These excerpts taken from the CNX 10-Q filed Apr 30, 2008.
8.1 Nontransferability. The right of a Participant or Beneficiary to benefits under the Plan shall not be assigned, alienated, transferred, pledged or encumbered. Neither the Company, its Affiliates, nor the Plan shall be liable for or subject to the debts or liabilities of a Participant.
8.2 Binding Effect. The Plan shall be binding upon and inure to the benefit of the Company, its successors and assigns, and the Participant and his or her heirs, executors, administrators and legal representatives.
8.3 No Rights Implied. No Plan provision shall confer upon any Participant the right to continue as a member of the Board or as an employee of the Company or any Affiliate.
8.4 Applicable State Law. The Plan shall be construed in accordance with and governed by the laws of the State of Pennsylvania.
8.5 Application of ERISA. The Employee Retirement Income Security Act of 1974, as amended, (ERISA) shall apply to this Plan only if one or more Participants (i) has in effect a Deferral Election while he or she is an employee of the Company or (ii) has an Account some or all of which reflects Deferrals described in clause (i).
8.6 Entire Agreement. The Plan constitutes the entire understanding and agreement with respect to the subject matter contained herein, and there are no agreements, understandings, restrictions, representations or warranties among any Participant or Beneficiary and the Company other than those set forth or provided for herein.
8.7 Amendment or Termination of Plan. The Company may amend or terminate the Plan at any time; provided, however, that no such amendment or termination shall be effective if it has the effect of eliminating or reducing a Participants Account below the balance calculated under the Plan
immediately before giving effect to such amendment; provided, further, termination of the Plan shall not be a distribution event under the Plan unless otherwise permitted under Section 409A or other applicable law. Notwithstanding the foregoing or any provision of this Plan to the contrary, that the Company may, in its sole discretion and without the Participants consent, modify or amend the terms of the Plan or a Deferral Election, or take any other action it deems necessary or advisable, to cause the Plan to comply with Section 409A (or an exception thereto).
7.1 Limitations on Liability of Company. None of the establishment of the Plan, any modification thereof, the creation of any Account, or the payment of any benefits, shall be construed as giving to any Participant, Beneficiary or other person any legal or equitable right against the Company, or any person connected therewith, except as provided by law or by a specific Plan provision.
7.2 Governing Law. The laws of the State of Delaware shall govern, control and determine a questions arising with respect to the Plan and the interpretation and validity of its respective provisions.
7.3 No Guarantee of Service. Participation in the Plan does not give any person any right to continue as a Director of the Company.
Section 12. Miscellaneous
(a) Any provisions of this Trust Agreement prohibited by law shall be ineffective to the extent of any such prohibition, without invalidating the remaining provisions hereof.
(b) Benefits payable to Plan Participants and their beneficiaries under this Trust Agreement may not be anticipated, assigned (either at law or in equity), alienated, pledged, encumbered or subjected to attachment, garnishment, levy, execution or other legal or equitable process.
(c) This Trust Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania.
(d) The effective date of this Trust Agreement, as amended and restated, shall be March 20, 2008.
(e) Notwithstanding any provision of this Trust Agreement or the Plan to the contrary: (i) the provisions of this Trust Agreement shall be administered, interpreted and construed in a manner necessary in order to comply with Section 409A or an exception thereto (or disregarded to the extent such provision cannot be so administered, interpreted or construed); (ii) no provision of this Trust Agreement shall be construed to restrict the assets of the Trust in a manner that would result in a transfer of property as provided under Section 409A(b)(2) (relating to the employers financial health) or Section 409A(b)(3) (relating to the funding status of the employers defined benefit plans); and (iii) no contribution to this Trust may be made during any restricted period within the meaning of Section 409A(b)(3); provided, however, to the extent a contribution is made during any such restricted period, the Trustee shall immediately return such contribution to the Company upon written notice thereof from the Company and shall take any such other action reasonably requested by the Company as may be necessary or advisable to avoid a violation of Section 409A(b)(3). The Company shall have the duty to notify the Trustee in writing of the commencement of a restricted period. The Trustee shall have no duty to inquire as to the existence of a restricted period and may conclusively presume that no restricted period exists in the absence of written notice from the Company.
(f) The Trustee shall be indemnified and saved harmless by the Company from and against any and all liability to which the Trustee may be subjected in carrying out its duties under this Agreement (including any liability incurred as a result of compliance with instructions of the Company, its agents or employees), including all expenses reasonably incurred in its defense, except to the extent that any loss or damage is directly attributable to the Trustees (a) failure to exercise the care, skill, prudence and diligence under the circumstances then prevailing that a prudent person acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and like aims, (b) negligence or willful misconduct or (c) violation of applicable law or the material provisions of this Trust Agreement. The indemnification provided to the Trustee shall also apply to any liability arising from the actions or nonactions of any predecessor trustee or fiduciary or other fiduciaries of the Plan.
(g) The Company and Plan shall be indemnified and saved harmless by the Trustee from and against any and all liability to which the Company or the Plan may incur or be subjected to (including any liability incurred as a result of the Trustees failure to comply with instructions of the Company, its
agents or employees, or the Investment Manager), including all expenses reasonably incurred in defense of any claim giving rise to such liability, to the extent that any loss or damage is directly attributable to the Trustees (a) gross negligence, or (b) willful misconduct, or (c) violation of applicable law.
[Signature Page for Trust Agreement for
2004 Directors Deferred Fee Plan]
In witness whereof, the Company and Trustee have amended and restated this Trust Agreement as of the 20th day of March, 2008.