EXHIBIT 10.6
SEPARATION AGREEMENT
This SEPARATION AGREEMENT ("Separation Agreement") is entered into as of
April __, 1998, by and between XXXXXX CORPORATION, a Delaware corporation
("Xxxxxx") and OMEGA PROTEIN CORPORATION, a Nevada corporation ("Protein").
R E C I T A L S:
X. Xxxxxx, a public company whose common shares are traded on the New York
Stock Exchange, owns 19,676,000 shares of Protein's common stock, par value $.01
per share (the "Common Stock"), constituting all of the issued and outstanding
Common Stock.
X. Xxxxxx'x Board of Directors (the "Xxxxxx Board") has determined, subject
to its further consideration and the satisfaction of certain conditions, to
reduce its ownership of Protein to approximately 66.2% of the outstanding Common
Stock (prior to the exercise of the over-allotment options referred to below) by
means of an initial public offering by Protein of 4,000,000 shares of Common
Stock and the sale by Xxxxxx of 4,000,000 shares of Common Stock (the "IPO")
(together with an additional 1,200,000 shares of Common Stock which shall be
subject to over-allotment options granted on an equal basis by Protein and
Xxxxxx, respectively, to the IPO underwriters) as described in the registration
statement on Form S-1 (Registration No. 333-44967) filed by Protein with the
Securities and Exchange Commission (the "SEC") on or about January 27, 1998 (as
amended from time to time, including information deemed to be a part of such
registration statement at the time it becomes effective pursuant to SEC Rule
430A, the "Registration Statement").
C. The parties hereto have determined that it is necessary and desirable to
set forth certain agreements and undertakings between Xxxxxx and Protein that
will govern certain matters following the IPO.
ARTICLE 1
DEFINITIONS
1.1 GENERAL. As used in this Separation Agreement, the following terms
shall have the following meanings (such meanings to be equally applicable to
both the singular and plural forms of the terms defined):
"Affiliate" means a Protein Affiliate or a Xxxxxx Affiliate, as the
case may be.
"Business Day" means any day other than a Saturday, a Sunday or a day on
which banking institutions located in the State of Texas are authorized or
obligated by law or executive order to close.
"Closing Date" means the date on which the 8,000,000 shares of Common Stock
offered in the IPO are paid for by and delivered to the IPO underwriters.
"Code" means the Internal Revenue Code of 1986, as amended.
"Control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of a Person,
whether through ownership of voting securities, by contract or otherwise.
"Foreign Citizen" means any Person other than: (i) any individual who is a
citizen of the U.S. by birth, naturalization, or as otherwise authorized by law;
and (ii) any corporation, partnership, association, limited liability company,
joint venture (if not an association, corporation, partnership or limited
liability company) or other business organization which is a citizen of the
United States as determined by Protein's Board of Directors consistent with the
definition of U.S. Citizen used for purpose of determining the Company's
eligibilty for documentation for a fishery endorsement under the Shipping Act,
1916, as amended, or any successor statute and the rules and regulations
pertaining thereto as interpreted by the Maritime Administration, the Cost Guard
or any other agencies of the United States government charged with the
administration of the Shipping Act, 1916, as amended, or any court of law. The
foregoing definition is applicable at all tiers of ownership and in both form
and substance at each tier of ownership.
"Group" means the Xxxxxx Group or the Protein Group.
"Indemnifiable Losses" means all losses, liabilities, damages, claims,
demands, judgments or settlements of any nature or kind, known or unknown,
fixed, accrued, absolute or contingent, liquidated or unliquidated, including,
without limitation, all reasonable costs and expenses (including, without
limitation, attorneys' fees, and defense and accounting costs) as such costs are
incurred relating thereto, incurred or suffered by an Indemnitee.
"Indemnifying Party" means a Person who or which is obligated under this
Separation Agreement to provide indemnification.
"Indemnitee" means a Person who or which is entitled to indemnification
under this Separation Agreement.
"Indemnity Payment" means an amount that an Indemnifying Party is required
to pay to an Indemnitee pursuant to Article 3.
"Insurance Proceeds" means those monies received by an insured from an
insurance carrier or paid by an insurance carrier on behalf of the insured, in
either case, to the extent mutually agreed upon by Protein and Xxxxxx acting
reasonably, net of any applicable premium adjustment.
"Offering Documents" means collectively: (a) the Registration Statement,
including the Prospectus contained therein, (b) any Prospectus subject to
completion or any Prospectus filed with the SEC under Rule 424 under the
Securities Act or any Term Sheet
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first filed pursuant to Rule 424(b)(7) under the Securities Act together with
the preliminary Prospectus identified therein which such Term Sheet supplements,
used, in each case, in connection with the offering of the Common Stock under
the Registration Statement, (c) any other filing made with the SEC by a member
of the Protein Group in connection with the IPO or (d) any amendment or
supplement to any of the documents described in clauses (a) through (c) of this
definition.
"Person" means an individual, a partnership, a joint venture, a
corporation, a limited liability company, a trust, an unincorporated
organization or a government or any department or agency thereof.
"Protein Affiliate" means a Person that directly, or indirectly through one
or more intermediaries, Controls or is Controlled by Protein, provided, however,
that for purposes of this Separation Agreement none of the following Persons
shall be considered Protein Affiliates: (i) Xxxxxx or any Subsidiary of Xxxxxx
and (ii) any corporation less than fifty-one percent (51%) of whose voting stock
is directly or indirectly owned by Protein and (iii) any partnership or joint
venture less than fifty-one percent (51%) of whose interests in profits and
losses is directly or indirectly owned by Protein.
"Protein Group" means, collectively, Protein and the Protein Affiliates, or
any one or more of such companies.
"Registration Rights Agreement" means the Registration Rights Agreement in
the form of Exhibit A annexed hereto to be entered into by Xxxxxx and Protein.
"Representative" means with respect to any Person, any of such Person's
directors, officers, employees, agents, consultants, advisors, accountants and
attorneys.
"Securities Act" means the Securities Act of 1933, as amended, together
with the rules and regulations promulgated thereunder.
"Services Agreement" means the Administrative Services Agreement in the
form of Exhibit B annexed hereto to be entered into by Xxxxxx and Protein.
"Sublease Agreement" means the Sublease Agreement in the form of Exhibit C
annexed hereto to be entered into by Xxxxxx and Protein.
"Subsidiary" means, with respect to any specified Person, any corporation
or other legal entity of which such Person or any of its subsidiaries Controls
or owns, directly or indirectly, more than fifty percent (50%) of the stock or
other equity interest entitled to vote on the election of members to the board
of directors or similar governing body; provided, however, that for purposes of
this Separation Agreement, neither Protein nor any Subsidiary of Protein shall
be deemed to be a Subsidiary of Xxxxxx or of any Subsidiary of Xxxxxx.
"Tax" means as defined in the Tax Indemnification Agreement.
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"Tax Indemnity Agreement" means the Tax Indemnification Agreement in the
form of Exhibit C annexed hereto to be entered into by Xxxxxx and Protein.
"Third-Party Claim" means any claim, suit, arbitration, inquiry, proceeding
or investigation by or before any court, any governmental or other regulatory or
administrative agency or commission or any arbitration tribunal asserted by a
Person who is not a member of the Xxxxxx Group or the Protein Group.
"Underwriting Agreement" means the Underwriting Agreement to be entered
into on the Closing Date by Protein and Xxxxxx with Prudential Securities
Incorporated and Deutsche Xxxxxx Xxxxxxxx Inc., as representatives of the
several underwriters therein, pursuant to which Protein and Xxxxxx shall sell on
an equal basis to such underwriters up to 8,600,000 shares.
"Xxxxxx Affiliate" means a Person that directly, or indirectly through one
or more intermediaries, Controls or is Controlled by Xxxxxx; provided, however,
that for purposes of this Separation Agreement none of the following Persons
shall be considered Xxxxxx Affiliates: (i) Protein and any Subsidiary of
Protein, (ii) any corporation less than fifty-one percent (51%) of whose voting
stock is directly or indirectly owned by Xxxxxx and (iii) any partnership or
joint venture less than fifty-one percent (51%) of whose interests in profits
and losses is directly or indirectly owned by Xxxxxx.
"Xxxxxx Group" means, collectively, Xxxxxx and the Xxxxxx Affiliates, or
any one or more of such companies.
ARTICLE 2
CERTAIN TRANSACTIONS IN CONNECTION WITH THE IPO
2.1 EXECUTION AND DELIVERY OF CERTAIN AGREEMENTS. Contemporaneously with
the closing of the IPO, Protein and Xxxxxx shall execute and deliver to one
another the Tax Indemnification Agreement, the Registration Rights Agreement,
the Services Agreement and the Sublease Agreement (collectively, the "Other
Agreements").
2.2 PAYMENT OF INTERCOMPANY INDEBTEDNESS. Promptly following the Closing
Date, Protein shall repay to Xxxxxx $33,300,000 of the principal amount of the
indebtedness owed by Protein to Xxxxxx.
2.3 IPO EXPENSES. Protein and Xxxxxx shall be responsible for and shall pay
on a pro rata basis according to the number of shares of Common Stock issued or
sold by them, respectively, in the IPO the direct expenses incurred by Protein
to effect the IPO (including the fees of counsel and accountants), all of the
fees and reimbursable expenses of the underwriters relating to the IPO (except
for the underwriters' discount and commissions and selling concessions with
respect to Common Stock sold to the IPO underwriters - the "Selling Expenses"),
as well as all of the costs of producing, printing, mailing and otherwise
distributing the Prospectus. Xxxxxx shall be responsible for all of its Selling
Expenses as well as all of the fees and disbursements of counsel it has retained
to represent it in connection with the IPO. Protein shall be responsible for all
of its Selling Expenses.
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ARTICLE 3
SURVIVAL, ASSUMPTION AND INDEMNIFICATION
3.1 ASSUMPTION AND INDEMNIFICATION.
(a) Subject to Section 3.1(c), from and after the Closing Date, Xxxxxx
shall indemnify, defend and hold harmless each member of the Protein Group, each
of their Representatives and each of the heirs, executors, successors and
assigns of any of the foregoing from and against all Indemnifiable Losses of any
such member or Representative relating to, arising out of or due to any untrue
statement or alleged untrue statement of a material fact contained in any
Offering Document or the omission or alleged omission to state in any of the
Offering Documents a material fact required to be stated therein or necessary to
make the statements therein not misleading, but only insofar as any such
statement or omission was made with respect to (A) a matter of historical fact
relating to a member of the Xxxxxx Group or (B) the present or future intentions
of Xxxxxx or any member of the Xxxxxx Group, in reliance upon and in conformity
with information furnished by Xxxxxx in writing specifically for use in
connection with the preparation of the Offering Documents and designated in such
writing as having been so furnished.
(b) Subject to Section 3.1(c), from and after the Closing Date, Protein
shall indemnify, defend and hold harmless each member of the Xxxxxx Group, each
of their Representatives and each of the heirs, executors, successors and
assigns of any of the foregoing from and against all Indemnifiable Losses of any
such member or Representative relating to, arising out of or due to any untrue
statement or alleged untrue statement of a material fact contained in any
Offering Document or the omission or alleged omission to state in any of the
Offering Documents a material fact required to be stated therein or necessary to
make the statements therein not misleading; provided that Protein will not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made with respect to (i) a
matter of historical fact relating to a member of the Xxxxxx Group or (ii) the
present or future intentions of Xxxxxx or any member of the Xxxxxx Group, in
reliance upon and in conformity with information furnished by Xxxxxx in writing
specifically for use in connection with the preparation of the Offering
Documents and designated in such writing as having been so furnished.
(c) If an Indemnitee realizes a Tax benefit or detriment by reason of
having incurred an Indemnifiable Loss for which such Indemnitee receives an
Indemnity Payment from an Indemnifying Party or by reason of receiving an
Indemnity Payment, then such Indemnitee shall pay to such Indemnifying Party an
amount equal to the Tax benefit, or such Indemnifying Party shall pay to such
Indemnitee an additional amount equal to the Tax detriment (taking into account
any Tax detriment resulting from the receipt of such additional amounts), as the
case may be. If, in the opinion of counsel to an Indemnifying Party reasonably
satisfactory in form and substance to the affected Indemnitee, there is a
substantial likelihood that the Indemnitee will be entitled to a Tax benefit by
reason of an Indemnifiable Loss, the Indemnifying Party promptly shall notify
the Indemnitee and the Indemnitee promptly shall take any steps (including the
filing of such returns, amended returns or claims for refunds consistent with
the claiming of such Tax benefit) that, in the
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reasonable judgment of the Indemnifying Party, are necessary and appropriate to
obtain any such Tax benefit. If, in the opinion of counsel to an Indemnitee
reasonably satisfactory in form and substance to the affected Indemnifying
Party, there is a substantial likelihood that the Indemnitee will be subjected
to a Tax detriment by reason of an Indemnification Payment, the Indemnitee
promptly shall notify the Indemnifying Party and the Indemnitee promptly shall
take any steps (including the filing of such returns or amended returns or the
payment of Tax underpayments consistent with the settlement of any liability for
Taxes arising from such Tax detriment) that, in the reasonable judgment of the
Indemnitee, are necessary and appropriate to settle any liabilities for Taxes
arising from such Tax detriment. If, following a payment by an Indemnitee or an
Indemnifying Party pursuant to this Section 3.1(c) in respect of a Tax benefit
or detriment, there is an adjustment to the amount of such Tax benefit or
detriment, then each of Xxxxxx and Protein shall make appropriate payments to
the other, including the payment of interest thereon at the federal statutory
rate then in effect, to reflect such adjustment. This Section 3.1(c) shall
govern the matters discussed in this Section and shall control over any
conflicting language in the Tax Indemnification Agreement.
(d) The amount which an Indemnifying Party is required to pay to any
Indemnitee pursuant to this Section 3.1 shall be reduced (including
retroactively) by any Insurance Proceeds and other amounts actually recovered by
such Indemnitee in reduction of the related Indemnifiable Loss. Xxxxxx and
Protein shall use their respective best efforts to collect any Insurance
Proceeds or other amounts to which they or any of their Subsidiaries are
entitled, without regard to whether they are the Indemnifying Party hereunder.
If an Indemnitee receives an Indemnity Payment in respect of an Indemnifiable
Loss and subsequently receives Insurance Proceeds or other amounts in respect of
such Indemnifiable Loss, then such Indemnitee shall pay to such Indemnifying
Party an amount equal to the difference between (i) the sum of the amount of
such Indemnity Payment and the amount of such Insurance Proceeds or other
amounts actually received and (ii) the amount of such Indemnifiable Loss,
adjusted (at such time as appropriate adjustment can be determined) in each case
to reflect any premium adjustment attributable to such claim.
3.2 PROCEDURE FOR INDEMNIFICATION.
(a) If any Indemnitee receives notice of the assertion of any Third-Party
Claim with respect to which an Indemnifying Party is obligated under this
Separation Agreement to provide indemnification, such Indemnitee shall give such
Indemnifying Party notice thereof promptly after becoming aware of such
Third-Party Claim; provided, however, that the failure of any Indemnitee to give
notice as provided in this Section 3.2 shall not relieve any Indemnifying Party
of its obligations under this Article 3, except to the extent that such
Indemnifying Party is actually prejudiced by such failure to give notice. Such
notice shall describe such Third-Party Claim in reasonable detail.
(b) An Indemnifying Party, at such Indemnifying Party's own expense and
through counsel chosen by such Indemnifying Party (which counsel shall be
reasonably satisfactory to the Indemnitee), may elect to defend any Third-Party
Claim. If an Indemnifying Party elects to defend a Third-Party Claim, then,
within ten (10) Business Days after receiving notice of such Third-Party Claim
(or sooner, if the nature of such Third-Party
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Claim so requires), such Indemnifying Party shall notify the Indemnitee of its
intent to do so, and such Indemnitee shall cooperate in the defense of such
Third-Party Claim. After notice from an Indemnifying Party to an Indemnitee of
its election to assume the defense of a Third-Party Claim, such Indemnifying
Party shall not be liable to such Indemnitee under this Article 3 for any legal
or other expenses subsequently incurred by such Indemnitee in connection with
the defense thereof; provided, however, that such Indemnitee shall have the
right to employ one law firm as counsel to represent such Indemnitee (which firm
shall be reasonably acceptable to the Indemnifying Party) if, in such
Indemnitee's reasonable judgment, either a conflict of interest between such
Indemnitee and such Indemnifying Party exists in respect of such claim or there
may be defenses available to such Indemnitee which are different from or in
addition to those available to such Indemnifying Party, and in that event (i)
the reasonable fees and expenses of such separate counsel shall be paid by such
Indemnifying Party (it being understood, however, that the Indemnifying Party
shall not be liable for the expenses of more than one separate counsel (in
addition to local counsel) with respect to any Third-Party Claim (even if
against multiple Indemnitees)) and (ii) each of such Indemnifying Party and such
Indemnitee shall have the right to conduct its own defense in respect of such
claim. If an Indemnifying Party elects not to defend against a Third-Party
Claim, or fails to notify an Indemnitee of its election as provided in this
Section 3.2 within the period of ten (10) Business Days described above, such
Indemnitee may defend, compromise and settle such Third-Party Claim; provided,
however, that no such Indemnitee may compromise or settle any such Third-Party
Claim without the prior written consent of the Indemnifying Party, which consent
shall not be withheld unreasonably. Notwithstanding the foregoing, the
Indemnifying Party shall not, without the prior written consent of the
Indemnitee, (i) settle or compromise any Third-Party Claim or consent to the
entry of any judgment which does not include as an unconditional term thereof
the delivery by the claimant or plaintiff to the Indemnitee of a written release
from all liability, damage or claims of any nature or kind in respect of such
Third-Party Claim or (ii) settle or compromise any Third-Party Claim in any
manner that may adversely affect the Indemnitee.
3.3 REMEDIES CUMULATIVE. The remedies provided in this Article 3 shall be
cumulative and shall not preclude assertion by any Indemnitee of any other
rights or the seeking of any other remedies against any Indemnifying Party.
3.4 EFFECT ON UNDERWRITING AGREEMENT. Notwithstanding anything to the
contrary that may be contained in the Underwriting Agreement or this Separation
Agreement: (i) the provisions of Section 3.1(a) and (b) shall govern and control
the indemnification, defense and hold harmless arrangements, and any claims or
losses arising hereunder, between the Xxxxxx Group on the one hand and the
Protein Group on the other with respect to Indemnifiable Losses covered thereby;
and (ii) the provisions of such Underwriting Agreement shall govern and control
the indemnification, defense and hold harmless arrangements, and any claims or
losses arising thereunder, between the Protein Group and the Xxxxxx Group on the
one hand and the IPO underwriters on the other.
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ARTICLE 4
ACCESS TO INFORMATION
4.1 PROVISION OF CORPORATE RECORDS. Prior to or as promptly as practicable
after the Closing Date, Xxxxxx shall use reasonable efforts to accommodate
Protein with respect to the delivery to Protein of all corporate books and
records of the Protein Group, including in each case copies of all active
agreements, active litigation files and government filings. From and after the
Closing Date, all books, records and copies so delivered shall be the property
of Protein.
4.2 ACCESS TO INFORMATION. From and after the Closing Date, each of Xxxxxx
and Protein shall afford to the other, and shall cause the members of their
respective Groups to so afford, reasonable access and duplicating rights during
normal business hours to all information within such party's possession relating
to such other party's businesses, assets or liabilities, insofar as such access
is reasonably required by such other party. Without limiting the foregoing,
information may be requested under this Section 4.2 for audit, accounting,
claims, litigation and Tax purposes, as well as for purposes of fulfilling
disclosure and reporting obligations, as Protein may reasonably request and
which are directly related to the Protein Business.
ARTICLE 5
COVENANT NOT-TO-COMPETE
Xxxxxx hereby covenants and agrees that, for a period of five years from
the Closing Date, it will not engage in or invest in any business that harvests
and/or processes fish into fish meal, fish oil or fish solubles or sells such
products anywhere in the United States. Xxxxxx acknowledges that any breach or
threatened breach of any of the provisions of this Article 5 cannot be remedied
solely by recovery of damages and that Protein shall be entitled to obtain an
injunction against such breach or threatened breach. Nothing herein, however,
shall be construed as prohibiting Protein from pursuing, in connection with an
injunction or otherwise, any other remedies available at law or in equity for
any such breach or threatened breach, including the recovery of money damages.
If any provision of this Article 5 is found to be unreasonably broad, it shall
nevertheless be enforceable to the extent reasonably necessary for Protein to
carry out to the fullest extent the parties' mutual intent in entering into this
Agreement on this date, which intent is that the provisions of this Article will
be strictly enforced as agreed to.
ARTICLE 6
RESTRICTIONS ON TRANSFER OF COMMON STOCK
6.1 RESTRICTIONS ON TRANSFER. Xxxxxx shall not assign, encumber, pledge,
sell, transfer or otherwise dispose of any shares of Common Stock retained by it
after the IPO (and any exercise of an over-allotment option by the IPO
underwriters) (or any other securities held by Xxxxxx at any time that are
exercisable, convertible or exchangeable for Common Stock) now or hereafter
owned by it (i) to any Foreign Person or (ii) in any transaction (other than
another member of the Xxxxxx Group who agrees to be bound by these restrictions)
unless it first provides Protein with 30 days advance written notice thereof
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(so as to allow Protein sufficient time to put in place procedures to monitor
the number of outstanding shares owned by Foreign Persons and impose any
appropriate transfer restrictions).
6.2 STOCK CERTIFICATE LEGEND. In order to effectuate the restrictions
contained in this Article 6, all certificates and instruments evidencing any
Common Stock (or other securities that are exercisable, convertible or
exchangeable for Common Stock) held by Xxxxxx will be endorsed as follows:
The assignment, encumbrance, pledge, sale, transfer or other
disposition of the securities evidenced hereby is limited
and restricted by the terms of a Separation Agreement
between the registered owner hereof and the Corporation,
dated April __, 1998.
ARTICLE 7
MISCELLANEOUS
7.1 TERMINATION. Notwithstanding any other provision hereof, this
Separation Agreement may be terminated if the IPO is abandoned, which decision
can be made at any time by and in the sole discretion of the Xxxxxx Board of
Directors without the approval of Protein.
7.2 COMPLETE AGREEMENT. This Separation Agreement and the Exhibits hereto
and the agreements (including the Other Agreements) and other documents referred
to herein and therein shall constitute the entire agreement between the parties
hereto with respect to the subject matter hereof and shall supersede all
previous negotiations, commitments and writings with respect to such subject
matter.
7.3 AUTHORITY. Each of the parties hereto represents to the other that (i)
it has the power and authority to execute, deliver and perform this Separation
Agreement and the Other Agreements, (ii) the execution, delivery and performance
of this Separation Agreement and the Other Agreements by it has been duly
authorized by all necessary corporate action, (iii) it has duly and validly
executed the Separation Agreement, (iv) this Separation Agreement and the Other
Agreements, when executed, will be the valid and binding obligation of such
party, enforceable against it in accordance with its terms subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and general equity principles.
7.4 GOVERNING LAW. This Separation Agreement shall be governed by and
construed in accordance with the laws of the State of Nevada (other than the
laws regarding choice of laws and conflicts of laws) as to all matters,
including matters of validity, construction, effect, performance and remedies.
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7.5 NOTICES. All notices, requests, claims, demands and other
communications hereunder (collectively, "Notices") shall be in writing and shall
be given (and shall be deemed to have been duly given upon receipt) by delivery
in person, by cable, telegram, telex, telecopy or other standard form of
telecommunications, or by registered or certified mail, postage prepaid, return
receipt requested, addressed as follows:
If to Xxxxxx: Xxxxxx Corporation
0000 Xx. Xxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx Xxxxxx, Chief Executive Officer
If to Protein: Omega Protein, Inc.
0000 Xx. Xxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxx X. xxx Xxxxxxxxx III,
Chief Executive Officer and President
or to such other address as any party hereto may have furnished to the other
parties by a notice in writing in accordance with this Section 7.5.
7.6 AMENDMENT AND MODIFICATION. This Separation Agreement may be amended or
modified in any material respect only by a written agreement signed by both of
the parties hereto.
7.7 SUCCESSORS AND ASSIGNS; NO THIRD-PARTY BENEFICIARIES. This Separation
Agreement and all of the provisions hereof shall be binding upon and inure to
the benefit of the parties hereto, their successors and permitted assigns, and
the members of their respective Groups, but neither this Separation Agreement
nor any of the rights, interests and obligations hereunder shall be assigned by
either party hereto without the prior written consent of the other party (which
consent shall not be unreasonably withheld). Except for the provisions of
Sections 3.2 and 3.3 relating to Indemnities, which are also for the benefit of
the other Indemnitees, this Separation Agreement is solely for the benefit of
the parties hereto and their Subsidiaries and Affiliates and is not intended to
confer upon any other Persons any rights or remedies hereunder.
7.8 COUNTERPARTS. This Separation Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
7.9 NO WAIVER. No failure by either party to take any action or assert any
right hereunder shall be deemed to be a waiver of such right in the event of the
continuation or repetition of the circumstances giving rise to such right,
unless expressly waived in writing by the party against whom the existence of
such waiver is asserted.
7.10 HEADINGS. The Article and Section headings contained in this
Separation Agreement are solely for the purpose of reference, are not part of
the agreement of the parties hereto and shall not in any way affect the meaning
or interpretation of this Separation
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Agreement.
7.11 ENFORCEABILITY. Any provision of this Separation Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. Each party acknowledges
that money damages would be an inadequate remedy for any breach of the
provisions of this Separation Agreement and agrees that the obligations of the
parties hereunder shall be specifically enforceable.
7.12 SURVIVAL OF AGREEMENTS. All covenants and agreements of the parties
hereto contained in this Separation Agreement shall survive the Closing Date.
XXXXXX CORPORATION
By: ___________________________________
Name: Xxxxx Xxxxxx
Title: Chief Executive Officer
OMEGA PROTEIN, INC.
By: ___________________________________
Name: Xxxxxx X. xxx Xxxxxxxxx III
Title: Chief Executive Officer and President
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