Exhibit 10.20
TRUST AGREEMENT (this "Trust Agreement") made this ______ day of August, 1998,
by and between Cabot Oil & Gas Corporation, a Delaware corporation (the
"Company" or "Grantor"), and BANKERS TRUST COMPANY, a New York banking
corporation (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Company has adopted the nonqualified deferred compensation plan(s)
listed in Appendix A (the "Plan(s)");
WHEREAS, the Company has incurred or expects to incur liability under the terms
of the Plan(s) with respect to the Participants;
WHEREAS, the Company desires to establish a trust (hereinafter called the
"Trust") and, in its discretion, to contribute to the Trust assets that shall be
held therein, subject to the claims of the Company's creditors in the event the
Company is Insolvent, to provide an alternative source of funds to assist the
Company in meeting its liabilities under the Plan(s);
WHEREAS, the Company desires to direct the investment of the Trust assets; and
WHEREAS, Bankers Trust Company is willing to act as Trustee of the Trust upon
all of the terms and conditions hereinafter set forth.
NOW, THEREFORE, the Company and the Trustee declare and agree that the Trustee
will receive, hold and administer all sums of money and such other property
acceptable to the Trustee as shall from time to time be contributed, paid or
delivered to it hereunder, IN TRUST, upon all of the following terms and
conditions:
1. Establishment of Trust.
(a) The Company hereby deposits with the Trustee the property listed on
Schedule A attached hereto, and such additional deposits of cash or
other property acceptable to the Trustee, which shall become the
principal of the Trust, to be held, administered and disposed of by
the Trustee as provided in this Trust Agreement. All such cash and
other property, all investments and reinvestments made therewith and
the income and proceeds thereof, less the payments or other
distributions which, at the time of reference, shall have been made by
the Trustee, are referred to herein as the "Trust" or "Fund".
(b) The Trust hereby established shall be irrevocable.
(c) The Trust is intended to be a grantor trust within the meaning of
subpart E, part I, subchapter J, chapter 1, subtitle A of the Code of
which the Company is the grantor. The Company acknowledges that
determination of the status of the Trust as a grantor trust has been
made by the Company and Bankers Trust Company assumes no
responsibility in this regard. The Company represents and covenants to
the Trustee that at all times during the continuation of the Trust:
the Trust shall constitute an unfunded arrangement and the
establishment of this Trust shall not affect the status of any Plan as
an unfunded plan maintained for the purpose of providing deferred
compensation for a select group of management or highly compensated
employees and/or as an excess benefit plan for purposes of Title I of
ERISA; if any interests in the Plan(s) are deemed to be "securities,"
within the meaning of the Securities Act, each offering by the Company
of any such interests either has been or will be registered under the
Securities Act or falls or will fall within an available exemption
from the registration requirements of such Act, and complies or will
comply with any applicable state securities laws; and the Trust is not
required to register as an investment company under the Investment
Company Act of 1940, as amended.
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(d) Unless and until withdrawn from trust as provided herein, the
principal of the Trust, and any earnings thereon, shall be held
separate and apart from other funds of the Company (or any other
grantor trust established by the Company) and shall be used
exclusively for the uses and purposes of Participants and general
creditors of the Company as herein set forth. Participants shall have
no preferred claim on, or any beneficial ownership interest in, any
assets of the Trust. Any rights created under a Plan and this Trust
Agreement shall be unsecured contractual rights of Participants
against the Company, and, subject to the other terms and conditions of
this Trust Agreement, to the extent that the Company fails to pay a
Participant benefits to which such Participant is entitled under a
Plan, such Participant shall be entitled to receive such deficiency
from the available assets of the Trust, but not in excess of the
amount required by the Payment Schedule to be paid to such
Participant. Any claim of a Participant to receive benefits under a
Plan in addition to the payments set forth in the Payment Schedule for
such Participant shall be solely against the Company and not against
the Trust or the Trustee. Any assets held by the Trust will be subject
to the claims of the general creditors of the Company under Federal
and state law in the event the Company becomes Insolvent.
(e) The Trustee shall be responsible only for contributions actually
received by it. The amount and timing of each or any contribution
shall be determined in the sole discretion of the Company. The Company
may undertake under the terms of a Plan or a related agreement to
which the Trustee is not a party to make contributions at specific
intervals or on the occurrence of a specific event. If the Company
fails to make any such contribution, in whole or in part, the Company
shall be responsible for notifying affected Participants. The Trustee
shall have no obligation to police the Company's compliance therewith
or to notify Participants thereof. The Trustee shall have no duty or
responsibility to any Person to bring any proceeding or take any other
action to compel any contributions by the Company, except to add such
contributions to the Trust for the account of the designated Plans if
and when received by the Trustee.
(f) The Trustee shall maintain a separate account, and such sub-accounts
as the Company shall deem advisable, to reflect the Equitable Share of
each Plan, or part thereof, in the Trust. The Company shall provide
the Trustee with sufficient information at the time of each
contribution to or distribution from the Trust in order that the
Trustee may determine such Equitable Shares.
2. Payments to Participants.
(a) The Company shall be solely responsible for keeping, and providing to
the Recordkeeper, accurate books and records with respect to the
employees of the Company, their compensation and their and their
beneficiaries' rights and interests in the Trust pursuant to the
Plan(s). As soon as practicable after the establishment of this Trust
and the addition of any nonqualified deferred compensation plan to
Appendix A, or the amendment of any Plan, the Company shall provide
the Recordkeeper with certified copies of such Plans and/or
amendments, and all related documents. The Trustee shall not be
required to maintain any separate records or accounts with respect to
any Participant, and any records or accounts required to be maintained
pursuant to the terms of any Plan shall be the responsibility of the
Company or Recordkeeper.
(b) As soon as practicable after the establishment of this Trust, the
Company shall deliver a Payment Schedule to the Trustee. The Company
shall regularly revise or update the Payment Schedule, as required.
Except as otherwise provided in Section 3, upon receipt from the
Company of such Payment Schedule, which shall include the amount of
Federal, state and local tax required to be withheld, the Trustee
shall make payments at the times and in the manner and form specified
in such Payment Schedule to Participants and to the Company with
respect to any taxes withheld from such payments in accordance with
the Company's instructions, all to the extent funds are available in
the Trust with respect to the applicable Plan(s). The Trustee shall
not make any payments to Participants from the Trust other than as
required by the Payment Schedule.
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(c) The Company may make payment of benefits directly to Participants as
they become due under the terms of the Plan(s). In such event, the
Company shall also provide for the reporting and withholding of any
Federal, state or local taxes that may be required to be withheld with
respect to such benefit payments. The Company shall notify the Trustee
of its decision to pay such benefits directly prior to the time
amounts are payable to Participants, and any such notice received by
the Trustee shall constitute an amendment of the affected Payment
Schedule.
(d) If the principal of the Trust, and any earnings thereon, allocated to
a Plan are not sufficient to make payments of all benefits then
payable as of a payment date in accordance with the Payment Schedule,
the Trustee shall allocate the available assets pro rata among the
payees and shall notify the Company of such insufficiency. The Company
shall make the balance of each such payment to affected Participants
in accordance with the Payment Schedule.
(e) The Company shall have sole responsibility for the payment of all
withholding taxes to, and the filing of all required tax returns with,
the appropriate taxing authority and shall furnish each Participant
with the appropriate tax information form evidencing such payment and
the amount thereof. The Company shall provide the Trustee with a
schedule of all benefits that have been paid by the Company directly
to Participants and a schedule of all tax withholding payments made by
it to the taxing authorities within fifteen (15) days after the end of
the month in which such payments have been made.
(f) The entitlement of a Participant to benefits under the Plan(s) shall
be determined by the Company and any claim for such benefits shall be
considered and reviewed by the Company or its designee under the
procedures set forth in the applicable Plan. The Trustee shall have no
responsibility with regard to administration of the Plan(s). Without
limiting the generality of the foregoing, the Trustee shall have no
responsibility should the Trust, or any Plan's interest in the Trust,
have insufficient assets from which to make any distribution called
for under any Payment Schedule or Plan, the Trustee shall have no
responsibility to interpret the provisions of the Plan(s), and the
Trustee shall have no responsibility for determining whether any
Participant has become entitled to any distribution under any Plan, or
the amount thereof, and the Trustee shall be entitled to rely solely
upon the accuracy, timeliness and completeness of the latest Payment
Schedule delivered to it by the Company.
(g) The Trustee shall notify the Company periodically of any returned or
undeliverable payments to Participants. Any payments remaining
unclaimed for [six (6)] months after such notice has been given to the
Company shall be returned to Trust and allocated to the account of the
Plan(s) originally debited.
(h) Anything in this Trust Agreement to the contrary notwithstanding,
payments by the Trustee to Participants under a Plan shall be
allocated to that Plan's Equitable Share. Unless and until all of the
liabilities of a Plan to its Participants have been satisfied, the
Equitable Share of one Plan shall not be used to satisfy the
liabilities under any other Plan.
3. Trustee Responsibility Regarding Payments to Trust Beneficiary When Company
is Insolvent.
(a) 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.
(b) The Trustee shall cease payment of benefits to Participants if the
Company is Insolvent, 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 if
the Company is Insolvent. If a person claiming to be a creditor
of the Company alleges in writing to the Trustee, or the Trustee
has actual knowledge, or the Trustee otherwise receives, in
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accordance with paragraph (f) of Section 15, written
notification, that the Company has become or may be Insolvent,
the Trustee shall determine whether the Company is Insolvent for
purposes of this Trust Agreement by requesting confirmation that
the Company is not Insolvent (a "Section 3(b)(1) Confirmation")
from the Board of Directors, acting through its Chairman, and the
Chief Executive Officer of the Company. The Trustee shall,
without further inquiry of any Person, conclusively rely on such
confirmation for all purposes of this Trust Agreement, and,
pending such determination, the Trustee shall discontinue payment
of benefits to Participants.
(2) Unless the Trustee, acting through the Trustee's officer to whom
notices hereunder are to be directed as provided in Section
15(f), has actual knowledge that the Company is or may be
Insolvent, or has received written notification, in accordance
with paragraph (f) of Section 15, from the Company or a Person
claiming to be a creditor of the Company alleging that the
Company is Insolvent, the Trustee shall have no duty to the
Company or the Company's creditors to inquire whether the Company
is Insolvent.
(3) If the Trustee does not receive a Section 3(b)(1) Confirmation,
the Trustee shall discontinue payments to Participants and shall
hold the assets of the Trust for the benefit of the Company's
general creditors until the Trustee either receives a court order
directing the disposition of the Trust, or the Chairman of the
Board of Directors and the Chief Executive Officer of the Company
deliver a written notice to the Trustee confirming that the
Company is no longer Insolvent (a "Section 3(b)(3)
Confirmation"); provided, however, in no event shall the
provisions of Sections 10 and 11 providing for the payment of the
Trust's expenses and taxes be suspended.
(4) Nothing in this Trust Agreement is intended to and shall not in
any way diminish any rights of Participants to pursue their
rights as general creditors of the Company with respect to
benefits due under the Plan(s) or otherwise.
(5) The Trustee shall resume the payment of benefits to Participants
in accordance with Section 2 only after the Trustee has received
a Section 3(b)(1) or a Section 3(b)(3) Confirmation.
(c) Provided that there are sufficient assets, if the Trustee discontinues
the payment of benefits from the Trust and subsequently resumes such
payments pursuant to Section 3(b), the first payment following such
discontinuance shall include the aggregate amount of all payments due
to Participants under the terms of the Plan(s) for the period of such
discontinuance, less the aggregate amount of any payments certified by
the Company to the Trustee to have been made to such Participants by
the Company in lieu of the payments provided for hereunder during any
such period of discontinuance.
4. Payments to Company.
Except as provided in Sections 3, 10 and 11, the Company shall have no
right or power to direct the Trustee to return to the Company or to divert
to others, any of the Trust assets before all payment of benefits have been
made to Participants pursuant to the terms of the Plan(s), as certified to
the Trustee by the Company in writing, and all obligations owed to the
Trustee under Section 10, and all taxes under Section 11, have been fully
satisfied or otherwise provided for. If a Plan terminates prior to the
termination of this Trust, any excess assets after the satisfaction of all
liabilities thereunder and hereunder, shall be allocated among the
remaining Plans on Schedule A in such manner, pro rata or otherwise, as the
Company shall direct.
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5. Investment Authority.
(a) Discretionary authority for the management and control of the assets
of the Trust may be retained, allocated or delegated, as the case may
be, for one or more purposes, to and among the Asset Managers by the
Company in its absolute discretion. The terms and conditions of
appointment, authority and retention of any Asset Manager shall be the
sole responsibility of the Company. Any investment policy, and any
related guidelines, established by the Company from time to time,
shall be communicated to the affected Asset Manager and monitored by
the Company. The assets of the Trust shall be invested and reinvested,
without distinction between principal and income, at such time or
times in such investments pursuant to such investment strategies or
courses of action and in such shares and proportions, as each Asset
Manager, in its sole discretion, shall deem advisable, subject to such
policies and guidelines, if any. The initial Asset Manager shall be
the Company and all of the assets of the Trust shall be under its
exclusive control and management until further written direction to
the Trustee.
(b) The Company shall promptly notify the Trustee in writing of the
appointment or removal of an Asset Manager and shall specify the
portion of the Trust to be managed by such Asset Manager. Each Asset
Manager shall have sole and complete investment responsibility for the
assets of the Trust that are subject to its discretionary authority or
control and the Trustee shall receive, hold and transfer assets
purchased or sold by the Asset Manager in accordance with the
directions of such Asset Manager. The Trustee shall be under no duty
or obligation to review or to question any direction of any Asset
Manager, or to review the securities or any other property held in any
Directed Fund with respect to prudence, proper diversification or
compliance with any limitation on an Asset Manager's authority under
this Trust Agreement or the terms of a Plan, any investment policies
and guidelines, or any agreement entered into between the Company and
the Asset Manager or imposed by applicable law, or to make any
suggestions or recommendations to any Asset Manager or the Company
with respect to the retention or investment of any Directed Fund. The
Trustee shall have no authority to take any action or to refrain from
taking any action with respect to any asset of a Directed Fund unless
and until it is directed to do so by the Asset Manager of such
Directed Fund or the Company.
(c) The Trustee will have no responsibility for any asset allocated to a
Directed Fund upon the resignation or removal of an Asset Manager
unless and until the Trustee has been notified in writing by the
Company that the Asset Manager's authority will be terminated or
relinquished, and the Trustee has agreed in writing to become an Asset
Manager or that such assets are to be integrated with a Discretionary
Fund, as the case may be. In no event shall the Trustee be liable for
any losses to the Trust resulting from the disposition of any
investment made for a Directed Fund or for the retention of any
illiquid or unmarketable investment or for the holding of any other
asset acquired therefor if the Trustee is unable to dispose of such
investment because of any securities laws restrictions or if an
orderly liquidation of such investment is difficult under prevailing
conditions, or for failure to comply with any investment or
diversification limitations imposed by the Company, or for any other
violation of the terms of this Trust Agreement, any Plan or applicable
law or laws, as a result of the addition of such assets to the
Discretionary Fund.
(d) No person dealing with the Trustee or an Asset Manager hereunder shall
be under any obligation to see to the proper application of any money
paid or property delivered to the Trustee or the Asset Manager, or to
inquire into the authority of the Trustee or the Asset Manager as to
any transaction, or the validity, expediency or propriety thereof.
6. Powers of the Asset Managers.
(a) Without in any way limiting the powers and discretions conferred upon
the Asset Managers by the other provisions of this Trust Agreement or
by law, each Asset Manager shall be vested with the following powers
and discretions, and, upon the directions of the Asset Manager, the
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Trustee shall make, execute, acknowledge and deliver any and all
documents of transfer and conveyance and any and all other instruments
that may be necessary or appropriate to enable such Asset Manager to
carry out such powers and discretions: (1) to invest and reinvest in
any property, real, personal or mixed, wherever situated and whether
or not productive of income or consisting of wasting assets,
including, without limitation, common and preferred stocks, bonds,
notes, debentures (including convertible stocks and securities but not
including any stock or other security (or right to acquire such stock
or other security) of the Company (other than a de minimis amount held
in commingled investment vehicles in which an Asset Manager invests)),
leaseholds, mortgages, certificates of deposit or demand or time
deposits (including any such deposits with the Trustee), securities of
investment companies, registered or unregistered (notwithstanding that
the Asset Manager, or an affiliate of the Asset Manager, acts as
investment adviser, custodian, transfer agent, registrar, sponsor,
distributor or manager or provides, for compensation, other services
to the investment company), interests in partnerships and trusts,
insurance contracts, and oil, mineral or gas properties, royalties,
interests or rights, without being limited to the classes of property
in which trustees are authorized to invest by any applicable law or
any rule or court of any state and without regard to the proportion
any such property may bear to the entire amount of the Trust assets;
(2) to retain any property at any time received by the Trust; (3) to
purchase, sell, exchange, convey, transfer or otherwise dispose of any
property by private contract or at public auction; (4) to grant and
exercise options for the purchase or exchange of property held by it;
(5) to enter into contracts or to make commitments, either alone or in
company with others, to sell or acquire property; (6) to purchase,
sell, write or issue puts, calls or other options, covered or
uncovered, to enter into financial futures contracts, forward
placement contracts, standby contracts and similar arrangements
commonly referred to as "derivatives", and in connection therewith, to
deposit, hold (or direct the Trustee to deposit or hold) or pledge
assets of the Trust; (7) to exercise all voting or other rights (but
subject to the suspension of any voting rights as a result of any
broker loan or similar agreement); to give general or special proxies
or powers of attorney with or without power of substitution; to
exercise any conversion privileges, subscription rights or other
options and to make any payments incidental thereto; to participate in
any plan of reorganization, consolidation, merger, combination,
liquidation or other similar plan relating to property that is subject
to its management and control 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 person, and to delegate
discretionary powers and to pay any assessments or charges in
connection therewith; (8) to manage, administer, operate, insure,
repair, improve, develop, preserve, mortgage, lease or otherwise deal
with, for any period, any real property or any oil, mineral or gas
properties, royalties, interest, or rights directly or through any
corporation, either alone or by joining with others, using Trust
assets for any such purposes, to modify, extend, renew, waive or
otherwise adjust any provision of any such mortgage or lease and to
make provision for amortization of the investment in or depreciation
of the value of such property; and (9) to acquire the remaining
undivided interest of any Affiliate Trust created by an Affiliate
pursuant to Section 18 without notice to or consent of any other
Person.
(b) In addition, the Trustee is hereby authorized: (1) to register any
securities held in the Trust or to take title to any property in its
own name or in the name of a nominee or nominees, with or without the
addition of words indicating that such securities or other property
are held as trustee, and to hold any securities in bearer form, and to
combine certificates representing such securities with certificates of
the same issue held by the Trustee in other representative capacities
or as agent for customers, or to deposit or to arrange for the deposit
of such securities in any qualified central depository, domestic or
foreign, even though, when so deposited, such securities may be merged
and held in bulk in the name of the nominee of such depository with
other securities deposited therein by other depositors, or to deposit
or arrange for the deposit of any securities issued by the United
States Government, or any agency or instrumentality thereof, with a
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Federal Reserve Bank, but the books and records of the Trustee shall
at all times show that all such investments are part of the Trust; (2)
to employ on behalf of the Trust suitable agents, accountants,
actuaries, investment advisers, financial or employee benefits
consultants, sub-custodians and depositories, domestic or foreign,
counsel, who may be counsel to the Company or the Trustee, and others,
to assist it in determining or performing its duties or obligations
hereunder, and to pay their reasonable expenses and compensation from
the Trust to the extent not paid by the Company, and to confer upon
any depository or sub-custodian the powers conferred upon the Trustee
by subparagraph (1) of this Section 6(b) as well as the power to
appoint subagents and sub-depositories, wherever situated, in
connection with the retention of securities or other property; (3) to
extend the time of payment of any obligation held by it; (4) subject
to Section 9(b) and with the consent of the Company: to compromise,
compound, submit to arbitration or settle any claims, debts, damages
or obligations due or owing to or from, or otherwise adjust all claims
in favor of or against, the Trust, except that the consent of the
Company shall not be required in connection with any claim with
respect to which the Trustee is not entitled to be reimbursed or
indemnified for liabilities, damages and expenses under this
Agreement; to commence or defend suits or legal proceedings to protect
any interest of the Trust; and to represent the Trust in all suits or
legal proceedings in any court or before any other body or tribunal;
(5) to organize under the laws of any state a corporation or trust for
the purpose of acquiring and holding title to any property which it is
authorized or directed to acquire hereunder and to exercise, or permit
the Asset Manager with respect thereto, to exercise any or all of the
powers set forth herein; (6) to hold uninvested any monies received by
it, without incurring any liability for the payment of interest
thereon, until such monies shall be invested or disbursed; (7) to hold
and invest (or permit the investment by Asset Managers) of the
property of two or more Plans, or parts thereof, or two or more
Trusts, or parts thereof, created by the Company and/or one or more of
its Affiliates pursuant to Section 18 in solido, without distinction
or separation between such Plans or Trusts or parts thereof; provided,
however, (i) each separate Plan or Trust, as the case may be, and part
thereof shall have a separate and undivided interest in the whole,
subject to all the terms and conditions of the separate Trust and the
Plans funded thereunder, and (ii) the books and records of the Trustee
shall at all times reflect the Equitable Share of each Plan or Trust;
and (8) to be reimbursed for the expenses incurred in exercising any
of the foregoing powers or to pay the reasonable expenses incurred by
any agent, manager or trustee appointed pursuant hereto.
(c) All rights associated with the assets of the Trust shall be exercised
by the Company, the Trustee, or an Asset Manager, as hereinabove
provided, and shall in no event be exercisable by, or rest with,
Participants.
(d) The Company reserves the right to transfer to the Trust paid-up life
insurance contracts (each a "PLIC") on or for the life of any
Participant or to direct, in writing, the Trustee to purchase a PLIC
on or for the life of any such Participant out of amounts held in the
Trust with respect to one or more Plans. A PLIC shall be an asset of
the Trust subject to the claims of the Company's creditors in the
event the Company is Insolvent. The proceeds of any PLIC shall, upon
the death of the insured Participant or otherwise, upon receipt by the
Trustee, be credited to the Equitable Share of the applicable Plan.
The Trustee shall have no power to name a beneficiary of the PLIC
other than the Trust, to consent to the assignment of the PLIC (as
distinct from conversion of the PLIC to a different form upon the
written direction of the Company) other than to a successor trustee
hereunder, or to loan to any Person (other than the Company) the
proceeds of any borrowing against such PLIC. Except as provided in
this paragraph (d), the Trustee's sole responsibility with respect to
any insurance contract, including a PLIC, to be held under the Trust
or purchased with Trust assets shall be as directed owner and
custodian thereof and the Company shall be solely responsible for
determining the issuer and the terms of any such insurance contract
and monitoring the terms of the insurance contract and the issuer
thereof to determine and protect the Trust's rights and to instruct
the Trustee in the exercise of those rights.
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(e) When the Trustee delivers property against payment, delivery of the
property and receipt of payment may not be simultaneous. In such case,
the risk of non-receipt of payment shall be the Trust's, and the
Trustee shall have no liability therefor. All credits to the Trust of
the anticipated proceeds of sales and redemption of property and of
anticipated income from property shall be conditional upon receipt by
the Trustee of final payment and may be reversed to the extent final
payment is not received. At the discretion of the Trustee, the Trust
may make use of such conditional credits. To the extent such credits
do not become unconditional by receipt of final payment, the Trust
shall reimburse the Trustee upon demand for the amount of such
conditional credits. When the Trustee is to receive property, it is
authorized to accept documents in lieu of such property as long as
such documents contain the agreement of the issuer thereof to hold
such property subject to the Trustee's sole order. The Trustee may, in
its discretion, advance funds to the Trust to facilitate the
settlement of any trade. In the event of such an advance, the Trust
shall immediately reimburse the Trustee for the amount thereof.
7. Disposition of Income.
During the term of this Trust, all income received by the Trust, net of
expenses charged to income and taxes, shall be added to principal and
reinvested.
8. Accounting by Trustee.
(a) The Trustee shall maintain records of all investments, receipts, and
disbursements under this Trust Agreement, and all accounts, books and
records relating thereto shall be open to inspection and audit at all
reasonable times during normal business hours by any Person designated
by the Company.
(b) Within a reasonable time after the close of each calendar year (or
such shorter period as to which the Company and Trustee may agree), or
of any termination of the duties of the Trustee hereunder, the Trustee
shall deliver to the Company a written statement of transactions
reflecting its acts and transactions as trustee hereunder during such
calendar year (or such shorter period), or during such period from the
close of the last calendar year or last statement period to the
termination of the Trustee's duties, respectively, including a
statement of the then current value of the Trust. Any such statement
shall be deemed an account stated and accepted and approved by the
Company, and the Trustee shall be relieved and discharged to all
Persons with respect to all matters and things contained in such
statement as though such account had been settled and allowed by a
judgment or decree of a court of competent jurisdiction in an action
or proceeding to which the Company and all Persons having any
beneficial interest in the Trust were parties, unless the Company
shall have filed with the Trustee specific written exceptions or
objections to any such statement within ninety (90) days of receipt
thereof by the Company.
(c) The Trustee will determine the value of the Trust as of each reporting
date under Section 8. Except in the case of an investment in which
amortized cost is the valuation method designated, assets will be
valued at their market values at the close of business on such date,
or, in the absence of readily ascertainable market values, at such
values as the Trustee determines in accordance with methods
consistently followed and uniformly applied or obtained as provided
below. The Company acknowledges and agrees that in the normal course
of valuing assets, the Trustee may rely on pricing information
provided by recognized pricing services which the Trustee deems to be
reliable or provided by the Asset Manager or dealers or sponsors of
pooled investment vehicles ("dealers"), and that the Trustee does not
verify, warrant or represent the accuracy or completeness of such
information, and shall not be liable for any diminution or inflation
in the value of any assets as a result of any inaccurate or incomplete
information furnished or transmitted by such pricing services or the
Asset Managers or dealers. The Trustee may rely for all purposes of
this Trust Agreement on the latest valuation information submitted to
it even if such information predates the purported valuation date. The
Company will provide or cause the Asset Managers to provide the
Trustee with all information needed by the Trustee to value such
assets and to report and account under this Trust Agreement.
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(d) The Trustee shall have the right, at the expense of the Trust, to
apply at any time to a court of competent jurisdiction for judicial
settlement of any account of the Trustee not previously settled as
herein provided or for the determination of any question of
construction or for instructions. In any such action or proceeding it
shall be necessary to join as parties only the Trustee and the Company
(although the Trustee may also join such other Persons as it may deem
appropriate), and judgment or decree entered therein shall be
conclusive.
9. Indemnification; Liabilities of the Trustee.
(a) (1) The Trustee shall be held harmless by the Company from and against
any claim, liability, loss, damage or expenses (including, but not
limited to, reasonable attorneys' fees and expenses incurred in
preparing, investigating or defending any claim) that may be asserted
against the Trustee arising out of any action taken or omitted by the
Trustee pursuant to this Trust Agreement, except due to the Trustee's
own negligence or willful misconduct. Any loss, damage or expense that
is not paid by the Company under this Section or Section 10 shall be
paid from the assets of the Trust and, until so paid, shall constitute
a charge on the Trust and a lien against the assets of the Trust in
favor of the Trustee. (2) The Company shall be held harmless by the
Trustee from and against any claim, liability, loss, damage or
expenses (including, but not limited to, reasonable attorneys' fees
and expenses incurred in preparing, investigating or defending any
claim) that may be asserted against the Company arising out of any
negligent action or omission by the Trustee hereunder or arising out
of its willful misconduct hereunder.
(b) If the Trustee undertakes or defends any litigation, action,
proceeding or appeal arising in connection with this Trust, the
Company agrees to indemnify the Trustee against the Trustee's costs,
expenses and liabilities (including, without limitation, reasonable
attorneys' fees and expenses) relating thereto and to be primarily
liable for such payments, and to make periodic payments in respect of
such fees and expenses during the course of any such proceedings. The
Trustee shall not be required to take any action pursuant to Section
6(b)(4), or pursuant to a direction by the Company pursuant to Section
11(b), or otherwise, unless it shall have been indemnified by the
Company or the Trust to the Trustee's reasonable satisfaction against
any liabilities and expenses it might incur therefrom. The Trustee
shall also be entitled to reasonable payment from the Trust for
allocation of the Trustee's personnel to the investigation and defense
or prosecution thereof, at the Trustee's normal hourly billing rates.
If the Company does not pay such costs, fees, expenses and liabilities
in a reasonably timely manner, the Trustee shall discontinue
participation in any such litigation, action, proceeding or appeal,
and shall charge the assets of the Trust to the extent sufficient for
any unpaid costs, fees, expenses and liabilities.
(c) Any charges allocable to the Trust under this Section or Section 10
shall be allocated pro rata, to and among the Equitable Shares of the
Plans having an interest in the claim, action or proceeding.
(d) Under no circumstances shall the Trustee incur liability in contract,
tort or otherwise to any Person for any consequential, special or
punitive damages, whether or not foreseeable, with respect to the
Trust or its role as Trustee of the Trust.
10. Expenses and Compensation of Trustee.
The Company shall pay to or reimburse the Trustee its reasonable expenses
incurred or arising out of the management and administration of the Trust,
including, without limitation, advances for or prompt reimbursement of
reasonable fees and expenses of counsel and any other Person which provides
services contemplated herein or under any Plan, and, in addition, the
Company shall pay the Trustee reasonable compensation for the Trustee's
services hereunder, the amount of which shall be agreed upon from time to
time by the Company and the Trustee in writing; provided, however, that, to
the extent that the Company does not timely pay or reimburse any amounts
payable or reimbursable by the Company pursuant to this Section 10, such
96
amounts shall be paid or reimbursed from the assets of the Trust and, until
so paid or reimbursed, shall be a charge on the Trust and shall constitute
a lien on the assets of the Trust in favor of the Trustee. If the Trustee
amends its fee schedules and forwards an amended fee schedule to the
Company requesting its agreement thereto and the Company fails to object
thereto in writing within ninety (90) days thereafter, the amended fee
schedule shall be deemed to be agreed upon by the Company and the Trustee,
as of its stated effective date.
11. Taxes.
(a) All income, deductions and credits attributable to the Trust belong to
the Company and will be included on the Company's income tax returns.
Any and all Federal, state, local or other tax returns required to be
filed with respect to the Trust shall be prepared and filed by the
Company. The Company shall pay any Federal, state, local or other
taxes imposed or levied with respect to the assets and/or income of
the Trust or any part thereof under existing or future laws. Upon
furnishing the Trustee with evidence reasonably required by the
Trustee of any such tax payments made directly by the Company, the
Company shall be entitled to receive reimbursement from the assets of
the Trust for the full amount of such taxes paid by it. The Trustee
shall promptly notify the Company of any notice it receives relating
to any taxes imposed or levied with respect to the assets and/or
income of the Trust. If the Trustee receives notice that any such
taxes are not timely paid by the Company, the Trustee shall pay such
taxes from the assets of the Trust to the extent sufficient therefor,
prior to any payments to Participants, after notifying the Company as
herein provided. As provided in Section 2(b), the Trustee shall deduct
any taxes required to be withheld with respect to any payments made to
Participants pursuant to the Trust, with any such taxes being paid out
of the Trust.
(b) The Company, in its discretion, may undertake, at the sole expense of
the Company, to defend any tax claims which are asserted by the
Internal Revenue Service against any Participant and which the Company
determines would affect Participants generally. In addition, the
Company may contest or, subject to Section 9(b), direct the Trustee to
contest the validity or amount of any tax, claim, assessment or demand
otherwise respecting the Trust or any part thereof, but the Company
shall have the sole authority and responsibility to determine whether
or not to appeal any determination made by the Internal Revenue
Service or by any court. The Company may, but shall not be required
to, agree to reimburse directly, or direct the Trustee to reimburse,
any Participant for any taxes, interest or penalties in respect of tax
claims hereunder which the Company determines would affect
Participants generally, upon receipt of documentation of same (but in
no event shall the Trust be responsible therefor in the absence of
such direction). Any distributions from the Trust to a Participant
under this Section for reimbursements of taxes (but not for
reimbursement of interest or penalties) shall reduce the benefits
payable to such Participant under the Plan(s).
12. Resignation and Removal of Trustee; Appointment of Successor.
(a) The Trustee may resign or be removed upon sixty (60) days' prior
written notice to or from the Company, as the case may be, at any
time.
(b) Such resignation or removal shall be effective upon the earlier of the
expiry of the notice period provided herein (unless a shorter period
is agreed upon by the parties) and the appointment of a successor
trustee.
(c) Upon resignation or removal of the Trustee, the Company shall appoint
any natural person or persons or a bank or trust company, or
combination thereof, as a successor to replace the Trustee hereunder.
Any such successor trustee shall have all the rights, powers and
duties granted the Trustee hereunder, including ownership rights in
the Trust assets. Such appointment of a successor trustee shall be
effected by delivery to the Trustee of (i) a written appointment of
such successor trustee, duly executed by the Company and (ii) a
written acceptance by such successor trustee, duly executed thereby.
The Trustee shall execute any instruments necessary or reasonably
requested by the successor trustee to evidence the transfer.
97
(d) If a successor trustee shall not have been appointed prior to the
effective time of the Trustee's resignation, the Trustee may apply to
any court of competent jurisdiction for the appointment of a successor
trustee or for instructions. All expenses of the Trustee in connection
with such proceeding shall be allowed and charged to the Trust as
administrative expenses of the Trust.
(e) The Trustee is authorized to reserve such amount as it may deem
advisable for payments of its fees and expenses in connection with the
settlement of its account or otherwise, and any balance of such
reserve remaining after the payment of such fees and expenses shall be
paid over to the successor trustee. The Trustee is authorized to
invest such reserves in any investment authorized under the terms of
this Trust Agreement appropriate for the temporary investment of cash
reserves of trusts. After the acceptance and approval of its account
and the payment of its expenses, the Trustee shall transfer and
deliver the balance of the Trust to such successor, and the Trustee
shall have no further responsibilities to any Person under this Trust
Agreement.
13. Amendment or Termination.
(a) This Trust Agreement (including any Appendices or Schedules) may be
amended, in whole or in part, at any time and from time to time, by
the Company. Notwithstanding the foregoing, (i) the Company shall
ensure that no such amendment conflicts with the terms of the Plan(s)
or shall make the Trust revocable, and (ii) no amendment (including
the deletion or addition of a Plan on Appendix A) which affects the
rights, duties or responsibilities of the Trustee may be made without
the Trustee's prior written consent.
(b) Any limitations contained in Section 13(a) shall not apply with
respect to any amendment which is reasonably necessary, in the opinion
of counsel to the Company and reasonably acceptable to the Trustee, to
preserve the status of the Trust as a grantor trust and the status of
the Plan(s) as unfunded for Federal income tax purposes and for
purposes of ERISA.
(c) The Trust shall not terminate until the date on which Participants are
no longer entitled to benefits pursuant to the terms of the Plan(s);
provided, however, the Trust shall terminate prior to such date if and
when all of the assets of the Trust are consumed in satisfaction of
the claims of the general creditors of the Company pursuant to Section
3. Upon satisfaction of all liabilities under the Plans with respect
to all Participants, the Company, pursuant to a resolution of its
Board of Directors, may terminate the Trust by delivery to the Trustee
of (i) a certified copy of such resolution, (ii) a certification of
the Plans' enrolled actuary confirming that all liabilities under the
Plans have been satisfied, and (iii) a written instrument of
termination duly executed and acknowledged in the same form as this
Trust Agreement.
(d) Upon termination of the Trust in accordance with this Section 13, the
Trustee shall, after acceptance and approval of its account, at the
direction of the Company, return any assets remaining in the Trust to
the Company. Upon completing such distribution, the Trustee shall be
relieved and discharged of any responsibilities under this Trust
Agreement. The powers of the Trustee under this Section and Section 12
shall continue as long as any assets of the Trust remain in its
possession.
14. Authorities.
(a) After the execution of this Trust Agreement, the Company or any
successor thereto shall promptly file with the Trustee a certified
list of the names and specimen signatures of the officers of the
Company and any Persons authorized to act for the Company or any
successor thereto. The Company shall cause each Investment Manager to
file with the Trustee a certified list of the names and specimen
signatures of those individuals authorized to direct the Trustee on
its behalf. The Trustee shall be fully protected in acting upon any
certifications, instructions, notices, directions, requests or
approvals and other communications("Instructions"), howsoever
98
transmitted, received by the Trustee and purporting to be from any
such Persons which the Trustee reasonably believed to be from such a
Person, each such Instruction constituting a certification by the
Person so giving that such Instruction is in conformity with the terms
of the Plan(s), the Trust and/or other related documents, and the
Trustee shall be fully protected in omitting to act in the absence of
Instructions.
(b) Any agreement or understanding between the Company and any Person
(including an Investment Manager) or any other provision of this Trust
Agreement to the contrary notwithstanding, all Instructions to the
Trustee shall be in writing or in such other form, including
transmission by electronic means through the facilities of third
parties or otherwise, agreed to by the Trustee. The Trustee shall be
fully protected in acting in accordance therewith, but shall not
thereby assume responsibility for any errors or inaccuracies contained
in the Instructions to the Trustee or for any delays or failures in
such transmission facilities caused by the failure, breakdown or
unavailability of any such means of communication or equipment not due
to the Trustee's own negligence or willful misconduct.
(c) The Trustee shall have the right to assume, in the absence of notice
in writing to the contrary, that no event constituting a change in, or
terminating, the authority of any Person, including any Asset Manager,
has occurred.
(d) The Trustee shall incur no liability under this Trust Agreement for
any failure to act pursuant to any Instruction from any Asset Manager,
the Company or any other Person or the designee of any of them unless
and until it shall have been received in the form acceptable to the
Trustee.
15. Miscellaneous.
(a) Any provision of this Trust Agreement prohibited by law shall be
ineffective to the extent of any such prohibition, without
invalidating the remaining provisions hereof.
(b) Except as required by law, benefits payable to Participants 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 by
creditors of Participants.
(c) This Trust Agreement shall be construed and interpreted under, and the
Trust hereby created shall be governed by, the laws of the State of
New York, insofar as such laws do not contravene any applicable
Federal laws, rule or regulations. Section 9 of this Trust Agreement
shall be construed as a contract between the Company and the Trustee
according to the laws of the State of New York in effect from time to
time. Nothing in this Trust Agreement shall be construed to subject
the Trust created hereunder to ERISA or to cause it to be treated as
other than a grantor trust.
(d) This Trust Agreement shall be binding upon and inure to the benefit of
any successor(s) or assign(s) of the Company or the Trustee, or any of
its businesses, in whole or in part, as the result of merger,
consolidation, reorganization, transfer of assets or otherwise, and
any subsequent successor thereto. In the event of any such merger,
consolidation, reorganization, transfer of assets or other similar
transaction, the successor to the Company or the Trustee or its
business or relevant part thereof or any subsequent successor thereto
shall promptly notify the other party hereto in writing of its
successorship and furnish it with the information specified in Section
14.
(e) The undertakings and obligations of the Company, and the entitlements
of the Trustee, under Sections 9 and 10 of this Trust Agreement shall
survive the termination, amendment or restatement of this Trust
Agreement, or the resignation or removal of the Trustee.
99
(f) Until notice be given in writing to the contrary, all instructions,
notices and other communications shall be delivered or sent:
If to the Trustee to:
Bankers Trust Company
280 Park Avenue
New York, New York 10017
Attention: Charles Greiner
Tel.: (212) 454-2381
Fax.: (212) 454-2692
If to the Company to:
Cabot Oil & Gas Corporation
15375 Memorial Drive
Houston, Texas 77079
Attention: Human Resources
Tel.: (281) 589-4600
Fax.: (281) 589-4910
(g) Notwithstanding any powers granted to the Trustee or any other Person
pursuant to this Trust Agreement or by applicable law, no Person shall
have any power that could give this Trust the objective of carrying on
a business and dividing the gains therefrom, within the meaning of
Section 301.7701-2 of the Procedure and Administrative Regulations
promulgated pursuant to the Code.
(h) The Company shall, at any time and from time to time, upon the
reasonable request of the Trustee, execute and deliver such further
instruments and do such further acts as may be necessary or proper to
effectuate the purpose of this Trust Agreement.
(i) Neither the gender nor the number (singular or plural) of any word
shall be construed to exclude another gender or number when a
different gender or number would be appropriate.
(j) The words "paragraph" and "Section" shall be to provisions of this
Trust Agreement and the titles to Sections of this Trust Agreement are
for convenience of reference only, and this Trust Agreement is not to
be construed by reference thereto.
(k) This Trust Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original, but all of which
shall together constitute only one agreement.
(l) The Trustee's obligations are limited to those set out in this Trust
Agreement. No additional duties or obligations shall be imposed on the
Trustee or implied from the terms of this Trust Agreement. In case of
any conflict or inconsistency between the terms of this Trust
Agreement and any Plan, in determining the obligations and
responsibilities of the Trustee, the terms of this Trust Agreement
shall control.
(m) The Company hereby irrevocably and unconditionally agrees for itself
and for any Participants (or their beneficiaries) that all claims,
actions, suits or proceedings against, or involving, the Trust, this
Agreement or the Trustee shall exclusively be brought in the Supreme
Court of the State of New York sitting in New York County or in the
Federal District Court for the Southern District of New York, and it
further agrees that all such claims, actions, suits or proceedings
shall be heard and determined by such courts. Nothing in this
Agreement shall affect any right that the Trustee may have to bring
any claim, action, suit or proceeding relating to this Agreement or
the Trust against the Company or any other person in the courts of any
other jurisdiction.
100
16. Definitions. When used herein, the following terms shall have the following
meanings:
(1) "Asset Manager" shall mean, individually or collectively as the
context shall require, the Trustee, with respect to those assets of
the Trust allocated to the Discretionary Fund, or an Investment
Manager or the Company with respect to those assets of the Trust
allocated to a Directed Fund to the extent each is authorized to
exercise, discretionary investment authority or control over such
assets under Section 5(a).
(2) "Chief Executive Officer" shall mean the highest ranking officer of
the Company at the relevant time.
(3) "Code" shall mean the Internal Revenue Code of 1986, as amended, and
the regulations promulgated and rulings issued thereunder.
(4) "Directed Fund" shall mean each portion of the Trust subject to the
discretionary management and control of an Asset Manager other than
the Trustee. If more than one Directed Fund is established under this
Trust Agreement, "Directed Fund" shall also mean the Directed Fund
subject to the management and control of a particular Asset Manager,
as the context may require.
(5) "Discretionary Fund" shall mean any portion of the Trust subject to
the discretionary management and control of the Trustee pursuant to a
separate written asset management agreement between the Company and
the Trustee.
(6) "Equitable Share" shall mean the interest of any Plan in the Trust or,
if the context shall require, an Investment Fund.
(7) "ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended, and the regulations promulgated and rulings issued
thereunder.
(8) "Insolvent" shall mean (i) the Company is generally not paying its
debts as such debts become due unless such debts are the subject of a
bona fide dispute, or (ii) the Company is subject to a pending
proceeding as a debtor under the United States Bankruptcy Code, Title
11 of the United States Code, or other proceedings intended to
liquidate or rehabilitate the Company's estate, or (iii) the Company
is subject to regulation by Federal or state regulators and such
regulators have determined that the Company is insolvent or should be
placed in insolvency or similar proceedings.
(9) "Investment Fund" shall mean an account allocated to an Asset Manager
for investment in which one or more Plans may have an interest.
(10) "Investment Manager" shall mean (i) an investment adviser registered
under the Investment Advisers Act of 1940, (ii) an investment adviser
which is not registered as an investment adviser under such Act by
reason of paragraph (1) of section 203A(a) of such Act but is
registered as an investment adviser under the laws of the state in
which it maintains its principal office and place of business, and, at
the time such adviser last filed the registration form most recently
filed by it with such State in order to maintain the its registration
under the laws of such State, also filed a copy of such form with the
United States Secretary of Labor; (iii) a bank as defined in that Act,
or (iv) an insurance company qualified to manage, acquire or dispose
of any assets of the trusts under the laws of one or more State.
(11) "Participant" shall mean an active or former employee or director of
the Company who is a participant under a Plan, and any beneficiary of
such an employee or director.
(12) "Payment Schedule" means the document delivered to the Trustee by the
Company or Recordkeeper showing the amounts payable in accordance with
the terms of the Plan(s) in respect of each Participant, the manner in
which such amounts are to be paid (as provided for or available under
the Plan(s)), the time of commencement for payment of such amounts,
the addresses or depositary to which such payments are to be sent, and
the Plan(s), and if relevant, the Investment Fund(s), to be charged.
101
(13) "Person" shall mean a natural person, trust, estate, corporation of
any kind or purpose, mutual company, joint-stock company,
unincorporated organization, association, partnership, joint venture,
employee organization, committee, board, Participant, trustee,
partner, or venturer acting in an individual, fiduciary or
representative capacity, as the context may require.
(14) "Recordkeeper" shall mean the Company, or, if different, the Person
(other than the Trustee) appointed by the Company to discharge the
Company's obligations under Section 2.
(15) "Securities Act" shall mean the Securities Act of 1933, as amended.
(16) "writing" or "written" shall mean a manually signed instrument or
electronic transmission through a facility approved by the Trustee.
17. Effective Date. The effective date of this Trust Agreement shall be the
date of its execution set forth on page 1 of this Trust Agreement, or, if
later, the date of its adoption by a Plan added to Appendix A after such
date.
18. Establishment of Trust by Affiliates.
(a) Any affiliate or subsidiary of the Company (an "Affiliate" and
"Parent", respectively) that is obligated to provide benefits to
Participants under one or more non-qualified deferred compensation or
supplemental retirement Plans may, with the consent of the Parent and
the Trustee, by execution of an adoption agreement substantially in
the form of Appendix B, elect to establish a trust (the "Affiliate
Trust"), which shall be a separate trust subject to all of the terms
and conditions of this Trust Agreement (including the provisions of
this Section 18) to the same extent and effect as if it had been
separately negotiated between the Trustee and such Affiliate (the
"Affiliate Trust Agreement"), pursuant to which (and except as herein
provided) such Affiliate shall be "the Company" and Grantor thereof
for all purposes of such Affiliate Trust Agreement (including, without
limitation, the provisions of paragraphs (c) and (d) of Section 1 and
Section 3, which provisions shall be construed to apply separately to
the Parent and each Affiliate.
(b) The Affiliate-Grantor appoints Parent, including its designees under
Section 14, as its agent for all purposes of the Affiliate Trust
Agreement to receive notices, reports or other communications
hereunder, to give Confirmations under Section 3, or, where action is
required to or may be taken by or on behalf of the "Company" to take
or refrain from taking such acts, and Affiliate shall be bound by the
decisions, Instructions and actions of the Parent under or affecting
the Affiliate Trust Agreement, and the Trustee shall be fully
protected by the Parent and the Affiliate-Grantor under Section 9 and
Section 15(e) in relying upon the decisions, instructions, actions,
and directions of the Parent; provided, however, in no event shall
Parent use the power and authority granted it hereunder to direct the
Trustee to pay over any assets of the Trust to the Parent under
Section 4 or Section 13, or creditors of Parent under Section 3.
(c) The Trustee shall not be required to give notice to or to obtain the
consent of the Affiliate-Grantor with respect to any action to be
taken by the Trustee on or pursuant to the actions of the Parent
pursuant to the Affiliate Trust Agreement, and the Parent shall have
the sole authority to enforce the Affiliate Trust Agreement on behalf
of any Affiliate.
102
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed as of the day and year first above written.
Attest:
CABOT OIL & GAS CORPORATION
By: /s/ Lisa Machesney
------------------------------
Name: Lisa A. Machesney
Title: Corporate Secretary
By: /s/ Ray Seegmiller
------------------------------
Name: Ray R. Seegmiller
Title: President & CEO
Attest:
BANKERS TRUST COMPANY
By: /s/ Andrew F. Gallivan
------------------------------
Name: Andrew F. Gallivan
Title: Principal
By: /s/ Charles R. Greiner, Jr.
------------------------------
Name: Charles R. Greiner, Jr.
Title: Assistant Vice President
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 31st day of August, 1998, before me personally came Charles R. Greiner,
Jr.to me known, who being by me duly sworn, did depose and say: that he/she
resides in 219 West Dover Road, Pawling, New York; that he/she is the Assistant
Vice President of BANKERS TRUST COMPANY, the corporation described in and which
executed the above instrument; that he/she knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal; that it was so
affixed by order of the Board of Directors of said corporation, and that he/she
signed his/her name thereto by like order.
/s/ Joseph F. Hanvey
- ------------------------------
Notary Public
STATE OF Texas )
) ss.:
COUNTY OF Harris )
On the 5th day of August, 1998, before me personally came Ray R. Seegmiller to
me known, who being by me duly sworn, did depose and say: that he/she resides in
Houston, Texas; that he/she is the President and CEO of Cabot Oil & Gas
Corporation, the corporation described in and which executed the above
instrument; that he/she knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
order of the Board of Directors of said corporation, and that he/she signed
his/her name thereto by like order.
/s/ Lisa A. Machesney
- ------------------------------
Notary Public
103
APPENDIX A
The Plans
The following Company plans and agreements (collectively referred to as the
"Plans") are subject to this Trust:
The Cabot Oil & Gas Corporation
Deferred Compensation Plan,
effective as of June 1, 1998
104
APPENDIX B
Form of Adoption Agreement
The undersigned _________________ (the "Affiliate"), a _________ of _________
(the "Parent"), has adopted, and/or incurred, or expects to incur, liability
under, one or more nonqualified deferred compensation plans listed in Appendix A
to that certain Trust Agreement (the "Trust Agreement"), made as of ______ __,
19__, by and between the Parent and Bankers Trust Company (the "Trustee"). The
Affiliate hereby adopts the Trust Agreement for the uses and purposes set forth
in the Trust Agreement, which, for purposes hereof, shall be construed as
applying separately to the Affiliate as if the Affiliate were the "Company",
therein, except as otherwise provided herein or in Section 18 of the Trust
Agreement. As so adopted by the Affiliate, the Trust Agreement shall be known as
the "Affiliate Trust Agreement," and the Affiliate shall be the Grantor of the
separate trust established by the Affiliate Trust Agreement.
The Affiliate agrees and confirms that it shall be subject to all of the terms
and conditions of the Trust Agreement, as heretofore or hereafter amended. The
Affiliate further agrees and confirms that: (a) it will be bound by the
decisions, instructions, actions and directions of the Parent under or affecting
the Affiliate Trust Agreement and the Affiliate as provided in Section 18 of the
Trust Agreement, and the Trustee shall be fully protected by the Affiliate in
relying upon the decisions, instructions, actions, and directions of the Parent;
(b) the Trustee shall not be required to give notice to or to obtain the consent
of the Affiliate with respect to any action taken or to be taken by the Trustee
on or to the instructions of the Parent or otherwise pursuant or with respect to
the Affiliate Trust Agreement; and (c) the Parent shall have the sole authority
to enforce the Affiliate Trust Agreement on behalf of the Affiliate.
IN WITNESS WHEREOF, the Affiliate has caused this Adoption Agreement to be
duly executed as of this ____ day of _________, 19__.
AFFILIATE
Attest:
By:
By:
Name:
Name:
Title:
Title:
Accepted and agreed:
PARENT
By:
Date:
Name:
Title:
BANKERS TRUST COMPANY
By:
Date:
Name:
Title:
105
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the _____ day of ____________, 1998, before me personally came
_________________ to me known, who being by me duly sworn, did depose and say:
that he/she resides in ___________________________; that he/she is the
_____________ of BANKERS TRUST COMPANY, the corporation described in and which
executed the above instrument; that he/she knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal; that it was so
affixed by order of the Board of Directors of said corporation, and that he/she
signed his/her name thereto by like order.
- ---------------------------------
Notary Public
STATE OF )
)ss.:
COUNTY OF )
On the _____ day of ____________, 1998, before me personally came
_________________ to me known, who being by me duly sworn, did depose and say:
that he/she resides in ___________________________; that he/she is the
_____________ of the ___________________, the corporation described in and which
executed the above instrument; that he/she knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal; that it was so
affixed by order of the Board of Directors of said corporation, and that he/she
signed his/her name thereto by like order.
- ---------------------------------
Notary Public
STATE OF )
)ss.:
COUNTY OF )
On the _____ day of ____________, 1998, before me personally came
_________________ to me known, who being by me duly sworn, did depose and say:
that he/she resides in ___________________________; that he/she is the
_____________ of the ___________________, the corporation described in and which
executed the above instrument; that he/she knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal; that it was so
affixed by order of the Board of Directors of said corporation, and that he/she
signed his/her name thereto by like order.
- ---------------------------------
Notary Public
106
SCHEDULE A
List of Property Deposited With Trustee
$700,804.19 cash to be wired to the Trustee by the Company.
17
175759v3
175759v3
APPENDIX A
Page 1
175759v3
175759v3
SCHEDULE A
Page 2
175759v3
107