Common use of Indemnification Generally; Etc Clause in Contracts

Indemnification Generally; Etc. By the Shareholder Group in Favor of the Buyer Group 37 (b) By the Shareholders in Favor of the Buyer Group 38 (c) By Parent, Buyer and Acquisition Sub in Favor of the Shareholders.................................. 38 8.2. Limitations on Indemnification 39 (a) Indemnity Baskets for the Shareholder Group 39 (b) Indemnity Limitations for the Shareholder Group 39 (c) Indemnity Baskets for the Buyer Group 39 8.3. Assertion of Claims; Payment of Claims; Forfeiture of Preferred Stock............................................... 40 8.4. Notice and Defense of Third Party Claims 41 8.5. Survival of Representations and Warranties 42 8.6. No Third Party Reliance 43 8.7. Remedies Exclusive 43 SECTION 9. ADDITIONAL AGREEMENTS 43 9.1. Expenses 43 9.2. Disclosure of Information; Noncompetition 44 9.3. Use of Name 44 9.4. Relationships with Vendors and Customers 45 9.5. Termination of Affiliate Transactions 45 SECTION 10. [INTENTIONALLY OMITTED] 45 SECTION 11. MISCELLANEOUS PROVISIONS 45 11.1. Amendment 45 11.2. Extension; Waiver 45 11.3. Entire Agreement 46 11.4. Severability 46 11.5. No Third Party Beneficiaries; Successors and Assigns 46 11.6. Headings 46 11.7. Notices 46 11.8. Counterparts 48 11.9. Governing Law 48 11.10. Incorporation of Exhibits and Schedules 48 11.11. Construction 48 11.12. Remedies 48 11.13. Waiver of Jury Trial 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 Exhibit A - Certificate of Merger Exhibit B - Restated Certificate of Incorporation Exhibit C - 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 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 Acquisition Sub Exhibit N - Stock Forfeiture Agreement AGREEMENT AND PLAN OF REORGANIZATION dated as of August 29, 1997, among BPC HOLDING CORPORATION, a Delaware corporation ("Parent"), BERRY PLASTICS CORPORATION, a Delaware corporation and wholly-owned subsidiary of Parent ("Buyer"), VABC ACQUISITION CORP., a Delaware corporation and wholly- owned subsidiary of Buyer ("Acquisition Sub"), VENTURE PACKAGING, INC., a 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, the "Shareholders"). The 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 plastic packaging products and filling machines. The respective Boards of Directors of each of Buyer, 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 Delaware General Corporation Law (the "Delaware Statute") whereby, among other things, each issued and outstanding share of common stock, $.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. By the Shareholder Group in Favor of the Buyer Group 37 36 (b) By the Shareholders Each Shareholder in Favor of the Buyer Group 38 (c) By Parent, Buyer Parent and Acquisition Sub in Favor of the Company and the Shareholders.................................. 38 8.29.2. Limitations on Indemnification 39 38 (a) Indemnity Baskets for the Shareholder Group 39 Shareholders 38 (b) Indemnity Limitations for the Shareholder Group Shareholders 39 (c) Indemnity Baskets for the Buyer Group 39 8.3(d) Indemnity Limitations for the Buyer Group 39 9.3. Assertion of Claims; Payment of Claims; Forfeiture of Preferred Stock............................................... 40 8.4Claims 39 9.4. Notice and Defense of Third Party Claims 41 8.540 9.5. Survival of Representations and Warranties 42 8.641 9.6. No Third Party Reliance 43 8.741 9.7. Remedies Exclusive 43 41 SECTION 910. ADDITIONAL AGREEMENTS 43 9.141 10.1. Expenses 43 9.241 10.2. Disclosure of Information; Noncompetition 44 9.342 10.3. Use of Name 44 9.443 10.4. Relationships with Vendors and Customers 45 9.543 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 SECTION 1010.12. [INTENTIONALLY OMITTED] 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 45 11.147 12.1. Amendment 45 11.247 12.2. Extension; Waiver 45 11.347 12.3. Entire Agreement 46 11.447 12.4. Severability 46 11.547 12.5. No Third Third-Party Beneficiaries; Successors and Assigns 46 11.648 12.6. Headings 46 11.748 12.7. Notices 46 11.848 12.8. Counterparts 48 11.950 12.9. Governing Law 48 11.1050 12.10. Jurisdiction; Venue 50 12.11. Incorporation of Exhibits and Schedules 48 11.1150 12.12. Construction 48 11.1250 12.13. Remedies 48 11.1350 12.14. Waiver of Jury Trial 48 11.14. Independence of Covenants and Representations and Warranties 48 11.15. Parent Guaranty 49 50 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 Certificate Articles of Incorporation of the Company Exhibit C - Shareholder Materials Form of Employment Agreement 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 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 Noncompetition and Acquisition Sub Exhibit N - Stock Forfeiture Consulting Agreement AGREEMENT AND PLAN OF REORGANIZATION dated as of August 29January 14, 1997, among BPC HOLDING XXXXX PLASTICS CORPORATION, a Delaware corporation ("Parent"), BERRY PLASTICS PACKERWARE ACQUISITION CORPORATION, a Delaware corporation and wholly-owned subsidiary of Parent ("Buyer"), VABC ACQUISITION CORP., a Delaware Kansas corporation and wholly- owned subsidiary of Buyer Parent ("Acquisition Sub"), VENTURE PACKAGING, INC.PACKERWARE CORPORATION, a Delaware Kansas 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, 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") Company is engaged in the business (the "Subject Business") of manufacturing, marketing and selling injection and blow-molded plastic packaging products open top containers, drink cups, housewares and filling machineslawn and garden products. The respective Boards of Directors of each of BuyerParent, 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 Delaware Kansas General Corporation Law Code (the "Delaware Kansas Statute") whereby, among other things, each issued and outstanding share of common stock, $.001 .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 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.