ESCROW AGREEMENT
EXHIBIT
B TO
ASSET
PURCHASE
AGREEMENT
This
ESCROW AGREEMENT (this “Agreement”),
is
made as of the 3rd
day of
October, 2006, among CRC ACQUISITION CO. LLC, a Delaware Limited Liability
Company (“Seller”);
SIG
Acquisition Corp., a Delaware corporation (“Purchaser”)
and
THE
BANK
OF NEW YORK (the
“Escrow
Agent”,
which
term shall include any successor escrow agent appointed in accordance with
Section 3.6(c) hereof).
The
parties hereto are entering into this Agreement pursuant to that certain Asset
Purchase Agreement, dated as of September 22, 2006 (as amended, supplemented
or
otherwise modified from time to time), among the Seller, NET PERCEPTIONS, INC.,
a Delaware corporation (the “Purchaser
Parent”)
and
the Purchaser. Capitalized terms used herein, but not otherwise defined herein,
shall have the meanings ascribed to them in the Asset Purchase
Agreement.
The
parties to the Asset Purchase Agreement have agreed to enter into this Agreement
pursuant to Section 2.3(b) of the Asset Purchase Agreement for the purpose
of
providing security for indemnification claims of the Purchaser Indemnified
Parties pursuant to Section 13.3 of the Asset Purchase Agreement.
ARTICLE
I
APPOINTMENT
OF ESCROW AGENT
1.1 Appointment
of Escrow Agent; Establishment of Escrow Arrangement.
Seller
and the Purchaser hereby constitute and appoint the Escrow Agent as, and the
Escrow Agent hereby agrees to assume and perform the duties of, the escrow
agent
under and pursuant to this Agreement. Simultaneously with the execution of
this
Agreement, the Purchaser has deposited with the Escrow Agent $2,000,000 in
cash
(together with any income earned thereon and subject to the deductions provided
for in this Agreement, the “Escrow
Fund”)
by
wire transfer to the following deposit account: a/c # 103569. The Escrow Agent
hereby acknowledges receipt of the Escrow Fund. The Escrow Agent agrees to
hold
the Escrow Fund in escrow subject to the terms and conditions of this
Agreement.
1.2 Transferability.
The
interests of the Seller and the Purchaser in the Escrow Fund shall not be
assignable or transferable by any party hereto other than by operation of law
or
pursuant to the terms of this Agreement. Notice of any such assignment or
transfer shall be delivered in writing by such transferring party to each other
party hereto and no such assignment or transfer shall be valid until such notice
is provided.
ARTICLE
II
DISTRIBUTION
OF ESCROW PROPERTY
2.1 Expiration
Date; Termination of Agreement.
The
Escrow Fund shall be held by the Escrow Agent on the terms and subject to the
conditions set forth herein, subject to Section 2.7 hereof, through April 30,
2008 (the “Expiration
Date”).
Unless the Seller and the Purchaser give the Escrow Agent joint written
instructions otherwise, this Agreement shall terminate on the date when all
of
the Escrow Fund has been distributed by the Escrow Agent in accordance with
the
terms of this Agreement; provided,
however,
that
the provisions of Section 3.6 hereof shall survive such
termination.
2.2
Delivery
of Escrow Property.
(a) The
Escrow Agent shall deliver the Escrow Fund only in accordance with (i) a written
agreement signed by each of the Seller and the Purchaser or (ii) the provisions
of this Article II.
2.3
Purchaser
Indemnity Claims.
The
Purchaser shall give written notice (an “Indemnity
Notice”),
which
notice shall state that it is given pursuant to this Section 2.3, of each claim
against the cash in the Escrow Fund (each, a “Purchaser
Indemnity Claim”)
to the
Seller and the Escrow Agent setting forth (a) the Purchaser’s belief of the
basis therefor, (b) a description of the matter that is subject to
indemnification in reasonable detail in light of the circumstances then known
to
the Purchaser and (c) either (i) the amount of the Purchaser Indemnity Claim,
if
determined, or (ii) the Purchaser’s estimate of the reasonably foreseeable
amount of the Purchaser Indemnity Claim. The Purchaser shall, upon the Seller’s
request, make available to the Seller all relevant information concerning such
Purchaser Indemnity Claim as the Seller shall reasonably request and that is
in
or comes into the possession of the Purchaser.
2.4
Purchaser
Indemnity Claims Not Disputed by the Seller.
If,
within thirty days after receipt of the Indemnity Notice (calculated in
accordance with Section 4.1 hereof), the Escrow Agent and the Purchaser have
not
received written notice from the Seller that the Seller disputes the Purchaser
Indemnity Claim described in such Indemnity Notice or the amount the Purchaser
seeks payment on account of such Purchaser Indemnity Claim (the “Seller
Dispute Notice”),
the
Purchaser shall be entitled to make demand (an “Undisputed
Indemnity Notice Demand”)
that
the Escrow Agent either retain for future delivery to the Purchaser as and
when
the amount of such Purchaser Indemnity Claim is determined, if the amount of
such Purchaser Indemnity Claim is not then determined, or deliver to the
Purchaser, if the amount of such Purchaser Indemnity Claim has then been
determined, an aggregate amount of cash from the Escrow Fund equal to the amount
of the Purchaser Indemnity Claim set forth in such Indemnity Notice.
2.5 Purchaser
Indemnity Claims Disputed by the Seller as a Whole.
In the
event that the Seller disputes an entire Purchaser Indemnity Claim, the Seller
shall, within thirty days after receipt of the applicable Indemnity Notice,
provide to the Escrow Agent and the Purchaser a Seller Dispute Notice setting
forth the basis therefore in reasonable detail in light of the circumstances
then known to the Seller and the Escrow Agent shall not distribute any portion
of the Escrow Fund in respect of such Purchaser Indemnity Claim until the Escrow
Agent receives (i) a written agreement signed by the Purchaser and the Seller
stating the aggregate amount of such Purchaser Indemnity Claim (an “Indemnity
Claim Agreement”)
or
(ii) a copy of an arbitrator’s award or court order or judgment stating the
aggregate amount to which the Purchaser is entitled in connection with such
Purchaser Indemnity Claim, provided
that
such award, order or judgment is final and binding with respect to the Purchaser
and the Seller and from which no appeal may be taken or for which the time
to
appeal has expired (a “Final
Judgment”);
provided, that the Escrow Agent shall have given written notice of the proposed
distribution of the amount of cash from the Escrow Fund, together with copies,
of all such documents and orders to the Purchaser and the Seller at least five
(5) Business Days prior to the date of such distribution by the Escrow Agent.
The Seller shall, upon the Purchaser’s request, make available to the Purchaser
all relevant information concerning the Seller Dispute Notice relating to a
Purchaser Indemnity Claim as the Purchaser shall reasonably request and that
is
in or comes into the possession of the Seller.
2
2.6 Purchaser
Indemnity Claims Disputed by the Seller in Part.
In the
event that the Seller disputes part of, but not all of, a Purchaser Indemnity
Claim, the Seller shall, within thirty days after receipt of the Purchaser
Indemnity Notice, deliver to the Escrow Agent and the Purchaser a Seller Dispute
Notice setting forth the basis for the disputed portion of such Purchaser
Indemnity Claim in reasonable detail in light of the circumstances then known
to
the Seller and the Escrow Agent shall, if the amount of such Purchaser Indemnity
Claim is undetermined, retain for future delivery to the Purchaser, or, if
the
amount of such Purchaser Indemnity Claim is determined, deliver to the Purchaser
an amount of cash in the Escrow Fund in an aggregate amount equal to the amount
of the Purchaser Indemnity Claim set forth in such Indemnity Notice that is
attributable to the portion of such Purchaser Indemnity Claim that is not
disputed by the Seller. The Escrow Agent shall not deliver any of the cash
in
the Escrow Fund to the Purchaser relating to the disputed portion of such
Purchaser Indemnity Claim, except in accordance with the procedures set forth
in
Section 2.6.
2.7 Retention
of Escrow Property After Expiration Date.
After
the Expiration Date, the Escrow Agent shall continue to hold an amount of cash
in the Escrow Fund having an aggregate value equal to the entire amount of
any
unresolved Purchaser Indemnity Claim that is the subject of an Indemnity Notice
received by the Escrow Agent prior to the Expiration Date (the “Retained
Escrow Portion”)
until
such time as the Escrow Agent receives for such unresolved Indemnity Claim
(a)
an Indemnity Claim Agreement or (b) a Final Judgment, in each case evidencing
the ultimate resolution of any of the underlying claims referred to in such
Indemnity Notice.
2.8 Final
Distribution of the Escrow Property.
No
later than ten (10) Business Days after the Expiration Date, the cash in the
Escrow Fund held by the Escrow Agent after taking into account the withholdings
required pursuant to the provisions of Sections 2.3 through 2.8 hereof and
the
Retained Escrow Portion pursuant to Section 2.6 hereof, shall be released from
the provisions of this Escrow Agreement and delivered promptly by the Escrow
Agent to the Seller.
2.9
Limitations
on Escrow Funds.
Unless
otherwise agreed to pursuant to Section 2.2(a) hereof, in no event shall the
aggregate value of Escrow Property delivered to the Purchaser pursuant to
Section 2.3 hereof or on account of all Purchaser Indemnity Claims have an
aggregate value that exceeds the sum of (i) the sum of (A) $2,000,000
plus
(B) the
amount of any income generated from the cash in the Escrow Fund and any income
on any of the foregoing, less
(b) the
fees and expenses of the Escrow Agent collected pursuant to Section 3.5
hereof.
3
ARTICLE
III
ESCROW
AGENT
3.1 Disputes
with Respect to the Escrow Property.
If (a)
any dispute should arise with respect to the payment and/or ownership or right
of possession of the Escrow Fund (other than any disputes of the kinds set
forth
in Section 2.5 or 2.6 hereof) or (b) the Escrow Agent, in its reasonable
judgment, receives conflicting instructions with respect to any distribution
of
the Escrow Fund, the Escrow Agent is authorized and directed to retain in its
possession, without liability to anyone, all or any portion of the Escrow Fund
until such dispute is settled either by agreement of the parties concerned
by
delivery of written directions signed by the Purchaser and the Seller to the
Escrow Agent or by a Final Judgment. The Escrow Agent is under no duty
whatsoever to institute or defend any proceedings seeking a Final Judgment.
Notwithstanding the foregoing, if such dispute relates to the amount of the
Closing Working Capital, then the Purchaser and the Seller shall use all
reasonable efforts to settle such dispute in accordance with Section 2.4 of
the
Asset Purchase Agreement.
3.2 Certain
Additional Provisions Regarding the Escrow Property.
(a) Investments.
The
Escrow Agent shall invest the Escrow Fund in any combination of the following
investments as may from time to time be specified by the Seller:
(i) marketable
obligations of, or fully and directly guaranteed by, the United States, which
obligations have a maturity of not more than 90 days;
(ii) repurchase
obligations with a term of not more than ten days for underlying securities
of
the types described in clause (i) entered into with any bank organized under
the
laws of the United States or any State thereof, the commercial paper of which
bank is rated A-2 or better by Standard & Poors Ratings Group or Prime-2 or
better by Xxxxx’x Investors Service, Inc.;
(iii) money
market funds registered under the Investment Company Act of 1940, as amended
from time to time (the “1940
Act”),
the
portfolios of which are limited to Government Securities (as defined in the
1940
Act); or
(iv) such
other investments as the Seller and Purchaser shall jointly authorize the Escrow
Agent to make from time to time.
In
the
absence of direction from the Seller, the Escrow Fund shall be invested by
the
Escrow Agent in the Fidelity Institutional Prime MM Fund pursuant to clause
(iii) above.
(b) Income.
Income
on the Escrow Fund will be added to the Escrow Fund and be payable to the
Purchaser and/or the Seller pursuant to the terms of Section 2 hereof.
4
(c) Rights
to Escrow Property.
Subject
to the terms hereof, the Escrow Fund shall be for the exclusive benefit of
the
Seller and the Purchaser and their respective successors and assigns, and no
other Person shall have any right, title or interest therein.
(d) Authority.
Without
limiting the generality of the foregoing, the Escrow Agent shall have the right
and power to receive, endorse and collect all checks and other orders for the
payment of money made payable to the Seller representing any interest payment,
principal payment or any part thereof and to give full discharge for the
same.
3.3 Payments
by the Escrow Agent.
Any
portion of the Escrow Fund to be paid to the Purchaser or the Seller in cash
pursuant to any provision of this Agreement will be paid by bank check or wire
transfer of immediately available funds. In the event funds transfer
instructions are given, whether in writing, by telecopier or otherwise, the
Escrow Agent is authorized to seek confirmation of such instructions by
telephone call-back to the person or persons designated on Schedule
II
hereto,
and the Escrow Agent may rely upon the confirmation of anyone purporting to
be
the person or persons so designated. The persons and telephone numbers for
call-backs may be changed only in a writing actually received and acknowledged
by the Escrow Agent. The Escrow Agent and the beneficiary's bank in any funds
transfer may rely solely upon any account numbers or similar identifying numbers
provided in writing by the Purchaser or the Seller to identify (a) the
beneficiary, (b) the beneficiary's bank or (c) an intermediary bank.
3.4 Tax
Reporting and Withholding.
The
parties hereto shall, for federal income tax purposes and, to the extent
permitted by applicable law, state and local tax purposes, report consistent
with the Seller as the owner of the Escrow Fund and as the taxpayer with respect
to any income earned thereon and the Seller shall furnish any required tax
forms
consistent with the foregoing. The Seller shall pay all applicable income,
withholding and any other taxes imposed on or measured by income which is
attributable to income from the Escrow Fund and shall file all tax and
information returns applicable thereto. The Escrow Fund will be subject to
applicable U.S. withholding tax and any distribution thereof will be made net
of
such withholding, which withholding shall be determined on the basis of the
information provided by the Seller as required herein. All interest or other
income earned under this Agreement shall be reported by the Escrow Agent to
the
Internal Revenue Service or any other taxing authority. The Escrow Agent shall
report and withhold any taxes as it determines may be required by any law or
regulation in effect at the time of the distribution. The Escrow Agent shall
report to the Internal Revenue Service or such other authority such earnings
as
required by any applicable law or regulation. In addition, the Escrow Agent
shall withhold any taxes it deems reasonably appropriate and shall remit such
taxes to the appropriate authorities.
3.5 Fees
and Expenses.
The
fees of the Escrow Agent as specified in the Schedule of Fees set forth on
Schedule
I
and the
other charges (including counsel fees in a reasonable amount), reasonably
incurred by the Escrow Agent in the performance of its duties hereunder in
connection with a dispute between the Purchaser and Seller, shall be payable
by
the Purchaser and the Seller, which obligation shall be joint and several and
be
paid on a fifty-fifty basis. Such fees and charges shall be payable to the
Escrow Agent upon receipt of notice thereof from the Escrow Agent to the
Purchaser and the Seller. As security for the due and punctual performance
of
the Purchaser and the Seller’s obligations to the Escrow Agent under this
Agreement, the Purchaser and the Seller hereby grant a security interest in
and
a lien on the Escrow Fund in favor of the Escrow Agent.
5
3.6. Additional
Terms and Conditions.
The
acceptance by the Escrow Agent of its duties as such under this Agreement is
subject to the following terms and conditions, which all parties to this
Agreement hereby agree will govern and control with respect to the rights,
duties, liabilities and immunities of the Escrow Agent:
(a) Protection
of the Escrow Agent.
The
Escrow Agent will be free from liability to the parties hereto in acting in
accordance with any written instructions or certificates given to it hereunder
and reasonably believed by it to be signed by the proper parties. The Escrow
Agent shall have no liability under and no duty to inquire as to provisions
of
any agreement other than this Agreement.
(b) Duties;
Liability.
The
Escrow Agent undertakes to perform only such duties as are expressly set forth
herein and no additional duties or obligations shall be implied hereunder.
The
duties of the Escrow Agent are purely ministerial in nature and the Escrow
Agent
will not be liable for any act done or step taken or omitted by it in good
faith, except with respect to its own willful misconduct or gross negligence.
The Escrow Agent shall not be bound in any way by any agreement or contract
between the Purchaser and the Seller (other than this Agreement), whether or
not
the Escrow Agent has knowledge of any such agreement or contract. The Escrow
Agent may execute any of its powers and perform any of its duties hereunder
directly or through agents or attorneys (and shall be liable only for the
careful selection of any such agent or attorney) and may consult with counsel,
accountants and other skilled persons to be selected and retained by it at
the
reasonable expense of the Purchaser and the Seller, which obligation shall
be
joint and several and be paid on a fifty-fifty basis. The Escrow Agent shall
not
be liable for anything done, suffered or omitted in good faith by it in
accordance with the advice or opinion of any such counsel, accountants or other
skilled Persons reasonably retained by the Escrow Agent. In the event that
the
Escrow Agent shall be uncertain as to its duties or rights hereunder or shall
receive instructions, claims or demands from any party hereto that, in its
opinion, conflict with any of the provisions of this Agreement, the Escrow
Agent
shall be entitled to refrain from taking any action and its sole obligation
shall be to keep safely all property held in escrow until it shall be directed
otherwise in writing by all of the other parties hereto or by a final order
or
judgment of a court of competent jurisdiction. Anything in this Agreement to
the
contrary notwithstanding, in no event shall the Escrow Agent be liable for
special, indirect or consequential loss or damage of any kind whatsoever
(including lost profits), even if the Escrow Agent has been advised of the
likelihood of such loss or damage and regardless of the form of
action.
(c) Resignation
and Removal.
The
Escrow Agent may resign and be discharged from its duties under this Agreement
at any time by giving at least thirty (30) days' prior written notice of such
resignation to the Purchaser and the Seller and specifying a date upon which
such resignation shall take effect. Upon receipt of such notice, a successor
escrow agent shall jointly be appointed by the Purchaser and the Seller, such
successor escrow agent to become the Escrow Agent hereunder on the resignation
date specified in such notice. If no successor Escrow Agent is appointed prior
to the date specified, the Escrow Agent shall have the right to deposit the
Escrow Property with a court of competent jurisdiction and the Escrow Agent
shall have no further obligation with respect thereto. The Purchaser and the
Seller, acting jointly, may at any time substitute a new escrow agent by giving
ten (10) days’ notice thereof to the Escrow Agent then acting and paying all
fees and expenses of such Escrow Agent. Any Person into which the Escrow Agent
may be merged or converted or with which it may be consolidated, or any Person
to which all or substantially all the escrow business of the Escrow Agent’s
corporate trust line of business may be transferred, shall be the Escrow Agent
under this Agreement without further act.
6
(d) Indemnity.
The
Purchaser and the Seller shall, jointly and severally, defend and save harmless
the Escrow Agent and its directors, officers, agents and employees
(collectively, the “Indemnitees”
and
each, individually, an “Indemnitee”)
from
all loss, liability or expense (“Losses”)
arising out of or in connection with (i) the Escrow Agent's execution and
performance of this Agreement, except in the case of any Indemnitee to the
extent that such Losses are due to the gross negligence or willful misconduct
of
such Indemnitee, or (ii) the Escrow Agent’s instructions or other directions
from the Purchaser or the Seller, except to the extent that the Escrow Agent’s
following any such instruction or direction is expressly forbidden by the terms
of this Agreement.
(e) Force
Majeure.
No
party to this Agreement is liable to any other party for losses due to, or
if it
is unable to perform its obligations under the terms of this Agreement because
of, acts of God, fire, floods, strikes, equipment or transmission failure,
or
other causes reasonably beyond its control.
ARTICLE
IV
MISCELLANEOUS
4.1 Notices.
All
notices and other communications hereunder will be in writing and will be deemed
received (a) the date delivered if delivered personally, (b) three (3) Business
Days after being mailed by registered or certified mail (return receipt
requested), (c) one (1) Business Day after being delivered to any reputable
nationwide overnight courier service and (d) upon confirmation of delivery,
if
delivered by facsimile, at the following addresses (or at such other address
for
a party as will be specified by like notice):
| (i) |
If
to the Purchaser, to:
|
Net
Perceptions, Inc.
Xxx
Xxxxxxxx Xxxxxx
00xx
Xxxxx
Xxxxxxxx,
Xxxxxxxxxxx 00000
Attn: Xxxxx
X.
Xxxxx
Fax: 000-000-0000
with
a
required copy to:
Xxxx
Xxxxxxx, P.C.
1350
Avenue of the Xxxxxxxx
00xx
Xxxxx
Xxx
Xxxx,
XX 00000
Attn: Xxxxxx
X.
Xxxxxxxx
Fax:
(000)
000-0000
7
| (ii) |
If
to the Seller:
|
CRC
Acquisition Co. LLC
c/o
Riparian Partners, Ltd.
0000
Xxxxxxxxx Xxxxx
Xxxxxxxxxx,
Xxxxx Xxxxxx 00000
Attn: Xxxxxxx
XxxXxXxxxxx
Fax: 000-000-0000
with
a
required copy to:
Xxxxxxxxx
Traurig, LLP
Xxx
Xxxxxxxxxxxxx Xxxxx
Xxxxxx,
XX 00000
Attn: Xxxxx
X.
Xxxxxxx
| (iii) |
If
to the Escrow Agent, to:
|
The
Bank
of New York
Escrow
Xxxx
000
Xxxxxxx Xx., 0X
Xxx
Xxxx,
XX 00000
Attn:
Xxxxx X. Xxxxxxxxx
Fax:
000-000-0000/5877
4.2 Governing
Law, Venue and Waiver of Jury Trial.
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED UNDER AND IN ACCORDANCE WITH THE
INTERNAL LAWS OF THE STATE OF DELAWARE, EXCLUDING ANY CHOICE OF LAW RULES THAT
MAY DIRECT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.
8
EACH
PARTY TO THIS AGREEMENT, BY ITS EXECUTION HEREOF, (I) HEREBY IRREVOCABLY
SUBMITS, TO THE NON-EXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE (OR IF JURISDICTION THERETO IS NOT PERMITTED BY
LAW, THE STATE COURTS OF THE STATE OF DELAWARE LOCATED IN NEW CASTLE COUNTY
FOR
THE PURPOSE OF ANY ACTION, CLAIM, CAUSE OF ACTION OR SUIT (IN CONTRACT, TORT
OR
OTHERWISE), INQUIRY PROCEEDING OR INVESTIGATION ARISING OUT OF OR BASED UPON
THIS AGREEMENT OR RELATING TO THE SUBJECT MATTER HEREOF, (II) HEREBY WAIVES,
AND
AGREES TO CAUSE EACH OF ITS SUBSIDIARIES TO WAIVE, TO THE EXTENT NOT PROHIBITED
BY APPLICABLE LAW, AND AGREES NOT TO ASSERT, AND AGREES NOT TO ALLOW ANY OF
ITS
SUBSIDIARIES TO ASSERT, BY WAY OF MOTION, AS A DEFENSE OR OTHERWISE, IN ANY
SUCH
ACTION, ANY CLAIM THAT IT IS NOT SUBJECT PERSONALLY TO THE JURISDICTION OF
THE
ABOVE-NAMED COURTS, THAT ITS PROPERTY IS EXEMPT OR IMMUNE FROM ATTACHMENT OR
EXECUTION, THAT ANY SUCH PROCEEDING BROUGHT IN ONE OF THE ABOVE-NAMED COURTS
IS
IMPROPER, OR THAT THIS AGREEMENT OR THE SUBJECT MATTER HEREOF MAY NOT BE
ENFORCED IN OR BY SUCH COURT AND (III) HEREBY AGREES NOT TO COMMENCE OR TO
PERMIT ANY OF ITS SUBSIDIARIES TO COMMENCE ANY ACTION, CLAIM, CAUSE OF ACTION
OR
SUIT (IN CONTRACT, TORT OR OTHERWISE), INQUIRY PROCEEDING OR INVESTIGATION
ARISING OUT OF OR BASED UPON THIS AGREEMENT OR RELATING TO THE SUBJECT MATTER
HEREOF OTHER THAN BEFORE ONE OF THE ABOVE-NAMED COURTS NOR TO MAKE ANY MOTION
OR
TAKE ANY OTHER ACTION SEEKING OR INTENDING TO CAUSE THE TRANSFER OR REMOVAL
OF
ANY SUCH ACTION, CLAIM, CAUSE OF ACTION OR SUIT (IN CONTRACT, TORT OR
OTHERWISE), INQUIRY, PROCEEDING OR INVESTIGATION TO ANY COURT OTHER THAN ONE
OF
THE ABOVE-NAMED COURTS WHETHER ON THE GROUNDS OF INCONVENIENT FORUM OR
OTHERWISE. EACH PARTY HEREBY CONSENTS TO SERVICE OF PROCESS IN ANY SUCH
PROCEEDING IN ANY MANNER PERMITTED BY DELAWARE LAW, AND AGREES THAT SERVICE
OF
PROCESS BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, AT ITS
ADDRESS SPECIFIED PURSUANT TO SECTION 4.1 IS REASONABLY CALCULATED TO GIVE
ACTUAL NOTICE PROVIDED THAT THE PARTY DELIVERING SUCH NOTICE RECEIVES A SIGNED
RETURN RECEIPT IN RESPECT THEREOF.
EACH
OF
THE PARTIES HERETO HEREBY WAIVES AND COVENANTS THAT IT WILL NOT ASSERT (WHETHER
AS PLAINTIFF, DEFENDANT OR OTHERWISE) ANY RIGHT TO TRIAL BY JURY IN ANY FORUM
IN
RESPECT OF ANY ISSUE OR ACTION, CLAIM, CAUSE OF ACTION OR SUIT (IN CONTRACT,
TORT OR OTHERWISE), INQUIRY, PROCEEDING OR INVESTIGATION ARISING OUT OF OR
BASED
UPON THIS AGREEMENT OR THE SUBJECT MATTER HEREOF OR IN ANY WAY CONNECTED WITH
OR
RELATED OR INCIDENTAL TO THE TRANSACTIONS CONTEMPLATED HEREBY, IN EACH CASE
WHETHER NOW EXISTING OR HEREAFTER ARISING. EACH OF THE PARTIES AGREE AND
ACKNOWLEDGE THAT IT HAS BEEN INFORMED THAT THIS SECTION 4.2 CONSTITUTES A
MATERIAL INDUCEMENT UPON WHICH THE OTHER PARTIES HERETO ARE RELYING AND WILL
RELY IN ENTERING INTO THIS AGREEMENT AND ANY OTHER AGREEMENTS RELATING HERETO
OR
CONTEMPLATED HEREBY. ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A
COPY
OF THIS SECTION 4.2 WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF EACH
SUCH PARTY TO THE WAIVER OF ITS RIGHT TO TRIAL BY JURY.
9
4.3 Waivers
and Amendments.
The
waiver by any party hereto of a breach of any provision of this Agreement will
not operate or be construed as a waiver of any subsequent breach, whether of
a
similar or dissimilar nature. No amendment to this Agreement will be effective
unless it is in writing and signed by each of the parties hereto. No waiver
of
any term or condition hereunder will be effective unless it is in writing and
signed by the party against whom such waiver is to be enforced.
4.4 Severability.
If any
provision of this Agreement or the application of any such provision to any
person or circumstance is held invalid, illegal or unenforceable in any respect
by a court of competent jurisdiction, such validity, illegality or
unenforceability will not affect any other provision hereof.
4.5 Interpretation.
The
headings contained in this Agreement are for reference purposes only and will
not affect in any way the meaning or interpretation of this
Agreement.
4.6 Counterparts.
This
Agreement may be executed in one or more counterparts, all of which will be
considered one and the same agreement, and will become effective when one or
more such counterparts have been signed by each of the parties and delivered
to
the other parties.
4.7 Successors
and Assigns; No Third-Party Beneficiaries.
This
Agreement will inure to the benefit of, and be binding upon, the parties hereto
and their respective successors and assigns; provided,
however,
that no
party hereto may assign this Agreement, in whole or in part, to any other Person
without the prior written consent of the other parties hereto. Nothing in this
Agreement confers upon any Person that is not a party to this Agreement, or
the
legal representatives of such person or entity, any rights or remedies of any
nature or kind whatsoever under or by reason of this Agreement.
[The
remainder of this page is intentionally left blank.]
10
IN
WITNESS WHEREOF, the
parties hereto have caused this Agreement to be duly executed as of the date
first written above.
CRC
ACQUISITION CO. LLC
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
SIG
ACQUISITION CORP.
|
By:
|
|||
|
Name: Xxxxx X. Xxxxx |
|||
|
Title: Treasurer
and Secretary
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THE
BANK
OF NEW YORK
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By:
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Name: Xxxxx X. Xxxxxxxxx |
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Title:
Assistant Vice President
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SCHEDULE
I
Schedule
of Fees
SCHEDULE
II
Telephone
Numbers for Call-Backs and
Persons
Designated to Confirm Funds Transfer Instructions
If
to
CRC ACQUISITION CO. LLC:
Xxxxxxx
X. XxxXxxxxxxx or Xxxxxx X. Xxxxxxx
(000)
000-0000
If
to
SIG Acquisition Corp.:
Xxxxxx
Xxxxxxxx, Xxxxx X. Xxxxx or Xxxxx Xxxxxxxxx
(000)
000-0000
Telephone
call-backs shall be made to each of the Seller and the Purchaser if joint
instructions are required pursuant to this Agreement.
