1
EXHIBIT 8
INDEMNITY AGREEMENT
AGREEMENT made the 21st day of December, 1999 by and between:
PARTIES
CCC: Computer Concepts Corp., a Delaware corporation.
SOFTWORKS: Softworks, Inc., a Delaware corporation.
FACTS
A. Softworks is entering into a agreement of merger (the "Merger Agreement")
with Parent and Merger Sub which provides certain provisions relative to an
offer for the outstanding common stock of Softworks (the "Stock").
B. Parent and Merger Sub have required that CCC, as a major shareholder of
Softworks, enter into a Tender Agreement for the Stock owned by CCC which
provides for certain representations, warranties and covenants.
C. Parent and Merger Sub are providing in the Merger Agreement that a breach of
the obligations of CCC under the Tender Agreement shall be deemed a breach by
Softworks of the Merger Agreement with provisions for certain costs and fees to
be incurred by Softworks in such event.
D. In order to induce Softworks to enter into the Merger Agreement, CCC has
agreed, in accordance with the terms of this agreement, to provide certain
assurances and hold harmless provisions to Softworks where CCC defaults under
specified terms of the Tender Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and covenants herein
contained, it is agreed among the Parties as follows:
1. DEFINITIONS: All defined terms set forth in the Merger Agreement and or
Tender Agreement are hereby incorporated by reference.
2
2. THE APPLICABLE PROVISION:
2.1. Parent and Merger Sub have demanded that Softworks agree to the
provisions of Paragraphs 7.1(d)(iv) and (v) of the Merger Agreement which
provides for certain obligations of Softworks in the event that CCC breaches any
representation, warranty, covenant or other agreement contained in the Tender
Agreement or that an injunction, as described in the Merger Agreement, is issued
preventing CCC from fulfilling its obligations under the Tender Agreement, and
such action gives rise to the failure of a condition set forth in Paragraph (h)
of Annex A to the Merger Agreement.
2.2. CCC acknowledges that Softworks would not enter into the Merger
Agreement without CCC agreeing to the obligations provided for herein.
3. INDEMNITY
3.1. CCC agrees to indemnify Softworks and its officers and directors
against all expenses, claims, losses, damages, liabilities or termination fees
(or actions in respect thereof), including any of the foregoing incurred in
settlement of any litigation, commenced or threatened, arising out of or based
on the payment of a termination fee and related expenses by Softworks where
Parent terminates the transaction contemplated by the Merger Agreement pursuant
to Paragraphs 7.1(d)(iv) and (v) of the Merger Agreement, and CCC will reimburse
Softworks and its officers and directors, for any legal and any other expenses
reasonably incurred in connection with investigating, preparing or defending any
such claim, loss, damage, liability or action, provided that CCC shall in no
event be obligated for any amount in excess of the amount paid pursuant to said
Paragraphs 7.1(d)(iv) and (v).
3.2. Softworks (the "Indemnified Party") shall give notice (the "Notice
of Claim") to CCC (the "Indemnifying Party") promptly after such Indemnified
Party has actual knowledge of any claim as to which indemnity may be sought.
3.3. Within three (3) days of receipt of the Notice of Claim,
Indemnifying Party shall advise Indemnified Party as to whether they agree to
the claim or are electing to defend such claim.
3.3.1. Where Indemnifying Party agrees to the claim,
Indemnifying Party shall promptly pay to or on behalf of Indemnified Party, the
amount of the claim.
3.3.2. Where Indemnifying Party, in the exercise of its
reasonable judgement, disputes the claim, Indemnified Party shall permit the
Indemnifying Party to assume the defense of any such claim or any litigation
resulting therefrom, provided that counsel for the Indemnifying Party, who shall
conduct the defense of such claim or litigation, shall be approved by
Indemnified Party (whose approval shall not unreasonably be withheld), and the
Indemnified Party may participate in such defense at such party's expense, and
provided further that the failure of Indemnified Party to give notice as
provided herein shall not relieve the Indemnifying Party of its
3
obligations under this Section unless the failure to give such notice is
materially prejudicial to the Indemnifying Party's ability to defend such action
and provided further, that the Indemnifying Party shall not assume the defense
for matters as to which there is a conflict of interest or separate and
different defenses. Indemnifying Party, in the defense of any such claim or
litigation, shall not, except with the consent of Indemnified Party, consent to
entry of any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to
Indemnified Party of a release from all further liability in respect to such
claim or litigation.
4. WARRANTIES AND REPRESENTATIONS: CCC and Softworks each represent and warrant
that:
4.1. Its respective Board of Directors has approved this agreement and
has the authority to enter into this agreement and its principals are under no
obligation or disability which might prevent them from performing their
obligations thereunder:
4.2. It will execute further documents or perform any further acts
which may reasonably be required to effect the arrangements specified in this
agreements.
5. GENERAL TERMS
5.1. Amendment This Agreement may not be validly modified, amended,
rescinded, changed or discharged unless the same is in writing, and signed by
the Parties affected thereby, or by their duly authorized agents.
5.2. Entire Agreement This Agreement embodies the entire agreement and
understanding of the Parties hereto with respect to the indemnity and hold
harmless provisions herein contained, and there are no agreements,
understandings or representations made or existing between the Parties hereto,
with respect to the indemnity and hold harmless provisions herein contained,
except as is herein expressly set forth.
5.3. Binding Effect Of Agreement This Agreement shall be binding not
only on the Parties hereto, but also on their heirs, executors, administrators,
successors, and assigns, and the Parties hereto agree for themselves and their
heirs, executors, administrators, successors, and assigns, to execute any
instruments which may be necessary or proper to carry out the purposes and
intent of this Agreement.
5.4. Effect of a Waiver No waiver of a provision of this Agreement
shall be deemed a waiver of any other provisions or shall a waiver of the
performance of a provision in one or more instances be deemed a waiver of future
performance thereof.
4
5.5. Governing Law: This understanding is to be governed and construed
in accordance with the law of the State of Delaware applicable to contracts
entered into and to be fully performed therein, without reference to the
principles of conflict of laws.
5.6. Separability If any provision of this Agreement shall be
determined by the arbitrators, or by any Court having jurisdiction, to be
invalid, illegal or unenforceable, the remainder of this Agreement shall not be
affected thereby but shall continue in full force and effect as though such
invalid, illegal or unenforceable provision were not originally a part hereof.
5.7. Counterparts. This Agreement may be executed in any number of
counterparts, and all of which together shall constitute one instrument.
5.8. Legal Requirements: Nothing contained in this agreement shall be
construed so as to require the commission of any act contrary to law, and
wherever there is any conflict between any provision of this agreement and any
material statute, law, ordinance, order or regulation contrary to which the
parties have no legal right to contract, the latter shall prevail, but in such
event any provisions of this agreement so affected shall be curtailed and
limited only to the extent necessary to bring it within the legal requirements;
provided, however, that no other provision of this agreement shall be affected
thereby and such other provisions shall continue in full force and effect.
5.9. Headings Paragraph headings used herein are for convenience only
and shall not be deemed a part of this Agreement.
6. NOTICES
6.1. Any notice to be given hereunder shall be sent by registered or
certified mail, return receipt requested, by overnight carrier, or telecopy to a
facsimile number provided by the respective party with a copy sent by regular
mail, or by delivering the same personally to the parties. Any party may
designate the applicable address by notice so given. Copies of all notices shall
be sent to the parties as hereto named above and, in addition:
Copies of all notices shall be sent to:
Xxxxxxx Xxxxxxx & Xxxxxxx LLP
Suite 1313
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxxxx, Esq.
fax 000-000-0000
5
Blau, Kramer, Wactlar & Xxxxxxxxx, P.C.
000 Xxxxxxx Xxxxxxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxxx, Esq.
fax (000)000-0000
6.2. Any notice mailed, sent by overnight carrier or personally
delivered as aforesaid shall be deemed to have been given on the date of
receipt; telecopies shall be deemed received on the business day after being
sent by telecopy.
IN WITNESS WHEREOF, the Parties hereto have set their hands as of the
day and year first above written.
Computer Concepts Corp. Softworks, Inc.
By:___________________________ By:________________________________
