Exhibit 10.6
INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT, dated as of September 28, 2001 (this
"Agreement"), between ▇▇▇▇▇▇-▇▇▇▇▇▇▇, Inc., a Delaware corporation (the
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"Company"), and Armkel, LLC, a Delaware limited liability company ("Buyer")
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(each, a "Party" and, collectively, the "Parties").
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RECITALS:
WHEREAS, the Company and Buyer have executed and delivered an Asset
Purchase Agreement, dated as of May 7, 2001 (including the exhibits, schedules
and annexes thereto, the "Asset Purchase Agreement"), providing for, among other
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things, the sale, conveyance, transfer, assignment and delivery to Buyer of all
of the Company's and its Affiliates' rights, title and interest in and to the
Purchased Assets (as defined in the Asset Purchase Agreement) and the assumption
by Buyer of all of the Assumed Liabilities (as defined in the Asset Purchase
Agreement), effective in each case immediately prior to the ABC Merger (as
defined herein);
WHEREAS, the Company, CPI Development Corporation, a Delaware corporation
("ABC"), MedPointe Inc., a Delaware corporation ("Parent"), MCC Merger Sub
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Corporation, a Delaware corporation and a wholly owned subsidiary of Parent
("Company Merger Sub"), and MCC Acquisition Sub Corporation, a Delaware
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corporation and a wholly owned subsidiary of Parent ("ABC Merger Sub"), have
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executed and delivered an Agreement and Plan of Merger, dated as of May 7, 2001
(including the exhibits, schedules and annexes thereto, the "Merger Agreement"),
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providing for, among other things, the merger of ABC Merger Sub with and into
ABC (the "ABC Merger") and the merger of Company Merger Sub with and into the
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Company; and
WHEREAS, in connection with the transactions contemplated by the Asset
Purchase Agreement and the Merger Agreement, Buyer and the Company desire to
provide certain indemnification rights to each other as contemplated by this
Agreement.
NOW, THEREFORE, the Parties, in consideration of the premises and the
mutual covenants contained herein, hereby agree as follows:
ARTICLE I
Definitions
1.1 General Terms. For purposes of this Agreement, capitalized terms used
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but not defined in this Agreement have the respective
meanings set forth in the Asset Purchase Agreement.
ARTICLE II
Indemnification
2.1 Buyer Indemnification. From and after the Company Merger Effective
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Time, Buyer shall indemnify and hold the Company and each Subsidiary and
Affiliate of the Company and their respective directors, officers, employees,
agents, representatives, and their respective successors and permitted assigns
(collectively, the "Company Indemnified Parties") harmless from any and all
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liabilities, obligations, damages, losses, charges, interest, deficiencies,
civil, criminal or administrative actions, suits, claims, hearings,
investigations, arbitrations, proceedings, demands, judgments, fines, penalties
or
settlements of any nature or kind, whether incurred prior to, at or after the
Closing, including all costs and expenses, whether incurred on, prior to or
following the date of the Closing ("Liabilities") to the extent (i) arising out
of or relating to any Transaction Claim, or (ii) such Liabilities constitute
Assumed Liabilities; provided that with respect to indemnification due under
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Clause (i) above, Buyer shall only be obligated to indemnify the Company
Indemnified Parties for (A) out-of-pocket payments and costs required or agreed
to be made (and made) by a Company Indemnified Party to a third party in respect
of any Transaction Claims and (B) 60 percent of such Liabilities arising in
respect of any Transaction Claim. "Transaction Claim" means any suit, action or
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proceeding by or before any Governmental Entity challenging the validity or
legality of the transactions contemplated by the Merger Agreement or Asset
Purchase Agreement (other than any such action relating to competition,
antitrust or similar matters) or in respect of claims by shareholders of the
Company or ABC exercising dissenters' rights ("Appraisal Claims") under
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applicable Law with respect to such contemplated transactions. For purposes of
calculating the Liabilities associated with the Transaction Claims, all
Liabilities of the Company and the Buyer (including legal fees) will be
aggregated and the Company will indemnify the Buyer Indemnified Parties (as
defined below) for all Liabilities arising out of or relating to Transaction
Claims on the same basis as Buyer above indemnifies the Company Indemnified
Parties, except that the percentage shall be 40 and not 60.
2.2 Company Indemnification. From and after the Closing, the Company shall
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indemnify and hold Buyer, and each Subsidiary and Affiliate of Buyer and their
respective directors, officers, employees, agents, representatives, and their
respective successors and permitted assigns (collectively, the "Buyer
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Indemnified Parties") harmless from any Liabilities to the extent such
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Liabilities constitute Excluded Liabilities.
2.3 Procedures for Indemnity Claims. Any claim (other than those arising
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out of a Transaction Claim, which are addressed in (S) 2.4) which may form a
basis for indemnification hereunder (an "Indemnity Claim") by any Party (an
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"Indemnified Party") shall be asserted and resolved as set forth in this Section
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2.3. The Indemnified Party shall promptly, but in no event more than 15 Business
Days following such Indemnified Party's receipt of, notice of, or actual
knowledge of such claim, give written notice to the Party that may be required
to pay an indemnity hereunder in respect of such Indemnity Claim (an
"Indemnifying Party") which notice shall state in reasonable detail the nature
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and basis of the Indemnity Claim and the amount or the estimated amount thereof
to the extent then feasible (which estimate shall not be conclusive of the final
amount of any claim) and which notice, if applicable, shall also have attached
to it copies of all relevant documents received by the Indemnified Party
substantiating such Indemnity Claim (the "Claim Notice"). Failure of the
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Indemnified Party to give a Claim Notice as contemplated hereby shall not
relieve the Indemnifying Party from liability for indemnification hereunder,
except if and to the extent that the Indemnifying Party is actually prejudiced
thereby. Thereafter, the Indemnified Party shall deliver to the Indemnifying
Party, on an ongoing basis promptly after the Indemnified Party's receipt
thereof, copies of all notices and documents received by the Indemnified Party
relating to the Indemnity Claim, as the case may be. With respect to an
Indemnity Claim other than a Third Party Claim (as defined below) that is
resolved as provided in this Section 2.3, the Indemnifying Party shall promptly
pay such Indemnity Claim within 20 Business days from its receipt of the Claim
Notice (the "Notice Period"), unless it notifies the Indemnified Party in
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writing that the Indemnifying Party disputes the liability of the Indemnifying
Party to the Indemnified Party hereunder with respect to the Indemnity Claim. If
the Indemnity Claim involves an amount in dispute with a third party (a "Third
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Party Claim"), the Indemnifying Party may advise the Indemnified Party within 20
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Business Days from its receipt of the Claim Notice that it will defend the
Indemnified Party against such Third Party Claim. Except as hereinafter
provided, in the event that the Indemnifying Party so notifies the Indemnified
Party that it will defend the Indemnified Party against such Third Party Claim,
the Indemnifying Party shall have the right to defend the Indemnified Party by
appropriate proceedings and shall have the sole power to direct and control such
defense. All costs and expenses incurred by the
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Indemnifying Party in defending the Third Party Claim shall be paid by the
Indemnifying Party. If an Indemnified Party desires to participate in any such
defense it may do so at its sole cost and expense; provided, that the
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Indemnified Party and its counsel shall comply with all reasonable instructions
from the Indemnifying Party. The Indemnifying Party shall not consent to the
entry of any judgment or enter into any settlement in respect of a Third Party
Claim without the prior written consent of the Indemnified Party, to the extent
such judgment or settlement imposes a non-monetary obligation on the Indemnified
Party or is not accompanied by a complete and unconditional release of the
Indemnified Party in respect of such Third Party Claim; provided, that the
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consent of the Indemnified Party shall not be unreasonably withheld, conditioned
or delayed. If the Indemnifying Party elects not to defend the Indemnified Party
against such Third Party Claim, whether by not giving the Indemnified Party
timely notice as provided above or otherwise, then the Indemnified Party may
conduct the defense and the reasonable costs and expenses pertaining to such
defense shall be the liability of the Indemnifying Party hereunder. In any case,
whether or not the Indemnifying Party elects to control the defense of a Third
Party Claim, the Indemnified Party shall not consent to the entry of any
judgment or enter into any settlement in respect of a Third Party Claim without
the prior written consent of the Indemnifying Party, and without such consent
the Indemnifying Party shall not be obligated to indemnify the Indemnified Party
hereunder in respect of the related Indemnification Claim; provided, that the
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consent of the Indemnifying Party shall not be unreasonably withheld,
conditioned or delayed. To the extent the Indemnifying Party shall direct,
control or participate in the defense or settlement of any Third Party Claim,
the Indemnified Party will, as reasonably required, give the Indemnifying Party
and its counsel access to, during normal business hours, the relevant business
records and other documents, and permit them to consult with the employees and
counsel of the Indemnified Party. Regardless of which Person assumes control of
the defense of any claim, each Party shall cooperate and provide the other Party
reasonable assistance in the defense thereof.
2.4 Procedure for Transaction Claims. Any Transaction Claim which may
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form a basis for indemnification hereunder shall be asserted and resolved as set
forth in this Section 2.4.
(a) Following the receipt of notice of a Transaction Claim, the
Company Indemnified Party or the party receiving the notice of the
Transaction Claim shall promptly, but in no event more than 5 Business Days
following such Party's receipt of notice of such Transaction Claim, give
written notice to the Indemnifying Party, which notice shall state in
reasonable detail the nature and basis of the Transaction Claim and the
amount or estimated amount thereof to the extent feasible (which estimate
shall not be conclusive of the final amount of such claim) and, if the
party giving such a notice is a Company Indemnified Party, specifying the
basis hereunder upon which the Company Indemnified Party's claim for
indemnification is asserted. Any failure to deliver such a notice will not
relieve the Indemnifying Party from any obligation hereunder except if and
to the extent the indemnifying parties are actually prejudiced as a result
thereof. If the Transaction Claim is an Appraisal Claim, then the Company
shall provide the Indemnifying Party with a certificate of the President or
Vice President of the Company certifying the number of shares of the
Company's stock as to which demand for appraisal shall have been properly
made and shall periodically thereafter report any changes in the number of
shares as to which appraisal rights are, or potentially still able to be,
perfected under Section 262 of the Delaware General Corporation Law (the
"DGCL").
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(b) The Buyer may elect to assume the defense of the Transaction Claim
with counsel of its choice reasonably satisfactory to the Company
Indemnified Parties (it being agreed that the Wilmington, DE office of
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP is satisfactory), regardless of
whether the Company or any other Party had previously assumed such defense.
The Company shall cause its counsel to cooperate with Buyer in this regard.
The expenses incurred in such defense (including reasonable fees and
expenses of outside counsel referred to in the immediately preceding
sentence) shall be advanced by the Buyer but shall be considered
Liabilities under such
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Transaction Claim for purposes of this Agreement and Buyer shall be
reimbursed for 40% thereof as provided in Section 2.1 above. The Company
Indemnified Parties may retain separate counsel and participate in the
defense of the Transaction Claim, it being understood that the Buyer will
control such defense, and the cost of such counsel shall constitute a
Transaction Claim for purposes hereof.
(c) The Buyer shall have the right to contest, defend and litigate all
Transaction Claims. The Buyer shall not settle or compromise any
Transaction Claim without the consent of the Company (which consent will
not be unreasonably withheld). No Company Indemnified Party shall settle or
compromise any Transaction Claim without the consent of the Buyer (which
consent will not be unreasonably withheld).
(d) If the Company Indemnified Parties are entitled to indemnification
against a Transaction Claim, and Buyer fails to assume the defense of a
Transaction Claim pursuant to Section 2.4(b), the Company Indemnified
Parties shall have the right, without prejudice to the Company Indemnified
Parties' right of indemnification hereunder, in their good faith
discretion, to contest, defend and litigate such a Transaction Claim. If
pursuant to this Section 2.4, the Company Indemnified Parties so contest,
defend or litigate a Transaction Claim, for which they are entitled to
indemnification hereunder as hereinabove provided, the Company Indemnified
Parties shall be reimbursed by Buyer for 60% of the reasonable attorney's
fees and other expenses and court costs of defending, contesting and
litigating the Transaction Claim which are incurred from time to time,
following the presentation to Buyer or itemized bills for said attorneys'
fees and other expenses and court costs.
(e) Buyer will keep the Company Indemnified Parties, and the Company
will keep the Buyer, informed of all material developments relating to or
in connection with all Transaction Claims. The parties to this Agreement
shall cooperate in the investigation and defense thereof, which cooperation
shall include the provision of records and information which are reasonably
relevant to such Transaction Claim, and making employees available on a
mutually convenient basis to provide additional information and explanation
of any material provided hereunder.
(f) Notwithstanding anything to the contrary contained in this
Agreement or in the Merger Agreement, in the event that, in connection with
any settlement or judgment with respect to any Transaction Claim that is an
Appraisal Claim, the per share consideration paid to any shareholder of the
Company or ABC exercising dissenters' rights pursuant to Section 262 of the
DGCL is less than the Company Merger Consideration or ABC Merger
Consideration that such shareholder would otherwise have been entitled to
receive pursuant to the Merger Agreement had such shareholder not exercised
dissenters' rights, then the Company shall be required to promptly pay the
Buyer an amount equal to 60% of such shortfall.
(g) In the event of payment in full by the Indemnifying Party to any
Company Indemnified Party in connection with any Transaction Claim, the
Indemnifying Party will be subrogated and will stand in the place of the
Company Indemnified Party as to any events or circumstances in respect of
which the Company Indemnified Party may have any right or claim relating to
such Transaction Claim against any claimant or plaintiff asserting such
claim or against any other person. The Company Indemnified Parties will
cooperate with the Indemnifying Parties in a reasonable manner, and at the
cost and expense of the Indemnifying Party, in prosecuting any subrogated
right or claim.
2.5 Indemnity Reduction Amounts. The amount which any Indemnifying
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Parties are or may be required to pay to any Indemnified Parties in respect of
Liabilities arising under any Indemnity
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Claim or Transaction Claim will be reduced by any amounts actually received
(including amounts received under insurance polices) by or on behalf of the
Indemnified Parties from third parties relating to such payment (such amounts
are referred to herein as "Indemnity Reduction Amounts"). If the Indemnified
Parties receive any Indemnity Reduction Amounts in respect of an Indemnity Claim
or Transaction Claim after the full amount of such Indemnified Claim has been
paid by the Indemnifying Parties or after the Indemnifying Parties have made a
partial payment of such Indemnified Claim and such Indemnity Reduction Amounts
exceed the remaining unpaid balance of such Indemnity Claim or Transaction
Claim, then the Indemnified Parties will promptly remit to the Indemnifying
Parties an amount equal to the excess of (i) the amount theretofore paid by the
Indemnifying Parties in respect of such Indemnity Claim or Transaction Claim,
less (ii) the amount of the indemnity payment that would have been due if such
Indemnity Reduction Amounts in respect thereof had been received before the
indemnity payment was made. An insurer or other third party who would otherwise
be obligated to pay any claim shall not be relieved of the responsibility with
respect thereto or, solely by virtue of the indemnification provisions hereof,
have any subrogation rights with respect thereto, it being expressly understood
and agreed that no insurer or any other third party shall be entitled to any
benefit they would not be entitled to receive in the absence of the
indemnification provisions by virtue of the indemnification provisions hereof.
ARTICLE III
Confidentiality
3.1 Confidential Information. The Parties hereto expressly acknowledge and
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agree that all information, whether written or oral, furnished by either Party
to the other Party or any Affiliate of such other Party pursuant to this
Agreement, including any schedules and exhibits hereto ("Confidential
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Information") shall be deemed to be confidential and shall be maintained by each
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Party and their respective Affiliates in confidence, using the same degree of
care to preserve the confidentiality of such Confidential Information that the
Party to whom such Confidential Information is disclosed would use to preserve
the confidentiality of its own information of a similar nature and in no event
less than a reasonable degree of care. Except as authorized in writing by the
other Party, neither Party shall at any time disclose or permit to be disclosed
any such Confidential Information to any person, firm, corporation or entity,
(i) except as may reasonably be required in connection with the performance of
this Agreement by Buyer, the Company or their respective Affiliates, as the case
may be, and (ii) except to the Parties' agents or representatives who are
informed by the Parties of the confidential nature of the information and are
bound to maintain its confidentiality, and (iii) in the course of due diligence
in connection with the sale of all or a portion of either Party's business,
provided the disclosure is pursuant to a written nondisclosure agreement having
terms comparable to Sections 3.1 and 3.2.
3.2 Exceptions. The obligation not to disclose information under Section
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3.1 shall not apply to information that, as of the Closing or thereafter, (i) is
or becomes generally available to the public other than as a result of
disclosure made after the execution of the Asset Purchase Agreement by the Party
desiring to treat such information as nonconfidential or any of its Affiliates
or representatives thereof, (ii) was or becomes readily available to the Party
desiring to treat such information as nonconfidential or any of its Affiliates
or representatives thereof on a nonconfidential basis prior to its disclosure to
such Party by the other Party, or (iii) becomes available to the Party desiring
to treat such information as nonconfidential or any of its Affiliates or
representatives thereof on a nonconfidential basis from a source other than its
own files or personnel or the other Party or its Subsidiaries, provided, that
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such source is not known by the Party desiring to treat such information as
nonconfidential to be bound by confidentiality agreements with the other party
or its Affiliates or by legal, fiduciary constraints on disclosure of such
information, or (iv) is required to be disclosed pursuant to a governmental
order or
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decree or other legal requirement (including the requirements of the U.S.
Securities and Exchange Commission and the listing rules of any applicable
securities exchange), provided, that the Party required to disclosure such
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information shall give the other Party prompt notice thereof prior to such
disclosure and, at the request of the other Party, shall cooperate in all
reasonable respects in maintaining the confidentiality of such information,
including obtaining a protective order or other similar order. Nothing in this
Section 3.2 shall limit in any respect either Party's ability to disclose
information in connection with the enforcement by such Party of its rights under
this Agreement.
ARTICLE IV
Miscellaneous and General
4.1 Modification or Amendment. Subject to the provisions of applicable
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law, the parties hereto may only modify or amend this Agreement by written
agreement executed and delivered by duly authorized officers of Buyer and the
Company.
4.2 Counterparts. This Agreement may be executed in any number of
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counterparts, each such counterpart being deemed to be an original instrument,
and all such counterparts shall together constitute the same agreement.
4.3 GOVERNING LAW AND VENUE: WAIVER OF JURY TRIAL
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(a) THIS AGREEMENT AND ANY DISPUTES, CLAIMS OR CONTROVERSIES ARISING
FROM OR RELATING TO THIS AGREEMENT SHALL BE DEEMED TO BE MADE IN AND IN ALL
RESPECTS SHALL BE INTERPRETED, CONSTRUED AND GOVERNED BY AND IN ACCORDANCE
WITH THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAW
PRINCIPLES THEREOF. Each of the Company and Buyer hereby irrevocably
submits to the jurisdiction of the courts of the State of New York and the
Federal courts of the United States of America located in the County of New
York, New York solely in respect of the interpretation and enforcement of
the provisions of this Agreement and of the documents referred to in this
Agreement, and in respect of the transactions contemplated hereby, and
hereby waive, and agree not to assert, as a defense in any action, suit or
proceeding for the interpretation or enforcement of this Agreement or of
any such document, that it is not subject thereto or that such action, suit
or proceeding may not be brought or is not maintainable in said courts or
that the venue thereof may not be appropriate or that this Agreement or any
such document may not be enforced in or by such courts, and each of the
Company and Buyer irrevocably agrees that all claims with respect to such
action or proceeding shall be heard and determined in such a New York State
or Federal court. Each of the Company and Buyer hereby consents to and
grants any such court jurisdiction over the person of such party and over
the subject matter of such dispute and agree that mailing of process or
other papers in connection with any such action or proceeding in the manner
provided in Section 4.4 or in such other manner as may be permitted by law
shall be valid and sufficient service thereof.
(b) EACH OF COMPANY AND BUYER ACKNOWLEDGES AND AGREES THAT ANY
CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE
COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING
OUT OF OR RELATING TO THIS AGREEMENT,
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OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES
AND ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii)
EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER,
(iii) EACH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (iv) EACH PARTY HAS
BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 4.3.
4.4 Notices. Any notice, request, instruction or other document to be
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given hereunder by any party to the others shall be in writing and shall be
deemed to have been delivered (i) on the date of service, if served personally,
(ii) upon confirmation of receipt, if transmitted by facsimile, electronic or
digital transmission method, (iii) on the first business day after sent, if sent
for next day delivery by recognized overnight delivery service and (iv) on the
third day after it is sent, if sent by first class mail. In each case, notice
shall have been sent to the Parties at the following addresses:
if to Buyer
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Armkel, LLC
c/o Kelso & Company
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇/▇▇/ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
(with copies to:
▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
and
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▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
if to the Company
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MedPointe Inc.
▇▇ ▇▇▇ ▇▇▇▇▇▇▇
▇/▇▇/ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. Wild
fax: (▇▇▇) ▇▇▇-▇▇▇▇
(with a copy to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: 212-455-2502)
or to such other persons or addresses as may be designated in writing by the
Party to receive such notice as provided above.
4.5 Entire Agreement. This Agreement, the Asset Purchase Agreement and
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the other Ancillary Agreements (as defined in the Asset Purchase Agreement),
including any schedules and exhibits hereto or thereto, constitute the entire
agreement and supersede all other prior agreements, understandings,
representations and warranties both written and oral, among the Parties with
respect to the subject matter of this Agreement.
4.6 Severability. It is the intention of the Parties that the provisions
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of this Agreement shall be deemed severable and the invalidity or
unenforceability of any provision shall not affect the validity or
enforceability of the other provisions of this Agreement. It is the intention of
the Parties that if any provision of this Agreement, or the application thereof
to any Person or any circumstance, is invalid or unenforceable, (a) a suitable
and equitable provision shall be substituted therefor in order to carry out, so
far as may be valid and enforceable, the intent and purpose of such invalid or
unenforceable provision and (b) the remainder of this Agreement and the
application of such provision to other Persons or circumstances shall not be
affected by such invalidity or unenforceability, nor shall such invalidity or
unenforceability affect the validity or enforceability of such provision, or the
application thereof, in any other jurisdiction.
4.7 Assignment. This Agreement and any rights and obligations hereunder
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shall not be assignable by any Party whether by operation of law or otherwise,
without the prior written consent of the other Party, and any assignment made in
contravention of this Section 4.7 shall be null and void.
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4.8 No Third-Party Beneficiary Rights. This Agreement is not intended
---------------------------------
to confer upon any Person, other than the Company Indemnified Parties and the
Buyer Indemnified Parties and other than as set forth below, any rights or
remedies hereunder or in connection herewith. Company's and Buyer's Affiliates
and Company's and Buyer's successors and permitted assigns are intended third
party beneficiaries of this Agreement.
4.9 Headings/Construction. Section headings contained in this Agreement
---------------------
are for convenient reference only, and shall not in any way affect the meaning
or interpretation of this Agreement. The language used in this Agreement will be
deemed the language chosen by the Parties to express their mutual intent, and no
rule of strict construction will be applied against any Person.
4.10 Amendments and Waivers to Other Indemnification Agreement. The
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Company will not amend, modify or waive any rights under the Indemnification
Agreement, dated as of the date hereof, by and among certain stockholders of
ABC, the Company and ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Inc. (the "Other Indemnification Agreement")
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if such amendment, modification or waiver directly or indirectly relates to
Transaction Claims.
4.11 Product Line Purchase Agreement. The Company shall have the right
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to enforce Buyer's rights against Church & ▇▇▇▇▇▇ Co., Inc. ("Church & ▇▇▇▇▇▇")
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under the Product Line Purchase Agreement (the "Product Line Purchase
---------------------
Agreement") dated as of the date of this Agreement between Buyer and Church &
---------
▇▇▇▇▇▇ if Buyer fails to do so, to the extent Buyer has failed to indemnify the
Company with respect to Assumed Liabilities for which Church & ▇▇▇▇▇▇ is
obligated to assume or indemnify Buyer under the Product Line Purchase
Agreement, and a provision to such effect shall be included in such Product Line
Purchase Agreement.
9
IN WITNESS WHEREOF, the Parties have caused this Agreement to be
executed by their proper officers, duly authorized to do so, as of the date
first written above.
▇▇▇▇▇▇-▇▇▇▇▇▇▇, Inc.
By: ___________________________
Name:
Title:
Armkel, LLC
By: _________________________
Name:
Title:
10
