (717) 236-1816 -Fax Attorneys for Objectors 9 VERIFICATION I, FRANK MOSHER, have read the foregoing document and verify that thle facts set forth herein aze true and correct to the best of my knowledge, information and beli~f. To the extent that the foregoing document and/or its language is that of counsel, I have re~i~d upon counsel in making this Verification. I understand that any false statements made herein aze subject to the penalt~e~ of 18 Pa. C.S.A. §4904 relating to unsworn falsification to authorities. ~' DATED: ~ ~ J ~I E~KIBIT A k; _ __ __ 5-22-93 , THE MOSHER FAMILY IRREVOCABLE TRUST This trust agreement is executed on , 1993, by FRANK A. MOSHER and VIRGINIA 8. MOSHER, bo of New Cumberland, Pennsylvania (individually, a "Grantor"; collectively the "Grantors"), and '' PAUL'M. MOSHER, (the "Trustee"), on the following term!and conditions hereinafter stated. ARTICLE I Purposes and Fundinq the Trust A. The Grantors create this Trust as a means by assets, which may include one or more policies of insure their lives that may be held for the benefit of persons family, on the terms and conditions set forth in this i It is the Grantors' intent in creating this Trust that made to it be complete and that the assets of this Trus including any life insurance proceeds, be excluded from gross estates-for federal estate tax purposes. The Gra intend that the share of this Trust for each of their d shall be included in the gross estate of such child for estate tax purposes, thereby invoking the rules for the °Crummey powers with testamentary control", all as here more specifically provided. All provisions of this Tru be construed in such a manner as best to effect these i B. The Grantors transfer to the Trustee the prop listed in Schedule A, to be held and administered accor the terms of this Trust. The Grantors and anyone else transfer additional property to the Trustee at any time held and administered according to the Trust's terms. Trustee may refuse to accept any gift if the Trustee de rejection to be in the best interests of the Trust and i beneficiaries, and the Trustee may accept a gift subject or more conditions imposed by the Trustee or the donor, Trustee deems such conditional acceptance to be in them interests of the Trust and the beneficiaries. No condii imposed on a gift and accepted by the Trustee may in and alter, amend, or change the rights of a beneficiary witY to any prior gifts. The Grantors retain no right, tit1E interest in any trust property. ce on f their Vi \414 GL1~.v 1 gifts ors also ghters ederal being after shall ents. Y Q t0 to be such to one f the st on way respect or ~~ ARTICLE II Irrevocability This Trust and all interests in it are irrevocabl ~ and neither Grantor has any power to alter, amend, revoke, pr terminate any trust provision or interest, whether and * this Trust or any statute or other rule of law. ARTICLE III Distributions From the Trust The Trustee will divide the trust fund into as ma ~- separate equal shares as may be required to provide one separat ~~,equal share for each of the Grantors' daughters living on th 'date this Trust is created and will hold the separate share far ~ch of the Grantors' daughters. The Trustee need not divide or s c~regate any assets held collectively by these separate shares, ~lthough the Trustee must maintain such records as will enable a Trustee to render a separate accounting and prepare separate i dome tax returns, if required, for each such share. A. Until the death of the later of the Grantor's ~o die, immediately following any contribution to the Trust, e! Grantors' daughter who is the primary beneficiary of s c~h separate share (the "Primary Beneficiary") shall have he right to withdraw the total amount of the contribution, but, during any calendar year during which the Grantors are married fp Ithe entirety of such year, not more than two times the amo ~t of the federal gift tax annual exclusion in such calendar yeia .' The Grantors recognize that the gift tax annual exclusion 's now ten thousand dollars ($10,000), but that it may be changed from time to time, and this demand power shall reflect the annuallexclusion in effect on the date of the individual gift. With res ect to these demand powers, the following rules shall apply: 1. The Primary Beneficiary can exercise thi ',demand power by a written request delivered to the Trustee. Iflthe Primary Beneficiary is unable to exercise this demand'p jwer because of a legal disability, including minority, hid 1r her parent (if the Primary Beneficiary is a minor) or any o bier legally authorized personal representative, including ( fit not limited to) a guardian, committee, or conservator, mar ~ke the demand on the Primary Beneficiary's behalf. However, i no event can either Grantor make the demand for a Primary Benefi h.ary, regardless of such Grantor's relationship to such Prima ~ Beneficiary . 2. The Trustee must reasonably notify the p son who would exercise each Primary Beneficiary's demand power ~ its existence and of any contributions made to the Trust~th are - 2 - subject to the power. An adult Primary Beneficiary mays waive all future notices. 3. Each Primary Beneficiary's demand power its noncumulative and lapses sixty (60} calendar days fo1lOt~ing the date of the transfer to which it relates. ~' 4. The Trustee may satisfy a Primary Beneficjiary's demand for a distribution by distributing cash, other as ets, or fractional interests in other assets, as the Trustee de s appropriate. Without limiting the Trustee's power to's ect assets to satisfy a demand, the Grantors prefer that ~a or tangible assets be distributed before life insurance po ~icies and intangible assets, unless the Trustee decides that anot ~r selection is warranted. 5. "Contribution" means any cash or other a bets transferred to the Trustee to be held as part of the tr ~t funds. The amount of any contribution is its federal gift tax lue, as determined by the Trustee at the time of the transfer. j', B. Until the death of the later of the Grantors I~ die, the Trustee may use some or all of the Trust's net into ~ and principal remaining after the exercise or nonexercise o !the demand powers under paragraph A, to pay premiums on pol ies of life insurance on the life of either or both Grantors, ,ding to principal any income not so used. 1. The Trustee will not, however, use any t st income or principal in a manner that would discharge ei er Grantor's legal support obligation or give either Grant ~ any pecuniary benefit. 2. If any Primary Beneficiary shall die bef~ a the later of the Grantors to die, the Trustee will distribu the Trust share for such Primary Beneficiary to the person ~ persons to whom such Primary Beneficiary appoints such share byi$pecific reference in his or her last will to this general power cif appointment. This power of appointment may be exercise jin favor of any member or members of a class that includes ail o (the descendants of the Grantors and the creditors of the e~s to of such predeceased Primary Beneficiary, and it may be ex~e ~ised equally or unequally, and either outright or in continu ~ trust, on such terms as such Primary Beneficiary shall indicat in his or her will. In default of such appointment, the Trust ~ will continue to hold such separate share, to be ultimately ~' distributed pursuant to paragraph C. C. Upon the death of the later of the Grantors t 'die, the Trustee will hold the Trust funds of each separate shat (created hereunder (except to the extent a different result is c elated by - 3 - 1 the exercise of the power of appointment granted in paragraph B), as follows: .. 1. During the administration under state 1 W of the estate of the later of the Grantors to die, the Trustee ',may use all of such trust funds, in the Trustee's discretion, q lend money to and buy assets from such estate, on such term land conditions as the Trustee deems to be in the best inte e~sts of the Trust and the beneficiaries. The Trustee will not, ',however, make grants to such estate or otherwise distribute fun sl except through bona fide loans or purchases, it not being this Grantors' intention to make any persons other than their descend nits and heirs at law the beneficiaries of any trust created hie sunder, except as may occur by the exercise of the powers of a pjointment granted hereunder. If no personal representative is a pointed under applicable state law with respect to the estate f, the later of the Grantors to die, the "administration" of s ch estate will include the settlement of debts, claims, and taxes 'in respect of such Grantor's estate by the trustee of any jevocable trust or by any other person in actual possession of asslets in which such Grantor had a legal or equitable interest. 2. Upon the termination of the administrati~l#~ of the estate of the later of the Grantors to die, or upon suc,earlier date as the Trustee determines that the purposes of its ~I(1) of this paragraph have been effectuated, the Trustee will:., ~'i a. Distribute outright and free of tru~t the separate equal share to each of the then-living Primary Beneficiaries; and b. Distribute the trust share for any ~imary Beneficiary who has died prior thereto, to the person o 'persons to whom such child appoints such trust funds by specifi reference in his or her last will to this general power ~f appointment. This power of appointment may be exercise lin favor of any member or members of a class that includes all o 'the descendants of the Grantor and the creditors of the est ~e of such deceased Primary Beneficiary, and it may be exerci ~d equally or unequally, and either outright or in continu ~ trust, on such .terms as such Primary Beneficiary shall indicat '~in his or her will. In default of such appointment, the Trust $ will distribute such share of the Trust outright and free of i~rust, subject to the provisions of Article IV, to the then-li Ong descendants, collectively, of such Primary Beneficiary, $uch descendants to take, per stirpes the share that their a Nestor, such deceased Primary Beneficiary, would have taken if wing. If such deceased Primary Beneficiary of the Grantor is ~t survived by then-living descendants, then in default of he exercise of such power of appointment, the Trustee will ~is- tribute such share of the Trust outright and free of tr~$t, sub- - 4 - .~ ject to the provisions of Article IV, to the other them-living Primary Beneficiaries and the then-living descendants of any of the Primary Beneficiaries who have theretofore died, pear, stirpes. c. The Trustee has the sole discretio. an equitable division of the trust assets, pursuant tm paragraph, and the Trustee may distribute the trust a5 kind, in cash, or partly in each, and the Trustee may fractionalize any trust asset or sell it and distribut as the Trustee deems to be in the best interests of th the beneficiaries. D. If all of the beneficiaries of any trust Crew this article should die before the trust assets have ve them, the Trustee will distribute all of the remaining each such trust as follows: o make is Its in lthe cash, gust and under in is of 1. One half (~) (or all, if there are np pe ons to take under item (2}) to the heirs and distributees of 'F A. MOSHER who would have taken his estate and in such sher ~ as they would have taken it, had he died unmarried and without,valid will, determined on the later of his death or the death'~of the last of such beneficiaries to die; and 2. One half (~) (or all, if there are no pe ons to take under item (1}) to the heirs and distributees of 'V ~GINiA H. MOSHER who would have taken her estate and in such char $ as they would have taken it, had she died unmarried and withotitt ~ valid will, determined on the later of her death or the death~;~f the last of such beneficiaries to die. ARTICLE IV Interests vesting in a Minor If, when any trust created by this instrument endis principal vests in absolute ownership in any minor benle: the Trustee may, if deemed appropriate, hold such intelr~ trust until the beneficiary attains age twenty-five (2'5 so much (including all or none) of the trust's net incia principal to the beneficiary as the Trustee deems appr~o, the beneficiary's health, education, support, and main~t~ adding to principal any undistributed income. The Truls~ make such payments to the beneficiary, or to his or heir guardian, or to the person with whom the beneficiary. re without having to look to the proper application of tho payments. The Trustee may also make any payments to a (who may be a Trustee) under any applicable Uniform Tria Gifts) to Minors Act. When the beneficiary attains agle five (25), the Trustee will pay him or her all of his o remaining trust funds and this trust will end. If the any ciary, ~t in Paying ,and Y~ate for fiance , e may arent, 'des, stodian fers (or - 5 - ._ beneficiary dies before attaining age twenty-five (25),'the Trustee will pay all of such funds to the beneficiary'sl~estate. The authority conferred on the Trustee is a power only {ahd will not operate to suspend absolute vesting of any property~.n such beneficiary . ARTICLE V Spendthrift Clause To the greatest extent permitted by law, no interel of any beneficiary of any trust created under this instruments Mall be subject to the beneficiary's liabilities or creditor cl ~.ms or to assignment or anticipation. ARTICLE VI Def initions A. At the time this Trust is executed, the Grant its have two daughters, ANNE and EILEEN. A person in gestation l~.o is later born alive shall be treated as alive during the p ztiod of gestation for purposes of determining (1) whether any p son has died without leaving descendants surviving him or her; ~) the right. to distributions on the termination of a trust cr ted under this instrument; and (3) any person's right to sh a in required principal distributions, though for all other rposes such person's rights accrue only from the date of birth B. A Trustee is "disabled" or under a "disabilit 't when- ever any Trustee other than a disabled Trustee or, if t re is no such Trustee, any person who would become successor Tru ee on such determination of disability, receives written cent ication from two physicians regularly attending such Trustee, a (least one of whom is board-certified in the specialty most cl rely associated with the alleged disability, that such Trusit ~ has become physically or mentally incapacitated, regardless c~f cause and regardless of whether or not there has been any adj c~ication of incompetence, mental illness, or need for a commute , conservator, guardian, or other personal representativ!e., A Trustee is recovered from his or her disability wheneve ',a then- serving Trustee receives written certification from two . physicians regularly attending such disabled Trustee, a 'least one of whom is board-certified in the specialty most cl s~ely associated with the alleged disability, that he or she '~ no longer incapacitated and is again able to manage his or filer own personal and financial affairs. No Trustee is liable t janyone, including a Grantor, for removing anyone from the Trust ship, if such Trustee relied in good faith on the aforementioned physicians' certifications. No one else is liable to ar~y~one for - 6 - ~I i II ., dealing with a Trustee other than the one removed for disability, if such removal was made upon good-faith reliance on ttb,~ aforementioned physicians' certifications. C. No person shall be deemed to have survived a #her Grantor for purposes of this Trust unless he or she is ]diving on the date thirty (30)`days after the date of such Grant is death, as determined by applicable legal death certificates. D. All tax-related terms mean the same things ir~lthis Trust instrument as they mean in the Internal Revenue ~c1de of 1986, as amended. ', E. "Per stirpes" means by right of representati r~, and a disposition to an individual and his or her "descendaa~ ~, per stirpes" requires that the individual's children, whet e~r or not living at the time of the disposition, be treated as t ~ original stocks and that a further subdivision be made at each ulcceeding generation. '~ F. There is only one signed original of this Tr sit. Anyone may rely on a copy of said document as certifie ~y a notary public or similar official to be a true copy of It~ie signed original (and of the amendments or other writings, if a, endorsed on or attached thereto) to the same effect. as i such copy were the signed original. Anyone may rely upon an statement of fact certified by anyone who appears from ~e original document or a certified copy thereof to be a T lustee hereunder. ARTICLE VII Trustee's Powers A. The Trustee is exclusively empowered to do the' following, in the Trustee's fiduciary capacity: 1. To hold and retain all or any property r ~eived from any source, without regard to diversification, ris productivity, or the Trustee's personal interest in suc (property in any other capacity, and to keep all or part of the t fist property at any place within the United States or abrva F 2. To invest and reinvest the trust funds (p~ leave them temporarily uninvested) in any type of property an every kind of investment, including (but not limited to) corp ate obligations of every kind, preferred or common stocks, curities of any regulated investment trust, and partnership inte ~sts. - 7 - ,, 3. To participate in the operation of any b'ulsiness or other enterprise, and to incorporate, dissolve, or othelr~wise change the fora of such business. ~ 4. To deposit trust funds in any commercial savings or savings and loan accounts. 5. To borrow money for any reasonable trust urp and upon such terms, including (but not limited to) int ~est rates, security, and loan duration, as the Trustee deem advisable. '~ 6. To lend trust funds to such persons and such terms, including (but not limited to) interest rates, s urity, and loan duration, as the Trustee deems advisable; pr~v' ed, however, that the Trustee may not lend money to either ~antor's estate without receiving adequate security and an adequ a rate of interest . 7. To sell or otherwise dispose of trust as its, including (but not limited to) trust real property, for dash or credit, at public or private sale, and with such warran dies or indemnifications as the Trustee deems advisable. !,' 8. To buy assets of any type from any perso 'on such tenas, including (but not limited to) cash or credit, i ~erest rates, and security, as the Trustee deems advisable.; pr hided, however, that the Trustee may not buy assets from eithe Grantor's estate other than at their fair market value.~~,', 9. To improve, develop, manage, lease, or al~~ndon any trust assets, as the Trustee deems advisable. ',' 10. To hold property in the name of any Gust ian or nominee, without disclosing this Trust; but the Trustee s responsible for the acts of any custodian or nominee so used. 11. To pay and advance money for the Trust's l,' protection and far all expenses, losses, and liabilities' sustained in its administration. 12. To prosecute or defend any action for th~', protection of the Trust, the Trustee in the performance cif the Trustee's duties, or both, and to pay, contest, or sett~~ any claim by or against the Trust or the Trustee in the per c~rmanc of the Trustee's duties. ~I 13. To employ persons, even if they are as with the Trustee, to advise or assist the Trustee in performance of the Trustee's duties. - 8 - 14. To determine what is principal or income and what items shall be charged or credited to either. 15. To execute and deliver any instruments ~~cessary or useful in the exercise of any of these powers. ~' B. With respect to any life insurance policies old as part of the trust funds, the following special rules s ~11 apply: 1. The Trustee may, in the Trustee's disGr i~ion, pay any premiums or other charges from trust income or prli ~$ipal. If the trust funds are inadequate to pay such premiums or c$harges, the Trustee may, in the Trustee's discretion, do one o Il,more of the following: (a) use any automatic premium loan fe~a u~re; (b) borrow against any policy cash reserves (whether o Inot on the policy for which premium or charges will be paid); dr (c) elect any automatic nonforfeiture feature. The T~' tee shall have no duty to do any of these unless the Trustee has received specific written notice that a premium or charge has n t been paid. ~~' 2. Any additional insurance policies, no matter how acquired (including, but not limited to acquisition b~ gjift, conversion, reissue, consolidation), should be listed o ~ISchedule A, but failure to do so does not affect the Trust's pmli~y ownership. ~, 3. The Trustee may, in the Trustee's disc~te 'lion, refuse to enter into or maintain any litigation, endors i,policy payments, or take other action respecting any trust ims ance policies, until indemnified against all expenses and 1i ~ilities that, in the Trustee's judgment, may be involved in swc faction. 4. The Trustee need not inquire whether or pt the Trustee or the Trust has been designated the benefici~r of any insurance policy or other death benefit, and the Tr~ste ~~,need not act with respect to such policies until receipt of writ ~n notice that the Trustee or the Trust is a beneficiary of the p .icy. C. In making any payment to a minor or disabled ~ne- ficiary, the Trustee may expend such payments for the b befit of such beneficiary or make such payments to such benefidi ~y, or to his or her parent, guardian, personal representative, o Ithe person with whom he or she resides, without having to l k to the proper application of those payments. This paragraphed snot limit the Trustee's powers and must be construed to erla a the Trustee to give each beneficiary the fullest possible ',b efit and enjoyment of all of the trust income and principal tow ch he or she is entitled. I,, - 9 - ARTICLE VIII The Trustee A. A Trustee may designate any individual or in tl,itution as a co-trustee, by a written instrument. Any co-true e%e or successor Trustee may, without liability, accept withp t, examination or review the accounts rendered and the p~ rty delivered by any predecessor Trustee. Each successor' stee has the same title, powers and duties as the Trustee su~c~e ~d, without any additional conveyance. A co-trustee so nom ~d shall serve only as long as the Trustee who appointed such do trustee (or, if such co-trustee was named by more than one ~r~s ~e acting together, by the last to serve of such Trustees), and''s h co- trustee shall not become a successor Trustee upon the'd ~th, resignation, or disability of the Trustee who appoirit~d uch co- trustee, unless such co-trustee is elected as successor 'trustee pursuant to paragraph E of this article. Any referdn~e ~o a "Trustee" refers equally to any successor Trustee. ', B. Any Trustee may, from time to time, delegate ~ any other Trustee by written instrument any or all of such ustee's powers (except those, if any, not exercisable by such o ~ier Trustee). Such delegation may be temporary or perm~n~n ~ and if temporary, may be for any duration of time or until amy went specified by the delegating Trustee. Any person dealn ', in good faith with any Trustee may rely without inquiry upon th Trustee's certificate with respect to any delegation. Ili C. No Trustee shall be required to provide sur~t~i',or other security on a bond. D. Any Trustee may resign by giving written noti specifying the resignation's effective date to the deli ~ated successor~Trustee, if there is one, or otherwise to eac .adult beneficiary of the current trust income, to a custodial anent of each minor beneficiary of current trust income, and tq a legal guardian of any beneficiary of current trust income holy g a legal guardian, each determined at the time such notide s given. A corporation authorized to render trust services shall ~e named successor Trustee by majority vote of the income benefi ,cries, with the adult beneficiaries voting on their own behalf bone vote being cast for each minor income beneficiary by his or r custodial parent, and one vote being cast by the legal' ardian for any beneficiary having a legal guardian. For purpo s of this article, the right to receive "support" from the 'T st is a right to current trust income. Notwithstanding the folr oing, in no event may either Grantor vote in the election of any successor Trustee. ~' E. No Trustee shall be required to obtain the or~~r of any court to exercise any power or discretion under this Tr t. - 10 - F. No Trustee shall be required to file any accenting with any public official. The Trustee must, however, ip~intain accurate records concerning the trust. Each year, fur ermore, the Trustee shall furnish an annual accounting of the ~ust's condition, including receipts and disbursements, to ea 1~ adult beneficiary of the current trust income, to a custodies 'parent of each minor beneficiary of current trust income, and to the legal guardian of any beneficiary of current trust income ha ~.ng a legal guardian, each determined at the time such natic lis given. This required accounting may be satisfied by a copy o,f t$he Trust's federal income tax return, if one is required.', G. Any corporate Trustee is entitled to compen~s t~ion based on its published fee schedule in effect at the time it ,services are rendered. ', ARTICLE IX ~~ Miscellaneous ~~', A. This Trust shall be governed by and construedLaccording to the laws of Pennsylvania. B. Whenever the context of this Trust requires, the masculine gender includes the feminine and neuter, and ice versa, and the singular number includes the plural, and lvice versa. i' C. In accordance with the purpose of the Trust, ~e Trustee is authorized, with or without Court approvals- {O make administrative and ministerial modifications to the p~to sions of this Agreement for the purpose of conforming to changes ~n law or factual or economic circumstances. Any such modificaiti ~ shall be in all events consistent with the Grantors' intent'u bn creation of the Trust, and shall be in writing, signe$ ~ the Trustee, with copies delivered to the Grantors and the beneficiaries of the Trust. ~ ~' D. If the Trustee is acting as Trustee of anotMe~rjtrust with terms and provisions substantially similar to this rust, the Trustee is empowered, in the sole discretion of tie rustee, reasonably exercised, to consolidate the trusts herein Bated with such other trust,'insofar as it is practicable, r~o ', in substantial conflict with the terms of this Trust or bf such other trust, and not in derogation of any tax-saving pr ision of any applicable state or federal law. Provisions of thi ',Trust and such other trusts shall be considered substantially similar even if there are minor variations as to the management ~-nd distribution of the trusts. The determination by the T ~stee as to any consolidations hereunder shall be final and conc sive upon all parties. - 11 - E. If the market value of any separate trust h~e~i shall fall below Twenty-Five Thousand Dollars ($25,000. provided the Trustee, in the Trustee's discretion, dete that the continuation thereof is no longer consistent w trust purpose and in the best interests of the benefici the Trustee may distribute the property of such trust't person or persons then entitled to receive the income t and in the proportions as such persons are then entitle receive the income therefrom, insofar as specified in 's otherwise in equal shares. In determining whether or n an early distribution in accordance with the foregoing, Trustee shall not only take into account the present fa value of the trust, but if trust property includes one contracts, the Trustee shall also take into account, tc extent the Trustee deems appropriate, the anticipated v such contracts at maturity. IN WITNESS WHEREOF, hereunto set their hands first above written. Witness: 0) , and mines th the ry(s) , the ~i ca i vaaa, to h trust, to make market more ue of the Grantors and the Trustee h 1ve and seals all as of the day an 'year G~ANTDRS: FRANK A. MII8H8R . _ ~. VIRG IA H . MOSHI~R TRUSTEE: PAIIL M. MOBBER - 12 - - - - ~ I ~~N._..- F~~_ A One Dollar ($1.00) "Attached below t, ~ . eaa ~ a uw.~ ' wR ~u surt~. wwe,v~s ebrids~: ll `~ . ~. ~' ~~0 ,: .~: ,~ ~.~ . r . I: ~,~~ r . ,.. .IO ~'~°".~..~'.. ;. ~~~~a ~~~~ a s~6a~~~sa ~'j ' n ~ ~ ~ 'f 'W ..~ tl'~4~"a~- s'iar+a• ~ ned F A. MOgSER and VIRGackna ~.e a that ,Wei the undersig 1993, do herebyMOBR~ ~, Ly day of the accompanying Tr~is e this acity as Gra tors aid to PAUL M. MOSHER as in our caP we have p Baring above, such $aYment IRR'EOOCAHLE TRUST, 1,00) in cash, aPp i, thereof One Dollar ($ funding of such Trust. representing the initial ~ n ~~ j/ ~ X1 FgAiv~ s,. --'--- ` ~+ 9ZRGINZ 8. MOggER ~` I' ACKNOWLEDGEMENT OF REC~~PT ~, PAIIL M• MOggER 'i, ~; ~, i 13 " ~, z COMMONWEALTH OF PENNSYLVANIA SS: COUNTY OF Q~~~t,Gc~Q~LV~ On this, the -~==r day of , 1993, b~f ~Ce me, a Notary Public, the undersigned office personally ag~he fed FRANK A. MOSHER and VIRGINIA 8. MOSHER, known to me (fir satisfactorily proven) to be the persons whose names ar subscribed to the within MOSHER FAMILY IRREVOCABLE TROTS ~I who acknowledged to me that they executed the same for the i~rposes therein contained. IN WITNESS WHEREOF, I hereunto set my hand and off~~ial seal. ~. Notary Publ~~ (SEAL) ~~, ~_ -~-~ NOTARiAI. SEAL Judith A. Nordstrom, No Put tlarristwrg, PA Dauphin uni ly Commission Explir~ ~e - 14 - EX~IIBIT B Security -Savings Systems, Inc. Frank A. Mosher, CEO Security Savings Systems, knc. 9p1 Martcet Street New Cumberland, PA 17070 Odrsber 2B, 200g Dear Sir: P.O. Box 373, New t':'ru~eberlcmd PA 17470 PTioru: (717) 901-7088 1 800 233 7122 FAX.- 717-90I-7010 Due m your breach of contract, we hereby ~rxier our resignailon as employees and office Securlry Savings Systems, effectlve November 10"', 2009. You well note we are giving yo customary two weeks notice, at your discretion. Should you deetre that we stay on thraigh the end of the year, we wlti consider chat in tws cases: ('1) It you buy bade our Securtty Savings Systems. Inc, stock within the two week ~ !~ , we will continue working as ernpioyesa under the current ernploymerrt array through Dewerr~ber 91'x. (2} N you transfer all stacks horn the estate of Virginia B. Mosher, voting and non voting, do Paul M. Mosher withM the two vNeek perbd we will withdraw our reslgnatlons end r+srnafi with the company. Stauld you choose net to exexdse either of the abanre options, then we wilt attempt to ilq ~I our hddings in the romparry otherwise, st our dscnatian:= I Skncerely, ' ~`(r I~ . ~ '~ Jean M. Mosher, Vice President & Paui M. Masher, President EXHIBIT C From: 717 901 7010 04l~ ...010 09:47 ,, STOCK PUitCHASE AGRERMENT ' stock purchase agreement is mulo and entered i~o this, day of 2010, Hy and between JEAN M. MOSHER, referred to as Seller, and OSHER FAMII.Y IRRBVOCABLB TRUST, referred to as Buyer. A. Seller i; owner of 12,070 shares (the "Shares") of the outstanding SECURITY SAVINC}S SYSTEMS, INC., a oorporatioa organized sad existing i Tennessee, heroin refeaed to as Corporation. of ~ of B. Buyer desires to acquire, and Boller desires to sell, all of Seller's shams o~'slock in the Corporation pursuant to the terms of this agreeme~. Now, therefore, is considcrffiion of the premises, their mutual oov~ sad prn~i# and other good and valuable consideration, the receipt mid $uffioiaacy of which is ~ acknowledged, sad inteeding to be legally bound, the parties agree as follows: SECTION ONE PURCHASE AND SALE OF STOCK Subject to the terms and conditions of this agieemeat, Seller agrees to sell, aad~ H ypr agroea to buy, all of Seller's shares of the capital stock of titre Corporation for the total pri of Thme Hundred Thousand Dollars (5300,000.00), payable as follows: A. Paym~aat of One Humdr+ed Fifty Thousand Dollars (a 150,000.00) upon the of the Shares; Sad H. Payment of One Hundred Fifty Thousand Dollars (S 150,000.00) within I (60) days of the death of Frank A. Mosher, Jr. !, The transfer of Shares is conditioned upon: .... ' I, . i. Neither the Corporation nor Frank A. Mosher, Jr. nor arty transferee of A Mosher, h. eaercisiag a right of first retbsal set fords is Paragraph 3 of the Shareholders Agreement dated Janaury 11,1997 by sad bata-em the C Seller and Paul A. Mosher, and ~ ii. Transfer of the stock certificates evidencing the 3hates. '~, SBCTION TWO ~ ~ ~, BUYER'S RBPRESENTATIONS AND WARRANTIES 8325 P. 004/005 Bayer re~reseata sad warraaq to Seller that Huyer is acxpdring. these shares of Sell s capital stock of the Corpor9stioa for its flora account far investment sad not with a view to, or for Froe~: 717 901 7D10 04/~ _D1D 09:48 X325 P.005I005 ~} . sale in connection with, distn'bution of nay of the shares sad with m present intention o~ felling nay of them. ~, SECTION THItSE F,NT1ItE ACiRBEMENT This aunt constitates tho entire agreement b+etwexn tho parties sad sups prior writflen or oral uaderatandings, agree~pnents, or conditions. No change, modifio Wit, or addition wilt be valid unless it is in writir4g and signed by the party sy enforcement of nay change, modification, amendment, or addition is assigned. The 1 agreement will survive the transfer of Seller's atoclc to Buyer. SECTION FOUR PARTIES BOUND; ASSIGNMENT All covcnaa#s, agreemdnts, representations, and watlaaties net forth is this binding on and inure to the benefit of the successors and ensigns of the parties. The pslrtu caunat assign this agreement or any of their rights under this agroemeat except by ope~at3 law to their personal representatives or Iieits in the event of their death, incapacity, or disaolutiomi, as the case maybe, in which case this agreement sad all of the parties' oblfgi sad benefits will be binding on and imu~e to the benefit of tho party's personal heirs and sucxesaors: • SECTION FIVE • GOVERNIL~TG LAW This agreement shall be construed and enforced is accordance with the laws of Comaronwealth of Pennsylvania. WTrNBSSES: ~ JEAN M. MOSI3ER("Sellec'~ /~ ~ J~~l TI3B MOSHER PA14l~LY IRRBV • TRUST ("Buyea'~ any ieipt arc of • ~ ~ ~~ By: Paul M. Mosher, Trustee rrc.w.ww,oocsv.cvamtavwwatrmt-caaawtta.w..~n••••K•r+ • CERTIFICATE OF SERVICE I certify that I am this day serving a copy of the foregoing document upon tl~e person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail'atlHarrisburg, Pennsylvania, with first-class postage, prepaid, addressed as follows: ', Bruce J. Warshawsky, Esquire ~', CUNNINGHAM & CHERNICOFF, P.C. ~ P.O. Box 60457 Harrisburg, PA 17106-0457 ~, Attorneys for RespondentlAccountant Paul M. Mosher ~I, METTE, EVANS & WOOD5IDE By: (~~nw~KrC.~ ~~~"J.~:. Ronald L. Finck, Esquire Sup. Court I.D. No. 89985 3401 North Front Street P. O. Box 5950 Hamsburg, PA 17110-0950 (717) 232-5000 -Phone Date: December 30, 2010