RESTATEMENT AND AMENDMENT OF
THE TRUST PROVISIONS OF
THE COASTAL CORPORATION
THRIFT PLAN AND TRUST
AGREEMENT, made this 17th day of November, 1989, between The Coastal
Corporation, a Delaware corporation (hereinafter referred to as the "Company" or
"Coastal") and MTrust Corp, N.A., a national banking association, (hereinafter
referred to as the "Trustee"):
W I T N E S S E T H:
WHEREAS, the Company has adopted The Coastal Corporation Thrift Plan,
hereinafter referred to as the "Plan," to carry out the general and specific
provisions set forth in the Introduction section of the Plan, all in compliance
with the provisions of the Employee Retirement Income Security Act of 1974
(ERISA); and
WHEREAS, the Company intends that the Plan qualify under Sections 401(a) of
the Internal Revenue Code; and
WHEREAS, the Company desires to establish a trust known as The Coastal
Corporation Thrift Trust (hereinafter referred to as the "Trust") as the funding
medium for the Plan; and
WHEREAS, the Trust is a modification and continuation of the trust
established previously as part of The Coastal Corporation Thrift Plan and Trust:
NOW, THEREFORE, the~Company and the Trustee hereby agree as follows:
FORM S-8/ 75
THE COASTAL CORPORATION
THRIFT TRUST
Restated as of January 1, 1989
FORM S-8/ 76
THE COASTAL CORPORATION THRIFT TRUST
Table of Contents
PAGE
I. Establishment of Trust
1.1 Trust..................................................... 1
1.2 Company................................................... 1
II. Contributions
2.1 Receipt of Contributions.................................. 1
2.2 Exclusive Benefits of Employees........................... 1
III. Payments from Trust Fund
3.1 Committee to Direct Payments.............................. 2
3.2 Interest Nontransferable.................................. 2
3.3 Unclaimed Funds........................................... 2
IV. Trustee's Powers, Duties and Investments
4.1 Investments Authorized.................................... 3
4.2 Power of Trustee.......................................... 3
4.3 Voting Company Stock...................................... 4
4.4 Nominees.................................................. 4
4.5 Expenses and Compensation................................. 4
4.6 Indemnification of Trustee................................ 4
4.7 Incapacity of Committee and Company....................... 4
4.8 Prudent Man Rule.......................................... 4
4.9 Liability................................................. 5
4.10 Assignment of Assets to Investment Managers or Other
Trustees.................................................. 5
V. Administration, Accounts and Reports
5.1 Administration............................................ 5
5.2 Records and Accounts of Trustee........................... 5
5.3 Annual Account............................................ 5
VI. Resignation, Removal and Succession of Trustee
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FORM S-8/ 77
6.1 Resignation or Removal of Trustee......................... 6
6.2 Final Account of Succeeded Trustee........................ 6
6.3 Rights of Successor Trustee............................... 6
6.4 Organizational Changes of Trustee......................... 6
VII. Amendment and Termination
7.1 Right of Amendment........................................ 6
7.2 Method of Amendment....................................... 6
7.3 Termination or Disqualification........................... 7
VIII. Miscellaneous
8.1 Applicable Law............................................ 7
8.2 Legal Actions............................................. 7
8.3 Protection of Persons Dealing with the Trustee............ 7
8.4 Gender and Number; Headings............................... 7
8.5 Definitions............................................... 7
8.6 Merger or Consolidation................................... 7
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FORM S-8/ 78
THE COASTAL CORPORATION
THRIFT TRUST
This is a Trust Agreement made at Houston, Texas, between The Coastal
Corporation, a Delaware corporation (hereinafter referred to as the "Company"),
and MTrust Corp, N.A., a national banking association, (referred to as the
"Trustee").
ARTICLE I
ESTABLISHMENT OF TRUST
1.1 Trust. The Company hereby establishes The Coastal Corporation Thrift
Trust (the "Trust Agreement"). This Trust Agreement is a restatement and
amendment of the trust provisions previously contained in The Coastal
Corporation Thrift Plan and Trust. The Trustee shall receive, hold, invest,
administer and distribute in accordance with the provisions of this Trust
Agreement, as it may be amended and in force from time to time, all assets of
every kind from time to time held by it hereunder (the "Trust Fund"). Except as
otherwise provided herein, title to all assets comprising the Trust Fund shall
at all times be vested in the Trustee, subject to the right of the Trustee to
hold title in bearer form or in the name of a nominee, and the interest of
others in the assets of the Trust Fund shall be solely the right to have such
assets received, held, invested, administered and distributed to the Trustee in
accordance with the provisions of this Trust Agreement.
1.2 Company. The Plan provides that The Coastal Corporation shall be the
Plan Administrator, and it shall be responsible for the general administration
of the Plan. Unless otherwise specified herein, any powers which are exercisable
by the Company may be exercised by the resident, or a Vice-President of the
Company, or by such other officer or agent as may be authorized to do so by
resolution of the Board of Directors of he Company. If the Company shall appoint
a Committee to administer the Plan on its behalf, the Company shall furnish to
the Trustee, at the time of their appointment, the name and specimen signature
of each Committee member upon whose statement the Trustee is authorized to rely.
If the Company chooses not to appoint such a Committee, all references to the
Committee (except in this Section 1.2) shall mean the Company. Until notified of
a change of such persons, the Trustee shall act upon the assumption that there
has been no such change. The Trustee shall be fully protected by the Company at
all times in dealing with or in aching upon the directions of the agents on
behalf of the Company except in case of gross negligence or willful misconduct.
ARTICLE II
CONTRIBUTIONS
2.1 Receipt of Contributions. Company add Participant contributions shall
be paid to the Trustee from time to time in accordance with the Plan. All
Company and Participant contributions and all investments thereof, together with
all accumulations, accruals, earnings and income with respect thereto, shall be
held by the Trustee in trust hereunder as part of the Trust Fund. The Trust Fund
shall be invested by the Trustee pursuant to written instructions given to the
Trustee by the Committee. The Trustee shall not be responsible for the
administration of the Plan, maintaining any records of Participants' Accounts
under the Plan, or the computation of or collection of Company contributions,
but shall hold, invest, reinvest, manage, administer and distribute the Trust
Fund as directed by the Committee and as provided herein, for the exclusive
benefit of Participants (and their Beneficiaries).
2.2 Exclusive Benefit of Employees. All contributions made pursuant to the
Plan shall be held by the Trustee in accordance with the terms of the Plan and
this Trust Agreement for the exclusive benefit of those Employees of the Company
as defined in the Plan who are Participants under the Plan, including former
Employees, and their Beneficiaries, and shall be applied to provide benefits
under the Plan and to pay the expenses of the administration of the Plan and the
Trust, to the extent that such expenses are not otherwise paid. At no time prior
to the satisfaction of all liabilities with respect to such Employees and their
Beneficiaries shall any portion of the Trust Fund (other than such part as may
be required to pay administration expenses and taxes) be used for, or diverted
to, purposes other than for the
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FORM S-8/ 79
exclusive benefit of such Participants and their Beneficiaries. However,
without regard to the provisions of this Section 2.2:
(a) If a contribution under the Plan is conditioned on initial
qualification of the Plan under Section 401(a) of the Code, and the Plan
receives an adverse determination with respect to its initial qualification, the
Trustee shall, upon written request of the Company, return to the Company the
amount of such contribution (increased by earnings attributable thereto and
reduced by losses attributable thereto) within one calendar year after the date
that qualification of the Plan is denied, provided that the application for the
determination is made by the time prescribed by law for filing the Company's
return for the taxable year in which the plan is adopted, or such later date as
the Secretary of the Treasury may prescribe;
(b) If a contribution is conditioned upon the deductibility of the
contribution under Section 404 of the Code, then, to the extent the deduction is
disallowed, the Trustee shall upon written request of the Company return the
contribution (to the extent disallowed) to the Company within one year after the
date the deductions is disallowed;
(c) If a contribution or any portion thereof is made by the Company by
a mistake of fact, the Trustee shall, upon written request of the Company,
return the contribution or such portion to the Company within one year after
the date of payment to the Trustee; and
(d) Earnings attributable to amounts to be returned to the Company
pursuant to subsection (b)or (c) above shall not be returned, and losses
attributable to amounts to be returned pursuant to subsection (b) or (c) shall
reduce the amount to be so returned
ARTICLE III
PAYMENTS FROM TRUST FUND
3.1 Committee To Direct Payments. The Trustee shall make distributions
from the Trust at such times and in such number of shares of Company Stock and
amounts of cash, to the person entitled thereto under the Plan, as the Committee
directs in writing. Any undistributed part of a Participant's vested interest in
the Plan shall be retained in the Trust until the Committee directs its
distribution. Where distribution is directed in Company Stock the Committee or
the Trustee shall cause the Company to issue an appropriate stock certificate to
the person entitled thereto, to be delivered to such person; provided that the
Committee and the Trustee (as directed by the Committee) shall comply with the
provisions of the Plan and any rules or the Committee relating to the repurchase
of such Company Stock by the Trustee. Any portion of a Participant's vested
interest in the Plan to be distributed in cash shall be paid by check to the
Participant (or Beneficiary). Shares of Company Stock distributed by the Trustee
may include such legend restrictions as the Company may reasonably require in
order to insure compliance with applicable federal or state securities laws, and
as may be necessary to reflect restrictions required by the Plan. The Trustee
shall be fully protected in making or discontinuing payments in accordance with
written directions of the Committee and shall have no responsibility to see to
the application of said payments or to ascertain whether such directions comply
with the terms of the Plan. The Committee may direct the Trustee to deliver
stock certificates and checks to persons entitled thereto.
3.2 Interest Nontransferable. Except as provided in this Section, no
interest of any person or entity in, or right to receive distributions from, the
Trust Fund shall be subject in any manner to sale, transfer, assignment, pledge
attachment, garnishment, or other alienation or encumbrance of any kind; nor may
such interest or right to receive distributions be taken, either voluntarily or
involuntarily, for the satisfaction of the debts of, or other obligations or
claims against, such person or entity, including claims in bankruptcy
proceedings. The account of any Participant, however, shall be subject to and
payable in accordance with the applicable requirements of federal law, including
any qualified domestic relations order, as that term is defined in Section
414(p) of the Code, and the Committee shall direct the Trustees to provide for
payment from a Participant's account in accordance with such order and with the
provisions of Section 414(p) of the Code and any regulations promulgated
thereunder. All such payments pursuant to a qualified domestic relations order
shall be subject to reasonable rules and regulations promulgated by the
Committee respecting the time of payment pursuant to such order and the
valuation of the Participant's account or accounts from which payment
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FORM S-8/ 80
is made; provided, that all such payments are made in accordance with such
order and Section 414(p). The balance of an account that is subject to any
qualified domestic relations order shall be reduced by the amount of any payment
made pursuant to such order.
3.3 Unclaimed Funds. If any distribution directed to be made from the Trust
Fund is not claimed, the Trustee shall notify the Administrator in due course.
The Administrator shall direct the disposition of such unclaimed distributions
in accordance with then existing applicable laws.
ARTICLE IV
TRUSTEE'S POWERS, DUTIES AND INVESTMENTS
4.1 Investments Authorized.
A. (i) As directed by the Committees the Trustee shall invest and
reinvest the Trust Fund in accordance with the terms of the Plan and to this
Trust Agreement. The Trustee may also, as directed by the Committee, place Trust
Fund assets in savings accounts, certificates of deposit, high grade short-term
securities, equity stock, bonds of corporations, deposit accounts maintained by
legal reserve life insurance companies, any kind of investments fund (open-end
or otherwise), a common trust fund for the investment of qualified employee
benefit trusts or in other investments desirable for the Trust Fund, without
regard to whether or not such investment is an authorized or appropriate
investment for trustees under any state laws applicable thereto. (ii) In the
event the Committee fails to direct the Trustee with respect to the investment
of any portion of the Trust Fund, the Trustee is hereby authorized to invest any
uninvested portion of the Trust Fund in any group trust fund which at the time
of the investment provides for the pooling of the assets of plans qualified
under Section 401(a) of the Code. This authorization applies solely to a group
trust fund exempt from taxation under Section 501(a) of the Code and the trust
agreement of which satisfies the requirements of Revenue Ruling 81-100. The
provisions of the group trust fund agreement, as amended from time to time, are
by this reference incorporated within this Plan and Trust. The provisions of the
group trust fund will govern any investment of Plan assets in that fund. (iii)
The Committee shall assume responsibility and liability for the prudence of
investments directed under this Section 4.1.
B. In the event that Committee directs the Trustee to dispose of any
Company Stock held as part of the Trust Fund, under circumstances which require
registration and/or qualification of the securities under applicable federal or
state securities laws, then the Company, at its own expense, will take or cause
to be taken any and all such action as may be necessary or appropriate to effect
such registration and/or qualification.
C. The Trustee shall not be liable for the making, retaining or
selling of any investment or reinvestment by it as is provided for in this
Section, or for any loss to or diminution of the Trust Fund, except such as are
due to its own willful misconduct or failure to act in good faith, so long as
such actions are taken in accordance with proper direction of the Committee.
4.2 Power of Trustee. As directed by the Committee, the Trustee shall have
the authority and power to:
(a) Sell, transfer, mortgage, pledge, lease or otherwise dispose of,
or grant options with respect to, any portion of the Trust Fund at public or
private sale;
(b) Invest cash contributions by the Company;
(c) Vote any stocks (including Company Stock, as provided in Section
4.3 of this Trust Agreement), bonds or other securities held in the Trust Fund
or otherwise consent to or request any action on the part of the issue in person
or by proxy;
(d) Give general or specific proxies or powers of attorney with or
without powers of substitution;
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FORM S-8/ 81
(e) Participate in reorganizations, recapitalizations, consolidations,
mergers, tender offers, offers to purchase and similar transactions with respect
to Company Stock or any other securities;
(f) Deposit such Company Stock or other securities in any voting
trust, or with any protective or like committee, or with a trustee or with
depositories designated thereby;
(g) Exercise any options, subscription rights and conversion
privileges;
(h) ▇▇▇, defend, compromise, arbitrate or settle any suit or legal
proceeding or any claim due it or on which it is liable;
(i) Perform all acts which the Trustee shall deem necessary or
appropriate and exercise any and all powers and authority of the Trustee under
this Trust Agreement; and
(j) Exercise any of the powers of an owner, with respect to such
Company Stock and other property in the Trust Fund.
The Committee may authorize the Trustee to act on any matter or class
of matters with respect to which direction or instruction to the Trustee by the
Committee is called for hereunder without specific direction or other
instruction from the Committee.
4.3 Voting Company Stock.
(a) Before each annual or special meeting of the stockholders of The
Coastal Corporation, the Trustee shall utilize its best efforts to timely
distribute or cause to be distributed to each Participant other than
Participants who have terminated employment with the Company, related employers
and subsidiaries and whose adjusted balance consists only of forfeitable amounts
attributable to matching contributions (or, in the event of the death of a
Participant, his Beneficiary) a copy of the proxy solicitation material for such
meeting, and request written instructions from the Participants as to the voting
of the Coastal common stock, Coastal Series B $1.83 convertible preferred stock
and Coastal Class A common Stock credited to their accounts. Such instructions
shall be on a confidential basis. The Trustee shall exercise the voting rights
on stock credited to accounts of Participants in accordance with instruction of
such Participants. The Trustee shall exercise its discretion as to the voting
rights on stock credited to accounts of participants from whom the Trustee does
not receive instructions. The Trustee shall exercise the voting rights on any
other stock in its discretion.
(b) Each Participant (or, in the event of his death, his Beneficiary)
shall have the right, to the extent of shares of stock allocated to the account
of the Participant under the Plan, to direct the Trustee in writing on a
confidential basis as to the manner in which to respond to a tender or exchange
offer with respect to such stock. The Trustee shall utilize its best efforts to
timely distribute or cause to be distributed to each Participant (or
Beneficiary) such information as will be distributed to shareholders of such
stock in connection with any such tender or exchange offer. If the Trustee
shall not receive timely direction from a Participant (or Beneficiary) as to
the banner in which to respond to such a tender or exchange offer, the Trustee
shall not tender or exchange any shares of such stock with respect to which
such Participant (or Beneficiary) has the right of direction. Shares of stock
which have not been allocated to the account of a Participant shall be tendered
or exchanged by the Trustee in the same proportion as shares with respect to
which Participants (or Beneficiaries) have the right of direction are tendered
or exchanged.
4.4 Nominees. The Trustee may register any securities or other property
held by it to the Trust Fund in its own name or in the name of its nominees with
or without the addition of words indicating that such securities are held in a
fiduciary capacity, and may hold any securities in bearer form, but the books
and records of the Trustee shall at all times show that all such investments are
part of the Trust.
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FORM S-8/ 82
4.5 Expenses and Compensation. The Trustee is authorized and directed to
pay from the Trust Fund all of its reasonable expenses of administering the
Trust (including reasonable fees and expenses of its attorneys and agents), to
the extent that such amounts are not paid by the Company. No person who receives
full time pay from the Company shall receive compensation from the Trust Fund,
except for reimbursement of expenses properly incurred.
4.6 Indemnification of Trustee. The Company shall indemnify and defend each
person acting as Trustee against any and all claims, loss, damages, expenses
(including reasonable attorneys fees), and liability arising from any action or
failure to act in connection with the administration of the Plan or the Trust,
except when the same is judicially determined to be due to the gross negligence
or willful misconduct of such person.
4.7 Incapacity of Committee and Company. If at any time the Committee and
Company shall be incapable of giving the Trustee directions, instructions or
authorizations as herein provided, the Trustee may act as it, in its sole
discretion, deems appropriate and advisable in the circumstances for the
carrying out of the provisions of the Plan and the Trust.
4.8 Prudent Man Rule. Notwithstanding any other provision of this Trust
Agreement, the Trustee, the Committee and the Company shall exercise their
powers and discharge their duties under this Trust Agreement for the exclusive
purpose of providing benefits to Employees and their Beneficiaries, and shall
act with the care, skill, prudence and diligence under the circumstances that a
prudent man acting in a like capacity and familiar with such matters would use
in the conduct of an enterprise of a like character and with like aims.
4.9 Liability. Except as provided in Section 4.1(C), the Trustee shall not
be liable for the making, retention, or sale of any investment or reinvestment
made by it as herein provided, nor for any loss to or diminution of the Trust
Fund, nor for any action it takes or refrains from taking at the direction of
the Committee. The Trustee shall not be required to pay interest on any part of
the Trust Fund which is held uninvested pursuant to the Committee's direction.
4.10 Assignment of Assets to Investment Managers or Other Trustees.
(a) The Company may assign all or a portion of the assets of the Trust
to any Trustee or Investment Manager which has been appointed by the Board of
Directors of the Company.
(b) Each Trustee and each investment Manager shall be responsible for
assets during the time that such assets are assigned to it and shall not be
responsible for assets during a time when such assets are assigned to another
Trustee or Investment Manager. Each Trustee or Investment Manager shall be
liable with respect to its own acts, but not with respect to the act of any
other Trustee or Investment Manager.
(c) Each Investment Manager shall be (a) registered as an investment
advisor under the Investment Advisers Act of 1940, (b) a bank, as defined in the
Investment Advisors Act of 1940, or (c) an insurance company qualified to
manage, acquire or dispose of any assets of a plan under the laws of more than
one state. Upon appointment, each Investment Manager shall certify and
acknowledge, in writing, to the Company and the Trustee that he has a copy of
the Plan, that he is a fiduciary with respect to such Plan, and that he has
assumed the duties and responsibilities conferred upon him by the Company. The
duties, responsibilities and authority of any Investment Manager may be revoked
or modified by the Company at any time by written notice to such Investment
Manager and to the Trustee. Any Investment Manager duly appointed and authorized
by the Administrator shall, during the period of this appointment, possess fully
and absolutely those powers, rights and duties of the Trustee (to the extent
delegated by the Company and to the extent permissible under the terms of the
Plan) with respect to the investment or reinvestment of that portion of the Plan
assets over which such Investment Manager has investment management authority.
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ARTICLE V
ADMINISTRATION, ACCOUNTS AND REPORTS
5.1 Administration. The Trustee may adopt such bylaws and regulations as it
seems desirable for the conduct of its duties. The Trustee shall determine the
depositories in which Trust assets shall be kept.
5.2 Records and Accounts of Trustee. The Trustee shall maintain accurate
and detailed records and accounts of all transactions of the Trust, which shall
be available at all reasonable times for inspection or audit by any person
designated by the Company. The Trustee, at the direction of the Company, shall
submit to auditors and to others designated by the Company such valuations,
reports or other information as the Company may reasonably require.
5.3 Annual Account. Within ninety (90) days after the close of each fiscal
year of the Trust, the Trustee shall furnish to the Company a written account of
the operations of the trust for the fiscal year. The Company may approve such
annual account by written notice of approval delivered to the Trustee or by
failure to file with the Trustee written objections to specific items in such
account within ninety (90) days after the account has been furnished to the
Company; and any annual account so approved shall have the same effect as though
judicially approved by a court of competent jurisdiction in a proceeding in
which the Trustee and the Company were made parties and were properly
represented before such court. In the event the Trustee shall furnish accounts
more frequently than annually, all of such accounts submitted for a fiscal year
taken together shall be deemed an annual account. The Trustee nevertheless shall
have the right, if it so elects, to have its accounts settled by judicial
proceedings, in which event only the Trustee and the Company shall be necessary
parties. Nothing in this Section 5.3 shall relieve the Trustee from any
responsibility or duty under ERISA. The Trustee may rely without liability upon
the valuation of Company Stock as determined in good faith by the Committee
pursuant to the terms of the Plan.
ARTICLE VI
RESIGNATION, REMOVAL AND SUCCESSION OF
TRUSTEE
6.1 Resignation or Removal of Trustee. Any Trustee may at any time resign
(upon thirty (30) days prior written notice to the Company and the remaining
Trustee or Trustees) or may be removed by the Company. In the event of the
resignation or removal of any Trustee, or of a vacancy in the office of Trustee,
however arising, the Company may, in its discretion, appoint a successor Trustee
by an instrument in writing delivered to and accepted by the successor Trustee,
provided that at all times at least one Trustee shall be acting. Notice of such
appointment shall be given by the Company to the remaining Trustee or Trustees.
If no appointment of a successor Trustee is made within a reasonable time after
the resignation, removal, or incapacity of all acting Trustees, any court of
competent jurisdiction may appoint a successor Trustee or Trustees after such
notice, if any, as the court may deem proper and suitable has been given to the
Company. Resignation or removal of a Trustee or Trustees shall not cause a
failure of the Plan or Trust, and the Plan and Trust may operate with one or
more duly appointed Trustees.
6.2 Final Account of Succeeded Trustee. At the request of the Company or
one or more acting as Trustees, upon the removal or resignation of any Trustee,
the Trustee shall file with the Company a final account, to which the provisions
of Section 5.3 relating to annual accounts shall be applicable.
6.3 Rights of Successor Trustee. In the event of the appointment of a
successor Trustee, such successor Trustee will succeed as of the effective date
of his appointment to all the rights, title and estate of the succeeded Trustee,
and no instrument of transfer, conveyance or assignment or order of any court
shall be necessary in connection therewith. Notwithstanding the foregoing,
however, the succeeded Trustee shall deliver to the remaining acting Trustees or
to the successor Trustee such instruments of transfer, conveyance, assignment
and further assurance as they may reasonably require. Except to the extent, if
any, otherwise provided by ERISA, no successor Trustee shall be personally
liable for any act or omission which occurred prior to the time he became a
Trustee.
6.4 Organizational Change of Trustee. Any national banking association or
corporation into which Trustee may be merged or with which Trustee may be
consolidated, or any such association or corporation resulting from any merger,
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reorganization or consolidation to which the Trustee may be a party, or any such
association or corporation to which all or substantially all of the trust
business of Trustee may be transferred, shall be the successor of Trustee
hereunder without the execution or filing of any instrument or the performance
of any further act and with the same powers and duties as conferred upon Trustee
hereunder. In any such event, it shall not be necessary for Trustee or any
successor trustee to give notice thereof to any person, and any requirement,
statutory or otherwise, that notice shall be given is hereby waived.
ARTICLE VII
AMENDMENT AND TERMINATION
7.1 Right of Amendment. The Company shall have the right to amend this
Trust Agreement at any time and from time to time, by resolution of its Board of
Directors, and all Employees and persons claiming any interest hereunder shall
be bound thereby; provided, however, that no amendment shall have the effect of:
(i) directly or indirectly divesting the interest of any Participant in any
amount that he would have received had he terminated his employment with the
Company immediately prior to the effective date of such amendment, or the
interest of any Beneficiary as such interest existed immediately prior to the
effective date of such amendment; (ii) vesting in the Company any right, title
or interest in or to any assets of the Trust Fund except as permitted by ERISA
and the Code; (iii) causing or affecting discrimination in favor of officers,
shareholders, or highly compensated Employees; (iv) except as permitted by ERISA
and the Code, causing any part of the Trust Fund to be used for any purpose
other than for the exclusive benefit of the Participants and their Beneficiaries
or (v) changing the rights, duties or responsibilities of the Trustee in any
manner, without its written consent thereto.
7.2 Method of Amendment. Each amendment of the Trust Agreement shall be
made by delivery to the Trustee of copies of the amendment and the resolution of
the Board of Directors of the Company, certified by an officer of the Company.
Any amendment which changes the rights, duties or responsibilities of the
Trustee shall not be effective without the written consent of the Trustee.
7.3 Termination or Disqualification. The Company may elect to terminate the
Plan at any time, by giving written notice to the Trustee. In the event of such
termination, or if the Plan shall be involuntarily terminated, or if the Company
receives notice that the Trust is no longer qualified under the provisions of
the Code, the Company shall thereupon cause a valuation of the Trust Fund to be
made. The Trustee shall segregate and dispose of the Trust Fund, in accordance
with the written directions of the Company, accompanied by the certification of
the Company to the Trustee that such segregation and disposition are in
accordance with the terms of the Plan. Unless sooner termination by action of
the Company, the Trust shall terminate when there shall be no assets remaining
in the hands of the Trustee. The Trustee shall continue to have all the powers
and duties provided under this Trust Agreement which are necessary or expedient
for the orderly liquidation and distribution of the Trust Fund.
ARTICLE VIII
MISCELLANEOUS
8.1 Applicable Law. All questions pertaining to the validity, construction
and administration of the Trust shall be determined in conformity with the laws
of the State of Texas to the extent that such laws are not preempted by ERISA
and other federal laws and valid regulations published thereunder.
8.2 Legal Actions. The Company shall have the authority to enforce the
Trust on behalf of any and all persons having or claiming an interest in the
Trust Fund. In any legal action or equitable proceeding pertaining to the Trust
or the Trust Funds or any interest therein or the administration thereof, or for
instructions to the Trustee, the Company and the Trustee shall be the only
necessary parties and any judgment entered in any such proceeding shall be
conclusive upon all persons. The Trustee may consult with legal counsel, who may
be counsel for the Company, in respect of any of its rights, duties or
obligations hereunder and shall be entitled to act or refrain from acting in
accordance with the advice of such counsel. In any action brought by or against
the Trustee arising out of or based upon the Plan or this Trust Agreement, the
Trustee shall be represented by counsel selected by the Company unless the
Company has an interest in the outcome of the action adverse to the Trustee.
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FORM S-8/ 85
8.3 Protection of Persons Dealing with the Trustee. No person dealing with
the Trustee shall be required or entitled to see to the application of any money
paid or property delivered to the Trustee, or to determine whether or not the
Trustee is acting pursuant to authority granted to it under this Trust Agreement
or to authorizations or directions being required.
8.4 Gender and Number; Headings. Except when otherwise required by the
context, any masculine terminology in this Trust Agreement shall also include
the feminine, and any singular terminology shall also include the plural. The
headings in this Trust Agreement have been inserted for convenience of reference
only, and are not to be considered in the construction of the provisions hereof.
8.5 Definitions. All words and phrases defined in the Plan shall have the
same meaning in this Trust Agreement, except as otherwise expressly provided
herein.
8.6 Merger or Consolidation. In the event of the merger or consolidation of
the Company with or into any other corporation, or in the event substantially
all of the assets of the Company shall be transferred to another corporation,
the successor corporation resulting from the consolidation or merger, or the
transferee of such assets, as the case may be, shall be substituted for the
Company hereunder if it shall expressly agree in writing to adopt and continue
the Plan. Such corporation shall become a party to this Trust Agreement by
filing with the Trustee (i) a certified copy of a resolution of its Board of
Directors evidencing its election to adopt the Plan and the Trust, together with
(ii) a certified copy of resolutions of the Board of Directors of the Company
reciting the facts and circumstances relating to such adoption and approving the
same.
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FORM S-8/ 86
IN WITNESS WHEREOF, the Company and Trustee have caused this instrument
to be executed by their duly authorized officers and their corporate seals to
be affixed hereto as of the 17th day of November, 1989, but unless otherwise
stated or required, this restatement and amendment shall be effective as of the
first day of January, 1989.
ATTEST: THE COASTAL CORPORATION
(Seal)
/s/ ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇ By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------- ------------------------
▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇
Senior Vice President and Secretary President and Chief
Executive Officer
ATTEST: MTRUST CORP, N.A.
(Seal)
/s/ ▇▇▇ ▇▇▇▇ By /S/ R. E. ▇▇▇▇▇▇▇
------------------------------- ------------------------
▇▇▇ ▇▇▇▇ Name: R. E. ▇▇▇▇▇▇▇
A.V.P. Title: Vice President
- 9 -
FORM S-8/ 87