INDEMNIFICATION AGREEMENT
AGREEMENT made as of January 1, 1996, between AptarGroup, Inc., a Delaware
corporation (the "Company"), and King Harris (the "Indemnitee").
WHEREAS, it is essential to the Company and its stockholders to attract and
retain qualified and capable directors;
WHEREAS, the Amended and Restated Certificate of Incorporation of the
Company (the "Certificate of Incorporation") requires the Company to indemnify
directors to the extent not prohibited by law and to advance expenses to its
directors in defending any threatened, pending or completed action, suit or
proceeding;
WHEREAS, historically, basic protection against undue risk of personal
liability of directors has been provided through insurance coverage affording
reasonable protection at reasonable cost;
WHEREAS, it is presently uncertain whether, and to what extent, such
insurance is or will continue to be available to the Company at a reasonable
cost for the protection of Indemnitee;
WHEREAS, in recognition of Indemnitee's need for protection against
personal liability in order to induce Indemnitee to serve as Chairman of the
Board or the Company in a non-executive capacity commencing January 1, 1996 and
to supplement [or replace] the Company's liability insurance coverage, and in
part to provide Indemnitee with specific contractual assurance that the
protection required by the Certificate of Incorporation will be available to
Indemnitee (regardless of, among other things, any amendment to or revocation of
the Certificate of Incorporation or any change in the composition of the
Company's Board of Directors or any acquisition transaction relating to the
Company), the Company wishes to provide Indemnitee with the benefits
contemplated by this Agreement; and
WHEREAS, Indemnitee has agreed to serve as Chairman of the Board of the
Company in a non-executive capacity commencing January 1, 1996;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Definitions. The following terms used herein shall have the following
respective meanings:
(a) An Affiliate: of a specified Person is a Person who directly, or
indirectly through one or more intermediaries, controls or is controlled by, or
is under common control with, the Person specified. The term Associate used to
indicate a relationship with any Person shall mean (1) any corporation or
organization (other than the Company or a Subsidiary) of which such Person is an
officer or partner or is, directly or indirectly, the Beneficial Owner of ten
percent (10%) or more of any class of Equity Securities, (2) any trust or other
estate in which such Person has a substantial beneficial interest or as to which
such Person serves as trustee or in a similar fiduciary capacity (other than an
Employee Plan Trustee (as defined in Section 1(b) hereof)), (3) any Relative of
such Person or (4) any officer or director of any corporation controlling or
controlled by such Person.
(b) Beneficial Ownership: shall be determined, and a Person shall be the
Beneficial Owner of all securities which such Person is deemed to own
beneficially, pursuant to Rule 13d-3 of the General Rules and Regulations under
the Securities Exchange Act of 1934, as amended (or any successor rule or
statutory provision), or, if such Rule 13d-3 shall be rescinded and there shall
be no successor rule or statutory provision thereto, pursuant to such Rule 13d-3
as in effect on the date hereof; provided, however, that a Person shall, in any
event, also be deemed to be the Beneficial Owner of any Voting Shares: (1) of
which such Person or any of its Affiliates or Associates is, directly or
indirectly, the Beneficial Owner, or (2) of which such Person or any of its
Affiliates or Associates has (i) the right to acquire (whether such right is
exercisable immediately or only after the passage of time) pursuant to any
agreement, arrangement or understanding or upon the exercise of conversion
rights, exchange rights, warrants or options, or otherwise, or (ii) sole or
shared voting or investment power with respect thereto pursuant to any
agreement, arrangement, understanding, relationship or otherwise (but shall not
be deemed to be the Beneficial Owner of any Voting Shares solely by reason of a
revocable proxy granted for a particular meeting of stockholders, pursuant to a
public solicitation of proxies for such meeting, with respect to shares of which
neither such Person nor any such Affiliate or Associate is otherwise deemed the
Beneficial Owner), or (3) of which any other Person is, directly or indirectly,
the Beneficial Owner if such first mentioned Person or any of its Affiliates or
Associates acts with such other Person as a partnership, syndicate or other
group pursuant to any agreement, arrangement or understanding for the purpose of
acquiring, holding, voting or disposing of any shares of capital stock of the
Company; and provided further, however, that (X) no director or officer of the
Company, nor any Associate or Affiliate of any such director or officer, shall,
solely by reason of any or all of such directors and officers acting in their
capacities as such, be deemed for any purposes hereof, to be the Beneficial
Owner of any Voting Shares of which any other such director or officer (or any
Associate or Affiliate thereof) is the Beneficial Owner and (Y) no trustee of an
employee stock ownership or similar plan of the Company or any Subsidiary
("Employee Plan Trustee") or any Associate or Affiliate of any such Trustee,
shall, solely by reason of being an Employee Plan Trustee or Associate or
Affiliate of an Employee Plan Trustee, be deemed for any purposes hereof to be
the Beneficial Owner of any Voting Shares held by or under any such plan.
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(c) A Change in Control: shall be deemed to have occurred (1) upon the
occurrence of a Stock Acquisition Date, as defined in the Company's Rights
Agreement, dated as of April 6, 1993, and as amended from time to time (provided
that if a successor rights agreement is adopted, then as defined in such
agreement, and if the Company's Rights Agreement is (i) terminated or expires
without a successor agreement thereto, then as defined in the latest terminating
or expiring rights agreement at the time of such termination or expiration, or
(ii) amended or a successor rights agreement is adopted and, in either such
case, does not define Stock Acquisition Date, then as last defined in the
Company's Rights Agreement or successor rights agreement); (2) when individuals
who, as of April 23, 1993, constitute the Board of Directors (the "Incumbent
Board") cease for any reason to constitute at least a majority of such Board;
provided, however, that any individual who becomes a director of the Company
subsequent to such date whose election, or nomination for election by the
Company's stockholders, was approved by the vote of at least a majority of the
directors then comprising the Incumbent Board shall be deemed to have been a
member of the Incumbent Board; and provided, further, that no individual who was
initially elected as a director of the Company as a result of an actual or
threatened election contest, as such terms are used in Rule 14a-11 of Regulation
14A promulgated under the Securities Exchange Act of 1934, as amended, or any
other actual or threatened solicitation of proxies or consents by or on behalf
of any person other than the Board shall be deemed to have been a member of the
Incumbent Board; (3) upon approval by the stockholders of the Company of a
reorganization, merger or consolidation unless, in any such case, immediately
after such reorganization, merger or consolidation, (i) more than 60% of the
combined voting power of the securities of the corporation then outstanding and
entitled to vote generally in the election of directors is then beneficially
owned, directly or indirectly, by all or substantially all of the individuals or
entities who were the beneficial owners of the outstanding securities of the
Company entitled to vote generally in the election of directors of the Company
("Company Voting Securities") immediately prior to such reorganization, merger
or consolidation and in substantially the same proportions relative to each
other as their ownership, immediately prior to such reorganization, merger or
consolidation, of the outstanding Company Voting Securities, (ii) no person
shall be an Acquiring Person (an "Acquiring Person"), as defined in the
Company's Rights Agreement dated as of April 6, 1993, and as amended from time
to time (provided that if a successor rights agreement is adopted, then as
defined in such agreement, and if the Company's Rights Agreement is (A)
terminated or expires without a successor agreement thereto, then as defined in
the latest terminating or expiring rights agreement at the time of such
termination or expiration or (B) amended or a successor rights agreement is
adopted and, in either such case, does not define Acquiring Person, then as last
defined in the Company's Rights Agreement or successor rights agreement), and
(iii) at least a majority of the members of the board of directors of the
corporation resulting from such reorganization, merger or consolidation were
members of the Incumbent Board at the time of the execution of the initial
agreement or action of the Board of Directors providing for such reorganization,
merger or consolidation; or (4) upon approval by the stockholders of the Company
of (i) a plan of complete liquidation or dissolution of the Company or (ii) the
sale or other disposition of all or substantially all of the assets of the
Company other than to a corporation with respect to which, immediately after
such sale or other disposition, (A) more than 60% of the combined voting power
of the securities of the corporation then outstanding and entitled to vote
generally in the election of directors is then beneficially owned, directly or
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indirectly, by all or substantially all of the individuals and entities who were
the beneficial owners, respectively, of the outstanding Company Voting
Securities immediately prior to such sale or other disposition and in
substantially the same proportions relative to each other as their ownership,
immediately prior to such sale or other disposition, of the outstanding Company
Voting Securities, as the case may be, (B) no person shall be an Acquiring
Person, and (C) at least a majority of the members of the board of directors
thereof were members of the Incumbent Board at the time of the execution of the
initial agreement or action of the Board providing for such sale or other
disposition.
(d) Claim: means any threatened, pending or completed action, suit,
arbitration or proceeding, or any inquiry or investigation, whether brought by
or in the right of the Company or otherwise, that Indemnitee in good faith
believes might lead to the institution of any such action, suit, arbitration or
proceeding, whether civil, criminal, administrative, investigative or other, or
any appeal therefrom.
(e) Equity Security: shall have the meaning given to such term under Rule
3a11-1 of the General Rules and Regulations under the Securities Exchange Act of
1934, as in effect on the date hereof.
(f) D&O Insurance: means any valid directors' and officers' liability
insurance policy maintained by the Company for the benefit of Indemnitee, if
any.
(g) Determination: means a determination, and Determined means a matter
which has been determined based on the facts known at the time, by: (1) a
majority vote of a quorum of disinterested directors, or (2) if such a quorum is
not obtainable, or even if obtainable, if a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion, or, in the event
there has been a Change in Control, by the Special Independent Counsel (as
defined in Section 6 hereof), in a written opinion, selected by Indemnitee as
set forth in Section 6, or (3) a majority of the disinterested stockholders of
the Company, or (4) a final adjudication by a court of competent jurisdiction.
(h) Excluded Claim: means any payment for Losses or Expenses in
connection with any Claim: (1) based upon or attributable to Indemnitee gaining
in fact any personal profit or advantage to which Indemnitee is not entitled; or
(2) for the return by Indemnitee of any remuneration paid to Indemnitee without
the previous approval of the stockholders of the Company which is illegal; or
(3) for an accounting of profits in fact made from the purchase or sale by
Indemnitee of securities of the Company within the meaning of Section 16 of the
Securities Exchange Act of 1934, as amended, or similar provisions of any state
law; or (4) resulting from Indemnitee's knowingly fraudulent, dishonest or
willful misconduct; or (5) the payment of which by the Company under this
Agreement is not permitted by applicable law.
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(i) Expenses: means any reasonable expenses incurred by Indemnitee as a
result of a Claim or Claims made against Indemnitee for Indemnifiable Events
including, without limitation, attorneys' fees and all other costs, expenses and
obligations paid or incurred in connection with investigating, defending, being
a witness in or participating in (including on appeal), or preparing to defend,
be a witness in or participate in any Claim relating to an Indemnifiable Event.
(j) Fines: means any fine, penalty or, with respect to an employee
benefit plan, any excise tax or penalty assessed with respect thereto.
(k) Indemnifiable Event: means any event or occurrence, occurring prior
to or on or after the date of this Agreement, related to the fact that
Indemnitee is, was or has agreed to serve as, a director, officer, employee,
trustee, agent or fiduciary of the Company, or is or was serving at the request
of the Company as a director, officer, employee, trustee, agent or fiduciary of
another corporation, partnership, joint venture, employee benefit plan, trust or
other enterprise, or by reason of anything done or not done by Indemnitee,
including, but not limited to, any breach of duty, neglect, error, misstatement,
misleading statement, omission, or other act done or wrongfully attempted by
Indemnitee, or any of the foregoing alleged by any claimant, in any such
capacity.
(l) Losses: means any amounts or sums which Indemnitee is legally
obligated to pay as a result of a Claim or Claims made against Indemnitee for
Indemnifiable Events including, without limitation, damages, judgements and sums
or amounts paid in settlement of a Claim or Claims, and Fines.
(m) Person: means any individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint venture,
governmental authority or other entity of whatever nature.
(n) Potential Change in Control: shall be deemed to have occurred if (1)
the Company enters into an agreement, the consummation of which would result in
the occurrence of a Change in Control; (2) any Person (including the Company)
publicly announces an intention to take or to consider taking actions which if
consummated would constitute a Change in Control; or (3) the Board of Directors
adopts a resolution to the effect that, for purposes of this Agreement, a
Potential Change in Control has occurred.
(o) Relative: means a Person's spouse, parents, children, siblings,
mother-and father-in-law, sons-and daughters-in-law, and brothers-and sister-in-
law, including an adoptive relationship.
(p) Reviewing Party: means any appropriate person or body consisting of a
member or members of the Company's Board of Directors or any other person or
body appointed by the Board (including the Special Independent Counsel referred
to in Section 6) who is not a party to the particular Claim for which Indemnitee
is seeking indemnification.
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(q) Subsidiary: means any corporation of which a majority of any class of
Equity Security is owned, directly or indirectly, by the Company.
(r) Trust: means the trust established pursuant to Section 7 hereof.
(s) Voting Shares: means any issued and outstanding shares of capital
stock of the Company entitled to vote generally in the election of directors.
2. Basic Indemnification Agreement. In consideration of, and as an
inducement to, Indemnitee rendering valuable services to the Company as the
Chairman of the Board of the Company in a non-executive capacity, the Company
agrees that in the event Indemnitee is or becomes a party to or witness or other
participant in, or is threatened to be made a party to or witness or other
participant in, a Claim by reason of (or arising in part out of) an
Indemnifiable Event, the Company will indemnify and hold harmless Indemnitee to
the fullest extent authorized by law, against any and all Losses and Expenses
(including all interest, assessments and other charges paid or payable in
connection with or in respect of such Losses and Expenses) of such Claim,
whether or not such Claim proceeds to judgement or is settled or otherwise is
brought to a final disposition, subject in each case, to the further provisions
of this Agreement.
3. Limitations on Indemnification. Notwithstanding the provisions of
Section 2, Indemnitee shall not be indemnified and held harmless from any Losses
or Expenses (a) which have been Determined, as provided herein, to constitute
and Excluded Claim; (b) to the extent Indemnitee is indemnified by the Company
and has actually received payment pursuant to the Certificate of Incorporation,
D&O Insurance or otherwise; or (c) other than pursuant to the last sentence of
Section 4 (d) or Section 15, in connection with any claim initiated by
Indemnitee, unless the Company has joined in or the Board of Directors has
authorized such claim.
4. Indemnification Procedures.
(a) Promptly after receipt by Indemnitee of notice of any Claim,
Indemnitee shall, if indemnification with respect thereto may be sought from the
Company under this Agreement, notify the Company of the commencement thereof;
provided, however, that the failure to give such notice promptly shall not
affect or limit the Company's obligations with respect to the matters described
in the notice of such Claim, except to the extent that the Company is prejudiced
thereby. Indemnitee agrees further not to make any admission or effect any
settlement with respect so such Claim without the consent of the Company, except
any Claim with respect to which the Indemnitee has undertaken the defense in
accordance with the second to last sentence of Section 4(d).
(b) If, at the time of the receipt of such notice, the Company has D&O
Insurance in effect, the Company shall give prompt notice of the commencement of
Claim to the insurers in accordance with the procedures set forth in the
respective policies. The Company shall thereafter take all necessary or
desirable action to cause such insurers to pay, on behalf of Indemnitee, all
Losses and Expenses payable as a result of such Claim.
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(c) To the extent the Company does not, at the time of the Claim have
applicable D&O Insurance, or if a Determination is made that any Expenses
arising out of such Claim will not be payable under the D&O Insurance then in
effect, the Company shall be obligated to pay the Expenses of any claim in
advance of the final disposition thereof and the Company, if appropriate, shall
be entitled to assume the defense of such Claim, with counsel satisfactory to
Indemnitee, upon the delivery to Indemnitee of written notice of its election so
to do. After delivery of such notice, the Company will not be liable to
Indemnitee under this Agreement for any legal or other Expenses subsequently
incurred by Indemnitee in connection with such defense other than reasonable
Expenses of investigation; provided that Indemnitee shall have the right to
employ counsel in such Claim but the fees and expenses of such counsel incurred
after delivery of notice from the Company of its assumption of such defense
shall be at the Indemnitee's expense; provided further that if: (i) the
employment of counsel by Indemnitee has been previously authorized by the
Company, (ii) Indemnitee shall have reasonably concluded that there may be a
conflict of interest between the Company and Indemnitee in the conduct of any
such defense, or (iii) the Company shall not, in fact, have employed counsel to
assume the defense of such action, the reasonable fees and expenses of counsel
shall be at the expense of the Company.
(d) All payments on account of the Company's indemnification obligations
under this Agreement shall be made within sixty (60) days of Indemnitee's
written request therefore unless a Determination is made that the Claims giving
rise to Indemnitee's request are Excluded Claims or otherwise not payable under
this Agreement; provided that all payments on account of the Company's
obligation to pay Expenses under Section 4 (c) of this Agreement prior to the
final disposition of any Claim shall be made within 20 days of Indemnitee's
written request therefor and such obligation shall not be subject to any such
Determination but shall be subject to Section 4 (e) of this Agreement. In the
event the Company takes the position that Indemnitee is not entitled to
indemnification in connection with the proposed settlement of any Claim,
Indemnitee shall have the right at his own expense to undertake defense of any
such Claim, insofar as such proceeding involves Claims against the Indemnitee,
by written notice given to the Company within 10 days after the Company has
notified Indemnitee in writing of its contention that Indemnitee is not entitled
to indemnification; provided, however, that the failure to give such notice
within such 10-day period shall not affect or limit the Company's obligations
with respect to any such Claim if such Claim is subsequently determined not to
be an Excluded Claim or otherwise to be payable under this Agreement, except to
the extent that the Company is prejudiced thereby. If it is subsequently
determined in connection with such proceeding that the Indemnifiable Events are
not Excluded Claims and that Indemnitee, therefore, is entitled to be
indemnified under the provisions of Section 2 hereof, the Company shall promptly
indemnify Indemnitee.
(e) Indemnitee hereby expressly undertakes and agrees to reimburse the
Company for all Losses an Expenses paid by the Company in connection with any
Claim against Indemnitee in the event and only to the extent that a
Determination shall have been made by a court of competent jurisdiction in a
decision from which there is no further right to appeal that Indemnitee is not
entitled to be indemnified by the company for such Losses and Expenses because
the Claim is an Excluded Claim or because Indemnitee is otherwise not entitled
to payment under this agreement.
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(f) In connection with any Determination as to whether Indemnitee is
entitled to be indemnified hereunder the burden of proof shall be on the Company
to establish that Indemnitee is not so entitled.
5. Settlement. The Company shall have no obligation to indemnify
Indemnitee under this Agreement for any amounts paid in settlement of any claim
effected without the Company's prior written consent. The Company shall not
settle any Claim in which it takes the position that Indemnitee is not entitled
to indemnification in connection with such settlement without the prior written
consent of Indemnitee, nor shall the Company settle any Claim in any manner
which would impose any prior Fine or any obligation on Indemnitee, without
Indemnitee's written consent. Neither the Company nor Indemnitee shall
unreasonably withhold its or his consent to any proposed settlement.
6. Change in control; Extraordinary Transactions. The Company and
Indemnitee agree that if there is a Change in Control of the Company (other that
a Change in Control which has been approved by a majority of the Company's Board
of Directors who were directors immediately prior to such Change in Control or a
majority of the disinterested directors of the Company immediately prior to such
Change in Control) then all Determinations thereafter with respect to the rights
of Indemnitee to be paid Losses and Expenses under this Agreement shall be made
only by a special independent counsel (the "Special Independent Counsel")
selected by Indemnitee and approved in writing by the Company (which approval
shall not be unreasonably withheld) or by a court of competent jurisdiction. The
Company shall pay the reasonable fees of such Special Independent Counsel and
shall indemnify such Special Independent Counsel against any and all reasonable
expenses (including reasonable attorneys' fees), claims, liabilities and damages
arising out of or relating to this Agreement or its engagement pursuant hereto.
The Company convenants and agrees that, in the event of a Change in
Control of the type described in clause (3) or (4) of Section 1(c), the Company
will use its best efforts (1) to have the obligations of the Company under this
Agreement including, but not limited to those under Section 7, expressly assumed
by the surviving, purchasing or succeeding entity, or (2) to otherwise
adequately provide for the satisfaction of the Company's obligations under this
Agreement, in a manner reasonably acceptable to the Indemnitee.
7. Establishment of Trust. In the event of a Potential Change in
Control, the Company shall, upon written request by Indemnitee, create a trust
(the "Trust") for the benefit of Indemnitee and from time to time upon written
request of Indemnitee shall fund the Trust in an amount sufficient to satisfy
any and all Losses and Expenses which are actually paid or which Indemnitee
reasonably determines from time to time may be payable by the Company under this
Agreement. The amount or amounts to be deposited in the Trust pursuant to the
foregoing funding obligation shall be determined by the Reviewing Party, in any
case in which the Special Independent Counsel is involved. The terms of the
Trust shall provide that upon a Change in Control: (a) the Trust shall not be
revoked or the principal thereof invaded without the prior written consent of
Indemnitee; (b) the trustee of the Trust shall advance, within 20 days of a
written request by Indemnitee, any and all Expenses to Indemnitee (and
Indemnitee hereby agrees to reimburse the Trust under the circumstances under
which Indemnitee would be
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required to reimburse the Company under Section 4 (e) of this Agreement); (c)
the Company shall continue to fund the Trust from time to time in accordance
with the funding obligations set forth above; (d) the trustee of the Trust shall
promptly pay to Indemnitee all Losses and Expenses for which Indemnitee shall be
entitled to indemnification pursuant to this Agreement; and (e) all unexpended
funds in the Trust shall revert to the Company upon a final determination by a
court of competent jurisdiction in a final decision from which there is no
further right of appeal that Indemnitee has been fully indemnified under the
terms of this Agreement. The trustee of the Trust shall be chosen by Indemnitee.
8. No Presumption. For purposes of this Agreement, the termination of any
Claim by judgment, order, settlement (whether with or without court approval) or
conviction, or upon a plea of nolo contendere, or its equivalent, shall not, of
itself, create a presumption that Indemnitee did not meet any particular
standard of conduct or have any particular belief or that a court has determined
that indemnification is not permitted by applicable law.
9. Non-exclusivity, Etc. The rights of Indemnitee hereunder shall be in
addition to any other rights Indemnitee may have under the Certificate of
Incorporation, the Company's By-laws, the Delaware General Corporation Law, any
vote of stockholders or disinterested directors or otherwise, both as to action
in Indemnitee's official capacity and as to action in any other capacity by
holding such office, and shall continue after Indemnitee ceases to serve the
Company as a director, officer, employee, agent or fiduciary, for so long as
Indemnitee shall be subject to any Claim by reason of (or arising in part out
of) an Indemnifiable Event. To the extent that a change in the Delaware General
Corporation Law (whether by statute or judicial decision) permits greater
indemnification by agreement than would be afforded currently under the
Certificate of Incorporation and this Agreement, it is the intent of the parties
hereto that Indemnitee shall enjoy by this Agreement the greater benefits so
afforded by such change.
10. Liability Insurance. To the extent the Company maintains an insurance
policy or policies providing directors' and officers' liability insurance,
Indemnitee, if an officer or director of the Company, shall be covered by such
policy or policies, in accordance with its or their terms, to the maximum extent
of the coverage available for any director of officer of the Company.
11. Subrogation. In the event of payment under this Agreement, the
Company shall be subrogated to the extent of such payment to all of the rights
of recovery of Indemnitee, who shall execute all papers required and shall do
everything that may be necessary to secure such rights, including the execution
of such documents necessary to enable the Company effectively to bring suit to
enforce such rights.
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12. Partial Indemnity, Etc. If Indemnitee is entitled under any provision
of this Agreement to indemnification by the Company for some or a portion of the
losses and Expenses of a Claim but not, however, for all of the total amount
thereof, the company shall nevertheless indemnify Indemnitee for the portion
thereof to which Indemnitee is entitled. Moreover, notwithstanding any other
provision of this Agreement, to the extent that Indemnitee has been successful
on the merits or otherwise in defense of any or all Claims relating in whole or
in part to any Indemnifiable Event or in defense of any issue or matter therein,
including dismissal without prejudice, Indemnitee shall be indemnified against
all Expenses incurred in connection therewith.
13. Contribution. If the indemnification or reimbursement provided for
hereunder is finally judicially determined by a court of competent jurisdiction
to be unavailable to Indemnitee in respect of any Losses or Expenses of a Claim
(other than for any reason specified in Section 3 hereof), then the Company
agrees, to the extent permitted by applicable law, in lieu of indemnifying
Indemnitee, to contribute to the amount paid or payable by Indemnitee as a
result of such Losses or Expenses in such proportion as is appropriate to
reflect the relative benefits accruing to the Company and Indemnitee with
respect to the events giving rise to such Losses or Expenses. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law, then the Company agrees to contribute to the amount paid or
payable by Indemnitee as a result of such Losses or Expenses in such proportion
as is appropriate to reflect not only such relative benefits but also the
relative fault of the Company and of Indemnitee with respect to the events
giving rise to such Losses or Expenses. For purposes of this Section 13, (a) the
relative benefits accruing to the Company shall be deemed to be the benefits
accruing to it and to all of its directors, officers, employees and agents
(other than Indemnitee), as a group and treated as one person (the "Company
Group"), and the relative benefits accruing to Indemnitee shall be deemed to be
an amount not greater than Indemnitee's compensation from the Company during the
first year in which the events giving rise to such Losses or Expenses are
alleged to have occurred, and (b) the relative fault of the Company shall be
deemed to be the fault of the Company Group, and the relative fault of the
Company and Indemnitee shall be determined by reference to the relative intent,
knowledge and access to information of the Company Group and Indemnitee and
their relative opportunity to have altered or prevented the events giving rise
to such Losses or Expenses.
14. Liability of Company. Indemnitee agrees that neither the stockholders
nor the directors nor any officer, employee, representative or agent of the
Company shall be personally liable for the satisfaction of the Company's
obligations under this Agreement and Indemnitee shall look solely to the assets
of the Company for satisfaction of any claims hereunder.
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15. Enforcement.
(a) Indemnitee's right to indemnification and other rights under this
Agreement shall be specifically enforceable by Indemnitee only in the state or
Federal courts of the States of Delaware or Illinois and shall be enforceable
notwithstanding any adverse Determination by the Company's Board of Directors,
independent legal counsel, the Special Independent Counsel or the Company's
stockholders and no such Determination shall create a presumption the Indemnitee
is not entitled to be indemnified hereunder. In any such action the Company
shall have the burden of proving that indemnification is not required under this
Agreement.
(b) In the event that any action is instituted by Indemnitee under this
Agreement, or to enforce or interpret any of the terms of this Agreement,
Indemnitee shall be entitled to be paid all court costs and reasonable expenses,
including reasonable counsel fees and disbursements, incurred by Indemnitee with
respect to such action, unless the court determines that each of the material
assertions made by Indemnitee as a basis for such action was not made in good
faith or was frivolous.
16. Severability. In the event that any provision of this Agreement is
determined by a court to require the Company to do or to fail to do an act which
is in violation of applicable law, such provision (including any provision
within a single section, paragraph or sentence) shall be limited or modified in
its application to the minimum extent necessary to avoid a violation of law,
and, as so limited or modified, such provision and the balance of this Agreement
shall be enforceable in accordance with their terms to the fullest extent
permitted by law.
17. Governing Law. This agreement shall be governed by and construed in
accordance with the laws of the State of Delaware applicable to agreements made
and to be performed entirely within such State.
18. Consent to Jurisdiction. The Company and Indemnitee each hereby
irrevocably consents to the jurisdiction of the courts of the States of Delaware
and Illinois for all purposes in connection with any action or proceeding which
arises out of or relates to this Agreement and agrees that any action instituted
under this Agreement shall be brought only in the state and Federal courts of
the States of Delaware and Illinois.
19. Notices. All notices or other communications required or permitted
hereunder shall be sufficiently given for all purposes if in writing and
personally delivered, sent by facsimile transmission or overnight delivery
service, or sent by registered or certified mail, return receipt requested, with
postage prepaid addressed as follows, or to such other address as the parties
shall have given notice of pursuant hereto:
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(a) If to the Company, to:
AptarGroup, Inc.
000 Xxxx Xxxxx Xxxxx Xxx.
Xxxxx X
Xxxxxxx Xxxx, Xxxxxxxx 00000
Attention: Secretary
(b) If to Indemnitee, to:
King Harris
000 Xxxx Xxxx Xxxxx Xxxxx
Xxxxxxx, XX 00000
20. Counterparts. This Agreement may be signed in counterparts, each of
which shall be an original and all of which, when taken together, shall
constitute one and the same instrument.
21. Successors and Assigns. This Agreement shall be (i) binding upon all
successors and assigns of the Company, including any direct or indirect
successor by purchase, merger, consolidation or otherwise to all or
substantially all of the business and/or assets of the Company, and (ii) binding
upon and inure to the benefit of any successors and assigns, heirs, and personal
or legal representatives of Indemnitee.
22. Amendment; Waiver. No amendment, modification, termination or
cancellation of this Agreement shall be effective unless made in a writing
signed by each of the parties hereto. No waiver of any of the provisions of this
Agreement shall be deemed or shall constitute a waiver of any other provision
hereof (whether or not similar) nor shall such waiver constitute a continuing
waiver.
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IN WITNESS WHEREOF, the Company and Indemnitee have executed this Agreement
as of the day and year first above written.
APTARGROUP, INC.
----------------
(Registrant)
By /s/ Xxxxxxx X. Xxxxx
------------------------
Xxxxxxx X. Xxxxx
Executive Vice President, Chief
Financial Officer and Secretary
ATTEST:
By /s/ Xxxxx Xxxxxxxxxx
-----------------------
Xxxxx Xxxxxxxxxx
Vice President, Treasurer of AptarGroup
By /s/ King Harris
-------------------
King Harris
Chairman of the Board and Director
WITNESS:
By /s/ Xxxxx X. Xxxxxxxx
-------------------------
Xxxxx X. Xxxxxxxx
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