CNG NONEMPLOYEE DIRECTORS' FEE PLAN
TRUST AGREEMENT
This Agreement made this 28th day of September, 1995, by and between
Connecticut Natural Gas Corporation of Hartford, Connecticut ("CNG") and
Fleet Bank, N.A., a bank with trust powers having a principal place of
business in Hartford, Connecticut ("Trustee");
WHEREAS, CNG has adopted and maintains the CNG Nonemployee Directors'
Fee Plan for those of its directors who are not full-time employees of CNG
(hereinafter called the "Plan");
WHEREAS, CNG has incurred liability and expects to incur additional
liability under the terms of such Plan with respect to the individuals
participating in such Plan;
WHEREAS, CNG wishes to establish a trust (hereinafter called "Trust")
and to contribute to the Trust assets that shall be held therein, subject
to the claims of CNG's creditors in the event of CNG's insolvency, as
herein defined, until paid to Plan participants and their beneficiaries in
such manner and at such times as specified in the Plan;
WHEREAS, it is the intention of the parties that this Trust shall
constitute an unfunded arrangement and shall not affect the status of the
Plan as an unfunded arrangement;
WHEREAS, it is the intention of CNG 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 Plan;
NOW, THEREFORE, the parties do hereby establish the Trust and agree
that the Trust shall be comprised, held and disposed of as follows:
ARTICLE 1
Establishment of Trust
----------------------
1.1 CNG hereby establishes with the Trustee a Trust consisting of
such sums of money and other property as shall from time to time be paid or
delivered to the Trustee and the earnings and profits thereon. All such
assets, all investments made therewith and proceeds thereof, less the
payments or other distributions which at the time of reference shall have
been made by the Trustee as authorized herein, are referred to herein as
the "Fund" and shall be held, administered and disposed of by the Trustee,
in trust, in accordance with the provisions of this Agreement.
1.2 The Trust hereby established shall be irrevocable. CNG shall
have no right or power to direct Trustee to return to CNG or to divert to
others any of the Trust assets before all payment of benefits have been
made to Plan participants and their beneficiaries pursuant to the terms of
the Plan.
1.3 The Trust is intended to be a grantor trust, of which CNG 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.
1.4 The Fund shall be held separate and apart from other funds of
CNG and shall be used exclusively for the uses and purposes of Plan
participants and general creditors as herein set forth. Plan 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 and this Trust Agreement shall be mere unsecured contractual
rights of Plan participants and their beneficiaries against CNG. Any
assets held by the Trust will be subject to the claims of CNG's general
creditors under federal and state law in the event of insolvency, as
defined in paragraph 3.1 herein.
ARTICLE 2
Payments to Plan Participants and Their Beneficiaries
-----------------------------------------------------
2.1 Except for the records dealing solely with the Fund and its
investment which shall be maintained by the Trustee, CNG shall maintain all
the participant records contemplated by the Plan. All such records shall
be made available promptly on request to the Trustee. CNG shall also
perform such other duties and responsibilities as CNG determines are
necessary or advisable to achieve the objectives of this Agreement.
2.2 CNG shall prepare a certification to the Trustee that the
participant's benefits under a Plan have become payable. Such
certification shall include the amount of such benefits, the manner of
payment, and commencement date thereof, and the name, address and Social
Security number of the recipient. Upon the receipt of such certified
statement and appropriate federal tax withholding information, the Trustee
shall commence distributions from the Fund in accordance therewith to the
person or persons so indicated and to CNG with respect to taxes required to
be withheld. CNG shall have full responsibility for the payment of all
withholding taxes to the appropriate taxing authority and shall furnish
each participant or beneficiary with the appropriate tax information form
evidencing such payment and the amount thereof.
2.3 The entitlement of a Plan participant or his or her
beneficiaries to benefits under the Plan shall be determined by CNG or such
party as it shall designate under the Plan, and any claim for such benefits
shall be considered and reviewed under the Plan.
2.4 CNG may make payment of benefits directly to Plan participants
or their beneficiaries as they become due under the terms of the Plan. CNG
shall notify Trustee of its decision to make payment of benefits directly
prior to the time amounts are payable to participants or their
beneficiaries.
2.5 No further benefits shall be payable from the Fund with
respect to any participant or beneficiary at any time when the Fund has
been exhausted; provided, however, that no such reduction shall eliminate
CNG's remaining liability, if any, under the Plan with respect to the
participants and their beneficiaries.
2.6 Nothing provided in this Agreement shall relieve CNG of its
liabilities to pay the benefits provided under the Plan except to the
-2-
extent such liabilities are met by application of Fund assets. It is the
intent of CNG to have the Fund established hereunder satisfy in whole or in
part CNG's legal liability under the Plan in respect of the eligible
participants and beneficiaries. CNG therefore agrees that all income
deductions and credits under the Agreement belong to it as owner for income
tax purposes and will be included in CNG's income tax returns.
ARTICLE 3
Trustee Responsibility Regarding Payments to Trust
Beneficiary When CNG is Insolvent
--------------------------------------------------
3.1 Trustee shall cease payment of benefits to Plan participants
and their beneficiaries if CNG is Insolvent. CNG shall be considered
"Insolvent" for purposes of this Trust Agreement if (i) CNG is unable to
pay its debts as they become due, or (ii) CNG is subject to a pending
proceeding as a debtor under the United States Bankruptcy Code.
3.2 At all times during the continuance of this Trust, as provided
in Paragraph 1.4 hereof, the principal and income of the Trust shall be
subject to claims of general creditors of CNG under federal and state law
as set forth below:
(a) The Board of Directors and the Chief Executive Officer
of CNG shall have the duty to inform Trustee in writing of CNG's
insolvency. If a person claiming to be a creditor of CNG alleges in
writing to Trustee that CNG has become Insolvent, Trustee shall determine
whether CNG is Insolvent and, pending such determination, Trustee shall
discontinue payment of benefits to Plan participants or their
beneficiaries.
(b) Unless Trustee has actual knowledge of CNG's insolvency,
or has received notice from CNG or a person claiming to be a creditor
alleging that CNG is Insolvent, Trustee shall have no duty to inquire
whether CNG is Insolvent. Trustee may in all events rely on such evidence
concerning CNG's solvency as may be furnished to Trustee and that provides
Trustee with a reasonable basis for making a determination concerning CNG's
solvency.
(c) If at any time Trustee has determined that CNG is
Insolvent, Trustee shall discontinue payments to Plan participants or their
beneficiaries and shall hold the assets of the Trust for the benefit of
CNG's general creditors. Nothing in this Trust Agreement shall in any way
diminish any rights of Plan participants or their beneficiaries to pursue
their rights as general creditors of CNG with respect to benefits due under
the Plan or otherwise.
(d) Trustee shall resume the payment of benefits to Plan
participants or their beneficiaries in accordance with Article 2 of this
Trust Agreement only after Trustee has determined that CNG is not Insolvent
(or is no longer Insolvent).
3.3 Provided that there are sufficient assets, if Trustee
discontinues the payment of benefits from the Trust pursuant to Paragraph
3.2 hereof and subsequently resumes such payments, the first payment
-3-
following such discontinuance shall include the aggregate amount of all
payments due to Plan participants or their beneficiaries under the terms of
the Plan for the period of such discontinuance, less the aggregate amount
of any payments made to Plan participants or their beneficiaries by CNG in
lieu of the payments provided for hereunder during any such period of
discontinuance.
3.4 CNG represents and agrees that the Trust established hereunder
does not fund and is not intended to fund the Plan or any other employee
benefit plan or other program of CNG. The Trust is and is intended to be a
depository arrangement with the Trustee for the setting aside of money as
and when CNG so determines in its sole discretion for meeting part or all
of its future deferred compensation obligations under the Plan.
Contributions by CNG to the Fund shall be in amounts determined solely by
CNG. The purpose of the Trust is to provide a fund from which deferred
compensation may be payable under the Plan and as to which the participants
and beneficiaries may, by exercising the procedures set forth herein, have
access to some or all of their benefits as such become due without having
the payment of such benefits subject to the administrative control of CNG
unless CNG becomes insolvent. CNG further represents that the Plan is
exempt from the application of the Employee Retirement Income Security Act
of 1974 ("ERISA"). CNG further represents that the Plan is not qualified
under Section 401 of the Code and therefore is not subject to any of the
Code requirements applicable to tax-qualified plans.
ARTICLE 4
Contributions
-------------
4.1 CNG shall provide the Trustee with a copy of the Plan and all
amendments thereto. After the execution of this Agreement, CNG shall
promptly file with the Trustee a certified list of the names and specimen
signatures of the officers of CNG authorized to act for it. CNG shall
promptly notify the Trustee and the Trustee's agent of the addition or
deletion of any person's name to or from such list. Until receipt by the
Trustee of notice that any person is no longer authorized so to act, the
Trustee may continue to rely on the authority of such person. All
certifications, notices and directions by any such person or persons to the
Trustee shall be in writing signed by such person or persons. The Trustee
may rely on any certification, notice or direction of CNG that the Trustee
believes to have been signed by a duly authorized officer or agent of CNG.
CNG shall be responsible for keeping accurate books and records with
respect to the participants and their rights and interests in the Trust and
under the Plan.
4.2 CNG shall make its contributions to the Trust in accordance
with appropriate corporate action.
4.3 CNG shall indemnify and hold harmless the Trustee for any
liability or expenses including without limitation reasonable attorneys'
fees incurred by the Trustee with respect to holding, managing, investing
or otherwise administering the Fund other than by its negligence or willful
misconduct.
-4-
ARTICLE 5
Investment of Trust Fund; Duties of Trustee
-------------------------------------------
5.1 The Trustee shall not be liable in discharging its duties
hereunder, including without limitation its duty to invest and reinvest the
Fund if it acts in good faith and in accordance with the terms of the Trust
and any applicable federal or state laws, rules or regulations.
5.2 Subject to investment guidelines agreed to in writing from
time to time by CNG and the Trustee, the Trustee shall have the power in
investing and reinvesting the Fund in its sole discretion:
(a) to retain assets transferred hereunder, and invest and
reinvest in any property, real, personal or mixed, wherever situated and
whether or not productive of income or consisting of wasting assets,
including without limitation common and preferred stocks, bonds, notes,
debentures, leaseholds, mortgages, certificates of deposit or demand or
time deposits (including any such deposits with the Trustee), shares of
investment companies and mutual funds, interests in partnerships and
trusts, insurance policies and annuity contracts, and oil, mineral or gas
properties, royalties, interests or rights, without being limited to the
classes of property in which trustees are authorized to invest by any law
or any rule of court of any state and without regard to the proportion any
such property may bear to the entire amount of the Fund. In no event shall
any participant or beneficiary under the Plan be the legal owner of any
part of the Fund;
(b) to invest and reinvest all or any portion of the Fund
collectively through the medium of any common, collective or commingled
trust fund that may be established and maintained by the Trustee, the
instrument or instruments establishing such trust fund or funds as amended
being made a part of this Agreement so long as any portion of the Fund
shall be invested through the medium thereof;
(c) to sell or exchange any property held by it at public or
private sale for cash or on credit, to grant and exercise options for the
purchase or exchange thereof, to exercise all conversion or subscription
rights pertaining to any such property, and to enter into any covenant or
agreement to purchase any property in the future;
(d) to participate in any plan of reorganization,
consolidation, merger, combination, liquidation or other similar plan
relating to property held by it and to consent to or oppose any such plan
or any action thereunder or any contract, lease, mortgage, purchase, sale
or other action by any person;
(e) to deposit any property held by it with any protective
reorganization or similar committee, to delegate discretionary power
thereto, and to pay part of the expenses and compensation thereof and any
assessments levied with respect to any such property so deposited;
(f) to extend the time of payment of any obligation held by
it;
-5-
(g) to hold uninvested any moneys received by it without
liability for any interest thereon until such moneys shall be invested,
reinvested or disbursed;
(h)to exercise all voting or other rights with respect to any property held
by it and to grant proxies, discretionary or otherwise;
(i) for the purposes of this Trust, to borrow money from
others, to issue its promissory note or notes therefor and to secure the
payment thereof by pledging any property held by it;
(j) to employ suitable agents and counsel, who may be
counsel to CNG or the Trustee, and to pay their reasonable expenses and
compensation from the Trust property to the extent not paid by CNG;
(k) to cause any property held by it to be registered and
held in the name of one or more nominees with or without the addition of
words indicating that such securities are held in a fiduciary capacity and
to hold securities in bearer form;
(l) to settle, compromise or submit to arbitration any
claims, debts or damages due or owing to or from the Trust respectively, to
commence or defend suits or legal proceedings to protect any interest of
the Trust, and to represent the Trust in all suits or legal proceedings in
any court or before any other body or tribunal; provided, however, that the
Trustee shall not be required to take any such action unless it shall have
been indemnified by CNG to its reasonable satisfaction against liability or
expenses it might incur therefrom;
(m) generally to do all acts, whether or not expressly
authorized, that the Trustee may deem necessary or desirable for the
protection of the Fund; and
(n) notwithstanding any language in this Agreement, the
Trustee shall not have the power to start, to enter into or otherwise
engage in any business enterprise, or to continue to operate as any
business interest that becomes part of the Fund, if such activity
constitutes "carrying on business" as referred to in Section 301.7701-2 of
the IRS Procedures and Administration Regulations.
(o) In addition to the powers and authority set forth
elsewhere in this Agreement, the Trustee is authorized to invest and
reinvest all or a portion of the Fund in shares of any open-ended
investment fund or company, including, but not limited to, any such fund or
company which is managed by an affiliate of the Trustee. CNG acknowledges
the receipt of a prospectus describing the investment portfolios
established pursuant to a Declaration of Trust under the name "Galaxy Fund"
("Galaxy"). Based upon this prospectus, CNG consents to the investment of
Fund assets in Galaxy under those circumstances under which the Trustee
would otherwise, in the exercise of its discretion (including the
investment objectives which CNG has established for the Fund), invest
assets in investments similar or comparable to those represented by Galaxy.
CNG may revoke this consent by written notice to the Trustee. CNG
understands that Galaxy is advised by Fleet Investment Advisors, Inc., an
affiliate of the Trustee, which receives a management fee therefor as
disclosed in the prospectus. Where the Trustee has investment authority
-6-
and responsibility, either (a) the Fund's pro rata share of any investment
advisory fees paid to Fleet Investment Advisors, Inc. by Galaxy shall be
rebated to the Fund, or (b) the fees paid by the Fund to the Trustee shall
be reduced by an amount equal to any investment advisory fees which have
been paid by the Fund by virtue of its participation in Galaxy.
5.3 No person dealing with the Trustee shall be under any
obligation to see to the proper application of any money paid or property
delivered to the Trustee or to inquire into the Trustee's authority as to
any transaction.
5.4 The Trustee shall distribute moneys from the Fund in
accordance with Article 2 hereof. The Trustee may make any distribution
required hereunder by mailing its check for the specified amount to the
person to whom such payment is to be made at such address as may have been
last furnished to the Trustee, or if no such address shall have been so
furnished, to such person in care of CNG (or if so directed by CNG) by
crediting the account of such person or by transferring funds to such
person's account by bank or wire transfer.
5.5 If at any time there is no person authorized to act under the
Trust on behalf of CNG, the Compensation Committee of the Board of
Directors of CNG shall have the authority to act hereunder.
ARTICLE 6
Taxes and Expenses
------------------
6.1 CNG shall pay any federal, state or local taxes on the Fund,
or any part thereof and on the income therefrom. The Trustee may pay such
taxes directly using assets in the Fund if CNG does not make payment
directly.
6.2 The Trustee shall be entitled to payment for its reasonable
expenses for the management and administration of the Fund, including
without limitation reasonable expenses of counsel and other agents employed
by the Trustee and reasonable compensation for its services as Trustee
hereunder, the amount of which shall be agreed upon from time to time by
CNG and the Trustee in writing; provided, however, that if the Trustee
forwards an amended fee schedule to CNG requesting its agreement thereto
and CNG fails to object within thirty (30) days of its receipt, the amended
fee schedule shall be deemed to be agreed upon by CNG and the Trustee.
Such expenses and compensation may be paid from the Fund to the extent not
paid by CNG.
ARTICLE 7
Administration
--------------
7.1 The Trustee shall keeps books of account of the administration
of the Trust and shall show all its receipts and disbursements hereunder.
The books of account of the Trustee with respect to the Trust shall be open
to inspection by CNG or its representatives at all reasonable times during
normal business hours of the Trustee and may be audited not more frequently
-7-
than once each fiscal year by an independent certified public accountant
engaged by CNG.
7.2 Within a reasonable time after the close of each fiscal year
of CNG (or in the Trustee's discretion, at more frequent intervals), or
after any termination of the duties of the Trustee hereunder, the Trustee
shall prepare and deliver to CNG an account of its acts and transactions as
Trustee during the fiscal year, a portion thereof, or during such period
from the close of the last fiscal year to the terminating of the Trustee's
duties respectively, including a statement of the then current value of the
Fund. Any such account shall be deemed accepted and approved by CNG and
the Trustee shall be relieved and discharged if such account had been
settled and allowed by a judgment or decree of a court of competent
jurisdiction unless protested by written notice to the Trustee within sixty
(60) days of receipt thereof by CNG. The Trustee shall have the right to
apply at any time to a court of competent jurisdiction for judicial
settlement of any account of the Trustee not previously settled as herein
provided, or for the determination of any question of construction or for
instructions. In any such action or proceeding, it shall be necessary to
join as parties only the Trustee and CNG (although the Trustee may also
join such other parties as it may deem appropriate), and any judgment or
decree entered therein shall be conclusive.
ARTICLE 8
Resignation and Removal
-----------------------
8.1 The Trustee may resign at any time by delivering written
notice thereof to CNG, provided, however, that no such resignation shall
take effect until the earlier of (i) sixty (60) days from the date of
delivery of such notice to CNG, or (ii) the appointment of a successor
trustee.
8.2 The Trustee may be removed at any time by CNG pursuant to a
resolution of the Board of Directors of CNG upon delivery to the Trustee of
a certified copy of such resolution and sixty (60) days' written notice (or
a shorter period if such notice period is waived in whole or in part by the
Trustee) of (i) such removal, and (ii) the appointment of a successor
trustee.
8.3 Upon the resignation or removal of the Trustee, a successor
trustee shall be appointed by CNG. Such successor trustee shall be a bank
or trust company established under the laws of the United States or a state
within the United States. Such appointment shall take effect upon delivery
to the Trustee of (i) a written appointment of such successor trustee duly
executed by CNG, and (ii) a written acceptance by such successor trustee
duly executed thereby. Any successor trustee shall have all the rights,
powers and duties granted to the Trustee hereunder.
8.4 If within sixty (60) days of the delivery of the Trustee's
written notice of resignation a successor trustee shall not have been
appointed, the Trustee may apply to any court of competent jurisdiction for
the appointment of a successor trustee.
-8-
8.5 Upon the resignation or removal of the Trustee and the
appointment of a successor trustee, and after the acceptance and approval
of its account, the Trustee shall transfer and deliver the Fund to such
successor. Under no circumstances shall the Trustee transfer or deliver
the Fund to any successor which is not a bank or trust company as
hereinabove defined.
ARTICLE 9
Termination
-----------
9.1 The Trust shall not terminate until the date on which no
participant or beneficiary shall be entitled to any benefits under the
Plan. Upon termination of the Trust, any assets remaining in the Trust
shall be paid to CNG. Upon completing such distribution, the Trustee shall
be relieved and discharged. The powers of the Trustee shall continue as
long as any part of the Fund remains in its possession.
ARTICLE 10
Amendment
---------
10.1 This Agreement may be amended in whole or in part at any time
and from time to time by a written instrument approved by the Board of
Directors of CNG and executed by CNG and the Trustee, except to make the
Trust revocable or to alter Paragraph 9.1 hereof. The consent of any Plan
participant or beneficiary shall not be required to any amendment to the
Agreement.
ARTICLE 11
Change of Control
-----------------
11.1 For purposes of this Agreement, a "Change of Control" shall
mean: (i) the acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of
1934, as amended (the "Exchange Act")) (a "Person") of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the Exchange Act) of
20% or more of either 1) the then outstanding shares of common stock of CNG
(the "Outstanding Common Stock") or 2) the combined voting power of the
then outstanding voting securities of CNG entitled to vote generally in the
election of directors (the "Outstanding Voting Securities"); provided,
however, that for purposes of this subsection (i), the following
acquisitions shall not constitute a Change of Control: 1) any acquisition
directly from CNG, 2) any acquisition by CNG, 3) any acquisition by any
employee benefit plan (or related trust) sponsored or maintained by CNG or
any corporation controlled by CNG or 4) any acquisition by any corporation
pursuant to a transaction which complies with clauses 1), 2) and 3) of
subsection (iii) of this Article 11; or (ii) Individuals who, as of the
date hereof, constitute the board of directors of CNG (the "Incumbent
Board") cease for any reason to constitute at least a majority of the board
of directors of CNG (the "Board"); provided, however, that any individual
becoming a director subsequent to the date hereof whose election, or
-9-
nomination for election by CNG's shareholders, was approved by a vote of at
least a majority of the directors then comprising the Incumbent Board shall
be considered as though such individual were a member of the Incumbent
Board, but excluding, for this purpose, any such individual whose initial
assumption of office occurs as a result of an actual or threatened election
contest with respect to the election or removal of directors or other
actual or threatened solicitation of proxies or consents by or on behalf of
a Person other than the Board; or (iii) Consummation of a reorganization,
merger or consolidation or sale or other disposition of all or
substantially all of the assets of CNG (a "Business Combination"), in each
case, unless, following such Business Combination, 1) all or substantially
all of the individuals and entities who were the beneficial owners,
respectively, of the Outstanding Common Stock and Outstanding Voting
Securities immediately prior to such Business Combination beneficially own,
directory or indirectly, more than 50% of, respectively, the then
outstanding shares of common stock and the combined voting power of the
then outstanding voting securities entitled to vote generally in the
election of directors, as the case may be, of the corporation resulting
from such Business Combination (including, without limitation, a
corporation which as a result of such transaction owns CNG or all or
substantially all of CNG's assets either directly or through one or more
subsidiaries) in substantially the same proportions as their ownership,
immediately prior to such Business Combination of the Outstanding Common
Stock and Outstanding Voting Securities, as the case may be 2) no Person
(excluding any corporation resulting from such Business Combination or any
employee benefit plan (or related trust) of CNG or such corporation
resulting from such Business Combination) beneficially owns, directly or
indirectly, 20% or more of, respectively, the then outstanding shares of
common stock of the corporation resulting from such Business Combination or
the combined voting power of the then outstanding voting securities of such
corporation except to the extent that such ownership existed prior to the
Business Combination and 3) at least a majority of the members of the board
of directors of the corporation resulting from such Business Combination
were members of the Incumbent Board at the time of the execution of the
initial agreement, or of the action of the Board, providing for such
Business Combination; or (iv) Approval by the shareholders of CNG of a
complete liquidation or dissolution of CNG.
11.2 Notwithstanding any other provision of this Agreement to the
contrary, as soon as practicable following a Change of Control, CNG shall
calculate the maximum aggregate amount required under the Plans to satisfy
the liability to all Participants (and beneficiaries) who may be entitled
to payments under the Plan as of the Change of Control and shall calculate
an estimate of the expenses reasonably likely to be incurred by the Trust
from the date of calculation until the termination of the Trust including
the Trustee's fees. The aggregate of such amounts for the Plan plus such
additional amount as CNG reasonably determines to be necessary to pay the
anticipated expenses of the Trust including the Trustee's fees is
hereinafter referred to as the "Maximum Amount Payable." CNG shall have
the obligation to make contributions to the Trust and shall make
contributions to the Trust in cash, within three business days of such
calculation, in an amount equal to the excess (the "Excess"), of any, of
the Maximum Amount Payable over the then fair market value of the Fund. As
of each subsequent valuation, CNG shall make a similar calculation; and if
at any time following a Change of Control a valuation of the Fund occurs
pursuant to this Agreement, and it is determined that an Excess shall
-10-
exist, CNG shall within three days thereof contribute in cash such amount
to the Trust as is necessary to eliminate the Excess.
11.3 The Board of Directors of CNG and the Chief Executive Officer
of CNG shall each have a duty to inform the Trustee whenever a Change of
Control has occurred. If any two Participants notify the Trustee in
writing that a Change of Control has occurred, then unless the Trustee
receives written notice from CNG that, in the opinion of independent legal
counsel to CNG (which opinion may be based on representations of fact as
long as counsel does not know that such representations are untrue), such a
Change of Control has not occurred, a Change of Control will be deemed to
have occurred for purposes of this Agreement.
ARTICLE 12
Miscellaneous
-------------
12.1 This Agreement shall be construed and interpreted under, and
the Trust hereby created shall be governed by, the laws of the State of
Connecticut insofar as such laws do not contravene any applicable federal
laws, rules or regulations.
12.2 Neither the gender nor the number (singular or plural) of any
word shall be construed to exclude another gender or number when a
different gender or number would be appropriate.
12.3 Benefits payable to Plan 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. A
participant has only CNG's unsecured promise to pay benefits under the Plan
and has the status of an unsecured general creditor. No participant
receives any right against or security interest in the Fund. The Fund shall
at all times remain subject to claims of general creditors of CNG as
provided herein.
12.4 This Agreement shall be binding upon and inure to the benefit
of any successor to CNG or its business as the result of merger,
consolidation, reorganization, transfer of assets or otherwise and any
subsequent successor thereto. In the event of any such merger,
consolidation, reorganization, transfer of assets or similar transaction,
the successor to CNG or its business or any subsequent successor thereto
shall promptly notify the Trustee in writing of its successorship and
furnish the Trustee with the information specified in Paragraph 4.1 of this
Agreement.
12.5 This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original but all of which shall
together constitute only one agreement.
12.6 Communications to the Trustee shall be sent to the Trustee's
principal office or to such other address as the Trustee may specify in
writing. No communication shall be binding upon the Trustee until it is
received by the Trustee. Communications to CNG shall be sent to CNG's
principal office or to such other address as CNG may specify in writing.
-11-
IN WITNESS WHEREOF, the parties hereto have caused the Trust
Agreement to be duly executed this 28th day of September, 1995.
ATTEST: CONNECTICUT NATURAL GAS
CORPORATION
Xxxx X. Xxxxxx By X. X. Xxxxxxx
------------------------------ -----------------------------
Its Vice President
ATTEST: FLEET BANK, N.A.
Xxxx X. Xxxxxxx By Xxxxxxx X. Parent
------------------------------ ------------------------------
Its Vice President
-12-
STATE OF CONNECTICUT )
) ss. Sep. 28, 1995
COUNTY OF HARTFORD
Personally appeared X. X. Xxxxxxx, Vice President of Connecticut
Natural Gas Corporation, as aforesaid, signer of the foregoing instrument,
and acknowledged the same to be his free act and deed as such Vice
President, and the free act and deed of said corporation, before me.
Xxxxxx X. Xxxxxx, Xx.
----------------------------------
Commissioner of the Superior Court
Notary Public
My Commission Exp. May 31, 1996
STATE OF CONNECTICUT )
) ss. Sept 29, 1995
COUNTY OF Hartford
Personally appeared W. B. Parent, Vice President of Fleet Bank, N.A.,
as aforesaid, signer of the foregoing instrument, and acknowledged the same
to be his free act and deed as such Vice President and the free act and
deed of said corporation, before me.
Xxxxxxx X. Xxxxxxx
----------------------------------
Commissioner of the Superior Court
Notary Public
My Commission Expires Apr. 30, 1999
-13-
