72
approval.
This Agreement may not be amended except by an instrument in writing
signed by Forest, Spinco, the Company and Merger Sub.
Section 8.5
Waivers.
At any time prior to the Effective Time,
Forest, Spinco and the Company may, to the extent legally allowed, (i) extend
the time for the performance of any of the obligations or acts of the other
party; (ii) waive any inaccuracies in the representations and warranties of the
other party contained herein or in any document delivered pursuant to this
Agreement; and (iii) waive compliance with any of the agreements or conditions
of the other party contained herein; provided, however, that no failure or delay
by Forest, Spinco or the Company in exercising any right hereunder shall operate
as a waiver thereof nor shall any single or partial exercise thereof preclude
any other or further exercise thereof or the exercise of any other right
hereunder.
Any agreement on the part of Forest, Spinco or the Company to any
such extension or waiver shall be valid only if set forth in an instrument in
writing signed on behalf of such party.
ARTICLE IX
MISCELLANEOUS
Section 9.1
Survival of Representations, Warranties and Agreements;
Indemnification.
(A)
THE COVENANTS AND AGREEMENTS IN THIS AGREEMENT OR IN ANY
CERTIFICATE OR INSTRUMENT DELIVERED PURSUANT TO THIS AGREEMENT SHALL SURVIVE THE
EFFECTIVE TIME IN ACCORDANCE WITH THEIR RESPECTIVE TERMS.
NONE OF THE
REPRESENTATIONS OR WARRANTIES IN THIS AGREEMENT OR IN ANY CERTIFICATE OR
INSTRUMENT DELIVERED PURSUANT TO THIS AGREEMENT (EXCEPT FOR THE CERTIFICATES
SUBSTANTIALLY IN THE FORMS ATTACHED HERETO IN EXHIBITS G AND H) SHALL SURVIVE
THE EFFECTIVE TIME.
SUBJECT TO SECTION 9.14, THE CONFIDENTIALITY AGREEMENT
SHALL SURVIVE THE EXECUTION AND DELIVERY OF THIS AGREEMENT AND ANY TERMINATION
OF THIS AGREEMENT, AND THE PROVISIONS OF THE CONFIDENTIALITY AGREEMENT SHALL
APPLY TO ALL INFORMATION AND MATERIAL FURNISHED BY ANY PARTY OR ITS
REPRESENTATIVES THEREUNDER OR HEREUNDER.
(B)
FOLLOWING THE EFFECTIVE TIME, FOREST WILL INDEMNIFY, DEFEND AND
HOLD HARMLESS SPINCO, THE COMPANY AND EACH PERSON, IF ANY, WHO CONTROLS, WITHIN
THE MEANING OF SECTION 15 OF THE SECURITIES ACT OR SECTION 20 OF THE EXCHANGE
ACT (ANY SUCH PERSON BEING HEREINAFTER REFERRED TO AS A "CONTROLLING PERSON"),
SPINCO OR THE COMPANY FROM AND AGAINST, AND PAY OR REIMBURSE EACH OF THE
FOREGOING FOR, ALL LOSSES, CLAIMS, DAMAGES, LIABILITIES, ACTIONS, COSTS AND
EXPENSES, JOINT OR SEVERAL, INCLUDING REASONABLE ATTORNEYS' FEES (COLLECTIVELY,
"LOSSES"), ARISING OUT OF OR RESULTING FROM, DIRECTLY OR INDIRECTLY, OR IN
CONNECTION WITH ANY UNTRUE STATEMENT OR ALLEGED UNTRUE STATEMENT OF A MATERIAL
FACT CONTAINED IN OR INCORPORATED BY REFERENCE INTO EITHER OF THE REGISTRATION
STATEMENTS OR IN THE PROXY STATEMENT/PROSPECTUS (OR ANY AMENDMENT OR SUPPLEMENT
THERETO) OR ANY OMISSION OR ALLEGED OMISSION TO STATE THEREIN A MATERIAL FACT
REQUIRED TO BE STATED THEREIN OR NECESSARY TO MAKE THE STATEMENTS THEREIN, IN
LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY WERE MADE, NOT MISLEADING; PROVIDED,
HOWEVER, THAT FOREST SHALL NOT BE RESPONSIBLE FOR INFORMATION PROVIDED BY THE
COMPANY AS TO ITSELF AND