EFTA00176706.pdf

EFTA00176706 TIMOTHY M. BURGESS United States Attorney FRANK I. RUSSO JAMES A. GOEKE Assistant U.S. Attorneys Federal Building & U.S. Courthouse 222 West Seventh Avenue, Room 253, #9 Anchorage, Alaska 99513-7567 (907) 271-5071 SHERRI A. STEPHAN Trial Attorney, Criminal Division Child Exploitation and Obscenity Section United States Department of Justice 1400 New York Ave, NW, Sixth Floor Washington, D.C. 20005 (202) 353-4438 Attorneys for Plaintiff IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA UNITED STATES OF AMERICA, ) No. A04-003-01 CR (JWS) ) Plaintiff, ) ) NOTICE TO COURT OF vs. ) RESTITUTION PLAN AND ) APPROVAL OF TRUST JOSEF F. BOEHM, ) DOCUMENT a/k/a "Joe Millionaire", ) ) Defendant. ) EFTA00176707  COMES NOW the United States of America, by and through counsel, and hereby provides the Court with notice of the restitution plan in the above captioned case. In addition, attached hereto as Exhibit 1 is the Trust document for the Court's review and approval.' Title 18, U.S.C. §§ 3663A, mandates restitution for crimes of violence and cases in which there are identifiable victims. Such restitution includes, in relevant part: (2) in the case of an offense resulting in bodily injury to a victim— (A) pay an amount equal to the cost of necessary medical and related professional services and devices relating to physical, psychiatric, and psychological care, including nonmedical care and treatment rendered in accordance with a method of healing recognized by the law of the place of treatment; (B) pay an amount equal to the cost of necessary physical and occupational therapy and rehabilitation; and (C) reimburse the victim for income lost by such victim as a result of such offense; (4) in any case, reimburse the victim for lost income and necessary child care, transportation, and other expenses incurred during participation in the investigation or prosecution of the offense or attendance at proceedings related to the offense. The document is marked "draft" because we are awaiting final approval from the Trustee, which is expected before the sentencing hearing on April 27, 2005. 2 EFTA00176708 18 U.S.C. § 3663A(b). Such restitution must be paid to the victims or their guardians. 18 U.S.C. § 3663A(a)(2). Title 18, U.S.C. § 3664 sets forth the procedure for issuance of restitution. Generally, such information pertaining to restitution is provided to the probation officer and included in the presentence report. 18 U.S.C. § 3664(d). However, in a case where the victims losses are not readily ascertainable by the date of sentencing, the attorney for the Government shall inform the court, and the court shall set a date for the final determination of the victims losses not to exceed 90 days from sentencing. 18 U.S.C. § 3664(d)(5). The United States submits that this is such a case where victims losses are not readily ascertainable based on the nature of the conduct at issue. Within the plea agreement in the instant case, the parties agreed that any restitution should be paid out from the $1.2 million dollar corpus of the trust fund the defendant has agreed to establish. aeg Plea Agreement, p. 10. Accordingly, the United States has arranged for the payment of $1.2 million dollars into an escrow account with First National Bank Alaska as the escrow agent. The United States proposes, in the order attached hereto, that the Court instruct the United States to provide notice to all victims and their guardians of their ability to seek 3 EFTA00176709 restitution for any injury they sustained , as set forth above. Within 30 days of the entry of judgment in this case, the United States will submit such requests for restitution to the Court in a motion under seal, along with supporting documentation for approval, with a proposed order directing the escrow agent to pay such expenses if the Court finds that such expenses fall within the restitution statute. Because any restitution is deducted from the agreed $1.2 million, Boehm, through his attorney Kevin Fitzgerald, has waived notice of such motion, which may be filed with the Court ex parte under seal. After 30 days from judgment, the money from the escrow will be transferred to the trust fund, which will then become operational. The Trust Fund provides for future counseling, treatment, and educational and professional expenses for the victims in pro rata amounts. The Trust Document was drafted under the supervision of attorney Greg Taylor, of the law firm of Jermain, Dunnagan & Owens. Mr. Taylor and his law firm donated their time in view of the charitable nature of the Trust Fund. The Trustee will be First National Bank Alaska, which will be compensated out of the corpus of the trust for its services under its current fee schedule, attached to the Trust Document as Exhibit F. First National Bank Alaska has agreed to waive certain closing costs 4 EFTA00176710 associated with the establishment of the trust, in light of the charitable nature of the trust. Three "Trust Protectors" have agreed to assist the Trustee with administration of the trust by providing guidance and serving as an appeal board. These Trust Protectors are Detective Steven Boltz, of the Anchorage Police Department, Susan Sullivan, the director of Victims for Justice, and Susan Brown, the Executive Director of the Alaska Violent Crimes Compensation Board. These individuals have also agreed to donate their time in view of the charitable nature of the Trust. Generally, the Trust Fund allows for disbursements to 12 victims (whose names will be filed under seal), for qualified purposes, until the victims attain the age of 26 years old. After such time, the remaining pro rata share of the victims' allotment will be donated to a charity chosen by a majority of Trust Protectors, and approved by the Court as consistent with the intent of the Plea Agreement (drug treatment for children in Alaska). 5 EFTA00176711  Accordingly, the United States asks that the Court approve the proposed restitution plan and anticipated trust document, in the order annexed hereto. RESPECTFULLY SUBMITTED this nod day of April, 2005, in Anchorage, Alaska. TIMOTHY M. BURGESS United States Attorney FRANK 1 RUSSO Assistant U.S. Attorney CERTIFICATE OF SERVICE I declare under penalty of perjury that a true and correct copy of the foregoing was sent to the following counsel of record on, September 18, 2007, via: (X) Fax Philip Paul Weidner 330 L. Street, Suite 200 Anchorage, Alaska 99501 Fax: (907) 278-6571 Kevin T. Fitzgerald Ingaldson, Maassen & Fitzgerald, PC 813 West 3rd Ave. Anchorage, AK 99501 Fax: (907) 258-8751 Rex Lamont Butler Law Offices of Rex Lamont Butler 745 W. 4th Ave., Suite 300 Anchorage, AK 99501 fax: (907) 276-3306 Executed at Anchorage, Alaska, on September 18, 2007 Office of the U.S. Attorney 6 EFTA00176712  IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA UNITED STATES OF AMERICA, ) No. A04-003-01 CR (JWS) ) Plaintiff, ) ) vs. ) ORDER ) JOSEF. F. BOEHM, ) ) Defendant. ) ) Having duly considered the government's motion setting forth the restitution plan in the above captioned case, the COURT hereby APPROVES such plan. IT IS ORDERED that the United States Attorney's Office make diligent efforts to provide notice to all known victims in the above-captioned case, by certified mail, Federal Express, or hand delivery. In such notice, the United States shall provide notice of the ability of such victims or their guardians to seek restitution, as well as include a copy of the final Trust Agreement. The United States shall submit any restitution requests that fall within 18 U.S.C. § 3663A, together with supporting documentation, to the Court in an ex parte motion filed under seal. Following the last such submission, or after 30 days, the United States EFTA00176713 shall notify the escrow agent to transfer the funds in the escrow account into the Trust Fund, and the United States shall notify the beneficiaries of the Trust Fund of their ability to seek disbursements. It is further approved that the TRUSTEE is entitled to reasonable compensation for its services in administering the Trust Fund, as set forth in its current fee schedule. IT IS SO ORDERED. Dated: UNITED STATES DISTRICT JUDGE 2 EFTA00176714 TIMOTHY M. BURGESS United States Attorney FRANK RUSSO JAMES A. GOEKE Assistant U.S. Attorneys Federal Building & U.S. Courthouse 222 West Seventh Avenue, Room 253, #9 Anchorage, Alaska 99513-7567 (907) 271-5071 SHERRI A. STEPHAN Trial Attorney, Criminal Division Child Exploitation and Obscenity Section United States Department of Justice 1400 New York Ave, NW, Sixth Floor Washington, D.C. 20005 (202) 353-4438 Attorneys for Plaintiff IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA UNITED STATES OF AMERICA, ) No. A04-003-01 CR (JWS) ) Plaintiff, ) ) NOTICE OF vs. ) BENEFICIARIES ) JOSEF F. BOEHM, ) Filed Ex Parte and Under Seal a/k/a "Joe Millionaire", ) ) Defendant. ) EFTA00176715  COMES NOW the United States of America, by and through counsel, and hereby provides the Court with a list of the beneficiaries of the trust fund established in the above-captioned case, which is attached hereto as Exhibit A. This filing is made ex parte because Boehm, in his plea agreement, waived any rights he had pertaining to the selection of beneficiaries and the disbursement of funds to such beneficiaries. This filing is made under seal because Exhibit A contains the names and identifying information of juvenile crime victims. Exhibit A will be provided to First National Bank Alaska and the three trust protectors: Susan Sullivan, of Victims for Justice; Susan Brown, from the Alaska Violent Crimes Compensation Board, and Detective Steven Boltz, from the Anchorage Police Department. RESPECTFULLY SUBMITTED this 14' day of June, 2005, in Anchorage, Alaska. TIMOTHY M. BURGESS United States Attorney FRANK,. RUSSO Assistant U.S. Attorney 2 EFTA00176716  JOSEF FRANZ BOEHM IRREVOCABLE TRUST FUND Introduction This TRUST AGREEMENT is made and entered into effective this day of , 2005, at Anchorage, Alaska, between Josef Franz Boehm (hereinafter "BOEHM" or "TRUSTOR") and the First National Bank Alaska, ("TRUSTEE"). This Trust Agreement is established to satisfy the terms of the Plea Agreement and Judgment entered in the United States District Court for the District of Alaska under Case No. A04-003-01 CR (JWS) (a copy of the Plea Agreement is attached hereto as Exhibit A and incorporated by reference herein; the Judgment will be filed as a matter of public record in Case No. A04-003-01 CR (JWS) and is incorporated by reference herein); that is, as restitution to the victims of BOEHM and his co-defendants' criminal conduct as charged in the Fourth Superseding Indictment (a copy of which are attached hereto as Exhibit B and incorporated by reference herein). This Trust Agreement shall be construed in a manner consistent with the terms and purposes of the Plea Agreement and Judgment, and pursuant to Alaska Statutes Sections 13.126.125 - 13.126.310. The TRUSTEE shall receive, hold, administer, invest, reinvest and distribute, in accordance with the provisions of this Trust Agreement, all funds paid to the EFTA00176717 TRUSTEE by TRUSTOR and all income earned on said funds (hereafter the "Trust Fund") as provided by the terms of this Trust Agreement. The Trust Protectors Three (3) Trust Protectors (hereinafter the "TRUST PROTECTORS") shall be designated by the United States Attorney's Office for the District of Alaska, the names of which will be filed with the United States District Court for the District of Alaska in Case Number A04-003 CR (JWS). The TRUST PROTECTORS shall have responsibility for: (1) clarifying general policy and guidelines for distributions consistent with the purposes of the Plea Agreement and this Trust Agreement; (2) advising and providing guidance for the TRUSTEE; and (3) acting as an Appellate Board to hear appeals by beneficiaries regarding decisions of the TRUSTEE. Such responsibilities are not delegable to, transferable to, or exercisable by any other officials, other than successors appointed to replace designated TRUST PROTECTORS by the United States Attorney's Office, District of Alaska. 2 EFTA00176718  ARTICLE I APPLICATION OF FUND CORPUS AND INCOME AND POWER OF APPOINTMENT A. Distribution of the Trust Fund. The TRUSTEE may distribute all or part of the principal or income of the Trust Fund only for a qualified purpose, as set forth below, on behalf of the twelve (12) beneficiaries of the Trust Fund, whose names and identifying information will be filed under seal in Case No. A04-003 CR (JWS), and provided to the TRUSTEE and TRUST PROTECTORS. To the extent that any such beneficiary has not attained the age of 18, information pertaining to the guardian of such beneficiary is provided therewith. To the extent necessary herein, the beneficiaries of the Trust Fund will be identified by their corresponding number listed in the identifying document filed under seal in Case No. A04-003 CR (JWS) pursuant to this Trust Agreement. The TRUSTEE has an irrevocable power to direct distributions of all Trust Fund Principal and Income, pursuant to the guidelines established in this Trust Agreement and the Plea Agreement between BOEHM and the United States, or as directed by the TRUST PROTECTORS. The purposes of this Trust, as set forth 3 EFTA00176719 in the Plea Agreement and as expanded upon below, are to provide the beneficiaries numbered one (1) through eleven (11) with the following: 1. Drug treatment through a licensed / certified / accredited facility or practitioner; 2. Counseling through a licensed / certified / accredited facility or practitioner; 3. Treatment for physical injury through a licensed / certified / accredited facility or practitioner arising from the beneficiaries' involvement in the activity outlined in the Fourth Superseding Indictment. Payment for drug treatment or counseling that takes place outside Alaska, but within the United States, may include reasonable transportation expenses for the beneficiary and one guardian if the beneficiary is under the age of 18 years. In addition, this Trust provides for future educational or professional expenses for beneficiaries one (1) through eleven (11) and for beneficiary twelve (12). Such expenses include education or training from a recognized / licensed / certified / accredited institution, the goal of which is to lead to a trade or employment in a recognized profession. In addition, expenses for room and 4 EFTA00176720 reasonable living expenses are included in such expenses provided that: a beneficiary is maintaining a passing grade (a 2.0 grade point, or C average) in a course of study or training requiring at least twelve (12) hours per week, calculated based on the number of in-class hours spent in training or class. What constitutes other appropriate future educational or professional expenses shall be in the discretion of the TRUSTEE, under the guidance established by the TRUST PROTECTORS, and subject to the appeal procedures outlined below. Such other appropriate future educational or professional expenses may include books, course or training materials, and reasonable transportation costs. Such expenses shall not include the purchase of assets (such as motor vehicles) used for transportation purposes. The Trustee shall also make any other distribution to any party, whether or not a beneficiary of the Trust Fund, specifically ordered by the United States District Court for the District of Alaska under Case No. A04-003-01 CR (JWS) for the purposes of providing restitution in Case No. A04-003-01 CR (JWS). Any such distribution ordered by the United States District Court shall be deducted in equal amounts from the proportional shares of every beneficiary then eligible to receive distributions from the Trust Fund. 5 EFTA00176721 B. Apportionment of Trust Estate. The TRUSTEE shall hold the trust estate undivided and pay to or apply for the benefit of the beneficiaries all or so much of the net income or principal of the trust estate as the TRUSTEE, in the TRUSTEE's and TRUST PROTECTORS' discretion, deems advisable for the purposes set forth herein. To the extent possible, the TRUSTEE shall apportion the funds equally amongst the beneficiaries. Each beneficiary is limited to an equal share of one twelfth of the Trust Fund and any subsequent income, with such shares to be determined at the time the Trust Fund is funded. Additionally, to the extent possible, the TRUSTEE should pay any distributions directly to the provider of services (health providers, educational providers, or professional service providers) rather than directly to the beneficiaries. Other than such providers of services, the beneficiaries cannot assign or make available disbursements from the Trust to other third parties. C. Expenses Incurred Prior to the Creation of the Trust Fund. Expenses incurred by the beneficiaries or their guardians prior to the date of this agreement are "qualified purposes", as set forth above, and eligible for reimbursement provided that such expenses meet the requirements set forth in Article 1, Section A, points 1 - 3 above, and occurred after the beneficiary's 6 EFTA00176722 involvement in the crimes charged in the Fourth Superseding Indictment. The earliest date of each beneficiary's involvement is set forth in the separate document containing identification information of the beneficiaries, filed under seal in Case No. A04-003 CR (JWS), and are made available to the TRUSTEE and TRUST PROTECTORS. All such expenses that incurred prior to the date of this Agreement shall be deducted from the invested escrow account prior to the establishment of the Trust corpus, and before the proportional share of each beneficiary is determined. Accordingly, claims for pre-existing expenses must be submitted to the Court thirty (30) days from the date the Judgment as entered in the United States District Court for the District of Alaska under Case No. A04- 003-01 CR (JWS) against Josef Franz Boehm. Such expenses shall be paid by the invested escrow agent pursuant to court order. Furthermore, any restitution payable to any person or entity, whether or not a beneficiary of this Agreement, ordered by the United States District Court for the District of Alaska as part of the Judgment in Case No. A04-003-01 CR (JWS) pursuant to 18 U.S.C. §§ 1593, 3556, 3663, and 3663A, or any other provision of Title 18 or Title 21, shall also be deducted from the invested escrow account and paid the invested escrow agent pursuant to court order before the trust corpus is established. 7 EFTA00176723  Following thirty (30) days from Judgment in Case No. A04-003-01 CR (JWS) against Josef Franz Boehm the funds in the invested escrow account shall be transferred to the Trust Fund upon written direction from the United States Attorney's Office, District of Alaska and an attorney for Josef Franz Boehm as contemplated by the invested escrow instructions, attached hereto as Exhibit D. The Trust Fund and provisions herein shall become operable at such time such transfer is made. D. rower to Direct Distributions Not Delegable. The power to direct distributions provided herein to the TRUSTEE and TRUST PROTECTORS is not delegable to, transferable to, or exercisable by, any other officials, other than successors appointed to replace the designated TRUSTEE. Thus, the only distributions authorized under this Trust, other than to the TRUSTEE for fees, costs, expenses and taxes, if any, as set forth below, shall be pursuant to the terms of this Trust Agreement and to satisfy the purposes of the Plea Agreement. E. Documentation Required for Distributions. The TRUSTEE and/or the TRUST PROTECTORS have a duty and authority to inquire into or about the uses or purposes for requested distributions 8 EFTA00176724 of the Trust Fund by the beneficiaries and/or their guardians. The TRUSTEE and/or the TRUST PROTECTORS shall request documentation from each beneficiary or guardian requesting a distribution from the Trust Fund to ensure that such distribution is made in accordance with the purposes of this Trust Agreement and the Plea Agreement. Such documentation shall include, but is not limited to, the following: (1) The name, date of birth, and social security number of the Victim seeking the distribution; (2) Government issued picture identification documents establishing the Victim's identity; (3) Documentation that bears a date by month, day, and year that such expense was or will be incurred; (4) The purpose of the expenditure; (5) Specifies in words and/or numeral the amount of money sought to be disbursed; (6) A supporting statement of expenses from the entity to be paid (i.e., the doctor, counselor, treatment center, hospital, trade 9 EFTA00176725  school, college, university, or other provider) approved by the TRUSTEE or TRUST PROTECTORS; Such documentation required herein shall be addressed to the TRUSTEE at the following address: First National Bank Alaska Trust Department P.O. Box 100720 Anchorage, AK 99510 Any documentation so submitted must reference the "JOSEF FRANZ BOEHM IRREVOCABLE TRUST FUND". Upon receipt of such a request from a beneficiary or the guardian of a beneficary, the TRUSTEE and/or TRUST PROTECTORS, in their sole discretion, may request additional documentation to justify the distribution. The TRUSTEE has sole discretion, subject to the appeal rights discussed below, to approve, deny, or modify the request for the distribution so that it is consistent with the purpose of this Trust Agreement and the Plea Agreement. The TRUSTEE may consult with a member or members of the TRUST PROTECTORS before making any such determination. The TRUSTEE may make a prepayment of qualified 10 EFTA00176726 expenses (as set forth in Article I(A)), upon request of a beneficiary or guardian, upon the provider's statement of need. F. Appeal of Denied Distributions. In the event that a beneficiary is dissatisfied by the denial of a request to the TRUSTEE for payment of services requested by the beneficiary, the beneficiary may appeal, within thirty (30) days of the denial. Any such appeal shall be in writing and shall set forth specific reasons for beneficiary's belief that the requested payment should be allowed in accordance with the terms of this Trust Fund. The appeal shall be addressed to the TRUSTEE at the address set forth above (First National Bank Alaska / Trust Department / P.O. Box 100720 / Anchorage, AK 99510) and must reference the "JOSEF FRANZ BOEHM IRREVOCABLE TRUST FUND". The TRUSTEE shall review the appeal and forward the appeal to the TRUST PROTECTORS, who, by majority vote, shall determine all such appeal requests and provide direction and instruction to the TRUSTEE within a reasonable time after receiving any such appeal. Should the TRUST PROTECTORS decide that the requested distribution should be paid, the TRUST PROTECTORS shall complete a document that is substantially in the form of Exhibit C, annexed hereto, which must be signed by a majority of the 11 EFTA00176727 TRUST PROTECTORS. The TRUSTEE will then pay the requested distribution as directed by the TRUST PROTECTORS. G. Age Limits and Donations of Trust Fund Assets to Charity. Amounts of the Trust Fund remaining following any distributions pursuant to written directions shall continue to be held by the TRUSTEE and applied and distributed pursuant to future written directions. A beneficiary may seek distribution from the Trust Fund for qualified expenses incurred until such beneficiary attains the age of 26 years old. After such beneficiary attains the age of 26 years, any expenses incurred will cease to be qualified expenses. Thirty (30) days after such beneficiary attains the age of 26 years, such beneficiary's proportional remaining available share and distribution shall be held in a separate holding account until the end of the fiscal year of the Trust Fund. At such time, the TRUST PROTECTORS shall donate such funds to an appropriate charity chosen by a majority vote of the TRUST PROTECTORS and approved by the United States District Court for the District of Alaska under Case No. A04-003-01 CR (JWS) for any uses or purposes consistent with the Plea Agreement. Upon the death of any beneficiary before such beneficiary attains the age of 26 years, such beneficiary's proportional share of the Trust Fund shall be donated to an 12 EFTA00176728 appropriate charity as set forth above. If, by February 1, 2029, the Trust Fund has not been fully distributed, (regardless of the reason for such events), the TRUSTEE shall terminate the entire Trust Fund and both principal and income shall be distributed and shall be paid outright and free of trust to an appropriate charity approved by the United States District Court for the District of Alaska under Case No. A04-003-01 CR (JWS) for any uses or purposes consistent with the original purposes of this Trust, as approved by the TRUST PROTECTORS. H. TRUSTOR Retains No Authority Whatsoever and Trust Fund and Trust Agreement Irrevocable. TRUSTOR, his assignees, designees, or heirs shall have no authority to select a TRUSTEE or TRUST PROTECTOR or supervise the use and distribution of the Trust Fund. Nor shall TRUSTOR have the right to challenge the exercise of any power to direct distributions defined herein or distributions of Trust Fund assets by the TRUSTEE pursuant to such power. This Trust Agreement is irrevocable and TRUSTOR, his assignees, designees, or heirs retain no right whatsoever to alter, amend, revoke, or terminate this Trust Agreement, in whole or in part. TRUSTOR's sole right and responsibility is to create the Trust Fund by entering into this Trust Agreement and 13 EFTA00176729 funding the Trust Fund through the invested escrow account and created separately. The invested escrow account instructions are attached hereto as Exhibit D. I. No Fiduciary Obligations or Alteration of Sovereign Immunities on the Part of the United States and Officers and Employees' of the United States. This trust document does not create fiduciary obligations on the part of the United States or any employees or officers of the United States. This Trust Agreement does not purport to alter in any way the sovereign immunities which such governmental officials and bodies and employees of the United States possess. LE II ADMINISTRATION OF THE TRUST FUND A. Powers and Duties of the TRUSTEE. In addition to the duties, powers, and rights imposed and granted by law upon trustees, and all other powers herein granted to the TRUSTEE, the TRUSTEE shall have the following duties, powers and rights in the exercise of sole and absolute discretion: 14 EFTA00176730 (1) To purchase or otherwise acquire, and to retain, whether originally a part of the trust estate or subsequently acquired, any and all common or preferred stocks, bonds, notes or other securities, or any variety of real or personal property, whether within or without the United States, including, but without limitation, foreign real estate or foreign securities, securities of a corporation in which the TRUSTEE is a director, officer or shareholder, securities of any corporate TRUSTEE or any successor or affiliate corporation, interests in any business venture (incorporated or unincorporated), any assets formerly part of the trust estate of another trust of which the TRUSTEE is also a trustee, and interests in entities formed principally for the commingling of assets for investment, such as common trust funds (including, but without limitation, common trust funds maintained by any corporate TRUSTEE or by any successor or affiliate corporation), investment companies, investment trusts, mutual funds, real estate and other investment trusts, and interests in any partnership, limited liability company or other entity, whether or not such investments be of the character permissible for investments by fiduciaries; to make or 15 EFTA00176731  retain any such investment without regard to the proportion any such investment or similar investment may bear to the entire trust estate, without regard to degree of diversification and without regard to whether such investment is unproductive or underproductive; to invest in interest bearing deposit accounts, or hold funds in non- interest bearing deposit accounts pending investment or disbursement thereof, in any bank, including any bank that is acting as a TRUSTEE hereunder or any bank affiliated with the TRUSTEE; to invest in registered mutual funds for which the TRUSTEE hereunder, or an affiliate of the TRUSTEE, provides investment advisory, custodial or other services for compensation paid form such mutual funds; and to execute trades of securities by, purchase from or sell securities to the dealer position of any affiliate of the TRUSTEE; (2) To vote in person or by general or limited proxy with respect to any shares of stock or other security; directly or through a committee or other agent, to oppose or consent to the reorganization, consolidation, merger, dissolution or liquidation of any corporation, or to the sale, lease, pledge or mortgage of any property by or to any such 16 EFTA00176732  corporation; and to make any payments and take any steps proper to obtain the benefits of any such transaction; (3) To take part in the management of any business in which investment is retained or made hereunder and to delegate duties with respect to such management, with the requisite powers, to any employee, manager, partner or associate of such business, without liability for such delegation; to reduce, expand, limit or otherwise fix and change the operation or policy of any such business and to act with respect to any other matter in connection with any such business; to subject to the risks of any such business, any part or all of any trust estate, for such term or period as the TRUSTEE, in the exercise of sole and absolute discretion, may determine; to advance money or other property to any such business; to make loans, subordinated or otherwise, of cash or securities to any such business and to guarantee the loans of others make to any such business; to borrow money for any such business, either alone or with other persons interested therein, and to secure such loan or loans by a pledge or mortgage of any part of any trust estate; to select and vote for directors, partners, 17 EFTA00176733  associates and officers of any such business; to act as directors, general or limited partners, associates and officers of any such business either individually or though an officer or officers if the TRUSTEE is a corporation, and to receive compensation from such business for so acting; to enter into stockholders' agreements with corporations in which any trust estate has an interest and/or with the stockholders of such corporations; to liquidate, either alone or jointly with others, any such business or any interest in any such business; and generally to exercise any and all powers as the TRUSTEE may deem necessary with respect to the continuance, management, sale or liquidation of any such business; (4) To form or cause to be formed, alone or with others, such corporations, partnerships, limited partnerships, limited liability companies, business trusts and other business organizations organized under the laws of any state or country and to transfer and convey to such business organizations all or any part of the assets, real or personal, of any trust estate in exchange for such stocks, bonds, notes, other securities or interests of such business organizations as the 18 EFTA00176734  TRUSTEE, in the exercise of sole and absolute discretion may deem advisable; (5) To keep assets held hereunder or the physical evidence of their ownership in any state or country whatsoever, and from time to time to move the same to any other state or country; (6) To employ a qualified third party as custodian for all or any part of the securities at any time held by any trust and to register such securities in the name of a nominee with or without the addition of words indicating that such security is held in a fiduciary capacity, or to hold securities in bearer form, or in uncertificated form; and to use a central depository, clearing agency or book-entry system, such as The Depository Trust Company, Euroclear or the Federal Reserve Bank; (7) To manage any trust in a consolidated manner with any other trust created hereunder or with any other trust created by any other person which has similar terms, conditions and beneficiaries; (8) With respect to a trust, if any, of which both individuals and charity are beneficiaries, to create or make an addition to a so-called qualified 19 EFTA00176735  charitable lead trust with remainder to or in further trust for any one or more of the beneficiaries of the trust, or a qualified charitable remainder trust initially for the benefit of any one or more of the beneficiaries of the trust, as the TRUSTEE, in the exercise of sole and absolute discretion, may determine; to select the qualified charitable organizations receiving a benefit from any such split-interest trust; to determine whether the trust is of the annuity, unitrust or income-only unitrust variety, the annual payout percentage or amount, and the length of the Trust; (9) To divide any trust created hereunder or augment any trust created hereunder into two or more fractional shares to be held as separate trusts hereunder, or to divide any trust created hereunder into one or more separate trusts for the benefit of one or more of the beneficiaries (to the exclusion of the other beneficiaries) of the trust so divided, as the TRUSTEE, in the exercise of sole and absolute discretion, may determine and to allocate to such divided trust some or all of the assets of the trust estate for any reason including, but not limited to, 20 EFTA00176736  enabling any such trust or trusts to qualify as an eligible shareholder of an S corporation; (10) If two trusts created hereunder are directed to be combined into a single trust (for example, because property of one trust is to be added to the other), whether or not the trusts have different inclusion ratios with respect to any common transferor or have different transferors in whole or in part for generation-skipping transfer tax purposes, in the exercise of sole and absolute discretion, instead of combining the trusts, to hold and administer them as separate trusts with identical terms in accordance with the provisions that would have governed the combined trusts; (11) If anyone adds or is deemed to add by gift or bequest property to a trust created hereunder, in the exercise of sole and absolute discretion, to hold the added property as a separate trust with terms identical to the trust to which it would have been added; (12) To make distributions in kind and to cause any distribution to be composed of cash, property or undivided fractional shares in property different in kind from any other distribution without regard to the 21 EFTA00176737  income tax basis of the property distributed to any beneficiary or any trust; (13) To allocate receipts and expenses between income and principal as the TRUSTEE, in the exercise of sole and absolute discretion, may determine; (14) To make such elections under the tax laws as the TRUSTEE, in the exercise of sole and absolute discretion, may determine to be appropriate, regardless of the effect thereof on any interests in any trust created under this Agreement, and to determine whether or not any adjustment of such interests shall be made by reason of any such election; (15) To make any application of principal or income for the benefit of any beneficiary by payment to such person or persons (including, but without limitation, other trusts, estates, individuals and institutions) as the TRUSTEE, in the exercise of sole and absolute discretion, determine (including, but without limitation, a trust of which any TRUSTEE hereunder is also acting as TRUSTEE, and whether such trust was created pursuant to authority granted to the TRUSTEE 22 EFTA00176738  hereunder or otherwise); provided, however, that no such payment or application may be made to or for the benefit of the TRUSTOR regardless of the capacity in which the TRUSTOR may be acting; the written receipt of the person or persons so paid shall be a full discharge to the TRUSTEE from all liability with respect thereto, and any such payment or application may be made without bond, without intervention of any guardian, conservator or committee, and without the order of any court; (16) To make or terminate elections with respect to S corporation stock, and to make such adjustments between income and principal to compensate for the consequences of the trust's ownership of S corporation stock as the TRUSTEE may deem just and equitable; provided, however, that if the trust holds S corporation stock, the TRUSTEE shall not make adjustments that would have the effect of denying to the income beneficiary the income of the trust to which the beneficiary must be entitled in order for the trust to qualify as a Qualified Subchapter S Trust; and provided further, that if a trust holds S corporation stock no TRUSTEE shall exercise any power 23 EFTA00176739  conferred under this Agreement that would have the effect of denying to the income beneficiary the income of the trust to which the beneficiary must be entitled in order for the trust to qualify as a Qualified Subchapter S Trust; and provided further, during the term of any trust created hereunder, (i) if the TRUSTEE sells any interest in a corporation or if the assets of any entity constituting a corporation in which the trust has an ownership interest are sold, and (ii) if that corporation has made an election to be taxed under Subchapter S of the Code, then in the TRUSTEE's sole and absolute discretion, the TRUSTEE may distribute to the income beneficiary such amounts of principal as shall be necessary to pay any income tax caused by that sale, if the income or gain attributable to that sale is taxed directly to the income beneficiary under applicable Federal tax law; (17) To appoint, employ and remove, at any time and from time to time, any investment counsel, accountants, depositories, custodians, brokers, consultants, attorneys, expert advisers, agents, clerks and employees, irrespective of whether any person, firm or corporation so 24 EFTA00176740  employed shall be the TRUSTEE hereunder or shall be a corporate affiliate of the TRUSTEE hereunder and irrespective of whether any firm or corporation so employed shall be one in which the TRUSTEE hereunder shall be a partner, stockholder, officer, director or corporate affiliate or shall have any interest; and to pay the usual compensation for such services out of principal or income as the TRUSTEE may deem advisable; and such compensation may be paid without diminution of or charging the same against the commissions or compensation of the TRUSTEE hereunder, and any TRUSTEE who shall be a partner, stockholder, officer, director or corporate affiliate in any such firm or corporation shall nonetheless be entitled as partner, stockholder, officer, director or corporate affiliate to receive such TRUSTEE's share of the compensation paid to such firm or corporation; (18) To delegate any duties or powers discretionary or otherwise, to a co- TRUSTEE or any other person or institution for such periods and upon such terms and conditions as may be designated in an acknowledged written instrument delivered to such co-TRUSTEE, 25 EFTA00176741  other person or institution; and if such duties or powers are delegated to a co-TRUSTEE, the TRUSTEE so delegating any duties or powers hereunder shall have no further responsibility with respect to the exercise of such duties or powers so long as such delegation shall remain in effect; and any such delegation shall be revocable by a similar instrument so delivered at any time; provided, however, that no duties or powers may be delegated to a beneficiary or a person under a duty to support a beneficiary; (19) To execute and deliver any and all instruments to carry out any of the foregoing powers, no party to any such instrument being required to inquire into its validity or to see to the application of any more or other property paid or delivered pursuant to the terms of any such instrument; and (20) Except for a loss resulting from negligence or willful misconduct, the TRUSTEE shall not be liable for loss caused by or resulting from an error of judgment with respect to any action taken or omitted requiring the exercise of discretion in good faith. 26 EFTA00176742 B. Authorization to Divide Trust Assets. The TRUSTEE, in the exercise of sole and absolute discretion, is authorized to divide any trust or any property used or to be used to fund or augment any trust created hereunder int