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EXHIBIT 10.1
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.
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"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.
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"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 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,
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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.
"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
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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.
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
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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 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
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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 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.
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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.
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
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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 (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
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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.
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
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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 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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