EXHIBIT 10.7
TAX INDEMNITY AGREEMENT
This TAX INDEMNITY AGREEMENT (the "Agreement"), dated as of this ___ day of
April, 1998, by and between XXXXXX CORPORATION ("Xxxxxx"), a Delaware
corporation, and OMEGA PROTEIN CORPORATION ("Protein"), a Nevada corporation.
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;
B. On even date herewith Protein and Xxxxxx have entered into an
Underwriting Agreement with Prudential Incorporated and Deutsche Xxxxxx
Xxxxxxxx, Inc., as representatives of the several underwriters named therein,
which contemplates that Protein and Xxxxxx will conduct an initial public
offering in which Protein will issue 4,000,000 shares of Common Stock and Xxxxxx
will sell 4,000,000 shares of Common Stock (the "IPO") (together with up to 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 to the
IPO underwriters) reducing Xxxxxx'x ownership of Protein to approximately 66.2%
of the outstanding Common Stock (prior to the exercise of the over-allotment
options referred to below), all as more particularly 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; and
C. In connection with the IPO, Xxxxxx and Protein have entered into a
Separation Agreement on even date herewith (the "Separation Agreement") which
requires, among other things, Xxxxxx and Protein to enter into this Agreement to
address certain tax issues involving Xxxxxx and Protein that will arise after
the IPO after Xxxxxx'x ownership of Protein is less than 80% of Protein's issued
and outstanding shares as a result of which neither Protein nor any Protein
Post-Closing Affiliates (hereinafter defined)l will file Tax Returns
(hereinafter defined) as a member of the Xxxxxx Group (hereinafter defined); and
NOW, THEREFORE, in consideration of their mutual promises, Xxxxxx and
Protein agree as follows:
ARTICLE 1
DEFINITIONS
As used in this Agreement, the following terms shall have the following
meanings:
"Code" means the Internal Revenue Code of 1986, as amended, or any
successor thereto, as in effect for the taxable period in question.
"Consolidated Group" means the group of corporations that immediately prior
to the Effective Date are members of the affiliated group of corporations
(within the meaning of Section 1504 of the Code) of which Xxxxxx is the common
parent.
"Effective Date" means the date upon which Xxxxxx ceases to own 80% of the
issued and outstanding shares of Protein.
"Final Determination" shall mean the final resolution of liability for any
Tax for a taxable period, including any related interest or penalties, (a) by
Internal Revenue Service Form 870 or 870-AD (or any successor forms thereto), on
the date of acceptance by or on behalf of the Internal Revenue Service ("IRS"),
or by a comparable form under the laws of other jurisdictions; except that a
Form 870 or 870-AD or comparable form that reserves (whether by its terms or by
operation of law) the right of the taxpayer to file a claim for refund and/or
the right of the Taxing Authority to assert a further deficiency shall not
constitute a Final Determination; (b) by a decision, judgment, decree, or other
order by a court of competent jurisdiction, which has become final and
unappealable; (c) by a closing agreement or accepted offer in compromise under
Section 7121 or 7122 of the Code, or comparable agreements under the laws of
other jurisdictions; (d) by any allowance of a refund or credit in respect of an
overpayment of Tax, but only after the expiration of all periods during which
such refund may be recovered (including by way of offset) by the Tax imposing
jurisdiction; or (e) by any other final disposition, including by reason of the
expiration of the applicable statute of limitations.
"Protein Businesses" means the present and future subsidiaries, divisions
and business of Protein and any member of the Protein Post-Closing Affiliates.
"Protein Post-Closing Affiliate" means any corporation, partnership or
other entity directly or indirectly controlled by Protein after the Effective
Date.
"Protein Pre-Closing Affiliate" means any corporation, partnership or other
entity directly or indirectly controlled by Protein on or before the Effective
Date.
"Representative" means with respect to any person or entity, any of such
person's or entity's directors, officers, employees, agents, consultants,
advisors, accountants, attorneys, and representatives.
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"Tax" or "Taxes" means (a) all forms of taxation, whenever created or
imposed, and whenever imposed by a national, municipal, governmental, state,
federal or other body, whether domestic or foreign (a "Taxing Authority"), and
without limiting the generality of the foregoing, shall include net income,
alternative or add-on minimum tax, gross income, sales, use, ad valorem, gross
receipts, value added, franchise, profits, license, transfer, recording,
withholding, payroll, employment, excise, severance, stamp, occupation, premium,
property, windfall profit, custom duty, or other tax, governmental fee or other
like assessment or charge of any kind whatsoever, together with any related
interest, penalties, or other additions to tax, or additional amounts imposed by
any such Taxing Authority, (b) liability for the payment of any amounts of the
type described in (a) as a result of being a member of an affiliated,
consolidated, combined or unitary group for any period, including any liability
arising pursuant to Treas. Reg. Section 1.1502-6, or as a result of being a
party to any agreement or arrangement whereby liability for payment of such
amounts was determined or taken into account with reference to the liability of
another party and (c) liability for the payment of any amounts of the type
described in (a) as a result of any express or implied obligation to indemnify
any other person.
"Taxing Authority" is defined under the term "Taxes."
"Taxable Period" or "Taxable Periods" means the tax year for the
"Consolidated Group" as defined in this Article 1.
"Tax Return" means any return, filing, questionnaire or other document
required to be filed, including requests for extensions of time, filings made
with estimated Tax payments, claims for refund and amended returns that may be
filed, for any taxable period with any Taxing Authority in connection with any
Tax (whether or not a payment is required to be made with respect to such
filing).
"Xxxxxx Affiliate" means any corporation, partnership or other entity
directly or indirectly controlled by Xxxxxx, other than Protein or any Protein
Affiliate.
"Xxxxxx Businesses" means the present and future subsidiaries, divisions
and business of any member of the Xxxxxx Group, other than the present and
future subsidiaries, divisions and business of Protein or any Protein
Post-Closing Affiliates.
"Xxxxxx Group" means the group of corporations that immediately after the
Effective Date are members of the affiliated group of corporations of which
Xxxxxx is the common parent (within the meaning of section 1504 of the Code).
ARTICLE 2
PREPARATION AND FILING OF TAX RETURNS
2.1 INCOME INCLUDED. All Tax Returns required to be filed by the
Consolidated Group relating to Taxable Periods ending before or including the
Effective Date and filed
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after the date of this Agreement shall include the income of Protein and Protein
Pre-Closing Affiliates (as determined in this Section 2.1) attributable to such
Taxable Periods (including, for Federal income Tax purposes, any deferred income
triggered into income by Treas. Reg. Section 1.1502-13 and Treas. Reg. Section
1.1502-14 and any excess loss accounts taken into income under Treas. Reg.
Section 1.1502-19) required to be reported in the Consolidated Group's
consolidated Federal income Tax Returns (or under any similar rules applicable
to any state, local or other Tax Returns filed on a consolidated basis). The
income of Protein and Protein Pre-Closing Affiliates will be apportioned for the
period October 1, 1997 up to and including the Effective date and the period
after the Effective Date by closing the books of Protein and such Protein
Pre-Closing Affiliates as of the end of the Effective Date. The income of
Protein and any Protein Pre-Closing Affiliate shall not include any deferred
income triggered into income by Treas. Reg. Section 1.1502-13 and Treas. Reg.
1.1502-14 and any excess loss accounts taken into income under Treas. Reg.
Section 1.1502-19, attributable to any other member of the Consolidated Group.
2.2 TAX RETURNS FOR TAXABLE PERIODS ENDING BEFORE OR INCLUDING THE
EFFECTIVE DATE. Except as otherwise provided in Section 2.4, Xxxxxx shall timely
prepare and file, or cause to be timely prepared and filed, all Tax Returns
required to be filed by or on behalf of any member of the Consolidated Group
relating to Taxable Periods ending before or including the Effective Date.
Protein shall provide Xxxxxx any Tax-related information reasonably requested by
Xxxxxx relating to any Taxable Periods ending on or before the Effective Date.
2.3 TAX RETURNS FOR TAXABLE PERIODS BEGINNING AFTER THE EFFECTIVE DATE.
Protein shall prepare and file, or cause to be prepared and filed, all Tax
Returns for Protein and any Protein Post-Closing Affiliate for taxable periods
of Protein and any Protein Post-Closing Affiliate beginning after the Effective
Date. Xxxxxx shall prepare and file, or cause to be prepared and filed, all Tax
Returns for the Xxxxxx Group for Taxable Periods beginning after the Effective
Date.
2.4 CARRY-OVER PERIOD RETURNS.
(a) Protein shall prepare and file on a timely basis any Tax Returns (but
not including any Federal income Tax Return or Tax Returns under any similar
rules applicable to any state or local, and filed on a consolidated basis) of
Protein and any Protein Pre-Closing Affiliate for any Taxable Period beginning
before and ending after the Effective Date (a "Carry-Over Period").
(b) All other Tax Returns for a Carry-Over Period required to be filed by
any member of the Consolidated Group other than Protein or any Protein
Pre-Closing Affiliate shall be prepared and filed by Xxxxxx.
ARTICLE 3
PAYMENT OF TAXES
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3.1 LIABILITY FOR TAXES WITH RESPECT TO TAXABLE PERIODS ENDING BEFORE OR
INCLUDING THE EFFECTIVE DATE. Except as otherwise provided in this Agreement,
Xxxxxx shall be responsible for paying and shall pay all Taxes relating to any
Tax Return filed by the Consolidated Group or any member thereof with respect to
any Taxable Period ending before and including the Effective Date, including
without limitation, any additional Taxes as a result of any audit, amendment or
other change in a Tax Return as filed by the Consolidated Group or any member
thereof.
3.2 PREPARATION OF PROTEIN'S FINAL RETURNS; PAYMENT OF TAXES. On or before
_____________, 1998, Xxxxxx shall cause to be prepared (in a manner consistent
with practices followed in prior years) and delivered to Protein a separate
United States federal income tax return for Protein and each Protein Pre-Closing
Affiliate for the period beginning October 1, 1997 and ending on the Effective
Date (the "Protein Final Returns"). The Protein Final Returns shall include all
items of income, gain, loss, deductions and credit of Protein and the Protein
Pre-Closing Affiliates realized during such period and determined and
apportioned in accordance with Section 2.1. Xxxxxx shall include in its
consolidated federal income tax for its first taxable year ending after the
Effective Date the items of income, gain, loss, deductions and credit shown on
the Protein Final Returns and shall pay all Taxes due with respect thereto as
provided in this Section 3.2 and Section 3.1.
3.3 SEPARATION PAYMENT WITH RESPECT TO FEDERAL INCOME TAXES. Xxxxxx shall
give Protein notice of the filing of Xxxxxx'x consolidated federal income tax
returns for its first taxable year ending after the Effective Date ("Final
Return Notice"). If the Protein Final Returns show a tax liability, Protein
shall pay to Xxxxxx the amount thereof within thirty (30) days after receipt by
Protein of the Final Return Notice. Xxxxxx shall not withdraw any earnings or
assets of Protein or any Protein Pre-Closing Affiliates prior to the Effective
Date. If the Protein Final Returns show a net operating loss or other tax
benefit that is utilized by Xxxxxx or any member of the Xxxxxx Group and,
therefore, is not allocated to the entity incurring such tax benefit pursuant to
Treas. Reg. 'SS'1.1502-79, Xxxxxx shall pay to Protein (or the appropriate
entity) the amount of any tax savings to be realized thereby within thirty (30)
days after receipt by Protein of the Protein Final Returns.
3.4 ALLOCATION OF EARNINGS AND PROFITS FOR TAXABLE PERIODS ENDING BEFORE OR
INCLUDING THE EFFECTIVE DATE. All earnings and profits of the Consolidated Group
for all Taxable Periods ending before or including the Effective Date shall be
allocated pursuant to Section 1552 of the Code among the members of the
Consolidated Group in accordance with the ratio which that portion of the
consolidated taxable income attributable to each member of the Consolidated
Group having taxable income bears to the consolidated taxable income of the
Consolidated Group in accordance with Section 1552(a)(1) of the Code and the
Regulations thereunder.
3.5 UNUSED CARRY-FORWARD ATTRIBUTES. Xxxxxx and Protein agree that, for
purposes of all required returns and reports with respect to Taxes, the amount
of unused tax credits under the Code attributable to Protein and each of the
Protein Pre-Closing Affiliates that may
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be carried forward to Taxable Periods ending after the Effective Date shall,
unless otherwise required by law or regulations, be determined in accordance
with the principles of Treas. Reg. 'SS'1.1502-79(c). Any other carry-forward
attributes shall similarly be determined in accordance with applicable
regulations.
3.6 LIABILITY FOR TAXES WITH RESPECT TO POST-EFFECTIVE DATE TAXABLE
PERIODS. The Xxxxxx Group shall pay all Taxes of the Xxxxxx Group and shall be
entitled to receive and retain all refunds of Taxes of the Xxxxxx Group with
respect to Taxable Periods beginning after the Effective Date which are
attributable to the Xxxxxx Businesses. Protein shall pay all Taxes of Protein
and any Protein Post-Closing Affiliate and shall be entitled to receive and
retain all refunds of Taxes of Protein and any Protein Post-Closing Affiliate
for all periods beginning after the Effective Date which are attributable to the
Protein Businesses.
3.7 CARRY-OVER PERIOD PAYMENTS. Xxxxxx shall be responsible for (and shall
pay) any Taxes shown to be due on a Tax Return for a Carry-Over Period filed
pursuant to Section 2.4(b) hereof by any member of the Consolidated Group other
than Protein or a Protein Pre-Closing Affiliate. Protein shall be responsible
for (and shall pay) any Taxes shown to be due on a Tax Return for a Carry-Over
Period filed by Protein and any Protein Pre-Closing Affiliate pursuant to
Section 2.4(a) hereof.
3.8 CARRY-BACKS. Protein shall be entitled to any refund of any Tax
obtained by the Consolidated Group (or any member of the Consolidated Group),
including any refund obtained as a result of the carry-back of losses or credits
of Protein or any Protein Post-Closing Affiliate from any taxable period
beginning after the Effective Date to any Taxable Period ending before or
including the Effective Date. The application of any such carry-backs by Protein
and/or any other current or former member of the Consolidated Group shall be in
accordance with the Code and the Treasury Regulations promulgated thereunder.
Notwithstanding this Section 3.9, Protein and any Protein Post-Closing Affiliate
shall have the right, in its sole discretion, to make any election, including
the election under Section 172(b)(3) of the Code, which would eliminate or limit
the carry-back of any loss or credit to any Taxable Period ending before or
including the Effective Date.
3.9 POST-CLOSING ELECTIONS. At Xxxxxx'x request, Protein and the Protein
Pre-Closing Affiliates shall make and/or join with Xxxxxx in making any Tax
elections reasonably requested by Xxxxxx after the Effective Date, if the making
of such election does not have a material adverse impact on Protein or any
Protein Pre-Closing Affiliate for any post-Effective Date Tax period.
3.10 REFUNDS. Protein and any Protein Pre-Closing Affiliate shall be
entitled to any refund of any Tax obtained by the Consolidated Group (or any
member of the Consolidated Group) as a result of any audit, amendment or other
change in the Tax Return as filed by the Consolidated Group or any member
thereof to the extent the refund is attributable to Protein and any Protein
Pre-Closing Affiliate for any Taxable Period of the Consolidated Group ending
before or including the Effective Date. Xxxxxx will cooperate with Protein
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and any Protein Pre-Closing Affiliate in obtaining such refunds, including, but
not limited to, the filing of amended Tax Returns or refund claims. Xxxxxx will
immediately pay to Protein and any Protein Pre-Closing Affiliate any Tax refund
described in this Section 3.10 when such refund is received by the Xxxxxx Group.
With the exception of Section 3.8, all other refunds arising from Tax Returns
filed for the Consolidated Group will belong to Xxxxxx.
ARTICLE 4
COOPERATION AND EXCHANGE OF INFORMATION
4.1 COOPERATION. Protein shall cooperate (and shall cause any Protein
Post-Closing Affiliate to cooperate) fully at such time and to the extent
reasonably requested by Xxxxxx in connection with the preparation and filing of
any Tax Return or the conduct of any audit, dispute, proceeding, suit or action
concerning any issues or any other matter contemplated hereunder relating to any
Taxable Period ending before or including the Effective Date. Such cooperation
shall include, without limitation, (a) the retention and provision on demand of
copies of books, records, documentation or other information relating to any
such Tax Return until the later of (i) the expiration of the applicable statute
of limitation (giving effect to any extension, waiver, or mitigation thereof)
and (ii) in the event any claim has been made under this Agreement for which
such information is relevant, until a Final Determination with respect to such
claim; (b) the execution of any document that may be necessary or reasonably
helpful in connection with the filing of any such Tax Return, or in connection
with any audit, proceeding, suit or action addressed in the preceding sentence;
and (c) the use of the parties' reasonable best efforts to obtain any
documentation from a governmental authority or a third party that may be
necessary or helpful in connection with the foregoing. Each party shall make its
employees and facilities available on a mutually convenient basis to facilitate
such cooperation.
4.2 TAX RETURNS FOR TAXABLE PERIODS INCLUDING THE EFFECTIVE DATE. Xxxxxx
will provide Protein with the opportunity to review and comment upon any Tax
Returns to be filed after the date of this Agreement (including any amended
returns), and will provide Protein, promptly upon its request, with copies of
such Tax Returns (including any amended returns).
4.3 AUDITS. Xxxxxx will allow Protein and any Protein Pre-Closing Affiliate
and its counsel to participate (at the expense of Protein or its Protein
Pre-Closing Affiliate) in any audits of Xxxxxx'x Consolidated Federal Income Tax
Returns to the extent that such returns relate to Protein and any Protein
Pre-Closing Affiliate. Xxxxxx will not settle any such audit in a manner which
would adversely affect Protein and any Protein Pre-Closing Affiliate without the
prior written consent of Protein, which consent shall not be unreasonably
withheld.
4.4 CARRYBACKS. Xxxxxx will immediately pay to Protein and any Protein
Pre-Closing Affiliate any Tax refund (or reduction in Tax liability) resulting
from a carryback of
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a post-acquisition tax attribute of Protein and any Protein Pre-Closing
Affiliates into the Xxxxxx Consolidated Group Tax Return, when such refund or
reduction is realized by the Xxxxxx Group. Xxxxxx will cooperate with Protein
and any Protein Pre-Closing Affiliate in obtaining such refunds (or reduction in
Tax liability), including, but not limited to, the filing of amended Tax Returns
or refund claims.
4.5 CONTEST PROVISIONS. Xxxxxx shall have full responsibility and
discretion in the handling of any Tax controversy, including, without
limitation, an audit, a protest to the Appeals Division of the IRS, and
litigation in Tax Court or any other court of competent jurisdiction involving a
Tax Return of the Consolidated Group or the Xxxxxx Group.
ARTICLE 5
MISCELLANEOUS
5.1 TAX INDEMNIFICATION.
(a) Xxxxxx shall defend, indemnify and hold harmless Protein and each
Protein Pre-Closing Affiliate from and against any liability, cost or expense,
including, without limitation, any fine, penalty, interest, charge or reasonable
accountant's fee, for any Tax required under this Agreement to be paid by Xxxxxx
or any member of the Consolidated Group other than Protein or a Protein
Pre-Closing Affiliate.
(b) Protein shall indemnify and hold harmless Xxxxxx and each member of the
Xxxxxx Group from and against any liability, cost or expense, including without
limitation, any fine, penalty, interest, charge or reasonable accountant's fee,
for any Tax required under this Agreement to be paid by Protein or any Protein
Post-Closing Affiliate.
(c) The amount of any payment made with respect to this Section 5.1 shall
include any additional amount necessary to indemnify the recipient of the
payment against any Taxes imposed or incurred (including any increase in
liability or taxes resulting from a reduction in the amount of the loss), and
any reasonable professional fees or other litigation costs incurred, in
connection with such payment, and (ii) be reduced by the amount of any tax
benefit realized or to be realized by the recipient as a result of its payment
of the Taxes being indemnified hereunder.
5.2 BREACH. Xxxxxx shall defend, indemnify and hold harmless Protein and
each Protein Pre-Closing Affiliate and Protein shall indemnify and hold harmless
each member of the Xxxxxx Group from and against any payment required to be made
under this Agreement as a result of the breach by a member of the Xxxxxx Group
or by Protein or a Protein Pre-Closing Affiliate, as the case may be, of any
obligation under this Agreement.
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5.3 RESOLUTION OF CERTAIN DISPUTES.
(a) Arbitration. Disagreements between Xxxxxx and Protein with respect to
amounts that either claims is owed by the other (or by an Affiliate of the
other) under this Agreement, or other matters under this Agreement that are not
resolved by mutual agreement, shall be resolved by arbitration pursuant to this
Section 5.3.
(b) Selection of the Arbitrator. Any arbitrator selected pursuant to this
Section 5.3(b) shall have at least ten (10) years of experience in the field of
corporate taxation, shall be an attorney licensed to practice law in any state
of the United States or a certified public accountant licensed to practice in
any state of the United States and shall not be or have been employed by or
affiliated with either party. The parties shall first attempt to agree on a
mutually satisfactory arbitrator. If the parties are unable to agree on a
mutually satisfactory arbitrator within thirty (30) days after either party
notifies the other in writing of a disagreement requiring arbitration pursuant
to this Section 5.3 (15 days in the case of a disagreement with respect to
Section 4.1 through Section 4.5), each party shall select an arbitrator. The two
arbitrators thus selected shall agree on and select a third arbitrator. If the
two arbitrators cannot agree on such third arbitrator within thirty (30) days
(fifteen (15) days in the case of a disagreement with respect to Section 4.1
through Section 4.5), the parties shall each select a different arbitrator and
renew the foregoing procedure. If the position of an arbitrator is vacated, the
person or persons who originally selected the arbitrator to fill such position
shall select a new arbitrator to fill the position, unless the parties agree to
continue the arbitration with the remaining arbitrators. When used hereinafter,
the term "arbitrator" shall refer to the three arbitrators so selected when
appropriate and a decision of a majority of such arbitrators shall constitute a
decision by the arbitrator in the appropriate context.
(c) Arbitration Procedures.
(i) The arbitration shall be conducted under the auspices of the
American Arbitration Association.
(ii) Each party within thirty (30) days after engagement of the
arbitrator (fifteen (15) days in the case of a disagreement with respect to
Section 4.1 through Section 4.5) shall submit to the arbitrator a written
statement of the party's position (including where relevant the total net
amount it asserts is owed by it or is due to it) regarding the total amount
in dispute.
(iii) The arbitrator shall base his decision on the following
standards. In the case of a factual dispute between the parties, the
arbitrator shall make a determination of the correct facts. In the case of
a dispute regarding a legal issue, including the proper application of the
Tax laws or the proper interpretation of this Agreement, the arbitrator
shall make a determination in accordance with his best legal judgment. Upon
making determinations with respect to all factual and legal
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issues in dispute, the arbitrator shall determine the amount due by one
party to the other or such other matter with respect to the matter subject
to the arbitration. Where relevant, as to each matter in dispute, the
arbitrator shall find in favor of the party whose statement submitted
pursuant to paragraph (ii) above proposed the amount closest to the amount
so determined.
(iv) The arbitrator shall render a written decision stating only the
result of such decision as soon as practicable. The arbitrator shall also
orally explain the bases of such decision to both parties as soon as
practicable. If and only if both parties request, the arbitrator shall
state the bases of such decision in writing. Where relevant, as to each
matter in dispute, the arbitrator's decision shall be in an amount equal to
one of the total amounts asserted by one of the parties in the written
statements submitted pursuant to paragraph (ii) above. The arbitrator shall
not, and is not authorized to, render a decision in any other amount.
(v) The arbitrator's decision shall be final and binding on the
parties. No appeal to any court is contemplated by this Agreement and each
party, to the maximum extent permissible by law, waives and relinquishes
all rights and entitlements to appeal such decision.
(vi) The arbitrator shall determine a fair allocation of the costs of
the arbitration proceeding (including each party's legal fees) as between
the parties.
5.4 NOTICES. Any notice, demand, claim or other communication under this
Agreement shall be in writing and shall be deemed given upon delivery if
delivered personally, upon mailing if sent by certified mail, return receipt
requested, postage prepaid, or upon completion of transmission if sent by
telecopy or facsimile, to the parties at the following address:
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 xxx Xxxxxxxxx III,
Chief Executive Officer and President
5.5 ENTIRE AGREEMENT. This Agreement and the applicable provisions of the
Separation Agreement constitute the entire agreement of the parties concerning
the subject matter hereof, and supersedes all other agreements, whether or not
written, in respect of any Tax between or among any member or members of the
Xxxxxx Group, on the one hand, and
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Protein and any Protein Pre-Closing Affiliate, on the other hand. This Agreement
may not be amended except by an agreement in writing, signed by the parties
hereto. In the event and to the extent that there shall be a conflict between
the provisions of this Agreement and the Separation Agreement, the provisions of
this Agreement shall control.
5.6 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with, the laws of the State of Texas.
5.7 SUCCESSORS AND ASSIGNS. A party's rights and obligations under this
Agreement may not be assigned without the prior written consent of the other
party. All of the provisions of this Agreement shall be binding upon and inure
to the benefit of the parties and their respective successors and permitted
assigns.
5.8 NO THIRD-PARTY BENEFICIARIES. This Agreement is solely for the benefit
of the parties to this Agreement and their respective subsidiaries and should
not be deemed to confer upon third parties any remedy, claim, liability,
reimbursement, claim of action or other right in excess of those existing
without this Agreement.
5.9 LEGAL ENFORCEABILITY. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to that jurisdiction,
be ineffective to the extent of the prohibition or unenforceability without
invalidating the remaining provisions. Any prohibition or unenforceability of
any provision of this Agreement in any jurisdiction shall not invalidate or
render unenforceable the provision in any other jurisdiction.
5.10 EXPENSES. Unless otherwise expressly provided in this Agreement or in
the Separation Agreement, each party shall bear any and all expenses that arise
from their respective obligations under this Agreement. In the event either
party to this Agreement brings an action or proceeding for the breach or
enforcement of this Agreement, the prevailing party in such action or
proceeding, whether or not such action or proceeding proceeds to final judgment,
shall be entitled to recover as an element of its costs, and not as damages,
such reasonable attorneys' fees as may be awarded in the action or proceeding in
addition to whatever other relief to which the prevailing party may be entitled.
5.11 CONFIDENTIALITY. Each party shall hold and cause its Representatives
to hold in strict confidence, unless compelled to disclose by judicial or
administrative process or, in the opinion of its counsel, by other requirements
of law, all information (other than any such information relating solely to the
business or affairs of such party) concerning the other parties hereto furnished
it by such other party or its Representatives pursuant to this Agreement (except
to the extent that such information can be shown to have been (a) previously
known by the party to which it was furnished, (b) in the public domain through
no fault of such party, or (c) later lawfully acquired from other sources by the
party to which it was furnished), and each party shall not release or disclose
such information to any other person, except its auditors, attorneys, financial
advisors, bankers and other consultants and advisors who shall be advised of the
provisions of this Section. Each party shall be deemed
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to have satisfied its obligation to hold confidential information concerning or
supplied by the other party if it exercises the same care as it takes to
preserve confidentiality for its own similar information.
5.12 COUNTERPARTS. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signature thereto and hereto were upon the same instrument.
5.13 HEADINGS. Introductory headings used in this Agreement are solely for
the convenience of the parties and shall not be deemed to be limitations upon or
descriptive of the contents of the Section or Sub-sections concerned.
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement
as of the date first above written.
OMEGA PROTEIN CORPORATION
By:_______________________________
Name:
Title:
XXXXXX CORPORATION
By:_______________________________
Name:
Title
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