Common use of Indemnification Generally; Etc Clause in Contracts

Indemnification Generally; Etc. 36 (a) By the Shareholder Group in Favor of the Buyer Group 36 (b) By Each Shareholder in Favor of the Buyer Group 38 (c) By Parent and Acquisition Sub in Favor of the Company and the Shareholders.................................. 38 9.2. Limitations on Indemnification 38 (a) Indemnity Baskets for the Shareholders 38 (b) Indemnity Limitations for the Shareholders 39 (c) Indemnity Baskets for the Buyer Group 39 (d) Indemnity Limitations for the Buyer Group 39 9.3. Assertion of Claims 39 9.4. Notice and Defense of Third Party Claims 40 9.5. Survival of Representations and Warranties 41 9.6. No Third Party Reliance 41 9.7. Remedies Exclusive 41 SECTION 10. ADDITIONAL AGREEMENTS 41 10.1. Expenses 41 10.2. Disclosure of Information; Noncompetition 42 10.3. Use of Name 43 10.4. Relationships with Vendors and Customers 43 10.5. Termination of Affiliate Transactions 43 10.6. Amendment and Termination of ESOP 44 10.7. 401(k) Plan Participation 44 10.8. Accrual of Closing Bonus Payments 44 10.9. ESOP Loan Interest Payments 44 10.10. Dissolution of Pakka Plastics S.A. de C.V. 44 10.11. Disclosure Covenant of the Company and the Indemnifying Shareholders.................................. 45 10.12. Transfer of Life Insurance Policy 45 SECTION 11. TERMINATION; EFFECT OF TERMINATION 46 11.1. Termination 46 11.2. Effect of Xxxxxxxxxxx 00 XXXXXXX 00. MISCELLANEOUS PROVISIONS 47 12.1. Amendment 47 12.2. Extension; Waiver 47 12.3. Entire Agreement 47 12.4. Severability 47 12.5. No Third-Party Beneficiaries; Successors and Assigns 48 12.6. Headings 48 12.7. Notices 48 12.8. Counterparts 50 12.9. Governing Law 50 12.10. Jurisdiction; Venue 50 12.11. Incorporation of Exhibits and Schedules 50 12.12. Construction 50 12.13. Remedies 50 12.14. Waiver of Jury Trial 50 SCHEDULES AND EXHIBITS Annex I - Definitions Schedule I - Shareholders; Capitalization Schedule II - Assets To Be Transferred Exhibit A - Form of Certificate of Merger Exhibit B - Form of Amended and Restated Articles of Incorporation of the Company Exhibit C - Form of Employment Agreement Exhibit D - Form of Noncompetition and Consulting Agreement AGREEMENT AND PLAN OF REORGANIZATION dated as of January 14, 1997, among XXXXX PLASTICS CORPORATION, a Delaware corporation ("Parent"), PACKERWARE ACQUISITION CORPORATION, a Kansas corporation and wholly- owned subsidiary of Parent ("Acquisition Sub"), PACKERWARE CORPORATION, a Kansas corporation (the "Company"), and THE SHAREHOLDERS OF THE COMPANY NAMED ON SCHEDULE I attached hereto (each, a "Shareholder", and collectively the "Shareholders"). The Company is engaged in the business (the "Subject Business") of manufacturing, marketing and selling injection and blow-molded plastic open top containers, drink cups, housewares and lawn and garden products. The respective Boards of Directors of each of Parent, Acquisition Sub and the Company have duly approved and adopted this Agreement and Plan of Reorganization (this "Agreement"), the Certificate of Merger in substantially the form of EXHIBIT A attached hereto (the "Certificate of Merger") and the proposed merger (the "Merger") of Acquisition Sub with and into the Company in accordance with, and subject to, the terms and conditions of this Agreement, the Certificate of Merger and the Kansas General Corporation Code (the "Kansas Statute") whereby, among other things, each issued and outstanding share of common stock, $.10 par value (the "Company Common Stock"), of the Company not owned of record by the Company will be converted into the right to receive cash in the manner set forth in Section 2 of this Agreement and the Certificate of Merger. Capitalized terms used but not defined herein have the meanings set forth in ANNEX I hereto.

Indemnification Generally; Etc. 36 37 (a) By the Shareholder Group in Favor of the Buyer Group 36 37 (b) By Each Shareholder the Shareholders in Favor of the Buyer Group 38 (c) By Parent Parent, Buyer and Acquisition Sub in Favor of the Company and the Shareholders.................................. 38 9.28.2. Limitations on Indemnification 38 39 (a) Indemnity Baskets for the Shareholders 38 Shareholder Group 39 (b) Indemnity Limitations for the Shareholders Shareholder Group 39 (c) Indemnity Baskets for the Buyer Group 39 (d) Indemnity Limitations for the Buyer Group 39 9.38.3. Assertion of Claims 39 9.4Claims; Payment of Claims; Forfeiture of Preferred Stock............................................... 40 8.4. Notice and Defense of Third Party Claims 40 9.541 8.5. Survival of Representations and Warranties 41 9.642 8.6. No Third Party Reliance 41 9.743 8.7. Remedies Exclusive 41 43 SECTION 109. ADDITIONAL AGREEMENTS 41 10.143 9.1. Expenses 41 10.243 9.2. Disclosure of Information; Noncompetition 42 10.344 9.3. Use of Name 43 10.444 9.4. Relationships with Vendors and Customers 43 10.545 9.5. Termination of Affiliate Transactions 43 10.645 SECTION 10. Amendment and Termination of ESOP 44 10.7. 401(k) Plan Participation 44 10.8. Accrual of Closing Bonus Payments 44 10.9. ESOP Loan Interest Payments 44 10.10. Dissolution of Pakka Plastics S.A. de C.V. 44 10.11. Disclosure Covenant of the Company and the Indemnifying Shareholders.................................. 45 10.12. Transfer of Life Insurance Policy [INTENTIONALLY OMITTED] 45 SECTION 11. TERMINATION; EFFECT OF TERMINATION 46 MISCELLANEOUS PROVISIONS 45 11.1. Termination 46 Amendment 45 11.2. Effect of Xxxxxxxxxxx 00 XXXXXXX 00. MISCELLANEOUS PROVISIONS 47 12.1. Amendment 47 12.2. Extension; Waiver 47 12.345 11.3. Entire Agreement 47 12.446 11.4. Severability 47 12.546 11.5. No Third-Third Party Beneficiaries; Successors and Assigns 48 12.646 11.6. Headings 48 12.746 11.7. Notices 48 12.846 11.8. Counterparts 50 12.948 11.9. Governing Law 50 12.10. Jurisdiction; Venue 50 12.1148 11.10. Incorporation of Exhibits and Schedules 50 12.1248 11.11. Construction 50 12.1348 11.12. Remedies 50 12.1448 11.13. Waiver of Jury Trial 50 48 11.14. Independence of Covenants and Representations and Warranties 48 11.15. Parent Guaranty 49 SCHEDULES AND EXHIBITS Schedule I - Shareholders and Capitalization of the Company Schedule II - Capitalization of Parent Schedule III - Exhibits to SEC Documents Annex I - Definitions Schedule I - Shareholders; Capitalization Schedule II - Assets To Be Transferred Exhibit A - Form of Certificate of Merger Exhibit B - Form of Amended and Restated Articles Certificate of Incorporation of the Company Exhibit C - Form of Employment Agreement Shareholder Materials Exhibit D - Encore Supply Agreement Exhibit E - WJR Employment and Noncompete Agreement Exhibit F - DCR Employment and Noncompete Agreement Exhibit G - Amended License Agreement Exhibit H - Opinion of Counsel to the Company, the Subsidiaries and the Designated Shareholders Exhibit I - Form of Noncompetition Invention Assignment Agreement Exhibit J - Form of Joinder Agreement Exhibit K - Certificate of Designation Exhibit L - Form of Warrant Exhibit M - Opinion of Counsel to Parent, Buyer and Consulting Acquisition Sub Exhibit N - Stock Forfeiture Agreement AGREEMENT AND PLAN OF REORGANIZATION dated as of January 14August 29, 1997, among XXXXX PLASTICS BPC HOLDING CORPORATION, a Delaware corporation ("Parent"), PACKERWARE ACQUISITION BERRY PLASTICS CORPORATION, a Kansas Delaware corporation and wholly-owned subsidiary of Parent ("Buyer"), VABC ACQUISITION CORP., a Delaware corporation and wholly- owned subsidiary of Parent Buyer ("Acquisition Sub"), PACKERWARE CORPORATIONVENTURE PACKAGING, INC., a Kansas Delaware corporation (the "Company"), THE WHOLLY-OWNED SUBSIDIARIES OF THE COMPANY (as defined below) and all of THE SHAREHOLDERS OF THE COMPANY NAMED ON SCHEDULE I attached hereto (each, a "Shareholder", and collectively collectively, the "Shareholders"). The Company Company, together with each of Venture Packaging Southeast, Inc., a South Carolina corporation, and Venture Packaging Midwest, Inc., an Ohio corporation, (each, a "Subsidiary" and collectively, the "Subsidiaries") is engaged in the business (the "Subject Business") of manufacturing, marketing and selling injection plastic packaging products and blow-molded plastic open top containers, drink cups, housewares and lawn and garden productsfilling machines. The respective Boards of Directors of each of ParentBuyer, Acquisition Sub and the Company have duly approved and adopted this Agreement and Plan of Reorganization (this "Agreement"), the Certificate of Merger in substantially the form of EXHIBIT A attached hereto (the "Certificate of Merger") and the proposed merger (the "Merger") of Acquisition Sub with and into the Company in accordance with, and subject to, the terms and conditions of this Agreement, the Certificate of Merger and the Kansas Delaware General Corporation Code Law (the "Kansas Delaware Statute") whereby, among other things, each issued and outstanding share of common stock, $.10 .001 par value (the "Company Common Stock"), of the Company not owned of record by the Company will be converted into the right to receive cash and/or certain securities of Parent in the manner set forth in Section 2 of this Agreement and the Certificate of Merger. Capitalized terms used but not defined herein have the meanings set forth in ANNEX I hereto.

Indemnification Generally; Etc. 36 35 (a) By the Shareholder Seller Group in Favor of the Buyer Group 36 35 (b) By Each Shareholder in Favor of the Buyer Group 38 36 (c) By Parent and Acquisition Sub the Buyer in Favor of the Company Seller and the Shareholders.................................. 38 9.2.............................. 36 8.2. Limitations on Indemnification 38 36 (a) Indemnity Baskets Basket for the Seller and the Shareholders 38 37 (b) Indemnity Limitations for the Shareholders 39 (c) Indemnity Baskets for the Buyer Group 39 (d) Indemnity Limitations for the Buyer Group 39 9.337 8.3. Assertion of Claims 39 9.437 8.4. Notice and Defense of Third Party Claims 40 9.537 8.5. Survival of Representations and Warranties 41 9.639 8.6. No Third Party Reliance 41 9.739 8.7. Remedies Exclusive 41 39 SECTION 109. ADDITIONAL AGREEMENTS 41 10.140 9.1. Expenses 41 10.240 9.2. Disclosure of Information; Noncompetition 42 10.340 9.3. Payment for Noncompetition Covenants 41 9.4. Use of Name 43 10.441 9.5. Relationships with Vendors and Customers 43 10.5. Termination of Affiliate Transactions 43 10.6. Amendment and Termination of ESOP 44 10.7. 401(k) Plan Participation 44 10.8. Accrual of Closing Bonus Payments 44 10.9. ESOP Loan Interest Payments 44 10.10. Dissolution of Pakka Plastics S.A. de C.V. 44 10.11. Disclosure Covenant of the Company and the Indemnifying Shareholders.................................. 45 10.12. Transfer of Life Insurance Policy 45 41 SECTION 1110. TERMINATION; EFFECT OF TERMINATION 46 11.142 10.1. Termination 46 11.242 10.2. Effect of Xxxxxxxxxxx 00 XXXXXXX 00Termination 43 SECTION 11. MISCELLANEOUS PROVISIONS 47 12.1PROVISIOXX 00 00.0. Amendment 47 12.2Xxxxxment 43 11.2. Extension; Waiver 47 12.343 11.3. Entire Agreement 47 12.443 11.4. Severability 47 12.543 11.5. No Third-Party Beneficiaries; Successors and Assigns 48 12.644 11.6. Headings 48 12.744 11.7. Notices 48 12.844 11.8. Counterparts 50 12.945 11.9. Governing Law 50 12.10. Jurisdiction; Venue 50 12.1145 11.10. Incorporation of Exhibits and Schedules 50 12.1245 11.11. Construction 50 12.1345 11.12. Remedies 50 12.1446 11.13. Waiver of Jury Trial 50 46 SCHEDULES AND EXHIBITS Annex I - Definitions Schedule I - Shareholders; Capitalization Machinery, Equipment, etc. Schedule II - Real Property Leases Schedule III - Permits Schedule IV - Excluded Fixed Assets To Be Transferred Schedule V - Retained Real Property Schedule VI - Retained Contracts Schedule VII - Debt Paid at Closing Schedule VIII - Capitalization Exhibit A - Form Bill of Certificate of Merger Sale Exhibit B B-1 - Form of Amended and Restated Articles of Incorporation of the Company Anderson Escrow Agreexxxx Exhibit B-2 - Yates Esxxxx Xxxeement Exhibit C - Form of Employment Agreement Opixxxx of Seller's and Shareholders' Counsel Exhibit D - Form of Noncompetition and Employment Agreement for David Anderson Exhibit E-1 - Form of Consulting Agreement AGREEMENT AND PLAN OF REORGANIZATION dated as Xxxxxxxxx xxx Don Anderson Exhibit E-2 - Form of January 14, 1997, among XXXXX PLASTICS CORPORATION, a Delaware corporation ("Parent"), PACKERWARE ACQUISITION CORPORATION, a Kansas corporation and wholly- owned subsidiary of Parent ("Acquisition Sub"), PACKERWARE CORPORATION, a Kansas corporation (the "Company"), and THE SHAREHOLDERS OF THE COMPANY NAMED ON SCHEDULE I attached hereto (each, a "Shareholder", and collectively the "Shareholders"). The Company is engaged in the business (the "Subject Business") of manufacturing, marketing and selling injection and blow-molded plastic open top containers, drink cups, housewares and lawn and garden products. The respective Boards of Directors of each of Parent, Acquisition Sub and the Company have duly approved and adopted this Agreement and Plan of Reorganization (this "Agreement"), the Certificate of Merger in substantially the form of EXHIBIT A attached hereto (the "Certificate of Merger") and the proposed merger (the "Merger") of Acquisition Sub with and into the Company in accordance with, and subject to, the terms and conditions of this Agreement, the Certificate of Merger and the Kansas General Corporation Code (the "Kansas Statute") whereby, among other things, each issued and outstanding share of common stock, $.10 par value (the "Company Common Stock"), of the Company not owned of record Consulting Agxxxxxxx xxx George Yates Exhibit F - Release by the Company will be converted into the right to receive cash in the manner set forth in Section 2 of this Agreement and the Certificate of Merger. Capitalized terms used but not defined herein have the meanings set forth in ANNEX I hereto.Sullivxx Xxxxxx