EXHIBIT 17
XXXXXX X. XXXXX 1998 STOCK OPTION TRUST
Dated: January 23, 1998
between
XXXXXX X. XXXXX,
as Donor
and
XXXXXX X. XXXXX and XXXXXXX X. XXXXX,
as Trustees.
INDEX
Page
ARTICLE I
Disposition of Trust Income and Principal.....................3
ARTICLE II
Trustees......................................................8
ARTICLE III
Trust Administration.........................................12
ARTICLE IV
Survivorship.................................................24
ARTICLE V
Right to Revoke or Amend.....................................24
ARTICLE VI
Governing Law................................................25
ARTICLE VII
Additions to Trust...........................................25
ARTICLE VIII
Exculpation..................................................30
ARTICLE IX
Assignment of Reversionary Rights............................30
ARTICLE X
Definitions..................................................30
ARTICLE XI
Acceptance of Trusteeship....................................31
XXXXXX X. XXXXX 1998 FAMILY TRUST
TRUST AGREEMENT dated the 23rd day of January, 1998, between
XXXXXX X. XXXXX, as Donor (the "Donor"), and XXXXXX X. XXXXX and XXXXXXX
X. XXXXX, as Trustees.
The Donor hereby assigns, transfers and delivers to the
Trustees the property listed on Schedule A hereto, which, together with any
additions, is to be held in trust for the primary benefit of the Donor's
spouse and issue in accordance with the provisions of this Agreement.
ARTICLE I
Disposition of Trust Income and Principal
A. 1. The Trustees are authorized, at any time or from time to
time, to pay or apply, subject to the provisions of Subdivision B of
Article VII of this Agreement, such part or all of the net income and
principal of this trust to or for the benefit of any one or more of the
Donor's spouse and the Donor's issue living from time to time, in such
amounts or proportions, and to the exclusion of any one or more of them, as
the Trustees determine in their absolute discretion for any reason
whatsoever, even though any such distribution results in the termination of
this trust. In exercising their discretion under this Paragraph, the
Trustees shall not be required to take into account any other resources
available to or for the benefit of any beneficiary of this trust. Any net
income not so paid or applied shall be added to principal whenever
convenient.
2. Upon the death of the Donor's spouse, the remaining
principal of this trust shall be distributed as follows:
a. If any of the Donor's issue is then living, such
property shall be distributed to the Donor's then living issue per stirpes,
subject to the provisions of Subdivision B of this Article.
b. If none of the Donor's issue is then living, such
property shall be disposed of in accordance with the provisions of
Subdivision C of this Article.
B. Pursuant to the provisions of this Article, certain property
is to be disposed of subject to the provisions of this Subdivision. Any
such property distributable to a grandchild or more remote issue of the
Donor who has not reached age forty-five (45) at the time fixed for
distribution, shall not be distributed outright to such grandchild or more
remote issue, but instead shall be held by the Trustees in a separate trust
for such grandchild or more remote issue (the "Beneficiary"), the income
and principal thereof to be disposed of as follows:
1. The Trustees are authorized, at any time or from time to
time, to pay or apply such part or all of the net income and principal of
this trust to or for the benefit of the Beneficiary as the Trustees
determine in their absolute discretion for any reason whatsoever, even
though any such distribution results in the termination of this trust. In
exercising their discretion under this Paragraph, the Trustees shall not be
required to take into account any other resources available to or for the
benefit of the Beneficiary and shall not take into account the interest of
any other beneficiary of this trust. Any net income not so paid or applied
shall be added to principal whenever convenient.
2. When the Beneficiary reaches age forty-five (45), the
remaining principal of this trust shall be distributed to the Beneficiary
outright.
3. If the Beneficiary dies before reaching age forty-five
(45) (or upon the later death of the beneficiary if this trust is being
administered in continuing trust in accordance with the provisions of
Subdivision D of this Article), this trust shall terminate upon the death
of the Beneficiary, at which time the remaining principal thereof shall be
distributed to the Beneficiary's surviving issue per stirpes or, if none,
to the then living issue per stirpes of the nearest ancestor of the
Beneficiary who was an issue of the Donor and who has issue then living or,
if none, to the Donor's then living issue per stirpes, subject in each
instance to the provisions of this Subdivision. If none of the Donor's
issue is then living, such property shall be disposed of in accordance with
the provisions of Subdivision C of this Article.
4. If the Beneficiary is a minor, the Trustees are
authorized, in their absolute discretion, whether or not one of them is
also acting as Guardian of the Beneficiary:
a. To pay or apply any part of the income and principal
of this trust to (i) enlarge any residence owned by the Beneficiary's
Guardian and used by the Beneficiary from time to time; (ii) purchase a
residence for the use of the Beneficiary from time to time; and (iii)
satisfy the taxes, maintenance and capital repair costs, rent and other
expenses (including for additional household help) related to any residence
used by the Beneficiary from time to time, in each instance whether or not
such Guardian and any members of such Guardian's family are also using such
residence from time to time;
b. To permit such Guardian, any members of such
Guardian's family and members of the Donor's family to use any such
residence from time to time without the payment of rent or any other charge
therefor; and
c. To lend to such Guardian such sum or sums as the
Trustees determine to be reasonably necessary in order to permit such
Guardian to enlarge a residence of such Guardian or to assist such Guardian
in purchasing a new residence, so as to provide adequate living
accommodations for the Beneficiary and, incident thereto, for such
Guardian's family and any other members of the Donor's family who are
living from time to time with such Guardian, with or without interest and
upon such other terms and conditions as the Trustees determine.
C. Any property directed to be disposed of in accordance with
the provisions of this Subdivision and any property not otherwise
effectively disposed of under this Agreement shall be distributed as
follows:
1. Thirty-five percent (35%) thereof shall be distributed to
NEW YORK UNIVERSITY, New York, New York, for the unrestricted general use
of its medical center.
2. Fifteen percent (15%) thereof shall be distributed to the
AMERICAN MUSEUM OF NATURAL HISTORY, New York, New York.
3. Ten percent (10%) thereof shall be distributed to the
XXXXXXX X. XXXXXXXXXX FOUNDATION, New York, New York, to support the
Xxxxxxx X. Xxxxxxxxxx Museum.
4. Five percent (5%) thereof shall be distributed to the NEW
YORK CITY SCHOOL VOLUNTEER PROGRAM INC., New York, New York.
5. Thirty-five percent (35%) thereof shall be distributed o
the UNITED JEWISH APPEAL-FEDERATION OF JEWISH PHILANTHROPIES OF NEW YORK,
INC., New York, New York, one-half (1/2) of which shall be used to support
U.J.A. - Foundation's domestic charitable purposes in the greater
metropolitan New York area and one-half (1/2) of which shall be used to
support U.J.A. - Foundation's overseas charitable purposes in Israel and
elsewhere throughout the world.
6. In the event that any of the dispositions provided for in
Paragraphs 1, 2, 3, 4 and 5 of this Subdivision C fails to take effect, the
property that would have passed pursuant thereto had such disposition or
dispositions taken effect shall instead be added proportionately to such of
the dispositions provided for in Paragraphs 1, 2, 3, 4 and 5 of this
Subdivision C as shall take effect.
D. 1. Notwithstanding any provision of this Agreement to the
contrary, but subject to the provisions of Subdivision E of this Article,
if the Trustees determine in their absolute discretion that it would not be
in the best interests of a grandchild or more remote issue of the Donor to
receive outright any portion of the principal of any trust created
hereunder which would otherwise be distributable outright to such person
(the "Property"), the Trustees are authorized to hold or retain the
Property, or any portion thereof, in trust for such period of time as the
Trustees deem advisable, including for the lifetime of such person, until
the Trustees determine in their absolute discretion that such outright
distribution would no longer be against such person's best interests.
During such period of time, the Trustees shall have the absolute discretion
to pay or apply such part or all of the net income and principal of such
trust to or for the benefit of such person as the Trustees deem advisable
for any reason whatsoever. In exercising their discretion under this
Paragraph, the Trustees shall not be required to take into account any
other resources available to or for the benefit of such person and shall
not take into account the interest of any other beneficiary of such trust.
Any net income not so paid or applied shall be added to principal whenever
convenient. Anything herein above to the contrary notwithstanding, if such
person is acting as a Trustee hereunder, such person shall be disqualified
from participating in the exercise of the Trustees' discretionary power to
hold, retain or distribute the Property, or any portion thereof. Upon the
death of such person while any of the Property is held in trust in
accordance with the provisions of this Paragraph, such remaining Property
shall be distributed in accordance with the provisions of Paragraph 3 of
Subdivision B of this Article.
2. If, pursuant to Paragraph 1 of this Subdivision, a trust
is created for any person to whom the Property would otherwise be
distributable outright, the Trustees of such trust shall be the same as the
Trustees of any trust for such person appointed under or pursuant to the
authority granted in Article II hereof.
E. Notwithstanding any provision of this Agreement to the
contrary, each trust created under this Article shall terminate not later
than twenty-one (21) years after the death of the last survivor of all of
the issue of each of the parents of the Donor and each of the parents of
the Donor's spouse who were in being on the date of the Donor's execution
of this Agreement. Upon such termination, the remaining principal of such
trust shall be distributed to the Beneficiary of such trust.
ARTICLE II
Trustees
A. 1. If XXXXXX X. XXXXX or XXXXXXX X. XXXXX ceases to act as
Trustee of any trust created hereunder for any reason, the Donor's
daughter, XXXXXXXX X. XXXXX, shall become her or his successor Trustee of
such trust hereunder.
2. Anything in this Agreement to the contrary
notwithstanding, the Donor shall be ineligible to be a Trustee hereunder.
B. The individual Trustees of any trust acting hereunder are
authorized, at any time or from time to time, by an instrument in writing,
signed and acknowledged, to appoint one or more individuals or a series of
individuals or a corporation with trust powers, even if such appointment
shall supersede the Donor's appointment of successor Trustees under the
preceding provisions of this Article, to act as Trustee of such trust
hereunder, in succession to or in addition to any Trustee herein appointed
or any other Trustee appointed pursuant to the power herein granted. A
successor Trustee may be appointed to succeed a particular Trustee or to
succeed any Trustee.
C. Any instrument appointing a successor Trustee pursuant to
the authority granted in Subdivision B of this Article may be revoked at
any time prior to the qualification of the appointee by the individual
Trustees at the time being in office, whether or not such Trustees were the
Trustees signing such instrument. In the event that the individual
Trustees, at any time in office, have executed more than one instrument
appointing successor Trustees, then the unrevoked instrument bearing the
most recent date shall govern.
D. The ability of any co-Trustee to qualify or act hereunder
shall not be affected by any other co-Trustee's failing to qualify or
ceasing to act hereunder, except as otherwise provided herein or in any
designation made pursuant to the provisions of this Article.
E. Any individual Trustee may, at any time or from time to
time, by an instrument in writing, delegate any right, power, duty,
authority and privilege, whether or not discretionary, to any other Trustee
for such period or periods of time as may be specified in such written
instrument, provided, however, that any such instrument may be revoked at
any time and that no discretionary power may be delegated to any Trustee
who is disqualified from exercising such discretionary power. Any
individual Trustee hereunder is authorized to delegate to any suitable
person or entity any ministerial duties in connection with the rights,
powers, duties, authorities and privileges herein conferred, whether by
means of a power of attorney or otherwise.
F. Ministerial duties of the Trustees (such as signing checks
and executing brokerage transactions) may be performed by any one Trustee.
G. Wherever used in this Agreement, the terms "Trustee" and
"Trustees" shall refer to the trustees from time to time acting hereunder
as the context may require. Each such Trustee acting hereunder shall have
the same rights, powers, duties, authorities and privileges, whether or not
discretionary, whether such Trustee is named herein or appointed pursuant
to the terms hereof.
H. No bond or other security shall be required of any Trustee
acting hereunder for the faithful performance of such Trustee's duties, any
law of any jurisdiction to the contrary notwithstanding; and if,
notwithstanding this direction, any such bond or other security shall be
required by any law, statute or rule of court, no sureties shall be
required thereon.
I. No beneficiary acting as a Trustee hereunder may participate
in the exercise of a discretionary power to distribute to himself or
herself the income or principal of any trust of which he or she is a
beneficiary.
J. No Trustee acting hereunder shall make any distribution in
discharge of personal legal obligations of such Trustee or of the Donor.
K. Any individual Trustee hereunder who shall have disclaimed
any interest in a trust hereunder or in property which, pursuant to a
disclaimer, passes to a trust hereunder shall be disqualified from
participating in the exercise of the Trustees' discretionary power to
distribute the income or principal of such trust.
L. If by reason of any provision hereunder, or the law of any
jurisdiction in which it may be necessary to perform any act, any Trustee
hereunder shall be disqualified from acting, then all of the acts required
to be performed in such jurisdiction shall be performed by such Trustee's
qualified co-Trustees then acting hereunder.
M. Any individual Trustee, at any time in office, is authorized
to resign by an instrument in writing, signed and acknowledged and
delivered to the remaining or successor Trustee. The resignation of any
individual Trustee acting alone hereunder shall be effective only upon the
appointment and qualification of a successor Trustee.
N. Except as otherwise provided herein, in every case in which
it would be necessary for all of the Trustees of any trust hereunder to
join in the taking of any action, such action may nonetheless be taken by a
majority, and any action so taken shall be as valid and effectual as though
taken by all.
O. Any corporation into which any corporation acting as a
Trustee hereunder shall be merged or converted or with which it shall be
consolidated, or any corporation resulting from any merger, conversion,
reorganization or consolidation to which it shall be a party, or any
corporation to which all or substantially all of its trust business shall
be transferred, shall be the successor of such corporation as a Trustee
hereunder, without the execution or filing of any instrument or the
performance of any further act and shall have the same rights, powers,
duties, authorities and privileges as though originally named in this
Agreement.
P. Any person acting as a Trustee hereunder shall be deemed to
be incapacitated if the co-Trustees or, if none, the successor Trustee,
shall receive a certificate signed by two (2) qualified physicians,
including, if any, the physician then primarily responsible for such
person's medical care, stating that such person is unable to act prudently
with respect to financial matters because of accident, physical or mental
illness, deterioration, injury or otherwise, and such incapacity shall
constitute the resignation of such Trustee.
Q. Any appointment of a Trustee hereunder shall take effect
when accepted in writing.
R. Prior to the death of the Donor, the Trustees may, at any
time or from time to time, render an account of their transactions as
Trustees hereunder to the Donor. Nothing herein shall preclude the Trustees
from having their accounts judicially settled.
S. No successor Trustee shall be required to investigate or
audit the accounts or acts of any prior Trustee or to take any action with
respect thereto, either before or after qualifying.
T. No individual Trustee named in this Agreement has special
investment skills and none shall be deemed to have such skills.
U. Any beneficiary of a trust created hereunder who is serving
as a Trustee of such trust (the "Disqualified Trustee") shall be
disqualified from participating in the exercise of the Trustees'
discretionary power to distribute the income or principal to any other
beneficiary during such time or times as such other beneficiary shall also
be serving as a Trustee of such trust.
V. The Donor shall have the power to remove with or without
cause any Trustee of any trust hereunder, such removal to be effective upon
the appointment by the Donor of a successor "Independent Trustee," herein
defined to be a trustee who is not related or subordinate to the Donor
within the meaning of Section 672(c) of the Code.
ARTICLE III
Trust Administration
A. In addition to all powers given to them by law or any other
provision of this Agreement, the Trustees shall have the following powers
with respect to any property, real or personal, at any time held by them,
exercisable in their absolute discretion upon such terms and conditions as
they deem advisable, without any liability therefor and without
authorization by any court:
1. To retain any such property (including, without
limitation, any residence or any partial interest therein) for any period
of time;
2. To hold any such property uninvested for any period of
time;
3. To sell, exchange or otherwise dispose of any such
property at any time and in any manner, at public or private sale, for cash
or on credit, without any obligation to solicit multiple offers or to
obtain an appraisal to establish the value thereof;
4. To invest and reinvest in and to acquire, by purchase,
exchange or otherwise, and retain for any period, any kind of real or
personal property, foreign or domestic, or undivided interests therein,
including, but not limited to, common or preferred stocks, bonds or other
unsecured obligations, mutual funds, futures contracts, options of any
kind, commodities, investments on margin, derivatives, uncovered short
sales, covered short sales, mortgages, interests in investment companies or
investment trusts, interests in common trust funds (whether or not
maintained by any Trustee hereunder), interests in partnerships (general or
limited) or other entities, and securities, or to hold cash uninvested; and
to acquire any such investment from any person including any beneficiary
hereunder, the estate of any deceased beneficiary hereunder, or any estate
or trust in which any beneficiary hereunder has an interest;
5. To retain, hold, invest and reinvest in any such property
without diversification as to kind or amount and without being limited to
investments in which fiduciaries are authorized by law or any rule of court
to invest funds, even though such property shall be at such time (or shall
thereafter become) unproductive of income or speculative, and without any
liability for loss because of depreciation in value;
6. To continue to operate or participate in the operation of
any business enterprise or to dispose of any part or all of such business
enterprise;
7. To make or refrain from making any additional investment
in any partnership or other entity in which any trust created hereunder has
an interest to preserve the value of such interest or to maintain or change
such trust's proportionate interest therein or for any other reason;
8. To form one or more corporations, partnerships (general
or limited), joint ventures or associations with others, in any
jurisdiction; and to transfer any such property to such entity or entities;
9. To exercise all rights, powers and privileges with
respect to stocks or other securities whether in person or by general or
limited proxy, discretionary or otherwise, including voting rights,
warrants, options and conversion, subscription or other rights; to make any
necessary payments in connection therewith; and to sell any such rights or
to refrain from exercising any such rights by permitting them to expire;
10. To enter into voting trust agreements, alone or with
others, including the right to designate voting trustees (including any
Trustee hereunder) under any such agreement, for the maximum period
allowable under applicable state law, including extensions, even if such
period extends beyond the term of any trust hereunder;
11. To consent to, participate in or oppose any
reorganization, readjustment, recapitalization, foreclosure, consolidation,
merger, dissolution, liquidation, sale or purchase of assets, lease,
mortgage, contract or other plan, action or proceeding by any corporation
or other entity; to deposit securities or other property under, or become a
party to, any agreement or plan for any such action or proceeding or for
the protection of holders of such property; to subscribe to new securities
issued pursuant to any such action or proceeding; to delegate discretionary
powers to any reorganization, protective or similar committee; and to
exchange any property for any other property and to pay any assessments or
other expenses in connection with any of the foregoing;
12. To lease (including sublease), convey, transfer or
exchange upon any terms and conditions (including in the case of any lease
for a period exceeding the maximum terms specifically authorized by law)
any real property interest to any individual or entity; to receive in
payment or exchange therefor cash or other property; to renew or extend
leases; to amend, or modify leases; and to grant options to lease and
options to renew leases for any period, regardless of whether any
consideration is received in exchange therefor;
13. To manage, operate and develop any such property; to
vacate and abandon any real property interest; to demolish any buildings or
improvements thereon; to erect, repair, alter and improve buildings or
improvements thereon; to subdivide any such property; to dedicate any such
property for public use; to grant easements; to adjust boundaries; to
partition and to pay any sums of money necessary for equality of partition;
to perfect the title thereof; from time to time to expend either from
principal or income or from both such amounts for the foregoing or for the
development, alteration, improvement, maintenance or repair of any such
property or buildings or improvement thereon; to establish any reserves for
depreciation, obsolescence, amortization or other waste with respect to any
such property; and to insure any such property against any risks, hazards
and liabilities;
14. To mortgage any such property; to renew, extend, modify,
subordinate, reduce, pay off, satisfy or replace any mortgage, note or
bond, or any guarantee thereof; to waive or to forbear from suing or
enforcing any default in the performance of any covenant or condition of or
payment due under any mortgage, note or bond (including a guarantee
thereof); to foreclose any mortgage; to purchase any mortgaged property; to
take a deed in lieu of foreclosure and to pay consideration therefor; and
to continue mortgage investments after maturity, either with or without
renewal or extension;
15. To abandon, destroy or convey with or without
consideration any such property which they deem to be worthless, hazardous
or of insufficient value to warrant keeping or protecting and thereafter to
have no further responsibility with respect to such property; to abstain
from the payment of taxes, water rents, assessments, repairs, maintenance
and upkeep of any such property; or to permit any such property to be lost
by tax sale or other proceedings;
16. To drill, test, explore, mine, develop and otherwise
exploit any oil, gas, mineral or other interests of any kind in natural
resources (including interests commonly known as working interests in oil,
gas or any other mineral); to enter into pooling, unitization,
repressurization and any other type of agreement relating to the
development, operation and conservation of mineral properties, including an
agreement delegating discretionary and ministerial powers, in connection
therewith; and to rely upon or adopt any recommendation of the operator
thereof without any duty to make an independent investigation of any such
recommendation in connection with any such properties or interests;
17. To grant options, warranties, guaranties and
indemnities, for any term whether or not extending beyond the term fixed by
any law, at any time, whether or not consideration is received in exchange
therefor;
18. To borrow money from any person or entity, including any
Trustee hereunder, for any purpose, and give or not give security therefor;
to renew, modify or extend existing loans on similar or different terms;
and the lender shall have no obligation to inquire as to the application of
the sums loaned or as to the necessity or propriety of the loan;
19. To make any loans, either secured or unsecured, in such
amounts, upon such terms and to such persons (other than the Donor, but
including any beneficiary hereunder, the estate of any deceased beneficiary
hereunder or any estate or trust in which any beneficiary hereunder has an
interest), trusts, partnerships, corporations or other entities as they may
determine;
20. To adjust, compromise, settle, abandon, renew, release
or submit to arbitration any claim, controversy or litigation; to
institute, prosecute or defend any proceeding in connection therewith; and
to extend the time for payment of any such claim, with or without security;
21. To hold property in their names as Trustees or, to the
extent permitted by law, in their names without designation of any
fiduciary capacity or in the name of a nominee or unregistered or in such
form as will pass by delivery;
22. To make any payment, receive any money or other
property, take any action, and make, execute, deliver and receive any
contract, deed, instrument or other document which is advisable to exercise
any of the powers herein or to carry into effect any provision contained
herein;
23. To make any payment or distribution required or
authorized hereunder either in kind (at market value unless otherwise
directed herein) or cash, or a combination thereof; and to allocate any
property distributable hereunder, including an undivided interest therein,
to any trust, part, fund or share whether or not the same kind of property
or a fractional interest therein is allocated to other trusts, parts, funds
or shares, all without regard to the federal income tax basis of such
property;
24. To determine in any case where there is reasonable doubt
or uncertainty as to the applicable law or relevant facts, which receipts
of money or other property shall be credited to income or to principal, and
which disbursements, commissions, expenses, costs, fees, taxes and other
charges shall be charged to income or to principal; and to apportion any of
such receipts and disbursements between income and principal; provided,
however, that any individual Trustee hereunder who is entitled to receive
all of the income of any trust created hereunder or who shall have
disclaimed any interest in any trust created hereunder or in property
which, pursuant to a disclaimer, passes to any trust created hereunder or
who shall then have the legal obligation to support any person then
entitled to receive all of the income of any trust created hereunder shall
be disqualified from participating in all determinations under the
preceding provisions of this Paragraph;
25. To remove all or any part of the assets of, or the situs
of administration of, any trust hereunder from one jurisdiction to another
jurisdiction, either within or without the United States, at any time or
from time to time;
26. With respect to all or any part of the principal
(including a pecuniary amount) of any trust created hereunder for the
primary benefit of only one individual, other than any trust with an
inclusion ratio of zero for purposes of Chapter 13 of the Code, by signed
written instrument, in an effort to reduce overall transfer taxes, (a) to
give such beneficiary a general testamentary power of appointment within
the meaning of Section 2041 of the Code (including a power that requires
the consent of the Trustees other than a beneficiary of the affected trust)
over any part or all of the principal of such trust; (b) to eliminate such
power for all or any part of such principal as to which such power was
previously created; and (c) to release irrevocably the right to eliminate
such power; provided, however, that any Trustee who is also a beneficiary
of the affected trust or who disclaims any interest in such trust or in
property which passes to such trust pursuant to a disclaimer shall be
disqualified from participating in the exercise of such authority;
27. To divide any trust hereunder, by signed written
instrument or otherwise, into two or more separate trusts in such
fractional shares as shall be deemed advisable, whether for
generation-skipping tax purposes or otherwise (and any property distributed
in kind in satisfaction of such division shall be distributed at market
value); and to merge any trust hereunder with any one or more trusts
hereunder having identical terms and conditions for the same beneficiary or
beneficiaries;
28. In any case in which the Trustees are required or
permitted to divide any such property into shares, they are not required
physically to divide any of such property but may assign undivided
interests therein to the various shares;
29. To administer any two or more of the trusts herein
created or any part thereof as a single fund by holding the principal of
such trusts in one or more consolidated funds in which the separate trusts
shall have undivided interests;
30. After the termination of any trust hereunder, to
exercise all rights, powers and privileges herein conferred until the
complete distribution of the property held in such trust;
31. To act or refrain from acting in all respects as if
financially disinterested, regardless of the existence of any conflict of
interest between any individual Trustee hereunder and any trust or fund
hereunder, it being the Donor's intention to waive the rule of undivided
loyalty and any other conflict of interest rule which but for this
provision would be applicable to any such individual Trustee;
32. To employ and pay the compensation of any
accountants, custodians, experts, counsel, legal or investment, and other
agents (including, without limitation, for the purpose of preparing annual
or periodic accountings for any trust created hereunder), irrespective of
whether any person so employed shall be a Trustee hereunder and
irrespective of whether any firm or other entity so employed shall be one
in which a Trustee hereunder may be a partner, a member, or have an
ownership interest or with which a Trustee hereunder may have an employment
relationship; and, except as otherwise expressly provided herein,
such compensation may be paid without diminution of or charging the same
against the commissions or compensation, if any, of any Trustee hereunder;
and any Trustee who shall be a partner, a member, or have an ownership
interest in or an employment relationship with a firm or entity so employed
shall nevertheless be entitled to his or her share of the compensation paid
to such firm or entity; and to delegate discretionary and ministerial
powers to, and to act or to refrain from acting upon information or advice
furnished by, such accountants, custodians, experts, counsel or other
agents without liability for any act done or omission made in good faith in
reliance upon such information or advice, provided, however, that if a
corporation with trust powers shall be acting as a Trustee hereunder, no
payments shall be made to such corporation with trust powers for its
custodian or investment counsel services or the preparation of tax returns;
33. In connection with any such property distributable to a
minor and not otherwise directed to be held in trust hereunder (including
any discretionary distributions from any such trust), (i) to distribute all
or any portion thereof to such minor, or to a guardian of the property of
such minor wherever appointed without requiring ancillary guardianship, or
to any custodian under any Uniform Gifts to Minors Act, Uniform Transfers
to Minors Act or any similar statute of any jurisdiction, with power to
select any person or corporation with trust powers (including any fiduciary
hereunder) to be such custodian and with power to extend such custodianship
to age twenty-one (21), without any obligation to see to the use or
application thereof or to make inquiry with respect to any other resources
available to or for the use of such minor, the receipt of the individual to
whom any such distribution is so made being a complete discharge as to such
distribution; (ii) to set aside all or any portion thereof in a separate
fund, with title vested in such minor, and hold the same without bond,
security or any obligation to render periodic accountings until such minor
attains age twenty-one (21) or sooner dies, and at any time or from time to
time to distribute all or any portion of such property as provided in (i)
hereof or to pay or apply the same to or for the benefit of such minor for
any reason whatsoever (adding to the principal of the fund any income not
so distributed whenever convenient) and when such minor attains age
twenty-one (21) or sooner dies, to distribute the same to such minor or to
the legal representative of such minor's estate, as the case may be; and
(iii) to appoint one or more individuals or a series of individuals or a
corporation with trust powers to act as fiduciary of such fund, in
succession to or in addition to such fiduciary or any other fiduciary
appointed pursuant to the power herein granted (which appointment may be
revoked at any time prior to the qualification of the appointee by the then
acting fiduciary of such fund);
34. In connection with any such property distributable to a
person who, by reason of advanced age, illness or other physical or mental
incapacity is incapable of handling or disposing of his or her property, as
determined by two (2) qualified physicians including, if any, the physician
then primarily responsible for the medical care of such person, (i) to set
aside all or any portion thereof in a separate fund, with the title vested
in such person, and hold the same without bond, security or any obligation
to render periodic accountings until such person is no longer under such
disability, or sooner dies, and at any time or from time to time to apply
all or any portion of such property directly to the health, care, comfort,
maintenance, support or use of such person (adding to the principal of the
fund any income not so distributed whenever convenient), and when such
person dies, to distribute the same to the legal representative of such
person's estate; (ii) to distribute all or any portion of such property to
such person for any reason whatsoever or to (a) the guardian, committee or
other legal representative, wherever appointed, of such person, (b) any
individual with whom such person resides, or (c) any other individual
having the care and control of such person, the receipt of the individual
to whom any such distribution is so made being a complete discharge as to
such distribution; and (iii) to appoint one or more individuals or a series
of individuals or a corporation with trust powers to act as fiduciary of
such fund, in succession to or in addition to such fiduciary or any other
fiduciary appointed pursuant to the power herein granted (which appointment
may be revoked at any time prior to the qualification of the appointee by
the then acting fiduciary of such fund);
35. Notwithstanding any provision of this Agreement to
the contrary, if any trust created hereunder holds stock in an "S
Corporation," as defined in Section 1361 of the Code (the "S Trust"), to
(i) distribute to the then eligible income beneficiary or beneficiaries
thereof such portion or all of the net income of the S Trust as shall be
necessary to qualify such trust as a "Qualified Subchapter S Trust"
("QSST") or "Electing Small Business Trust" ("ESBT"), as the case may be,
or (ii) hold any such stock in a separate trust to be administered in the
same manner as the S Trust, subject however to the provisions of clause (i)
of this Paragraph; and, in addition, to perform all acts necessary to
qualify any such S Trust or separate trust created under this Paragraph as
a QSST or ESBT, as the case may be, including, without limitation, (x)
obtaining beneficiary approval and election under Section 1361(d) or
1361(e) of the Code to qualify any such trust as a QSST or ESBT, as the
case may be; and (y) modifying, reforming or revising any such trust or any
other provision of this Agreement, and releasing any discretionary powers
with respect to any such trust;
36. To consolidate and hold as one trust any trust or
trusts created or to be created hereunder with any other trust created or
to be created under any other instrument with identical dispositive
provisions, whether to achieve economies of administration, for tax reasons
or for any other reason;
37. In addition to the methods provided by law, each
fiduciary hereunder is authorized at any time and from time to time by
acknowledged instrument filed with such fiduciary's co-fiduciary or
co-fiduciaries to release any power, authority or discretion conferred upon
such fiduciary by this instrument or by law, whether discretionary or
ministerial, for such period of time as shall be specified in such
instrument, and during the effectiveness of such release, such power,
authority or discretion shall be exercised solely by the remaining
qualified co-fiduciary or co-fiduciaries; and
38. Generally, to exercise all such rights and powers, do
all such acts, and enter into all such agreements, as persons owning
similar property in their own right might lawfully exercise, do or enter
into.
B. There shall be no apportionment of accrued income and
undistributed income on hand to any beneficiary whose interest therein
shall terminate by death or otherwise prior to the time when such accrued
income is due and payable to the Trustees or prior to the time when such
undistributed income is actually distributed to such beneficiary, as the
case may be. The whole of such accrued and undistributed income on hand
shall, after the deduction therefrom of any proper charges or advances
against the same, be paid to the next income beneficiary, if any, of the
trust which produced such accrued and undistributed income or, if there
shall be no such income beneficiary, then to the person or persons entitled
to the principal of such trust.
C. No disposition, charge or encumbrance on the income or
principal of any trust, or any part thereof, by any beneficiary hereunder
by way of anticipation shall be valid or in any way binding upon the
Trustees, and no beneficiary shall have the right to assign, transfer,
encumber or otherwise dispose of such income or principal, or any part
thereof, until the same shall be paid to such beneficiary by the Trustees,
and no income or principal or any part thereof shall be liable to any claim
of any creditor of any such beneficiary.
D. In any judicial proceeding relating to this Agreement or any
trust created hereunder, if a party to the proceeding has the same interest
as a person under a disability, it shall not be necessary to serve the
person under the disability.
E. The right of any beneficiary to any payment or distribution
of income or principal shall in every case be subject to any charge or
deduction which the Trustees may make against such payment or distribution
under the authority granted to the Trustees by law or any provision hereof.
F. No person dealing with any Trustee hereunder shall be bound
to see to the application or disposition of any property transferred to
such Trustee, or to inquire into the authority for or propriety of any
action by such Trustee.
ARTICLE IV
Survivorship
In the event that any beneficiary under this Agreement and any
other person upon whose death such beneficiary shall become entitled to
receive either income or principal hereunder shall die in a common accident
or disaster or under such circumstances that it is difficult or
impracticable to determine who survived the other, then for the purposes of
this Agreement such beneficiary shall be deemed to have predeceased the
Donor or such other person, as the case may be.
ARTICLE V
Right to Revoke or Amend
A. This Agreement and the trusts hereby created shall be
irrevocable and shall not be subject to modification or amendment, except
to the limited extent provided in Subdivision B of this Article.
B. It is intended that the Donor shall not have retained any
interest in or power with respect to any portion of the property
transferred in trust hereunder which interest or power would cause such
property to be included in the Donor's gross estate for federal estate tax
purposes. This Agreement shall be construed in accordance with the
foregoing statement of intent and, subject thereto, it may be amended for
the following limited purposes: (i) to clarify the meaning of any provision
so as to avoid the necessity of instructions by a court; (ii) to alter or
add to the administrative powers of the Trustees for the better
accomplishment of the trust purposes; and (iii) to conform any provision to
laws or regulations (including any provision of the Code or any regulations
promulgated thereunder) affecting the federal or state transfer tax
consequences of any trust hereunder. All amendments of this Agreement shall
be effected by written instrument signed and acknowledged by all of the
Trustees.
ARTICLE VI
Governing Law
This Agreement shall be construed, regulated and governed by,
and all questions pertaining to the validity, construction, effect and
administration of this Agreement and the trusts created hereunder shall be
determined by, the laws of the State of New York.
ARTICLE VII
Additions to Trust
A. The Donor or any other person may add property to any trust
created hereunder (i) by lifetime transfers of additional property; (ii) by
Will; (iii) by naming the Trustees as beneficiaries of one or more life
insurance policies; or (iv) by any other means, provided, however, that the
Trustees consent to the addition of such property. The Trustees may in
their absolute discretion decline to accept all or any portion of such
property. If the Trustees agree to accept any of such property, they shall
not be required to retain it in the form received. Upon the death of the
Donor, any property directed to be disposed of in accordance with the
provisions of this Agreement, by the Will of the Donor or otherwise, shall
be disposed of in accordance with the provisions of Article I hereof,
unless specifically directed otherwise in such disposing instrument.
B. 1. From time to time or at any time, as to any addition made
or deemed to be made by an individual by lifetime transfer to any trust
hereunder (which addition is a gift within the meaning of Chapter 12 of the
Code), the donor of such addition may execute an instrument of transfer
that specifies that one or more beneficiaries of such trust designated in
the instrument of transfer may, at any time before the expiration of thirty
(30) days after the date upon which the addition was made (the "Demand
Period"), withdraw an amount not exceeding the value of such portion or all
of the addition from such trust (valued as of the date of such addition) as
is specified in the instrument of transfer. The term "instrument of
transfer" refers to a written instrument delivered to the Trustees with
respect to the addition. If the donor of any addition made or deemed to be
made to any trust hereunder shall not deliver to the Trustees an instrument
of transfer within ten (10) days after the date of such addition, each of
the Donor's issue living at the time of such addition shall have the right
to withdraw from the principal of such trust for the Demand Period an
amount not exceeding the lesser of (i) the value of such addition (as of
the date of such addition) divided by the number of the Donor's issue
living at the time of such addition and (ii) (a) Ten Thousand Dollars
($10,000) (or such greater or lesser amount excludible from taxable gifts
under Section 2503(b) of the Code) if the donor of such addition is not
then married or Twenty Thousand Dollars ($20,000) (or such greater or
lesser amount excludible from taxable gifts under Section 2503(b) of the
Code, assuming that such donor and such donor's spouse signify their
consent to the application of Section 2513(a)(1) to gifts made by either of
them during the year in which such addition is made) if such donor is then
married, reduced by (b) the aggregate value of withdrawal rights conferred
under this Paragraph upon such issue of the Donor by reason of additions to
such trust made previously during such calendar year by such donor and such
donor's spouse.
2. Upon the expiration of the Demand Period applicable to
any such addition as to which a beneficiary has been conferred a right of
withdrawal pursuant to Paragraph 1 of this Subdivision, any unexercised
demand rights of a beneficiary with respect to such addition shall lapse to
the extent of (i) the greater of Five Thousand Dollars ($5,000) or five
percent (5%) of the then value of the principal of such trust (or such
greater or lesser amount the lapse of which shall not constitute the
release of a power of appointment under Section 2514(e) of the Code) (the
"annual lapsing amount"), less (ii) an amount equal to the aggregate value
of any withdrawal rights of such beneficiary conferred pursuant to
Paragraph 1 of this Subdivision which have previously lapsed in the
calendar year of such expiration and, to the extent any unexercised
withdrawal rights as to which the Demand Period has expired shall not lapse
in any calendar year pursuant to this Paragraph, such unexercised
withdrawal rights shall continue and shall lapse, in the order arising, on
the first day of each succeeding calendar year to the extent of the annual
lapsing amount determined using the value of the principal of such trust on
such date, until such withdrawal rights shall have lapsed in their
entirety. For purposes of this Subdivision, the lapse of a right of
withdrawal shall not be considered an addition of property to any trust.
3. Each right of withdrawal with respect to an addition
shall be exercisable only by written notice from the designated beneficiary
to the Trustees prior to the expiration of the Demand Period applicable to
such addition, specifying the amount he or she wishes to withdraw, and the
amount demanded shall be paid by the Trustees promptly upon receipt of that
notice. Until the Demand Period applicable to any addition shall have
expired (or until the earlier waiver by all designated beneficiaries of the
requirement imposed by this sentence), the Trustees shall retain sufficient
principal assets in such trust to satisfy all outstanding withdrawal rights
with respect to such addition. For purposes of this Paragraph, the property
described in Schedule A shall be deemed to be an addition.
C. Upon the death of the Donor, all unexercised withdrawal
rights of a beneficiary under Subdivision B of this Article shall continue
in effect with respect to the trust, if any, hereunder as to which such
beneficiary is then entitled or then eligible in the discretion of the
Trustees to receive income or principal and shall thereafter lapse as
provided with respect to continued withdrawal rights in Paragraph 2 of
Subdivision B of this Article.
D. Anything in this Agreement to the contrary notwithstanding,
(i) any beneficiary is hereby authorized to release in whole or in part and
for any period of time such beneficiary's withdrawal rights or future
withdrawal rights under this Article and (ii) the Trustees are authorized
at any time or from time to time in their absolute discretion by an
instrument in writing to cancel any or all then existing withdrawal rights
conferred pursuant to Subdivision B of this Article as to which the Demand
Period has expired, in which event such beneficiary shall thereafter be
deemed to be deceased for all purposes of this Article with respect to such
addition or additions.
E. Each designated beneficiary shall have the withdrawal rights
provided in this Article (including the right to release any such
withdrawal right) and the right to waive any requirement under this Article
irrespective of such beneficiary's legal disability. During such
beneficiary's legal disability, the individual or individuals designated
under Subdivision F of this Article to receive notice on behalf of such
beneficiary shall have the right to make such withdrawal, release any such
withdrawal right or waive any requirement under this Article on behalf of
such beneficiary.
F. The Trustees or the donor of any such addition shall give
prompt notice of the withdrawal rights conferred by this Article and of any
additions, and their amount, to each designated beneficiary. If any such
beneficiary shall be a minor at the time such withdrawal rights arise, such
notice shall be given to a parent of such beneficiary (other than the
person making the addition) unless, at the time of such notice, the
Trustees, in their absolute discretion, designate a different individual or
individuals (other than the person making the addition) to receive such
notice and to exercise such withdrawal rights in a fiduciary capacity on
behalf of such beneficiary, such other designation to be by written
instrument. If any such beneficiary shall be under any other legal
disability at the time such withdrawal rights arise, the Trustees shall
give notice to such individual or individuals (other than the person making
the addition) as the Trustees designate in their absolute discretion to
receive such notice and to exercise such withdrawal rights in a fiduciary
capacity on behalf of such beneficiary, such designation to be by written
instrument. Any such designation under this Subdivision may be made for
such duration as the Trustees in their absolute discretion determine.
Anything in this Subdivision to the contrary notwithstanding, the Trustees
shall not be liable for the failure to give such notice if the Trustees
have not been expressly notified of any such addition.
G. Any commission payable to the Trustees as a result of the
exercise of any right of withdrawal hereunder shall be charged entirely to
trust property other than the property distributed in satisfaction of such
demand.
ARTICLE VIII
Exculpation
No individual Trustee shall be liable for any act or omission
in administering any trust created hereunder, unless such act or omission
is the result of such Trustee's actual fraud, gross negligence or willful
misconduct. Notwithstanding the preceding sentence, if any individual
Trustee becomes liable for any such act or omission that is not the result
of such Trustee's own actual fraud, gross negligence or willful misconduct,
such Trustee shall be entitled to indemnity out of the property of such
trust. No Trustee hereunder shall be responsible for any act or omission of
any other Trustee.
ARTICLE IX
Assignment of Reversionary Rights
The Donor hereby assigns all reversionary rights which the
Donor may now or hereafter have in any trust hereunder to the Donor's issue
living at the time of the Donor's execution of this Agreement.
ARTICLE X
Definitions
A. Wherever used in this Agreement, the following definitions
shall apply: (1) the word "issue" shall include descendants of whatever
degree; (2) the words "child", "children", "grandchild", "grandchildren"
and "issue" shall include persons legally adopted prior to reaching age six
(6) and their issue; (3) the word "minor" shall mean any person who has not
reached age twenty-one (21); (4) the word "Code" shall mean the Internal
Revenue Code of 1986, as amended from time to time, and shall include
corresponding provisions of all subsequently enacted federal tax laws; (5)
the word "trust" shall include any separate fund created by any fiduciary
hereunder pursuant to the authority contained herein; and (6) the term
"Donor's spouse" shall refer to the individual who shall be married to and
living with the Donor at the time of the Donor's execution of this
Agreement or other applicable time as the context may require.
B. The terms herein shall be construed in the masculine,
feminine or neuter, and in the singular or plural, whichever construction
is consistent with the then prevailing facts.
C. In the event that a distribution hereunder is to be made to
the issue per stirpes of any person, the initial division into shares shall
be made at the level of such person's children, whether or not any child of
such person is then living, and within each share as to younger generations
the same principle shall be applied.
D. This Agreement shall be known as the XXXXXX X.
XXXXX 1998 STOCK OPTION TRUST.
E. Any reference herein to members of an individual's family
shall mean the issue of such individual's grandparents and the
spouses of such issue.
ARTICLE XI
Acceptance of Trusteeship
XXXXXX X. XXXXX and XXXXXXX X. XXXXX do hereby acknowledge
receipt of the property listed on Schedule A hereto, accept the trusts
created by this Agreement and agree to act as Trustee in accordance with
the terms and provisions hereof.
This Agreement and the trusts created hereunder shall become
effective upon execution of this Agreement by the Donor and any one
Trustee.
The undersigned parties have executed this Agreement as of the
date first above written.
_______________________________
XXXXXX X. XXXXX, Donor
_______________________________
XXXXXX X. XXXXX, Trustee
_______________________________
XXXXXXX X. XXXXX, Trustee
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK)
On this 23rd day of January, 1998, before me personally appeared
XXXXXX X. XXXXX, to me known and known to me to be the person described
in and who executed the foregoing instrument, and he duly acknowledged
to me that he executed the same.
_______________________________
Notary Public
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On this 23rd day of January, 1998, before me personally appeared
XXXXXX X. XXXXX, to me known and known to me to be the person described
in and who executed the foregoing instrument, and she duly acknowledged
to me that she executed the same.
_______________________________
Notary Public
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK)
On this 5th day of February, 1998, before me personally appeared
XXXXXXX X. XXXXX, to me known and known to me to be the person described
in and who executed the foregoing instrument, and he duly acknowledged
to me that he executed the same.
_______________________________
Notary Public
SCHEDULE A
One Dollar ($1.00)
