Exhibit 10.1
INDEMNIFICATION AGREEMENT
THIS AGREEMENT (the "Indemnification Agreement") is dated March 22,
1999, by and among BGI Acquisition LLC, a Wyoming limited liability company
("Parent"), BGI Acquisition Corp., a New York corporation ("Purchaser") and
Besicorp Ltd., a New York corporation ("BL").
RECITALS
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A. Parent, Purchaser and Besicorp Group Inc., a New York corporation
("Besicorp") have entered into an Agreement and Plan of Merger of even date
herewith (the "Merger Agreement") pursuant to which Purchaser will merge with
and into Besicorp, the separate existence of Purchaser shall cease and Besicorp
shall continue as the surviving corporation and wholly owned subsidiary of
Parent (the "Merger").
B. It is a condition to the consummation of the Merger by the Purchaser
that prior to the Merger (i) Besicorp transfer certain of its assets and
liabilities to BL as more fully described in the Merger Agreement and (ii)
Besicorp distribute to its shareholders all of the outstanding capital stock of
BL (the "Distribution").
C. Besicorp makes certain representations, warranties, and covenants in
the Merger Agreement and in this Indemnification Agreement, all of which will
survive the Closing in accordance therewith. Parent and Purchaser desire to
provide for indemnification with respect to breaches of these representations,
warranties, and covenants, all as set forth herein.
D. BL was formerly a subsidiary of Besicorp and is deriving substantial
value and benefits from the transfer of assets to it by Besicorp and the
transactions contemplated by the Merger Agreement.
E. It is a condition to the willingness of Parent and Purchaser to
enter into the Merger Agreement and the obligations of Parent and Purchaser to
consummate the Merger that BL indemnify and hold harmless Parent and Purchaser
(and, following the Merger the Surviving Corporation and the Remaining
Subsidiaries) and their respective members, affiliates, shareholders, officers,
directors, lenders and agents, and the heirs, successors and assigns of each of
the foregoing (each a "Purchaser Indemnitee" and, collectively, the "Purchaser
Indemnitees") from Damages (as herein defined), all as provided herein.
F. BL, Parent, Purchaser and Xxxxxxxx Xxxx Xxxxxxxx Xxxxxx Xxxxxxxx &
Xxxxx have entered into an Escrow Agreement of even date herewith pursuant to
which Besicorp has deposited into escrow certain funds as security for the
performance by BL of its obligations pursuant to this Indemnification Agreement
(the "Escrow Agreement").
AGREEMENTS
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Therefore, for the promises contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. Definitions. Unless otherwise defined herein, terms used herein
shall have the meanings ascribed to them in the Merger Agreement. As used in
this Indemnification Agreement, the following terms shall have the following
meanings:
(a) "Damages" means all liabilities, judgments, demands,
claims, actions or causes of action, regulatory, legislative or judicial
proceedings or investigations, assessments, levies, losses, fines, penalties,
damages, costs and expenses. For the purposes of clarification, any of the
foregoing Damages incurred or suffered by the Surviving Corporation or any
Remaining Subsidiary by virtue of a state of facts which constitute an
inaccuracy in or breach of a representation and warranty or covenant by Besicorp
or the effects thereby shall (without duplication) be deemed to have been
suffered by Parent. Without limiting the generality of the foregoing, Damages
include, without limitation: (i) reasonable attorneys', arbitrators',
accountants', investigators', environmental consultants' and experts' fees and
expenses, sustained or incurred in connection with the enforcement by a
Purchaser Indemnitee of its rights and remedies under this Indemnification
Agreement, the Merger Agreement, or any agreement executed by Besicorp or its
shareholders in connection therewith, or sustained or incurred in connection
with the defense or investigation of any Third Party Claim (as herein defined);
(ii) Damages incurred in connection with Litigation (as herein defined in
Section 3(g)(viii)); and (iii) costs and expenses incurred in connection with
compliance, remediation, monitoring, site investigation or corrective action, or
any other related cost or expense required pursuant to Environmental Laws or
Environmental Permits.
(b) "Person" shall mean an individual, partnership,
corporation, limited liability company, association, joint stock company, trust,
joint venture, or unincorporated organization, or the United States of America
or any other nation, or any state or other political subdivision thereof, or any
entity with executive, legislative, judicial, regulatory or administrative
functions of government; and
(c) "Third Party Claim" shall mean any claim, action, suit,
proceeding, investigation, or like matter which is asserted or threatened by a
Person other than the parties hereto, their successors and permitted assigns,
against any Purchaser Indemnitee or to which a Purchaser Indemnitee is subject.
The Existing Litigation Matters (as defined herein) shall not be classified as
Third Party Claims.
2. General. From and after the Closing, BL shall indemnify the
Purchaser Indemnitees as provided in this Indemnification Agreement. For the
purposes of this Indemnification Agreement, Besicorp shall be deemed to have
remade all representations and
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warranties contained in the Merger Agreement and this Indemnification Agreement
at the Closing with the same effect as if originally made at the Closing.
3. BL Indemnification Obligations. BL shall indemnify, save and keep
the Purchaser Indemnitees harmless and, to the extent provided herein, defend
against and from all Damages sustained or incurred by any Purchaser Indemnitee
as a result of, or arising out of, by virtue of, or in connection with:
(a) any inaccuracy in or breach of any representation and
warranty made by Besicorp in the Merger Agreement or in any closing document
delivered in connection with the Merger Agreement;
(b) any breach by Besicorp of, or failure by Besicorp to
comply with, any of its covenants or obligations under the Merger Agreement or
under this Indemnification Agreement;
(c) the existence of any Liability or other obligation of
Besicorp or any Subsidiary as of the Closing Date or arising out of or relating
to the Merger or any claim against a Purchaser Indemnitee with respect to any
such Liability or obligation or alleged Liability or obligation other than the
Permitted Liabilities, including, without limitation, Liability on account of
Taxes payable by Besicorp or for which Besicorp is liable, either by operation
of law or pursuant to the provisions of this Indemnification Agreement, the
Merger Agreement or the other Transaction Agreements, without regard to the fact
that any indemnifiable matter described in this Section 3(c) may have been
disclosed in the Company Disclosure Schedule or in any documents included or
referred to therein or may otherwise be known to Parent or Purchaser at the date
of this Indemnification Agreement or on the Closing Date;
(d) the failure of BL or any Subsidiary to pay and discharge
in full when due any of their respective Liabilities whenever or however arising
or existing, including Liability on account of Taxes other than the Permitted
Liabilities;
(e) any claims for indemnification by current or former
officers, directors, employees, agents or consultants of Besicorp or any
Subsidiary;
(f) any Third Party Claim to the extent it arises out of or
relates to any action or inaction of, or the conduct of the business of Besicorp
or any Subsidiary on or prior to the Closing Date, including the Closing Date
other than the Permitted Liabilities;
(g) without being limited by Paragraphs (a) through (f) above
and without regard to the fact that the Company Disclosure Schedule contains
information relating to any one or more of the items referred to in this Section
3(g) or in any documents included or referred to therein or may be otherwise
known to Parent or Purchaser at the date of this Indemnification Agreement or on
the Closing Date:
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(i) any violation of, or delinquency with respect to, any
decree, order or arbitration award or law, statute, or regulation in
effect on or prior to the Closing Date of or any agreement of Besicorp
(or any Subsidiary) with, or any license, Permit or Environmental
Permit granted to Besicorp (or any Subsidiary) by any federal, state or
local governmental authority to which the properties, assets, personnel
or business activities of Besicorp (or any Subsidiary) are subject (or
to which Besicorp (or any Subsidiary) is subject as it relates to the
properties, assets, personnel or business activities of Besicorp (or
any Subsidiary)), including, without limitation, laws, statutes and
regulations relating to Environmental Laws, occupational health and
safety, building codes, zoning, equal employment opportunities, fair
employment practices and discrimination;
(ii) any generation, transportation, storage, treatment,
disposal, release or threatened release of any Hazardous Materials
occurring on or prior to the Closing Date (including without limitation
those that allegedly result in, or result in, any release or threatened
release or treatment of Hazardous Materials after the Closing Date),
regardless of when liability is asserted, at any facility of Besicorp
(or any Subsidiary), regardless of whether Besicorp (or any Subsidiary
or any agent of Besicorp or any Subsidiary) operated such facility at
the time any such activity occurred;
(iii) any discharges or releases to or from storm, ground or
surface waters or wetlands, and any air emissions or pollution, which
result from or are caused by activities, events, conditions, omissions
or occurrences caused by Besicorp (or any Subsidiary or any agent of
Besicorp or any Subsidiary) on or prior to the Closing Date;
(iv) the exposure of and resulting consequences to any
persons, including, without limitation, employees of Besicorp (or any
Subsidiary or any agent of Besicorp or any Subsidiary), due to any
Hazardous Materials created, generated, processed, released, emitted,
stored, used, handled or originating on or prior to the Closing Date at
or near a facility owned, leased or otherwise used by Besicorp (or any
Subsidiary or any agent of Besicorp or any Subsidiary) or their
predecessors in the conduct of its business;
(v) any violation or alleged violation of, or obligation
imposed by, any Environmental Law or Environmental Permit as a result
of activities, events, conditions, omissions or occurrences prior to
the Closing Date, regardless of when the violation or alleged violation
or obligation arises or is asserted;
(vi) any employee pension benefit plan (as defined by Section
3(2) of ERISA) or any employee welfare benefit plan (as defined in
Section 3(1) of ERISA) which Besicorp or its affiliates as determined
under Code Section 414(b), (c), (m) or (o) ("ERISA Affiliate") have at
any time maintained or administered on or prior to the Closing Date or
to which Besicorp or its ERISA Affiliates have at any time contributed
(including, without limitation, any liability for health continuation
requirements under Code
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Section 4980B or Part 6 of Subtitle B of Title I of ERISA with respect
to any employee of Besicorp who does not become an employee of
Purchaser and any liability arising pursuant to Title IV of ERISA for
plan termination, withdrawal or partial withdrawal from any
multiemployer plan, or any lien to enforce any Title IV liability); any
benefits accrued pursuant to any employee plan at or prior to the
Closing Date other than benefits payable under insurance policies, or
any action or failure to act, in whole or in part, at or prior to the
Closing Date with respect to any employee benefit plan;
(vii) any federal or state Taxes, whether or not based on the
income of Besicorp, imposed upon Besicorp, or for which Besicorp is
liable, with respect to any taxable period or portion of a taxable
period ending on or prior to the Closing Date other than a Permitted
Liability; or
(viii) (a) litigation against Besicorp and/or the Subsidiaries
pending or threatened as of the Closing Date; and (b) any claims,
investigations, proceedings, actions or lawsuits asserted or initiated
before or after Closing arising out of or in connection with
pre-closing occurrences involving Besicorp and/or the Subsidiaries
(collectively, the "Litigation") other than arising pursuant to a
Permitted Liability.
4. Limitations on Indemnification Obligations.
(a) Except to the extent provided in Section 4(b) below, the
Purchaser Indemnitees shall not be entitled to recover under Section 3:
(i) unless a Notice of Claim (as defined herein) (or
notice of a Third Party Claim relating to a possible claim) has been
delivered to BL, on or prior to the fifth anniversary of the Closing
Date;
(ii) to the extent the aggregate claims actually paid
by BL or any of its Subsidiaries to the Purchaser Indemnitees
thereunder exceeds the aggregate Merger Consideration;
(iii) for Damages to the extent such Damages were
expressly included in the Adjustment Amount;
(iv) with respect to consequential damages relating
to lost profits or punitive damages (other than consequential damages
or punitive damages paid or payable to, or claimed by third parties);
(v) with respect to Damages arising from time spent
by Parent or its affiliates and their respective officers and
employees, for amounts in excess of their actual out-of-pocket costs.
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(b) Notwithstanding anything to the contrary herein contained the
limitations contained in Section 4(a)(i) and (ii) shall not apply to recovery
under Section 3(a) for or in connection with any inaccuracies in or breaches of
Sections 4.2.1, 4.2.4, 4.2.5, 4.2.14, 4.2.15, 4.2.16, 4.2.17, 4.2.21 and 4.2.26
of the Merger Agreement provided, however, that in the case of recovery under
Section 3(a) in connection with a breach of a representation and warranty in
Sections 4.2.14, 4.2.15, 4.2.16, 4.2.17, 4.2.21 and 4.2.26 of the Merger
Agreement, a Notice of Claim for a claim (or possible claim) must be delivered
on or prior to expiration of the applicable statute of limitations.
5. Satisfaction of Claims of Purchaser Indemnitees. The payment of any
Damages to which the Purchaser Indemnitees are entitled pursuant to this
Indemnification Agreement shall first be satisfied from funds held in the Escrow
Account pursuant to the terms of the Escrow Agreement, to the extent available,
until the Escrow Account has been reduced to zero and thereafter shall be
satisfied by BL directly by wire transfer in immediately available funds to such
bank account or accounts as Purchaser Indemnitees shall designate by written
notice to BL.
6. Procedures for Making Claims.
(a) BL and the Purchaser Indemnitees agree that the provisions
of this Section 6 will govern any claims for indemnification under this
Indemnification Agreement which do not involve any Third Party Claim or Existing
Litigation Matters. If and when a Purchaser Indemnitee desires to assert a claim
for Damages against BL pursuant to the provisions of this Indemnification
Agreement the Purchaser Indemnitee shall deliver to BL, reasonably promptly
after its receipt of a claim or specific and affirmative awareness of a
potential claim, a certificate signed by the Purchaser Indemnitee (the "Notice
of Claim"): (i) stating the amount of Damages (to the extent then known); and,
(ii) specifying to the extent possible (A) the individual items of Damages
included in the amount so stated, (B) the date each such item is to be paid or
accrued and (C) the basis upon which Damages are claimed. BL and the Purchaser
Indemnitees shall proceed, in good faith, and using reasonable efforts, to agree
upon the amount of such Damages. If BL does not notify the Purchaser within
thirty (30) days of the giving of such Notice of Claim that it disputes such
Damages, the amount of such Damages shall be conclusively deemed a liability of
BL hereunder. If BL and Purchaser are unable to agree on the amount of such
Damages within thirty (30) days after giving the Notice of Claim then the
provisions of Section 6(b) shall become effective.
(b) Each and every controversy or claim arising out of or
relating to indemnification for Damages pursuant to Section 6(a) (and Sections 7
and 8) of this Indemnification Agreement which BL and the Purchaser Indemnitees
(the "Parties") have not resolved, shall be resolved by arbitration in
accordance with the Center for Public Resources (the "CPR") Rules for
Non-Administered Arbitration of Business Disputes by one arbitrator (who shall
not be appointed by the Parties) selected from the CPR. Judgment upon the award
rendered in such arbitration shall be final and binding upon the Parties and may
be entered in any court having jurisdiction thereof. Notice of the demand for
arbitration shall be filed in writing with the
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other party to this Indemnification Agreement and with the office of the CPR,
located in Manhattan, New York, which such demand shall set forth in the same
degree of particularity as required for complaints under the Federal Rules of
Civil Procedure the claims to be submitted to arbitration. Additionally, the
demand for arbitration shall include appropriate copies of all documents on
which the claims are based and a list of all persons who the party seeking
arbitration will call as witnesses with respect to such claims. The arbitration
shall take place in Manhattan, New York. This agreement to arbitrate may be
specifically enforced by a court of competent jurisdiction under the applicable
law of the State of New York pertaining to arbitrations.
The arbitrator shall have the authority and jurisdiction to enter any
pre-arbitration awards that would aid and assist the conduct of the arbitration
or preserve the Parties' rights with respect to the arbitration as the
arbitrator shall deem appropriate in his discretion. The award of the arbitrator
shall be in writing and it shall specify in detail the issues submitted to
arbitration and the award of the arbitrator with respect to each of the issues
so submitted.
The provisions of the Federal Rules of Civil Procedure relating to the
right of discovery in civil actions shall be applicable to such arbitration
proceedings except as modified by the terms of this Indemnification Agreement.
Within thirty (30) days after the commencement of any arbitration proceeding
under this Indemnification Agreement, each party shall file with the arbitrator
its contemplated discovery plan outlining the desired documents to be produced,
the depositions to be taken and any other discovery action sought in the
arbitration proceeding. After a hearing, the arbitrator in an interim award
shall fix the scope and content of each Party's discovery plan as the arbitrator
deems appropriate. The arbitrator shall have the authority to modify, amend or
change such interim award fixing the discovery plans of the Parties upon
application by either Party, if good cause appears for doing so.
The "Prevailing Party" as determined by the arbitrator shall be
entitled to recover from the losing party reasonable expenses, attorneys' fees
and costs incurred in connection therewith and in the enforcement or collection
of any judgment or award rendered therein. The "Prevailing Party" means the
Party determined by the arbitrator to have most nearly prevailed, even if such
Party does not prevail in all matters, or is not the Party in whose favor an
award is rendered. Included within the cost recoverable pursuant to the terms of
this Section 6(b) shall be included service of process costs, filing fees,
arbitration fees, arbitrators' fees, court and reporter costs, investigative
costs, and expert witness fees. The award pursuant to such arbitration will be
final, binding and conclusive.
7. Third Party Claims. Within fifteen (15) business days following the
receipt of notice of a Third Party Claim, and in any event within the period
necessary to respond to such pleading, if applicable, the Purchaser Indemnitee
receiving the notice of the Third Party Claim shall (i) notify BL of its
existence setting forth with reasonable specificity the facts and circumstances
by which such party has received notice, and (ii) specify the basis hereunder
upon which the Purchaser Indemnitee's claim for indemnification is asserted. The
failure to deliver the
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notice described in the preceding sentence within the time frame required shall
not relieve BL of any liability under this Indemnification Agreement except to
the extent that BL is materially prejudiced thereby. The Purchaser Indemnitee
shall, upon reasonable notice, tender the defense of a Third Party Claim to BL.
If within twenty (20) days after the date on which written notice of a Third
Party Claim has been tendered pursuant to this Section 7 BL acknowledges in
writing to the Purchaser Indemnitee its indemnification obligations as provided
in this Indemnification Agreement (without qualification or reservation of
rights) and provides evidence reasonably satisfactory (such as the existence of
available funds in the Escrow Fund (as defined in the Escrow Agreement)) to the
Purchaser Indemnitee of BL's financial ability to pay all such Third Party
Claims and related expenses then, except as hereinafter provided, the Purchaser
Indemnitee shall not, and BL shall, have the right to contest, defend, litigate
or settle such Third Party Claim. The Purchaser Indemnitee shall have the right
to be represented by counsel and to participate at its own expense in any such
contest, defense, litigation or settlement conducted by BL provided that the
Purchaser Indemnitee shall be entitled to reimbursement if BL shall lose its
right to contest, defend, litigate and settle the Third Party Claim as herein
provided. BL shall lose its right to contest, defend, litigate and settle the
Third Party Claim if in the reasonable discretion of the Purchaser Indemnitee
(i) BL shall fail to diligently contest the Third Party Claim; (ii) the Persons
historically responsible for handling a Third Party Claim are no longer actively
involved with such Third Party Claim or (iii) after taking into account the
indemnification obligations under this Indemnification Agreement it is
reasonably likely that the Purchaser Indemnitee would be obligated to bear a
larger portion of the claim, or of all claims made pursuant to this
Indemnification Agreement, than it would otherwise bear if it contested or
litigated the claim. So long as BL has not lost its right to contest, defend,
litigate and settle as herein provided, BL shall have the exclusive right to
contest and defend the Third Party Claim and shall have the right, upon
receiving the prior written approval of the Purchaser Indemnitee (which shall
not be unreasonably withheld and which shall be deemed automatically given if a
response has not been received within the twenty (20) day period following a
request for such consent), to settle any such matter, either before or after the
initiation of litigation, at such time and upon such terms as it deems fair and
reasonable and to apply funds from the Escrow Fund, to the extent available for
such purpose, in accordance with the terms of the Escrow Agreement. Expenses
(including, without limitation, attorneys' fees) incurred by BL in connection
with the foregoing shall be reimbursed to BL, to the extent available for such
purpose, in accordance with the terms of the Escrow Fund. Notwithstanding
anything to the contrary herein contained, in connection with any settlement
negotiated by BL, no Purchaser Indemnitee shall be required by BL to (and BL
shall not) (x) enter into any settlement that does not include as an
unconditional term thereof the delivery by the claimant or plaintiff to the
Purchaser Indemnitee of an unconditional release from all liability in respect
of such claim or litigation, (y) enter into any settlement that attributes by
its terms liability to the Purchaser Indemnitee or which may otherwise have an
adverse effect on the Purchaser Indemnitee's business or reputation, or (z)
consent to the entry of any judgment that does not include as a term thereof a
full dismissal of the litigation or proceeding with prejudice. No failure by BL
to acknowledge in writing its indemnification obligations under this
Indemnification Agreement shall relieve it of such obligations. If a Purchaser
Indemnitee is entitled to indemnification against a Third Party Claim, and BL
fails to accept a tender of, or assume, the
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defense of a Third Party Claim pursuant to this Section 7, or if, in accordance
with the foregoing, BL does not have the right or shall lose its right to
contest, defend, litigate and settle such a Third Party Claim, the Purchaser
Indemnitee shall have the right, without prejudice to its right of
indemnification hereunder, in its discretion exercised in good faith and upon
the advice of counsel, to contest, defend, litigate and settle such Third Party
Claim, either before or after the initiation of litigation, at such time and
upon such terms as the Purchaser Indemnitee deems fair and reasonable, provided
that written notice of its intention to settle is given to BL at least ten (10)
days prior to settlement. If, pursuant to this Section 7, the Purchaser
Indemnitee so contests, defends, litigates or settles a Third Party Claim for
which it is entitled to indemnification hereunder as hereinabove provided, the
Purchaser Indemnitee shall be reimbursed by BL for the reasonable attorneys'
fees and other expenses of defending, contesting, litigating and/or settling the
Third Party Claim which are incurred from time to time, forthwith following the
presentation to BL of itemized bills for said attorneys' fees and other expenses
provided that the Purchaser Indemnitees shall first make claim for such amounts
from the Escrow Fund, to the extent available, in accordance with the terms of
the Escrow Agreement. The Purchaser Indemnitee or BL, as the case may be, shall
furnish such information in reasonable detail as it may have with respect to a
Third Party Claim (including copies of any summons, complaint or other pleading
which may have been served on such party and any written claim, demand, invoice,
billing or other document evidencing or asserting the same) to the other party
if such other party is assuming defense of such claim, and make available all
records and other similar materials which are reasonably required in the defense
of such Third Party Claim and shall otherwise cooperate with and assist the
defending party in the defense of such Third Party Claim. Notwithstanding
anything to the contrary contained herein, each and every controversy or claim
arising out of or relating to indemnification for Damages pursuant to this
Section 7 which BL and the Purchaser Indemnitees have not resolved shall be
resolved in accordance with Section 6(b) of this Indemnification Agreement.
8. Existing Litigation Matters. Attached hereto is a schedule setting
forth certain existing litigation matters to which Besicorp or any one or more
of the Remaining Subsidiaries is a party (collectively, the "Existing Litigation
Matters"). Concurrently herewith, Besicorp has assigned to BL its right to
prosecute and to receive all settlement proceeds, awards and profits under the
Existing Litigation Matters and BL has agreed to assume the defense of the
Existing Litigation Matters. The disposition of the Existing Litigation Matters
shall be governed pursuant to the provisions of Section 7 and shall be subject
to all of the rights and obligations of Section 7 except that BL shall have the
right to contest, defend, litigate or settle such Existing Litigation Matters
(in accordance with the provisions of Section 7) without (a) acknowledging its
indemnification obligations regarding such Existing Litigation Matters or (b)
providing evidence of its ability to pay such Existing Litigation Matters and
related expenses. Notwithstanding anything to the contrary contained herein,
each and every controversy or claim arising out of or relating to
indemnification for Damages pursuant to this Section 8 which BL and the
Purchaser Indemnitees have not resolved shall be resolved in accordance with
Section 6(b) of this Indemnification Agreement.
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9. Subrogation. BL shall not be entitled to require that any action be
brought against any other Person before action is brought against it hereunder
by the Purchaser Indemnitee, but shall be subrogated to any right of action to
the extent that it has paid or successfully defended against any Third Party
Claim.
10. Fraud and Intentional Misrepresentation. Nothing contained in this
Indemnification Agreement shall limit the ability of the Purchaser Indemnitees
to pursue Damages or such other remedies, at law or in equity, resulting from
fraud or intentional misrepresentation.
11. Representations and Warranties of BL.
(a) BL represents and warrants to the Purchaser Indemnitees
that BL has full corporate power and authority to enter into and perform this
Indemnification Agreement. The execution and delivery of this Indemnification
Agreement by BL has been duly authorized and approved by all necessary corporate
action.
(b) The execution and delivery of this Indemnification
Agreement by BL will not conflict with or result in a breach of any of the
terms, conditions or provisions of BL's certificate of incorporation or by-laws
or of any statute or administrative regulation, or of any order, writ,
injunction, judgment or decree of any Governmental Entity or of any arbitration
award to which BL is a party or by which BL is bound.
12. Miscellaneous.
(a) Notices. All notices required or permitted to be given
hereunder shall be in writing and may be delivered by hand, by facsimile, by
nationally recognized private courier, or by United States mail. Notices
delivered by mail shall be deemed given three (3) business days after being
deposited in the United States mail, postage prepaid, registered or certified
mail, return receipt requested. Notices delivered by hand, by facsimile or by
nationally recognized private courier shall be deemed given on the day of
receipt (if such day is a business day or, if such day is not a business day,
the next succeeding business day); provided, however, that a notice delivered by
facsimile shall only be effective if and when confirmation is received of
receipt of the facsimile at the number provided in this Section 12(a). All
notices shall be addressed as follows:
If to BL,
addressed to
Besicorp Ltd.
0000 Xxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxx X. Xxxx, Esq.
Telecopier: (000) 000-0000
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with a copy to
Xxxxxxxx Brog Leinwand Xxxxxx Xxxxxxxx & Xxxxx P.C.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: A. Xxxxxxxx Xxxxxx, Esq.
Telecopier: (000) 000-0000
If to Parent or Purchaser or the Surviving Corporation,
addressed to
BGI Acquisition LLC
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxx Xxxxx, President
Telecopier: (000) 000-0000
with copies to
Altheimer & Xxxx
00 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxxx, Esq.
Telecopier: (000) 000-0000
and/or to such other respective addresses and/or addressees as may be designated
by notice given in accordance with the provisions of this Section 12(a).
(b) Non-Waiver; Remedies.
(i) All representations and warranties set forth in
this Indemnification Agreement shall survive the Closing for a period
of five (5) years following the Effective Time (and none shall merge
into any instrument of conveyance) regardless of any investigation or
lack of investigation by the parties hereto. No specific representation
and warranty shall limit the generality or applicability of a more
general representation and warranty. The failure in any one or more
instances of a party to insist upon performance of any of the terms,
covenants or conditions of this Indemnification Agreement, to exercise
any right or privilege conferred in this Indemnification Agreement, or
the waiver by said party of any breach of any of the terms, covenants
or conditions of this Indemnification Agreement, shall not be construed
as a subsequent waiver of any such terms, covenants, conditions, right
or privileges, but the same shall continue and remain in full force and
effect as if no such forbearance or waiver had occurred. No waiver
shall be
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effective unless it is in writing and signed by an authorized
representative of the waiving party.
(ii) This Indemnification Agreement sets forth the
exclusive remedies of the Purchaser Indemnitees, absent fraud or
intentional misrepresentation, with respect to the matters expressly
set forth in Section 3 hereof.
(c) Applicable Law. This Indemnification Agreement shall be
governed and controlled as to validity, enforcement, interpretation,
construction, effect and in all other respects by the internal laws of the State
of New York applicable to contracts made in that State.
(d) Binding Effect; Benefit. This Indemnification Agreement
shall inure to the benefit of and be binding upon the parties hereto, and their
successors and permitted assigns. Nothing in this Indemnification Agreement,
express or implied, is intended to confer on any person other than the parties
hereto, and their respective successors and permitted assigns any rights,
remedies, obligations or liabilities under or by reason of this Indemnification
Agreement.
(e) Assignability. This Indemnification Agreement shall not be
assignable by the parties without the prior written consent of the other
parties, except that at or prior to the Closing Purchaser and/or Parent may
assign their rights and delegate their duties under this Indemnification
Agreement to a subsidiary entity or to any affiliate and may assign their rights
under this Indemnification Agreement to their lenders for collateral security
purposes, and after the Closing, Purchaser and Parent may assign their
respective rights and delegate their respective duties under this
Indemnification Agreement to any third party.
(f) Amendments. This Indemnification Agreement shall not be
modified or amended except pursuant to an instrument in writing executed and
delivered on behalf of each of the parties hereto.
(g) Headings. The headings contained in this Indemnification
Agreement are for convenience of reference only and shall not affect the meaning
or interpretation of this Indemnification Agreement.
(h) Counterparts. This Indemnification Agreement may be
executed in multiple counterparts, each of which shall be deemed to be an
original, and all such counterparts shall constitute but one instrument.
(i) Further Assurances. The parties shall execute such further
documents, and perform such further acts, as may be necessary to otherwise
comply with the terms of this Indemnification Agreement, the Merger Agreement
and the other Transaction Agreements and consummate the transactions
contemplated thereby. In addition, the Purchaser Indemnitees shall, and shall
cause the Surviving Corporation to, cooperate with BL in connection with all
claims given rise to any claim for indemnification hereunder during and
including, without limitation, the
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defense of any Third Party Claim and the prosecution and defense of the Existing
Litigation Matters. In furtherance of the foregoing, the Purchaser Indemnitees
shall and shall cause the Surviving Corporation (at the expense of BL) to make
available to BL and permit BL to make copies of all records, data and other
materials and otherwise to cooperate in all respects with the prosecution and
defense of all such claims.
(j) Severability. The invalidity of any provision of this
Indemnification Agreement or a portion of a provision shall not affect the
validity of any other provision of this Indemnification Agreement or the
remaining portion of the applicable provision.
* * *
BESICORP LTD.
By: /s/ Xxxxxxxx X. Xxxx
--------------------
Its: Senior Vice President
BGI ACQUISITION LLC
By: /s/ Xxxxx Xxxxx
---------------
Its:
BGI ACQUISITION CORP
By: /s/ Xxxxx Xxxxx
---------------
Its:
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