ZZZ[1] shall act as the Special Trustee hereunder for the sole purpose of exercising any and all discretion relating to the operation, conduct, management, liquidation, sale, incorporation, capitalization and all other matters in connection with any interest in [ZZZ][2] [any business, corporate or otherwise, in which the Settlor, directly or indirectly, holds the largest voting interest of any persons holding an interest in such business, or holds a significant (as determined by the Trustee) voting interest in such business,][3] [any business or businesses, corporate or otherwise, engaged directly or indirectly in ZZZ][4] if such business interest is owned by the Settlor or held by the Trustee as part of the trust estate at the time of the Settlor’s death.
For such purposes, the Special Trustee shall have the sole power and authority, in addition to the powers set forth herein or otherwise conferred by law: to determine whether such business interest shall be retained as part of the trust estate after the Settlor’s death, and, if so, for what period of time; to participate in the management of such business and to receive such compensation for such participation as may be reasonable; to engage, compensate or discharge such managers, agents, employees, attorneys, directors, accountants, consultants or other representatives as the Special Trustee may determine, including the engagement, compensation or discharge of any beneficiary or Trustee or of any employee of a beneficiary or of a Trustee, even if the same are affiliated with the Trustee or Special Trustee; to vote any and all shares of stock in such business held as part of the trust estate; to expand, limit alter, incorporate or reorganize such business in any way the Special Trustee deems advisable; to invest in, lend to or guarantee the obligations of such business and to use as collateral for loans to, or guaranties for, such business, any other assets of any trusts hereunder; to sell all or any part of such business interest at such times and prices and upon such terms and conditions (including sales to any beneficiary or Trustee, or any employee of a beneficiary or of a Trustee, or to any corporation directly or indirectly controlled by any beneficiary or Trustee) as the Special Trustee determines; and, in all cases, to exercise any and all powers and authority with respect to such business interest that the Settlor could have exercised if then living.
Any Special Trustee may resign upon at least thirty (30) days prior written notice to the then acting Trustee, or if there is no then acting Trustee, then to the person or persons designated to appoint a successor Trustee. Any individual Special Trustee who becomes incapacitated shall be deemed to have resigned until such time as such incapacity shall have ceased. In addition, the then acting Trustee may remove any Special Trustee upon at least thirty (30) days prior written notice to such Special Trustee, and may at any time appoint any one or more individuals or a corporation with trust powers to act in place of such former Special Trustee. In the event any Special Trustee, whether an original or a successor Special Trustee, shall die, become incapacitated or otherwise cease to act as a Special Trustee, and there is no successor Special Trustee designated, then the other persons who are then acting as the Trustee under this Trust Agreement may either (i) exercise the foregoing power and authority as if there were no Special Trustee hereunder, in such manner as the Trustee determines to be in the best interest of the beneficiaries and the trusts hereunder, or (ii) appoint one or more individuals or a corporation with trust powers to act in place of such former Special Trustee.
The Special Trustee shall exercise the power and authority granted herein in a fiduciary capacity; provided, however, that neither the Special Trustee nor any other Trustee shall at any time be held liable for any loss resulting from the retention and operation of such business interest, regardless of any potential conflict of interest with respect thereto, unless such loss results directly from the Special Trustee’s or the other Trustee’s willful misconduct or fraud. In determining any question of liability for losses, it should be considered that such business interest is being retained at Settlor’s express request. During such time as the Special Trustee is acting hereunder, no other Trustee, other than the Special Trustee, shall be liable for any loss resulting from the retention and operation of such business interest. Upon the liquidation, sale or other distribution of the business described herein from the trust estate, the Special Trustee shall cease to act as a Special Trustee, and shall be discharged of all further duties and obligations hereunder.
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[1] Insert name of Special Trustee.
[2] Insert name of specific corporation here if you want to reference the Settlor’s business by name, and then delete language between next two sets of brackets.
[3] Include language in this set of brackets if you want to allow any business to be handled by the Special Trustee, and then delete language from brackets before and after this language.
[4] Include language in this set of brackets if you want to reference the type of business, and then delete language from the two preceding sets of brackets.