Exhibit 10.43
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PORTOLA PACKAGING, INC.
MANAGEMENT DEFERRED COMPENSATION
PLAN TRUST AGREEMENT
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TABLE OF CONTENTS
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Section Page
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ARTICLE I
TITLE AND DEFINITIONS
1.1 Title. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II
ADMINISTRATION
2.1 Trustee Responsibility . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.2 Maintenance of Records . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE III
FUNDING
3.1 Contributions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
3.2 Subtrusts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE IV
PAYMENTS FROM TRUST FUND
4.1 Payments to Trust Beneficiaries. . . . . . . . . . . . . . . . . . . . . 4
4.2 Trustee Responsibility Regarding Payments to Trust
Beneficiaries When the Company Is Insolvent. . . . . . . . . . . . . . . 6
4.3 Payments to the Company. . . . . . . . . . . . . . . . . . . . . . . . . 7
4.4 Trustee Compensation and Expenses; Other Fees and Expenses . . . . . . . 7
4.5 Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
4.6 Alienation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
4.7 Claims for Benefits. . . . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE V
INVESTMENT OF TRUST ASSETS
5.1 Investment of Subtrust Assets. . . . . . . . . . . . . . . . . . . . . . 8
5.2 Disposition of Income. . . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE VI
TRUSTEE
6.1 General Powers and Duties. . . . . . . . . . . . . . . . . . . . . . . . 8
6.2 Records. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
6.3 Third Persons. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
6.4 Limitation on Obligation of Trustee. . . . . . . . . . . . . . . . . . .10
ARTICLE VII
RESIGNATION AND REMOVAL OF TRUSTEE
7.1 Method and Procedure . . . . . . . . . . . . . . . . . . . . . . . . . .10
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ARTICLE VIII
AMENDMENT AND TERMINATION
8.1 Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
8.2 Duration and Termination . . . . . . . . . . . . . . . . . . . . . . . .12
8.3 Distribution upon Termination. . . . . . . . . . . . . . . . . . . . . .13
ARTICLE IX
MISCELLANEOUS
9.1 Limitation on Participants' Rights . . . . . . . . . . . . . . . . . . .13
9.2 Receipt or Release . . . . . . . . . . . . . . . . . . . . . . . . . . .13
9.3 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
9.4 Headings, etc., Not Part of Agreement. . . . . . . . . . . . . . . . . .14
9.5 Execution in Counterparts. . . . . . . . . . . . . . . . . . . . . . . .14
9.6 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . .14
9.7 Indemnity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
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PORTOLA PACKAGING, INC.
MANAGEMENT DEFERRED COMPENSATION PLAN TRUST AGREEMENT
This Trust Agreement made and entered into this ___ day of December, 1996,
by and between Portola Packaging, Inc., a Delaware corporation (the "Company"),
and First American Trust Company (hereinafter called "Trustee"), evidences the
terms of a trust for the benefit of certain employees, former employees and
their designated beneficiaries (hereinafter collectively called "Trust
Beneficiaries") who will be entitled to receive benefits under the Portola
Packaging, Inc. Management Deferred Compensation Plan ("Plan").
WITNESSETH:
WHEREAS, the Company wishes to establish an irrevocable trust (hereinafter
called the "Trust") and to transfer to the Trust assets which shall be held
therein, subject to the claims of the Company's creditors in the event of the
Company's insolvency, until paid to the Trust Beneficiaries as benefits in such
manner and at such times as required hereunder; and
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
("ERISA").
NOW, THEREFORE, it is mutually understood and agreed as follows:
ARTICLE I
TITLE AND DEFINITIONS
SECTION 1.1 TITLE.
This Trust Agreement shall be known as the Portola Packaging, Inc.
Management Deferred Compensation Plan Trust Agreement.
SECTION 1.2 DEFINITIONS.
The following words, when used in this Trust Agreement with initial letter
capitalized, shall have the meanings set forth below:
"General Fund" shall mean that portion of the Trust fund which is not
allocated to a Subtrust.
"Plan" shall mean the Portola Packaging, Inc. Management Deferred
Compensation Plan.
"Subtrust" shall mean a separate subtrust established for a Participant
pursuant to Section 3.2.
Capitalized terms not defined above shall be defined in accordance with the
Plan.
ARTICLE II
ADMINISTRATION
SECTION 2.1 TRUSTEE RESPONSIBILITY.
By its acceptance of this Trust, the Trustee agrees to make payments under
this Trust to Trust Beneficiaries in accordance with the provisions of this
Trust Agreement.
SECTION 2.2 MAINTENANCE OF RECORDS.
The Committee shall have the duty and responsibility to maintain all
individual Trust Beneficiary records and to prepare and file all reports and
other information required by any federal or state law or regulation relating to
the Trust and the Trust assets.
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ARTICLE III
FUNDING
SECTION 3.1 CONTRIBUTIONS.
(a) The Company hereby deposits with the Trustee in trust the sum of
$100.00 to be held in the General Fund of the Trust.
(b) The Company shall contribute to the Trust an amount equal to the
amount deferred by each Participant employed by the Company for the Plan Year
and the Company Contribution Amount, if any, for each Participant employed by
the Company for the Plan Year; in no event shall these contributions be made
after the Company's tax return due date for that Plan Year. The Company shall
also contribute cash to the Trust in an amount at least equal to the "cost of
insurance" (as defined in the Policies) to provide the death benefits described
in Section 6.5 of the Plan; provided that such obligation shall not apply with
respect to a Policy if the applicable insured is no longer either a Participant
or employed by the Company.
(c) Except as provided otherwise herein, all contributions received
pursuant to (a) and (b) above, together with the income therefrom and any
increment thereon, shall be held, managed and administered by the Trustee as a
single Trust pursuant to the terms of this Trust Agreement without distinction
between principal and income.
(d) The principal of the Trust, and any earnings thereon shall be
held separate and apart from other funds of the Company and shall be used
exclusively for the uses and purposes of Plan Participants and Beneficiaries and
general creditors of the Company as herein set forth. Trust Beneficiaries shall
not have any preferred claim on, or any beneficial ownership interest in, any
assets of the Trust prior to the time such assets are paid to Trust
Beneficiaries as benefits as provided in Section 4.1, and all rights created
under this Trust Agreement shall be mere unsecured contractual rights of Trust
Beneficiaries against the Company or Trust. Any assets held by the Trust will
be subject to the claims of the Company's general creditors under federal and
state law in the event of Insolvency, as defined in Section 4.2(a).
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SECTION 3.2 SUBTRUSTS.
(a) If directed by the Committee, the Trustee shall establish a
separate Subtrust for a Participant and credit the amount of contributions made
with respect to such Participant to that Participant's Subtrust. Each Subtrust
shall reflect an individual interest in the assets of the Trust fund and shall
not require any segregation of particular assets.
(b) Following the allocation of assets to Subtrusts pursuant to
Section 3.2(a), the Trustee shall allocate investment earnings and losses of the
Trust fund among the Subtrusts in accordance with Section 5.2. Payment of
benefits to a Participant (or his or her Beneficiary) shall be charged against
the Subtrust established or maintained for such Participant.
(c) Amounts allocated to a Participant's Subtrust may not be utilized
to pay benefits to another Participant or Beneficiary of another Participant.
Following payment of a Participant's entire benefit under the Plan, including
payment of an in-service withdrawal under Section 6.3 (whether by the Trustee
pursuant to the terms of this Trust Agreement or by the Company or by a
combination thereof), any amounts remaining allocated to that Participant's
Subtrust (other than a Policy held with respect to such Participant) shall be
transferred by the Trustee to the Company. Upon a Participant's termination of
employment from the Company for a reason other than death, the Committee may
direct the Trustee (1) to transfer the Policy to the Company, (2) to designate a
new beneficiary (which may be the Trustee or the Company) under the Policy or
(3) to cash in the applicable Policy and transfer the proceeds to the Company.
ARTICLE IV
PAYMENTS FROM TRUST FUND
SECTION 4.1 PAYMENTS TO TRUST BENEFICIARIES.
(a) The Trustee shall make payments of benefits to Trust
Beneficiaries from the assets of the Trust, if and to the extent such assets are
available for distribution, in accordance with instructions from the Committee
as to the time, amount and manner of such payments. The Committee shall direct
the Trustee to pay (or to commence to pay) to a Participant (or, in the case of
the Participant's death, to the Participant's Beneficiary) the benefits,
excluding amounts described in Section 6.2 of the Plan, payable to such
Participant under the Plan (the "Benefit Amount"). If Subtrusts are
established, the
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Trustee shall make such payment only from funds allocated to the
Participant's Subtrust plus the General Fund, if any.
(b) The Committee shall have full authority and responsibility to
determine the correct time and amount of payment of the Benefit Amount. In
making such determination, the Committee shall be governed by the terms of the
Plan and this Trust Agreement.
(c) Any obligation to a Trust Beneficiary under this Trust Agreement
is also an obligation of the Company to the extent not paid from the Trust.
Accordingly, to the extent payments to a Trust Beneficiary are discontinued
pursuant to Section 4.2, the Company shall be obligated to pay the Trust
Beneficiary the same amount (plus applicable interest) from its general assets.
If the Trust assets are not sufficient (or if the amount credited to a Subtrust,
if applicable, is not sufficient) to make the payment of the Benefit Amount to a
Trust Beneficiary in accordance with the determination by the Committee, the
Company shall make the balance of such payment. Notwithstanding the foregoing,
neither the Trustee nor the Company shall have any obligation to pay any amounts
described in Section 6.5 of the Plan; all such amounts shall be payable solely
from the proceeds of the Policy, if any.
(d) Unless a Trust Beneficiary furnishes documentation in form and
substance satisfactory to the Trustee that no withholding is required with
respect to a payment of benefits from the Trust, the Trustee shall deduct from
any such benefit payment any federal, state or local taxes required by law to be
withheld and shall be responsible for payment and reporting of such withheld
taxes to the appropriate taxing authorities. The Trustee shall inform the
Company of the amounts so remitted.
(e) The Trustee shall provide the Company and the Committee with
written confirmation of the fact and time of any payment hereunder within ten
business days after making any payment to a Trust Beneficiary.
(f) Upon a Participant's termination of employment for a reason other
than death, the Trustee shall, at the direction of the Committee, (1) transfer
ownership of the applicable Policy to the Company, (2) designate a new
beneficiary (which may include the Trustee or the Company), or (3) cash in the
applicable Policy and transfer the proceeds to the Company. In addition any
cash previously received with respect to such Policy not used to pay benefits to
the Participant shall be transferred to the Company.
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SECTION 4.2 TRUSTEE RESPONSIBILITY REGARDING PAYMENTS TO TRUST BENEFICIARIES
WHEN THE COMPANY IS INSOLVENT.
(a) The Company shall be considered "Insolvent" for purposes of this
Trust Agreement if (i) the Company is unable to pay its debts as they become
due, or (ii) is subject to a pending proceeding as a debtor under the United
States Bankruptcy Code.
(b) At all times during the continuance of the Trust, the principal
and income of the Trust shall be subject to claims of general creditors of the
Company as hereinafter set forth, and at any time the Trustee has actual
knowledge, or has determined, that the Company is Insolvent, the Trustee shall
deliver any undistributed principal and income in the Trust to satisfy such
claims as a court of competent jurisdiction may direct. The Company, through
its board of directors or any executive officer, shall advise the Trustee
promptly in writing of the Company's Insolvency. If the Trustee receives such
notice, or otherwise receives written notice from a third party which the
Trustee, in its sole discretion, deems reliable and responsible, the Trustee
shall discontinue payments to all Trust Beneficiaries, shall hold the Trust
assets for the benefit of the Company's general creditors, and shall resume
payments to Trust Beneficiaries in accordance with Section 4.1 of this Trust
Agreement only after the Trustee has determined that the Company is not
Insolvent or is no longer Insolvent. Unless the Trustee has actual knowledge of
the Company's Insolvency or has received notice from a third party alleging that
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 solvency of the Company as may be furnished to the Trustee which
will give the Trustee a reasonable basis for making a determination concerning
its solvency. Nothing in this Trust Agreement shall in any way diminish any
rights of Trust Beneficiaries to pursue their rights as general creditors of the
Company with respect to benefits payable hereunder or otherwise.
(c) If the Trustee discontinues payments of benefits from the Trust
pursuant to Section 4.2(b) and subsequently resumes such payments, the first
payment following such discontinuance shall include the aggregate amount of all
payments which would have been made to Trust Beneficiaries less the aggregate
amount of payments made to Trust Beneficiaries by the Company in lieu of the
payments provided for hereunder during any such period of discontinuance,
together with interest compounded monthly at 120% of the short-term applicable
federal rates (as defined in Section 1274(d) of the Code) in effect for the
months in the period of such discontinuance. Such interest shall be in lieu of
any earnings payable on such delayed payments.
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SECTION 4.3 PAYMENTS TO THE COMPANY.
Except as provided in Sections 3.2(c), 4.1(f) or 4.2, neither the Committee
nor the Company shall have the right or power to direct the Trustee to return to
the Company or to divert to others any of the Trust assets before the Trust is
terminated pursuant to Section 8.2.
SECTION 4.4 TRUSTEE COMPENSATION AND EXPENSES; OTHER FEES AND EXPENSES.
The Company shall pay the Trustee such reasonable compensation for its
services as shall be agreed upon from time to time by the Company and the
Trustee, and the Trustee shall be reimbursed by the Company for its expenses
that are reasonably necessary and incident to its administration of the Trust.
Following reasonable consultation with the Company, such expenses shall include
fees of counsel and other advisors, if any, incurred by the Trustee for the
purpose of determining its responsibilities under the Trust. Such compensation,
expenses or fees, as well as all other administrative fees and expenses, shall
be paid from Trust assets unless paid directly by the Company.
SECTION 4.5 TAXES.
The Trustee shall not be personally liable for any real and personal
property taxes, income taxes or other taxes of any kind levied or assessed under
the existing or future laws against the Trust assets. Such taxes shall be paid
directly from the Trust assets unless paid by the Company, in its discretion.
SECTION 4.6 ALIENATION.
The benefits, proceeds, payments or claims of Trust Beneficiaries payable
from the Trust assets shall not be subject in any manner to anticipation,
alienation, sale, transfer, assignment, pledge, encumbrance, charge,
garnishment, execution or levy of any kind, either voluntary or involuntary.
Any attempt to anticipate, alienate, sell, transfer, assign, pledge, encumber,
garnish, levy or otherwise dispose of or execute upon any right or benefits
payable hereunder shall be void. The Trust assets shall not in any manner be
liable for or subject to the debts, contracts, liabilities, engagements or torts
of any Trust Beneficiary entitled to benefits hereunder and such benefits shall
not be considered an asset of Trust Beneficiary in the event of his insolvency
or bankruptcy.
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SECTION 4.7 CLAIMS FOR BENEFITS.
Any claims for benefit payments from the assets of the Trust shall be
resolved in accordance with Section 7.8 of the Plan.
ARTICLE V
INVESTMENT OF TRUST ASSETS
SECTION 5.1 INVESTMENT OF SUBTRUST ASSETS.
The Trustee shall invest and manage the assets of the Trust (and each
Subtrust, if any) in accordance with written directions from the Committee.
SECTION 5.2 DISPOSITION OF INCOME.
All income received by the Trust shall be reinvested. Any income that is
attributable to the amount credited to a Subtrust in accordance with Section
3.2, and income thereon, shall be credited to such Subtrust and reinvested.
ARTICLE VI
TRUSTEE
SECTION 6.1 GENERAL POWERS AND DUTIES.
Subject to written directions from the Committee regarding the investment
of Trust assets, the Trustee, on behalf of Trust Beneficiaries, shall have all
powers necessary to administer the Trust, including, but not by way of
limitation, the following powers in addition to other powers as are set forth
herein or conferred by law:
(a) To hold, invest and reinvest the principal or income of the Trust
in bonds, common or preferred stock, other securities, or other personal, real
or mixed tangible or intangible property (including investment in deposits with
the Trustee which bear a reasonable interest rate, including without limitation
investments in trust savings accounts, certificates of deposit, time
certificates or similar investments or deposits maintained by the Trustee);
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(b) To hold, invest and reinvest the principal or income of the Trust
in the Policies, direct investments under the Policies and take any other action
regarding the Policies, as specifically directed by the Committee (including
those specified pursuant to Section 3.2(c) or 4.1(f)) and to enter into
split-dollar life insurance agreements with Participants pursuant to which each
Participant designates the beneficiary to receive the portion of the death
benefits described in Section 6.5 of the Plan;
(c) To pay and provide for the payment of all benefits to Trust
Beneficiaries in accordance with the provisions of this Trust Agreement;
(d) To retain noninterest bearing deposits or a cash balance with the
Trustee of so much of the funds as may be determined to be temporarily held
awaiting investment or payment of benefits or expenses;
(e) To compromise, arbitrate or otherwise adjust claims in favor of
or against the Trust and to institute, compromise and defend actions and
proceedings; provided, however, that in the case of a dispute between a Trust
Beneficiary and the Company or the Committee over the interpretation of this
Trust Agreement, the Company or the Committee, as the case may be, will be
authorized and required to resolve such dispute;
(f) To vote any stock, bonds or other securities of any corporation
or other issuer at any time held in the Trust; to otherwise consent to or
request any action on the part of any such corporation or other issuer; to give
general or special proxies or powers of attorney, with or without power of
substitution; to participate in any reorganization, recapitalization,
consolidation, merger or similar transaction with respect to such stocks, bonds
or other securities and to deposit such stocks, bonds or other securities in any
voting trust, or with any protective or like committee, or with a trustee, or
with the depositories designated thereby; to exercise any subscription rights
and conversion privileges; and to generally exercise any of the powers of an
owner with respect to the stocks, bonds or other securities or properties in the
Trust; and
(g) Generally, to do all such acts, execute all such instruments,
take all such proceedings, and exercise all such rights and privileges with
relation to the property constituting the Trust as if the Trustee were the
absolute owner thereof.
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SECTION 6.2 RECORDS.
The Trustee shall keep a full, accurate and detailed record of all
transactions of the Trust which the Company shall have the right to examine at
any time during the Trustee's regular business hours. Within 90 days after the
close of each calendar year and within 15 days after the removal or resignation
of the Trustee, the Trustee shall furnish the Company with a statement of
account with respect to the Trust. This account shall set forth all receipts,
disbursements and other transactions (including sales and purchases) effected by
the Trustee during said year (or until its removal or resignation), shall show
the investments at the end of the year (or date of removal or resignation),
including the cost and fair market value of each item, and the amounts allocated
to each Subtrust.
SECTION 6.3 THIRD PERSONS.
A third person dealing with the Trustee shall not be required to make any
inquiry as to whether the Company or the Committee has instructed the Trustee,
or the Trustee is otherwise authorized, to take or omit any action, and shall
not be required to follow the application by the Trustee of any money or
property which may be paid or delivered to the Trustee.
SECTION 6.4 LIMITATION ON OBLIGATION OF TRUSTEE.
The Trustee shall have no responsibility for the validity of the Plan or of
the Trust and does not guarantee the payment of any amount which may become
payable to any Trust Beneficiary under the terms hereof.
ARTICLE VII
RESIGNATION AND REMOVAL OF TRUSTEE
SECTION 7.1 METHOD AND PROCEDURE.
(a) The Trustee may resign at any time by delivering to the Company a
written notice of resignation, to take effect on a date specified therein, which
shall be not less than 30 days after the delivery thereof, unless such notice
shall be waived.
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(b) The Company may remove the Trustee at any time by delivering to
the Trustee a written notice of removal, to take effect on a date specified
therein, which shall be not less than 30 days after the delivery thereof, unless
such notice shall be waived.
(c) In case of the resignation or removal of the Trustee, the Trustee
shall have a right to a settlement of its accounts, which may be made, at the
option of the Trustee, either (1) by a judicial settlement in an action
instituted by the Trustee in a court of competent jurisdiction, or (2) by an
agreement of settlement between the Trustee and the Company.
(d) Upon such settlement, all right, title and interest of such
Trustee in the assets of the Trust, and all rights and privileges under the
Trust theretofore vested in such Trustee shall vest in the successor Trustee,
and thereupon all liabilities of such Trustee shall terminate; provided,
however, that the Trustee shall execute, acknowledge and deliver all documents
and written instruments which are necessary to transfer and convey all the
right, title and interest in the assets of the Trust, and all rights and
privileges in the Trust to the successor Trustee.
(e) The Company, upon receipt of or giving notice of the resignation
or removal of the Trustee, shall promptly appoint a successor Trustee. The
successor Trustee shall be a bank or trust company qualified and authorized to
do trust business in the State of California. In the event of the failure or
refusal of the Company to appoint such a successor Trustee within 30 days after
the notice of resignation or removal, the Trustee may secure, at the expense of
the Company, the appointment of such successor Trustee by an appropriate action
in a court of competent jurisdiction. Any successor Trustee so appointed may
qualify by executing and delivering to the Company an instrument accepting such
appointment and, upon delivery, such successor Trustee, without further act,
shall become vested with all the right, title and interest, and all rights and
privileges of the predecessor Trustee with like effect as if originally named as
the Trustee herein.
ARTICLE VIII
AMENDMENT AND TERMINATION
SECTION 8.1 AMENDMENTS.
The Company shall have the right to amend (but, except as otherwise
provided in Section 9.2, not terminate) the Trust from time to time and to amend
further or cancel any such amendment. Any
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amendment shall be stated in an instrument in writing executed by the Company
and the Trustee, and this Trust Agreement shall be amended in the manner and at
the time therein set forth, and the Company and the Trustee shall be bound
thereby; provided, however:
(a) No amendment shall have any retroactive effect so as to deprive
any Trust Beneficiary of any benefits already vested under the Plan, or create a
reversion of Trust assets to the Company except as already provided in this
Trust Agreement, other than such changes, if any, as may be required in order
for the Trust to be considered a component of a plan described in Section 9.3;
(b) No amendment shall make the Trust revocable; and
(c) No amendment shall increase the duties or liabilities of the
Trustee without its written consent.
SECTION 8.2 DURATION AND TERMINATION.
This Trust shall not be revocable and shall continue until the earliest of
(a) the date on which Plan Participants and their Beneficiaries are no longer
entitled to benefits pursuant to the terms of the Plan, (b) the receipt by the
Company of the written approval of a termination of the Trust by all
Participants or Beneficiaries who are entitled to benefits under the Plan, (c)
the exhaustion of all appeals of a final determination of a court of competent
jurisdiction that the interest in the Trust of Trust Beneficiaries is includable
for federal income tax purposes in the gross income of such Trust Beneficiaries,
without such determination having been reversed (or the earlier expiration of
the time to appeal), (d) the expiration of the maximum length of time for which
Trusts may be established under any applicable state law, (e) a determination of
the Company to terminate the Trust because applicable law requires it to be
amended in a way that could make it taxable to its beneficiaries and failure to
so amend the Trust would subject the Company to material penalties, or (f) a
determination of the Company to terminate the Trust because the Company
concludes, after consulting with legal counsel, that judicial authority or the
opinion of the U.S. Department of Labor (as expressed in its proposed or final
regulations, advisory opinions, or similar administrative announcements) creates
a significant possibility that the Trust will not be considered a component of
an unfunded plan maintained primarily to provide deferred compensation for a
select group of management or highly compensated employees as described in
Section 201(2) of the Employee Retirement Income Security Act of 1974, as
amended.
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SECTION 8.3 DISTRIBUTION UPON TERMINATION.
Upon termination of this Trust, any remaining assets shall be returned to
the Company in such proportions as the Committee directs, and the Trustee shall
provide a final account to the Company and the Committee.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 LIMITATION ON PARTICIPANTS' RIGHTS.
Participation in the Trust shall not give a Participant the right to be
retained in the Company's employ or any right or interest in the Trust other
than as herein provided. The Company reserves the right to dismiss Participants
without any liability for any claim either against the Trust, except to the
extent provided herein, or against the Company. All benefits payable hereunder
shall be provided solely from the assets of the Trust.
SECTION 9.2 RECEIPT OR RELEASE.
Any payment to a Trust Beneficiary in accordance with the provisions of the
Trust shall, to the extent thereof, be in full satisfaction of all claims
against the Trustee and the Company, and the Trustee may require such Trust
Beneficiary, as a condition precedent to such payment, to execute a receipt and
release to such effect.
SECTION 9.3 GOVERNING LAW.
This Trust Agreement and the Trust hereby created shall be construed,
administered and governed in all respects under applicable federal law, and to
the extent that federal law is inapplicable, under the laws of the State of
California; provided, however, that if any provision is susceptible to more than
one interpretation, such interpretation shall be given thereto as is consistent
with the Trust being (a) classified as a grantor trust as defined in Sections
671 et seq. of the Code and (b) classified as a component of an unfunded plan
maintained primarily to provide deferred compensation for a select group of
management or highly compensated employees, as described in Section 201(2) of
the Employee Retirement Income Security Act of 1974, as amended. If any
provision of this instrument shall be held by a court of
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competent jurisdiction to be invalid or unenforceable, the remaining provisions
hereof shall continue to be fully effective.
SECTION 9.4 HEADING, ETC., NOT PART OF AGREEMENT.
Headings and subheadings in this Trust Agreement are inserted for
convenience of reference only and are not to be considered in the construction
of the provisions hereof.
SECTION 9.5 EXECUTION IN COUNTERPARTS.
This Trust Agreement may be executed in several counterparts, each of which
shall be deemed an original, and said counterparts shall constitute but one and
the same instruments, which may be sufficiently evidenced by any one
counterpart.
SECTION 9.6 SUCCESSORS AND ASSIGNS.
This Trust Agreement shall inure to the benefit of, and be binding upon,
the parties hereto and their successors and assigns.
SECTION 9.7 INDEMNITY.
(a) Except in the case of liabilities and claims arising out of the
Trustee's willful misconduct or gross negligence, the Company shall indemnify
and hold the Trustee harmless from and against all liabilities and claims
(including reasonable attorney's fees and expenses in defense thereof) arising
out of or in any way connected with the Plan or the Trust fund or the
management, operation, administration or control thereof and based in whole or
in part on:
(1) Any act or inaction of the Company or the Committee or
(2) Any act or inaction of the Trustee resulting from the
absence of proper directions hereunder.
(b) The Trustee does not warrant and shall not be liable for any tax
consequences associated with the Trust or the Plan.
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(c) The Trustee shall not be liable for the inadequacy of the Trust
to pay all amounts due under the Plan.
IN WITNESS WHEREOF the undersigned have executed this Trust Agreement as of
the date first written above.
PORTOLA PACKAGING, INC. TRUSTEE
By: /s/ Robert R. Strickland FIRST AMERICAN TRUST
----------------------------- COMPANY
By: /s/ Joanne Jordan
----------------------------------
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