EXHIBIT 6.3
INDEMNIFICATION AND INSURANCE MATTERS AGREEMENT
between
DIGITAL CREATIVE DEVELOPMENT CORPORATION
(a Utah corporation)
as Seller,
and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇'▇, INC.
(a Delaware corporation)
as Buyer
[ ], 2001
INDEMNIFICATION AND INSURANCE MATTERS AGREEMENT
INDEMNIFICATION AND INSURANCE MATTERS AGREEMENT made as of the [ ] day of
[ ], 2001 (this "Agreement") by and between DIGITAL CREATIVE DEVELOPMENT
CORPORATION, a Utah corporation ("Seller"), and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇'▇, INC., a
Delaware corporation ("Buyer"). Seller and Buyer are sometimes individually
referred to as a "Party" and collectively referred to as the "Parties."
WHEREAS, pursuant to that certain Separation and Distribution Agreement
dated as of [_______ ___, 2001] between the Parties (the "Separation
Agreement"), the Parties agreed that Seller shall transfer to Buyer
substantially all of the business and assets of Seller's restaurant business
(the "Business") and that Buyer shall assume substantially all of the
liabilities of the Business;
WHEREAS, it is the intent of the Parties, by this Agreement and the other
agreements and instruments provided for in the Separation Agreement, that Seller
and Buyer indemnify one another the other and provide for insurance-related
matters with respect to such transfer and assumption, all as set forth in this
Agreement;
NOW, THEREFORE, in consideration of the premises and of the mutual promises
and covenants made in this Agreement and in reliance upon the representations
and warranties made in this Agreement, Seller and Buyer, intending to be legally
bound, hereby agree as follows:
DEFINITIONS ARTICLE
-------------------
As used in this Agreement, the following terms, when capitalized, shall
have the respective meanings set forth in this Definition Article. Other
capitalized terms used in this Agreement shall have the meanings as are defined
in the Separation Agreement or elsewhere in the text of this Agreement.
1. "Action" means any demand, action, suit, countersuit, arbitration,
inquiry, proceeding or investigation by or before any federal, state, local,
foreign or international court or other governmental authority or any
arbitration or mediation tribunal.
2. "ASSIGNMENT AGREEMENT" means the General Assignment and Assumption
Agreement referred to in Section 2.1(b)(3)(2) of the Separation Agreement.
3. "Assumed Obligations" shall have the meaning set forth in Section 1.3 of
the Separation Agreement.
4. "Business" shall have the meaning set forth in Section 1.1(a) of the
Separation Agreement.
5. "Buyer Group" means Buyer, its Subsidiaries (as defined below) and Buyer
Indemniteees (as defined below).
6. "Buyer Indemnitees" means each member of the Buyer Group and each of its
respective directors, officers, agents and employees and each of their
successors and permitted assigns.
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7. "Governmental Authority" means any federal, state, local, foreign or
international court, government, department, commission, board, bureau, agency,
official or other regulatory, administrative or governmental authority.
8. "Insurance Policies" means insurance policies pursuant to which a Person
makes a true risk transfer to an insurer.
9. "Insurance Proceeds" means those monies: (a) received by an insured from
an insurance carrier; or (b) paid by an insurance carrier on behalf of the
insured from Insurance Policies.
10. "Person" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
11. "Retained Liabilities" shall have the meaning set forth in Section 1.3
of the Separation Agreement.
12. "Seller Group" means Seller, its Subsidiaries (as defined below) and
Seller Indemnitees (as defined below).
13. "Seller Indemnitees" means each member of the Seller Group and each of
its respective directors, officers, agents and employees and each of their
successors and permitted assigns.
14. "Subsidiaries" means with respect to any specified Person, any
corporation, any limited liability company, any partnership or other legal
entity of which such Person or its Subsidiaries owns, directly or indirectly,
more than 50% of the stock or other equity interest entitled to vote on the
election of the members of the board of directors or similar governing body.
15. "Tax Sharing Agreement" means the Tax Sharing Agreement referred to in
Section 2.1(b)(3)(1) of the Separation Agreement.
16. "Tax" or "Taxes" has the meaning set forth in the Tax Sharing
Agreement.
17. "Third Party Claim" shall mean the assertion by a Person (including any
Governmental Authority) who is not a member of the Seller Group or the Buyer
Group of any claim or of the commencement by any such Person of any Action.
ARTICLE I
SALE AND PURCHASE OF ASSETS; ASSUMED OBLIGATIONS
------------------------------------------------
1.1 RELEASE OF PRE-SEPARATION CLAIMS.
(a) Buyer Release. Except as provided in Section 1.1(c), and to the
extent consistent with the Assignment Agreement, effective as of the Separation
Date, Buyer does hereby, for itself and as agent for each member of the Buyer
Group, remise, release and forever discharge the Seller Indemnitees from any and
all Assumed Obligations (including any right of
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contribution) existing or arising from any acts or events occurring or failing
to occur or alleged to have occurred or to have failed to occur or any condition
existing or alleged to have existed on or before the Separation Date, including
in connection with the transactions and all other activities to implement any of
the Separation of the Business from Seller and the issuance of the Dividend.
(b) Seller Release. Except as provided in Section 1.1(c), and to the
extent consistent with the Assignment Agreement, effective as of the Separation
Date, Seller does hereby, for itself and as agent for each member of the Seller
Group, remise, release and forever discharge the Buyer Indemnitees from any and
all Retained Liabilities (including any right of contribution) existing or
arising from any acts or events occurring or failing to occur or alleged to have
occurred or to have failed to occur or any conditions existing or alleged to
have existed on or before the Separation.
(c) No Impairment. Nothing contained in Section 1.1(a) or (b) shall
impair any right of any Person to enforce the Separation Agreement or any
Ancillary Agreement (including this Agreement), in each case in accordance with
its terms.
(d) No Actions as to Released Claims. Buyer shall not, for itself and
as agent for each member of the Buyer Group, make any claim or demand, or
commence any Action asserting any claim or demand whatsoever, including any
claim of contribution or any indemnification, any member of the Seller Group
with respect to any matter released pursuant to Section 1.1(a). Seller shall
not, for itself and as agent for each member of the Seller Group, make any claim
or demand, or commence any Action asserting any claim or demand whatsoever,
including any claim of contribution or any indemnification, any member of the
Buyer Group with respect to any matter released pursuant to Section 1.1(b).
(e) Further Instruments. At any time, at the request of any other
Party, each Party shall cause each member of its respective Group to execute and
deliver releases reflecting the provisions hereof.
1.2 INDEMNIFICATION BY BUYER. Except as otherwise provided in this Agreement,
Buyer shall, for itself and as agent for each member of the Buyer Group
indemnify, defend (or, where applicable, pay the defense costs for) and hold
harmless the Seller Indemnitees from and against all losses, damages,
deficiencies, liabilities, costs and expenses, including interest, penalties and
reasonable attorneys' fees and expenses, and claims for any and all of the
foregoing (collectively, "Losses") that any third Person (i.e., other than a
member of the Buyer Group or the Seller Group) seeks to assert or impose upon
the Seller Indemnitees, whether or not frivolous, directly or indirectly, or
which are imposed upon the Seller Indemnitees, and that relate to, arise out of
or result from any of the following items (without duplication): (i) the
Business; (ii) any Assumed Obligation; or (iii) any breach by Buyer or any
member of the Buyer Group of any covenant, representation or warranty in the
Separation Agreement or any of the Ancillary Agreements (including this
Agreement) or in any of Buyer's Closing Documents or in other instrument or
certificate delivered or to be delivered by Seller under any of the aforesaid
agreements. Notwithstanding the foregoing, this indemnity is not intended to
nullify or be a substitute for the legal obligation that any third Person may
also have with respect to the subject of the indemnification and, with respect
to insurance proceeds, is, in effect, a commitment to advance funds to be repaid
only in the event and to the extent provided for in Section 1.6, below.
1.3 INDEMNIFICATION BY SELLER. Except as otherwise provided in this
Agreement, Seller shall, for itself and as agent for each member of the Seller
Group indemnify, defend (or, where applicable, pay the defense costs for) and
hold harmless the Buyer Indemnitees from and
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against all Losses that any Person (i.e., other than a member of the Seller
Group or the Buyer Group) seeks to assert or impose upon the Buyer Indemnitees,
whether or not frivolous, directly or indirectly or which are imposed upon the
Seller Indemnitees, and that relate to, arise out of or result from any of the
following items (without duplication) any breach by Seller or any member of the
Seller Group of any covenant, representation or warranty in the Separation
Agreement or any of the Ancillary Agreements (including this Agreement) or in
any of Seller's Closing Documents or in other instrument or certificate
delivered or to be delivered by Seller under any of the aforesaid agreements.
Notwithstanding the foregoing, this indemnity is not intended to nullify or be a
substitute for the legal obligation that any third Person may also have with
respect to the subject of the indemnification and, with respect to insurance
proceeds, is, in effect, a commitment to advance funds to be repaid only in the
event and to the extent provided for in Section 1.6, below.
1.4 INDEMNIFICATION PROCEDURE. If a Party indemnified under this Article I
(an "Indemnitee") receives written notice of any Third Party Claim or any Third
Party Claim is presented to, or any action or proceeding commenced against
Indemnitee which gives rise to the right of indemnification hereunder,
Indemnitee will promptly give written notice thereof to the Party against which
such right of indemnification might be claimed ("Indemnitor"); provided, that,
the failure to give timely notice shall not affect the right to indemnification
hereunder except to the extent that the Indemnitor is actually damaged or
prejudiced by such delay. Indemnitor shall have twenty (20) days or such shorter
time as may be necessary to avoid prejudice to the rights of the Indemnitee
(which determination shall be made by Indemnitor in cooperation with the
Indemnitee) after receipt of the above-mentioned notice, to undertake at its own
expense the defense or settlement of any Third Party Claim as to which notice is
given hereunder through counsel of its own choosing. If undertaken, Indemnitor
shall control the defense of the Third Party Claim and Indemnitee shall
cooperate with Indemnitor in such defense. In defending such Third Party Claim:
(a) Indemnitor shall not thereby permit to exist any lien, encumbrance or
adverse charge upon any asset of Indemnitee; and (b) Indemnitor shall permit
Indemnitee to participate in such defense through counsel chosen by Indemnitee,
whether or not the Third Party Claim implicates both Buyer and Seller in a
material fashion; provided that, the fees and expenses of such counsel shall be
borne by Indemnitee and that counsel for Indemnitor shall govern the
proceedings. In the event that Indemnitor shall undertake a good faith, bona
fide settlement of such Third Party Claim, Indemnitee shall cooperate with
Indemnitor and its counsel in such settlement; provided that, Indemnitee shall
have no obligation to cooperate in effecting such settlement if, in the
reasonable judgment of Indemnitee, communicated to Indemnitor in writing within
twenty (20) days after Indemnitee is given written notice by Indemnitor of the
details of such settlement, such settlement would have a material adverse effect
on Indemnitee or would permit any injunction, declaratory judgment, or other
non-monetary relief to be entered, directly or indirectly, against the
Indemnitee, in which event Indemnitor shall tender to Indemnitee the amount
proposed to be paid in such settlement and Indemnitee shall continue the defense
at its sole cost and expense and shall waive any right to indemnity for
Indemnitor in respect of any such Third Party Claim. Any settlement effected by
Indemnitor or Indemnitee hereunder shall include as an unconditional term
thereof a complete release of Indemnitee or Indemnitor, as the case may be, not
a Party to the settlement. If Indemnitor does not notify Indemnitee within
twenty (20) days after receipt of Indemnitee's notice of a claim of indemnity
hereunder that it elects to undertake the defense or settlement thereof,
Indemnitee shall have the right to contest, settle or compromise the Third Party
Claim in the exercise of its exclusive discretion at the expense of Indemnitor,
subject to the right of Indemnitor to assume the defense or settlement, as
provided in this Article I, of such Third Party Claim at any time prior to
settlement or final determination thereof.
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1.5 ADDITIONAL MATTERS.
(a) SUBSTITUTION. In the event of an Action in which the Indemnitor is
not a named defendant, if either the Indemnitee or the Indemnitor shall so
request, the Parties shall endeavor to substitute the Indemnitor for the named
defendant or add the Indemnitor as a named party. If such substitution or
addition cannot be achieved for any reason or is not requested, the rights and
obligations of the Parties regarding indemnification and the management of the
defense of claims shall be as set forth in this Article I.
(b) SUBROGATION. In the event of payment by or on behalf of any
Indemnitor to or on behalf of any Indemnitee in connection with any Third Party
Claim, such Indemnitor shall be subrogated to and shall stand in the place of
such Indemnitee, in whole or in part based upon whether, and to the extent of
the amount, the Indemnitor has paid in respect of the Indemnitee's Loss and the
events or circumstances in respect of which such Indemnitee may have any right,
defense or claim relating to such Third Party Claim. Such Indemnitee shall
cooperate with such Indemnitor in a reasonable manner, and at the cost and
expense of such Indemnitor, in prosecuting any subrogated right, defense or
claim.
(c) NOT APPLICABLE TO TAXES. This Agreement shall not apply to Taxes
which are covered by the Tax Sharing Agreement described in Section
2.1(b)(iii)(1) of the Separation Agreement.
(d) SURVIVAL OF INDEMNIFICATIONS. The indemnifications and other
agreements of the Parties to this Agreement shall survive the Closing of the
Separation Agreement for a period of three (3) years. The period of limitations
set forth above shall be in lieu of all statutes of limitations otherwise
applicable having a duration of more than that period.
1.6 INSURANCE PROCEEDS. The amount which an Indemnitor is required to pay
to, for or on behalf of an Indemnitee pursuant to this Article I shall be
reduced (including, without limitation, retroactively) by the amount, if any, of
proceeds actually recovered by, or on behalf of, and paid to or for the benefit
of such Indemnitee in reduction of the related Losses pursuant to insurance
policies of Indemnitee covering such Losses ("Insurance Proceeds"). Payment of
an amount required to be paid by an Indemnitor, as so reduced, is referred to
herein as an "Indemnity Payment." If an Indemnitee shall have received, or if
there shall be paid on behalf of an Indemnitor an Indemnity Payment in respect
of Losses, and an Indemnitee shall subsequently receive, directly or indirectly,
Insurance Proceeds in respect of such Losses, then such Indemnitee shall pay to
Indemnitor the amount of such Insurance Proceeds or, if the Indemnity Payment is
less, the amount of such Indemnity Payment. The Parties shall cooperate so as to
maximize the Insurance Proceeds that might be received by or on behalf of an
Indemnitee with respect to Losses and thereby minimize such Losses; provided,
however, that nothing hereunder shall require Indemnitee or Indemnitor to ▇▇▇
its insurance carrier.
ARTICLE II
INSURANCE MATTERS
-----------------
2.1 COOPERATION AND AGREEMENT TO RELEASE INSURANCE CARRIERS. Each of Seller
and Buyer shall share such information as is reasonably necessary in order to
permit the other to manage and conduct its insurance matters in an orderly
fashion. Each of Seller and Buyer, at the request of the other, shall cooperate
with and use commercially reasonable efforts to assist the other in recoveries
for claims made under any insurance policy for the benefit of any insured Party,
and neither Seller nor Buyer, nor any of their Subsidiaries, shall take any
action which
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would intentionally jeopardize or otherwise interfere with either Party's
ability to collect any proceeds payable pursuant to any insurance policy. Except
as otherwise contemplated by the Separation Agreement, this Agreement or any
Ancillary Agreement, after the Separation Date, neither Seller nor Buyer shall
(and shall ensure that no member of their respective Groups shall), without the
consent of the other Party, provide any insurance carrier with a release, or
amend, modify or waive any rights under any such policy or agreement, if such
release, amendment, modification or waiver would adversely affect any rights or
potential rights of any member of the other Group thereunder. However, nothing
in this Section 2.1 shall: (a) preclude any member of any Group from presenting
any claim or from exhausting any policy limit; (b) require any member of any
Group to pay any premium or other amount or to incur any liability; or (c)
require any member of any Group to renew, extend or continue any policy in
force.
2.2 BUYER INSURANCE COVERAGE. From and after the Separation Date, each
member of the Buyer Group shall be responsible for obtaining and maintaining
insurance programs for its risk of loss and such insurance arrangements shall be
separate and apart from Seller's insurance programs. Notwithstanding the
foregoing, Seller, upon the request of Buyer, shall use all commercially
reasonable efforts to assist Buyer and each member of the Buyer Group in the
transition to its own separate insurance programs from and after the Separation
Date, and shall provide Buyer and each member of the Buyer Group with any
information that is in the possession of Seller and is reasonably available and
necessary to either obtain insurance coverages for Buyer (and each member of the
Buyer Group).
(a) NAMING SELLER AS ADDITIONAL INSURED. Notwithstanding anything in
this Agreement to the contrary, each member of the Buyer Group shall, at no cost
to Seller or any member of the Seller Group, obtain and maintain general
liability and product liability (completed operations) insurance in the amount
of at least $2 million combined single limit naming Seller and each member of
the Seller Group (as the same may change from time to time) as an additional
insured. Such policy shall contain a provision that it shall not be decreased in
coverage or cancelled without at least thirty (30) days' prior written notice to
Seller.
2.3 RESPONSIBILITIES FOR SELF-INSURED OBLIGATIONS. Buyer and each member of
the Buyer Group shall reimburse Seller for all amounts necessary to exhaust or
otherwise satisfy all applicable self-insured retentions, amounts for fronted
policies, deductibles and retrospective premium adjustments and other similar
amounts not covered by Insurance Policies in connection with insured Assumed
Obligations.
2.4 PROCEDURES WITH RESPECT TO INSURED ASSUMED OBLIGATIONS.
(A) REIMBURSEMENT. Buyer and each member of the Buyer Group, as
applicable, shall reimburse Seller for all amounts incurred to pursue insurance
recoveries from Insurance Policies for insured Assumed Obligations.
(b) MANAGEMENT OF CLAIMS. The defense of claims, suits or actions
giving rise to potential or actual insured Assumed Obligations will be managed
(in conjunction with Seller's insurers, as appropriate) by the Party that would
have had responsibility for managing such claims, suits or actions had such
Assumed Obligations not been insured.
2.5 COOPERATION. Seller and Buyer (and each Person in their respective
Group) shall cooperate with the other (and each Person in their respective
Group) in all respects and shall
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execute any additional documents which are reasonably necessary, to effectuate
the provisions of this Article II.
2.6 NO ASSIGNMENT OR WAIVER. This Agreement shall not be considered as an
attempted assignment of any policy of insurance or as a contract of insurance
and shall not be construed to waive any right or remedy of any member of the
Seller Group in respect of any Insurance Policy or any other contract or policy
of insurance.
2.7 NO RESTRICTIONS. Nothing in this Agreement shall be deemed to restrict
any member of the Buyer Group from acquiring at its own expense any other
insurance policy in respect of any liabilities or covering any period.
2.8 FURTHER AGREEMENTS. The Parties acknowledge that they intend to
allocate financial obligations without violating any laws regarding insurance,
self-insurance or other financial responsibility. If it is determined that any
action undertake pursuant to the Separation Agreement, this Agreement or any
other Ancillary Agreement is violative of any insurance, self-insurance or
related financial responsibility law or regulation, the Parties shall work
together to do whatever is commercially reasonable to comply with such law or
regulation while trying to accomplish, as much as possible, the allocation of
financial obligations as intended in the Separation Agreement, this Agreement
and any other Ancillary Agreement.
2.9 MATTERS GOVERNED BY EMPLOYEE MATTERS AGREEMENT. This Article II shall
not apply to any insurance policies that are the subject of employee benefit
plans.
ARTICLE III
MISCELLANEOUS
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3.1 BINDING EFFECT. Except as otherwise provided in this Section 3.1, this
Agreement shall be binding upon and inure to the benefit of the Parties hereto
and their respective successors and permitted assigns.
3.2 NO ASSIGNMENT. Except as expressly provided in this Agreement, this
Agreement may not be assigned by either Party hereto without the prior written
consent of the other Party. Any attempted or purported assignment by either
Party, other than in accordance with this Section 3.2, shall be null and void
and of no force or effect.
3.3 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. This Agreement may be
delivered by delivery of facsimile signatures.
3.4 GOVERNING LAW; JURISDICTION.
(i) THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR
CONFLICT PROVISION OR RULE (WHETHER OF THE STATE OF NEW YORK, OR ANY OTHER
JURISDICTION) THAT WOULD CAUSE THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE
OF NEW YORK TO BE APPLIED. IN FURTHERANCE OF THE FOREGOING, THE INTERNAL LAW OF
THE STATE OF NEW YORK WILL CONTROL THE INTERPRETATION AND CONSTRUCTION OF THIS
AGREEMENT, EVEN IF UNDER
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SUCH JURISDICTION'S CHOICE OF LAW OR CONFLICT OF LAW ANALYSIS, THE SUBSTANTIVE
LAW OF SOME OTHER JURISDICTION WOULD ORDINARILY APPLY.
(ii) SUBJECT TO ARTICLE IV, EACH PARTY CONSENTS THAT ANY LEGAL ACTION
OR PROCEEDING AGAINST IT UNDER, ARISING OUT OF OR IN ANY MANNER RELATING TO THIS
AGREEMENT, OR ANY OTHER INSTRUMENT OR DOCUMENT EXECUTED AND DELIVERED IN
CONNECTION HEREWITH, SHALL BE BROUGHT EXCLUSIVELY IN THE UNITED STATES DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF NEW YORK OR IF SUCH COURT LACKS SUBJECT
MATTER JURISDICTION THEN IN THE SUPERIOR COURT OF THE STATE OF NEW YORK FOR NEW
YORK COUNTY. EACH PARTY, BY THE EXECUTION AND DELIVERY OF THIS AGREEMENT,
EXPRESSLY AND IRREVOCABLY CONSENTS AND SUBMITS TO THE PERSONAL JURISDICTION OF
ANY OF SUCH COURTS IN ANY SUCH ACTION OR PROCEEDINGS. EACH PARTY AGREES THAT TO
THE EXTENT PERMITTED BY APPLICABLE LAW PERSONAL JURISDICTION OVER IT MAY BE
OBTAINED BY THE DELIVERY OF A SUMMONS (POSTAGE PREPAID) IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 3.7 OF THIS ARTICLE. ASSUMING DELIVERY OF THE SUMMONS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.7 OF THIS ARTICLE, EACH PARTY HEREBY
EXPRESSLY AND IRREVOCABLY WAIVES ANY ALLEGED LACK OF PERSONAL JURISDICTION,
IMPROPER VENUE OF FORUM NON CONVENIENS OR ANY SIMILAR BASIS.
3.5 INVALIDITY. In the event that any one or more of the provisions
contained in this Agreement, or in any other instrument referred to herein,
shall, for any reason, be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any
other provision of this Agreement or any other such instrument, except that this
Agreement shall not be reformed in any way if such reformation will deny to
either Party the essential benefits of this Agreement, unless the benefited
Party waives in writing its right to such benefits. In the event that such
reformation is not undertaken as provided herein, the Parties shall place
themselves as closely as practicable in the positions they were in immediately
prior to the Closing Date.
3.6 SURVIVAL. The representations, warranties, indemnities and agreements
of the Parties to this Agreement shall survive the Closing for a period of three
(3) years. The period of limitations set forth above shall be in lieu of all
statutes of limitations otherwise applicable having a duration of more than that
period.
3.7 NOTICES. All notices required to be given under the terms of this
Agreement or which either of the Parties desires to give hereunder shall be in
writing and personally delivered or sent by certified mail, return receipt
requested, addressed as follows:
(a) If to Buyer:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇'▇, Inc.
▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: President
with a copy to:
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[counsel to AT]
(b) If to Seller:
Digital Creative Development Corporation
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Chairman
with a copy to:
Piliero ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Any Party may designate a change in address at any time upon written notice
to the other Party.
3.8 NO THIRD-PARTY BENEFICIARIES. Notwithstanding anything to the contrary
contained in this Agreement, no provision of this Agreement is intended to
benefit any Person other than the signatories hereto or their permitted assigns,
nor shall any such provision be enforceable by any such other Person.
3.9 EXHIBITS AND SCHEDULES. The Exhibits and Schedules referred to herein
form a part of this Agreement, and are hereby incorporated herein by this
reference.
3.10 ENTIRE AGREEMENT; AMENDMENTS; HEADINGS; WAIVERS, ETC. This Agreement
and the Schedules and Exhibits hereto contain the entire agreement of the
Parties with respect to the subject matter hereof and supersede all prior
agreements and understandings, either oral or written, between the Parties with
respect to such subject matter. No understandings, representations or warranties
made or agreed to by either Party prior to or contemporaneously with the
execution of this Agreement, except understandings, representations and
warranties contained in the Separation Agreement or in any other Ancillary
Agreement, shall be binding upon either Party or shall otherwise affect this
Agreement, and no amendment, modification or waiver of any provision of this
Agreement will be binding unless in writing and signed by authorized
representatives of both Parties. The headings in this Agreement, its Schedules
and Exhibits are for convenience of reference only and shall not constitute a
part of this Agreement or of such Schedules or Exhibits. No failure or delay on
the part of any Party hereto in the exercise of any right hereunder shall impair
such right or be construed to be a waiver of, or acquiescence in, any breach of
any representation, warranty or agreement herein, nor shall any single or
partial exercise of any such right preclude other or further exercise thereof or
of any other right. Except where a right or remedy is expressly stated to be
exclusive, all rights and remedies existing under this Agreement are cumulative
to, and not exclusive of, any rights or remedies available in the Separation
Agreement or in any other Ancillary Agreement; provided, however, that in the
event of any irreconcilable conflict between any of the provisions of this
Agreement and the provisions of the Separation Agreement or any other Ancillary
Agreement, the provisions of this Agreement shall prevail and govern and in the
event of any irreconcilable conflict between the provisions of this Agreement
and the provisions of any other Ancillary Agreement, the provisions of such
other Ancillary Agreement shall prevail and govern. References to Sections are
to Sections in this Agreement and in each case include references to all
subsections under the referenced Section.
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Words denoting the singular tense or person shall include the plural and vice
versa and references to the masculine gender shall, where the context permits,
include the feminine and/or neuter genders and vice versa. The words
"including," "includes," "include" as used in this Agreement mean, respectively,
"including, without limitation," "includes, without limitation," and "include,
without limitation." The words "hereof," "herein" and "hereunder" and words of
similar import shall refer to all applicable provisions of this Agreement and
not to any particular provision. This Agreement is the result of negotiation
and, accordingly, no presumption or burden of proof will arise with respect to
any ambiguity or question of intent concerning this Agreement favoring or
disfavoring any Party to this Agreement by virtue of the authorship of any
provision of this Agreement. All references to statutory provisions shall
include all amendments and reenactments thereof.
ARTICLE IV
ARBITRATION
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4.1 ARBITRATION PANEL. Except with respect to the remedies provided for in
Section 5.2(b), above, and 9.11(d) of the Separation Agreement, any controversy
or claim arising out of or relating to this Agreement or any instrument or
document provided pursuant thereto, or the breach thereof, whether common law or
statutory, including without limitation claims asserting violations of the
antitrust laws, shall be settled exclusively and finally by arbitration in New
York, New York, using the American Arbitration Association. The arbitration
shall be heard before three arbitrators, one to be chosen by Seller, one to be
chosen by Buyer and the third to be chosen by those two arbitrators.
4.2 POWER OF ARBITRATORS. The arbitrators shall apply the internal law of
the State of New York without regard to principles of conflicts of laws in
determining the rights, obligations and liabilities of the Parties. The
arbitrators shall not have the power to alter, modify, amend, add to or subtract
from any term or provision of this Agreement, nor to grant injunctive relief,
including interim relief, of any nature, nor to award punitive damages of any
nature. In all other respects, the commercial rules of the American Arbitration
Association shall govern the arbitration. Judgment on the award of the
arbitrators may be entered by any court having jurisdiction to do so, and Buyer
and Seller hereby irrevocably consent and submit to the personal jurisdiction of
the federal and state courts of the State of New York for that purpose as well
as for any and all other permitted purposes in connection with this Agreement.
4.3 FAILURE TO ARBITRATE. The failure or refusal of either Party to submit
to arbitration shall constitute a breach of this Agreement. Judicial action may
be commenced in order to compel arbitration. If such action is commenced and if
arbitration is in fact compelled, the Party that shall have resisted arbitration
shall be required to pay to the other Party all costs and expenses, including,
without limitation, reasonable attorneys' fees, that it incurs in compelling
arbitration. The prevailing Party in arbitration (i.e., the Party prevailing on
the substantive merits) shall be entitled to its reasonable attorneys' fees and
costs. Otherwise, costs shall be determined as the arbitrators shall order.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed by their duly authorized officers or representatives in the presence of
the designated witnesses on the date first above written.
DIGITAL CREATIVE DEVELOPMENT CORPORATION
By:
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Name:
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Title:
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Date:
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇'▇, INC.
By:
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Name:
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Title:
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Date:
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