IN THE CHANCERY COURT FOR DAVIDSON COUNTY, TENNESSEE AT NASHVILLE In the Matter of FISK UNIVERSITY, as recipient of a gift from No. 05-2994-I11 Georgia O'Keeffe, now deceased and who made such gift under the power granted to her by the Last ‘Will and Testament of Alfred Stieglitz, Petitioner. AMENDED PETITION OF FISK UNIVERSITY PURSUANT TO THE CY PRES DOCTRINE ‘Comes now the Petitioner, Fisk University (“Fisk”), as recipient of a charitable gift from Georgia O’Keeffe (“O’Kecffe”), alleging as follows: INTRODUCTION 1. Fisk, a private, not-for-profit, institution of higher education located in Nashville, Tennessee, brings this amended petition for modification, under the Court’s cy _pres power, of restrictions on an att collection donated to Fisk by O'Keeffe. 2. In 1949, Fisk received as a charitable gift from American modernist O'Keeffe a collection of art comprised of photographs and other artworks from the estate of her husband, renowned photographer Alfred Stieglitz, as well as certain artworks of her own (collectively, the “Collection”). 3. In donating the Collection to Fisk, O’Keefié imposed certain conditions, among them requirements that the Collection be kept intact and that it be displayed to the public at Fisk to promote of the study of art. For nearly three quarters of a century, Fisk displayed the Collection according to O’Keeffe’s conditions. oonsas924)4, Fisk now faces financial circumstances that jeopardize its viability. At present, Fisk’s financial projections reveal that it will face a negative cash position on or before December 15, 2007, without an unexpected infusion of cash. Moreover, as explained later in this petition, Fisk’s financial condition endangers its continued status as. an accredited institution. Loss of accreditation would likely require Fisk to declare bankruptey and/or dramatically scale back or cease operations as an educational institution. ‘These developments would preclude display of the Collection at Fisk. Additionally in light of its Ginaricial predicament, it will be impractical for Fisk to comply with the gift conditions by December 15, 2007. 5, Faced with these circumstances, Fisk in 2005 initiated this litigation to seek permission to sell two paintings from the Collection. ‘The Court declined to grant Fisk such permission, and set for trial certain counterclaims asserted by the Georgia O'Keeffe Foundation, substituted now by the Georgia O’Keeffe Museum (“Muscum”). Before trial, Fisk and the Museum reached a settlement involving the sale of the Collection's signature piece, O’Keefe’'s Radiator Building, to the Museum for $7.5 million, This settlement was rejected by the Court as not in the best interests of the people of Tennessee, in light of a written expression of interest in the Collection by Alice ‘Walton, founder of Crystal Bridges - Museum of American Art, Inc. (“Crystal Bridges"). ‘The letter from Alice Walton was made to the Attorney General of Tennessee, in the event the settlement agreement was rejected. ‘The Court found the proposal by Alice ‘Walton more consistent with O’Keeffe’s conditions and donative intent. 6. Fisk and Crystal Bridges have now reached agreement on the terms proposed by Ms. Walton, Under the agreement (“Agreement”, Exhibit 1), CrystalBridges is to purchase a 50% undivided interest in the Collection for $30 million; Fisk and Crystal Bridges will jointly own the Collection, which will be kept wholly intact end made available to the public one-half time at Fisk and one-half time at Crystal Bridges for study and public appreciation. In addition, the Agreement effectuates O’Keeffe’s intent that the Collection be properly maintained and safeguarded. 7, While Fisk's financial situation now makes it impractical to comply with the literal terms of O’Keeffe’s gift, Court approval of the Agreement would allow Fisk to honor O’Keeffe’s intent as much as is practicable. PARTI 8, Fisk is a private, not-for-profit, liberal arts institution of higher education, founded in 1866 and located in Nashville, Tennessee. Fisk is accredited by the Southern ‘Association of Colleges and Schools and is a member of the United Negro College Fund. 9. The Attomey General of Tennessee has an interest in the subject matter of this petition, under certain Tennessce statutes applicable to charitable bequests. 10. The Georgia O'Keeffe Museum is a not-for-profit corporation organized ‘under the laws of New Mexico and located in Santa Fe, New Mexico. FACTS ‘The Stieglitz ill 11, Alfred Stieglitz, acclaimed photographer, collector and dealer of American modem att, died in New York City on July 13, 1946. In his Last Will and Testament and Codicil (“Will”), he provided for the disposition of photographs and artworks in his collection. (Exhibit 2).12, In Article Two of the Will, Stieglitz provided his wife, American modemist O'Keeffe, with the right, during her lifetime, to transfer his personal property to non-profit organizations: “My said wife shall also have the right, during her lifetime, to transfer said property or any part thereof, without receiving any consideration, to one or ‘mote corporations, such as are described in Article THIRD of this Will, and as she may select or cause to be incorporated.” 13. In Article Three of the Will, Stieglitz provided that any of his photographs and artworks not disposed of by O’Keefie during her lifetime be transferred to non-profit corporations under arrangements allowing public access to promote the study of art: “Upon the death of my wife . . . I give and bequeath so much of my entire collection of photographs (including those produced by me) and other works of art as shall not have been disposed of by my said wife to one or more corporations . . . such property to be received and held by such corporation or corporations under such arrangements as will assure to the public, under reasonable regulations, access thereto to promote the study of art, but no corporation shall be entitled to share in this bequest any part of whose net earnings shall inure to the benefit of any private stockholder or individual or any substantial part of whose activities shall be carrying on propaganda, or otherwise attempting to influence legislation.” 14, The Will was admitted to probate in New York County Surrogate’s Court ‘on September 17, 1946, (Exhibit 3). 15. During the probate process, an issue arose as to whether dispositions under ‘Article Three of the Will could exceed a limit on the value of charitable bequests imposed by Section 17 of the Decedent Estate Law, thereby rendering the Will invalid. To resolve the Section 17 issue, O'Keeffe proposed to donate immediately all of Stieglitz’s photographs and artwork, pursuant to Article Two of the Will, to six non-profit institutions that met the conditions set forth in Article Three. Such donation would not exceed the limits of Section 17, and no art would be left to dispose. The institutions werethe Metropolitan Museum of Art, the Art Institute of Chicago, the National Gallery of Art, the Philadelphia Museum of Art, the Library of Congress and Fisk. (Exhibit 4). 16. The Court found that such disposition eliminated the Article 17 issue, and approved the disposition. (Exhibit 5 at 48). k University’s Continuing Legacy of Excellence 17. Sinee its inception in 1866, Fisk has emerged as a celebrated liberal arts university and a flagship institution among the nation’s historically black colleges and universities. As Nashville's first university, Fisk is unmatched in the pre-professional preparation and training of Aftican Americans. 18, Even before regional accreditation was available to African American institutions, Fisk gained recognition by leading U.S. universities. In 1930, Fisk became the first African-American institution to gain accreditation by the Southem Association of Colleges and Schools. Fisk was also the first such institution to be placed on the approved lists of the Association of American Universities (1933) and the American Association of University Women (1948). Today, one of every five African-American doctors, lawyers and dentists is a Fisk graduate, 19, _ In the past two years, despite the school’s financial difficulties, Fisk has demonstrated its excellence both to the state of Tennessee and the nation. According to a recent National Science Foundation report, Fisk graduates more African Americans who g0 on to eam their doctorate degrees in the natural sciences than any school in the nation. Further, according to the Department of Education, Fisk has an annual economic impact of $42 million on the city of Nashville. Fisk ranks in the top-fifty baccalaureate institutions in producing African-American science and engineering doctoral degree