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Exhibit 10.4
ARGO-TECH CORPORATION
TRUST AGREEMENT
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TABLE OF CONTENTS
Recitals ............................................................ 1
Definitions ......................................................... 1
Trust Fund .......................................................... 2
Payments to Beneficiary or Successor ................................ 2
Special Tax Distributions ........................................... 4
Trustee Responsibility When Corporation
Is Insolvent ...................................................... 5
No Payments to the Corporation ...................................... 6
Additional Powers, Duties, and Immunities of
the Trustee ....................................................... 6
Accounting by Trustee ............................................... 10
Responsibility of Trustee ........................................... 10
Compensation and Expenses of Trustee ................................ 11
Tenure and Succession of Trustees ................................... 12
Amendment and Termination ........................................... 13
General Provisions .................................................. 13
Exhibits ............................................................ 00
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TRUST AGREEMENT
THIS TRUST AGREEMENT ("Agreement"), made this 28th day of
October 1994, is between ARGO-TECH CORPORATION, a Delaware
corporation (the "Corporation"), and SOCIETY NATIONAL BANK (together with any
successor designated in accordance with Section 11 of this Agreement, the
"Trustee"),
W I T N E S S E T H:
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WHEREAS, the Corporation has entered into a Stay Pay Agreement (the
"Stay Pay Agreement") that provides for the payment of a "Stay Payment" (as
defined in the Stay Pay Agreement) to Xxxxxxx X. Xxxxxxxx, an executive officer
of the Corporation; and
WHEREAS, with respect to the Stay Pay Agreement, the Corporation desires
to establish a trust (the "Trust") and to transfer to the Trust assets to be
held therein, subject to the claims of the Corporation's creditors in the event
of the Corporation's insolvency, until disposed of in accordance with this
Agreement;
NOW, THEREFORE, the Corporation hereby establishes the Trust, and the
parties agree that the Trust shall be comprised, held, and disposed of as
follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following words and phrases shall have
the following meanings:
(a) "Beneficiary" means Xxxxxxx X. Xxxxxxxx.
(b) "Code" means the Internal Revenue Code of 1986, as amended, or any
successor thereto, and any applicable regulations thereunder.
(c) "Exhibit" means an exhibit to this Agreement, which is deemed a part
of this Agreement.
(d) "Insolvent" means the Corporation either is unable to pay its debts
as they become due or is subject to a pending proceeding as a debtor under the
United States Bankruptcy Code, as now in force or hereafter amended.
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(e) "Successor" means a successor in interest of the Beneficiary under
the Stay Pay Agreement.
SECTION 2. TRUST FUND
(a) The Corporation has deposited with the Trustee in trust, concurrent
with the execution and delivery of this Agreement, the amount described on
Exhibit 2 (a), which shall become principal of the Trust to be held,
administered, and disposed of by the Trustee in accordance with this Agreement.
(b) The Trust hereby established shall be irrevocable, and the Trust and
this Agreement may be amended or terminated only in accordance with Section 12
of this Agreement.
(c) The Trust is intended to be a grantor trust within the meaning of
subpart E, part I, chapter J, subchapter 1, subtitle A of the Code with the
Corporation as grantor and shall be construed accordingly.
(d) The principal of the Trust, and any earnings thereon, shall be held
in trust separate and apart from other funds of the Corporation and shall be
used exclusively for the uses and purposes herein set forth. The Beneficiary or
Successor shall not have any preferred claim on, or any beneficial ownership or
interest in, any assets of the Trust prior to the time, if any, that such assets
are paid to him in accordance with this Agreement, and all rights created under
this Agreement shall be mere unsecured contractual rights of the Beneficiary or
Successor.
(e) The Corporation may at any time or from time to time make additional
contributions to the Trust of cash or other property that is acceptable to the
Trustee to augment the principal hereunder to be held, administered, and
disposed of by the Trustee in accordance with this Agreement. The Trustee
promptly shall notify the Beneficiary or Successor in writing of any such
additional contributions.
SECTION 3. PAYMENTS TO BENEFICIARY OR SUCCESSOR
(a) if the Corporation is not then Insolvent, the Trustee, within five
business days after the Trustee receives both (i) a certificate signed by the
Beneficiary or Successor, in the form of Exhibit 3 (a)(1), and (ii) an
affidavit executed by the Beneficiary or
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Successor in the form of Exhibit 3 (a)(2), shall make a payment to the
Beneficiary or Successor from the assets of the Trust in an amount equal to the
amount of assets then held under the Trust. Upon receipt of an affidavit in the
form of Exhibit 3 (a)(2), the Trustee shall forthwith forward a copy of the
affidavit to the Corporation.
(b) If the Corporation is not then Insolvent, the Trustee, within five
business days after the Trustee receives a written direction certified by two
officers of the Corporation other than the Beneficiary, shall make a payment to
the Beneficiary or Successor from the assets of the Trust in an amount equal to
the lesser of the amount specified in such written direction or the amount of
assets then held under the Trust. Such payment shall be by bank check or
cashier's check and shall be transmitted to the Beneficiary or Successor by
United States mail, together with a letter in the form of Exhibit 3(b) signed by
an officer of the Trustee.
(c) The Trustee shall make such provision as it considers necessary or
appropriate for the withholding of any federal, state, and local taxes that may
be required to be withheld in connection with any payment under Section 3(a) or
Section 3(b) of this Agreement. The Trustee may reserve from any payment under
this Section 3 such reasonable amount as it shall deem necessary to provide for
expenses and compensation to which it may be entitled under Section 10 and any
taxes or other sums chargeable against the Trust for which it may be liable, and
in the event that the amount so reserved is more than sufficient for such
purposes, the Trustee shall pay the excess thereof to the Beneficiary or
Successor within a reasonable time.
(d) If the assets of the Trust are not sufficient to provide for full
payment to the Beneficiary or Successor of the amount required under the Stay
Pay Agreement, the Corporation shall make the balance of such payment in
accordance with the Stay Pay Agreement, and the Trustee shall have no obligation
with respect thereto. If any payment to the Beneficiary or Successor referred to
in Section 3(a) or Section 3(b) of this Agreement exceeds the amount to which
the Beneficiary or Successor is entitled in accordance with the Stay Pay
Agreement, no such payment to the Beneficiary or Successor by the Trustee shall
obligate the Beneficiary or Successor to the Trustee or the Corporation with
respect to such excess or obligate the Trustee to the Corporation with respect
to such excess.
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(e) Notwithstanding any other provision herein to the contrary, in no
circumstances shall the Trustee be liable to the Beneficiary or any Successor
for any insufficiency of the Trust assets to discharge payments under the Stay
Pay Agreement; rather, the liability for all such payments shall be and remain
the ultimate responsibility of the Corporation, and if the assets of the Trust
are insufficient at any time to make payments to such Beneficiary or Successor
in accordance with the provisions of the Stay Pay Agreement, the Corporation
shall make the balance of any such payment as it falls due.
SECTION 4. SPECIAL TAX DISTRIBUTIONS
(a) The Corporation and the Trustee intend that (i) the creation of,
transfer of assets to, and the terms of the Trust and this Agreement will not
cause any Benefits to be other than "unfunded" for purposes of Title I of the
Employee Retirement Income Security Act of 1974, as amended, or any successor
provision thereto; (ii) transfers of assets to the Trust or the terms of the
Trust and this Agreement will not be transfers of property for purposes of
Section 83 of the Code, or any successor provision thereto, nor will such
transfers or terms cause a currently taxable benefit to be realized by a
Beneficiary or Successor under the "economic benefit" doctrine or otherwise; and
(iii) under Section 451 of the Code, or any successor provision thereto, no
amounts hereunder will be includible in the gross income of the Beneficiary or
Successor prior to his taxable year in which such amounts are actually
distributed or made available by the Trustee to the Beneficiary or Successor.
(b) If, based upon a change in federal tax or revenue laws, a published
ruling or similar announcement issued by the Internal Revenue Service, a
regulation issued by the Secretary of the Treasury, a decision by a court of
competent jurisdiction involving the Beneficiary or Successor, or a closing
agreement made under Section 7121 of the Code that is approved by the Internal
Revenue Service and involves the Beneficiary or Successor, the Trustee
determines, in its sole judgment, that any portion of such amounts are
includible in the gross income of the Beneficiary or Successor prior to the
taxable year in which such amounts would, but for this Section 4, otherwise
actually be distributed or made available to the Beneficiary or Successor by the
Trustee, then the Trustee shall, if the Corporation is not then Insolvent and
there are sufficient assets of the Trust, promptly make a distribution to the
Beneficiary or Successor, which, after taking into account any Federal, state,
and local income
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tax consequences of the special distribution itself, is equal to the sum of any
Federal, state, and local income taxes, interest due thereon, and penalties
assessed with respect thereto that are attributable to amounts that are so
includible in the gross income of the Beneficiary or Successor. In order to make
the foregoing determination, the Trustee may, in its sole discretion, consult
with independent legal counsel and in accordance with Section 9(c) shall incur
no liability in acting or refraining from acting in accordance with the advice
of such counsel. In the event there are insufficient assets of the Trust to make
the foregoing distribution, the Trustee shall make a distribution to the extent
of the assets available.
(c) Any special distribution to the Beneficiary or Successor made in
accordance with Section 4 (b) of this Agreement shall be treated as an advance
payment under the Stay Pay Agreement and shall reduce amounts otherwise payable
to the Beneficiary or Successor under the Stay Pay Agreement. Any reduction
shall be determined by the Trustee upon the basis that the amount of reduction
shall have an actuarial present value equal (to the extent practicable) to the
amount of the special distribution. In order to make the foregoing
determination, the Trustee may, in its sole discretion, consult with an
independent actuary and shall incur no liability in connection with any
determination reached in accordance with the advice of such actuary. Prior to
and as a condition to making the special distribution contemplated by Section 4
(b), the Trustee shall secure an appropriate waiver and agreement from the
Beneficiary or Successor with respect to any such reduction and the provisions
of this Section 4 (c).
SECTION 5. TRUSTEE RESPONSIBILITY WHEN CORPORATION
IS INSOLVENT
At all times during the continuance of the Trust and this Agreement, all
principal and income of the Trust shall be subject to claims of general
creditors of the Corporation under Federal and state law as set forth herein.
The Board of Directors and the highest ranking officer of the Corporation each
immediately shall inform the Trustee in writing whenever it or he believes that
the Corporation is Insolvent. If a person claiming to be a creditor of the
Corporation alleges in writing to the Trustee that the Corporation has become
Insolvent, the Trustee shall determine whether the Corporation is Insolvent and,
pending such determination, the Trustee
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shall discontinue all payments to any Beneficiary or Successor under the Trust.
Unless the Trustee has actual knowledge that the Corporation is
Insolvent, or has received notice from the Corporation or a person claiming to
be a creditor alleging that the Corporation is Insolvent, the Trustee shall have
no duty to inquire whether the Corporation is Insolvent. The Trustee may in all
events rely on such evidence concerning the Corporation's solvency as may be
furnished to the Trustee and that provides the Trustee with a reasonable basis
for making a determination concerning the Corporation's solvency.
If at any time the Trustee has determined that the Corporation is
Insolvent, the Trustee shall discontinue all payments to any Beneficiary or
Successor under the Trust and shall hold the assets of the Trust for the benefit
of the Corporation's general creditors. If the Trustee has not made a payment
pursuant to Section 3 or Section 4 of this Agreement by reason of this Section
5, the Trustee shall resume payments in accordance with Section 3 or Section 4
of this Agreement only after it has determined that the Corporation is not
Insolvent (or is no longer Insolvent if the Trustee initially determined the
Corporation to be Insolvent). Nothing in this Agreement shall in any way
diminish any rights of the Beneficiary or any Successor to pursue their rights
as general creditors of the Corporation with respect to the Stay Pay Agreement
or otherwise.
SECTION 6. NO PAYMENTS TO THE CORPORATION
The Corporation shall have no right or power to direct the Trustee to
pay any assets of the Trust to the Corporation, or its affiliates (other than
the Beneficiary or a Successor).
SECTION 7. ADDITIONAL POWERS, DUTIES, AND IMMUNITIES
OF THE TRUSTEE
In the administration of the Trust, the Trustee shall have the following
additional powers, duties, and immunities:
(a) The Trust assets, including any income accumulated and added to
principal, shall be invested by the Trustee with the purpose of the preservation
of principal and liquidity. The rate of return on investment, although
important, shall not take precedence over safety of principal and liquidity. The
Trustee shall periodically
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consult with the Corporation regarding the investment of the Trust assets and
shall give due regard to the Corporation's desires concerning the investment of
the Trust assets. The Trustee shall have the power:
(i) to receive, hold, manage, sell, lease, pledge, mortgage,
exchange, or otherwise dispose of, and otherwise deal in and with, all
or any part of the Trust assets upon such terms, prices, and conditions
as it deems advisable;
(ii) to invest and reinvest the Trust assets in any property
or undivided interest therein, wherever located, including bonds, notes
(secured or unsecured), stock of corporations, time and savings
deposits (including savings deposits and certificates of deposit in the
Trustee or its affiliates if such deposits bear a reasonable rate of
interest), real estate or any other interest therein, shares in
investment trusts and stock in mutual funds and investment companies
(including investment trusts, mutual funds, and investment companies to
which the Trustee or an affiliate thereof may serve as investment
advisor, sponsor, underwriter, manager, administrator, distributor,
custodian, transfer agent, or in any other capacity for which it may
receive a fee), and annuities and other policies of insurance, upon
such terms, prices, and conditions as it deems advisable, without being
restricted by any statute or rule of law governing the investments in
which a trustee may invest funds held by it and without regard to the
proportion that an investment may bear to the entire amount of the
Trust assets;
(iii) with the prior written approval of the Corporation, to
borrow money upon such terms and conditions and for such purposes as it
deems advisable;
(iv) to vote in person or by proxy the stocks, securities, or
other investments that it holds as Trustee; to execute and deliver
proxies, powers of attorney, and other agreements that it deems
advisable; to exchange the securities of any corporation or issuing
authority for other securities upon such terms and conditions as it
deems advisable; to consent to or oppose any corporate action; to pay
all assessments and subscriptions as it deems advisable; to exercise
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options, warrants, or comparable rights and, in general, to
exercise in respect of all stocks, securities, or other investments
that it holds as Trustee all rights, powers, and privileges as might be
exercised by an individual in his own right;
(v) to execute such instruments, deeds, leases, mortgages,
contracts, agreements, assignments, transfers, bills of sale, and other
documents of any kind as it deems advisable in connection with the
powers and duties specified herein; and
(vi) to retain uninvested cash in the Trust either in its
banking department or elsewhere to meet contemplated payments or
transfers from the Trust, or temporarily awaiting investment, without
liability for interest thereon.
(b) The Trustee is empowered to register securities, and to take and
hold title to other property, in the name of the Trustee or in the name of a
nominee without disclosing the Trust. The Trustee also may hold securities in
bearer form and in bulk with securities of the same class and issuer comprising
assets of other fiduciary accounts. The Trustee shall be responsible for any
wrongful acts of any nominee of the Trustee.
(c) The Trustee is empowered to employ such agents, accountants,
actuaries, and attorneys as the Trustee shall deem advisable and to determine
and pay them reasonable compensation without diminution of the compensation of
the Trustee. Such compensation paid by the Trustee shall constitute expenses of
the Trustee and be governed by Section 11 of this Agreement. The Trustee shall
not be liable for any neglect, omission, or wrongdoing of any such agent,
accountant, actuary, or attorney if reasonable care is exercised in the
selection thereof.
(d) The Trustee is empowered to enforce, release, compromise, and settle
any and all claims in favor of or against the Trust or any separate account
under the Trust, whether or not such claims are in litigation, upon such terms
and conditions as the Trustee shall deem advisable.
(e) The Trustee is empowered to pay out of the Trust as a general
charge thereon any and all taxes of
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whatsoever nature assessed against the Trust; provided, however, that, if the
Corporation shall notify the Trustee in writing that in the opinion of its
counsel any such tax is not lawfully assessed, the Trustee, if so requested by
the Corporation, shall contest the validity of such tax in any manner deemed
appropriate by the Corporation or its counsel. The word "taxes", as used herein,
shall be deemed to include any interest or penalties assessed in respect to such
taxes. Unless the Trustee first shall have been indemnified to its satisfaction
by the Corporation, however, the Trustee shall not be required to contest the
validity of any tax, to institute, maintain, or defend against any other action
or proceeding, or to incur any other expense in connection with the Trust,
except to the extent that the Trust is sufficient therefor.
(f) The Trustee is empowered to undertake, maintain, or defend any
litigation or proceeding with respect to the Trust. With respect to any
determination required by the Trustee under this Agreement, the Trustee may rely
upon and shall be fully protected in relying upon any order or determination in
any action or proceeding instituted by the Trustee or to which the Trustee is
made a party.
(g) The Trustee shall have all other powers and duties conferred or
imposed on trustees by law that are consistent with the provisions of this
Agreement and such further powers as may be required to give effect to the
powers and duties of the Trustee expressly set forth in this Agreement.
(h) Notwithstanding any powers granted to the Trustee pursuant to this
Agreement or to applicable law: (i) the Trustee shall have no 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; and (ii) the
Trustee shall have no power to invest any of the Trust assets in life insurance
or annuity contracts or in securities or obligations of the Corporation or any
affiliate of the Corporation.
(i) The Trustee shall not be required to furnish bond, nor shall the
Trustee be required to obtain leave or confirmation from any court, before
exercising any of the powers or performing any of the duties of the Trustee; but
the Trustee at all times shall be obligated to act in good faith and to exercise
reasonable prudence.
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(j) No person dealing with the Trustee shall be obligated to inquire
into the Trustee's powers with respect to any action the Trustee may propose to
take, and the receipt of the Trustee for any payment made or property
transferred to the Trustee by any person shall constitute a complete acquittance
to such person for such payment or property and its proper application.
SECTION 8. ACCOUNTING BY TRUSTEE
The Trustee shall keep accurate and detailed records of all investments,
receipts, disbursements, and all other transactions required to be done,
including such specific records as shall be agreed upon in writing between the
Corporation and the Trustee. All such accounts, books, and records shall be open
to inspection and audit at all reasonable times by the Corporation and the
Beneficiary or Successor. Within 60 days following the close of each fiscal year
of the Corporation and within 60 days after the resignation or removal of the
Trustee, the Trustee shall deliver to the Corporation 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 resignation or removal, 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 interest
paid or receivable being shown separately) 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 resignation or removal, as the case may be. In the absence of the filing in
writing with the Trustee by the Corporation of exceptions or objections to any
such account within 60 days, the Corporation shall be deemed to have approved
such account, and in such case, or upon the written approval by the Corporation
of any such account, the Trustee shall be released, relieved and discharged with
respect to all matters and things set forth in such account as though such
account had been settled by the decree of a court of competent jurisdiction.
SECTION 9. RESPONSIBILITY OF TRUSTEE
(a) The Trustee shall act with the care, skill, prudence, and diligence
under the circumstances then prevailing that a prudent corporate trustee acting
in a like capacity and familiar with such matters would use in the conduct of an
enterprise of a like character and with like aims; except that the Trustee shall
incur no liability to anyone for any action taken in accordance with a
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direction, request, or approval given in accordance with this Agreement.
(b) The Trustee shall not be required to undertake or to defend any
litigation arising in connection with the Trust, unless it be first indemnified
by the Corporation against its prospective costs, expenses, and liabilities, and
the Corporation hereby agrees to indemnify the Trustee for such costs, expenses,
and liabilities. If the Corporation does not make payment to the Trustee of an
agreed indemnity for such costs, expenses, and liabilities in a reasonably
timely manner, the Trustee may obtain payment from the Trust to the extent
permitted under applicable law and in accordance with Section 10.
(c) The Trustee may consult with legal counsel (who may also be counsel
generally or specially for the Trustee or the Corporation) with respect to any
of its duties or obligations hereunder and shall be fully protected in acting or
refraining from acting in accordance with the advice of such counsel.
(d) The Trustee may rely and shall be protected in acting or refraining
from acting upon any written notice, instruction, or request furnished to it
hereunder and believed by it to be genuine and to have been signed or presented
in accordance with this Agreement.
SECTION 10. COMPENSATION AND EXPENSES OF TRUSTEE
The Trustee shall be entitled to receive reasonable compensation for its
services in accordance with its published fee schedule as in effect from time to
time. The Trustee shall be entitled to receive reimbursement of its reasonable
expenses incurred with respect to the administration of the Trust, including
fees incurred by the Trustee in accordance with this Agreement. Such
compensation and expenses shall be payable by the Corporation, but in the
absence of timely payment by the Corporation, shall be paid from the assets of
the Trust and charged against the Trust assets, but the Corporation shall remain
liable therefor and the Trustee shall take reasonable action, including, but not
limited to, institution of legal action, to collect such compensation and
expenses and upon such collection shall deposit the amounts collected in the
Trust. The expenses incurred by the Trustee in connection with any reasonable
action required to obtain payment of such compensation or expenses shall
constitute additional expenses for which the Trustee shall be entitled to
reimbursement under this Section.
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SECTION 11. TENURE AND SUCCESSION OF TRUSTEES
(a) Each Trustee from time to time serving under this Agreement shall
have the right to resign by at least 60 days advance written notice to the
Corporation (unless the Corporation shall accept shorter notice), and the
Corporation may remove any Trustee from time to time serving under this
Agreement by at least 60 days advance written notice to the Trustee (unless the
Trustee shall accept shorter notice). No such resignation or removal shall
become effective, however, until the acceptance of that appointment by a
successor Trustee designated in accordance with Section 11(b) of this Agreement.
(b) If the Trustee, or any successor to it designated in accordance with
this Section 11(b), for any reason shall resign, decline, cease, or otherwise
fail to serve as Trustee or be removed by the Corporation, the Corporation shall
appoint as a successor Trustee a bank or trust company (i) that the Corporation
in its discretion considers an appropriate trustee for the Trust, having due
regard for the objectives, magnitude, and expected duration of the Trust; (ii)
whose trust assets under investment would place it among the 500 largest trust
companies in the United States or that is a national banking association or
established under the laws of one of the states of the United States with gross
assets in excess of $500,000,000; (iii) that is independent and not subject to
the control of the Corporation or any affiliate of the Corporation, or the
Beneficiary or Successor or any affiliate of the Beneficiary or Successor; and
(iv) that is reasonably satisfactory to the Beneficiary, if living. The
preceding determinations shall be made as of the time of appointment of the
successor Trustee.
(c) Upon acceptance of the appointment as such, each successor Trustee
shall be vested with the title to the Trust assets possessed by the predecessor
Trustee less any amounts to which the predecessor Trustee may be entitled
pursuant to Section 10 and shall have all the powers, discretions, and duties of
such predecessor Trustee; provided, however, the predecessor Trustee may reserve
such reasonable amount as it shall deem necessary to provide for expenses and
compensation to which it may be entitled under Section 10 and any taxes or other
sums chargeable against the Trust for which it may be liable, and in the event
that the amount so reserved is insufficient for such purposes, the Trustee shall
be entitled to reimbursement from the Corporation or, in the absence thereof,
the successor Trustee. No successor Trustee shall be required to furnish bond.
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(d) Each successor Trustee may accept as complete and correct and may
rely upon any accounting by any predecessor Trustee and upon any statement or
representation by any predecessor Trustee as to the assets comprising or any
other matter pertaining to the administration of the Trust. No successor Trustee
shall be liable for any act or omission of any predecessor Trustee or have any
duty to enforce or seek to enforce any claim of any kind against any predecessor
Trustee on account of any such act or omission.
SECTION 12. AMENDMENT AND TERMINATION
(a) This Agreement may not be amended or modified in any respect, except
in accordance with this Section 12 (a). At any time and from time to time, the
Corporation may amend this Agreement in any respect, but only by delivery to the
Trustee of an amendment authorized by the Board of Directors of the Corporation
and signed by two officers of the Corporation other than the Beneficiary; except
that no such amendment delivered to the Trustee shall be effective unless the
Corporation shall obtain the written consent to such amendment of the
Beneficiary or Successor and provide the Trustee with such evidence of such
consent as the Trustee reasonably shall require. Any amendment shall be
effective only upon the Trustee's written acceptance of such amendment, which
shall not be unreasonably withheld unless such amendment would affect the
powers, duties, liabilities, or compensation of the Trustee.
(b) The Trust shall terminate on the later of the date on which the
Trust no longer contains any assets or the date on which there exists no claim
against the Corporation in accordance with Section 10 of this Agreement, or if
the Trustee's duties and obligations hereunder are the subject of litigation,
the date of final resolution of such litigation.
SECTION 13. GENERAL PROVISIONS
(a) Any provision of this Agreement prohibited by law shall be
ineffective to the extent of any such prohibition without invalidating the
remaining provisions hereof.
(b) No right or interest of the Beneficiary or Successor under this
Agreement may (either at law or in equity) be anticipated, assigned, encumbered,
alienated, pledged, or subjected to attachment, garnishment, levy, execution, or
other legal or equitable process or claim.
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(c) Nothing in this Agreement shall in any way diminish the rights of
the Beneficiary or Successor to pursue his rights as a general creditor of the
Corporation with respect to the Stay Pay Agreement or otherwise, and the rights
or obligations of the Beneficiary or Successor and the Corporation under the
Stay Pay Agreement shall in no way be increased or diminished by any provision
of this Agreement or action taken in accordance with this Agreement, except that
payments actually received by the Beneficiary or Successor hereunder shall
reduce amounts otherwise due to the Beneficiary or Successor in accordance with
the Stay Pay Agreement.
(d) The Corporation shall promptly provide the Trustee a copy of to the
Stay Pay Agreement and any amendment thereto. The Corporation shall at all times
keep the Trustee informed of the identity of each Successor, if any, of the
Beneficiary under the Stay Pay Agreement.
(e) Except as may otherwise be provided hereunder or agreed to in
writing between the Corporation and the Trustee, the Corporation shall have
responsibility for the preparation and delivery to persons and governmental
agencies of all information, descriptions, reports and returns required by law;
the Trustee shall, however, provide such reasonable assistance to the
Corporation as is necessary or appropriate for the Corporation to perform such
obligations. The Trustee shall be entitled, as it may deem appropriate, to
require the. Corporation or any person having any interest under the Trust, to
provide such certifications and proofs of facts as shall permit the Trustee to
perform its duties under applicable law and regulations adopted thereunder as
may be in effect from time to time, or to exercise the powers granted the
Trustee under the Trust.
(f) The creation or maintenance of the Trust shall not entitle any
person to continued employment with the Corporation or any of its affiliates or
otherwise affect any such employment relationship, nor shall it entitle any
person to continued status as a director or officer of the Corporation or any of
its affiliates.
(g) This Agreement may be executed in counterparts, each of which shall
be considered an original agreement.
(h) All notices, requests, consents, and other communications required
hereunder shall be in writing and shall be effective when received:
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If to the Corporation, at: Argo-Tech Corporation
------------------------- 00000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: The Board of
Directors
If to the Trustee, at: Society National Bank
--------------------- 000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Mr. Xxxxx XxXxxxx
If to the Beneficiary
---------------------
or Successor at: Xxxxxxx X. Xxxxxxxx
--------------------- 00000 Xxxxxxxxx Xxxxx
Xxxxx, Xxxx 00000
or if any of the foregoing or its or his successors shall have designated a
different address by written notice, then at the last address so designated.
(i) This Agreement shall be governed by and construed in accordance
with the laws of the State of Ohio.
IN WITNESS WHEREOF, the Corporation has caused this Agreement to be
executed as of the date first above written, and the Trustee has caused this
Agreement to be executed on October 28, 1994.
ARGO-TECH CORPORATION
By: /s/ Xxxx X. Xxxx
--------------------------
Title: Vice President,
General Counsel and Secretary
SOCIETY NATIONAL BANK
By: /s/ Xxxxxxxxx X. Xxxx
--------------------------
Title: Trust Officer
And: /s/ [Illegible]
--------------------------
Title: Vice President
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EXHIBIT 2(a)
------------
Cash in the following amount has been transferred and delivered to the
Trustee, as of the date of this Agreement, to be held and administered in
accordance with the foregoing Trust Agreement:
$344,055.00
19
EXHIBIT 3(a)(1)
---------------
CERTIFICATE UNDER SECTION 3 (a)(1) OF ARGO-TECH CORPORATION TRUST AGREEMENT
The undersigned hereby certifies to _________________________________
as Trustee (the "Trustee") under the Argo-Tech Corporation Trust Agreement,
dated _________________, 1994 (the "Trust Agreement"), that:
(1) The undersigned is the Beneficiary or a Successor.
(2) The undersigned, or the Beneficiary through whom the undersigned,
as Successor, claims, has complied with all terms of and all conditions have
occurred under the Stay Pay Agreement in order for the undersigned to receive
currently the Stay Payment.
(3) The Trustee is hereby directed to pay the undersigned in accordance
with Section 3 (a) of the Trust Agreement.
(4) The undersigned hereby acknowledges and agrees, on behalf of
himself and his heirs, executor, administrators, successors, and assigns, that
any such payment received by the undersigned shall constitute a payment by the
Corporation under the Stay Pay Agreement and shall satisfy the Corporation's
liability with respect thereto to the extent of such payment and that if and to
the extent that a final, unappealable order of a court of competent jurisdiction
shall determine that the undersigned was not entitled to the Stay Payment, the
undersigned shall be liable therefor to the Corporation.
(5) Accompanying this Certificate is an affidavit certifying that this
Certificate is true, correct, and complete to the best of the undersigned's
knowledge and binding upon the undersigned and the undersigned's heirs,
executors, administrators, successors, and assigns, and that copies of this
Certificate have been delivered to the Corporation in accordance with Section
13(h) of the Trust Agreement.
20
(6) All capitalized terms used in this Certificate that are not defined
herein have the meanings given to those terms under the Trust Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Certificate this
____ day of ________________
---------------------------------
(Signature)
---------------------------------
(Printed or typed name)
21
EXHIBIT 3(a)(2)
----------------
AFFIDAVIT
---------
_____________________________________ being first duly sworn, deposes
and says:
1. That the statements, representations, and acknowledgments made by
the undersigned in the Certificate attached hereto are true, correct, and
complete to the best of the undersigned's knowledge;
2. That the statements, representations, acknowledgments, and
agreements made by the undersigned in the Certificate attached hereto are
binding upon the undersigned and the undersigned's heirs, executors,
administrators, successors, and assigns; and
3. That copies of the Certificate attached hereto have been delivered
to Argo-Tech Corporation, to the attention of its Board of Directors.
---------------------------------
(signature)
STATE OF _________________
COUNTY OF _________________
Before me, a Notary Public in and for said State and County, personally
appeared the above named _______________________________________ who, in my
presence, subscribed and swore to the foregoing instrument and acknowledged that
the same is his or her voluntary act and deed.
IN WITNESS WHEREOF, I have hereunto set my hand and seal at
________________________, _____________________, this ____ day of _____________,
19__.
---------------------------------
Notary Public
22
EXHIBIT 3(b)
------------
LETTER TO BENEFICIARY OR SUCCESSOR UNDER SECTION 3 (b) OF ARGO-TECH
CORPORATION TRUST AGREEMENT
_______________________
_______________________
_______________________
Dear __________________:
Enclosed is a [bank] [cashier's] check in the amount of
$___________________ in payment to you by Argo-Tech Corporation under the Stay
Pay Agreement (as defined in the Trust Agreement). [This payment is net of
applicable tax withholding as follows: ____________ ________.] By cashing the
enclosed check, you acknowledge and agree that $__________________ [pre-tax
withholding amount] has been paid to you by Argo-Tech Corporation under Stay Pay
Agreement.
[Trustee]
By:
---------------------------------
Title:
