Exhibit (10.w)
Met-Pro Corporation Directors Retirement Plan Trust Agreement
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This Met-Pro Corporation Directors Retirement Plan Trust Agreement (the
"Trust Agreement") is made this 11th day of February, 2000, by and between
Met-Pro Corporation a Delaware corporation (the "Company"), and Mellon Bank,
N.A. (the "Trustee").
WITNESSETH:
WHEREAS, the Company adopted the Met-Pro Corporation Directors
Retirement Plan as amended, (the "Plan"), a copy of which is attached hereto;
and
WHEREAS, the Company wishes to establish this trust (the "Trust") to
fund its obligations under the Plan, with the assets held in the Trust to be
subject to the claims of the Company's creditors in the event the Company
becomes Insolvent (as defined in Section 3(a)) until paid to Plan participants
or their beneficiaries in such manner and at such times as specified in the
Plan.
WHEREAS, it is the intention of the parties that this Trust shall
constitute an unfunded arrangement and shall not affect the status of the Plan
as an unfunded plan maintained for the purpose of providing deferred
compensation for a select group of management or highly compensated employees
for purposes of Title I of the Employee Retirement Income Security Act of 1974;
and
WHEREAS, it is the intention of the Company to make contributions to the
Trust to provide the Trust with a source of funds to assist it in the meeting of
the Company's liabilities under the Plan;
NOW, THEREFORE, the parties do hereby establish the Trust and agree that
the Trust shall be comprised, held and disposed of as follows:
Section 1. Establishment of Trust.
(a) The initial principal of the Trust, together with any future
contributions to the Trust and any other assets held in the Trust, and earnings
thereon, are collectively referred to herein as the "Trust Assets". The Company
shall make contributions to the Trust in cash or other property acceptable to
the Trustee. The Trustee shall hold, administer and distribute Trust Assets as
provided in this Trust Agreement. The Company shall have the sole duty and
responsibility for the determination of the accuracy or sufficiency of the
contributions to be made under the Plan.
(b) Upon a Change of Control (as defined in Section 14 of the Trust),
the Trustee shall, immediately upon the Change of Control, pay each Plan
participant or beneficiary thereof the benefits to which Plan participants or
their beneficiaries would be entitled pursuant to the terms of the Plan as of
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the date on which the Change of Control occurred to the extent then funded under
the Trust.
In the event a Change of Control of the Company (as defined in Section
14 of the Trust) shall be deemed to occur (whenever such shall occur, and
whether or not the Eligible Executive is then employed by the Company or shall
be alive), all payments due to the Eligible Executive, his surviving spouse or
other beneficiary under the Plan shall be accelerated and immediately paid in a
lump sum payment in an amount determined in accordance with the provisions of
the Plan.
(c) The Trust hereby established shall be irrevocable except as
explicitly provided to the contrary in Section 3 or 4.
(d) The Trust is intended to be a "grantor trust", of which the Company
is the grantor, within the meaning of subpart E; part I, subchapter J, chapter
1, subtitle A of the Internal Revenue Code of 1986, as amended (the "Code"), and
shall be construed accordingly.
(e) The Trust Assets shall be used exclusively to discharge the
Company's obligations under the Plan, except as provided to the contrary in
Section 3 or 4 hereof. Neither any Plan participant nor beneficiary thereof
shall have a preferred claim on, or any beneficial ownership interest in, any of
the Trust Assets. Each Plan participants' rights to benefits under the Plan and
this Trust Agreement shall be mere unsecured contractual rights against the
Company. Trust Assets are subject to the claims of the Company's general
creditors to the extent provided under federal and state law if the Company
becomes Insolvent
(f) The Company represents and warrants to the Trustee that the Plan is
not covered under Title I of ERISA.
(g) The Company's Chief Financial Officer or such Officer's designee
shall have authority to act for the Company under this Trust Agreement.
Section 2. Payments to Plan Participants.
(a) Pending the Company's funding of the Trust, the Company shall pay
all benefits to Plan participants as they become due under the Plan. After the
Trust is funded, the Company may continue to make payment directly. In such
case, the Company shall notify the Trustee of its decision to make payment
directly prior to the time payment is due. In addition, if at any time the Trust
Assets are not sufficient to make payment in accordance with the terms of the
Plan, the Company shall make the balance of each such payment as it falls due.
The Trustee shall notify the Company and affected participants in the Plan if
Trust Assets are not sufficient to make a scheduled payment.
(b) After the Company funds the Trust, in advance of the time that any
amounts are payable under the Plan, the Company shall deliver to the Trustee a
schedule (the "Payment Schedule") that indicates with respect to each
Participant (i) the amounts payable or provides a formula or other instructions
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acceptable to the Trustee for determining the amounts so payable, (ii) the form
in which such amount is to be paid, and (iii) the time of commencement and
duration for payment of such amounts. Except as otherwise provided herein, upon
direction of the Company, the Trustee shall make payments in accordance with
such Payment Schedule.
It is the intent of the Company and the Trustee that the Company shall
be responsible for determining and effecting all federal, state and local tax
aspects of the Plan and the Trust, including without limitation income taxes
payable on the Trust's income, if any, any required withholding of income or
other payroll taxes in connection with the payment of benefits from the Trust
pursuant to the Plan, and all reporting required in connection with any such
taxes. To the extent that the Company is required by applicable law to pay or
withhold such taxes or to file such reports, such obligation shall be a
responsibility allocated to the Company, as the case may be, hereunder. To the
extent the Trustee is required by applicable law to pay or withhold such taxes
or to file such reports, the Company shall inform the Trustee of such
obligation, shall direct the Trustee with respect to the performance of such
obligations and shall provide the Trustee with all information required by the
Trustee to meet such obligations.
(c) The entitlement of a Plan participant or beneficiary thereof to
benefits under the Plan shall be determined by the Company or such party as it
shall designate under the Plan, and any claim for such benefits shall be
considered and reviewed under the procedures set out in the Plan.
Section 3. The Trustee's Responsibility Regarding Payments to Trust
Beneficiaries when the Company is Insolvent.
(a) The Trustee shall cease payment to Plan participants or their
beneficiaries if the Company becomes Insolvent. The Company shall be considered
"Insolvent" for purposes of this Trust Agreement if (i) if the Company is unable
to pay its debts as they become due or (ii) the Company is subject to a pending
proceeding as a debtor under the United States Bankruptcy Code.
(b) At all times during the continuance of this Trust, the Trust Assets
shall be subject to claims of general creditors of the Company.
(1) The Company shall have the duty to inform the
Trustee and affected participants in the Plan in writing if the
Company becomes Insolvent. If a person claiming to be a creditor
of the Company alleges in writing to the Trustee that the
Company has become Insolvent, the Trustee shall determine
whether the Company is Insolvent and, pending such
determination, the Trustee shall discontinue payment to Plan
participants and beneficiaries. In all cases, the Trustee shall
be entitled to conclusively rely upon the written certification
of the Board of Directors or the Chief Executive Officer of the
Company when determining whether the Company is Insolvent.
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(2) Unless the Trustee has actual knowledge that the
Company is Insolvent or has received notice from the Company or
a person claiming to be a creditor alleging the Company is
Insolvent, the Trustee shall have no duty to inquire whether the
Company is Insolvent. The Trustee may in all events rely on such
evidence concerning the Company's solvency as may be furnished
to the Trustee that provides the Trustee with a reasonable basis
for making a determination concerning the Company's solvency.
(3) If at any time the Trustee has determined that the
Company is Insolvent, the Trustee shall discontinue payments to
Plan participants and their beneficiaries and shall hold the
Trust Assets for the benefit of the Company's general creditors.
Nothing in this Trust Agreement shall in any way diminish any
rights of Plan participants and their beneficiaries to pursue
rights as a general creditor of the Company with respect to
payments due under the Plan.
(4) The Trustee shall resume payments in accordance with
Section 2 of this Trust Agreement only after the Trustee has
determined that the Company is not Insolvent (or no longer
Insolvent).
(c) Provided that there are sufficient assets, the Trustee discontinues
the payment of benefits from the Trust pursuant to Section 3 (a) hereof and
subsequently resumes such payments, the first payment following such
discontinuance shall include the aggregate amount of all payments due to Plan
participants or their beneficiaries under the terms of the Plan for the period
of such discontinuance, less the aggregate amount of any payments made to them
by the Company in lieu of the payments provided for hereunder during any such
period of discontinuance, plus interest at the prime rate of interest announced
from time to time by the Trustee.
Section 4. Payments to the Company.
Except as provided in Section 3 hereof, 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 payments required under the Plan have been
made to Plan participants and their beneficiaries.
Section 5. Investment and Other Authority.
The Company and the Trustee may formulate investment policies and
standards for the investment of the Trust, which shall be broad guidelines and
shall not restrict the Trustee's investment discretion with respect to the
selection of Trust assets. Subject to the preceding sentence, the Trustee shall
have the powers described below:
(a) The Trustee may invest and reinvest the principal and income of the
Trust and keep it invested, without distinction between principal and income, in
any security or property as it, in its sole discretion, deems advisable;
provided, however, that in no event may the Trustee invest in (i) securities
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(including stock or rights to acquire stock) or obligations issued by the
Company, other than a de minimis amount held in common investment vehicles in
which the Trustee invests, (ii) any asset settled or held in safekeeping outside
of the United States, or (iii) real estate. For this purpose, "real estate"
includes, but is not limited to, real property, leaseholds, mineral interests,
and any form of asset which is secured by any of the foregoing. All rights
associated with assets of the Trust shall be exercised by the Trustee or the
person designated by the Trustee, and shall in no event be exercisable by or
rest with the Participants.
(b) The Trustee may invest in securities (including stock or rights to
acquire stock) or obligations issued by the Trustee. All rights associated with
assets of the Trust shall be exercised by Trustee or the person designated by
Trustee, and shall in no event be exercisable by or rest with Plan participants.
The Company shall have the right at anytime, and acceptable to the Trustee from
time to time, in its sole discretion, to substitute assets of equal fair market
value for any asset held by the Trust. This right is exercisable by Company in a
nonfiduciary capacity without the approval or consent of any person in a
fiduciary capacity.
(c) In carrying out its responsibilities under Section 5, the Trustee is
authorized:
(1) To invest and reinvest the funds received hereunder, and any
accretions thereto, without distinction between principal and income, in such
securities or in such other property, wherever situate, whether or not income
producing, including but not limited to stock, common or preferred, interests in
registered investment companies, including registered investment companies for
which the Trustee or an affiliate of the Trustee receives compensation for
providing custodial, transfer agency, investment advisory or other services (The
Company acknowledges that interest in such registered investment companies are
not bank deposits and are not insured by, guaranteed by, obligations of, or
otherwise supported by the United States of America, the Federal Deposit
Insurance Corporation, Mellon Bank, N.A. or any bank or government entity),
bonds and mortgages, and other evidences of indebtedness (including debt
securities underwritten by the Trustee or any of its affiliates, whether
individually or as a member of a divided or undivided syndicate), and deposits
in a bank or other financial institution under state or Federal supervision,
including the Trustee's banking department, which bear a reasonable rate of
interest. In making such investment, the Trustee shall not be a restricted by
any state law or statute designating investments eligible for trust funds.
(2) To hold uninvested, from time to time, without liability for
interest thereon, such amounts as are necessary for the cash requirements of the
Plan; and to hold assets of the Trust in cash or equivalents, government
securities, or straight debt securities in varying proportions when and for so
long as, in the opinion of the Trustee, prevailing market and economic
considerations indicate that it is in the best interest of the Trust to do so.
(3) To vote upon any stocks, bonds or other securities; 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,
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to oppose or to consent to, or otherwise participate in, corporate
reorganizations or other changes affecting corporate securities, to delegate
discretionary powers, and to pay any assessments or charges in connection
therewith; and generally to exercise any of the powers of an owner with respect
to stocks, bonds, securities, or other properties held as part of the Trust.
(4) To settle, compromise, or submit to arbitration any claims,
debts, or damage due or owing to or from the Trust, to commence or defend suits
or legal or administrative proceedings, and to represent the Trust in all legal
and administrative proceedings, provided, however, that the Trustee shall not be
obligated to take any action or to appear and participate in any action which
would subject it to expense or liability unless it is first indemnified in an
amount and manner satisfactory to it, or its furnished with funds sufficient, in
its sole judgement, to cover the same.
(5) To purchase, enter, sell hold, and generally deal in any
manner in and with contracts for the immediate or future delivery of financial
instruments of any issuer or of any other property; the Trustee may also grant,
purchase, sell, exercise, permit to expire, permit to be held in escrow, or
otherwise acquire, dispose of, hold and generally deal in any manner with and in
all forms of options or any combination thereof.
(6) To take all action necessary to pay for authorized
transactions, including borrowing or raising monies from any lender, including
the Trustee, in its corporate capacity in conjunction with its duties under this
Agreement and upon such terms and conditions as the Trustee may deem advisable
to settle security purchases and securing the repayments thereof by pledging all
or any part of the Account.
(7) To appoint custodians, subcustodians or subtrustees
(including affiliates of the Trustee), as to part or all of the Trust. The
Trustee shall not be responsible or liable for any losses or damages suffered by
the Company arising as a result of the insolvency of any custodian, subcustodian
or subtrustee, except to the extent the Trustee was negligent in its selection
or continued retention of such agent.
(8) To hold property in nominee name, in bearer form, or in book
entry form, in a clearinghouse corporation or in a depository (including an
affiliate of the Trustee), so long as the Trustee's records clearly indicate
that the assets held are a part of the Trust. The Trustee shall not be
responsible for any losses resulting from the deposit or maintenance of
securities or other property (in accordance with market practice, custom, or
regulation) with any recognized clearing facility, book-entry system,
centralized custodial depository, or similar organization.
(9) Generally to do all acts, whether or not expressly
authorized, which the Trustee may reasonably deem necessary or desirable for the
protection of the Trust.
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(d) Notwithstanding anything to the contrary, the Company may reserve to
itself the exclusive authority to direct the Trustee as to the acquisition,
retention or disposition of all or any portion of the assets of the Trust and,
to the extent the Company reserves such authority, the Trustee shall not be
responsible for the management and control of such assets other than to serve as
custodian of them. Upon receipt by the Trustee of a written notice from the
Company advising the Trustee that the Company has reserved such authority, the
Trustee shall, pursuant to such notice, invest all or any portion of the Trust
designated in such notice only in accordance with the instructions of the
Company. The Trustee shall be under no duty to question any instruction of the
Company. Any such instruction may be of continuing nature or otherwise and may
be changed or revoked in writing by the Company at any time. In the absence of
such a written direction, the Trustee shall have full authority as to the
acquisition, retention or disposition of the assets of the Trust. The Company
may revoke or amend the investment powers that it reserves to itself provided
such revocation or amendment is in writing and is consented to in advance by the
Trustee.
Section 6. Contractual Settlement and Income; Market Practice Settlements.
(a) In accordance with the Trustee's standard operating procedure, the
Trustee shall credit the Trust with income and maturity proceeds on securities
on contractual payment date net of any taxes or upon actual receipt. To the
extent the Trustee credits income on contractual payment date, the Trustee may
reverse such accounting entries to the contractual payment date if the Trustee
reasonably believes that such amount will not be received.
(b) In accordance with the Trustee's standard operating procedure, the
Trustee will attend to the settlement of securities transactions on the basis of
either contractual settlement date accounting or actual settlement date
accounting. To the extent the Trustee settles certain securities transactions on
the basis of contractual settlement date accounting, the Trustee may reverse to
the contractual settlement date any entry relating to such contractual
settlement if the Trustee reasonably believes that such amount will not be
received.
(c) Settlements of transactions may be effected in trading and
processing practices customary in the jurisdiction or market where the
transaction occurs. The Company acknowledges that this may, in certain
circumstances, require the delivery of cash or securities (or other property)
without the concurrent receipt of securities (or other property) or cash. In
such circumstances, the Trustee shall have no responsibility for nonreceipt of
payment (or late payment) or nondelivery of securities or other property (or
late delivery) by the counterparty.
Section 7. Disposition of Income.
During the term of this Trust, all income received by the Trust, net of
expenses and taxes, shall be accumulated and reinvested.
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Section 8. Accounting by the Trustee.
The Trustee shall keep accurate and detailed records of all investments,
receipts, disbursements, and all other transactions required to be made,
including such specific records as shall be agreed upon between the Company and
the Trustee. Within ninety (90) days following the close of each calendar year
and within ninety (90) days after the removal or resignation of the Trustee, the
Trustee shall deliver to the Company and the affected participants in the Plan a
written account of its administration of the Trust during such year or during
the period from the close of the last preceding year to the date of such removal
or resignation, setting forth all investments, receipts, disbursements and other
transactions effected by it, including a description of all securities and
investments purchased and sold with the cost or net proceeds of such purchases
or sales (accrued and showing all cash, securities and other property held in
the Trust at the end of such year or as of the date of such removal or
resignation, as the case may be. If, within ninety (90) days after the Trustee
mails to the Company a statement with respect to the Trust, the Company has not
given the Trustee written notice of any exception or objection thereto, the
statement shall be deemed to have been approved, and in such case, the Trustee
shall not be liable for any matters reasonably apparent from the face of such
statements.
Section 9. Responsibility of the Trustee.
(a) The Trustee shall act with the care, skill, prudence and diligence
under the circumstances then prevailing that a prudent person acting in like
capacity and familiar with such matters would use in the conduct of an
enterprise of a like character and with like aims, provided, however, that the
Trustee shall incur no liability to any person for any action taken pursuant to
the written direction, request or approval of the Company.
In the event of a dispute between the Company and a third party, the
Trustee may apply to a court of competent jurisdiction to resolve the dispute.
(b) The Trustee is not a party to, and has no duties or responsibilities
under, the Plan other than those that may be expressly contained in this
Agreement. In any case in which a provision of this Agreement conflicts with any
provision in the Plan, this Agreement shall control.
(c) The Trustee shall not be responsible for the title, validity or
genuineness of any property or evidence of title thereto received by it or
delivered by it pursuant to this Agreement and shall be held harmless in acting
upon any notice, request, direction, instruction, consent, certification or
other instrument believed by it to be genuine and delivered by the proper party
or parties.
(d) The Company agrees to indemnify and hold harmless the Trustee, its
parent, subsidiaries and affiliates and each of their respective officers,
directors, employees and agents from and against all liability, loss and
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expense, including reasonable attorneys' fees and expenses incurred by the
Trustee or any of the foregoing indemnities arising out of or in connection with
this Agreement, except as a result of the Trustee's own negligence or willful
misconduct. This indemnification shall survive the termination of this
Agreement.
(e) If the Trustee undertakes or defends any litigation or other claim
or action or participates in a negotiation resulting in a settlement prior to
the commencement of litigation arising in connection with this Trust, the
Company agrees to indemnify the Trustee against the Trustee's reasonable costs,
expenses and liabilities (including, without limitation, attorneys' fees and
expenses) relating thereto and to be primarily liable for such payments. This
provision shall not apply, however, to any litigation claim or action where the
Trustee's actions are determined to involve fraud, self-dealing or breach of the
Trustee's duties hereunder. If the Company does not pay such costs, expenses and
liabilities in a reasonably timely manner, the Trustee may obtain payment from
the Trust.
(f) The Trustee may consult with legal counsel (who may also be counsel
for the Company generally) with respect to any of its duties or obligations
hereunder and shall have no liability for any action or failure to act
exclusively in reliance upon the reasonable written advice of such counsel.
(g) The Trustee may hire agents, accountants, actuaries, investment
advisors, financial consultants and other professionals to assist it in
performing any of its duties or obligations hereunder.
(h) The Trustee shall have, without exclusion, all powers conferred on
trustees by applicable law, unless expressly provided otherwise herein,
provided, however, that if an insurance policy is held as an asset of the Trust,
Trustee shall have no power to name a beneficiary of the policy other than the
Trust, to assign the policy (as distinct from conversion of the policy to a
different form) other than to a successor Trustee, or to loan to any person the
proceeds of any borrowing against such policy.
(i) Notwithstanding anything in this Agreement to the contrary contained
herein, the Trustee shall not be responsible or liable for any losses to the
Trust resulting from any event beyond the reasonable control of the Trustee, its
agents or custodians, including but not limited to nationalization, strikes,
expropriation, devaluation, seizure, or similar action by any governmental
authority, de facto or de jure; or enactment, promulgation, imposition or
enforcement by any such governmental authority of currency restrictions,
exchange controls, levies or other charges affecting the Trust's property; or
the breakdown, failure or malfunction or any utilities or telecommunications
systems; or any order or regulation of any banking or securities industry
including changes in market rules and market conditions affecting the execution
or settlement of transactions; or acts of war, terrorism, insurrection or
revolution; or acts of God; or any other similar event. This Section shall
survive the termination of this Agreement.
(j) The Trustee shall not be liable for any act of omission of any other
person in carrying out any responsibility imposed upon such person and under no
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circumstances shall the Trustee be liable for any indirect, consequential, or
special damages with respect to its role as Trustee.
(k) Notwithstanding any powers granted to the Trustee pursuant to this
Trust Agreement or applicable law, the Trustee shall not 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.
Section 10. Compensation and Expenses of the Trustee.
The Company shall pay all agreed upon administrative and Trustee's fees
and reasonable expenses. If not so paid, the fees and expenses shall be paid
from the Trust. The Trustee shall be entitled to fees for services as mutually
agreed. The Company acknowledges that as part of the Trustee's compensation, the
Trustee may earn interest on balances including disbursement balances and
balances arising from purchase and sale transactions. If the Trustee advances
cash or securities to the Trust for any purpose, or in the event that the
Trustee shall incur or be assessed taxes, interest, charges, expenses,
assessments, or other liabilities in connection with the performance of this
Agreement, except such as may arise from its own negligent action, negligent
failure to act or willful misconduct, any property at any time held in the Trust
Fund shall be security therefor and the Trustee shall be entitled to collect
from the Trust sufficient cash for reimbursement, and if such cash is
insufficient, dispose of the assets of the Trust Fund to the extent necessary to
obtain reimbursement. To the extent the Trustee advances funds to the Trust for
disbursements or to the effect the settlement of purchase transactions, the
Trustee shall be entitled to collect from the Trust an amount equal to what
would have been earned on the sums advanced (an amount approximating "federal
funds" interest rate).
Section 11. Resignation and Removal of the Trustee.
(a) The Trustee may resign at any time by written notice to the Company
and affected participants in the Plan, which shall be effective thirty (30)
calendar days after receipt of such notice unless the Company and the Trustee
agree otherwise.
(b) The Trustee may be removed by the Company without cause or reason on
sixty (60) calendar days' notice or upon shorter notice accepted by the Trustee.
(c) Upon resignation or removal of the Trustee and appointment of a
successor, all Trust Assets shall subsequently be transferred to the successor.
The transfer shall be completed within ninety (90) calendar days after receipt
of notice of resignation, removal or transfer, unless the Company extends the
time limit.
(d) If the Trustee resigns or is removed, a successor shall be
appointed, in accordance with Section 12 hereof, prior to the effective date of
resignation or removal under Section 11 (a) or (b) above. If no such appointment
has been made, the Trustee may apply to a court of competent jurisdiction for
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appointment of a successor or for instructions. All reasonable expenses of the
Trustee in connection with the legal proceeding for appointment of a successor
shall be allowed as administrative expenses of the Trust.
Section 12. Appointment of Successor.
(a) If the Trustee resigns or is removed in accordance with Section 11
(a) or (b) hereof, the Company shall appoint a successor, which successor must
be a corporate fiduciary independent of the Company. The appointment shall be
effective when accepted in writing by the new Trustee, who shall have all of the
rights and powers of the former Trustee, including ownership rights in the Trust
Assets. The former Trustee shall execute any instrument necessary or reasonably
requested by the Company or the successor Trustee to evidence the transfer.
(b) The successor Trustee need not examine the records and acts of any
prior Trustee and may retain or dispose of existing Trust Assets, subject to
Section 5 hereof. The successor Trustee shall not be responsible for, and the
Company shall indemnify and defend the successor Trustee from, any claim or
liability resulting from any action or inaction of any prior Trustee or from any
other past event, or any condition existing at the time it becomes successor
Trustee.
Section 13. Amendment or Termination.
(a) This Trust Agreement may be amended only by a written instrument
executed by the Trustee and the Company.
(b) The Trust shall not terminate until the date on which no Plan
participant or beneficiary is entitled to payments under the Plan. Upon
termination of the Trust, any assets remaining in the Trust shall be returned to
the Company.
Section 14. 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) 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) Notwithstanding anything to the contrary contained elsewhere in this
Trust Agreement, any reference to the Plan or Plan provisions which require
knowledge or interpretation of the Plan shall impose a duty upon the Company to
communicate such knowledge or interpretation to the Trustee. The Trustee shall
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have no obligation to know or interpret any portion of the Plan and shall in no
way be liable for any proper action taken contrary to the Plan.
(d) This Trust Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania. Met-Pro
Corporation and Mellon Bank, N.A. hereby expressly waive, to the full extent
permitted by applicable law, any right to trial by jury with respect to any
judicial proceeding arising from or related to this Agreement.
(e) For purpose of the Trust, Change of Control shall be deemed to
occur;
(1) If any "person" or "group of persons", which person or group
of persons are not part of present management and are acting in concert (as the
term "person" is used in Section 13(d) and 14(d) of the Securities Exchange Act
of 1934, as amended (the "Act")) becomes the "beneficial owner" (as defined in
Rule 13 d-3 promulgated under the Act) directly or indirectly of securities of
the Corporation representing thirty (30%) percent or more of the combined voting
power of the Corporation's then outstanding securities; or
(2) If at any time there shall be a change in the composition of
the Corporation's Board of Directors resulting in a majority of such Directors
as of the date hereof no longer constituting such a majority; provided, however,
that in making any such determination as to change in composition, there shall
be excluded any change where the new Director was elected by or upon
recommendation of such present majority; or
(3) If the approval by the stockholders of the Corporation of a
reorganization, merger or consolidation, in each case, with respect to which
persons who were stockholders of the Corporation immediately prior to such
reorganization, merger or consolidation do not, immediately thereafter, own more
than fifty (50%) percent of the combined voting power of the reorganized, merged
or consolidated Corporation's then outstanding securities entitled to vote
generally in the election of Directors or with respect to a liquidation or
dissolution of the Corporation or the sale of all or substantially all of the
Corporation's assets; or
(4) At any time that the Board of Directors, in its sole
discretion, determines that a change of control has occurred, regardless of
whether such determination relates to any of the aforementioned events.
The Company shall have the duty to inform the Trustee in writing
upon the occurrence of a Change of Control. The Trustee shall be entitled to
conclusively rely upon such written certification of the Company.
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Section 15. Reliance of Representations.
(a) The Company and the Trustee each acknowledge that the other will be
relying, and shall be entitled to rely, on the representations, undertakings and
acknowledgments of the other as set forth in this Agreement. The Company and the
Trustee each agree to notify the other and affected participants in the Plan
promptly if its representations, undertakings, or acknowledgments set forth in
this Agreement ceases to be true.
(b) The Company and the Trustee hereby each represent and warrant to the
other that it has full authority to enter into this Agreement upon the terms and
conditions hereof and that the individual executing this Agreement on their
behalf has the requisite to bind the Company and the Trustee to this Agreement.
Attest: Met-Pro Corporation
/s/ Gary J. Morgan By: /s/ William L. Kacin
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Secretary William L. Kacin
Chairman, Chief Executive
Officer and President
(Corporate Seal)
Attest: Mellon Bank, N.A.
/s/ Raph C. Phellep By: /s/ Christine A. Bloom
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Secretary Vice President
(Corporate Seal)
13