Exhibit 10.28
FIRST AMENDMENT TO
A. T. MASSEY COAL COMPANY, INC.
EXECUTIVE RETIREMENT PLAN TRUST
WHEREAS, A. T. Massey Coal Company,
Inc., as the Company which is the grantor of the A. T. Massey Coal
Company, Inc. Executive Retirement Plan Trust established effective
April 1, 1999 (the “Trust”), and Wachovia Bank,
N.A., as the Trustee of the Trust, hereby amend the Trust ,
effective January 1, 2009.
WHEREAS, pursuant to
Article XII, section 12.01.00 of the Trust, the Company and
the Trustee desire to amend the Trust to comply with final
regulations issued by the Internal Revenue Service under
Section 409A of the Internal Revenue Code of 1986, as
amended.
WHEREAS, the Company hereby warrants
and represents that is has not experienced a Change in Control
under Article XII, section 12.04.00 of the
Trust.
NOW THEREFORE, the Agreement is
amended as follows:
1. The following new
Section 1.09.00 is added to the Trust:
1.09.00 Notwithstanding any other
provision of this Trust, during any “restricted period”
within the meaning of Section 409A(b)(3)(B) of the Code with
respect to any defined benefit plan of the Company or any member of
a controlled group that includes the Company, no additional
deposits may be made to the Trust, the Trustee may not compel
additional deposits to the Trust and no other assets may be set
aside or reserved for purposes of meeting the Company’s
obligati
