Exhibit 10.5
INDEMNIFICATION AGREEMENT
Agreement dated as of March 31, 2000 among Blue Rhino Corporation, a
Delaware corporation (the "Buyer"), International Propane Products, LLC, an
Illinois limited liability company ("IPP"), and Xxxxxxx X. Xxxxxx ("Xxxxxx")
(together Bison and Waters are referred to herein as the "Sellers"). The Buyer
and the Sellers are referred to collectively herein as the "Parties."
The Buyer and the Sellers are entering into an Asset Purchase Agreement
concurrently herewith (the "Asset Purchase Agreement"). Certain terms used
herein without definition are used herein as defined in the Asset Purchase
Agreement.
The Asset Purchase Agreement contemplates a transaction in which the Buyer
will purchase the Acquired Assets (and accept responsibility for the Assumed
Liabilities) of the Sellers in return for a payment of cash, the issuance of the
Purchase Shares, the Deferred Purchase Payments and the assumption of certain
Liabilities.
The Buyer and the Sellers make certain representations, warranties, and
covenants in the Asset Purchase Agreement which will survive the Closing for
purposes of potential indemnification. The Buyer and the Sellers therefore wish
to provide for post-Closing indemnification against breaches of these
representations, warranties, and covenants and to make certain other covenants
among themselves.
Now, therefore, in consideration of the premises and the mutual promises
herein made, the Parties agree as follows:
1. Definitions. Except as defined herein, all capitalized terms shall
have the meanings accorded to them in the Asset Purchase Agreement.
"Adverse Consequences" means all actions, suits, proceedings, hearings,
investigations, charges, complaints, claims, demands, injunctions, judgments,
orders, decrees, rulings, damages, dues, penalties, fines, costs, amounts paid
in settlement, Liabilities, obligations, Taxes, liens, losses, expenses, and
fees, including court costs and reasonable attorneys' fees and expenses.
"Annex" has the meaning set forth in Section 2 below.
"Asset Purchase Agreement" has the meaning set forth in the preface above.
"Confidential Information" means any information of value concerning the
Patio Heater, or the Acquired Assets that is not either (a) already generally
available to the public or (b) made generally available to the public prior to
any alleged breach of this Agreement other than by breach of this Agreement.
Information available on a web site on the world wide web or
published in any newspaper or magazine (including trade-oriented magazines with
limited or controlled circulation) shall be deemed generally available to the
public.
"Indemnified Party" has the meaning set forth in Section 4(d) below.
"Indemnifying Party" has the meaning set forth in Section 4(d) below.
"Party" has the meaning set forth in the preface above.
"Third Party Claim" has the meaning set forth in Section 4(d) below.
2. Representations and Warranties of Waters. Waters represents and
warrants to the Buyer that the statements contained in this Section 2 are
correct and complete as of the date of this Agreement and will be correct and
complete as of the Closing Date (as though made then and as though the Closing
Date were substituted for the date of this Agreement throughout this Section 2)
with respect to himself or itself, except as set forth in the Annex attached
hereto (the "Annex").
(a) Authorization. Waters has full power and authority to execute and
deliver this Agreement and to perform his obligations hereunder. This Agreement
constitutes the valid and legally binding obligation of Waters, enforceable in
accordance with its terms and conditions.
(b) Noncontravention. Neither the execution and the delivery of this
Agreement by Waters, nor the performance by Waters of his obligations hereunder,
will (i) violate any constitution, statute, regulation, rule, injunction,
judgment, order, decree, stipulation, ruling, charge, or other restriction of
any government, governmental agency, or court to which Waters is subject or
(ii) conflict with, result in a breach of, constitute a default under, result in
the acceleration of, create in any party the right to accelerate, terminate,
modify, or cancel, or require any notice under any agreement, contract, lease,
license, instrument, or other arrangement to which Waters is a party or by which
he is bound or to which any of his or its assets is subject.
3. Post-Closing Covenants. The Parties agree as follows with respect to
the period following the Closing:
(a) General. In case at any time after the Closing any further action
is necessary or desirable to fully effect the transactions provided for in the
Asset Purchase Agreement, each of the Parties will take such further action
(including the execution and delivery of such further instruments and documents)
as any other Party reasonably may request, all at the sole cost and expense of
the requesting Party (unless the requesting Party is entitled to indemnification
therefor under Section 4 below). Sellers acknowledge and agree that from and
after the Closing the Buyer will be entitled to possession of all documents,
books, records (including Tax records), agreements, and financial data of any
sort relating to the Acquired
Assets, or copies thereof, in the case of any such information that, although
related to the Acquired Assets, is related to the business of the Sellers.
(b) Litigation Support. In the event and for so long as any Party
actively is contesting or defending against any action, suit, proceeding,
hearing, investigation, charge, complaint, claim, or demand in connection with
(i) any transaction contemplated under the Asset Purchase Agreement or (ii) any
fact, situation, circumstance, status, condition, activity, practice, plan,
occurrence, event, incident, action, failure to act, or transaction on or prior
to the Closing Date involving the Patio Heater or the Acquired Assets, each of
the other Parties will cooperate with the contesting or defending Party and his
or its counsel in the contest or defense, make available his or its personnel,
and provide such testimony and access to his or its books and records as shall
be necessary in connection with the contest or defense, all at the sole cost and
expense of the contesting or defending Party (unless the contesting or defending
Party is entitled to indemnification therefor under Section 4 below).
(c) Transition. Waters will not take any action that is designed or
intended to have the effect of discouraging any lessor, licensor, customer,
supplier, or other business associate of IPP from maintaining the same business
relationships with the Buyer after the Closing as it maintained with IPP prior
to the Closing. Sellers will refer all customer inquiries relating to the Patio
Heater Business of the Sellers to the Buyer from and after the Closing.
(d) Confidentiality. Sellers will treat as and hold confidential all
of the Confidential Information, refrain from using any of the Confidential
Information except in connection with this Agreement or at the request of the
Buyer, and deliver promptly to the Buyer or destroy, at the request and option
of the Buyer, all tangible embodiments (and all copies) of the Confidential
Information which are in his or its possession except information related to the
prosecution of the patent with respect to the Patio Heater. In the event any
Seller is requested or required (by oral question or request for information or
documents in any legal proceeding, interrogatory, subpoena, civil investigative
demand, or similar process) to disclose any Confidential Information, such
Seller will notify the Buyer promptly of the request or requirement so that the
Buyer may seek an appropriate protective order or waive compliance with the
provisions of this Section 3(d). If, in the absence of a protective order or the
receipt of a waiver hereunder, any Seller is, on the advice of counsel,
compelled to disclose any Confidential Information to any tribunal or else risk
being found liable for contempt, such Seller may disclose the Confidential
Information to or as ordered by the tribunal; provided, however, that such
Seller shall use his or its reasonable best efforts to obtain, at the reasonable
request and expense of the Buyer, an order or other assurance that confidential
treatment will be accorded to such portion of the Confidential Information
required to be disclosed as the Buyer shall designate. This Agreement however
will not prevent Waters from using Confidential Information in accordance with
the License Agreement.
(e) Covenant Not to Compete. Other than as allowed pursuant to the
terms of
the License Agreement, for a period of five (5) years from and after the Closing
Date, no Seller shall engage directly or indirectly in the business of the
manufacture or sale of the Patio Heater or any heating devices used to warm the
outdoor atmosphere in a defined space; provided, however, that no owner of less
than 2% of the outstanding stock of any publicly traded corporation shall be
deemed to engage solely by reason thereof in any of its businesses. If the final
judgment of a court of competent jurisdiction declares that any term or
provision of this Section 3(e) is invalid or unenforceable, the Parties agree
that the court making the determination of invalidity or unenforceability shall
have the power to reduce the scope, duration, or area of the term or provision,
to delete specific words or phrases, or to replace any invalid or unenforceable
term or provision with a term or provision that is valid and enforceable and
that comes closest to expressing the intention of the invalid or unenforceable
term or provision, and this Agreement shall be enforceable as so modified after
the expiration of the time within which the judgment may be appealed. The
provisions of this covenant not to compete will not prevent Waters from
manufacturing and selling Patio Heaters pursuant to the terms of the License
Agreement with any variation or improvement on the design licensed pursuant to
the License Agreement included within this exception so long as royalties on
such sales are included in the royalty calculation under the License Agreement.
(f) Technical Support. For a period of the longer of the time
necessary to fully process the Patio Heater Patent or two (2) years, Waters
shall provide technical support services to the Buyer consisting of research and
development into New Developments. The term "New Developments" means concepts
and ideas necessary to prosecute the Patio Heater Patent, whether patentable or
not, including but not limited to proprietary or secret processes, designs,
inventions, developments, modifications, procedures, methods, techniques,
processes, adaptations, and applications, as well as improvements thereof or
know-how related thereto. During the term of the consulting Agreement, the
Consulting Agreement shall cover all compensation owed under this Section 3(f).
Upon termination of the Consulting Agreement, Waters shall be compensated for
all services provided after such date under this Section 3(f) on a time and
materials basis at a rate to be agreed in advance of services performed. Any
fees of attorneys or other professionals incurred in connection with patent
searches or applications shall be paid directly by Buyer. Waters and Buyer shall
jointly control the prosecution of the Patio Heater Patent.
With respect to New Developments made or conceived by Waters which result
from the performance of the technical services by Waters as contemplated by this
Agreement, or result from the use of any Confidential Information, Waters and
the Buyer agree that:
(i) Waters shall disclose such New Developments to Buyer in
writing, setting forth in reasonable detail the procedures employed
and the results achieved;
(ii) Waters shall apply, at Buyer's request and expense, for
United States and foreign letters patent, copyrights, and trademarks,
for any New Developments either in the name of Buyer or otherwise as
Buyer shall direct in writing;
(iii) Waters shall assign, to Buyer or otherwise as Buyer shall
designate in writing, all of Waters's rights to such New Developments,
including but not limited to United States and foreign letters patent,
copyrights, trade names and trademarks granted upon such New
Developments;
(iv) Waters shall execute all documents reasonably requested by
Buyer to formally assign any interest he may have in such New
Developments to Buyer or otherwise as Buyer shall designate in
writing; and
(v) Waters shall execute any other written instrument and
shall do any other acts reasonably requested by Buyer to assist Buyer
or such other party as Buyer designates in writing to perfect or
protect any or all of its rights in any New Development, including but
not limited to trade secret, trademark, trade name, copyright and
patent rights, both United States and foreign.
4. Remedies for Breaches of this Agreement and the Asset Purchase
Agreement.
(a) Survival of Representations and Warranties.
All of the representations and warranties of the Buyer and the Sellers
contained in the Asset Purchase Agreement and in this Agreement shall survive
the Closing and continue in full force and effect as of the Closing Date for a
period of one (1) year except that (i) the representations and warranties
contained in Sections 3(j), shall survive the Closing and continue in full force
and effect as of the Closing Date for a period of three years; (ii) the
representations and warranties contained in Section 3(l) shall survive the
Closing and continue in full force and effect as of the Closing Date for a
period of one (1) year after the grant of the Patio Heater Patent; (iii) the
representations and warranties contained in Section 3(t) shall survive the
Closing and continue in full force and effect as of the Closing Date for a
period of five (5) years; and (iii) the representations and warranties contained
in Sections 3(a), (b), (c), (d) and (e) of the Asset Purchase Agreement and
Sections 4(a), (b), (c), (d) and (e) of the Asset Purchase Agreement shall
continue in full force and effect forever thereafter (subject to any applicable
statutes of limitations).
(b) Indemnification Provisions for Benefit of the Buyer.
(i) In the event any Seller breaches (or in the event any
third party alleges facts that, if true, would mean a Seller has
breached) any of its representations, warranties, and covenants
contained in the Asset Purchase
Agreement or any documents delivered therewith (which shall include a
breach by Waters Industries, Inc. under the Consulting Agreement dated
as of the date hereof), and, if there is an applicable survival period
pursuant to Section 4(a) above, provided that the Buyer makes a
written claim for indemnification against the Sellers pursuant to
Section 6(h) below within such survival period, then the Sellers agree
to indemnify the Buyer from and against the entirety of any Adverse
Consequences the Buyer may suffer through and after the date of the
claim for indemnification (including any Adverse Consequences the
Buyer may suffer after the end of any applicable survival period)
resulting from, arising out of or caused by the breach (or the alleged
breach) up to the limits provided herein below.
(ii) In the event Waters breaches (or in the event any third
party alleges facts that, if true, would mean Waters has breached) any
of his representations, warranties, and covenants contained in this
Agreement, and, if there is an applicable survival period pursuant to
Section 4(a) above, provided that the Buyer makes a written claim for
indemnification against Waters pursuant to Section 6(h) below within
such survival period, then Waters agrees to indemnify the Buyer from
and against the entirety of any Adverse Consequences the Buyer may
suffer through and after the date of the claim for indemnification
(including any Adverse Consequences the Buyer may suffer after the end
of any applicable survival period) arising out of or caused by the
breach (or the alleged breach) up to the limits provided herein below.
(iii) The Sellers agree to indemnify the Buyer from and against
the entirety of any Adverse Consequences the Buyer may suffer arising
out of or caused by any Liability of any Seller which is not an
Assumed Liability (including any Liability of any Seller that becomes
a Liability of the Buyer under any bulk transfer law of any
jurisdiction, under any common law doctrine of de facto merger or
successor liability, under Environmental, Health, and Safety
Requirements, or otherwise by operation of law).
(iv) Except as set forth herein, no amount shall be payable by
the Sellers with respect to any Adverse Consequences unless and until
all of the Adverse Consequences for which claims have been made exceed
$25,000 in the aggregate. Except as set forth herein, the amount that
the Waters and IPP shall be obligated to pay or expend in fulfilling
their obligations under this Agreement shall be limited to, and in no
event shall exceed, the amount of $1,123,000. Notwithstanding anything
to the contrary contained herein, in the event of a breach by either
of the Sellers of their obligations under Section 3(e) of this
Agreement, there shall be no limitation on the amount paid by Sellers
to Buyer, and such amount may include lost profits.
(c) Indemnification Provisions for Benefit of Waters.
(i) In the event the Buyer breaches (or in the event any third
party alleges facts that, if true, would mean the Buyer has breached)
any of its representations, warranties, and covenants contained in the
Asset Purchase Agreement or any of the documents delivered therewith,
and, if there is an applicable survival period pursuant to Section
4(a) above, provided that Waters makes a written claim for
indemnification against the Buyer pursuant to Section 6(h) below
within such survival period, then the Buyer agrees to indemnify Waters
from and against the entirety of any Adverse Consequences Waters may
suffer through and after the date of the claim for indemnification
(including any Adverse Consequences Waters may suffer after the end of
any applicable survival period), arising out of, or caused by the
breach (or the alleged breach).
(ii) The Buyer agrees to indemnify Waters from and against the
entirety of any Adverse Consequences Waters may suffer arising out of
or caused by any Assumed Liability.
(d) Matters Involving Third Parties.
(i) If any third party shall notify any Party (the
"Indemnified Party") with respect to any matter (a "Third Party
Claim") which may give rise to a claim for indemnification against any
other Party (the "Indemnifying Party") under this Section 4, then the
Indemnified Party shall promptly notify each Indemnifying Party
thereof in writing; provided, however, that no delay on the part of
the Indemnified Party in notifying any Indemnifying Party shall
relieve the Indemnifying Party from any obligation hereunder unless
(and then solely to the extent) the Indemnifying Party thereby is
prejudiced.
(ii) Any Indemnifying Party will have the right to defend the
Indemnified Party against the Third Party Claim with counsel of its
choice reasonably satisfactory to the Indemnified Party so long as (A)
the Indemnifying Party notifies the Indemnified Party in writing
within 45 days after the Indemnified Party has given notice of the
Third Party Claim that the Indemnifying Party will indemnify the
Indemnified Party from and against the entirety of any Adverse
Consequences the Indemnified Party may suffer arising out of or caused
by the Third Party Claim, (B) the Indemnifying Party provides the
Indemnified Party with evidence reasonably acceptable to the
Indemnified Party that the Indemnifying Party will have the financial
resources to defend against the Third Party Claim and fulfill its
indemnification obligations hereunder, (C) the Third Party Claim
involves only money damages and does not seek an injunction or other
equitable relief, (D) settlement of, or an adverse judgment with
respect to, the Third Party Claim is not, in the good faith judgment
of the Indemnified Party,
likely to establish a precedential custom or practice materially
adverse to the continuing business interests of the Indemnified Party,
and (E) the Indemnifying Party conducts the defense of the Third Party
Claim actively and diligently.
(iii) So long as the Indemnifying Party is conducting the
defense of the Third Party Claim in accordance with Section 4(d)(ii)
above, (A) the Indemnified Party may retain separate co-counsel at its
sole cost and expense and participate in the defense of the Third
Party Claim, (B) the Indemnified Party will not consent to the entry
of any judgment or enter into any settlement with respect to the Third
Party Claim without the prior written consent of the Indemnifying
Party, and (C) the Indemnifying Party will not consent to the entry of
any judgment or enter into any settlement with respect to the Third
Party Claim without the prior written consent of the Indemnified
Party.
(iv) In the event any of the conditions in Section 4(d)(ii)
above is or becomes unsatisfied, however, (A) the Indemnified Party
may defend against, and consent to the entry of any judgment or enter
into any settlement with respect to, the Third Party Claim in any
manner it reasonably may deem appropriate (and the Indemnified Party
need not consult with, or obtain any consent from, the Indemnifying
Party in connection therewith), (B) the Indemnifying Parties will
reimburse the Indemnified Party promptly and periodically for the
costs of defending against the Third Party Claim (including reasonable
attorneys' fees and expenses), and (C) the Indemnifying Party will
remain responsible for any Adverse Consequences the Indemnified Party
may suffer arising out of or caused by the Third Party Claim to the
fullest extent provided in this Section 4.
(e) Purchase Price Adjustments. All indemnification payments under
this Section 4 shall be deemed adjustments to the Purchase Price.
(f) Other Recoupment Options. The Buyer, at its sole discretion,
shall have the option of recouping all or any part of any amount owed Buyer
under Section 4(b) (in lieu of seeking any indemnification to which it is
entitled under this Section 4) by:
(i) reducing the Deferred Purchase Price required to be paid
to Waters pursuant to the Asset Purchase Agreement to the extent of
all or any part of the amount owed Buyer under Section 4(b) up to the
limit provided herein above;
The Buyer shall provide the Sellers with thirty days written notice prior
to taking any of the actions provided for in this Section 4(f) and will not take
such an action if the Sellers contest the right of the Buyer to take such action
by written notice delivered during such thirty day
period. In the event that the Sellers contest the Buyer's right to recoupment
hereunder, the Buyer shall continue to pay the Deferred Purchase Price when due,
but shall pay such Deferred Purchase Price into a segregated account up to the
amount that the Buyer claims to be owed under Section 4(b) above, which shall be
held in trust for Waters under the Asset Purchase Agreement until a final
decision by an arbitrator or a court of competent jurisdiction as to the amount,
if any, of any right to recoupment. The Buyer shall pay the Deferred Purchase
Price over and above the amount that the Buyer claims to be owed under Section
4(b) above directly to Waters as provided in the Asset Purchase Agreement.
(g) Other Indemnification Provisions. The foregoing indemnification
provisions are the exclusive remedies of the parties for breach of the Asset
Purchase Agreement.
5. Termination. This Agreement shall terminate if and only if the
Asset Purchase Agreement is terminated prior to the Closing in accordance with
and pursuant to the terms thereof.
6. Miscellaneous.
(a) Exclusivity. Waters will not (i) solicit, initiate, or encourage
the submission of any proposal or offer from any Person relating to the
acquisition of any of the membership units, or any substantial portion of the
assets, of the Sellers (including any acquisition structured as a merger,
consolidation, or share exchange) or (ii) participate in any discussions or
negotiations regarding, furnish any information with respect to, assist or
participate in, or facilitate in any other manner any effort or attempt by any
Person to do or seek any of the foregoing. Waters will notify the Buyer
immediately if he becomes aware that any Person has made any proposal, offer,
inquiry, or contact with respect to any of the foregoing.
(b) Press Releases and Public Announcements. Waters shall not issue
any press release or make any public announcement relating to the subject matter
of the Asset Purchase Agreement without the prior written approval of the Buyer;
provided, however, that Waters may make any public disclosure it believes in
good faith is required by applicable law (in which case Waters will use his
reasonable best efforts to advise the other Buyer prior to making the
disclosure).
(c) No Third Party Beneficiaries. This Agreement shall not confer any
rights or remedies upon any Person other than the Parties and their respective
successors and permitted assigns.
(d) Entire Agreement. This Agreement (including the documents
referred to herein) constitutes the entire agreement among the Parties and
supersedes any prior understandings, agreements, or representations by or among
the Parties, written or oral, to the extent they related in any way to the
subject matter hereof.
(e) Succession and Assignment. This Agreement shall be binding upon
and inure to the benefit of the Parties named herein and their respective
successors and permitted assigns. No Party may assign either this Agreement or
any of his or its rights, interests, or obligations hereunder without the prior
written approval of the Buyer and Waters; provided, however, that the Buyer may
(i) assign any or all of its rights and interests hereunder to one or more of
its Affiliates and (ii) designate one or more of its Affiliates to perform its
obligations hereunder (in any or all of which cases the Buyer nonetheless shall
remain liable and responsible for the performance of all of its obligations
hereunder).
(f) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
(g) Headings. The section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
(h) Notices. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice, request, demand, claim,
or other communication hereunder shall be deemed duly given two days after it is
sent by registered or certified mail, return receipt requested, postage prepaid,
and on the day after it is sent by next day air courier or ground messenger
service or by telecopy and on the day of actual delivery by personal delivery,
and addressed to the intended recipient as set forth below:
If to the Sellers:
Xxxxxxx X. Xxxxxx
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000
Fax: 847/000-0000
With a copy to the attorneys of the Sellers and Waters:
Xxxxx X. Xxxxxxx, Esq.
Xxxxx & Xxxxxxxxxx, Ltd.
00 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Fax: 312/000-0000
If to the Buyer:
Blue Rhino Corporation
000 Xxxxxxxxx Xxxxx Xxxxx
Xxxxxxx-Xxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxxx
Fax: 910/000-0000
With a copy to the Buyer's attorneys:
Xxxx X. Xxxxxxxxxx, Esq.
Xxxxxxxx & Xxxxx, P.C.
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Fax: 312/000-0000
Any Party may send any notice, request, demand, claim, or other
communication hereunder to the intended recipient at the address set forth above
using any other means (including personal delivery, expedited courier, messenger
service, telecopy, telex, ordinary mail, or electronic mail), but no such
notice, request, demand, claim, or other communication shall be deemed to have
been duly given unless and until it actually is received by the intended
recipient. Any Party may change the address to which notices, requests,
demands, claims, and other communications hereunder are to be delivered by
giving the other Parties notice in the manner herein set forth.
(i) Governing Law. This Agreement shall be governed by and construed
in accordance with the domestic laws of the State of Illinois without giving
effect to any choice or conflict of law provision or rule that would cause the
application of the laws of any jurisdiction other than the State of Illinois.
(j) Amendments and Waivers. No amendment of any provision of this
Agreement shall be valid unless the same shall be in writing and signed by the
Buyer and Waters. No waiver by any Party of any default, misrepresentation, or
breach of warranty or covenant hereunder, whether intentional or not, shall be
deemed to extend to any prior or subsequent default, misrepresentation, or
breach of warranty or covenant hereunder or affect in any way any rights arising
by virtue of any prior or subsequent such occurrence.
(k) Severability. Whenever possible, each provision of this Agreement
shall be construed and interpreted in such a manner as to be effective and valid
under applicable law, but if any provision of this Agreement or the application
thereof to any party or circumstance shall be prohibited by or invalid under
applicable law, such provision shall be ineffective to the extent of such
prohibition without invalidating the remainder of such provision or any other
provision of this Agreement or the application of such provision to other
parties or circumstances.
(l) Expenses. Each of the Parties will bear his or its own costs and
expenses (including legal fees and expenses) incurred in connection with this
Agreement and the transactions contemplated hereby (except as otherwise provided
herein).
(m) Construction. The Parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the Parties and no presumption or burden of proof shall
arise favoring or disfavoring any Party by virtue of the authorship of any of
the provisions of this Agreement. Any reference to any federal, state, local, or
foreign statute or law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context requires otherwise. The
word "including" shall mean including without limitation.
(n) Incorporation of Annex. The Annex is incorporated herein by
reference and made a part hereof.
(o) Specific Performance. Each of the Parties acknowledges and agrees
that the other Parties would be damaged irreparably in the event any of the
provisions of this Agreement are not performed in accordance with their specific
terms or otherwise are breached. Accordingly, each of the Parties agrees that
the other Parties shall be entitled to an injunction or injunctions to prevent
breaches of the provisions of this Agreement and to enforce specifically this
Agreement and the terms and provisions hereof in any action instituted in any
court of the United States or any state thereof having jurisdiction over the
Parties and the matter (subject to the provisions set forth in Section 6(p)
below) in addition to any other remedy to which they may be entitled, at law or
in equity.
(p) Submission to Jurisdiction. Each of the Parties submits to the
jurisdiction of any state or federal court sitting in Chicago, Illinois, in any
action or proceeding arising out of or relating to this Agreement and agrees
that all claims in respect of the action or proceeding may be heard and
determined in any such court. Each Party also agrees not to bring any action or
proceeding arising out of or relating to this Agreement in any other court. Each
of the Parties waives any defense of inconvenient forum to the maintenance of
any action or proceeding so brought and waives any bond, surety, or other
security that might be required of any other Party with respect thereto. Any
Party may make service on any other Party by sending or delivering a copy of the
process to the Party to be served at the address and in the manner provided for
the giving of notices in Section 6(h) above. Each Party agrees that a final
judgment in any action or proceeding so brought shall be conclusive and may be
enforced by suit on the judgment or in any other manner provided by law or in
equity.
[The next page is the Signature Page]
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first above written.
SELLERS: INTERNATIONAL PROPANE PRODUCTS
By _________________________________
Name: Xxxxxxx X. Xxxxxx
Title: Manager and Sole Member
___________________________________
Xxxxxxx X. Xxxxxx
BUYER: BLUE RHINO CORPORATION
By _________________________________
Name: Xxxx X. Xxxxxxxxx
Title: Chief Financial Officer
