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Exhibit 2
XXXXXXX X. XXXXXXXXXX
IRREVOCABLE TRUST AGREEMENT
This agreement is made on Oct. 18, 1996, between me, XXXXXX XXXXXXXXXX,
as grantor, and my wife, XXXXXX XXXXXXXXXX ("my wife"), as trustee. I am
transferring to the trustee $10.00 and other property. The trustee shall
hold such property for the benefit of my son, XXXXXXX X. XXXXXXXXXX
("XXXXXXX"), as hereinafter provided. This trust shall be known as the
"Xxxxxxx X. Xxxxxxxxxx Irrevocable Trust, dated Oct. 18, 1996."
FIRST: A. The trustee shall pay to XXXXXXX, commencing with the
creation of the trust and continuing until the termination of the trust,
all of the income of the trust and so much or all of the principal
thereof as the trustee determines to be required or advisable from time
to time for JEFFREY'S reasonable support and medical care, considering
his other resources known to the trustee.
B. Upon JEFFREY'S death, the trust shall terminate and the trustee
shall distribute any accrued or undistributed income of the trust to
JEFFREY'S estate and the principal of the trust to such person or
persons, other than JEFFREY'S estate, his creditors and the creditors
of his estate, as XXXXXXX xxx appoint by will which specifically
exercises this limited power of appointment. The trustee may assume
that XXXXXXX left no will if at the expiration of three (3) months
after JEFFREY'S death the trustee has no knowledge of the existence of
his will. Principal of the trust not validly appointed by XXXXXXX shall
be distributed to his descendants per stirpes who are living upon the
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termination of the trust and if none, to my descendants per stirpes who
are then living.
SECOND: The following provisions shall apply to each trust created
by this agreement:
A. If under any prior provision of this agreement a share of any
trust is distributable, except by the exercise of a power of appointment,
to a beneficiary who has not then attained age 21, the beneficiary's
share shall immediately vest in the beneficiary but in the trustee's
discretion the trustee shall either (1) create a custodianship for the
beneficiary under a Uniform Transfers to Minors Act and distribute the
share to that custodian; (2) distribute the share to a then acting
custodian for the beneficiary under a Uniform Transfers to Minors Act; or
(3) retain the share in a separate trust as follows: the trustee shall
pay to the beneficiary so much or all of the income and principal of the
trust as the trustee determines to be required or advisable from time to
time for the beneficiary's reasonable support, education and medical
care, considering the beneficiary's other resources known to the trustee.
Income not paid to the beneficiary shall be added to trust principal.
When the beneficiary attains age 21, the trust shall terminate and the
trustee shall distribute to the beneficiary the principal and any accrued
or undistributed income of the trust. If the beneficiary dies before
attaining age 21, the trust thereupon shall terminate and the trustee
shall distribute
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the principal and any accrued or undistributed income of the trust to
the beneficiary's estate.
B. Mandatory income payments shall be made in quarterly installments,
or more often if the trustee sees fit.
C. Each trust created under this agreement or pursuant to any power
of appointment granted hereunder shall terminate not later than the day
immediately preceding the date 21 years after the death of the last to
die of me, my wife and my descendants who are living on March 6, 1990,
and the trustee shall upon that day, regardless of any other provision
of this agreement, distribute the principal and any accrued or
undistributed income of each trust then held hereunder to the income
beneficiary thereof.
THIRD: In addition to the powers from time to time conferred on the
trustee by the Illinois Trusts and Trustees Act, the trustee shall have the
following powers exercisable in the trustee's discretion:
A. To charge or not to charge against income an allowance for
depreciation;
B. To borrow money from any source, including but not limited
to, the banking department of a successor corporate trustee;
C. If at any time the principal of a trust required to be held
under the terms of this agreement is less than $50,000 in value, to
distribute the principal and any accrued or undistributed income of
the
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trust to its income beneficiary, and that trust shall thereupon
terminate, notwithstanding any provisions in this agreement to the
contrary;
D. When there is a trust under this agreement and a trust under
another document, each having the same beneficiary or beneficiaries and
terms which are substantially identical as to the distribution of
income and principal, to transfer all of the assets of such trust under
this agreement to the trustee or trustees of the substantially
identical trust, and thereupon such trust under this agreement shall
terminate;
E. To retain as an investment of the trusts securities of any one
or more closely-held businesses which may become an asset of the trusts,
and/or of any successor to or subsidiary or affiliate of each such
business. Each such business and all successors, subsidiaries and
affiliates thereof, if any, are hereinafter singly and collectively
referred to as the "Company." "Securities" shall include common and
preferred stocks, bonds, debentures, voting trust certificates,
interests in limited liability companies, and any other evidence of a
proprietary or partnership interest in and/or an obligation of the
Company. The trustee shall have with reference to such securities the
following powers, in addition to those elsewhere herein granted:
1. To participate in the management of the Company as an
officer or director or otherwise, with appropriate compensation;
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2. To extend credit to the Company from the banking department
of a corporate successor trustee; and
3. To increase the investment of the trusts in the Company by
any means, including but not limited to, one or more of the
following: making secured or unsecured loans to the Company,
purchasing or subscribing to securities of the Company, or pledging
assets for debts of the Company. The trustee shall exercise ordinary
business judgment in determining how long such securities shall be
retained, it being the settlor's intention that the trustee retain
such securities as long as in the trustee's judgment it is in the best
interest of the beneficiaries, and the trustee shall not be liable for
any loss resulting from such retention. The settlor realizes that he is
exposing the trusts to risks inherent in all business operations but he
believes those risks justifiable by the possibility of preserving the
capital and income values of such securities. To the extent that the
trustee renders services to the Company, the trustee may charge the
Company for those services. Nothing in this agreement shall be construed
to prevent any individual trustee from being employed or retained by the
Company at a salary or fee commensurate with the value of his or her
service, nor to prevent him or her from purchasing such securities from
the trusts or from any other source;
F. To make secured or unsecured loans to the income beneficiary of
any trust hereunder, and to pledge trust assets, guarantee
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or otherwise encumber trust assets for any debts, loans, obligations
or liabilities of the income beneficiary of any trust hereunder, all
as the trustee considers proper and at the sole discretion of the
trustee. Notwithstanding the foregoing, a trustee who is the
beneficiary of any trust hereunder shall not have any powers under
this paragraph relating to the trust or trusts of which the trustee
is the beneficiary. The trustee shall not be liable to any
beneficiary of any trust hereunder or any other person or entity for
deciding in the trustee's discretion to exercise or not to exercise
the powers under this paragraph and the trustee shall not be
personally liable under any such pledge, guarantee or other
encumbrance; and
G. To do all other acts to accomplish the proper management,
investment and distribution of the trusts.
FOURTH: No interest under this trust shall be assignable by any
beneficiary. Cash or other property distributable hereunder shall not be
subject to claims of any creditor of any beneficiary, nor to claims for
alimony or maintenance. Nothing herein contained shall prevent the exercise of
any power of appointment under this agreement or prevent distribution of money
or property to the estate of a deceased beneficiary when required by this
agreement.
FIFTH: The following provisions shall apply to each trust created by
this agreement:
A. If for any reason my wife does not act or continue to act
as trustee, XXXXXXX is appointed successor trustee. If for any reason
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neither or the foregoing individuals acts or continues to act as
trustee, my other child or children who are then living and
competent are appointed successor co-trustees or sole trustee, as
the case may be. If for any reason one of my remaining children
does not act or continue to act as a successor co-trustee, that
vacancy shall not be filled, except that if none of the foregoing
act or continue to act as trustee, THE NORTHERN TRUST COMPANY, of
Chicago, Illinois, is appointed successor trustee. If for any
reason none of the foregoing nor any successor trustee appointed
as hereinafter provided acts or continues to act as trustee, a
successor trustee shall be appointed as provided in the Illinois
Trusts and Trustees Act and shall be any "qualified corporate
trustee". A "qualified corporate trustee" shall be any corporation
situated in the United States and authorized under the laws of the
United States or of any state thereof to administer trusts and
with capital, surplus and undivided profits of at least fifty
million dollars.
B. While more than one trustee is acting:
1. The term "trustee" as used in this agreement shall
be read as "trustees" and, where appropriate, the singular
shall be read as the plural, and corresponding changes shall
be read in references to gender.
2. Any trustee may from time to time, by signed
revocable instrument, delegate to the other trustee or
trustees the
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exercise of all or less than all of the powers herein conferred
upon the successor co-trustees jointly.
C. For purposes of this agreement, an individual shall be
determined to be incompetent (l) if the individual is under age
18, or (2) if the individual is age 18 or older, upon the
unanimous determination by his or her attending physician and such
of my children who are then living and competent that the
individual is incapable of properly managing his or her financial
affairs (except that the individual whose competency is in
question shall not participate in that determination).
D. If an individual is acting as a trustee hereunder and a
determination is made that he or she is incompetent, that
determination shall be deemed to constitute his or her
resignation as trustee.
E. The income beneficiary of any trust created under this
agreement may at any time approve the trustee's accounts with
respect to that trust, with the same effect as if a court having
jurisdiction over the trust approved the accounts.
F. The income beneficiary of each trust created hereunder
shall have the right from time to time, while living and
competent, to remove the then acting corporate trustee of such
trust and to appoint any qualified corporate trustee as successor
corporate trustee. If the income beneficiary desires to exercise
his or her rights under this paragraph, the income beneficiary
shall deliver to the trustee whom he or she intends to remove and
to the trustee whom he or she intends to appoint, an
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instrument signed by the income beneficiary reciting such removal
and appointment. Such removal and appointment shall take effect
30 days after the removed trustee receives that instrument.
G. In the case of any incompetent income beneficiary, a
living and competent parent or child, or guardian or conservator
if the income beneficiary has no living and competent parent or
child, may receive notices, approve accounts, appoint successor
trustees and remove corporate trustees as provided in this article
on behalf of the incompetent income beneficiary.
H. Notwithstanding any contrary provision herein, no
individual trustee shall participate as trustee in making any
decisions relating to a discretionary distribution of income or
principal of the trust property to any beneficiary to the extent
that such distribution would be in discharge of such trustee's
legal obligation (in his or her individual capacity) to support
such beneficiary. If an individual trustee is precluded from
participating in a particular decision by the foregoing provisions
of this paragraph, then the decision shall be made by the other
trustee who is not so precluded, if any. If the sole trustee or
all of the co-trustees are precluded from participating in a
particular decision, then the trustee or trustees with respect to
any such trust may appoint by an instrument filed with the trust
records any person (other than the settlor) or qualified corporate
trustee to act as a "special trustee" of such trust whose sole
power shall be to make those decisions relating to
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discretionary distributions of income and principal of any trust
hereunder which the trustee is precluded from making. If for any
reason the trustee who appoints a "special trustee" pursuant to
this paragraph ceases to act as a trustee, the term of office of
the "special trustee" shall terminate. A "special trustee" may act
in such capacity more than once.
SIXTH: This agreement is irrevocable and may not be amended.
SEVENTH: This agreement shall be governed by and interpreted in
accordance with the laws of Illinois.
IN WITNESS WHEREOF, I and the trustee have signed this agreement on
the date first written above.
/s/ XXXXXX XXXXXXXXXX
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XXXXXX XXXXXXXXXX, as Grantor
/s/ XXXXXX X. XXXXXXXXXX
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XXXXXX X. XXXXXXXXXX, as Trustee
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