File No. IN THE MATTER OF THE RUSSELL : RECEIPT, RELEASE, BERRIE 2002A TRUST : REFUNDING AND SHARE : VOTING AND DISPOSITION : AGREEMENT

File No. IN THE MATTER OF THE RUSSELL : RECEIPT, RELEASE, BERRIE 2002A TRUST : REFUNDING AND SHARE : VOTING AND DISPOSITION : AGREEMENT

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Exhibit 2

SURROGATE’S COURT, STATE OF NEW JERSEY
COUNTY OF BERGEN


	x
	:	File No.
	:
IN THE MATTER OF THE XXXXXXX	:	RECEIPT, RELEASE,
BERRIE 2002A TRUST	:	REFUNDING AND SHARE
	:	VOTING AND DISPOSITION
	:	AGREEMENT

	x

WHEREAS, by an indenture dated June 10, 2002, between the late Xxxxxxx Xxxxxx, as grantor (the “Grantor”), and Xxxxxxx Xxxxxx and Xxxxx Xxxxxx as trustees (the “Trust”), certain property was to be held IN TRUST, to pay the net income and so much of the principal as either trustee determined, to Xxxxxxx Xxxxxx during his life, and upon his death, the trustees were to distribute all property then belonging to the Trust, together with all property added to the Trust as a result of the Grantor’s death, pursuant to Article TWO, Sections I-V and Section VIII; and

WHEREAS, the Grantor died on December 25, 2002; and

WHEREAS, pursuant to Article FOUR of the Trust, Xxxxxxxx Xxxx Xxxxxx, Xxxxxxx Xxxxxxxx, Xxxx Xxxxxx, Xxxx Xxxxxxxx and Xxxxxx Xxxxxx were appointed to act as trustees with Xxxxx Xxxxxx (the trustees in office from time to time, including any successor trustees, are hereinafter collectively referred to as the “Stock Trustees”), after the death of the Grantor; and

WHEREAS, pursuant to Article TWO of the Trust, for a period of five years after the date of death of the Grantor, the Stock Trustees (acting pursuant to the following paragraph) shall retain the exclusive right to make decisions with respect to the retention, sale and voting of shares of Common Stock, $.10 stated value per share (“Common Stock”), of Xxxx Xxxxxx and Company, Inc. ( the “Company”) as are distributed pursuant to the Trust, as well as any securities of the Company received in respect of such shares as described herein (the “Stock Trustees’ Powers”); and

WHEREAS, pursuant to Article TWO of the Trust, actions of the Stock Trustees with respect to all securities subject to this Agreement shall be taken upon the approval of a majority of the Stock Trustees, with Xxxxxxxx Xxxx Xxxxxx having two votes and each other trustee having one vote and, in addition, with Xxxxxxxx Xxxx Xxxxxx (if then serving as a Trustee) having the right to cast the controlling vote in the event of deadlock with respect to any decision by the Stock Trustees (a decision of the Stock Trustees taken in accordance with such voting procedures is hereinafter referred to as a decision by a “Majority of the Stock Trustees”); and

WHEREAS, pursuant to Article TWO, Section VIII, of the Trust, following the distributions pursuant to Sections I-V, the balance of the Trust is to be distributed to The Xxxxxxx Xxxxxx Foundation, a New Jersey Nonprofit Corporation (the “Foundation”); and

WHEREAS, all distributions pursuant to Article TWO, Sections I-V of the Trust have been made; and

WHEREAS, the remaining assets of the Trust include 4,624,451 shares of the Common Stock of the Company (the “Shares”); and

WHEREAS, the Foundation represents that it has not assigned, transferred or encumbered in any way voluntarily or involuntarily, its interest in the Trust;

NOW, THEREFORE, in consideration of the premises, the Foundation hereby acknowledges receipt of the Shares from the Trust.

And the Foundation acknowledges that until December 25, 2007 (or such earlier date as may be agreed to by a Majority of the Stock Trustees or an Automatic Termination, as described below), any sale, transfer or other distribution or disposition of the Shares, and any securities of the Company received in respect thereof by reason of any stock split, stock dividend, recapitalization, extraordinary corporate event with respect to the Company, or otherwise (collectively, “Additional Securities”), shall require only the approval of a Majority of the Stock Trustees, and the consent of the Foundation (or its Trustees) shall not be required; provided however, that the proceeds of any approved sale of the Shares or any Additional Securities shall be the property of the Foundation. In connection therewith, for the term of this Agreement (subject to an Automatic Termination, as discussed below) the Foundation hereby appoints the Stock Trustees as its attorneys-in-fact, to act in its name, place and stead, with respect to effecting any such sale, transfer or disposition.

And the Foundation acknowledges that until December 25, 2007 (or such earlier date as may be agreed to by a Majority of the Stock Trustees and subject to an Automatic Termination, as described below), a Majority of the Stock Trustees shall have the exclusive right in their sole discretion to vote the Shares (and any Additional Securities) or give written consent, in person or by proxy, with respect to the Shares (and any

Additional Securities) at all meetings of the shareholders of the Company, and in all proceedings in which the vote or written consent of shareholders may be required or authorized by law. In connection therewith, for the term of this Agreement (subject to its Automatic Termination as discussed below), the Foundation hereby irrevocably appoints the Stock Trustees (with full power of substitution) as its attorneys-in-fact and proxy, for and on its behalf and in its name, place and stead, with respect to any and all voting rights with respect to the Shares and any Additional Securities.

And the Stock Trustees acknowledge and agree that all other indicia of ownership with respect to the Shares and any Additional Securities, including, but not limited to, the right to receive proceeds from any transfer or disposition thereof and the right to receive any dividends or distributions with respect thereto shall inure to the benefit of the Foundation.

Notwithstanding anything herein to the contrary, the Stock Trustees’ Powers shall automatically terminate as to the relevant Shares or Additional Securities upon the consummation of any sale, transfer or other distribution or disposition thereof by the Foundation (“Automatic Termination”).

And the Foundation agrees to segregate the Shares and any Additional Securities on the books of the Foundation and to take such other actions as may be appropriate to assure that the Stock Trustees’ Powers may be exercised.

And in consideration of the premises and of the distribution of the Shares, the Foundation hereby releases and discharges Xxxxx Xxxxxx, Xxxxxxxx Xxxx Xxxxxx, Xxxxxxx Xxxxxxxx, Xxxx Xxxxxx, Xxxx Xxxxxxxx and Xxxxxx Xxxxxx, individually and as Stock

Trustees, of and from any and all liabilities or claims whatsoever that the Foundation now has or may have against said persons by reason of any act done or omitted to be done by said persons prior to the date hereof relating to the Shares.

And in consideration as aforesaid, the Foundation agrees, to the extent it is later finally determined in a judicial proceeding that the property distributed hereunder exceeds what the Foundation was entitled to receive, to refund the value of such excess to the Trust in cash.

This instrument may be executed in various counterparts, each of which shall be deemed an original, with the same effect as if all parties hereto had signed the same document.

The provisions hereof shall bind and inure to the benefit of the heirs, legal representatives, successors and assigns of the undersigned, and of any successor trustees.

Dated: As of March 28, 2006



	/s/ Xxxxx Xxxxxx
	Xxxxx Xxxxxx, as a Stock Trustee of the Trust



	/s/ Xxxxxxxx Xxxx Xxxxxx
	Xxxxxxxx Xxxx Xxxxxx, as a Stock Trustee of the Trust



	/s/ Xxxxxx Xxxxxx
	Xxxxxx Xxxxxx, as a Stock Trustee of the Trust



	/s/ Xxxx Xxxxxxxx
	Xxxx Xxxxxxxx, as a Stock Trustee of the Trust



	/s/ Xxxxxxx Xxxxxxxx
	Xxxxxxx Xxxxxxxx, as a Stock Trustee of the Trust



	/s/ Xxxx Xxxxxx
	Xxxx Xxxxxx, as a Stock Trustee of the Trust


	THE XXXXXXX XXXXXX FOUNDATION, A NEW JERSEY NONPROFIT CORPORATION
	By:	/s/ Xxxxx Xxxxxx
		Xxxxx Xxxxxx, as a trustee



	By:	/s/ Xxxxxxxx Xxxx Xxxxxx
		Xxxxxxxx Xxxx Xxxxxx, as a trustee



	By:	/s/ Xxxxxx Xxxxxx
		Xxxxxx Xxxxxx, as a trustee



	By:	/s/ Xxxx Xxxxxxxx
		Xxxx Xxxxxxxx, as a trustee



	By:	/s/ Xxxxx Xxxxxx
		Xxxxx Xxxxxx, as a trustee

On the 10th day of March in the year 2006, before me, the undersigned, a Notary Public in and for said State, personally appeared XXXXX XXXXXX, in his capacity as a Stock Trustee of the Trust, and in his capacity as a trustee of The Xxxxxxx Xxxxxx Foundation, a New Jersey Nonprofit Corporation, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument.



	/s/ Xxxxx X. Xxxxxx
	Attorney at Law of the State of New Jersey

On the 10th day of March in the year 2006, before me, the undersigned, a Notary Public in and for said State, personally appeared XXXXXXXX XXXX XXXXXX, in her capacity as a Stock Trustee of the Trust, and in her capacity as a trustee of The Xxxxxxx Xxxxxx Foundation, a New Jersey Nonprofit Corporation, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that she executed the same in her capacity, and that by her signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument.



	/s/ Xxxxx X. Xxxxxx
	Attorney at Law of the State of New Jersey

On the 10th day of March in the year 2006, before me, the undersigned, a Notary Public in and for said State, personally appeared XXXXXX XXXXXX, in his capacity as a Stock Trustee of the Trust, and in his capacity as a trustee of The Xxxxxxx Xxxxxx Foundation, a New Jersey Nonprofit Corporation, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument.



	/s/ Xxxxx X. Xxxxxx
	Attorney at Law of the State of New Jersey

On the 10th day of March in the year 2006, before me, the undersigned, a Notary Public in and for said State, personally appeared XXXX XXXXXXXX, in his capacity as a Stock Trustee of the Trust, and in his capacity as a trustee of The Xxxxxxx Xxxxxx Foundation, a New Jersey Nonprofit Corporation, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument.



	/s/ Xxxxx X. Xxxxxx
	Attorney at Law of the State of New Jersey

On the 10th day of March in the year 2006, before me, the undersigned, a Notary Public in and for said State, personally appeared XXXXX XXXXXX, in his capacity as a trustee of The Xxxxxxx Xxxxxx Foundation, a New Jersey Nonprofit Corporation, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument.



	/s/ Xxxxx X. Xxxxxx
	Attorney at Law of the State of New Jersey

On the 28th day of March in the year 2006, before me, the undersigned, a Notary Public in and for said State, personally appeared XXXXXXX XXXXXXXX, in his capacity as a Stock Trustee of the Trust, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument.



	/s/ Xxxxx X. Xxxxxx
	Attorney at Law of the State of New Jersey

On the 17th day of March in the year 2006, before me, the undersigned, a Notary Public in and for said State, personally appeared XXXX XXXXXX, in his capacity as a Stock Trustee of the Trust, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument.



	/s/ Xxxxx X. Xxxxxx
	Attorney at Law of the State of New Jersey

STATE OF NEW JERSEY

COUNTY OF BERGEN