Free Motion for Summary Judgment - District Court of Federal Claims - federal

w

Case 1:06-cv-00407-ECH

Document 106-8

Filed 07/02/2008

Page 1 of 75

0 &

DESIGNATION

OF

CHARITY

f
I

RICHARD referred REMAINDER referred to to as the

SANDS,

Grantor o_

and the

Reclpient, RICHARD 21, SANDS 2001, his Trust, Internal the Charity

herelnafter CHARITABLE hereinafter pursuant a Code receive

"Reclpient," U/T/A "Trust," Article dated

UNITRUST, to as A the of

September exercises of the in as

hereby FOURTH described

power to

paragraph

deslgnate Revenue to

charitable §§ the 170(b)

organization (I) (A), of 2055(a) said

and

2522(a) estate.

Remainder a.

Trust's of

Deletion designations of Article Additlon the

Charlty: he has of the

The

Recipient made

hereby

revokes to

any

Charity A b.

previously Trust. The to receive of the

pursuant

paragraph

FOURTH of

Charity: Charity the

Recipient the Trust, to 2002,

hereby following to The of wit: Sands which

designates percentage

following of One

distribution i.

Remainder percent

hundred U/T/A Sands dated are

(100%) 2___,

Supporting Richard

Foundation, Sands In and all Robert other and

January Grantors. the changed other or

respects, are not

provisions affected

of except

the as

Trust

are

conflrmed set

hereinbefore

forth.

sANDS6678
DESIGNATION CHARITY AND OF ACCEPTANCE _OVE__' - ____m_ _ -

"4

Case 1:06-cv-00407-ECH

Document 106-8

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Page 2 of 75

DATED

this

_

day

of

January,

2002.

Ridha_d

_ _n_d g--_'

"Recipient"

ACCEPTANCE

BY

INDEPENDENT

TRUSTEES

Pursuant of < the Richard 21,

to

the

terms

of

paragraph

A

of

Article U/T/A Robert

FOURTH dated Sands of

Sands 2001,

Charitable we, of said

Remainder Sands hereby

Unitrust, and

September Independent this

Richard Trust,

Trustees of this

acknowledge

receipt

Designation DATED

Charity. 2___ day of January,
? ,

2002.
wF

/_;;7zRichard Sands

----/ZS
/¢
Trustees"

Robert

S a_n s d

"Independent

DESIGNATION CHARITY AND

OF ACCEPTANCE

- 2

SANDS6679

Case 1:06-cv-00407-ECH

Document 106-8

Filed 07/02/2008

Page 3 of 75

IRREVOCABLE

DESIGNATION

OF

CHARITY

RICHARD referred REMAINDER referred to to as the

SANDS,

Grantor of

and the

Recipient, RICHARD 21, SANDS 200], his Trust, in as

hereinafter CHARITABLE hereinafter pursuant

"Recipient," U/T/A "Trust," Article dated

UNITRUST, to as A the of

September exercises of the

hereby FOURTH

power to

paragraph a

irrevocably Revenue to

designate Code receive _

charitable (I) (A),

organization 2055(a) of said of and Trust's

described 2522(a) estate. The

Internal the

170(b) the a.

Charity

Remainder Deletion

Charity: he has of

Recipient made

hereby

revokes to not

-

any

Charity A to 28,

designations of Artlcle

previously the Trust, of

pursuant but

paragraph limited January

FOURTH

including Charlty

that 2002.

certain

Designation

executed

b. irrevocably following to wit:

Addltion designates

of the

Charity: following of the

The Charity

Reciplent to of receive the

hereby the Trust,

percentage

distribution

Remainder

i. and Health Support and

One Fund, Robert

hundred U/T/A Sands

percent dated are

(]00%) February

to

The

Educational of which

Z2- , 2002,

Richard

Sands

Grantors.

OF

CHARITY

AND

ACCEPTANCE SANDS6675

IRREVOCABLE

DESIGNATION

Case 1:06-cv-00407-ECH

Document 106-8

Filed 07/02/2008

Page 4 of 75

c. Irrevocable renounces receive Unltrust FOURTH of

Irrevocable Deslgnation of

Desiqnation: Charlty, the and the the

Pursuant Reclplent of hereby the

to

th_s forever to the

the the Term the In

right

to

change

deslgnatlon at of the

Charity of

trust

princlpal to

income terms

explratlon A of

pursuant Trust. all other and

paragraph

Artlcle

respects, are not

the changed

other or

provlslons affected

of except

the as

Trust

are

conflrmed set DATED

herelnbefore

forth. this _Z h_ day of February, 2002.

Richard

Sands

"Reclplent"

ACCEPTANCE

BY

INDEPENDENT

TRUSTEES

Pursuant of the Richard 21,

to

the

terms

of

paragraph

A

of

Artlcle U/T/A Robert

FOURTH dated Sands, of

Sands 2001,

Charitable we, of said

Remainder Sands hereby

Unitrust, and

September Independent thls

Richard Trust, of

Trustees

acknowledge

receipt

Irrevocable

Deslgnatlon

Charlty.

IRREVOCABLE OF CHARITY

DESIGNATION AND ACCEPTANCE 2 SANDS6676

Case 1:06-cv-00407-ECH

Document 106-8

Filed 07/02/2008

Page 5 of 75

DATED

this

_n_

da_2. Richard

Sands

_._

j,

<-.
Robert S

/

"Independent

Trustees"

IRREVOCABLE OF CHARITY

DESIGNATION AND ACCEPTANCE

-

3 SANDS6677

Case 1:06-cv-00407-ECH

Document 106-8

Filed 07/02/2008

Page 6 of 75

Richard

Sands

Charitable

Remainder

Unitrust

2001

I3

_2:#442711a_.2

SANDS0487

Case 1:06-cv-00407-ECH

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Page 7 of 75

TABLE

OF

CONTENTS

FIRST: SECOND: THIRD: FOURTH: B. FIFTH: SIXTH: SEVENTH:

Name

................................................... of of Unitrust the Amount ............................ Amount .......................

i 2 5 5 6 8 9

Payment Proration A. No

Unitrust to

Distribution Death Taxes

Charity

...........................

........................................ Permitted .....................

Additional Prohibited Intent to Law

Contributions Transactions Obtain

................................ Deduction and

Charitable

Governing

............................................

i0

9

EIGHTH: A. B. C. NINTH: B. C. D. E. F. G. H. TENTH:

Trustees' Powers Powers of of

Powers

..................................... Trustees Trustee Liability ....... ' ................

II ii 14 16 17 18 _ .... 18 19

Independent Administrative on Trustee

..................... ..... , ................

Limitations A. Resignation

.......................................

Removal

.............................................. of Successor Trustee ................

Appointment No Bond

.............................................. ................................ of of of Trustee Estate Competent ...........

Compensation Definition Definition Definition Taxable Trust Year

19 20 21 21 22

................................ Fiduciary .......................

..............................

.......................................... Limited Power of Amendment ......

(

_

ELEVENTH:

Irrevocable;

23

_2:,442_I :sv=

SAN DS0488

Case 1:06-cv-00407-ECH

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Page 8 of 75

TWELFTH: THIRTEENTH: FOURTEENTH: B. FIFTEENTH: SIXTEENTH: SEVENTEENTH: EIGHTEENTH: NINETEENTH: TWENTIETH:

Investment Not A.

of

Trust

Assets

..........................

23 23 24 25 26 _ ..... 26 28 28 29 29

a Grantor Assignment

Trust of

.............................. .......................

_nterests

Disclaimer Trust Intent

........................................... Situs To ....................................... Create Alaska Trust-. Receipt ..............

Trustees Effective Successors Counterparts

Acknowledge Date and

....................

................................... Assigns ...........................

......................................

9

.4

Case 1:06-cv-00407-ECH

Document 106-8

Filed 07/02/2008

Page 9 of 75

,

Richard

Sands

Charitable

Remainder

Unitrust

2001

This by and and between

Agreement RICHARD the

dated SANDS,

the_/_5+day the _Grantor",

of

_p_$_ and and

_,

2001, SANDS TRUST

RICHARD ALASKA

ROBERT

SANDS, the

"Independent

Trustees",

I
COMPANY, "Administrative Trustee. "
)

WITNES

SETH

:

WHEREAS, remainder section ) "Code") unitrust, 664(d) and (2)

the

Grantor the

desires meaning

to of

create Rev. Code the

a charitable Proc. 89-20 and the

within of the

Internal Regulations

Revenue under

(hereinafter, Code

the

Treasury

(hereinafter,

the

"Regulations"),

NOW, Trustees TRUST, manage set the and and

THEREFORE, Bet

the

Grantor on such

hereby A

transfers hereto and Trust agree under

to

the IN

property Trustees

forth

Schedule property of the

annexed, to the hold,

the

accept such

distribute in this

property

terms

forth

Agreement.

FIRST: known as "Richard

Name. Sands

The

Trust

under

this

Agreement Unitrust

shall 2001"

be

Charitable

Remainder

"i .J

_2:#4427_.z8-,2

SANDS0490

t

",

Case 1:06-cv-00407-ECH

Document 106-8

Filed 07/02/2008

Page 10 of 75

(
SECOND: In Term, and respect as Payment of each of Unitrust taxable provided pay end to of the the Amount. year in during Article the Unitrust the the the to the terms in

except

otherwise shall the

FIFTH, or if to equal

Independent Recipient Contingent Unitrust in the

Trustees dies before

Recipient, Unitrust

Term,

Successor Percentage

Recipient, of the Annual which the

a unitrust Value. are not

amount The

capitalized defined

preceding

sentence shallhave term the

otherwise hereinafter mean and the the ending

this

Agreement The

meanings Term" shall

specified: term on the day of

_Unitrust date of

commencing

on the

this

Agreement of

_)
preceding this twentieth anniversary effective date Agreement. The term "Contingent term "Recipient" shall mean shall the Grantor, the and the

Successor

Recipient"

mean

Grantor's

estate. The percentage exceed of the fifty Annual term "Unitrust to the Percentage" nearest or to be shall of mean 1% that and not'to

(rounded (50) Value

i/I0,000 less than

percent

five which, applied

(5) percent) when as the

(as hereinafter

defined) is

Applicable in section

Rate 7520

(as hereinafter of the Code and

defined) any 2 tables

provided

and

regulations

_2:#4_271z8_2

SANDS0"491

Case 1:06-cv-00407-ECH

Document 106-8

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Page 11 of 75

I issued thereunder, Amount would cause the remainder defined) interest to equal in the If 1/10,000 the of Amount the

Contribution Minimum rounding 1% to would be

(as hereinafter Remainder

Allowable of the

(as hereinafter to the in

defined). nearest

UnitrusZ the the be

Percentage interest Allowable

cause than shall to

remainder Minimum

the

Contribution the

less

Remainder, to the nearest which the

Unitrust of

Percentage 1% the but not

rounded'instead than not five to be

I/I0,000 would cause

be

less

(5) percent less than

remainder even

interest if the

Minimum

Allowable exceed

Remainder, the Minimum

resulting Remainder.

remainder

interest

would

Allowable The term assets each

"Annual of the

Value" Trust year

shall valued of the or (the

mean as of

the the or

net

fair

market of 1 day

value December of

of

the 1 of is

first if

day

taxable

Trust, a Sunday, "valuation

December business in

a year

a holiday, preceding

a Saturday December 1

the

immediately accordance 3(a) (I) (iv) the Internal

date"), Reg. or

with and

the any

method

described ruling,

in

Treas. procedure

§1.664guideline of

applicable Service. _Applicable under

Revenue term

The interest date rate

Rate" section

shall 7520 to

mean of

the the

highest as the of the

available initially

Code for

assets

are

contributed

the

Trust

._2:#442711Bv2

SANDS0492

Case 1:06-cv-00407-ECH

Document 106-8

Filed 07/02/2008

Page 12 of 75

,

valuation this

for

tax ' term of

purposes

of

unitrust

interests

created

under

Agreement. The

"Contribution assets

Amount"

shall

mean to

the the

net Trust

fair by

market the

value

the

initially

contributed

Grantor. The term "Minimum under which Allowable 7520 to Remainder" of the Code shall and mean that

amount the the

(determined Rate) of

section is

applying (within

Applicable meaning

equal

ten the

(i0) Code)

percent of the

section

664(d)

(2) (D) of

Contribution The installment income and,

Amount. unitrust December the net extent income amount 1 of shall each be paid in a single of the Trust from

on to Any the

taxable is

year not for a

that of

income the shall is Trust be

sufficient, taxable to

from year in If then determined pay the to case

principal. excess for any of

unitrast the Annual

amount Value

added

principal.

year

incorrectly the value is

determined, finally

within for the may

a reasonable tax or

period

after the

federal Recipient be,

purposes, the case

Independent Successor

Trustees Recipient, or receive as

shall as

Contingent of an

(in the or the the case

overvaluation) Successor

from the

the may

Recipient be, ) _2:_442_118_2 (in

Contingent of an

Recipient, an amount

case to the

undervaluation) 4

equal

SANDS0493

Case 1:06-cv-00407-ECH

Document 106-8

Filed 07/02/2008

Page 13 of 75

l
difference between the unitrust amount properly payable and the

unitrust amount actually paid.

THIRD: determining prorate for the the the same

Proration unitrust on year a

of amount,

_he

Unitrust

Amount.

In shall and

the for

Independent a short ends

Trustees taxable year manner In

daily in which

basis the

taxable in if

Trust

in

the

specified addition, (including the Trust

Treas. no

Reg.

§1.664-3(a) date occurs

(i) (v) (a) during of last the a

and

(b).

valuation year of

taxable the such

year assets year. of

the shall

termination) as of the

Trust, of

be valued

day

FOURTH: expiration distribute (other Successor "Remainder") the such sections amounts of than of all any the of

A.

Distribution Term, the

to

Charity.

Upon

the shall

Unitrust the then due

Independent and income or the

Trustees of the

principal the the

Trust

amount

Recipient provisions or

Contingent (the described in in

Recipient to of or all such the

under

above)

organization Code specified

organizations (the all to may to or

below

"Charities"), one to the by a and

proportions, others, as

including the Recipient referring Trustees

exclusion written delivered

appoint this power
r

instrument to the

specifically Independent

on

before

the

5
_2:#4427118v2

SANDS0494

Case 1:06-cv-00407-ECH

Document 106-8

Filed 07/02/2008

Page 14 of 75

[ termination not one of the Trust. of If by any the portion preceding in the such of the Remainder or is if in not an any

effectively or more to of

disposed the

sentence, instrument is

Charities all or

specified f a portioh of

writing

receive

Remainder

organization below to be at the

described time when to the it

in any or

the

sections or

of

the

Code of

specified the of Trust this the to such is

principal them under

income

distributed then to

any

provision shall

Agreement, Remainder organization (so-called
/"

Independent not so

Trustees effectively

distribute of

such or

extent

disposed sections 2055(a) the

organizations supported Independent shall all to

described

in

170(b)(I)(A) and 2522(a) of or all of sole and sole

"publicly as the

charities'"), Trustees, select, one to in in

I[ j

of and

the

Code

exercise amounts of

absolute

discretion, including the

such

proportions, others, absolute as

the" exclusion in the exercise

Independent shall

Trustees, determine. It is

discretion, B. No Death

Taxes.

the

Grantor's shall be agrees by any

intent payable (i) to other to and and

that from make

no the no

Death Trust.

Taxes

(as

hereinafter the Will Death to keep and

defined) Grantor

Accordingly, by that Trust; Las= any (ii)

hereby or be

direction

Testament, shall effect

instrument, from the

Taxes in

allocated Will

paid

a Last

Testament

_2:#442_118_2

SANDS0495

o

Case 1:06-cv-00407-ECH

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Page 15 of 75

and/or Taxes law other that to to

other which and

appropriate would, paid except the

instrument for Trust part such

directing direction, instead, Grantor's tax

that be be

any

Death by

allocated paid from

from

shall, of the

property term is

composing defined for

gross purposes;

estate, and

as

federal

estate

(iii) and/or

obligate

the

Estate

Fiduciary to pay

(as hereinafter to the estate which
I

defined) from than the the

other assets an paid

appropriate composing equal the

fiduciary the to Grantor's Death

Trustee other be

gross Taxes

Trust to and

amount from

any

may

allocated of becomes

Try/st (i) and

notwithstanding (ii). If the and

the

provisions Estate

subdivisions Contingent foregoing Death the

Grantor's if,

the

Successor provisions are of

Recipient, of

notwithstanding (ii) the and

the (iii), any death, Successor only any death if

subdivisions to the Trust

(i), upon as death funds may be

Taxes interest

allocated the take

Grantor's

Grantor's effect

Estate upon the the

the of for

Contingent the Grantor of

Recipient the Death
l

will

Estate Taxes

Fiduciary for which

furnishes the

payment upon

Trustee

liable

the

of

the

Grantor. The term legacy, or "Death Taxes" shall mean any estate, generationor

inheritance, skipping i _ _2:.442_1z8_2

succession, other taxes 7

transfer (including

(including any

transfer)

interest

,

SANDS0496

Case 1:06-cv-00407-ECH

Document 106-8

Filed 07/02/2008

Page 16 of 75

(
penalties authority thereon) by reason imposed of the by any federal, death. state or other taxing

Grantor's

FIFTH: Additional to the

Additional

Contributions to the

Permitted. Trustees are may made amount made the shall net be to made the for be fair date

contributions If the which any

acceptable additional

Trust. after in the

contributions the

Trust the

initial the

contribution, additional Percentage

unitrust is of of

year to

contribution of the and the sum as

equal market

Unitrust of the assets

(a) the from,

value

assets so

of added

Trust any

valuation or

(excluding

the

income

Q.j

appreciation fair (a) date of Term the the the market that of the

on, value

such of

assets) the assets in

and so the with of

(b)

that

proportion was

of

the under the day

added period the

that that

excluded with last

number

of

days

begins of of the the

contribution taxable to day day year the of in

and or number

ends

earlier

the

the of

date days

expiration the and or period ends

Unitrust begins earlier on of of

bears first last

in

that the

such such

taxable taxable

year year

with of

the

date if

expiration additional be a

Unitrust

Term; would remainder such

provided, result in

however, the by Trust reason

that

such to

contribution charitable of the Code,

ceasing of

unitrust additional

section shall be

664(d) treated

(2) (D) as a

contributrion

i 1
_2:#442_zz8_2

8
SANDS0497

Case 1:06-cv-00407-ECH

Document 106-8

Filed 07/02/2008

Page 17 of 75

,

transfer conditions Percentage commenced

to

a separate of this be

trust

subject except as

to

all

of

the

terms

and

Agreement, recalculated of such

that if the

the

Unitrust Term and as to greater the if the

shall on the

Unitrust

date

additional the no

contribution

the, additional separate than the trust

contribution so created, Percentage

were but in

initial event with

contribution shall it be to

Unitrust contribution.

determined

respect

initial

SIXTH: payment of the

Prohibited unitrust amount

Transactions. to the

Except or

for the

the

Recipient

_' ,]

Contingent engaging 4941(d) as the in of

Successor any the in to act Code, section tax which Code, section make to under

Recipient, of

the

TruStees as any defined excess

are in

prohibited section

from

selfqdealing retaining of the

from

business would from under

holdings subject making section as any

defined Trust

4943(c) section subject from

Code of the

which Code, to tax

4943 the

investments 4944 of the in

would and

Trust

making of the

any Code. at to

taxable The time under

expenditures Independent" and in such

defined Trustees manner the

4945(d)

shall as not

distributions the Trust

such tax

subject

section

4942

of

Code.

_:2._,442vzlav2

SANDS0498

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Page 18 of 75

C
SEVENTH: Governing Trustees remainder the Code Law. in It Intent is the this to Obtain intention Agreement the the meaning Grantor of Charitable of to of the Deduction and the and

Grantor

executing

create section full

a charitable 664(d) benefit is (2) of of any in

unitrust and to

within for if

obtain (and,

the the

income the

and

gift gross

any of

portion the

Trust

included tax estates of Code, by of

federal

estate

Grantor, to

any

estate) (or the

charitable any and creators) for the

deductions of Trust of be

available

creators

charitable the the

remainder from

unitrusts income tax the

under'the provided

exemption Code.

section Agreement solely

664(c) shall in

Accordingly, and said the Trust

provisions be

this

construed with

shall and in

administered

accordance with which those may

intention of the

a manner Regulations

consistent thereunder respect provisions such such to

sections be

Code

and

promulgated

from

time

to

time the

with

charitable of this and and

remainder Agreement be in

unitrusts. inconsistent effect be set from deemed forth

Should or time to in

conflict to time,

with then and

sections sections the and such

regulations regulations which at

shall are

override If

supersede sections creating

provisions regulations trusts

herein. that are

such

any

time

require which

agreements not expressly

contain

provisions I0

_2:_442_zza_2"

SANDS0499

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Page 19 of 75

set into part been

forth this of

herein, Agreement

then by

such

provisions and same

shall shall be as other

be

incorporated to they be a

reference to the

deemed though

this

Agreement set forth

extent

had the the with,

L
expressly herein. and shall be effect be _n of all this respects, and

validity, validity and of the

construction of Trust the Trust

i

Agreement in

determined under,

accordance laws of

shall

administered the to so to

the upon

the of

State the may, the

Alaska. of the

Notwithstanding Trust pursuant Trustees

foregoing, Article elect, the

a change the

situs if laws the

FIFTEENTH, be

Trust under

Independent the

administered situs is

of

jurisdiction

which

Trust

changed.

EIGHTH: A. and upon the not by way Powers of the

Trustees' of

Powers. Trustees. the powers are of In addition by to, law

Independent of,

limitation Independent

conferred expressly powers

trustees, powers

Trustees all by

granted so Trustees exercise

hereinafter or granted to

enumerated, be exercised may

such

conferred as of the sole any

the

Independent in prior the the

Independent and absolute but hereof from

Trustees

deem'advisable, and all without to the or

discretion, subject and in

authority of

from

court, SIXTH

cases that power

provisions

Article are

provided any

Independent discretion

Trustees granted

prohibited

exercising

_2:_4_2_11,_=

SANDS0500

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Page 20 of 75

,

under'said with the the Code

laws

or

this

Agreement of the Trust

that

would

be

inconsistent 664(d) (2) of

qualification and the

under

section

corresponding

Regulations:

(I) To purchase or otherwise acquire (including on a forward basis), and to retain, whether originally a part of the Trust or subsequently acquired, any and all common or preferred stocks, bonds, notes or other securities, or any variety of real or personal property, including foreign real e_tate, foreign securities, any business venture (incorporated or unincorporated), and interests in entities formed principally for the commingling of assets f_r investment, such as common trust funds, investment companies, investment trusts and partnerships, as the Independent Trustees may deem advisable, including any participation in (i) any common trust fund administered by any Trustee or an affiliate thereof, (ii) any investment company registered under the Investment Company Act of 1940 for which any Trustee or any affiliate thereof is acting as an investment advisor or providing other services, or (iii) (° _ ' any money market deposit or similar account but only if the foregoing does not constitute dealing under section 4941 of the Code. with an any act Trustee, of self-

period

as

the

(2) To hold and continue to hold Independent Trustees may determine

for so long or to _ell

a

-

(including selling securities short), lease, mortgage, pledge, transfer, exchange or otherwise dispose of, or grant, options with respect to, any and all real or personal property which may form at any time a part of the Trust, in such manner, at such time or times, for such purposes, for such prices and upon such terms, credits and conditions as the Independent Trustees, in the exercise of sole and absolute discretion, may determine.

(3) Without the consent of any beneficiary, to make distributions in cash or in specific property, real or personal, or an undivided interest therein, or partly in cash and partly in such property, subject however to any restrictions in the Regulations. (4) To vote in person or by general or limited proxy upon all stock held by the Trustees; to approve or oppose, directly or through a committee or other agent, the 12

_2:,442_z18_2

SANDS0501

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i
reorganization, consolidation, merger, dissolution or liquidation of any corporation, or the sale, lease, pledge or mortgage of any propertyby or to any corporation, any of the stocks, bonds, notes or other securities of which are held in the Trust; and to do any acts with reference to such stocks, Trustees the bonds, notes or other may deem necessary or benefit of privilege, connection securities connection necessary securities proper to which enable the Independent them to obtain

any such transaction; to exercise any conversion subscription right or any option available in with any of the stocks, bonds, notes or other in the Trust, therewith as or advisable. and to make any such payments the Independent Trustees shall in deem

to

arbitration,

(5) To pay, compromise, compound, adjust, sell or release any claims or demands of or of others against the including the acceptance of bonds therewith. or mortgages;

submit the

Trust terms

against others and conditions, in in

Trust upon any of deeds to real and to make any

property payments " (-. )

satisfaction connection

(6) To value assets not having an objectively ascertainable fair market value in any manner that is reasonable, fair and consistent with the Independent Trustees' fiduciary duty, provided that any requirements concerning the procedure or revenue followed, the Trust, or method for ruling under and to in respect value such valuing section assets 664 of promulgated by the Code shall regulation be to

of unmarketable assets transferred assets in accordance with the

requirements of Treas. Reg. section 1.664-i(a)(7) applicable requirements promulgated by regulation ruling under section 664 of the Code. .(7) To to time, appoint, all such employ and attorneys,

and any other or revenue

and

from

time

remove,, at investment

any

time

counselors, expert advisers, agents, accountants for purposes of preparing any GAAP reports required to be furnished by the Trustees hereunder or otherwise, clerks and employees, as the Independent Trustees may deem advisable, and in the Independent Trustees' discretion to fix and pay the reasonable compensation of such advisors from the Trust (but no such compensation shall be paid out of the unitrust amount). Nothing herein contained shall be construed to permit any person or entity to receive
%

;
_2:#4427118V2

13

SANDS0502

Case 1:06-cv-00407-ECH

Document 106-8

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Page 22 of 75

compensation purposes of

in excess of what is reasonable as defined for sections 4941(d) (2) (e) and 4945(d) (5) of the Code. (8) To hold held any by property Trustees in bearer hereunder form in or the to name

register any of a nominee.

security

the

(9) To execute and deliver any and all instruments the Independent Trustees may deem advisable to carry out any of the foregoing powers, no party to any such instrument being required to inquire into the validity of any such instrument. (I0) The powers granted to the Independent Trustees in and by this Article or in and by any other Article of this Agreement may be exercised in whole or in part and from time to time, and without court authorization, and shall'be deemed to be s_pplemental and not exclusive, it being intended that the Independent Trustees shall have all of the general powers of trustees appropriate to the particular circumstances; all of the special powers herein expressly granted, and all powers incidental to, reasonably to be implied from or necessary to the proper exercise of, the special powers herein enumerated. (ii) To manage any trust created hereunder in solido with any other trust created hereunder or with any other trust created by the Grantor which has similar terms, conditions and beneficiaries. B. expressly of sole P®wers of the AdministrativeTrustee. Administrative Trustee, The in Grantor the exercise

" (

authorizes and absolute (I)

discretion: To maintain the books and records of the

Trust. (2) To filing prepare of all and file or to arrange tax returns required to for the be filed

preparation and by the Trust.

14
NY2 : _4427118v2

SANDS0503

Case 1:06-cv-00407-ECH

Document 106-8

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,

(3) Independent Trust. Trustees,

To

the to

extent

deemed custody

appropriate of any

by

the of the

maintain

assets

Independent exercise of appropriate.

(4) Trustees sole and

To undertake any other duties as the Independent Trustees, absolute discretion, may

to in

assist the to

the be

determine

any

decisions

(5) To implement of the Independent

without Trustees

responsibility hereunder.

therefor

(6) To appoint, employ and remove, at any and from time to time, any accountants, attorneys, expert advisers, agents, clerks and employees in furtherance of fulfilling the responsibilities of Administrative Trustee" hereunder, and their services to as pay them approved such reasonable compensation by the Independent Trustees.

time

for

.[ _

(7) To place and leave all or any part of the funds or securities at any time held by the'Trust in the care and cu@tody of any bank or trust company, with no obligation while such securities are so deposited to inspect or verify the same and with no responsibility for any loss or misapplication by the bank or trust company or its nominee; to appoint such bank or trust company the agent and attorney of the Trustees to collect, receive, receipt for and disburse any income, and generally to perform the duties and services incident to a socalled "custodian account"; and to allocate the expenses of such bank or trust company to income or partially to income and partially to principal Trustees determine. charges and or to principal as the

instruments to any such

(8) To execute and deliver any and all to carry out any of the foregoing powers, no party instrument being required to inquire into its application pursuant to of any money or other the terms of any such

validity or to see to the property paid or delivered instrument. All shall be deemed other to powers be

granted to

to the

the

Trustees

hereunder Trustees unless

granted

Independent

15
NY2 : #4427118v2

SANDS0504

Case 1:06-cv-00407-ECH

Document 106-8

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Page 24 of 75

F

such

powers

are Any

explicitly Trustee Trustee

granted acting

to

the

Administrative other than as an

Trustee

hereunder. Administrative C. case shall of gross be

hereunder as

shall'act on or

an Independent Liability. misconduct, loss

Trustee. Except the in the

Limitations negligence liable or for

Trustee willful

Trustees or (2) any

not

(i) any to meet the

investment performance or be

(realized or

unrealized) other loss

failure the Trust,

objectives the

to

Recipient, shall of with the

Contingent to any losses or

Successor

Recipient. out incur of in

The the

Trustees assets

entitled for

indemnification expenses they

Trust

connection fees and

the

Trust,

including such or losses willful

I
reasonable or expenses attorneys' are due to disbursements, gross unless negligence the Trustees'

misconduct. Furthermore, have
°

(i)

the

Independent to

Trustees monitor

shall or

not

any

fiduciary the to actions any

responsibility ofthe for

observe,

evaluate be liable of

Administrative the failure to

Trustee seek to to

and remedy

shall a

not

party or in

breach

trust, from

a recurring having guilty and

situation jurisdiction of a gross the

request the of Trustee Trust,

instructions even if

a court may be

over violation

a Trustee duties

fiduciary

hereunder,

(ii) 16

Administrative

_,'z'_:_442_zlsv2

SANDS0505

,

'u

Case 1:06-cv-00407-ECH

Document 106-8

Filed 07/02/2008

Page 25 of 75

( shall or not not have the to any fiduciary of responsibility the for Independent the failure situation jurisdiction of a gross event with to observe, and to monitor shall a

evaluate be liable of

actions any or

Trustees to seek to

party in

remedy

breach

trust, from

a recurring having guiity

request the of Trustee which he, she the Trust,

instructions even if

a court may be

over violation

a Trustee duties be not review The

fiduciary hereunder or duty it is to

hereunder. for any to

In no matter

shall respect hereunder

any to

liable

authorized or monitor

participate trust

(including

investments). Article Shall an or of not act of apply to the

provisions application

of

this

(

extent
c

their in

would 4941(d) in

constitute of the Code

selfTdealing

as

defined

section defined Ti-ust (2)

a taxable the Code or would

expenditure disqualify in section

as the

section

4945(d)

as of

a charitable the Code.

remainder

trust

described

664(d)

NINTH: office Such without resignation

A. leave shall

Resignation. of court be to made at by any an

Any

Trustee and

may for

resign

from

time

any

reason.

acknowledged or if the

written is then

instrument deceased to

delivered the Estate

the

Grantor

Grantor

Fiduciary.

' _2:_442_11e_2

17 SANDS0506

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B. Robert Sands

Removal. or Richard York, by Sands, the or if

Any

Trustee may and adult such of the

acting be

hereunder by or James if

(other Locke,

than of

Sands) living

removed

Rochester, and the

New

compe6ent, and

not

living of

competent, Marilyn

eldest if no

competent is of the

descendant adult eldest and living

descendant person

competent, descendant

by of Any

the

guardian Sands.

Marilyn such

removal delivered and

shall to such

be the

made

by

an

acknowledged bank be or trust upon

written company such ,

instrument being

individual, shall

removed,
l

removal

effective

delivery. C. Appointment Trustee or the has the if acting there is of Successor Trustee. the successor Trustee or If there is no

Independent Trustee(s), hereunder Trustee Article

hereunder no

Independent acting if any this such of Sands of and if not

Administrative

successor removed

Administrative in accordance as the

Trustee(s), with case

been

paragraph may to be, the by by is

B of shall be

successor bank or

Trustee, trust

individual, Article and them

company as shall and

(subject be

provisions Richard one

SIXTEENTH Sands, living by

hereof) if and living

appointed or

Robert as is

competent, or if

such

competent, Sands, if

neither and

living or

competent, J _2:#4427118_2

Marilyn

living 18

competent,

sANDS0507

Case 1:06-cv-00407-ECH

Document 106-8

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Page 27 of 75

living or if

and not

competent, living and

by

James

Locke, by the

if

living

and adult

competent, and descendant of the

competent, of Marilyn by of the

eldest or of if

competent is adult

descendant and competent,

Sands, guardian

no

such person

the

eldest

living Any

descendant such

Marilyn

Sands. be made by an acknowledged or be trust effective

appointmentshall delivered and to the

written company upon

instrument being

individual,

bank shall

appointed,

such

appointment

such

delivery. D. No give Bond. a bond this No or person other acting security a bond is as in Trustee any shall be

required and, shall if be

6o

jurisdiction, no surety

despite required. E.

provision

required,

Compensation. its services and as such

Any agreed

corporate upon in

Trustee writing

shall by Any to is the

receive

payment

for

Independent Trustee his, by her the shall or

Trustees receive

corporate

Trustee. from time as

individual time for upon

such as

compensation Trustee

its

services (or, such after

hereunder death,

agreed Estate

Grantor and

the

Grantor's

the be to

Fiduciary) an and } _2:#442_zla_2

Trustee

(such

agreement-to delivered

evidenced

by

acknowledged any successor

written Trustee

instrument shall be 19

such as

Trustee), in

compensated

provided

SANDS0508

Case 1:06-cv-00407-ECH

Document 106-8

Filed 07/02/2008

Page 28 of 75

(
his, that her any or its instrument of the of appointment; Sands's provided, mother of however, shall any serve Trusteeas descendant without paid Marilyn The approval. be reimbursed from the Trust fees) or for all

Trustee may be

compensation. court

compensation

without Trustee

Any fees and

shall

expenses to as

(including his, her or

reasonable its

attorneys' removal

=

attributable appointment

resignation,

Trustee. herein contained compensation as trustee to shall in under time or of be excess the in construed of laws excess that of of to to the permit which State which

Nothing any the Trustee Trustee Alaska in to is

receive entitled

Ii

of is and

effect as

from

time for

that

reasonable section F.

defined (5) of

purposes Code.

section

4941(d)

(2) (e)

4945(d)

the of

Definition used in

Trustee. Agreement,

Wherever it shall

the be and time

term deemed to

"Trustees" refer

is

this

collectively

"to the

Independent hereunder Trustees" to refer acting

Trustees from is to

Administrative Wherever Agreement, Trustees· time. ! _2:#442_zz8_2 or the it

Tr_stee term shall

acting

to in

time. this

"Independent be deemed Trustee

used

the

Independent from is time used to in

Independent the term

hereunder Trustees"

Wherever

"Administrative 2O

SANDS0509"

Case 1:06-cv-00407-ECH

Document 106-8

Filed 07/02/2008

Page 29 of 75

,

this

Agreement,

it

shall

be or time. of

deemed

to

refer

to

the acting

Administrative hereunder from G.

Trustees time to

Administrative

Trustee

Definition

EstateJ

Fiduciary.

As

Used

in

this

Agreement, those death of the

the

term (acting

"Estate by as as

Fiduciary" vote)

shall who

mean upon

the the to

person Grantor's

or

persons is or

majority fiduciary

are

acting whether

with or

respect permanent

the

Estate

Grantor,

temporary or

administrator(s), provided, Grantor's is serving, however, death the under H.o this or Agreement,

executor(s) that no during Estate

personal period

representative(s); subsequent of the to the Estate or

any

when term the

Fiduciary the

Grantor's

shall Grantor's of

mean

nominated

executor

executors

Will. Competent_ will be For all purposes under

Definition an (i)

individual if two

considered who have be of

incapacitated personally the individual's shall and guardian Grantor, and be a

incompetent said

physicians (one of whom the

examined personal neurologist Grantor, person if J the

individual if

shall

physician, or if (or other

any,

and

other

whom

qualified and competent,

medical or if

professional) not, the of living

the of the or

living similar is

personal not living,

representative) the 21 eldest

the

Grantor

adult

_2:_442_zz8_2

SANDS0510

Case 1:06-cv-00407-ECH

Document 106-8

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competent descendant (or similar descendant individual financial expected judicially his or her

descendanz is adult

of and

Marilyn competent,

Sands, the of

if

any,

or of

if

no

such person

guardian the

the

personal of is Marilyn" having and

representative) Sands unanimously

eldest

living that the his is has to or her

conclude

substantial that such or

difficulty substantial (ii) or if such

managing difficulty individual unable competent

affairs to be

not been

short-term,

declared financial Any determined by by to an the the

incompetent affairs conclusion in by as

otherwise of

manage

a court to an with

jurisdiction. difficulty evidenced executed delivered considered paragraph this

individual's the foregoing to

substantial shall effect and is not be

accordance written to

acknowledged persons

instrument reach such

that

required

conclusion who to

Independent or

Trustees. incompetent competent

Any.person pursuant for all

incapacitated shall be

this under

considered

purposes

Agreement.

TENTH: shall be the

Taxable year.

Year.

The

taxable

year

of

the

Trust

calendar

i

22

_: .4427", 18v2

SANDS0511

Case 1:06-cv-00407-ECH

Document 106-8

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,

ELEVENTH: Amendment. irrevocable. power, required qualifies unitrust References incorporate "this Agreement acting for and within to The Trust

Trust

Irrevocable; under this

Limited Agreement however, in that

Power is shall any the

of

created

The

Independent to amend

Trustees, this of

have

the

alone, the sole

Agreement

manner Trust remainder

purpose to

ensuring as

continues the the

qualify of

a charitable 664(d) shall (2) be after to of

meaning and

section

the

Code. to

Code

Regulations or

deemed the

changes to

enacted whatever

promulgated is

date

of" such

extent

necessary

ensure

continuing

qualification.

I
TWELFTH: Agreement Trustees could income shall from be Investment construed the to of Trust Assets. the Nothing in this

restrict of the of

Independent in a manner amount assets. · that of

investing in the from

assets

Trust a

result or gain

annual the

realization or

reasonable of such

sale

disposition

THIRTEENTH: the Grantor shall J of hereunder. of this not

Not be

a Grantor under Code

Trust. Subpart as the

It

is E of

intended Part of the other any

that

treated 1 of the

I of Trust

Subchapter created provision

Chapter

owner

Accordingly, Agreement,

notwithstanding neither the Grantor

any nor

other

23

_2:_442_lzsv2

SANDS0512

Case 1:06-cv-00407-ECH

Document 106-8

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Page 32 of 75

l "nonadverse Code deal less or or no vote shall with than (2) to party" have or an the as that term (I) any is used in section exchange income money of or or the of 672(b) or the o_ the

power of

to purchase,

otherwise Trust worth, directly for

dispose adequate any without

principal.or in income

consideration principal adequate or

money's Trust,

borrow

indirectly, person or in direct in

interest shall or of of

adequate have the

security; power of the (i) a Trust to

a nonfiduciary the which from voting the the of or of

capacity stock

other the

securities and

corporation are

holdings viewpoint the

Grantor'

significant the

voting of or the by

control, Trust vetoing the

(2) to by

control directing

investment

assets

either

investments or

reinvestment to the

proposed assets in of the ".

investments Trust the the of consist holdings view the

rein-_estment of stocks the of or

extent of Trust (3) a

that

securities and the or
J

corporation are significant

which from" assets

of

Grantor

point or

voting

control, of any

to asset In

reacquire by

any

Trust property that the

any of an

portion

such

substituting the Grantor

other directs so

equivalent shall

value. be

addition, and

this Trust

Agreement is not

construed as

administered trust.

that

characterized

a grantor

24 _2:_44 __118_,2 SAN DS0513

Case 1:06-cv-00407-ECH

Document 106-8

Filed 07/02/2008

Page 33 of 75

FOURTEENTH: extent interest delivered If upon not in to prohibited the the Trust

A. for may,

Assignment charitable by an

of

Interests.

To

the any instrument

remainder

trusts, written

acknowledged be

Independent of receive any

Trustees, such

assigned the and regard

irrevocably. owns to the

completion right the to

assignment, amount

assignee the to such right any

entire receive

the

unitrust

Remainder in paragraph

(determined A of into A fee of

without

contingency shall effect

Article ownership Article

FOURTH),

assignment of any not with

a merger in paragraph for

(regardless to in the

contingency prohibited (" ; Revenue including 8613046

FOURTH) trusts,

extent

charitable 86-60 and

remainder various Ruling Ruling The addition

accordance rulings, Letter

Ruling

private 8311063, 9550026.

letter Private

Private and B. Private

Letter Letter

Ruling

Disclaimer. in

Recipient to any

and rights

the

Contingent on the

Successor Recipient are of

Recipient, or the at

conferred by Alaska after within or in part

Contingent any to time make of

Successor within nine

Recipient (9) months disclaimer in whole

law, the the or or to with date

authorized this Agreement of

a qualified the Code, parts,

meaning reference assets, l
_2:#4427118v2

section to

2518

specific interest,

amounts, right,

fractional or

shares power

of

any

privilege, 25

granted

SANDS0514

Case 1:06-cv-00407-ECH

Document 106-8

Filed 07/02/2008

Page 34 of 75

the may an the

Recipient be, by

or this

the

Contingent Any instrument

Successor such

Recipient, shall the may

as.the be

case by or

Agreement. written Successor

disclaimer by case

made

acknowledged Contingent to

executed as the

Recipient be, and

Recipient,

delivered

the

Trustee.

FIFTEENTH: required the is the State required provisions to of account Alaska by in

Trust any

Situs. court only

The other to

Trustee than one

shall of the

not

be of

courts

and

then of

the of

extent Alaska

such

accounting

the.laws of this

the

State

notwithstanding of the Trust shall

Agreement.

The

situs

(

be

deemed may

to be

be

the in

State any

of

Alaska,

although The

the

assets

of

the

Trust may, the an

kept prior

jurisdiction. of any court, within filed in this to

Independent the

Trustees situs of by of'the courts other

without Trust to

approval

change the with

another

jurisdiction instrument references deemed to refer

United the

States, records to the

acknowledged and

written

Trust, of

thereafter shall be

Agreement courts of

Alaska

the

such

jurisdiction.

SIXTEENTH: Gran_or's described l
_2:_4427118V2

Intent that the

To

Create

Alaska

Trust.

It be

is

the

intention in AS

Trust and 26

created (c).

hereunder

a trust the
t

13.36.035(a)

Accordingly,

unless,

SANDS0515

Case 1:06-cv-00407-ECH

Document 106-8

Filed 07/02/2008

Page 35 of 75

Independent another hereof, Trustee

Trustees

determine in

to

move with (a) at

the

situs

of

the

Trust

to

jurisdiction the of Grantor the Trust (b) the

accordance that be a of

Article all times

FIFTEENTH at least AS of one

directs shall duties is

"qualified that in the

person"

under

13.36.390(1), whether Trustee, shall records the some that

Trustee, capacity

regardless of

Trustee

acting

Investment Trustee, books arrange and for

Independent the

Trustee duty and

and/or

Administrative to prepare the

include of the

responsibility and to of

maintain or to

Trust of the

in Alaska the Trust tax

preparation assets of of AS

returns be and shall

Trust, in least Alaska and be and

(c) at Alaska part

least the

.i

shall

deposited (d) at occur in

within of the the

meaning

13.36.035(c)(i), of the Trust

administration meaning officers, out to of any and of AS

within that

13.36.035(c)(4). and employees, by any the loss

Each if Trust of

Trustee any, shall

Trustee's

agents, held

indemnified all liability by the the

harmless for or

from kind by

any

beneficiary of any action

any taken

that the

may

result and with

reason Trustee's

non-action and

Trustee

officers, in this

agents, Article.

employees

in

accordance

directions

Notwithstanding to the contrary, any

anything

contained

in

this

Agreement must be

successor

Administrative 27

Trustee

_2:#442_118v2

SANDS0516

Case 1:06-cv-00407-ECH

Document 106-8

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domiciled being

in

the

same unless

jurisdiction the

as

the

Administrative consent in a

Trustee to the

replaced, of

Independent Trustee unless situs all the of times

Trustees domiciled

appointment different have least bank

an

Administrative and, the at

jurisdiction, to change

Independent the be Trust an

Trustees from. Alaska, or a at

determined one or

(i) Trustee company

must

individual

trust

domiciled

in Alaska.

SEVENTEENTH: Trustees Schedule , the terms acknowledge hereto set

Trustees receipt and this

Acknowledge property the Trust

Receipt. set forth

The in the upon

of'the accept

annexed forth in

hereby

created

Agreement.

EIGHTEENTH: effective by the upon last of the the later

Effective of (i) and

Date. the the of

The

Trust of to

shall this

be Agreement it forth or in

execution Grantor the

Trustees to the

execute set

(ii) the

the

transfer hereto term

Trustees For shall the

property of the

Schedule the

annexed transfer receive of in the

purposes mean assets or the or by

preceding in to time the evidence of the when

sentence, the

moment title

Trustees in

actually the of name it

property of

Trustees account

confirming in the name

ownership

a trust

held

Trust.

28 _2:.442_zz8_2 SANDS0517

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NINETEENTH: shall of the extend Grantor to and and be upon

Successors binding the

and upon

Assigns. successors of the

This

Agreement assigns

the

and

successors

Trustees.

TWENTIETH: signed original. as original in counterparts Facsimile copies.

Counterparts. which copies together of signed

This shall

Agreement constitute shall

may

be an

originals

be

treated

..IN WITNESS signed this Agreement

WHEREOF, the day

the and

Grantor year

and

the above

Trustees written.

have

first

[i

Richard

_nds,

Grantor Trustee

and

Independent

Robert

Sands,

Independent

Trustee

ALASKA TRUST COMPANY, Administrative Trustee

By: Name: Title:

J
N'Y2 : _4427118v2

29

SANDS0518

Case 1:06-cv-00407-ECH
4

Document 106-8

Filed 07/02/2008

Page 38 of 75

sTArE oF
COUNTY OF 73%e_re___

) :
)

SS.:

.On before me,

the

/_ %

day

of

_[_g.

in appeared

the. year RICHARD basis of

2001 SANDS,

the known

undersigned, to me or to

personally proved be the to me

personally satisfactory subscribed that he

on
J

the

evidence to the

individual and by the such he his

whose

name

is to on the me

within the same,

instrument and that

acknowledged signature as made
#

executed the

instrument,, and

individual Trustee,

executed and that

instrument individual

Grantor such

Independent

(

appearance

before

the

undersigned

in _'rD_r_

/-

Notary

PL_I_

c

JUDITH A. CELENTANI Notary Public in the State of NewYork County of Ontario #4762158 Commission Expires December 31 ,_)E)_

NY2

: _4427118v2

SANDS0519

Case 1:06-cv-00407-ECH

Document 106-8

Filed 07/02/2008

Page 39 of 75

(
STATE COUNTY OF OF _kj_ _ )
: SS.:

_/6'_i_A__ - )

On before me,

the

/_/_

day

of

_
U

in appeared me on the

the

year

2001 SANDS,

the

undersigned, to me or to

personally proved be the to

ROBERT basis of

personally satisfactory subscribed that he

known

evidence to the

individual and by the he his

whose

name

is to on the me

within the same,

instrument and that

acknowledged signature as such

executed the

instrument, Independent

individual and

executed that such

instrument made

Trustee,

individual

_

appearance

before

the

undersigned

in _x_'___

/

No64r
Notary

ublic

KAREN J MEGAFFEE Pubhc. State of New York /No 01ME5037146 Ontario Counw ,_¢ Cornm=ss,on Exp=res December 19. _J"-_

_:#442vlla_2

SANDS0520

Case 1:06-cv-00407-ECH
0g/21/2001 10: BZ FAX g072_a£_4_l

Document 106-8

Filed 07/02/2008

Page 40 of 75
_008

AL_.SKA"CRT.15T CO_P_"

·

.

.I

,

NINETEENTH:
:hall of the extend Grantor to and and b_ upon

Successors
blndln_ the

and Assigns.
the succQasor= of the

This Agr_emQnt
and assigns

upon

succassor_

Trustees.

TWENTIETH:

Counterparts.

This

Agreement

may

bc

:£gn_d in counterparts
original. as original Facsimile copies.

which t_ge_her
copies of siqnad

shall constitute
originals _hall

an
b, _rsated

_N WITNESS signQd this Agreement

WH_BEOF, tho d=y

£he mnd

Grantor year

and

the above

Truat_es written.

have

first

Richard Sands, Independent

Grantor Trust,a

and

_obert

Sands,

Independent

Trustee

AIJLgKA TRUST COMPANY-. Admlnia trativ, Trustee

'

"

. %

Ns.me

",.

:

&
i
"%

SANDS0521

Case 1:06-cv-00407-ECH

Document 106-8

Filed 07/02/2008

Page 41 of 75

S_ATE

OF

ALASKA

} : _s. :

THIRD

JUDICIAL On

DISTRICT the _day undersigned, to m_

} of _ personally _o me in th. year at 20_,

b_for_

-_e, the

_ppeare__--C_n_ on the baals of is to ma

plreonaLiy eatlsfac%ory suBsczlbed that ---_h_ described [s)he to knows

known

or p_oved to ha th.

Ividence _o

_ndivldual and he

who*a

name

".h_ wi_hin

instrument,

acknowledged

__i_#_" in and th_ whioh seal is of

o£

ALASKA

TRUST the

COMPANY,

the

corporation that KZfixed So

executed said

foregoin_ _hat

in,frument; 1:ha seal it was

oZ

corporation; s_al;

said

lustrument by order

_uch

corpora%_ of

tha£ of lik_

affixed and the _ .

the

Board the

Directors by

said

corporation, in its muds

(s)he

exocutmd

ins£rument Trustme and

ordsr,

capacity suck

as Administrative before the

_hat in

such

Individu_l Alaska,

appear_nc_

undcralgnsd

Anchorage,

"%....

,.J"

.o

SANDS0522

Case 1:06-cv-00407-ECH

Document 106-8

Filed 07/02/2008

Page 42 of 75

CO Y
2 3 4 5 6 7 8 9 i0 ii 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Reported COMPUTER Amy 270 16 M. by: REPORTING Condon, CSR, Arcade Street New York 14614 (585) SERVICE RPR Building notice Suite Deposition at 300, of RICHARD SANDS Brands, New a.m. York on taken 370 pursuant THE ALPHA ROBERT I, L.P., a by and through partner, (into which have IN THE UNITED STATES No. been COURT 06-407T consolidated 06-411T, Nos. 06-408T, 06-811T) OF FEDERAL CLAIMS 06-409T, 06-410T, 06-810T, X ) ) )Case ) STATES, ) ) X No. 06-407T

i

SANDS, Plaintiff -vs-

notice

UNITED

Defendant

to Drive, 12, 2007

Constellation Fairport, at 9:30

Woodcliff June

Tuesday,

commencing

Reynolds East Main

Rochester,

325-3170

_COMPUTER

REPORTING

SERVICE

Case 1:06-cv-00407-ECH

Document 106-8

Filed 07/02/2008

Page 43 of 75
2

2 3 4 5 6 7 8 9 I0 II 12 13 14 15 16 17 18 19 2O 21 22 23 24 25

APPEARANCES: SUTHERLAND, By: KENT JULIE 1275 L. ASBILL JONES, & BRENNAN, Esq. Esq. Avenue, 20004 N.W. LLP

BOWLING,

Pennsylvania D.C., for

Washington, Attorneys

plaintiff.

U.S. By:

DEPARTMENT MICHELLE THOMAS M. C.

OF

JUSTICE Esq. Esq. Suite 400

JOHNS,

HERRIN,

717

North

Harwood Texas for

Street,

Dallas, Attorneys

75201 defendant.

COMPUTER

REPORTING

SERVICE

Case 1:06-cv-00407-ECH

Document 106-8

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Page 44 of 75

1

R.

Sands

- Examination

by

Ms.

Johns

72

2 3 4 5 6 7 8 9 I0 Ii 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Gloria A. Q.

Robinson? The So concept were you was any individual seeking investor. independent

actively

investors? A. Q. to here is Actively, So the no. independent Robinson? I'm going when to, He keeps I'm to you I mean object say -the figure out who the to the form investor we're referring

Gloria MR.

JONES:

of

the

question. we're MS.

I mean, referring JOHNS:

independent

investor

mentioning to

independent that is.

investors.

trying

THE investors continue BY MS. Q. Partners? A. Q. A. Q. A. Yes. Who The Who in to JOHNS: Did

WITNESS: we did that. it

If in

we're the form

taking of

nonfamily LLCs. We

do

Gloria

Robinson

have

an

interest

in

RRM&C

is

Gloria of

Robinson? Freddy Robinson? is the head of Bernard Robinson.

mother is

Freddy Robinson

Freddy

COMPUTER

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Case 1:06-cv-00407-ECH

Document 106-8

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Page 45 of 75
73

1

R.

Sands

- Examination

by

Ms.

Johns

2 3 4 5 6 7 8 9 i0 ii 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Robinson been for Q. A. Q. was what a

accounting quite Was

who

is

our

accounting

firm.

It

has

a while. Gloria was from RRM&_ married _arried the to to facts Bernard Bernard. of and the in case Beta. that Is Gloria that Robinson?

Gloria I partner know in

Partners

you A. Q. A. Q.

recall? Yes. Why She Would in Yes. Did you these ask RRM&C her a speak with Gloria for one and in both for Beta. these about her -I'm I'm I'm speak to did Gloria to be as invest make the in RRM&C Partners?

wanted that Beta

money. same answer about her

investment A. Q. going not to going

well?

ask to to

questions separate Partners investment

entities. each one. Did two you

referring Gloria A. Q. money? A. didn't Q.

about No. Did

entities?

she

approach

you

about

investing

the

I don't approach Do you me

recall

who

approached

who.

She

directly. who she would have approached?

know

COMPUTER

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Case 1:06-cv-00407-ECH

Document 106-8

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Page 46 of 75

i
2 3 4 5 6 7 8 9 i0 ii 12 13 14 15 16 read on I, RICHARD the SANDS, of 12, do my hereby certify as said of that taken STATE COUNTY OF NEW YORK ) ) WITNESS CERTIFICATE OF MONROE

119

I have under oath is a

transcript June

testimony and that

Tuesday,

2007

transcript was and asked, that

true,

complete and on

and said

correct during therein,

record said and

what

answered answers conformity correct.

deposition, as may be

the in and

record with

modified are

the

attached

errata

sheet,

true

18 19 20 21 Subscribed and sworn to before me

22 23 24 25

this 0./_ day Notary Public

of

j&t_

, 2007

_ ___._6__

Notary Public, State ofNewYork No.01806037148 Qualified inOntario County KAREN SORCE le, 20/./ JD Commission Expires eoember

COMPUTER

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Case 1:06-cv-00407-ECH

Document 106-8

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Page 47 of 75

2 3 4 5

In

the

Matter

of: X ) ) )Case

ALPHA ROBERT

I, L.P., by and through SANDS, a notice partner, Plaintiff

No.

06-407T

-vsTHE UNITED STATES, Defendant

)
) ) X

6 7 8 9 10

Errata on

sheet

for June

the 12,

Deposition 2007.

of

RICHARD

SANDS

taken

Tuesday,

PAGE

LINE

REMARKS

12 13 14 "7 D @ ! "_ II ,'/

S_d

b_

h

S _ _,',l_.p_,l__,_,le P _,,,,,,,,t,_/," l,. 7 ql
,I _I _)% '-_"1, /" II

19 20 21 22

I OI

114

"

Y_IO

III

7_

23
24 25

COMPUTER

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Case 1:06-cv-00407-ECH

Document 106-8

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Page 48 of 75

ORIGINAL
2 3 4 5 6 7 8 9 i0 ii 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Reported COMPUTER Amy 270 16 M. by: REPORTING Condon, CSR, Arcade Street New York 14614 (585) SERVICE RPR Building notice Suite 2007 Deposition at 300, of ROBERT SANDS Brands, New 9:30 York a.m. on taken 370 pursuant Woodcliff to THE ALPHA ROBERT I, L.P., a by and through partner, Case No. 06-407T (into which have IN THE UNITED STATES NO. been COURT 06-407T consolidated 06-411T, Nos. 06-408T, 06-811T) OF FEDERAL CLAIMS 06-409T, 06-410T, 06-810T, X

1

SANDS, Plaintiff -vs-

notice

UNITED

STATES,

Defendant X

Constellation Fairport, at

Drive, June 13,

Wednesday,

commencing

Reynolds East Main

Rochester,

325-3170

--li_i_B_

IOMPUTER

REPORTING

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Case 1:06-cv-00407-ECH

Document 106-8

Filed 07/02/2008

Page 49 of 75
2

2 3 4 5 6 7 8 9 I0 II 12 13 14 15 16 17 18 19 2O 21 22 23 24 25

APPEARANCES: SUTHERLAND, By: KENT JULIE 1275 L. ASBILL JONES, & BRENNAN, Esq. Esq. Avenue, 20004 N.W. LLP

BOWLING,

Pennsylvania D.C., for

Washington, Attorneys

plaintiff.

U.S. By:

DEPARTMENT THOMAS MICHELLE M.

OF

JUSTICE Esq. Esq. Suite 400

HERRIN, C. JOHNS,

717

North

Harwood Texas for

Street,

Dallas, Attorneys

75201 defendant.

COMPUTER

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Case 1:06-cv-00407-ECH

Document 106-8

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Page 50 of 75

1

R.

Sands

- Examination

by

Mr.

Herrin

99

2 3 4 5 6 7 8 9 i0 ii 12 13 14 15 16 17 18 19 20 21 22 23 24 25

name

is Q.

-

Stalling, There are

and no

Freddy Sands

Robinson. family members that are

trustees? A Q A. Q A Q employee, A. Q. A. Q. A. Q. A. Q. A. Company. Q. Support were being Now, Fund shortly was named do you after as the the Educational before and the Health CRUTS of it No. Who He's Help What Is a He Is he is -us do an James what out you Lock? do here. want to of is he at know? yours, is he -an you mean who is he?

attorney How attorney a Rochester

friend? is that a an

associated Nixon firm?

Peabody.

It's Do Yes. Is Yes. And He's he

national have

firm. a Rochester office?

they

in

the

Rochester

office?

how an

about

Wes

Stalling? at Bernard Robinson and

accountant

trustee the

terminated, terminated?

recall

circumstances

COMPUTER

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Case 1:06-cv-00407-ECH

Document 106-8

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Page 51 of 75

i
2 3 4 5 6 7 8 9 I0 Ii 12 13 14 15 read I, ROBERT the SANDS, of 13, do my hereby certify as that taken I have under oath is STATE COUNTY OF NEW YORK ) ) WITNESS CERTIFICATE OF MONROE

transcript June

testimony and that

on Wednesday, a true, answered answers conformity correct.

2007

said of what

transcript was and asked,

complete and on said

and

correct said

record

during therein,

deposition, as may be

that

the in and

record with

and

modified are

the

attached

errata

sheet,

true

17 18 19 2O 21 22 23 24
2 5

Subscribed this Notary _/_
¢

and

sworn

to

before

me

day Public

of

O_//"

, 2007

Notary Public, tate NewYork S of
No, 01 S05037146 Qualified in Ontario County Commission Expires Dee,ember 19, _)£_

COMPUTER

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Case 1:06-cv-00407-ECH

Document 106-8

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Page 52 of 75

2 3 4 5 6 7 THE 8 9 I0 Ii 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Errata on sheet for the Deposition 2007. REMARKS of ROBERT SANDS taken ALPHA ROBERT I, L.P., by and through SANDS, a notice partner, Plaintiff -vsUNITED STATES, Defendant In the Matter of: X ) ) )Case ) ) ) X

No.

06-407T

Wednesday,

June LINE

13,

PAGE

COMPUTER

REPORTING

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Case 1:06-cv-00407-ECH

Document 106-8

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Page 53 of 75

Case 1:06-cv-00407-ECH Direc_tors ExecutiveOfficers and

Document 106-8

Filed 07/02/2008

Page 54 of 75

Directors Richard Sands Chairman of the Board, Constellatmn Brands, lnc. Robert Sands President and Chief kxecutwe Constellation Brands, Inc.

Executive Officers Richard Sands Chairman of the Board, Constellation Brands, Inc Robert Sands Pres_denl and Ch|ef Executive Officer, Constellation Brands, Inc F. Paul Hetterich Executive Vice President, Business Developmenl and Corporate Constellatmn Group, 1,LC; Lid. Brands, Inc.

Officer,

Barry A. Fromberg' Renred &ore Dean Foods Company leananne K. Hauswald 2

Strategy,

Managing Partner, Solo Management Retired from The Seagram Company

Thomas I. Mullin Executive Vice President and General Counsel, Constellalmn Brands, Inc.

James A. Locke 1II _ Semor Counsel to the law firm of Nixon Peabody LI.P Thomas C. McDermott '`_ Chairman of GPM Assocmtes, I,LP Peter M. Perez-' Fxecuttve V_ce President, ConAgra Foods, inc.

Robert Ryder Execuuve Vice Piesident and Chief Finan(_al Officer, Constellauon Brands, Inc. W. Keith Wilson Executive Vice President Constellauon Alexander

Human

Resources,

and Chief Administrative

Officer,

Brands, Inc. L. Berk _ Beets arid Spit its

Paul I,. Smith _'' Retired From Eastman Kodak Con'tpany Peter H. Soderberg 2 President and Chief gxei.utwe Olhcer, Hfll-Rom Holdings, [nc

Chmf Fxecutive ()fficct, (. ortstelhmon lose F. Fernandez "* Chief Exet+utwe Ofhcer, Constellation Jon moramarco**

Wines Nm lh America

Mark Zupan' Dean, William E Simon GI aduate School of Business Admmtstrat|on, Umversity of P,ochester

Chief Executive Officer, Constellation

International

_ Member of Audit Committee Member of Human Resources Committee ' * Membel of ('otpotate Governance Conmnttee

Mr. Berk is employed by l+',arton Incolporaled are employed by

"'+ Messrs. Fernandez and Moramatco Constellation Brands, Inc.

102

Cur3tellahor

Br3nds, I_-_ r

Case 1:06-cv-00407-ECH

Document 106-8

Filed 07/02/2008

Page 55 of 75

IN THE UNITED STATES COURT OF FEDERAL CLAIMS No. 06-407 T (into which have been consolidated Nos. 06-408 T, 06-409 T,06-410 T,06-411 T,06-810 T,06-811 T) Judge Emily C. Hewitt

ALPHA I, L.P., BY AND THROUGH ROBERT SANDS, A NOTICE PARTNER Plaintiff, v. THE UNITED STATES, Defendant.

) )

)
)

)
) 06-407 T

)
)

)
)

.) )
BETA PARTNERS, L.L.C., BY AND THROUGH ) ROBERT SANDS, A NOTICE PARTNER )

)
Plaintiff, v. THE UNITED STATES, Defendant. )

)
) 06-408 T

)
)

)
)

) )
R, R, M & C PARTNERS, L.L.C., BY AND THROUGH R, R, M & C GROUP, L.P., A NOTICE PARTNER, Plaintiff, v. THE UNITED STATES, Defendant. ) ) )

)
)

)
) 06-409 T

)
)

)
)

) )

AO 1729535 1

Case 1:06-cv-00407-ECH

Document 106-8

Filed 07/02/2008

Page 56 of 75

R, R, M & C GROUP, L.P., BY AND THROUGH ROBERT SANDS, A NOTICE PARTNER Plaintiff, v. THE UNITED STATES, Defendant.

) )

)
) ) 06-410 Y

)
)

)
)

) ) )
CWC PARTNERSHIP I, TRUST FBO ZACHARY ANDREW STERN AND TRUSTEES, A NOTICE Plaintiff, v. THE UNITED STATES, Defendant. BY AND THROUGH STERN U/A FIFTH G. MARILYN SANDS, PARTNER, ) ) ) )

)
)

)
) 06-411 T

)
)

)
)

) ) )
MICKEY MANAGEMENT, L.P., BY AND THROUGH MARILYN SANDS, A NOTICE P