Exhibit 10(e)(ii)
Amended and Restated Trust
under the Pension Equalization Plan
and Certain Contractual Arrangements
of The Pittston Company
AMENDED AND RESTATED TRUST AGREEMENT ("Trust Agreement") made
as of this 1st day of December, 1997, by and between THE PITTSTON COMPANY (the
"Company") and THE CHASE MANHATTAN BANK, as Trustee (the "Trustee").
WHEREAS, the Company (i) has entered into, and from time to
time may enter into, contractual arrangements with certain individuals that have
been designated by the Company to receive supplemental pension payments funded
through the trust established pursuant to this Trust Agreement (collectively,
the "Contracts") and (ii) adopted The Pittston Company Pension Equalization Plan
(the "Plan"); and
WHEREAS, the Company has incurred or expects to incur
liability under the terms of the Plan and the Contracts with respect to the
individuals participating in the Plan or covered by the Contracts; and
WHEREAS, the Company has previously entered into a Trust
Agreement dated September 16, 1994, with the Trustee for the purpose of
establishing a trust (the "Trust") and
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contributing to the Trust assets that shall be held therein, subject to the
claims of the Company's creditors in the event of the Company's Insolvency (as
hereinafter defined) until paid to Participants and their Beneficiaries (as
hereinafter defined) in such manner and at such times as specified in the Plan
and/or Contracts; and
WHEREAS, the Company and the Trustee wish to amend and restate
said Trust Agreement to accelerate the level of contributions thereto and to
make certain other changes therein; and
WHEREAS, it is the intention of the parties that the Trust
shall constitute an unfunded arrangement and shall not affect the status of the
Plan as an unfunded plan maintained for the purpose of providing deferred
compensation for a select group of management or highly compensated employees
for purposes of Title I of the Employee Retirement Income Security Act of 1974;
and
WHEREAS, it is the intention of the Company to make
contributions to the Trust to provide itself with a source of funds to assist it
in the meeting of its liabilities under the Contracts and/or the Plan.
NOW, THEREFORE, the parties do hereby agree that the Trust
shall be comprised, held and disposed of as follows:
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Section 1. Definitions. As used in this Trust
Agreement, the following words and terms shall have the
meanings specified below:
"Beneficiary" means the beneficiary or beneficiaries last
designated by the Participant in writing under the Plan or Contracts.
In the absence of an effective designation or if the final surviving
designated beneficiary has predeceased the Participant, the Beneficiary
shall be the Participant's estate. In the event the Participant is
survived by a Beneficiary who dies after payments to the Beneficiary
have commenced but before receiving all amounts due him or her under
the Plan or Contract, any remaining amounts shall be paid to an
alternate beneficiary designated by the Participant or, in the absence
of an alternative surviving Beneficiary, to the estate of the last
surviving Beneficiary.
"Change in Control" shall be deemed to occur (a) upon the
approval of the shareholders of the Company (or if such approval is not
required, the approval of the board of directors of the Company (the
"Board") of (i) any consolidation or merger of the Company in which the
Company is not the continuing or surviving corporation or pursuant to
which the shares
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of all classes of the Company's common stock ("Common Stock") would be
converted into cash, securities or other property other than a
consolidation or merger in which holders of the total voting power in
the election of directors of the Company of all classes of Common Stock
outstanding (exclusive of shares held by the Company's affiliates) (the
"Total Voting Power") immediately prior to the consolidation or merger
will have the same proportionate ownership of the total voting power in
the election of directors of the surviving corporation immediately
after the consolidation or merger, or (ii) any sale, lease, exchange or
other transfer (in one transaction or a series of transactions) of all
or substantially all the assets of the Company, (b) when any "person"
(as defined in Section 13(d) of the Securities Exchange Act of 1934, as
amended (the "Act")) other than the Company, its affiliates or an
employee benefit plan or trust maintained by the Company or its
affiliates, shall become the "beneficial owner" (as defined in Rule
13d-3 under the Act), directly or indirectly, of more than 20% of the
Total Voting Power, or (c) if at any time during a period of two
consecutive years, individuals who at the beginning of such period
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constituted the Board shall cease for any reason to constitute at least
a majority thereof, unless the election by the Company's shareholders
of each new director during such two-year period was approved by a vote
of at least two-thirds of the directors then still in office who were
directors at the beginning of such two-year period. A Change in Control
shall be deemed to take place upon the first to occur of the events
specified in the foregoing clauses (a), (b) and (c) but in no event
shall the occurrence of any Change in Control effect the
responsibilities of the Trustee under this Agreement until personnel of
the Trustee with responsibility for the administration of the Trust
have actual knowledge of a current report or statement to the effect
that a Change in Control has occurred.
"Insolvent" means (a) the inability of the Company to pay its
debts as they become due or (b) the Company being subject to a pending
proceeding as a debtor under the United States Bankruptcy Code.
"Participant" means an individual who is entitled
to a benefit under the Plan or who is a party to one of
the Contracts.
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Section 2. Establishment Of Trust.
(a) The Company has deposited with the Trustee in
trust the sum of $1,000.00 which became the principal of the Trust to be held,
administered and disposed of by the Trustee as provided in this Trust Agreement,
as amended and restated.
(b) The Trust hereby established shall be
irrevocable on and after December 1, 1997.
(c) The Trust is intended to be a grantor trust, of which the
Company is the grantor, within the meaning of subpart E, part I, subchapter J,
chapter 1, subtitle A of the Internal Revenue Code of 1986, as amended, and
shall be construed accordingly.
(d) The principal of the Trust and any earnings thereon shall
be held separate and apart from other funds of Company and shall be used
exclusively for the uses and purposes of Participants and general creditors as
herein set forth. Participants and their Beneficiaries shall have no preferred
claim on, or any beneficial ownership interest in, any assets of the Trust. Any
rights created under the Plan, Contracts and this Trust Agreement shall be
unsecured contractual rights of Participants and their Beneficiaries against the
Company. Any assets held by the Trust will be subject to the claims of the
Company's general creditors
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under federal and state law in the event the Company becomes
Insolvent.
(e) The Company, in its sole discretion, may at any time, or
from time to time, make additional deposits of cash or other property, which
property shall be acceptable to the Trustee, in trust with the Trustee to
augment the principal to be held, administered and disposed of by the Trustee as
provided in this Trust Agreement. Except as provided in paragraph (f) below,
neither the Trustee nor any Participant or Beneficiary under the Plan or
Contracts shall have any right hereunder to compel such additional deposits.
(f) Anything in this Agreement notwithstanding, by September
1, 1999, or if earlier, upon a Change in Control, the Company shall make
irrevocable contributions to the Trust in amounts so that the Trust will have
sufficient assets to pay each Participant or Beneficiary the benefits to which
they would be entitled pursuant to the terms of the Contracts and Plan as in
effect on December 31, 1998, or the date on which the Change in Control
occurred, as applicable. The amount of any such contributions shall be
determined by Xxxxxxx X. Xxxxxx, Incorporated (or another nationally recognized
firm of actuaries selected by the Company) as the amount needed to provide all
"Projected Benefit Obligations" (as defined herein) under the Plan and
Contracts. Projected
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Benefit Obligations shall be the actuarial present value as of a specified date
of all benefits under the Plan and Contracts based on (a) service to the date of
determination, (b) estimated future compensation levels and (c) the actuarial
assumptions used under the Pension-Retirement Plan of The Pittston Company and
Its Subsidiaries for funding purposes (including the interest rate, mortality
table and projected salary increases used therein). Projected Benefit Obligation
shall reflect the lump-sum benefit option available under the Plan. Thereafter,
within 180 days after the end of each Plan Year or within 90 days following a
Change in Control, whichever occurs first, the Company shall make an irrevocable
contribution to the Trust in an amount so that the Trust will have sufficient
assets to provide all Projected Benefit Obligations determined as in effect at
the end of such Plan Year or on the date the Change in Control occurred, as
applicable; provided, however, that in the absence of a Change in Control, no
such contributions shall be made without the prior approval of the Company's
Pension Committee.
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Section 3. Payments to Participants and Their
Beneficiaries.
(a) The Company shall deliver periodically to the Trustee a
schedule (the "Payment Schedule") that indicates the amounts payable in respect
of each Participant (and his or her Beneficiaries) and provides a formula or
other instructions acceptable to the Trustee for determining the amounts so
payable, the form in which such amount is to be paid (as provided for or
available under the Contracts or Plan) and the time of commencement of payment
of such amounts. In the event the Company fails to provide a Payment Schedule to
the Trustee, the Trustee may demand such Payment Schedule and the Company shall
promptly provide such Payment Schedule to the Trustee. Except as otherwise
provided herein, the Trustee shall make payments to the Participants and their
Beneficiaries in accordance with such Payment Schedule. The Payment Schedule may
periodically be amended by the Company to reflect additional retirements of
Participants, changes in their marital status, terminations as a result of
disability and such other matters as may result in a change in the form or
amount of benefits payable to Participants. The Trustee shall make provision for
reporting and withholding of any federal, state or local taxes that may be
required to be withheld with respect to
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the payment of benefits pursuant to the terms of the Plan and/or Contracts and
shall pay amounts withheld to the appropriate taxing authorities or determine
that such amounts have been reported, withheld and paid by the Company.
(b) The entitlement of a Participant or Beneficiary to
benefits under the Plan or Contracts shall be determined by the Company or such
party as it shall designate under the Plan or Contracts, and any claim for such
benefits shall be considered and reviewed under the procedures set out in the
Plan or Contracts.
(c) The Company may make payment of benefits directly to
Participants or their Beneficiaries under the Plan or Contracts as they become
due under the terms of the Plan or Contracts. The Company shall notify the
Trustee of its decision to make payment of benefits directly prior to the time
amounts are payable to Participants or their Beneficiaries, and a revised
Payment Schedule reflecting such direct payments shall promptly be delivered by
the Company to the Trustee. In addition, if the principal of the Trust, and any
earnings thereon, are not sufficient to make payments of benefits in accordance
with the terms of the Plan and Contracts, the Company shall make the balance of
each such payment as it falls due. The Trustee shall
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notify the Company when principal and earnings are not sufficient. The
establishment and funding of the Trust shall not relieve the Company from its
obligations to provide the benefits under the Plan or the Contracts except pro
tanto to the extent that amounts are paid to Participants and Beneficiaries from
the Trust.
Section 4. Trustee Responsibility Regarding
Payments to Trust Beneficiary When Company Is Insolvent.
(a) The Trustee shall cease payment of benefits to
Participants and their Beneficiaries if the Company is Insolvent.
(b) At all times during the continuance of the Trust, the
principal and income of the Trust shall be subject to claims of general
creditors of the Company under federal and state law as set forth below:
(1) The Board of Directors and the Chief Executive Officer of
the Company shall have the duty to inform the Trustee in writing of the
Company's Insolvency. If a person claiming to be a creditor of the Company
alleges in writing to the Trustee that the Company has become Insolvent, the
Trustee shall determine whether the Company is Insolvent and, pending such
determination, the Trustee shall discontinue payment of benefits to Participants
or their Beneficiaries.
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(2) Unless the Trustee has actual knowledge of the Company's
Insolvency, or has received notice from the Company or a person claiming to be a
creditor alleging that the Company is Insolvent, the Trustee shall have no duty
to inquire whether the Company is Insolvent. The Trustee may in all events rely
on such evidence concerning the Company's solvency as may be furnished to the
Trustee and that provides the Trustee with a reasonable basis for making a
determination concerning the Company's solvency.
(3) If at any time the Trustee has determined that the Company
is Insolvent, the Trustee shall discontinue payments to Participants or their
Beneficiaries and shall hold the assets of the Trust for the benefit of the
Company's general creditors. Nothing in this Trust Agreement shall in any way
diminish any rights of Participants or their Beneficiaries to pursue their
rights as general creditors of the Company with respect to benefits due under
the Plan, Contracts or otherwise.
(4) The Trustee shall resume the payment of benefits to
Participants or their Beneficiaries in accordance with Section 3 of this Trust
Agreement only after the Trustee has determined that the Company is not
Insolvent (or is no longer Insolvent).
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(c) Provided that there are sufficient assets, if the Trustee
discontinues the payment of benefits from the Trust pursuant to paragraph (b) of
Section 4 hereof and subsequently resumes such payments, the first payment
following such discontinuance shall include the aggregate amount of all payments
due to Participants or their Beneficiaries under the terms of the Plan and
Contracts for the period of such discontinuance, less the aggregate amount of
any payments made to such Participants or their Beneficiaries by the Company in
lieu of the payments provided for hereunder during any such period of
discontinuance, plus interest at the rate provided by the Trustee to its most
favored customers.
Section 5. Payments to Company.
The Company shall have no right or power to direct
the Trustee to return to the Company or to divert to others any of the Trust
assets before all payment of benefits have been made to Participants and their
Beneficiaries pursuant to the terms of the Plan and Contracts. Upon termination
of the Trust in accordance with Section 13, all assets remaining in the Trust
shall be returned to the Company.
Section 6. Investment Authority.
(a) The Trustee shall invest the assets of the
Trust in the manner directed by the Company which directions
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shall be in strict conformity with the standards set forth in paragraph (a) of
Section 9. The Company agrees to indemnify the Trustee for, and to hold it
harmless against, any and all liabilities, losses, costs or expenses (including
reasonable legal fees and expenses) of whatsoever kind and nature which may be
imposed on, incurred by, or asserted against the Trustee at any time by reason
of actions taken in accordance with such directions by the Company or omitted
because no such directions are given, including, without limitation, any
acquisition, retention or disposition of any stock or other securities of the
Company.
(b) To the extent directed by the Company, the Trustee shall
have the following investment powers:
(i) To purchase or subscribe for any property whatsoever
(including stock or rights to acquire stock) and to retain in trust
such securities or other property. The Trustee may not invest in
securities (including stock or rights to acquire stock) or obligations
issued by the Company.
(ii) To sell for cash or on credit, to grant options, convert,
redeem, exchange for other securities or other property, or otherwise
to dispose of any securities or other property at any time held.
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(iii) To exercise any conversion privilege and/or subscription
right available in connection with any securities or other property at
any time held; to oppose or to consent to the reorganization,
consolidation, merger or readjustment of the finances of any
corporation, company or association or to the sale, mortgage, pledge or
lease of the property of any corporation, company or association any of
the securities of which may at any time be held and to do any act with
reference thereto, including the exercise of options, the making of
agreements or subscriptions, which may be deemed necessary or advisable
in connection therewith; and to hold and retain any securities or other
property so acquired.
(iv) To exercise, personally or by general or by limited power
of attorney, any right, including the right to vote, appurtenant to any
securities or other property held at any time.
(v) To hold part or all of the Trust uninvested.
(vi) To register any securities held hereunder in
the name of the Trustee or in the name of a nominee with or without the
addition of words indicating that such securities are held in a
fiduciary capacity, and to hold any securities in bearer form.
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All rights associated with assets of the Trust shall be exercised by the Trustee
or the person designated by the Trustee. The Company shall have the right in its
sole discretion at any time, and from time to time, to substitute assets of
equal fair market value for any asset held by the Trust. This right is
exercisable by the Company in a nonfiduciary capacity without the approval or
consent of any person in a fiduciary capacity.
Section 7. Disposition of Income.
During the term of the Trust, all income received
by the Trust, net of expenses and taxes, shall be
accumulated and reinvested.
Section 8. Accounting by Trustee.
The Trustee shall keep accurate and detailed
records of all investments, receipts, disbursements and other transactions
required to be made, including such specific records as shall be agreed upon in
writing between the Company and the Trustee. Within 90 days following the close
of each calendar year and within 90 days after the removal or resignation of the
Trustee, the Trustee shall deliver to the Company a written account of its
administration of the Trust during such year or during the period from the close
of the last preceding year to the date of such removal or resignation, setting
forth all
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investments, receipts, disbursements and other transactions effected by it,
including a description of all securities and investments purchased and sold
with the cost or net proceeds of such purchases or sales (accrued interest paid
or receivable being shown separately), and showing all cash, securities and
other property held in the Trust at the end of such year or as of the date of
such removal or resignation, as the case may be. Unless protested by written
notice to the Trustee within 120 days of receipt thereof by the Company, any
such written account shall be deemed accepted and approved by the Company, and
the Trustee shall be relieved and discharged, as if such account had been
settled and allowed by a judgment or decree of a court of competent
jurisdiction, in an action or proceeding in which the Company and all persons
having a beneficial interest in the Trust were parties.
Nothing contained in this Agreement shall deprive the Trustee
or the Company of the right to have a judicial settlement of its accounts. In
any proceeding for a judicial settlement of the Trustee's accounts, or for
instructions in connection with the Trust, the only necessary party thereto in
addition to the Trustee shall be the Company. If the Trustee or the Company so
elects, it
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may bring in as a defendant party or parties any other
person or persons.
Section 9. Responsibility of Trustee.
(a) The Trustee shall act with the care, skill,
prudence and diligence under the circumstances then prevailing that a prudent
person acting in like capacity and familiar with such matters would use in the
conduct of an enterprise of a like character and with like aims. In the event of
a dispute between the Company and a party (including a participant or
beneficiary under the Plan or the Trustee), the Trustee may apply to a court of
competent jurisdiction to resolve the dispute. The Trustee (or a Participant or
beneficiary) may also apply to a court of competent jurisdiction to enforce any
provision of this Trust Agreement, provided that notice is provided to the
Trustee in the case of an action brought by a Participant or beneficiary. Under
no circumstances shall the Trustee incur liability to any person for any
indirect, consequential or special damages (including, without limitation, lost
profits) of any form, whether or not foreseeable and regardless of the form of
the action in which such claim may be brought, with respect to the Trust or its
role as Trustee.
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(b) Whenever in the administration of the Trust a
certification is required to be given to the Trustee, or the Trustee shall deem
it necessary that a matter be proved prior to taking, suffering or omitting any
action hereunder, such certification shall be duly made and said matter may be
deemed to be conclusively proved by an instrument, signed in the name of the
Company, by its President, a Vice President or by any other person specified in
writing by the Company. The Company shall file with the Trustee a certified list
of the names and specimen signatures of the persons authorized to act for the
Company. The Trustee may rely on any such certification purporting to have been
signed by or on behalf of such person or persons that the Trustee believes in
good faith to have been signed thereby. The Trustee shall have no responsibility
for reasonably relying upon any certification believed by the Trustee in good
faith to have been so signed by a duly authorized officer or agent of the
Company.
(c) The Trustee may make any payment required to be made by it
hereunder by mailing its check in the amount hereof by first class mail in a
sealed envelope addressed to the person to whom such payment is to be made. The
Trustee shall not be required to make any investigation to determine the
identity or mailing address of any person entitled to
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benefits under this Agreement and shall be entitled to withhold making payments
until the identity and mailing addresses of persons entitled to benefits are
certified to it. In the event that any dispute shall arise as to the identity or
rights of persons entitled to benefits hereunder, the Trustee may withhold
payment of benefits until such dispute shall have been determined by arbitration
or by a court of competent jurisdiction or shall have been settled by written
stipulation of the parties concerned.
(d) If the Trustee undertakes or defends any litigation
arising in connection with the Trust, the Company agrees to indemnify the
Trustee against the Trustee's costs, expenses and liabilities (including,
without limitation, reasonable attorneys' fees and expenses) relating thereto
and to be primarily liable for such payments. If the Company does not pay such
costs, expenses and liabilities in a reasonably timely manner, the Trustee may
obtain payment from the Trust.
(e) The Trustee may consult with legal counsel (who may also
be counsel for the Company generally) with respect to any of its duties or
obligations hereunder.
(f) The Trustee may hire agents, accountants, actuaries, legal
counsel, investment advisors, financial consultants or other professionals to
assist it in
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performing any of its duties or obligations hereunder. To the extent such
expenses arise in the context of a dispute between the Company and the Trustee
concerning the funding of the Trust, the enforcement of any provision of this
Trust Agreement or the providing of the Payment Schedule described in Section 3,
the Company shall be responsible for payment of these expenses.
(g) The Trustee shall have, without exclusion, all powers
conferred on trustees by applicable law, unless expressly provided otherwise
herein, provided, however, that if an insurance policy is held as an asset of
the Trust, the Trustee shall have no power to name a Beneficiary of the policy
other than the Trust, to assign the policy (as distinct from conversion of the
policy to a different form) other than to a successor Trustee or to loan to any
person the proceeds of any borrowing against such policy.
(h) A third party dealing with the Trustee shall not be
required to make any inquiry whether the Company or a Participant has instructed
the Trustee, or the Trustee is otherwise authorized to take or omit any action;
or to follow the application by the Trustee of any money or property which may
be paid or delivered to the Trustee.
(i) The liability of the Trustee to make the
payments specified by the Plan shall be limited to the funds
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which have come into its hands as Trustee hereunder, including all income
therefrom and increment thereof.
(j) The Company shall indemnify and hold harmless the Trustee
for any liability or expenses, including without limitation, reasonable
attorneys' fees reasonably incurred by the Trustee with respect to any action
undertaken with the consent of the Company in good faith hereunder or pursuant
to the Plan other than on account of the Trustee's negligence or willful
misconduct.
(k) Notwithstanding any powers granted to the Trustee pursuant
to this Trust Agreement or applicable law, the Trustee shall not have any power
that could give the Trust the objective of carrying on a business and deriving
the gains therefrom, within the meaning of section 301.7701- 2 of the Procedure
and Administrative Regulations promulgated pursuant to the Internal Revenue
Code.
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Section 10. Compensation and Expenses of
Trustees.
The Trustee shall receive for its services compensation in
accordance with Schedule A, which can be amended upon the agreement of the
Company and Trustee. After a Change in Control of the Company, the Trustee may
increase its rate of compensation as reasonably necessary.
The Company shall pay all administrative and Trustee's fees
and expenses. If not so paid, the fees and expenses shall be paid from the
Trust.
Section 11. Resignation and Removal of Trustee.
(a) The Trustee may resign at any time by written
notice to the Company, which shall be effective 90 days after receipt of such
notice unless the Company and the Trustee agree otherwise.
(b) Except as provided in paragraph (c) of this Section 11,
the Trustee may be removed by the Company on 90 days' notice or upon shorter
notice accepted by the Trustee.
(c) Upon a Change in Control, the Trustee may not be removed
by the Company for five years except with the consent of at least 75% of the
individuals participating in the Plan or covered by the Contracts.
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(d) If the Trustee resigns or is removed within ten years of a
Change in Control, the Trustee shall select a successor Trustee in accordance
with the provisions of paragraph (b) of Section 12 hereof whose appointment
shall be effective at the effective time of the Trustee's resignation or
removal. The Trustee shall be compensated for the reasonable costs of selecting
a successor as provided in Sections 10 and 12.
(e) Upon resignation or removal of the Trustee and appointment
of a successor Trustee, all assets shall subsequently be transferred to the
successor Trustee. The transfer shall be completed within 90 days after receipt
of notice of resignation, removal or transfer, unless the Company extends the
time limit.
(f) If the Trustee resigns or is removed, a successor shall be
appointed, in accordance with Section 12 hereof, by the effective date of
resignation or removal under paragraph (a) or (b) of this Section 11. If no such
appointment has been made, the Trustee may apply to a court of competent
jurisdiction for appointment of a successor or for instructions. All expenses of
the Trustee in connection with the proceeding shall be allowed as administrative
expenses of the Trust.
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Section 12. Appointment of Successor. (a) Subject to the provisions
of paragraph (b) of this Section 12, if the Trustee resigns or is removed in
accordance with paragraph (a) or (b) of Section 11 hereof, the Company shall
appoint any third party, such as a bank trust department or other party that may
be granted corporate trustee powers under state law, as a successor to replace
the trustee upon resignation or removal. The appointment shall be effective when
accepted in writing by the new trustee, who shall have all of the rights and
powers of the former Trustee, including ownership rights in the Trust assets.
The former Trustee shall execute any instrument necessary or reasonably
requested by the Company or the successor trustee to evidence the transfer.
(b) If the Trustee resigns or is removed pursuant to the
provisions of paragraph (d) of Section 11 hereof, the Trustee shall appoint a
bank trust department or other party that may be granted corporate trustee
powers under state law, as successor trustee. The new trustee shall have all the
rights and powers of the former Trustee, including ownership rights in Trust
assets. The former Trustee shall execute any instrument necessary or reasonably
requested by the successor trustee to evidence the transfer.
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(c) The successor trustee need not examine the records and
acts of any prior Trustee and may retain or dispose of existing Trust assets,
subject to Sections 8 and 9 hereof. The successor trustee shall not be
responsible for and the Company shall indemnify and defend the successor trustee
from any claim or liability resulting from any action or inaction of any prior
Trustee or from any other past event, or any condition existing at the time it
becomes trustee.
Section 13. Amendment or Termination.
(a) This Trust Agreement may be amended by a
written instrument executed by the Trustee and the Company. Notwithstanding the
foregoing, no such amendment shall conflict or be inconsistent with the terms of
the Plan or Contracts or shall make the Trust revocable.
(b) The Trust shall not terminate until the date on which
Participants and their Beneficiaries are no longer entitled to benefits pursuant
to the terms of the Plan and Contracts. Upon termination of the Trust, any
assets remaining in the Trust shall be returned to the Company.
(c) Upon written approval of Participants or Beneficiaries
entitled to payment of benefits pursuant to the terms of the Plan and Contracts,
the Company may terminate the Trust prior to the time all benefit payments
27
under the Plan and Contracts have been made. All assets in
the Trust at termination shall be returned to the Company.
(d) Paragraph (f) of Xxxxxxx 0, Xxxxxxx 0, xxxxxxxxx (x) xx
(x) of Section 11 and paragraph (b) of Section 12 of this Trust Agreement may
not be amended by Company for ten years following a Change in Control.
Section 14. Miscellaneous.
(a) Any provision of this Trust Agreement prohibited by law
shall be ineffective to the extent of any such prohibition, without invalidating
the remaining provisions hereof.
(b) Benefits payable to Participants and their Beneficiaries
under this Trust Agreement may not be anticipated, assigned (either at law or in
equity), alienated, pledged, encumbered or subjected to attachment, garnishment,
levy, execution or other legal or equitable process.
(c) This Trust Agreement shall be governed by and construed in
accordance with the laws of the State of New York without regard to its
conflicts law principles. The United States District Court for the Southern
District of New York shall have the sole and exclusive jurisdiction over any
lawsuit or other judicial proceeding relating to or arising from this Agreement.
If that court lacks federal
28
subject matter jurisdiction, the Supreme Court of the State of New York, New
York County shall have sole and exclusive jurisdiction. Either of these courts
shall have proper venue for any such lawsuit or judicial proceeding, and the
parties waive any objection to venue or their convenience as a forum. The
parties agree to submit to the jurisdiction of any of the courts specified and
to accept service of process to vest personal jurisdiction over them in any of
these courts. The parties further hereby knowingly, voluntarily and
intentionally waive, to the fullest extent permitted by law, any right to a
trial by jury with respect to any such lawsuit or judicial proceeding arising or
relating to this Agreement or the transactions contemplated hereby.
Section 15. Effective Date.
The effective date of this Trust Agreement shall
be the 1st day of December, 1997.
THE PITTSTON COMPANY,
by
/s/Xxxxx X. Xxxxxx
_____________________________
Xxxxx X. Xxxxxx
Vice President
THE CHASE MANHATTAN BANK,
Trustee
by
/s/ Xxx X. Xxxxxxxxx
______________________________
Name: Xxx Xxxxxxxxx
Title: Vice President
