SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO RULE
13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO RULE 13d-2(a)
Winston Resources, Inc.
(Name of Issuer)
Common Stock, $.01 par value
(Title of Class of Securities)
975661109
(CUSIP NUMBER)
Joel A. Klarreich, Esq.
Newman Tannenbaum Helpern Syracuse & Hirschtritt LLP
900 Third Avenue
New York, New York 10022
(212)508-6700
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
June 8, 1999
(Date of event which requires
filing of this statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g) check the following box
[]
Page 1 of 4 Pages
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| CUSIP NO.975661109 | 13D | Page 2 of 4 |
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1 NAME OF REPORTING PERSONS
IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Joel A. Klarreich, Trustee u/a dated 6/8/99 by Seymour Kugler, as
Grantor
13-7193684
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS
OO
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) [ ]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
U.S.A.
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NUMBER OF | 7 | SOLE VOTING POWER
SHARES | | 245,000 of Common Stock
BENEFICIALLY | 8 | SHARED VOTING POWER
OWNED BY | | 0
EACH | 9 | SOLE DISPOSITIVE POWER
REPORTING | | 245,000 of Common Stock
PERSON WITH | 10 | SHARED DISPOSITIVE POWER
| | 0
- - ------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
245,000 of Common Stock
- - ------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
- - ------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.58% of common stock (See Item 5)
- - ------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
OO
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Page 2 of 4 Pages
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CUSIP No. 975661109 SCHEDULE 13D
Item 1. Security and Issuer.
Security Acquired: Common Stock
Issuer: Winston Resources, Inc. (the "Issuer")
535 Fifth Avenue
New York, NY 10017
Item 2. Identity and Background.
(a) Joel A. Klarreich, as Trustee u/a dated 6/8/99 by Seymour Kugler, as
Grantor (the "Trust") is a trust established pursuant to a Trust Agreement (the
"Agreement") dated June 8, 1999, between Seymour Kugler (the "Grantor") and Joel
A. Klarreich (the "Trustee" and, together with the Trust, the "Reporting
Persons").
(b) The address of the Reporting Persons is c/o Joel A Klarreich, Esq.,
Newman Tannenbaum Helpern Syracuse & Hirschtritt LLP, 900 Third Avenue, New
York, New York, 10022.
(c) The Trust is a passive entity which has no other assets than 245,000
shares of the Issuer. The Trustee is a partner at Newman Tannenbaum Helpern
Syracuse & Hirschtritt LLP.
(d) During the last five (5) years, neither Reporting Person has been
convicted in a criminal proceeding.
(e) During the past five (5) years, neither Reporting Person was, a party
to a civil proceeding of a judicial or administrative body of competent
jurisdiction and as a result there of, subject to any judgment, decree or final
order enjoining future violations of, or prohibiting or mandating activities
subject to, federal or state securities laws or finding any violation with
respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration.
The trust acquired the stock of the Issuer from the Grantor pursuant to the
Agreement.
Item 4 Purpose of Transaction
The purpose of the transactions reported by this Schedule 13D is investment
in the securities of the Issuer. Neither Reporting Person has plans or proposals
which would result in any of the following:
(a) the acquisition by any person of additional securities of the Issuer,
or the disposition of securities of the Issuer;
(b) an extraordinary corporate transaction, such as a merger,
reorganization or liquidation, involving the Issuer or any of its subsidiaries;
(c) a sale or transfer of a material amount of assets of the Issuer or any
of its subsidiaries;
(d) any change in the present board of directors or management of the
Issuer, including any plans or proposals to change the number or term of
directors or to fill any vacancies on the board;
(e) any material change in the present capitalization or dividend policy of
the Issuer;
(f) any other material change in the Issuer's business or corporate
structure;
Page 3 of 4 Pages
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(g) changes in the Issuer's charter, by-laws or instruments corresponding
thereto or other actions which may impede the acquisition of control of the
Issuer by any person;
(h) causing a class of securities of the Issuer to be delisted from a
national securities exchange or to cease to be authorized to be quoted in an
interdealer quotation system of a registered national securities association;
(i) causing a class of securities of the Issuer to become eligible for
termination of registration pursuant to Section 12(g)(4) of the Act; or
(j) any action similar to any of those enumerated above.
Item 5. Interest in Securities of the Issuer.
(a) - (b) As of the date of this Schedule 13D, the Trust owns 245,000
shares of the Issuer's common stock, representing approximately 7.58% of the
Issuer's 3,233,521 shares outstanding as of May 7, 1999 (based upon information
obtained from the Issuer's latest 10-Q).
(c) Other than the receipt of stock by the Trust on June 8, 1999, neither
Reporting Person had any transactions in the securities of the Issuer during the
past sixty (60) days.
(d) Not applicable.
(e) Not Applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships with
Respect to Securities of the Issuer
Trust Agreement between Seymour Kugler and Joel A. Klarreich dated June 8, 1999.
Item 7. Material to be Filed as Exhibits
Trust Agreement between Seymour Kugler and Joel A. Klarreich dated June 8, 1999.
Signatures
After reasonable inquiry and to the best of our knowledge and belief, the
undersigned certifies that the information set forth in this statement is true,
complete and correct.
Dated: June 18, 1999
/s/Joel A. Klarreich
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Signature
Name/Title
Joel A. Klarreich, as Trustee
Page 4 of 4 Pages
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EXHIBIT
TRUST AGREEMENT made this day of June, 1999, between SEYMOUR KUGLER, of
Woodmere, New York, as Grantor, and JOEL A. KLARREICH, of New York, New York, as
Trustee.
ARTICLE FIRST: TRANSFER TO THE TRUSTEE
The Grantor hereby transfers and delivers to the Trustee, and the Trustee
acknowledges receipt, IN TRUST, of the property identified on Schedule A hereto.
Such property and all investments and reinvestments thereof which constitute
principal are hereinafter collectively called "principal." The trust created
hereunder shall be known as the "1999 Sy Kaye GRAT," and no additional
contributions to the trust hereunder may be accepted by the Trustee from anyone.
ARTICLE SECOND: DISPOSITION
A. The Trustee shall hold, manage, invest and reinvest the principal of the
trust, and from the date of this Trust Agreement until the first to occur of:
(1) the fifth anniversary thereof and (2) the death of the Grantor (the "Trust
Term") the Trustee shall pay to or for the benefit of the Grantor in each
taxable year of the trust an annuity amount equal to the initial net fair market
value of the assets of the trust as of the date they are contributed to the
trust, as finally determined for Federal gift tax purposes, multiplied by the
applicable percentage as provided in the following schedule:
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Trust Periods Applicable Percentage
June 8, 1999 to December 31, 1999 9.3519%
January 1, 2000 to December 31, 2000 18.3604%
January 1, 2001 to December 31, 2001 22.0324%
January 1, 2002 to December 31, 2002 26.4389%
January 1, 2003 to December 31, 2003 31.7267%
January 1, 2004 to June 7, 2004 14.8016%
The annuity amount shall be paid in annual installments from income and to
the extent income is not sufficient, from principal. An annuity payment may be
made after the close of a taxable year, provided the payment is made no later
than the date by which the Trustee is required to file the trust's United States
income tax return for such taxable year (without regard to extensions). Any
income of the trust for a taxable year in excess of the annuity amount shall be
added to principal. If the net fair market value of the trust assets as of the
date hereof is incorrectly determined, then within a reasonable period after
that value is finally determined for Federal gift tax purposes the Trustee shall
pay to the Grantor or the legal representatives of the Grantor's estate (in the
case of an undervaluation) or shall receive from the Grantor or the legal
representatives of the Grantor's estate (in the case of an overvaluation) an
amount equal to the difference between the annuity amounts properly payable and
the annuity amounts actually paid.
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B. During the trust term, the Trustees shall not pay or apply any portion
of the income or principal of the trust to or for the benefit of any person
other than the Grantor or the legal representatives of the Grantor's estate;
provided, however, that this provision shall not be construed to prevent the
payment by the Trustees of any expenses properly chargeable to the trust estate.
C. The Trustee may, in the exercise of discretion, reimburse the Grantor to
the extent taxes imposed on the Grantor with respect to the trust's income and
capital gains exceed the amount actually distributed.
D. The Grantor's or his estate's interest in the trust shall in no event be
commuted.
E. The Grantor shall have the power, exercisable in any capacity and
without the approval or consent of any person in any capacity, to reacquire any
trust property by substituting other property of an equivalent value, at any
time up to and including the final distribution of the trust property.
F. If the Grantor is living upon expiration of the Trust Term, all
principal and income of the trust, after payment of the final annuity amount to
the Grantor, shall be distributed to the then living children of the Grantor, in
equal shares. If the Grantor is not living at the expiration of the Trust Term,
the Trustee shall distribute all then remaining principal and income of the
trust as the Grantor may appoint by his Will by specific reference to this power
of appointment, or, to the extent such power of appointment shall not be
effectively exercised, to the estate of the Grantor.
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ARTICLE THIRD: TAXABLE YEAR
The taxable year of the trust shall be the calendar year. The first taxable
year of the trust shall begin with the date hereof and shall end on December 31,
1999. In accordance with Article Second, Paragraph A, in determining the annuity
amount the Trustees shall prorate the same on a daily basis for a short taxable
year, including the trust's first taxable year and the taxable year in which the
trust term ends.
ARTICLE FOURTH: QUALIFIED ANNUITY INTEREST
The Grantor intends by this Agreement to retain a qualified annuity
interest within the meaning of Section 2702 of the Code and the Treasury
Regulations promulgated thereunder. This Agreement shall be construed, payments
hereunder shall be made, and the trust created hereunder shall be administered,
in strict accordance with that intent. If such section or regulations, or any
successor section or regulations, or any ruling, notice or other administrative
pronouncement issued thereunder at any time requires that a qualified annuity
interest must contain provisions that are not expressly set forth herein, such
provisions shall be incorporated into this Agreement by reference and shall be
deemed a part of this Agreement to the same extent as though expressly set forth
herein.
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ARTICLE FIFTH: TRUSTEE POWER TO AMEND
This Agreement and the trust hereby created shall be irrevocable, but the
Trustee shall amend the trust to the extent required for the sole purpose of
ensuring that the Grantor's interest qualifies and continues to qualify as a
qualified annuity interest within the meaning of Section 2702 of the Code and
the Treasury Regulations promulgated thereunder.
ARTICLE SIXTH: SUCCESSOR TRUSTEES
A. Each individual acting as a Trustee hereunder, whether named herein or
appointed pursuant to the provisions hereof, is authorized and empowered to
appoint an individual, other than the Grantor, to act in his or her place if he
or she shall cease to act as a Trustee for any reason. Each such appointment
shall be made by an instrument of appointment signed and acknowledged by the
appointor and delivered to the appointee; and any such appointment may be
revoked in the same manner by the appointor at any time before such instrument
shall, by its terms, become effective.
B. Each individual acting as a Trustee hereunder may resign at any time, by
a signed and acknowledged instrument of resignation delivered to his successor;
provided, however, that if there shall be no successor appointed pursuant to
this Article who shall be willing and able to act, the individual who is
resigning shall first appoint a successor as provided in the preceding
paragraph. Any such resignation shall become effective upon the receipt of such
instrument of resignation by the successor, or at such later time or occurrence
as may be specified therein.
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C. No bond or other security shall be given by or required in any
jurisdiction of any Trustee at any time acting hereunder for the faithful
performance of such Trustee's fiduciary duties in any capacity hereunder.
D. Each original Trustee named herein shall be entitled to receive such
compensation for acting as Trustee as shall be agreed upon in writing by such
Trustee and the Grantor, or if there shall be no such agreement, as allowed by
law. Each other Trustee shall be entitled to receive such compensation for
acting as Trustee as shall be agreed upon in writing by such Trustee and the
person who appointed such Trustee, or if there shall be no such agreement, as
allowed by law.
ARTICLE SEVENTH: ACCOUNTS
A. If any person who is, or would be, a party to any proceeding involving
any trust hereunder has the same interest therein as a person who is under the
age of eighteen (18) years or is otherwise under a disability within the meaning
of SCPA 103, it shall not be necessary to serve process on such person under
disability.
B. In order to avoid the expense and delay attendant upon a judicial
settlement of the account of the Trustee, the Trustee may at any time or from
time to time render an account of his acts and transactions to all persons upon
whom service of process would be required in a proceeding for the judicial
settlement of such account. Said persons shall have full power to settle finally
any such account and, upon the basis thereof, to release the Trustee,
individually and as Trustee, from all liability, responsibility and
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accountability for his acts or omissions. Such settlement and release shall be
binding upon all persons interested in such trust, even if then minors, under
any other legal disability or as yet unborn, and shall have the full force and
effect of a final judgment or order of a competent court in an appropriate
action or proceeding for an accounting in which jurisdiction was obtained of all
necessary and proper parties. The executor, administrator, guardian, successor
or other legal representative of a Trustee who shall be unable personally to
render such an account may do so on behalf of such Trustee. The foregoing
provisions shall not, however, preclude the Trustee from having an account
judicially settled, if that course be deemed preferable.
C. No Trustee shall be accountable, liable or responsible for any act,
default, negligence, or omission of any other Trustee.
ARTICLE EIGHTH: TRUSTEE POWERS
To the extent consistent with Articles FIRST through SEVENTH above, any
trustee acting hereunder shall be vested with full power, discretion and
authority with respect to all matters herein entrusted to the Trustee, including
(but without limiting the generality of the foregoing or the powers given them
by law) full power, discretion and authority:
1. To retain any property received and to invest or reinvest in any
property, real or personal, including, without limitation, corporate stocks of
any class, mutual funds, life insurance policies, interests in general or
limited partnerships, limited liability companies, or investment trusts, or
common trust funds or other internally managed funds of a corporate fiduciary if
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one shall then be acting, without regard to diversification or to the
speculative nature of such investments, and whether or not such investments
shall be income-producing or of the kind in which fiduciaries shall be otherwise
legally authorized to invest, and to hold any such investment for such period of
time as deemed advisable.
2. To purchase any property at its fair market value, including but not
limited to works of art or other tangible personal property, real estate, or
interests in closely held businesses, and to retain property so purchased so
long as the Trustee may deem advisable, without regard to diversification or the
production of income.
3. To sell, exchange, or otherwise dispose of any property, real or
personal, or to make, renew or modify contracts for the disposition thereof,
publicly or privately and for cash or on credit, with or without security and at
such times as deemed advisable; and to grant options to any such end, without
regard to any legal restriction as to their duration or otherwise.
4. To acquire joint investments or investments in undivided interests in
any property, including any outstanding interest in any such investment already
held.
5. To lease or sublease any property, without regard to any legal
restriction as to duration or otherwise, whether the same be held in severalty
or as tenant-in-common with others or in a partnership, syndicate or joint
venture or otherwise; to release and convey any undivided interest in any such
property for the purpose of effecting partition thereof and to pay any sums
needed for equality of partition; to make, extend, renew or foreclose mortgages,
pledges or loan agreements upon or affecting such property; to execute bonds,
notes or other instruments of indebtedness to accompany the same; to repair,
alter, subdivide, develop, reconstruct, improve or otherwise deal with any such
property and grant to others, including a lessee or sublessee, the right to do
so.
6. Insofar as legally permissible, to take and hold any property in an
individual name, in the name of one or more nominees or in unregistered form,
without in any such case disclosing the fiduciary relationship.
7. To remove any property held hereunder from one jurisdiction to another
and to hold and administer any property held hereunder in any jurisdiction in
the United States.
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8. To effect and keep in force title, fire, theft, liability, casualty or
other insurance to protect any property against hazards.
9. To settle, adjust, compromise, submit to arbitration, release or
otherwise settle any dispute, claim or controversy.
10. To enter into, extend, renew or modify any contracts or other
undertakings.
11. To borrow money from any individual, partnership, corporation or other
entity (including any of the Trustees or an entity with which any of the
Trustees shall be connected, as investor, employee or otherwise), in order to
pay any and all charges against any trust hereunder or for any other fiduciary
purpose, and to mortgage or pledge any property to secure any such borrowing.
12. To lend to any beneficiary hereunder, for a fixed term or to be repaid
on demand, property of a trust hereunder, in such amounts, with or without
security, at such a rate of interest and upon such other terms and conditions as
deemed advisable; and to declare such loan to be in default and to exercise all
remedies provided under the instrument or under the law governing the instrument
for the collection thereof.
13. To participate in any plan of foreclosure, reorganization,
recapitalization, consolidation, merger, combination, division, liquidation or
dissolution or other comparable plan; to consent to or dissent from any such
plan or any action thereunder or to or from any contract, lease, mortgage,
pledge, purchase, sale, exchange or other action by any corporation; to deposit
any property with any protective, reorganization or similar committee; to
delegate discretionary powers thereto and to share in its expenses and
compensation; and to take and hold any property derived under any such plan or
action.
14. To pay calls, assessments and any other sums chargeable or accruing
against or on account of stocks, bonds, securities, options or other property,
whenever such payment shall be legally enforceable or be deemed advisable; to
exercise voting rights and to grant proxies, discretionary or otherwise, with
respect thereto; to participate in voting trusts; to sell, grant or exercise any
conversion, subscription or other rights or options as to any property, and
generally to exercise all rights, powers and privileges which may be lawfully
exercised by any person owning similar property in his or her own right.
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15. To execute and deliver any instrument incidental to the exercise of any
power conferred hereby or by law.
16. In any case where doubt or uncertainty exists under applicable law or
this Agreement, to determine how receipts or disbursements are to be credited to
or charged against principal or income hereunder; and to amortize or refrain
from amortizing premiums on bonds or other securities which the Trustee may
purchase or receive.
17. To make division, distribution or payment in cash or in kind or partly
in each, allotting like or different property or property having like or
different income-tax bases to any separate shares or other interests; and
insofar as legally permissible, to fix the value of any such property for any
such purpose; all without the necessity of obtaining the consent of any
interested party, whether or not such party be under any legal disability;
provided, however, that any property shall be divided, distributed or paid at
its fair market value at the date of such division, distribution or payment.
18. To make or refrain from making elections permitted under any applicable
tax law without regard to the effect of any such election on the interest of any
beneficiary of any trust hereunder and, if any such election shall be made, to
apportion or refrain from apportioning any benefits thereof among the respective
interests of the beneficiaries hereunder, all in such manner as deemed
appropriate.
19. To abandon any property, real or personal, which they shall deem
worthless or not of sufficient value to warrant retention or preservation.
20. To receive by way of compensation such commissions as shall from time
to time be allowed by law or as shall have been otherwise agreed or provided for
herein, and to retain them without judicial authorization and without giving
bond or other security for the payment of such commissions or in any proceeding
for a payment on account of such commissions.
21. To employ any persons, firms or corporations as depositaries,
custodians, investment counsel, brokers, accountants, attorneys, experts and
agents, even if any of them should be a Trustee hereunder or a person or entity
with which a Trustee hereunder shall be connected, as investor, employee or
otherwise; to rely upon their conduct or advice; and to pay them reasonable
compensation and for all proper expenses and charges, which payments shall not
reduce the compensation to which a Trustee would otherwise be entitled.
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22. To rely, in acting hereunder, upon any letter, notice, certificate,
report, statement, instrument, document or other paper, whether an original or a
photocopy, and whether transmitted by mail, facsimile or electronic mail, and
upon any telephone, facsimile, electronic mail, cable, radio or other message,
if believed to be genuine and to be signed, sealed, acknowledged, presented,
sent, delivered or given by or on behalf of the proper person, firm or
corporation, without incurring liability for any action or inaction based
thereon.
23. To use their best judgment in exercising the powers, rights and
discretions conferred or in performing the duties imposed hereby or by law and,
in order to feel free in doing so, to be exempt from personal liability, to the
maximum extent permitted by law, for any action taken or omitted in good faith;
and, if more than one shall be acting, no one of the Trustees shall be
responsible for any act or omission of any other one of the Trustees.
24. To the extent permitted by law, to delegate to any person (including a
co-Trustee), upon such terms as may be specified in a signed writing, any
powers, rights, discretions or duties including, without limitation, the
authority and power to (i) sign checks, drafts, or orders for the payment or
withdrawal of funds from any bank account in which funds of a trust hereunder
shall be deposited, (ii) execute sales, transfers and deliveries or purchases or
other acquisitions of any property and (iii) gain access to any safe deposit box
and to remove the contents and release and surrender the same.
25. To assume, in the absence of written notice to the contrary from the
person or persons concerned, that a fact or an event by reason of which an
interest under this Agreement shall arise or terminate does not exist or has not
occurred, without incurring liability for any action or inaction based upon such
assumption.
26. To continue to have and exercise, after the termination in whole or in
part of the trust hereunder and until the final distribution of the property
thereof or subject thereto, all powers, rights and discretions conferred hereby
or by law during the existence of the trust.
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ARTICLE NINTH: DEFINITIONS
Wherever hereinafter used in this Agreement:
A. The words "Trustee" shall mean the Trustee hereinbefore named, any
successor Trustee appointed in accordance with the provisions hereof or by a
court of competent jurisdiction, and the survivor or survivors of them, as may
be acting hereunder from time to time.
B. The words "descendant" and "descendants", when used with respect to any
person, including the Grantor, shall be deemed to include every individual who
is born to or lawfully adopted by such person, or who is otherwise descended
from such person, whether by birth or by lawful adoption, or by a combination
thereof.
C. A disposition to the descendants of an individual "per stirpes" shall
mean that the property subject to such disposition shall be divided into so many
equal shares that there shall be one such share in respect of each then living
child of such individual, if any, and one such share in respect of each then
deceased child of such individual of whom there shall be descendants then
living. A share in respect of a deceased grandchild or more remote descendant of
such individual shall be further divided into equal shares in the same manner as
provided in the preceding sentence.
D. The word "Code" shall mean and refer to the Internal Revenue Code of
1986, as amended from time to time.
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ARTICLE TENTH: GOVERNING LAW
This Agreement shall be construed and administered and the validity of the
trust hereby created shall be determined under the laws of the State of New
York.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and
seals the day and year first above written.
______________________________
Seymour Kugler, as Grantor
______________________________
Joel A. Klarreich, as Trustee
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STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the ____ day of June in the year 1999, before me, the undersigned, a
Notary Public in and for said State, personally appeared SEYMOUR KUGLER,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual whose name is subscribed to the within instrument, and
acknowledged to me that he executed the same in his capacity, and that by his
signature on the instrument, the individual, or the person upon behalf of which
the individual acted, executed the instrument.
______________________________
Notary Public
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the ____ day of June in the year 1999, before me, the undersigned, a
Notary Public in and for said State, personally appeared JOEL A. KLARREICH,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual whose name is subscribed to the within instrument, and
acknowledged to me that he executed the same in his capacity, and that by his
signature on the instrument, the individual, or the person upon behalf of which
the individual acted, executed the instrument.
______________________________
Notary Public
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SCHEDULE A
245,000 shares Winston Resources, Inc. common stock
___________________________________
Seymour Kugler, Grantor
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