t?t 15/EE 15: 2? PELilT HO.

139 DE3

t' I ..'

that r{ during my lifetime, I have taken sny significanr steps to

Grefltg such a chariry but have not complcted the Process of creilting
such charity, then I direct that my Exesutor endeavor to corBplrtr
the crearion of such charity in a rnanner that wi[ qualifr for the
federal E$tErE tax charitable dduction pursuant to Section 205 5 of
the Code, as well as the income tax deduction under Section 170(b)
ofthe Code, and that the eutire residue of my estatB pa$s to such
charity. In this regard, my Executor may rely or s.ny written or oral
instruitions provided by rnc outside of this Wtll, but shall not be
.required ts io rety, in implementing rny wishes as dessribed herein.

?.3. Allernative Gift

If r have not creatEd or tahen significant steps to create such

a shariry or if rhe crearion of +uch chrrity was begun during my
lifetime but my Extrcutor determines ur his absolute discretion that
it is not rga^$onably possihle to cornpletE the creation of such charity
after my degth a.$ provided abov+, then my Extrptor shall distributB
the residue of my estflre to the Hational Audubon Sociery, InE-,
Irlew Yorlq Hew Ynrk,;

and

WHEEEAS the certificate of incorporation for the LerE Foundation was filed with
was
the office of the Secrgtary of Stata ofNew York on June 15, 1998, and its tax'exernPt status
F

duly confirmed bythe Internal Revenue ServiEe pumuaflt to a Notiee of Exemption dated

September 16, 1998; urd

WHEREAS the Lenz Foundadon was creatnd by the Executor in aceordance with
had the
his beEef rhat Lenz took "signiflcarrt srepsn during his lifetimc to create a charity that

pn*"ry purpo$E describsd in Anicle II of the Will; artd

WHEREAS on December E, 1998 the Audubon $ociety f,led a petition (the

Lenz did
',petidon,') seekhg the Court's construction of the Will based, in pan, on its belief that
not ta1ce ,'rigniffcarrt atepr" during his lifetirnp to crcate such a eharity and thet, accordingly, the

decedenr,s residuary ertate should be disuibuted to the Audubon sociery; and

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a
12./15/Eta 15: 2E PETJT Flrl. 139 FE14

WHEREAS on JanuEry 26" 1999 the Executor moved for summary judgment

seeking (i) a deterrnination that the conditions for distributing the decedent's residuary e$ate to

the Lens Foundation had been satisfied and (ii) dismissing the Audubon Society'* Petition; and
WHEREAS the LerE Foundation joined in the Executo/s rnotion and tttc

Audubon Sooiety opposed the Executo/s motioq and

WHEREAS by decision and order dated April 27, 1999 the Coun denied the

ExeeutoCs motion ruling; rmong other thingq that the Petition raiscd genuinc issues of disputed

fact; and

WHEREAS there currently edsts a genuine controversy concerning whether or

not Lenz took "significant stepB" during his lifetime to ereete a charity that hnd the primary

purpose described in Artisle II ofthe Will; and

WHEREAS the partier wished to avoid thc mpense and uncertainty of prolonged

litigation and to resolve their diffErcnccs in accordance with the terms of this Senltrnent

Agreement; and

WHEf,EAS the parties have agreed to settle tlre corrtroversy by means of a

paymenr of S8.7 million to the Audubon Society, the distribution of the decedent's remaining

residuery estate to the Lelu Foundation and other Eood and valuable considEralion including acts

of recognition of thE decedent hy the Audubon Society.

HOW THEREFORE, in consideration ofthe foregoing and for other good and
valuable cousideratioq ineluding the mutual covenants described below, the parties Bgree f,s

follows:

l. SEIILE|EMISE:LmGATTOH

The parties hereby agree to execute this Settlement Agreemeff- Upon its being

duly executed by atl of the parties hereto and returned to caunEel for the Audubon Society, in care

ofAndrew D. Schau and/or Susan F, Bloom at Patterson, Belknap, Webh & Tyler LLP, 1133

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12/15,.'ELl 15: ZB pEtAtT
Nil.133 FEs

Avenue ofthe Americas, New York. New York 10035, said Settlement.Agreemenr shall within 3

business days thereof be submitted to the Surrogate of Wesrchester County by said counsel for

the Audubon Society for ths purpose of being "So Ordered" by the Surrogate. At such tirne as

the Settlement Agreement is "So Qrdered" the litigation shall be deemed settled with the approval

of the Court and rhe Petition dismissed with prejudice. Concurrent with the suhmission of the

executed Settlement Agreement to the court, ths Executor shall deliver to his counsel, David M.

Warren at Kronish Lieb Weiner & Hellman LLP, the payment described in paragraph "2" hereofl
Each pany shall bear its own costs and attonteys' fees with respect to this proceeding.

7- pAylt4EFrr T0 THE AUIUBON SOCr_Ejfy

Within l0 business days of this Settlement Agreement being "So Ordered" by the
Surrogate ofWestchester County, counsel for the Executor shell deliver to counsel for the

Audubon Society fln estate check made payable to the Audubon Society irr the sum of S8,700,000
(the " Stipulated Amorrnt").

3. B+eoclurl0N..offHE DECEDENT

In recognition ofthe decedent's charimble intentions, the Audubon Society shall

take the following steps: (i) place plaques in the decedent's honor (a) irr the entranco area and (b)

on the roof garden ofthe Audubon Society's national headquarters located at 700 Broadway,

New Yorh New Yorh (ii) take out a full-page advertisement in Audubon thanking the decedent,

the Lene Foundation and Marcus for the gEnerous gift and (iii) name the hemlock gorge of
approximately 5O acres at the Sharon Audubon Center "The Frederick P. Lenz, III Mediration
Gorge," The entrance area plaque shall be not less than four inches by eight inches. The plaque

on the roof garden shall be not less than twelve inches by eighteen inches. The sign at the gorge

shall be not less than two feet by three feet. lmplementation of the steps described in this
paragraph shall be a condition srrbsequent (the 'eondition subsequent") to the Executor's

obligation to pay the Stipulated Amount. Accordingly, if within six months of the execution r:f

-t-
t?.r 15./EtA 15: 2_3 PEhJT f,lrl. 139 FEE,

this Stiputation, the Audubon Sociery has not raken all of rhe sreps described in this paragraph,

the Audubon Society shall promptly return the Stipulated Amount to the Executor. If, for arry

reasorL the plaques and sign shall be removed (other than for painting or maintenance) such

removal shall nor constitute a breach of the condition tubsequent- Marcus shall, however, have

the right to direct that such plaques and sigrr be replaced.

4. MUTUALEELEASES

Concurrent with the exesution of this Settlement Agreemenl Marcus agrees to

execute a release in the form annexed hereto ag Exhibit A, the Lenz Foundation agrscs ts Execute

a relea,se in the form annexed hereto as Exhibit B, and the Audubon Society aglees to exesute a
release in the form annexed hereto as Exhibit C (collectively the "releases"). The releases signed

by Marcus and the Lenz Foundation shall be delivered io counsel for the Audubon Society who

shall hold said releases in escrow until this Settlement Agreement has been "So Ordered" by the

Surrogate of Westchester Courrty and the payment described in paragraph "2'' hereof has been

made arrd the check for said paymeff has cleared. The release signed by the Audubort Society

shall be delivered to counsel for Marcus who shall hold said release in escrow until this Settlement

Agreement has been "So Ordered" by the Surrogate of Westchester County and the payrnent

described in pragraph "2" heresf has been made and the check for said paymcnt has cleared. At

such time as this Settlement Agreement has been "So Ordered," said paymEnt made and said

check cleared, the releases shall be released from escrow ro the respective parties.

5. WANIEB OF'RIGIITS

In consideration sf the ExesutoCs payment of the Stipulated Amount, and

conditional upon the receipt of said payment in full, the Audubon Society waives, releases and

relinquishes all further right and interest of any kind whatsoever in and to the decedenr's EEratE,

ineluding, without limitation, any clairn as a beneficiary, legatee, or creditor, the right ro

participate in any respect in any accounting proceeding relating to the ExecutoCs transactions, and

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12/15,.'Erl 15: ZB FBLilT
ND.139 FE?

the right to object to, oppose or challenge in any respect the adminisrration and distribution of the

decedent's e$ate,

6. MrscEtit.AHEqusfnoyrstor{s

a. Each of the panies hereto shall execute any and all documents, includirrg such

waivers or further stipulations, as may be necessary to implement the terms of this Settlemerrt

Agreement.

b, Each of the parties acknowledges and confirms that this Settlement Agreement is

entered into without any rspresentations or warranties having been made, except as expressly $et

fonh.

c- This SettlemEnt Agreement may be executed in two or mors counterpartq each of

which, when executed, shall be deemed to be an origfuial and all of sush counterparts together

shall constitutE one Settlemrnt Agreement.

. d. This Settlement Agreement shall be hindirrg upon and Enure to the benefit of the

heirs, successors, admini$rators, executors and assigns of the parties.

e. The Surrogate's Couft of Westchester County shall retain jurisdietion over all

parties to this Settlement Agreement in order to implement and carry out its tentrs-

IN WITNESS WHEREOF, the parties have executed this Stipulation as of the

date flild year tirst nbove writtcn ')
/

DATED: /
NORMAT,I MARCUS, individually, and a$
Executor of the Last Will and
Testament of Fredenck P Lenz, III

{-
 12,'L5,'E1E 15 r 29 PBL,JT t.tD. 1f3 FEE

L-
{lfilfrltrrA

I
t

TFIE FREDERICK P, LENZ FOLINDATIOhI

FOR AJVIER]CAhI
B UtrDHISh,I

+
DATED
ll
t,'
Authorized

NATIONAL AUDUBON SOCIETY. INC

DATED tlti
-. i {, - r,L;

Authorized Signatory

ELIOT L. SPITZER
Attorney General of the Srate of Hew York

DATED By,
Authorized Signatory

7
LZi15,"Era 15: 38 PEIAIT
r-{rl. 139 FEB

grI. t r^ur F\ A l-

THE FREDER]CK P LENZ FOUNDATION

FOR AIITERICA}I B UDDHI S IVI

DATED
Authorized Signatory

NATIONAT ATJtrUBOI''I SOCIETY, TNC

DATED: By
Authorieed Signatory

ELIOT. L, SPITZER
Attorney General of tha State of New York

+snlf, Ey

fril'U;iffi{#'' rftflrt
14
E\ z;aotr
So Ordered
Hon, Alberl J. Ernanuelli
Surrogate Westchester County

W
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