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THE INTERNATIONAL AIDS CHARITABLE FOUNDATION
TRUST AGREEMENT, dated as of December 29, 1989, by
and between Xxxxx X. Xxxxxxxxx, whose address is 00 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Settlor"), Xxxx
XxXxxxx, whose address is 0000 Xxxxxx Xxxx, Xxx Xxxxxxxxx,
Xxxxxxxxxxx 00000, Xxxx Xxxxxx, whose address is 0 Xxx Xxxx,
Xxx Xxxxxxxxx, Xxxxxxxxxxx 00000, and Xxxxx X. Xxxxxxxxx,
whose address is 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(Xxxx XxXxxxx, Xxxx Xxxxxx, and Xxxxx X. Xxxxxxxxx being
hereafter collectively referred to as the "Trustees").
WHEREAS, the Settlor wishes to create the trust as
herein provided (the Trust"); and
WHEREAS, the Trustees wish to act as trustees of
the Trust as herein provided;
NOW, THEREFORE, the parties hereto agree as
follows:
1. Name of Trust. The name of the Trust shall be
The International AIDS Charitable Foundation.
2. Purpose of Trust. The purposes of the Trust
are to devote and apply the property vested in the Trustees
by this Agreement and the income to be derived therefrom
(collectively, the "Trust Fund") exclusively for religious,
charitable, scientific, literary or educational purposes
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within the meaning of Section 501(c)(3) of the Internal
Revenue Code of 1986, as amended (the "Code"), either
directly or by contribution to organizations duly authorized
to carry on religious, charitable, scientific, literary or
educational activities described in such Section 501(c)(3)
of the Code with particular emphasis on contributions to
organizations conducting medical research dealing with
acquired immune deficiency syndrome; provided, however, that
no part of the Trust Fund shall inure to the benefit of any
Trustee or any individual, and no part of the direct or
indirect activities of the Trust shall consist of carrying
on propaganda, or otherwise attempting to influence
legislation, or of participating in, or intervening in
(including the publication or distribution of statements),
any political campaign on behalf of (or in opposition to)
any candidate for public office. Notwithstanding any other
provision hereof, the Trust shall not conduct or carry on
any activities not permitted to be conducted or carried on
by an organization exempt under Section 501(c)(3) of the
Code and the regulations promulgated thereunder as they now
exist or as they may hereafter be amended (the "
Regulations"), or by an organization contributions to which
are deductible under Section 170(c)(2) of the Code and the
Regulations.
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3. Trust Fund. The property to constitute the
Trust shall consist of the assets listed on Exhibit A hereto
and such other assets as the Settlor or anyone else may from
time to time hereafter transfer to the Trustees and be
accepted by them. Such assets shall be transferred to the
Trustees to be held by them in trust and disposed of as
herein provided.
4. Use of Trust Fund. The Trustees, except as
herein limited, shall have the power and authority and are
directed to distribute from time to time exclusively for any
of the purposes of the Trust set forth in Section 2 hereof,
such amounts of income or principal of the Trust Fund as
they in their discretion may direct. The Trustees shall
distribute the income of the Trust Fund for each taxable
year at such time and in such manner as not to become
subject to the tax on undistributed income imposed by
Section 4942 of the Code or the Regulations.
5. Meeting of Trustees. (a) Regular meetings of
the Trustees may be held without notice at such time and
place as shall from time to time be determined by the
Trustees. Special meetings of the Trustees shall be held at
such time and place as shall be designated in the notice of
the meeting whenever called by a majority of the Trustees.
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(b) The Secretary of the Trustees, or in his
absence any other Trustee, shall give each Trustee notice of
the time and place of holding of special meetings of the
Trustees by mail at least five days before the meeting, or
by telegram, cable, telecopy, radiogram or personal service
at least two days before the meeting. Unless otherwise
stated in the notice thereof, any and all business may be
transacted at any meeting without specification of such
business in the notice.
(c) Any action required or permitted to be taken
at any meeting of Trustees may be taken without a meeting if
all of the Trustees consent thereto in writing. A Trustee
may participate in a meeting of the Trustees by means of
conference telephone or similar communications equipment by
means of which all persons participating in the meeting can
hear each other.
(d) A majority of the Trustees shall constitute a
quorum for the transaction of business, but, if at any
meeting of the Trustees (whether or not adjourned from a
previous meeting) there shall be less than a quorum present,
a majority of those present may adjourn the meeting to
another time and place, and the meeting may be held as
adjourned without further notice or waiver. Except as other-
wise provided by law or in this Agreement, a majority of the
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Trustees present at any meeting at which a quorum is
present may decide any question brought before such meeting;
provided, however, that, during his lifetime, Xxxxx X.
Xxxxxxxxx shall have the power to veto any proposed
contribution to be made by the Trust; provided, further,
that this power may not be used to cause the Trust to become
subject to any tax referred to in Section 4 hereof.
(e) Xxxxx X. Xxxxxxxxx shall be Chairman and Xxxx
Xxxxxx shall be Secretary of the Trustees until their
respective successors are elected by a majority of the
Trustees and qualified. The Chairman shall preside at
meetings of the Trustees and the Secretary shall keep
records of the proceedings at such meetings and send out
notices pursuant to Section 5(b), but otherwise these
Trustees shall not have any implied or apparent powers of
corporate officers.
(f) All Trustees shall serve without compensation,
but shall be entitled to reimbursement for reasonable
expenses of serving as a Trustee. All Trustees shall serve
without bond.
6. Powers of Trustees. (a) The Trustees shall
have the power and authority, within their discretion and
exercise of judgment, to sell and dispose of any of the
assets transferred to the Trust by this Agreement, or
subsequently acquired by the Trust, and to invest and
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reinvest the income or funds thereby obtained, or the income
from time to time accumulated, in corporate shares, bonds,
securities, property or other assets. The investments and
reinvestments made by the Trustees shall not be limited to
those which are commonly known as those in which trust funds
are authorized to be invested under the law of the State of
New York. The Trustees shall not be responsible for any
loss arising out of any investments made by them in the
exercise of their judgment and discretion. The Trustees
shall have power and authority to give a proxy to anyone
selected by the Trustees to vote any of the securities held
in the Trust at any meeting of any corporation or other
entity having issued such securities.
(b) The Trustees shall have and exercise, subject
to the limitations herein provided, all the rights and
powers incident to the ownership of all the properties, real
and personal, from time to time belonging to the Trust, as
fully and absolutely as though they were the owners of such
properties in their own right. The Trustees shall have
power to deposit the moneys and securities belonging to the
Trust from time to time in such banks and safe deposits and
trust companies as they may from time to time select.
(c) Notwithstanding any other provision hereof, no
power or authority shall be exercised by the Trustees
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in any manner or for any purpose whatsoever which may jeopardize
the status of the Trust as an exempt organization under
Section 501(c)(3) of the Code and the Regulations; nor shall
the Trustees engage in any act of self-dealing as defined in
Section 4941(d) of the Code and the Regulations; nor retain
any excess business holdings as defined in Section 4943(c)
of the Code and the Regulations; nor make any investments in
such manner as to incur tax liability under Section 4944 of
the Code and the Regulations; nor make any taxable
expenditures as defined in Section 4945(d) of the Code and
the Regulations.
7. Appointment of Trustees. (a) A Trustee may at
any time resign by delivering his resignation in writing to
the other Trustees. New Trustees may be appointed and any
Trustee may be removed by action of a majority of the
Trustees then serving, by instrument in writing signed by
the majority of the Trustees and filed with the Trust's
records and, if the Settlor is then living, with a copy
thereof delivered to the Settlor.
(b) Every such new Trustee so appointed from time
to time, upon his written acceptance of such appointment,
shall have, possess and exercise all the powers, authority
and discretion by this Agreement conferred upon the
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original Trustees, as fully and effectively as though he were named
by this Agreement as one of the original Trustees.
8. Contributions From Others. If any person at
any time is disposed to make gifts or bequests to the Trust,
power and authority is hereby conferred upon the Trustees to
receive such gifts and bequests and to apply the principal
and income therefrom to the purposes of the Trust, under the
powers, authorities and discretions contained in this
Agreement, provided that such gifts or bequests are not made
upon any terms or conditions that would conflict with the
uses, purposes, and provisions of this Agreement and the
administration thereof by the Trustees, except that
restrictions in such gifts and bequests may be agreed to by
the Trustees and accepted subject thereto.
9. Creation of Corporation. The Settlor
authorizes and empowers the Trustees, if they desire to do
so, to form and organize a corporation for the uses and
purposes of the Trust provided for by this Agreement. Such
corporation may be organized under the laws of such
jurisdiction as may be determined by the Trustees and will
have power to administer and control the affairs and
property of the Trust, and to carry out the uses, objects
and purposes of the Trust.
10. Term of Trust. The Trust may at any time by
vote of at least 75% of the Trustees be wound up and the
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assets distributed exclusively to such organizations that at
that time are tax exempt under Section 501(c)(3) of the Code
and the Regulations as the Trustees in their discretion
shall determine.
11. Amendment of Trust Agreement. This Agreement
may be amended by the Settlor with unanimous consent of all
of the Trustees, and if the Settlor is not living, by the
unanimous vote of the Trustees, but no such amendment shall
be adopted which shall cause the Trust to be organized and
operated for any purpose or in any manner which would cause
the Trust to lose its tax-exempt status under Section
501(c)(3) of the Code and the Regulations.
12. Separability. If any provision of this
Agreement is invalid, illegal or unenforceable, the balance
of this Agreement shall remain in effect, and if any
provision is inapplicable to any person or circumstance, it
shall nevertheless remain applicable to all other persons
and circumstances.
13. Governing Law. This Agreement shall be
governed by and construed in accordance with the laws of the
State of New York, without giving effect to conflict of
laws.
14. Counterparts. This Agreement may be executed
in any number of counterparts, each of which shall be deemed
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an original, but all of which together shall constitute one
and the same instrument.
IN WITNESS WHEREOF, this Agreement has been signed
by the Settlor and the Trustees.
Xxxxx X. Xxxxxxxxx
_________________________
Xxxxx X. Xxxxxxxxx
Settlor
_________________________
Xxxx XxXxxxx
Trustee
Xxxx Xxxxxx
_________________________
Xxxx Xxxxxx
Trustee
Xxxxx X. Xxxxxxxxx
_________________________
Xxxxx X. Xxxxxxxxx
Trustee
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STATE OF ____________)
) ss.:
COUNTY OF ___________)
On the ____ day of December, 1989, before me
personally came Xxxx XxXxxxx, to me known, and known to me
to be the person described in and who executed the foregoing
instrument, and she acknowledged to me that she executed the
same.
__________________________
Notary Public
State of Connecticut )
) ss.: Greenwich
County of Fairfield )
On the 17th day of December, 1990, before me
personally came Xxxx Xxxxxx, to me known, and known to me to
be the person described in and who executed the foregoing
instrument, and she acknowledged to me that she executed the
same.
/s/ Xxxxxx X. Xxxxx
__________________________
Notary Public
State of New York )
) ss.:
County of New York )
On the 29th day of December, 1989, before me
personally came Xxxxx X. Xxxxxxxxx, to me known, and known
to me to be the person described in and who executed the
foregoing instrument, and he acknowledged to me that he
executed the same.
/s/ Xxxx Xxxxxxx
_____________________
Notary Public
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Exhibit A
THE INTERNATIONAL AIDS CHARITABLE FOUNDATION
40,000 shares of common stock of Cortex
Pharmaceuticals, Inc. contributed by Xxxxx X. Xxxxxxxxx.
