NATIONAL FUEL GAS COMPANY AND PARTICIPATING SUBSIDIARIES
1996 EXECUTIVE RETIREMENT PLAN TRUST AGREEMENT (II)
TABLE OF CONTENTS
SECTION 1. Establishment and Title of the Trust..............................2
SECTION 2. Acceptance by the Trustee.........................................3
SECTION 3. Limitation on Use of Funds........................................3
SECTION 4. Duties and Powers of the Trustee with Respect to Investments......6
SECTION 5. Additional Powers and Duties of the Trustee.......................9
SECTION 6. Payments by the Trustee..........................................12
SECTION 7. Third Parties....................................................16
SECTION 8. Taxes, Expenses and Compensation.................................16
SECTION 9. Administration and Records.......................................17
SECTION 10. Removal or Resignation of the Trustee and
Designation of Successor Trustee.................................19
SECTION 11. Enforcement of Trust Agreement and Legal.........................21
SECTION 12. Change in Control Defined........................................21
SECTION 13. Termination......................................................23
SECTION 14. Amendments.......................................................23
SECTION 15. Non-alienation...................................................24
SECTION 16. Communications...................................................24
SECTION 17. Miscellaneous Provisions.........................................25
EXHIBIT A....................................................................28
NATIONAL FUEL GAS COMPANY AND PARTICIPATING SUBSIDIARIES
1996 EXECUTIVE RETIREMENT PLAN TRUST AGREEMENT (II)
This TRUST AGREEMENT, made and entered into as of
May 10, 1996, by NATIONAL FUEL GAS COMPANY, a corporation organized under the
laws of the State of New Jersey, hereinafter referred to as the "Company", and
MARINE MIDLAND BANK, N. A., a New York banking corporation, hereinafter referred
to as the "Trustee"
W I T N E S S E T H:
WHEREAS, the Company had established an excess benefit plan,
within the meaning of Section 3(36) of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), called the National Fuel Gas Company and
Subsidiaries Supplemental Executive Retirement Plan (the "SERP"), for the
benefit of certain employees;
WHEREAS, the Company subsequently established an unfunded plan
of deferred compensation under Section 201(2) of ERISA, which it has called the
National Fuel Gas Company and Participating Subsidiaries 1996 Executive
Retirement Plan (II) (the "Plan"), and has amended the Plan, so that the Plan
provides benefits in addition to and inclusive of those provided under the SERP;
and consequently, the SERP has been terminated effective April 25, 1988;
WHEREAS, the Plan provides for the Company to pay all benefits
from its general assets and does not require it to pay benefits from the assets
of any trust or special or separate fund established by the Company to assure
such payments;
WHEREAS, the Company had established a revocable trust fund to
aid it in meeting its obligations under the SERP, and desires to amend such
trust to aid it in meeting its obligations under the Plan;
WHEREAS, the Company is concerned that benefits may not be
paid under the Plan in the event of a Change in Control, as defined below, and
wishes to assure payment in such event;
WHEREAS, the Company intends to make contributions to said
trust fund to aid it in meeting its obligations under the Plan, unless and until
said trust fund is revoked by the Company, in which event it shall be returned
to the Company, and to provide for the payment of benefits in the event of a
Change in Control, in which event said trust fund shall immediately become
irrevocable, and such contributions shall be held by the Trustee, and invested,
reinvested and distributed, all in accordance with the provisions of this Trust
Agreement;
WHEREAS, the Trustee shall be under no duty to determine
whether the amount of any contributions is in accordance with the Plan or to
collect or enforce payment of any contribution;
WHEREAS, the trust established by this Trust Agreement is
intended to be a "grantor trust" with the result that the corpus and income of
said trust are treated as assets and income of the Company pursuant to Sections
671 through 679 of the Internal Revenue Code of 1986 (the "Code"); and
WHEREAS, upon the occurrence of a Change in Control, but not
at any time prior thereto, said trust is intended to become a funded "employee
benefit plan", as defined in Section 3(3) of ERISA.
NOW, THEREFORE, in consideration of the mutual covenants
herein contained, the Company and the Trustee declare and agree as follows:
SECTION 1. Establishment and Title of the Trust.
1.1 The Company hereby establishes with the Trustee a Trust to
be known as the "National Fuel Gas Company and Participating Subsidiaries 1996
Executive Retirement Plan Trust (II)" (hereinafter referred to as the "Trust"),
consisting of such sums of money and other property acceptable to the Trustee as
from time to time shall be paid or delivered to the Trustee. All such money and
other property, all investments and reinvestments made therewith or proceeds
thereof and all earnings and profits thereon, less all payments and charges as
authorized herein, are hereinafter referred to as the "Trust Fund". The Trust
Fund shall be held by the Trustee IN TRUST and shall be dealt with in accordance
with the provisions of this Trust Agreement; provided, however, that the Company
shall at all times have the power to reacquire the Trust Fund by substituting
readily marketable securities of an equivalent value, net of any costs of
disposition, and such other property shall, following such substitution,
constitute the Trust Fund. Upon the occurrence of a Change in Control, as
defined below, but not at any time prior thereto, the Trust Fund shall, subject
to Section 3.2, be held for the exclusive purpose of providing payments to
Members and defraying reasonable expenses of administration in accordance with
the provisions of this Trust Agreement until all such payments required by this
Trust Agreement have been made.
SECTION 2. Acceptance by the Trustee.
2.1 The Trustee accepts the Trust established under this Trust
Agreement on the terms and subject to the provisions set forth herein, and it
agrees to discharge and perform fully and faithfully all of the duties and
obligations imposed upon it under this Trust Agreement.
SECTION 3. Limitation on Use of Funds.
3.1 Prior to the occurrence, if any, of a Change in Control,
as defined below, all or any part of the Trust Fund shall be recoverable by the
Company and may be used for any lawful purpose of the Company without regard to
the interests of the Members of the Plan (as the term Members is therein
defined), and the Members shall have no right to any part of the Trust Fund.
However, immediately upon the occurrence, if any, of a Change in Control, no
part of the corpus or income of the Trust Fund shall be recoverable by the
Company, used to provide for borrowing from any lender, or used for any purpose
other than for the exclusive purpose of providing payments to Members in
accordance with the provisions of this Trust Agreement until all such payments
required by this Trust Agreement have been made; provided, however, that (i)
nothing in this Section 3.1 shall be deemed to limit or otherwise prevent the
payment from the Trust Fund of expenses and other charges to the extent provided
for in Sections 8 and 17 of this Trust Agreement and (ii) the Trust Fund shall
at all times be subject to the claims of creditors of the Company and its
subsidiaries to the extent provided for in Section 3.2 of this Trust Agreement.
Notwithstanding any occurrence of a Change in Control, the Company shall at all
times have the power to reacquire the Trust Fund by substituting readily
marketable securities of an equivalent value, net of any costs of disposition,
and such other property shall, following such substitution, constitute the Trust
Fund.
3.2(a) In the event that the Company is either Bankrupt or
Insolvent on or after the occurrence of a Change in Control, as those terms are
defined below, the Trustee shall suspend all payments to Members and apply the
Trust Fund for the benefit of the creditors of the Company only as
directed by the United States Bankruptcy Court or other court of competent
jurisdiction ("Bankruptcy Court"), and shall, to the maximum extent permitted by
applicable law, be fully protected in doing so.
(b) For purposes of this Trust Agreement, the Company shall be
deemed to be "Bankrupt" if the Trustee has received a copy of a petition, duly
filed by the Company with the Bankruptcy Court, for commencement of a voluntary
case pursuant to Section 301 of the Bankruptcy Reform Act of 1978, as amended
("BRA") or a petition, duly filed against the Company with the Bankruptcy Court
for commencement of an involuntary case pursuant to Section 303 of the BRA,
together with a copy of the Certificate of Filing, acknowledging such filing.
Notwithstanding the foregoing provision of this Section 3.2(b), the Company
shall be deemed to be no longer Bankrupt if the Trustee has received a copy of
an order, duly issued by the Bankruptcy Court and filed with the clerk thereof,
dismissing such voluntary or involuntary case. The Company shall deliver to the
Trustee a copy of any such bankruptcy petition, Certificate of Filing or order
of dismissal within one business day after the date such petition was duly filed
with the Bankruptcy Court or clerk thereof.
(c) For purposes of this Trust Agreement, the Company shall be
deemed to be "Insolvent" if the Trustee has received a copy of: (i) a written
certification, approved by at least two-thirds of the members of the Board of
Directors of the Company and agreed and attested to, under penalties of perjury,
by the Chief Executive Officer of the Company, to the effect that the Company is
not paying its debts (other than debts that are the subject of a bona fide
dispute) as they become due or (ii) a written certification by another party,
under penalties of perjury, that the Company is not paying its debts (other than
such disputed debts) as they become due. Notwithstanding
the foregoing provisions of this Section 3.2(c), the Company shall be deemed to
be no longer Insolvent if the Trustee has received a copy of the Company's most
recent quarterly (unaudited) condensed consolidated balance sheet ("Interim
Report"), or of its most recent annual (audited) consolidated balance sheet
("Annual Report"), reporting that the Company's total assets exceed its total
liabilities and its current assets exceed its current liabilities as of a date
on or after the date of such written certification. The Company shall deliver to
the Trustee a copy of each Quarterly Report and Annual Report and of any
certification approved by the Board of Directors under the procedures set forth
above in this Section 3.2(c) within one business day after the date such report
is released to anyone not employed by, or affiliated with, the Company or the
date such certification is approved.
SECTION 4. Duties and Powers of the Trustee with Respect to
Investments.
4.1 The Trustee shall invest and reinvest the principal and
income of the Trust Fund and keep the Trust Fund invested, without distinction
between principal and income, in any property, whether real, personal or mixed,
and wherever situate and whether or not productive of income, including, without
limitations municipal bonds, capital, common and preferred stocks and personal,
corporate and governmental or other obligations, whether secured or unsecured,
and including any collective or part interest therein or trust and participating
certificates or other evidences of ownership, part ownership, or part interest
thereof, all without being limited or restricted to investment of a character
authorized for trustees or other fiduciaries
under any present or future laws and without regard to the proportion any such
property may bear to the entire amount of the Trust Fund.
4.2 The Trustee, in its discretion, may keep such portion of
the Trust Fund in cash equivalents or savings account certificates of deposit
and other types of time or demand deposits with any domestic financial
institution operated, maintained by, or affiliated with the Trustee which bear a
reasonable rate of interest, or in securities of the United States or any agency
or instrumentality thereof, or in other short-term fixed income investments,
including, without limitation, commercial paper, as the Trustee may from time to
time determine to be in the best interests of the Trust Fund; provided, however,
that each such investment shall have a stated maturity of twelve (12) months or
less from the date of purchase by the Trustee.
4.3 Except as otherwise required by applicable law, all assets
of the Plan may be commingled for investment purposes.
4.4(a) The Company may, at any time prior to a Change in
Control, direct the Trustee in writing to segregate all or a specified portion
of the Trust Fund into a separate fund (the "Directed Fund") and invest it in
accordance with the directions of one or more Investment Managers (as defined
below) appointed by the Company. Any Investment Manager so appointed shall be
(i) an investment adviser registered as such under the Investment Advisers Act
of 1940, (ii) a bank, (iii) an insurance company qualified to perform investment
management service, under the laws of more than one state of the United States,
(iv) the Company or (v) any other person acceptable to the Trustee. Unless the
Company is the Investment Manager, the Company shall deliver to the Trustee a
copy of the instruments appointing the Investment
Manager and evidencing the Investment Manager's acceptance of such appointment.
To the maximum extent permitted by applicable law, the Trustee shall be
protected in assuming that the appointment of an Investment Manager remains in
effect until it is otherwise notified in writing by the Company.
(b) The Trustee shall invest and reinvest the Directed Fund
only to the extent and in the manner directed by the Investment Manager in
writing, including an investment in any open-end or closed-end investment
company or companies, as defined in the Investment Company Act of 1940. In
performing its investment duties, the Investment Manager shall have, with
respect to the Directed Fund, all of the powers of the Trustee listed in
Sections 4 and 5 (other than paragraphs (i) and (1) of Section 5, unless the
Company is the Investment Manager). If the Trustee does not receive written
instructions from an Investment Manager with respect to the Directed Fund, the
Trustee shall, after providing notice to the Investment Manager, invest such
amounts in short-term securities of the United States or any agency or
instrumentality thereof or in one or more investment companies commonly known as
"money market" funds, whether or not managed by Trustee and/or its affiliates,
and with the consent of the Company, in a common fund maintained by the Trustee
for short-term investments. If the Investment Manager resigns, is removed, is no
longer qualified to serve as an Investment Manager under applicable law or upon
a Change in Control, the Trustee shall reassume complete investment
responsibility for the Directed Fund unless and until prior to a Change in
Control, a new qualified Investment Manager is appointed by the Company. Upon a
Change in Control, the Trustee shall notify the Investment Manager in writing
that it is reassuming complete investment responsibility for the Directed Fund.
(c) Any Investment Manager may, from time to time and at any
time prior to a Change in Control, issue orders for the purchase or sale of
securities directly to a broker or dealer and the Trustee, upon written request
from the Investment Manager, shall execute and deliver appropriate trading
authorization. Written notification of the issuance of each such order shall be
given promptly to the Trustee by the Investment Manager, and the execution of
each such order shall be confirmed by the broker to the Investment Manager and
to the Trustee. Such notification shall be authority to the Trustee to receive
securities purchased against payment therefor and to deliver securities sold
against receipt of the proceeds therefrom as the case may be. Unless the Trustee
participates knowingly in, or knowingly undertakes to conceal, an act or
omission of the Investment Manager, knowing such act or omission to be a breach
of the Investment Manager's responsibilities with respect to the Trust, the
Trustee shall not be liable for any act or omission of the Investment Manager
and shall not be under any obligation to invest or otherwise manage the assets
of the Plan that are subject to the management of the Investment Manager and, to
the maximum extent permitted by applicable law, the Trustee shall have no
liability or responsibility for acting or not acting in accordance with any
written direction of the Investment Manager or, subject to Section 4.4(b),
failing to act in the absence of any such direction. The Company agrees, to the
extent permitted by applicable law, to indemnify the Trustee and hold it
harmless from and against any claim or liability that may be asserted against
it, otherwise than on account of the Trustee's own negligence or willful
misconduct, by reason of the Trustee's taking or refraining from taking any
action in accordance with this Section 4.4, including, without limiting the
generality of the foregoing, any claim or
liability that may be asserted against the Trustee on account of failure to
receive securities purchased, or failure to deliver securities sold, pursuant to
orders issued by the Investment Manager directly to a broker or dealer.
SECTION 5. Additional Powers and Duties of the Trustee.
5.1 The Trustee shall have the following additional powers and
authority with respect to all property constituting a part of the Trust Fund:
(a) To sell, exchange or transfer any such property at
public or private sale for cash or on credit and
grant options for the purchase or exchange thereof.
(b) To participate in any plan or reorganization,
consolidation, merger, combination, liquidation or
other similar plan relating to any such property, 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 corporation or
other entity.
(c) To deposit any such property with any protective,
reorganization or similar committee; to delegate
discretionary power to any such committee; and to pay
part of the expenses and compensation of any such
committee and any assessments levied with respect to
any property so deposited.
(d) To exercise any conversion privilege or subscription
right available in connection with any such property;
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 or any of the
securities which may at any time be held in the Trust
Fund and to do any act with reference thereto,
including the exercise of options, the making of
agreements or subscriptions and the payment of
expenses, assessments or subscriptions, which may be
deemed necessary or advisable in connection
therewith, and to hold and retain any securities or
other property which it may so acquire.
(e) To commence or defend suits or legal proceedings and
to represent the Trust in all suits or legal
proceedings; to settle, compromise or submit to
arbitration, any claims, debts or damages, due or
owing to from the Trust.
(f) To exercise, personally or by general or limited
power of attorney, any right, including the right to
vote, appurtenant to any securities or other such
property.
(g) Subject to Section 5.1(k), to borrow money from any
lender in such amounts and upon such terms and
conditions as shall be deemed advisable or proper to
carry out the purposes of the Trust and to pledge any
securities or other property for the repayment of any
such loan.
(h) To hold any mortgage in its own name or in the name
of a nominee, with or without the addition of words
indicating that such mortgage is held in a fiduciary
capacity, and to
cause to be formed a corporation, partnership, trust
or other entity to hold title to any mortgage with
the aforesaid powers, all upon such terms and
conditions as may be deemed advisable; to renew or
extend or participate in the renewal or extension of
any mortgage, and to agree to a reduction in the rate
of interest on any mortgage or to any other
modification or change in the terms of any mortgage
or of any guarantee pertaining thereto, in any manner
and of any guarantee pertaining thereto, in any
manner and to any extent that may be deemed advisable
for the protection of the Trust or the preservation
of any covenant or condition of any mortgage or in
the performance of any guarantee, or to enforce any
default in such manner and to such extent as may be
deemed advisable; and to exercise and enforce any and
all rights of foreclosure, to bid on any property on
foreclosure, to take a deed in lieu of foreclosure
with or without paying a consideration therefor and
in connection therewith to release the obligation on
the bond secured by such mortgage, and to exercise
and enforce in any action, suit or proceeding at law
or in equity any rights or remedies in respect of any
such mortgage or guarantee.
(i) To engage any legal counsel, including counsel to the
Company, or any other suitable agents, to consult
with such counsel or agents with respect to the
construction of this Trust Agreement, the duties of
the Trustee hereunder, the
transactions contemplated by this Trust Agreement or
any act which the Trustee proposes to take or omit,
to rely upon the advice of such counsel or agents,
and to pay its reasonable fees, expenses and
compensation from the Trust unless paid by the
Company.
(j) To register any securities held by it in its own name
or in the name of any custodian of such property or
of its nominee, including the nominee of any system
for the central handling of securities, with or
without the addition of words indicating that such
securities are held in a fiduciary capacity, to
deposit or arrange for the deposit of any such
securities with such a system and to hold any
securities in bearer form.
(k) Upon the written direction of the Company, to enter
into or assume any contract or policy with an
insurance company or companies for the purpose of
investment, insurance coverage or otherwise, to pay
from the Trust Fund premiums, assessments, dues,
charges and interest, if any, with respect to such
contracts or policies, to exercise any and all of the
rights, options or privileges (including, but not
limited to, the right to borrow) under such contracts
or policies, to otherwise take such actions that may
be available under such contracts or policies;
provided, however, that the Trustee shall be the sole
owner of all such contracts held as assets of the
Trust Fund and provided, further, that upon the
occurrence of a Change in
Control, the Trustee shall, regardless of whether it
has received the written direction of the Company,
(i) cease borrowing additional amounts on all such
contracts or policies and (ii) take all necessary or
appropriate action with respect to such contracts or
policies to liquidate the Trust Fund in accordance
with Section 6.4.
(l) To make, execute and deliver, as Trustee, any and all
deeds, leases, notes, bonds, guarantees, mortgages,
conveyances, contracts, waivers, releases or other
instruments in writing necessary or proper for the
accomplishment of any of the foregoing powers.
SECTION 6. Payments by the Trustee.
6.1 The establishment of the Trust and the payment or delivery
to the Trustee of money or other property acceptable to the Trustee shall not
vest in any Member any right, title or interest in and to any assets of the
Trust Fund or any payments except upon the occurrence, if any, of a Change in
Control, as defined in Section 12.1 below, in which event the right, title and
interest of a Member in any assets of the Trust Fund shall be determined solely
pursuant to Section 6.4 of this Trust Agreement.
6.2 The Company shall from time to time provide the Trustee
with a list of Members, indicating an amount payable to each Member upon such
Member's termination of employment for any reason following the occurrence, if
any, of a Change in Control, as of the dates therein indicated and subject to
adjustments as therein indicated. This document shall be called the "Payment
Schedule". Prior to the occurrence, if any, of a Change in Control, the Company
may from time to time add or delete Members or change the amounts payable to
Members by substituting a new Payment Schedule. In the event of the occurrence
of a Change in Control, the Company may not modify, revoke or alter the Payment
Schedule, or substitute a new Payment Schedule, if the effect of such
modification, revocation, alteration or substitution would be to delete, or
reduce the amount payable to, any Member, or by adding, or increasing the amount
payable to, any Member, reduce the ratio which the aggregate fair market value
of the Trust Fund bears to the aggregate amount payable to Members below one.
6.3 Prior to the occurrence, if any, of a Change in Control,
and with respect to any amounts remaining in the Trust Fund after the payments
required by Section 6.4 of this Trust Agreement following the occurrence of a
Change in Control have been made, the Trustee shall make such payments from the
Trust Fund at such time or times to such person or persons, including the
Company, at such addresses and in such amounts-and for such purposes as the
Company shall specify; the Trustee shall not make any such payments from the
Trust Fund without the written direction of the Company (except as may otherwise
be required by a court having competent jurisdiction) even though it may be
informed from another source (including a Member) that payments are due under
the Plan. The Trustee shall, to the maximum extent permitted by applicable law,
be fully protected in acting upon any such written direction of the Company (or
the failure to give such written direction) pursuant to this Section 6.3, and
shall have no duty to determine the rights of any person in the Trust Fund or
under the Plan or to inquire into the right or power of the Company to grant any
payment to a Member or to direct any such payment.
6.4(a) In the event of the occurrence of a Change in Control,
the amount specified, and/or determined from the formulae and adjustments
contained, in the Payment Schedule then in effect, shall, subject to Section
6.4(d), be paid by the Trustee to each Member listed thereon as a former
employee of the Company (or to the Beneficiary designated on the Payment
Schedule or, absent such a designation, to the legal representative of his or
her estate if the Member shall not then be living) in a cash lump sum, all as
further indicated in the Plan. The Trustee shall file with the Company a written
report of such payment within 15 days after making the payment.
(b) In the event of the termination, for any reason and at any
time following the occurrence of a Change in Control, of the Company's
employment of any Member listed on the Payment Schedule as an employee of the
Company, the amount specified, and/or determined from the formulae and
adjustments contained, in the Payment Schedule then in effect, shall, subject to
Section 6.4(d), be paid by the Trustee to the Member (or to the Beneficiary
designated on the Payment Schedule or, absent such a designation, to the legal
representative of his or her estate, if the Member shall not then be living) in
a cash lump sum, all as further indicated in the Plan, against delivery by the
Member to the Trustee of two duly executed and notarized Affidavits and Receipts
in substantially the form attached hereto as Exhibit A (or delivery by the
Beneficiary designated on the Payment Schedule or, absent such a designation, to
the legal representative of the Member's estate, if the Member shall not then be
living, of two copies of the Member's death certificate). The Trustee shall send
one Affidavit and Receipt (or one copy of the death certificate) to the Company
within 15 days after payment is made to each such Member.
(c) Notwithstanding anything contained in Section 6.4(a) or
6.4(b) to the contrary, if, at any time after the occurrence, if any, of a
Change in Control, the Trust finally is determined by the Internal Revenue
Service (the "IRS") not to be a "grantor trust" with the result that the income
of the Trust Fund is not treated as income of the Company pursuant to Sections
671 through 679 of the Code, or if a tax is finally determined by the IRS or by
counsel to the Trustee, to be payable by one or more Members in respect of any
right, title or interest in any assets of the Trust Fund prior to termination of
employment with the Company, then the amount specified, and/or determined from
the formulae and adjustment contained, in the Payment Schedule then in effect,
shall, subject to Section 6.4(d), be paid by the Trustee in a cash lump sum as
soon as practicable to each Member thereon, regardless of whether such Member's
employment with the Company has terminated and without the necessity of
presentation of an Affidavit and Receipt (or death certificate).
(d) If the Trustee holds life insurance contracts or policies
on the life of any Member, the Member may elect (with the consent of the
Company)- in writing under procedures adopted by the Trustee to have such
contracts or policies assigned to him or her and distributed to such Member in
satisfaction of that portion of the cash lump sum payment the Member would
otherwise be entitled under Section 6.4(a), 6.4(b) or 6.4(c) that such contracts
or policies represent. Subject to and to the extent consistent with the
foregoing sentence of this Section 6.4(d), if the Trustee determines that the
Trust Fund is insufficient to provide for payment to one or more Members of the
full amount in accordance with the foregoing provisions of this Section 6.4, the
amount to be paid to each such Member at that time shall be reduced in
proportion to the ratio which the aggregate fair market value of the Trust
Fund bears to the aggregate amount otherwise payable at that time to such
Members, and any Member who thereafter presents an Affidavit and Receipt (or on
behalf of whom a death certificate is thereafter presented) to the Trustee shall
not be entitled to any payment from the Trust Fund.
(e) The Trustee shall, to the maximum extent permitted by
applicable law, be fully protected in making payments pursuant to this Section
6.4.
6.5 The Trustee shall deduct from each payment under Section
6.3 or 6.4 any federal, state or local withholding or other taxes or charges
which the Trustee is from time to time required to deduct under applicable laws
with respect to payments to a Member or Beneficiary.
SECTION 7. Third Parties.
7.1 A third party dealing with the Trustee shall not be
required to make inquiry as to the authority of the Trustee to take any action
nor be under any obligation to follow the proper application by the Trustee of
the proceeds of sale of any property sold by the Trustee or to inquire into the
validity or propriety of any act of the Trustee.
SECTION 8. Taxes, Expenses and Compensation.
8.1 The Company shall from time to time pay taxes of any and
all kinds whatsoever which at any time are lawfully levied or assessed upon or
become payable in respect of the Trust Fund, the income or any property forming
a part thereof, or any security transaction pertaining thereto. To the extent
that any taxes lawfully levied or assessed upon the Trust Fund are not paid by
the Company, the Trustee shall pay such taxes out of the Trust Fund, provided,
however, that in the event of the occurrence of a Change in
Control, no taxes (other than applicable withholding taxes and charges pursuant
to Section 6.5 and such other taxes relating to the Trust Fund for which the
Trustee has been assessed by the appropriate federal, state or local taxing
authority) shall be paid from the Trust Fund. The Trustee shall contest the
validity of such taxes in any manner deemed appropriate by the Company or its
counsel, but at Company expense, or the Company may itself contest the validity
of any such taxes.
8.2 Any other reasonable expenses incurred by the Trustee in
the performance of its duties under this Trust Agreement, including brokerage
commissions, shall be charged against and paid from the Trust Fund to the extent
that the Company does not elect to pay such expenses.
8.3 The Company will pay the Trustee such reasonable
compensation for its services-as may be agreed upon in writing from time to time
by the Company and the Trustee. Such compensation shall be charged against and
paid from the Trust Fund to the extent the Company does not pay such
compensation.
SECTION 9. Administration and Records.
9.1 The Trustee shall keep or cause to be kept accurate and
detailed accounts of any investments, receipts, disbursements and other
transactions hereunder, and all accounts, books and records relating thereto
shall be open to inspection and audit at all reasonable times by any person
designated by the Company. All such accounts, books and records shall be
preserved (in original form, or on microfilm, magnetic tape or any other similar
process) for such period as the Trustee may determine, but the Trustee may only
destroy such accounts, books and records after first notifying the
Company in writing of its intention to do so and transferring to the Company any
of such accounts, books and records requested.
9.2 Within 60 days after the close of each calendar year, and
within 60 days after the removal or resignation of the Trustee or the
termination of the Trust, the Trustee shall file with the Company a written
account setting forth all investments, receipts, disbursements and other
transactions effected by it during the preceding calendar year or during the
period from the close of the preceding calendar year to the date of such
removal, resignation or termination, including a description of all investments
and securities purchased and sold with the cost or net proceeds of such
purchases or sales and showing all cash, securities and other property held at
the end of such calendar year or other period. Upon the expiration of 90 days
from the date of filing such annual or other account, the Trustee shall, to the
maximum extent permitted by applicable law, be forever released and discharged
from all liability and accountability with respect to the propriety of its acts
and transactions shown in such account except with respect to any such acts or
transactions as to which the Company shall within such 90-day period file with
the Trustee written objections.
9.3 The Trustee shall from time to time permit an independent
public accountant selected by the Company (except one to whom the Trustee has
reasonable objection) to have access during ordinary business hours to such
records as may be necessary to audit the Trustee's accounts.
9.4 As of the last day of each calendar year, the fair market
value of the assets held in the Trust Fund shall be determined. The Trustee
shall file with the Company the written report of the determination of such fair
market value of the assets held in the Trust Fund.
9.5 Nothing contained in this Trust Agreement shall be
construed as depriving the Trustee or the Company of the right to have a
judicial settlement of the Trustee's accounts, and upon any proceeding for a
judicial settlement of the Trustee's accounts or for instructions the only
necessary party thereto in addition to the Trustee shall be the Company.
9.6 In the event of the removal or resignation of the Trustee,
the Trustee shall deliver to the successor trustee all records which shall be
required by the successor trustee to enable it to carry out the provisions of
this Trust Agreement.
9.7 In addition to any returns required of the Trustee by law,
the Trustee shall prepare and file such tax reports and other returns as the
Company and the Trustee may from time to time agree.
SECTION 10. Removal or Resignation of the Trustee and
Designation of Successor Trustee.
10.1 At any time prior to the occurrence, if any, of a Change
in Control, as defined below, the Company may remove the Trustee with or without
cause, upon at least 60 days' notice in writing to the Trustee. At any time
after the occurrence of a Change in Control, the Trustee may not be removed
except by order of a court having competent jurisdiction.
10.2 The Trustee may resign at any time upon at least 60 days'
notice in writing to the Company.
10.3 In the event of such removal or resignation, the Trustee
shall duly file with the Company a written account as provided in Section 9.2
above for the period since the last previous annual accounting, listing the
investments of the Trust and any uninvested cash balance thereof, and setting
forth all receipts, disbursements, distributions and other transactions
respecting the Trust not included in any previous account, and if written
objections to such account are not filed as provided in Section 9.2, the Trustee
shall, to the maximum extent permitted by applicable law, be forever released
and discharged from all liability and accountability with respect to the
propriety of its acts and transactions shown in such account.
10.4 Within 60 days after any such notice of removal or
resignation of the Trustee, the Company shall designate a successor Trustee
qualified to act hereunder; provided, however, if the Trustee resigns at any
time on or after the occurrence of a Change in Control, then the successor
Trustee qualified to act hereunder shall be any bank, trust company or other
financial institution that may serve as Trustee under applicable law that is
acceptable to at least fifty percent (50%) of the members of the Company's board
of directors immediately before the Change in Control then living and readily
available and willing to make such decision. Each such successor Trustee, during
such period as it shall act as such, shall have the powers and duties herein
conferred upon an individual Trustee, and the word "Trustee" wherever used
herein, except where the context otherwise requires, shall be deemed to include
any successor Trustee. Upon designation of a successor Trustee and delivery to
the resigned or removed Trustee of written acceptance by the successor Trustee
of such designation, such resigned or removed Trustee shall promptly assign,
transfer, delivery and pay over to such Trustee, in conformity with the
requirements of applicable law, the funds and properties in its control or
possession then constituting the Trust Fund.
SECTION 11. Enforcement of Trust Agreement and Legal
Proceedings.
11.1 The Company shall have the right to enforce any provision
of this Trust Agreement, and, on or after the occurrence, if any, of a Change in
Control, as defined below, any Member shall have the right as a beneficiary of
the Trust to enforce any provision of this Trust Agreement that affects the
right, title and interest of such Member in the Trust. Except to the extent
provided in Section 3.2 or as otherwise required by applicable law, in any
actions or proceedings affecting the Trust, the only necessary parties shall be
the Company, the Trustee and, on or after the occurrence of a Change in Control,
the Members and, except as otherwise required by applicable law, no other person
shall be entitled to any notice or service of process. Any judgment entered in
such an action or proceeding shall, to the maximum extent permitted by
applicable law, be binding and conclusive on all persons having or claiming to
have any interest in the Trust.
11.2 In the event the Trustee receives notification pursuant
to Section 3.2 that the Company is Bankrupt or Insolvent, the Trustee shall
promptly give notice thereof in writing to all Members listed on the Payment
Schedule then in effect as soon as it is reasonably practicable.
SECTION 12. Change in Control Defined.
12.1 The term, "Change in Control", shall mean the
happening of any of the following:
(a) The acquisition by any party or parties of the
beneficial ownership of 30% or more of the voting
shares of the Company; or
(b) The occurrence of a transaction requiring
shareholders' approval for the acquisition of the
Company through purchase of stock or assets, or by
merger, or otherwise; or
(c) The election during any period of 24 months, or less,
of 40% or more, of the members of the Board of
Directors of the Company (the "Board"), without the
approval of three-fourths of the Board members as
constituted at the beginning of the period.
Notwithstanding the foregoing definition, no Change
in Control shall be deemed to have occurred for
purposes of this Trust Agreement unless and until the
Trustee has actual knowledge from a reliable source,
not including a Member acting in his or her
individual capacity, of such Change in Control. For
this purpose, a written notarized statement that a
Change in Control has occurred that is delivered to
the Trustee and is signed by at least fifty percent
(50%) of the individuals then living who were members
of the Company's board of directors as of any date
during the one-year period ending on the date such
notice is received by the Trustee shall be deemed to
be actual knowledge from a reliable source, and a
report filed with the Securities and Exchange
Commission, a public statement issued by the Company,
or a periodical of general circulation, including but
not limited to The New York Times or The Wall Street
Journal, shall be deemed to be a
reliable source, regardless of the manner in which
such report of a Change in Control is made known to
the Trustee.
SECTION 13. Termination.
13.1 Prior to the occurrence, if any, of a Change in Control,
and with respect to any amounts remaining in the Trust Fund after the payments
required by Section 6.4 of this Trust Agreement following the occurrence of a
Change in Control have been made, the Company may terminate this Trust without
the approval of any Member at any time upon 30 days' notice in writing to the
Trustee. Upon receipt by the Trustee of such notice of termination of the Trust,
the Trustee shall, with reasonable promptness after receipt of any such notice,
arrange for the orderly distribution of the Trust property, or such remaining
amounts thereof, in accordance with the written instructions of the Company
which shall be given in conformity with the provisions of applicable law.
SECTION 14. Amendments.
14.1 At any time prior to the occurrence of a Change in
Control, the Company may from time to time amend or modify, in whole or in part,
any or all of the provisions of this Trust Agreement with the written consent of
the Trustee but without the consent of any Member.
14.2 At any time on or after the occurrence of a Change in
Control, the Trust may not be amended by the Company or its successor except as
may be required by applicable law.
14.3 The Company and the Trustee shall execute such
supplements to, or amendments of, this Trust Agreement as shall
be necessary to give effect to any such amendment or modification.
SECTION 15. Non-alienation.
15.1 Except as provided in Section 3.2 or insofar as
applicable law may otherwise require, (i) no amount payable to or in respect of
any Member at any time under the Trust shall be subject in any manner to
alienation by anticipation, sale, transfer, assignment, bankruptcy, pledge,
attachment, charge or encumbrance of any kind, and any attempt to so alienate,
sell, transfer, assign, pledge, attach, charge or otherwise encumber any such
amount, whether presently or thereafter payable, shall be void; and (ii) the
Trust Fund shall in no manner be liable for or subject to the debts or
liabilities of any Member.
SECTION 16. Communications.
16.1 Communications to the Company shall be addressed to the
Company at 00 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxx Xxxx, 00000, Attention: General
Counsel; provided, however, that upon the Company's written request, such
communications shall be sent to such other address as the Company may specify.
16.2 Communications to the Trustee shall be addressed to it at
One Marine Midland Center, Buffalo, New York, 14203, provided, however, that
upon the Trustee's written request, such communications shall be sent to such
other address as the Trustee may specify.
16.3 No communication shall be binding on the Trustee until it
is received by the Trustee, and no communication shall be binding on the Company
until it is received by the Company.
16.4 Any action of the Company pursuant to this Trust
Agreement, including all orders, requests, directions, instructions, approvals
and
objections of the Company to the Trustee, shall be in writing signed on behalf
of the Company by any duly authorized officer of the Company. The Trustee may
rely on, and will be fully protected with respect to any such action taken or
omitted in reliance on, any information, order, request, direction, instruction,
approval, objection list and Payment Schedule delivered to the Trustee by the
Company or, to the extent applicable under this Trust Agreement, by a Member or
the legal representatives of his or her estate.
SECTION 17. Miscellaneous Provisions.
17.1 This Trust Agreement shall be binding upon and inure to
the benefit of the Company and the Trustee and their respective successors and
assigns.
17.2 The Company shall pay and shall protect, indemnify and
save harmless the Trustee and its officers, employees and agents from and
against any and all losses, liabilities (including liabilities for penalties),
actions, suits, judgments, demands, damages, costs and expenses (including,
without limitation, attorneys' fees and expenses) of any nature arising from or
relating to any action by or any failure to act by the Trustee, its officers,
employees and agents or the transactions contemplated by this Agreement,
including, but not limited to, any claim made by a Member or his or her
Beneficiary with respect to payments made or to be made by the Trustee, any
claim made, whether before or after a Change in Control, by the Company or its
successor, whether pursuant to a sale of assets, merger, consolidation,
liquidation or otherwise, that this Trust Agreement is invalid or ultra xxxxx,
except to the extent that any such loss, liability, action, suit, judgment,
demand, damage, cost or expense has been determined by final judgment of a
court of competent jurisdiction to be the result of the gross negligence or
willful misconduct of the Trustee, its officers, employees or agents. To the
extent that the Company has not fulfilled its obligations under the foregoing
provisions of this Section, the Trustee shall be reimbursed out of the assets of
the Trust Fund or may set up reasonable reserves for the payment of such
obligations. To the maximum extent permitted by applicable law, no personal
liability whatsoever shall attach to or be incurred by any employee, officer or
director of the Company, as such, under or by reason of the terms or conditions
contained in or implied from this Trust Agreement.
17.3 The Trustee assumes no obligation or responsibility with
respect to any action required by this Trust Agreement on the part of the
Company.
17.4 Any corporation into which the Trustee may be merged or
with which it may be consolidated, or any corporation resulting from any merger,
reorganization or consolidation to which the Trustee may be a party, or any
corporation to which all or substantially all the trust business of the Trustee
may be transferred shall be the successor of the Trustee hereunder without the
execution or filing of any instrument or the performance of any act.
17.5 Titles to the Sections of this Trust Agreement are
included for convenience only and shall not control the meaning or
interpretation of any provision of this Trust Agreement.
17.6 To the maximum extent consistent with ERISA, this Trust
Agreement and the Trust established hereunder shall be governed by and
construed, enforced and administered in accordance with the laws of the State of
New York and the Trustee shall be liable to account only in the courts of that
state.
17.7 This Trust Agreement may be executed in any number of
counterparts, each of which shall be deemed to be the original although the
others shall not be produced.
IN WITNESS WHEREOF, this Trust Agreement has been duly
executed by the parties hereto as of the day and year first above written.
NATIONAL FUEL GAS COMPANY
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxxx
---------------------------------------
Title: Vice President
--------------------------------------
Attest:
/s/ A. M. Cellino
-------------------------
Secretary
MARINE MIDLAND BANK, N. A.
as TRUSTEE
By: /s/ Xxxxx Xxxxxxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxxxxxx
---------------------------------------
Title: Vice President - Trust Administration
--------------------------------------
Attest:
/s/ Xxxxxx X. Xxxxxxx
-------------------------
Trust Officer
EXHIBIT A
AFFIDAVIT AND RECEIPT
I, __________________________, under penalties of perjury, do
hereby solemnly state:
That I make this Affidavit in order to induce the Trustee of
the National Fuel Gas Company and Participating Subsidiaries Executive
Retirement Plan Trust to pay me $______________ pursuant to its terms: and
That my employment with the National Fuel Gas Company or any
of its subsidiaries was terminated on ___________________.
-----------------------------------------
Participant
STATE OF )
) SS:
COUNTY OF )
On the _______ day of ___________________, 19____ before me
personally came _________________________ to me known, who, being by me duly
sworn, did depose and say that __he resides at
----------------------------------------------------,
and that the statements herein are all materially correct.
------------------------------------------
Notary Public
STATE OF NEW YORK )
) SS:
COUNTY OF ERIE )
On the 3rd day of May, 1996, before me personally came
P. C. Xxxxxxxx, to me known, who, being by me duly sworn, did depose and say
that he resides in the town of Orchard Park, New York; that he is the Senior
Vice President of NATIONAL FUEL GAS COMPANY, one of the corporations described
in and which executed the foregoing instrument; and that he signed his name
thereto by order of the Board of Directors of said corporation.
/s/ Xxxxx X. Xxxxx
------------------------------------------
Notary Public
STATE OF NEW YORK )
) SS:
COUNTY OF ERIE )
On the 13th day of May, 1996, before me personally came
me personally came Xxxxx Xxxxxxxxxx to me known, who, being by me duly sworn,
did depose and say that she resides in Getzville, NY; that she is a Vice
President of MARINE MIDLAND BANK, one of the corporations described in
and which executed the foregoing instrument; and that she signed his/her name
thereto by order of the Board of Directors of said corporation.
/s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------------
Notary Public
