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Exhibit
10.2
TRUST
AGREEMENT
(Amended and Restated
on March 20, 2008)
(1999 Directors Deferred
Compensation Plan)
THIS AMENDED AND RESTATED
TRUST AGREEMENT is made by and between CONSOL ENERGY
INC. (the “Company”) and PNC Bank, National
Association (the “Trustee”).
WITNESSETH
WHEREAS, the Company
has adopted the CONSOL Energy Inc. Directors Deferred Compensation
Plan (the “Plan”), a nonqualified deferred compensation
plan; and
WHEREAS, the Company
has adopted that certain Trust Agreement (“Trust
Agreement”) under the Plan to provide a source of funds from
which liabilities under the Plan may be satisfied; and
WHEREAS, the Company
is authorized under Section 11 of the Trust Agreement to amend
the Trust Agreement; and
WHEREAS, the Company
desires to amend and restate the Trust Agreement as provided herein
(hereinafter “Trust”) and to contribute 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 herein defined, until paid to Plan participants
(“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 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, as amended; 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 meeting its
obligations under the Plan.
NOW, THEREFORE, the
parties do hereby amend and restate the Trust, and agree that the
Trust shall be comprised, held and disposed of as
follows:
Section 1. Establishment of
Trust
(a) The Company and the
Trustee acknowledge and agree that the cash and/or other securities
that make up the principal of the Trust will be held, administered
and disposed of by the Trustee as provided in this Trust
Agreement.
(b) The Trust shall be
irrevocable.
(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 (the
“Code”), 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 the Company and shall be used exclusively for
the uses and purposes of Plan Participants and other general
creditors of the Company 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 the Company. Any assets held by the Trust
will be subject to the claims of the Company’s general
creditors under federal and state law in the event of Insolvency,
as defined in Section 3(a) herein.
(e) The Company may
periodically deposit additional cash or other property to the Trust
in an amount sufficient to pay each Plan Participant and
beneficiary the benefits payable pursuant to the terms of the Plan.
The Trustee shall have no duty to calculate such amounts or compel
any deposits or contributions to the Trust.
Section 2. Payments to
Plan Participants and Their Beneficiaries
(a) As necessary for
proper administration of the Plan, the Company shall deliver to
Trustee written directions acceptable to the Trustee setting forth
the amounts payable in respect of each Plan Participants (and his
or her beneficiaries), and the time of commencement for payment of
such amounts. Except as otherwise provided herein, the Trustee
shall make payments to the Plan Participants and their
beneficiaries in accordance with such directions. With respect to
payments to Plan Participants, the Company shall be solely
responsible for determining the amount of income that is taxable
and reportable to the Plan Participant, determining the nature and
amounts of taxes, if any, to be withheld and remitted, and for
reporting all such income and taxes to the applicable government
entities. The Trustee shall have no duties with respect
thereto.
(b) The entitlement of a Plan
Participant or his or her beneficiaries to benefits under the Plan
shall be determined by the Company or such party as it shall
designate under the Plan, and any claim for such benefits shall be
considered and reviewed under the procedures set out in the
Plan.
(c) It is the Company’s
intention that all Plan benefits shall be paid to Plan Participants
and beneficiaries out of Trust assets to the extent not
inconsistent with the terms of the Plan. The Company may, however,
make payment of benefits directly to Plan Participants or their
beneficiaries as they become due under the terms of the Plan. The
Company shall notify the Trustee of its decision to make payment of
benefits directly before the time amounts are payable to Plan
Participants or beneficiaries. 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, the Company
shall make the balance of any such payment as it falls due. The
Trustee shall notify the Company where principal and earnings are
not sufficient to make benefit payments.
(d) Except as otherwise
provided in Section 3 or Section 12(e), the Company shall
have no right or power to direct the Trustee to return to the
Company 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.
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Section 3. Trustee
Responsibility Regarding Payments to Trust Beneficiary When the
Company Is Insolvent
(a) The Trustee shall cease
payment of benefits from the Trust to Plan Participants and their
beneficiaries if the Company is Insolvent. The Company shall be
considered “Insolvent” for purposes of this Trust
Agreement if: (i) the Company is unable to pay its debts as
they become due; or (ii) the Company is subject to a pending
proceeding as a debtor under the United States Bankruptcy
Code.
(b) At all times during the
continuance of this Trust, as provided in Section 1(d) hereof,
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 Plan Participants or their beneficiaries.
(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 by the Company 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 Plan 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 Plan
Participants or their beneficiaries to pursue their rights as
general creditors of the Company with respect to benefits due under
the Plan or otherwise.
(4) The Trustee shall resume
the payment of benefits to Plan Participants or their beneficiaries
in accordance with Section 2 of this Trust Agreement only
after Trustee has determined that the Company is not Insolvent (or
is no longer Insolvent).
(c) Provided that there are
sufficient assets, if the Trustee discontinues the payment of
benefits from the Trust pursuant to Section 3(b) hereof and
subsequently resumes such payments, then as directed in writing by
the Company, the first payment 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 the
Company in lieu of the payments provided for hereunder during any
such period of discontinuance. The Trustee shall have no duty to
calculate the foregoing amounts.
Section 4. Investment
Authority
(a) Except as provided in
Section 4(b) or (c), the Company or, if so appointed, the
Investment Manager (defined below) shall provide the Trustee with
all investment instructions. The Trustee shall neither affect nor
change the investments of the Trust, except as directed in writing
by the
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Company or the Investment Manager, and
shall have no right, duty or responsibility to recommend
investments or investment changes; provided, that the Trustee may
deposit cash on hand from time to time in any bank savings account,
certificate of deposit, or other instrument creating a deposit
liability for the bank, including the Trustee’s own banking
department if the Trustee is a bank, or in interests in a
registered investment company appropriate for short term
investment, including a registered investment company from which
Trustee or its affiliates receive compensation for providing
investment advisory, transfer agency, custody or other services,
without such prior direction.
(b) In order to provide for
an accumulation of assets comparable to the contractual liabilities
accruing under the Plan, the Company may direct the Trustee to
invest the assets held in the Trust to correspond to the
hypothetical investments made available for Plan Participants under
the Plan. Such directions may be made by Plan Participants by use
of a service representative, a Voice Response System (VRS), the
internet or such other electronic means as may be agreed upon from
time to time by the Company and the Trustee, maintained for such
purposes by the Trustee or its agents. The Company’s
designation of available investment options under the Plan, the
maintenance of accounts for each Plan Participant and the crediting
of investments to such accounts, the giving of investment
directions by Plan Participants under this Section, and the
exercise by Plan Participants of any other powers relating to
investments under this Section are solely for the purpose of
providing a mechanism for measuring the obligation of the Company
to any particular Plan Participant under the Plan. As provided in
Section 1(d) above, no Plan Participant or beneficiary will
have any preferential claim to or beneficial ownership interest in
any asset or investment, and the rights of any Plan Participant and
his or her beneficiaries under the Plan and this Trust are solely
those of the unsecured general creditor of the Company with respect
to the benefits of the Plan Participant under the Plan.
(c) Subject to the provisions
of Section 4(a) hereof, the Trustee shall have, without
exclusion, all powers conferred on the Trustee by applicable law,
unless expressly provided otherwise herein, and all rights
associated with the assets of the Trust shall be exercised by the
Trustee or the person designated by the Trustee, and shall in no
event
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