exv10w128






Exhibit 10.128




 


Deed Poll of Indemnification




Dated 13 October 2011



Reynolds Group Holdings Limited



in favour and for the benefit of the Indemnitees



 




 









 





Contents




	 	 	 	 	 	 	 	 
	Clause	 	 	Page	 
	 	1.	 	Definitions 
	 	 	3	 
	 	2.	 	Indemnification 
	 	 	3	 
	 	3.	 	Limitations on Indemnification 
	 	 	4	 
	 	4.	 	Indemnification Procedure 
	 	 	4	 
	 	5.	 	Severability 
	 	 	5	 
	 	6.	 	Governing law 
	 	 	5	 
	 	7.	 	Amendments 
	 	 	5	 
	 	8.	 	Termination 
	 	 	5	 
	 	9.	 	Notices to the Company 
	 	 	5	 
	 	10.	 	Delivery 
	 	 	6	 
	 	11.	 	Third Party Rights 
	 	 	6	 
	 	12.	 	Other Indemnities 
	 	 	6	 






 









 





THIS DEED POLL OF INDEMNIFICATION (Deed Poll) is made on 13 October 2011



by:





	A.	 	Reynolds Group Holdings Limited, a company registered in New Zealand with company number
1812226, whose registered office is at c/o Bell Gully, Level 22, Vero Centre, 48 Shortland
Street, Auckland, New Zealand (the Company),




in favour and for the benefit of:





	B.	 	each Indemnitee (as defined below).





BACKGROUND





	A.	 	The Group Members (as defined below) are required to register with the U.S. Securities and
Exchange Commission (SEC) the following series of notes and related guarantees pursuant to
registration rights agreements entered into by the Reynolds Group in connection with the
issuance of such notes:






	 	(a)	 	US$1,125,000,000 and EUR 450,000,000 7.750% senior secured notes due 2016 issued in
November 2009;
	 
	 	(b)	 	US$1,000,000,000 8.500% senior notes due 2018 issued in May 2010;
	 
	 	(c)	 	US$1,500,000,000 7.125% senior secured notes due 2019 issued in October 2010;
	 
	 	(d)	 	US$1,500,000,000 9.000% senior notes due 2019 issued in October 2010;
	 
	 	(e)	 	US$1,000,000,000 6.875% senior secured notes due 2021 issued in February 2011;
	 
	 	(f)	 	US$1,000,000,000 8.250% senior notes due 2021 issued in February 2011;
	 
	 	(g)	 	US$1,500,000,000 7.875% senior secured notes due 2019 issued in August 2011; and
	 
	 	(h)	 	US$1,000,000,000 9.875% senior notes due 2019 issued in August 2011,
	 
	 	 	 	(together, the
Registrable Notes).






	B.	 	The Group Members will file a registration statement (the Registration Statement) on Form F-4
with the SEC with respect to the Registrable Notes and related guarantees. Following a review
and comment process by the SEC and amendments to the Registration Statement to address the
SEC’s comments, the SEC will declare the Registration Statement effective. After the
Registration Statement is declared effective by the SEC, the issuers of the Registrable Notes
will offer to exchange such notes for a like principal amount of new notes. The terms of the
new notes of each series will be identical in all material respects to the terms of




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	 	 	the Registrable Notes of the same series, except that, among other differences, the new notes
will be registered under the U.S. Securities Act of 1933, as amended, and the transfer
restrictions and registration rights relating to the Registrable Notes will not apply to the
new notes.
	 
	C.	 	Each Group Member is required to sign the Registration Statement and certain directors and
officers or persons performing specified functions, whether or not officers, of each Group
Member are required to sign the Registration Statement. In addition, each Group Member may be
required to provide certificates or complete or execute other documents with respect to the
Registration Statement.
	 
	D.	 	Furthermore, certain of the Group Members may sign or file registration statements with the
SEC to register future series of notes, guarantees or other securities, issued by a Group
Member (each such registration statement, a “Prospective Registration Statement” and,
collectively, the “Prospective Registration Statements”).
	 
	 	 	(The Registration Statement and each of the Prospective Registration Statements and any related
documents are each a Registration Document and, collectively, the “Registration
Documents”.)
	 
	E.	 	The Company has agreed to provide an indemnity to the Indemnitees (as defined below) in
respect of the Registration Documents.




THIS DEED POLL WITNESSES as follows:





	1.	 	Definitions
	 
	 	 	Group Member means the Company and any of its subsidiaries that becomes a registrant with
respect to the Registration Statement or a Prospective Registration Statement filed with
the SEC.
	 
	 	 	Indemnified Liabilities means all legal expenses, losses, liabilities, judgments, fines,
penalties and amounts paid in settlement (including all interest, assessments and other
charges in connection with these).
	 
	 	 	Indemnitee means each person that serves as a director of a Group Member at the time of
filing or effectiveness of the Registration Statement or a Prospective Registration
Statement and any other person that signs the Registration Statement or a Prospective
Registration Statement on behalf of a Group Member.
	 
	2.	 	Indemnification
	 
	 	 	The Company shall (subject to an Indemnitee complying with the procedures in clause 4
below) indemnify each Indemnitee against all Indemnified Liabilities incurred by an
Indemnitee or on an Indemnitee’s behalf in connection with any proceeding resulting from or
relating to decisions the Indemnitee made or any actions or omissions of the Indemnitee on
behalf of or in relation to a Group Member in his or her capacity as a director or officer




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	 	 	of that company or in any other capacity in connection with any Registration Document or
associated corporate authorisation or resolution or with respect to the enforcement or
interpretation of this Deed Poll.
	 
	3.	 	Limitations on Indemnification
	 
	 	 	Notwithstanding any other provision of this Deed Poll, an Indemnitee shall not be entitled
to indemnification under this Deed Poll:






	 	(a)	 	to the extent that such indemnification is not permitted by applicable laws;
	 
	 	(b)	 	to the extent such Indemnified Liabilities are the result of the bad faith or
wilful misconduct of the Indemnitee;
	 
	 	(c)	 	to the extent that payment is actually made, or for which payment is
available, to or on behalf of the relevant Indemnitee under an insurance policy (other
than an insurance policy under which the Company is entitled to seek reimbursement for
the Company’s liability to the Indemnitee under this Deed Poll), except in respect of
any amount in excess of the limits of liability of such policy or any applicable
deductible for such policy;
	 
	 	(d)	 	to the extent that payment has or will be made to the relevant Indemnitee by
a Group Member or any affiliate of the Company otherwise than pursuant to this Deed
Poll; or
	 
	 	(e)	 	in connection with any proceeding (or part thereof) or appeal in relation to
a proceeding initiated by an Indemnitee, unless:






	 	(i)	 	such indemnification is expressly required to be made by law,
	 
	 	(ii)	 	the proceeding was authorised by the shareholder(s) (or
other decision making organ) of the relevant Group Member;
	 
	 	(iii)	 	such indemnification is provided by the relevant Group
Member, in its sole discretion, pursuant to the powers vested in the Group
Member under applicable law; or
	 
	 	(iv)	 	the proceeding was initiated by an Indemnitee to enforce or
interpret this Deed Poll.






	4.	 	Indemnification Procedure






	 	(a)	 	To qualify for indemnification under this Deed Poll, each Indemnitee shall
give the Company notice in writing as soon as practicable of any proceeding in
relation to that Indemnitee for which indemnification will or could be sought under
this Deed Poll.
	 
	 	(b)	 	To obtain indemnification payments or advances under this Deed Poll, an
Indemnitee shall submit to the Company a written request for such payments or
advances, together with such invoices or other




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	 	 	 	supporting information as may be reasonably requested by the Company and
reasonably available to the relevant Indemnitee.
	 
	 	(c)	 	Subject to paragraph (d), the Company shall make such indemnification
payment within 30 business days of receipt of such invoices and supporting
information.
	 
	 	(d)	 	There shall be no presumption in favour of indemnification. If there is a
dispute between the Company and an Indemnitee as to whether that Indemnitee is
entitled to indemnification, then independent legal counsel shall be selected by the
board of directors of the Company to make such determination. The selected
independent legal counsel shall make such determination within 30 business days of
being selected and the decision of such independent legal counsel shall be binding
upon the Company and the relevant Indemnitee.






	5.	 	Severability
	 
	 	 	If any provision or provisions of this Deed Poll shall be held to be invalid, illegal or
unenforceable for any reason, the validity, legality and enforceability of the remaining
provisions of this Deed Poll shall not in any way be affected or impaired thereby and shall
remain enforceable to the fullest extent permitted by law.
	 
	6.	 	Governing law
	 
	 	 	This Deed Poll shall be governed by and its provisions construed in accordance with New
Zealand law.
	 
	7.	 	Amendments
	 
	 	 	No amendment or modification of this Deed Poll shall be effective unless it is approved in
writing by each Indemnitee having the benefit of this Deed Poll.
	 
	8.	 	Termination
	 
	 	 	This Deed Poll shall remain in effect in favour and for the benefit of each Indemnitee
until the expiration of 12 months after the date that is the later to occur of:






	 	(a)	 	the relevant Indemnitee ceasing to serve as a director or officer (as
applicable) of the relevant Group Member; and
	 
	 	(b)	 	the date on which all liabilities of the Indemnitee in respect of the
Registration Documents are expired, terminated or released.






	9.	 	Notices to the Company






	 	(a)	 	Any notice or other communication given under this Deed Poll by an
Indemnitee to the Company must be in writing addressed to the Company at the address
from time to time notified by the Company to the Indemnitee.




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	 	(b)	 	For notification purposes, the current address of the Company is as follows:





	 	 	 	 	 

	 

	 	Address:
	 	Level 9
	 

	 	 	 	148 Quay Street
	 

	 	 	 	PO Box 3515
	 

	 	 	 	Auckland

New Zealand
	 
	 	 	 	 
	 

	 	Attention:
	 	Group Legal Counsel







	 	(c)	 	Instead of giving a notice or other communication to the Company at
the address specified in paragraph (b) an Indemnitee may give notice or
communication to the Company by email to the following email address:
helen.golding@rankgroup.co.nz, or to any replacement email address
notified by the Company to the Indemnitee from time to time. A notice or other
communication given by email is deemed to be received at the time the email enters
the information system of the recipient (unless the sender receives an electronic
notification that the email has not been delivered).






	10.	 	Delivery
	 
	 	 	For the purposes of section 9 of the Property Law Act 2007, and without limiting any
other mode of delivery, this Deed Poll will be delivered by each party immediately on the
earlier of:






	 	(a)	 	physical delivery of an original of this Deed Poll, executed by the
relevant party, into the custody of the other party or the other party’s solicitors;
or
	 
	 	(b)	 	transmission by the relevant party or its solicitors (or any other person
authorised in writing by the relevant party) of a facsimile, photocopied or
scanned copy of an original of this Deed Poll, executed by the relevant party, to
the other party or the other party’s solicitors.






	11.	 	Third Party Rights
	 
	 	 	For the purposes of the Contracts (Privity) Act 1982, the Company acknowledges that
the promises in clause 2 confer a legally enforceable benefit on each Indemnitee, subject
to the other terms of this Deed Poll.
	 
	12.	 	Other Indemnities
	 
	 	 	The indemnities provided in this Deed Poll are in addition to, and not in substitution
for, any other indemnities that an Indemnitee has or may have from any other person or
entity.




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Execution



Executed and delivered as a deed.




Executed on behalf of REYNOLDS

GROUP HOLDINGS LIMITED by its

authorised signatory in the presence

of:




	 	 	 	 	 
	 	 	 
	 	/s/ Gregory Alan Cole
 	 
	 	Gregory Alan Cole

Director	 
	 



	 	 	 	 	 
	 	 	 
	 	  	/s/
FRANCES RAMSAY
 	 
	 	 	Signature of witness 	 
	 	 	 	 
	 	  	FRANCES RAMSAY
 	 
	 	 	Name of witness 	 
	 	 	 	 
	 	  	SECRETARY
 	 
	 	 	Occupation 	 
	 	 	 
	 	  	AUCKLAND
 	 
	 	 	City/town of residence 	 
	 	 	 	 




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