INDEMNITY AGREEMENT
Exhibit 10.8
INDEMNITY AGREEMENT
This Indemnity Agreement (the “Agreement”) is made and entered into as of June 25, 2004 by each of XXXXXXXX XXXXXX (“Xxxxxx”), XXXXX XXXXX (“Xxxxx”), XXXX XxXXXXXX (“XxXxxxxx”), XXXXXX XXXXXX (“Xxxxxx” and, together with Ashkin, Xxxxx and XxXxxxxx, the “Holders”), XXXXX, INC., a Texas corporation (“Purchaser”), and MIDLOTHIAN HOLDINGS LLC, a Delaware limited liability company (“Merger Sub”). Terms used herein but not defined herein shall have the meanings set forth in the Merger Agreement (defined below).
WITNESSETH:
WHEREAS, each of the Holders owns one (1) share of Class A common stock, $1.00 par value per share, of Centrum Acquisition, Inc., a Delaware corporation (the “Company”), and each of the Holders owns at least twenty four and three quarters (24.75) shares of Class B common stock, $1.00 par value per share, of the Company;
WHEREAS, pursuant to the terms of that certain Agreement and Plan of Merger dated as of June 25, 2004 and made by and among the Company, Purchaser and Merger Sub, a wholly owned subsidiary of Purchaser (the “Merger Agreement”), the Company shall be merged with and into Merger Sub (the “Merger”), and Merger Sub shall be the surviving entity;
WHEREAS, pursuant to the terms of the Merger Agreement, each of the Holders shall be issued shares of Purchaser Stock in exchange for their respective shares of the Company, in the amounts as determined as of the Effective Time and in accordance with the terms of the Merger Agreement;
WHEREAS, each of the Holders owns one (1) share of Class A common stock, $1.00 par value per share, of Crabar/GBF, Inc., a Delaware corporation (“Crabar/GBF”), and each of the Holders owns Class B common stock of Crabar/GBF;
WHEREAS, pursuant to the terms of that certain Stock Purchase Agreement dated as of June 25, 2004 and made by and among Crabar/GBF, Purchaser and the stockholders of Crabar/GBF, (the “Stock Purchase Agreement”), the Purchaser has agreed to purchase the outstanding shares of Crabar/GBF;
WHEREAS, as an inducement to Holders to consummate the Merger, and as a condition to such Merger, and as an inducement to Holders to enter into the Stock Purchase Agreement, and to consummate the transaction provided for in the Stock Purchase Agreement, the Purchaser and Merger Sub are entering into this Agreement.
NOW THEREFORE, in consideration of the foregoing and the mutual covenants and agreements set forth below, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS; CONDITIONS TO EFFECTIVENESS
Section 1.1 Defined Terms. As used in this Agreement, the following terms shall have the following meanings assigned to them:
(a) “Damages” shall mean any loss, liability, claim, damage (including incidental and consequential damages), or diminution of value, whether or not involving a third-party claim and the Enforcement Costs associated therewith.
(b) “Enforcement Costs” shall mean all reasonable costs of investigation and defense and reasonable attorneys’ fees and expenses.
(c) “Person” shall mean any individual, corporation (including any non-profit corporation), general or limited partnership, limited liability company, joint venture, estate, trust, association, organization, labor union, or other entity or Governmental Body.
(d) “Proceeding” shall mean any action, arbitration, audit, hearing, investigation, litigation, or suit (whether civil, criminal, administrative, investigative, or informal) commenced, brought, conducted, or heard by or before, or otherwise involving, any Governmental Body or arbitrator.
(e) “Representative” shall mean with respect to a particular Person, any director, officer, employee, agent, consultant, advisor, or other representative of such Person, including legal counsel, accountants, and financial advisors.
Section 1.2 Stock Purchase Closing Condition. This Agreement is executed concurrently with the execution of the Stock Purchase Agreement but with the intention of the parties that the rights and obligations of the Holders, Purchaser and Merger Sub under this Agreement which pertain to Crabar/GBF or the Stock Purchase Agreement are conditional upon satisfaction or waiver under the Stock Purchase Agreement of all conditions to the Closing (as defined in the Stock Purchase Agreement).
Section 1.3 Merger Closing Condition. This Agreement is executed concurrently with the execution of the Merger Agreement but with the intention of the parties that the rights and obligations of the Holders, Purchaser and Merger Sub under this Agreement which pertain to the Company or the Merger Agreement are conditional upon satisfaction or waiver under the Merger Agreement of all conditions to the Closing (as defined in the Merger Agreement).
ARTICLE II
INDEMNIFICATION; REMEDIES
Section 2.1 [Intentionally Deleted].
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Section 2.2 Indemnification And Payment Of Damages By Purchaser.
(a) Subject to the limitations on the duration of the following indemnities which are set forth in Section 2.3 hereof, and subject to the limitations on liability set forth in Section 2.4 hereof, Purchaser agrees to indemnify, defend, protect and hold harmless Holders and their respective Representatives (collectively, the “Indemnified Persons”) for, and will pay to the Indemnified Persons the amount of any Damages, arising, directly or indirectly, from or in connection with: (i) any breach of any representation or warranty made by the Purchaser or Merger Sub in the Merger Agreement; (ii) any breach of a covenant or other obligation of the Purchaser or Merger Sub in the Merger Agreement; (iii) any breach of any representation or warranty made by Purchaser (as defined in the Stock Purchase Agreement) in the Stock Purchase Agreement; or (iv) any breach of a covenant or other obligation of Purchaser in the Stock Purchase Agreement.
(b) An Indemnified Person who requests reimbursement from or indemnification from Purchaser under this Section 2.2 (a “Claim”) shall do so with a written statement (a “Claim Notice”) made on behalf of that Indemnified Person by a Holder (the “Claimant”) of the reimbursement or other indemnification which is requested. The Claim Notice must describe the subject matter of the Claim in reasonable detail. In the event that Purchaser disputes the amount of a Claim Notice which has been filed after the first anniversary of the Effective Date, then Purchaser may elect to commence arbitration proceedings under Section 3.4 of this Agreement on the limited subject of the amount of the Claim that will be subject to the Basket Cap. Neither Purchaser nor Merger Sub shall have any obligation under Section 2.2 with regard to any matter as to which a Claim Notice is not presented on or before the Final Claim Date.
(c) In the event an Indemnified Person presents a Claim against Purchaser under this Section 2.2 through a Claimant, such Claimant on behalf of such Indemnified Person shall have the following exclusive remedies:
(i) To the extent that the Damage covered by the indemnities in this Section 2.2 represents a third party claim, the Claimant must tender that claim to Purchaser and follow the procedures stated in Section 2.6.
(ii) To the extent that the Damage covered by the indemnities in this Section 2.2 represents a financial loss incurred by a Holder or by a Claimant as to which recovery can be made from insurance policies held by such Holder or by the Claimant, including policies of title insurance, then the Claimant must use commercially reasonable efforts to recover from that insurance policy before seeking indemnification under this Agreement, provided that the Claimant shall not be required to commence litigation or assign a claim to a collection agency as
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part of those efforts to recover from any insurance policy; provided, however, that the Claimant may give Purchaser a Claim Notice regarding that Damage to preserve Claimant’s rights against Purchaser in the event that the policy or policies of insurance do not repay the Damages in full.
(iii) To the extent that the Damage covered by the indemnities in this Section 2.2 represents a financial loss incurred by Claimant as to which no recovery or an insufficient recovery can be made under (ii) above, then the Claimant may exercise its rights to recover against the Purchaser under Section 2 of this Agreement, subject to the Basket Cap, with no right to recover any additional amounts from Purchaser unless the Damage results from a Breach or an Alleged Breach which constitutes fraud on the part of Purchaser or Merger Sub, as the case may be.
(iv) The obligations of Purchaser under this Section 2.2 are subject to the limitations stated in Section 2.3 and in Section 2.4.
(v) No Claim for Damages for a breach of a representation or warranty set forth in Section 3.14 of the Merger Agreement may be made under this Agreement unless and until the damages or losses related to breaches of the representations and warranties in that Section exceed the Purchaser A/R Basket (as defined in the Merger Agreement). No Claim for Damages for a breach of a representation or warranty set forth in Section 3.15 of the Merger Agreement may be made under this Agreement unless and until the damages or losses related to breaches of the representations and warranties in that Section exceed the Purchaser Inventory Basket (as defined in the Merger Agreement).
Section 2.3 Time Limitations. The obligation of Purchaser to accept Claim Notices under this Agreement will expire on that date which will occur two (2) years after the Effective Time (the “Final Claim Date”). After the Final Claim Date, Purchaser will not be required to accept any Claim Notices or other requests for indemnification under this Agreement.
Section 2.4 Limitations On Amount.
(a) No Claim shall be made under the provisions of Section 2.2 unless the amount of Damages under such Claim exceeds Fifty Thousand Dollars ($50,000) (the “Damages Floor”), unless the combined value of Claims which did not exceed the Damages Floor is equal to or in excess of Two Hundred Fifty Thousand Dollars ($250,000), in which case this condition shall no longer be applicable.
(b) Notwithstanding the provisions of Section 2.2 to the contrary, the aggregate amount of Damages that may be paid under Section 2.2 for a Claim or Claims
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shall be limited to the amount of $5,000,000 (the “Basket Cap”). In addition, the maximum obligation of Purchaser to pay Damages during the period from the first anniversary of the Effective Time to the second anniversary of the Effective Time shall be limited to the lesser of (i) $2,500,000 or (ii) $5,000,000 less the amount of Damages paid by Purchaser prior to the first anniversary of the Effective Time.
(c) As of the Final Claim Date, Purchaser will no longer be obligated to accept the tender of Claims from the Indemnified Persons. However, the obligations of Purchaser to the Indemnified Persons under Section 2.2 shall continue after the Final Claim Date with regard to Claims that have been properly presented to Purchaser prior to the Final Claim Date; provided, however, that at such time as the amount of Damages paid, reimbursed or otherwise expended by Purchaser under this Agreement equals or exceeds the Basket Cap, the Purchaser shall be relieved of all further obligation under this Agreement and may tender to the Claimant or the Holders the defense of all filed Proceedings and the handling of all Claims which have been previously presented to the Purchaser under this Agreement.
(d) With respect to any Claim or matter that may potentially become a Claim (“Pending Matter”), Holders and the Claimant shall take all reasonable steps to mitigate the amount of Damages that may accrue, arise, be assessed or otherwise incurred by any Indemnified Persons with respect to that Claim or Pending Matter; provided, however, the duty to mitigate damages shall not be construed to require either the Holders or the Claimant to commence litigation against any party or assign a claim to a collection agency to preserve a Claim or Pending Matter. Each Holder and the Claimant agree that none of them will take any actions, directly or indirectly, to provoke or initiate the filing or making of a claim or demand by a third party for the purpose of enabling either of them to file a Claim under this Article 2.
(e) Notwithstanding anything contained herein to the contrary, the limitations of liability contained in this Section 2.4 will not apply to: (i) any Breach to the extent that such Breach is attributable to fraud by the Purchaser or Merger Sub; or (ii) any Alleged Breach to the extent that such Alleged Breach is attributable to fraud by the Purchaser or Merger Sub. Purchaser will be liable for all Damages with respect to such Breaches and Alleged Breaches listed in clauses (i) through (ii) above, with neither the Damages Floor nor the Basket Cap to be applicable to that liability.
(f) Notwithstanding any investigation or audit conducted before or after the Closing or the decision of Holders to complete the stock sale, and notwithstanding any investigation or audit conducted before the Effective Time or the decision of the Company to complete the Merger, Holders and the Claimant shall be entitled to rely upon the representations and warranties set forth in the Merger Agreement and the Stock Purchase Agreement; provided, however, that in the event that any Holder or the
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Claimant had discovered prior to the Effective Time that any representation or warranty made by Purchaser or Merger Sub was incorrect or inaccurate, and in the event that the Holders and the Claimant elected to conclude the Merger or the stock purchase, then the closing of either the Merger or the stock purchase by the Holders and the Claimant shall constitute a waiver by the Holders and the Claimant of any claims for the breach of such representation or warranty as a result of such inaccuracy or incorrectness. The foregoing proviso shall not apply to the matters identified on attached Schedule 2.4(f) (the “Identified Matters”) which are matters known to Purchaser, Merger Sub and the Holders and which matters Purchaser acknowledges are covered by the indemnification obligations of Purchaser under this Article 2.
Section 2.5 [Intentionally Deleted]
Section 2.6 Procedure For Indemnification—Third Party Claims.
(a) Promptly after receipt by any Indemnified Person under Section 2.2 of notice of the commencement of any Proceeding against it, such Indemnified Person will, if a Claim is to be made against Purchaser under this Article 2, give a Claim Notice to Purchaser of the commencement of such Claim, but the failure to deliver a Claim Notice will not relieve Purchaser of any liability that it may have to any Indemnified Persons, except to the extent that Purchaser demonstrates that the defense of such action is materially prejudiced by the Indemnified Person’s failure to give such notice.
(b) In the event that the Indemnified Person elects to tender the defense of the Proceeding to the Purchaser, then Purchaser must accept the defense of that Proceeding and will be required to pay not only all reasonable Enforcement Costs of that Proceeding but any judgments or settlements that result from the Proceeding.
(c) Purchaser shall not be required to pay or reimburse an Indemnified Person for attorneys’ fees or expenses, litigation consultant’s fees or expenses or other costs of a Proceeding which are not reasonable under the circumstances. The burden of proof regarding an objection to attorneys’ fees or expenses shall be borne by the person making that objection.
(d) Payment of amounts due from Purchaser to a Claimant under this Section 2.6 shall be made in the following manner:
(i) Payment of expenses of defending a Proceeding shall be made directly by Purchaser within thirty (30) days after receipt of invoices containing detail which is typical for expense billing in a commercial matter similar to the Proceeding;
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(ii) Payment of amounts of reasonable attorneys’ and consultants’ fees as described in Section 2.6(b) may be made by a direct claim against the Purchaser with no requirement of arbitration under Section 3.4. Payment of any settlement amount which has been agreed to by the Indemnified Person and Purchaser may be made by a direct claim against the Purchaser with no requirement of arbitration under Section 3.4. Payment of any final, non-appealable judgment against an Indemnified Person may be made by a direct claim against the Purchaser with no requirement of arbitration under Section 3.4. All such payments shall be subject to the Basket Cap.
(e) Purchaser hereby consents to the non-exclusive jurisdiction of any court in which a Proceeding is brought against any Indemnified Person for purposes of any claim that an Indemnified Person may have under this Agreement with respect to such Proceeding or the matters alleged therein, and agree that process may be served on Purchaser with respect to such a claim anywhere in the world.
(f) Purchaser shall not, in the defense of any claim or litigation, except with the consent of the Indemnified Person, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the plaintiff or person making a claim to such Indemnified Person of a complete release from all liability in respect to such claim or litigation without any admission of guilt or wrongdoing.
ARTICLE III
ENFORCEMENT; ARBITRATION
Section 3.1 Exclusive Remedies. The Holders acknowledge that their sole and exclusive remedy after the Effective Time for any breach of any representation, warranty or covenant contained in the Merger Agreement or the Stock Purchase Agreement shall be the indemnification provisions set forth in this Agreement. In furtherance of the foregoing, Holders hereby waive, from and after the Closing under the Stock Purchase Agreement, to the fullest extent permitted under applicable law, any and all rights, claims and causes of action they may have against the Purchaser or Merger Sub relating to the subject matter of this Agreement arising under or based upon any federal, state, local or foreign statute, law, ordinance, rule or regulation or otherwise.
Section 3.2 Intentionally Deleted.
Section 3.3 Informal Mediation. In the event of any dispute arising out of or relating to this Agreement or any agreements contemplated hereby, including any question regarding any such agreement’s existence, validity or termination (collectively referred to herein as a “Dispute”), then prior to filing any arbitration proceeding as provided in Section 3.4 of this
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Agreement, party intending to file such a proceeding shall be required to notify the other party or parties in writing of the existence and nature of the Dispute. The party intending to file such a proceeding and the other party or parties each agree that within twenty (20) business days of the other party or parties’ receipt of such notice, the parties shall meet at the principal office of the Purchaser, or other agreed place, for a minimum of two (2) consecutive eight (8) hour days in order to attempt to amicably resolve the dispute. If such informal dispute resolution efforts prove to be unsuccessful, the notifying party may initiate arbitration proceedings pursuant to Section 3.4 of this Agreement.
Section 3.4 Arbitration. In the event of a Dispute that cannot be resolved pursuant to the procedure in Section 3.3 above, then any dispute or controversy arising between the parties to or in connection with this Agreement involving the interpretation, application and/or enforcement of any provision of this agreement, or arising out of this Agreement, shall be submitted to for arbitration at Los Angeles, California, to a panel of three arbitrators chosen from the list of arbitrators on Schedule 3.4 attached hereto, each of whom are members of national accounting firms, and each of whom is qualified and experienced in mergers and acquisitions and/or in the textile industry and who shall be independent of the parties and reasonably experienced in conducting arbitration proceedings relating to similar matters (“Arbitrators”). Such arbitrators shall be selected by the agreement of the Purchaser and the Holders; in the event that the Purchaser and the Holders cannot agree on a panel of three Arbitrators, then the Purchaser shall select one Arbitrator, the Holders shall select one Arbitrator and the two Arbitrators selected by the parties shall select the third Arbitrator, with the selection of the Arbitrators by the parties to be made no later than twenty (20) days after the delivery of a demand by the other party for arbitration (the “Arbitration Notice”). Any designated arbitrator shall not be an agent, employee, shareholder or affiliate of any parties to the arbitration, but as reasonably possible should be a person with knowledge and experience in the type of dispute existing between the parties.
(a) The arbitrator or arbitrators shall be directed to identify the prevailing party in the arbitration, and the non-prevailing party shall be responsible for the costs and expenses incurred in conducting the arbitration proceeding provided for in this Section 3.4, including reasonable attorneys’ fees and expenses. In the event that the allegations of damages for fraud is determined to be unfounded, the arbitration panel shall assess costs and expenses related to that unfounded allegation against the party making the same allegation even if that party is the prevailing party on other aspects of the arbitration.
(b) The decision of the arbitrator or arbitrators shall be final and binding on the parties.
(c) The exercise by a Holder of his right of set-off, and the resolution by arbitration pursuant to this Section 3.4 over any dispute as to a Holder’s right of setoff,
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shall constitute an election of remedies and limit such Holder in the enforcement of any other remedies that may be available to it; provided however, that such Holder shall be entitled to pursue any remedies available to it in any manner in the event of alleged fraud by Purchaser.
ARTICLE IV
MISCELLANEOUS
Section 4.1 Amendment and Modification. This Agreement may be amended, modified or supplemented only by a written agreement among the Holders, Purchaser and Merger Sub.
Section 4.2 Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given when delivered in person, by facsimile, receipt confirmed, or on the next business day when sent by overnight courier or on the second succeeding business day when sent by registered or certified mail (postage prepaid, return receipt requested) to the respective parties at the following addresses (or at such other address for a party as shall be specified by like notice):
| (i) | if to the Holders, to: |
Xxxx XxXxxxxx
Centrum Properties, Inc.
000 X. Xxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxx, XX 00000
Telecopy: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxxx & Xxxxxxx LLP
000 X. Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxxx Xxxxxxxx, Esq.
Telecopy: (000) 000-0000
and
(ii) if to Purchaser or Merger Sub to:
0000 Xxxxxxxxxxxx Xxxxxxx
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Xxxxxxxxxx, XX 00000
Attention: President
Telecopy:
and an additional copy to (but which shall not constitute notice to Purchaser or Merger Sub):
Xxxxxxxxxxx & Xxxxxxxx LLP
0000 X. Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Telecopy: (000) 000-0000
Section 4.3 Binding Effect; Assignment. This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any of the parties hereto prior to the Effective Time without the prior written consent of the other parties hereto.
Section 4.4 Governing Law. This Agreement shall be deemed to be made in, and shall be interpreted, construed and governed by and in accordance with the internal laws of, the Laws of the State of Delaware, without regard to principles of conflicts of law thereof. Each of the Holders, Purchaser and Merger Sub hereby irrevocably and unconditionally consents to submit to the jurisdiction of the federal and state courts located in the City of Dallas, Texas, for any litigation arising out of or relating to this Agreement and the transactions contemplated hereby (and agrees not to commence any litigation relating thereto except in such courts), waives any objection to the laying of venue of any such litigation in such courts and agrees not to plead or claim in any such court that such litigation brought therein has been brought in an inconvenient forum.
Section 4.5 Counterparts. This Agreement may be executed in one or more counterparts, each of which together be deemed an original, but all of which together shall constitute one and the same instrument.
Section 4.6 Severability. In case any provision in this Agreement shall be held invalid, illegal or unenforceable in a jurisdiction, such provision shall be modified or deleted, as to the jurisdiction involved, only to the extent necessary to render the same valid, legal and enforceable, and the validity, legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby nor shall the validity, legality or enforceability of such provision be affected thereby in any other jurisdiction.
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Section 4.7 Third Parties. Nothing contained in this Agreement or in any instrument or document executed by any party in connection with the transactions contemplated hereby shall create any rights in, or be deemed to have been executed for the benefit of, any person or entity that is not a party hereto or thereto or a successor or permitted assign of such a party.
Section 4.8 Termination. This Agreement shall remain in full force and effect until all obligations for Losses made by the Indemnified Persons or any member thereof are paid in full or the Basket Cap is reached. In the event that the Closing (as defined therein) does not occur under the Stock Purchase Agreement and the Merger is not consummated, this Agreement shall become null and void and of no further force or effect, and no Holder (or any of their respective affiliates, directors, officers, agents or representatives) shall have any liability or obligation hereunder.
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IN WITNESS WHEREOF, the parties have executed this Indemnity Agreement as of the date first written above.
| /s/ Xxxxx Xxxxx |
/s/ Xxxxxxxx Xxxxxx | |||||
| Xxxxx Xxxxx | Xxxxxxxx Xxxxxx | |||||
| /s/ Xxxx XxXxxxxx |
/s/ Xxxxxx Xxxxxx | |||||
| Xxxx XxXxxxxx | Xxxxxx Xxxxxx | |||||
| XXXXX, INC., a Texas corporation | MIDLOTHIAN HOLDINGS LLC, a Delaware limited liability company | |||||
| By: |
/s/ Xxxxx X. Xxxxxxx |
By: | /s/ Xxxxx X. Xxxxxxx | |||
| Name: |
Xxxxx X. Xxxxxxx | Name: | Xxxxx X. Xxxxxxx | |||
| Title: |
Chairman, President and CEO | Title: | President | |||
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