EXHIBIT 10.10
CONFORMED COPY
AMENDMENT TO
AGREEMENT AND PLAN OF MERGER
AMENDMENT, dated October 31, 2005, to AGREEMENT AND PLAN OF MERGER ("Merger
Agreement") made and entered into as of August 22, 2005, by and among CEA
Acquisition Corporation, a Delaware corporation ("Parent"), etrials Acquisition,
Inc., a Delaware corporation and a wholly-owned subsidiary of Parent ("Merger
Sub"), etrials Worldwide, Inc., a Delaware corporation ("Company"), and each of
the persons listed under the caption "Stockholders" on the signature page
hereof, such persons being stockholders of the Company (each a "Stockholder"
and, collectively, the "Stockholders"). Capitalized terms used herein that are
defined in the Merger Agreement shall have the same meanings as used in the
Merger Agreement.
The parties hereto, being all of the parties to the Merger Agreement,
hereby agree that the Merger Agreement is hereby amended as follows:
1. A new Section 1.20 is hereby added to the Merger Agreement, to read as
follows:
1.20 Trigger Condition. In addition to the shares of Parent Common
Stock constituting the Holdback, there shall be withheld from the shares of
Parent Common Stock issuable as a result of the Merger and placed in escrow
with the Escrow Agent pursuant to the Escrow Agreement in the form annexed
hereto as Exhibit A-1 ("Revised Escrow Agreement"), that number of shares
of Parent Common Stock (the "Trigger Shares") that, together with the
Holdback, shall equal 1,400,000 shares of Parent Common Stock. The Trigger
Shares shall be allocated among the Persons entitled to receive them in the
same proportions as the shares of Parent Common Stock are allocated among
them. Notwithstanding any other provision of this Agreement, the Trigger
Shares and those shares of Parent Common Stock included in the Holdback
that have not been canceled or paid to Parent as a consequence of the
indemnity obligations set forth in Article VII (the "Additional Trigger
Shares") shall be held in escrow pursuant the Revised Escrow Agreement
until the last day of the first twenty (20) consecutive trading day period
commencing after the Closing Date during which (a) the volume-weighted
average price of the Parent Common Stock is equal to or greater than $7.00
per share and (b) the average daily trading volume of the Parent Common
Stock is at least 25,000 shares (the "Trigger Release Date"). Upon
occurrence of the Trigger Release Date, the Trigger Shares and, if the
Trigger Release Date occurs after the expiration of the Holdback Period,
the Additional Trigger Shares, shall be released from escrow and delivered
to the Persons entitled to receive them in the same proportions as
initially withheld. If the Trigger Release Date occurs prior to expiration
of the Holdback Period, the Additional Trigger Shares shall be so released
and delivered upon expiration of the Holdback Period. If
the Trigger Release Date has not occurred by February 19, 2008, the Trigger
Shares and the Additional Trigger Shares shall be canceled.
2. All references in the Merger Agreement to the Escrow Agreement, in the
form of Exhibit A to the Merger Agreement, shall be deemed to be references to
the Revised Escrow Agreement referred to in Section 1.20 of the Merger
Agreement, as amended by this Amendment, in the form annexed hereto as Exhibit
A-1.
3. All references in the Merger Agreement to "Audited Financial Statements"
shall mean the audited financial statements (including any related notes
thereto) of the Company for the fiscal years ended December 31, 2004 and
December 31, 2003, as included in the Registration Statement on Form S-4 of
Parent relating to the Merger as initially filed with the SEC. All references in
the Merger Agreement to "Unaudited Financial Statements" shall mean the
unaudited financial statements (including any related notes thereto) of the
Company for the six month period ended June 30, 2005 as included in the
Registration Statement on Form S-4 of Parent relating to the Merger as initially
filed with the SEC.
4. The Merger Agreement, as amended hereby, shall remain in full force and
effect.
[Signatures are on following pages]
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IN WITNESS WHEREOF, the parties have executed this Amendment to Agreement
and Plan of Merger as of the date first above written.
CEA ACQUISITION CORPORATION
By: /s/ Xxxxxx Xxxxxxx
------------------------------------
Xxxxxx Xxxxxxx, Executive Vice
President
etrials ACQUISITION, INC.
By: /s/ Xxxxxx Xxxxxxx
------------------------------------
Xxxxxx Xxxxxxx, President
etrials WORLDWIDE, INC.
By: /s/ Xxxx Xxxxx
------------------------------------
Xxxx Xxxxx, President
STOCKHOLDERS:
[SEE SEPARATE SIGNATURE PAGES.]
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STOCKHOLDER SIGNATURE PAGE TO AMENDMENT TO MERGER AGREEMENT
MINIDOC AB
By: /s/ Per Xxxxxxx/Xxxx Xxxxxxxx
---------------------------------
Name: Per Xxxxxxx
Title: CEO
INFOLOGIX (BVI) LIMITED
By: /s/ Xxxxx Xxxxx/Xxxxxxxx Xxxxxxx
---------------------------------
Name: Xxxxx Xxxxx/Xxxxxxxx Xxxxxxx
Title: For and on behalf of EQ
Secretaries (Jersey) Limited,
Secretary
NEWLIGHT ASSOCIATES II, LP
By: Newlight Partners II, LP,
General Partner
By: /s/ Xxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxx X. Xxxxx
Title: General Partner
NEWLIGHT ASSOCIATES II (BVI), LP
By: Newlight Partners II (BVI), LP,
General Partner
By: /s/ Xxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxx X. Xxxxx
Title: General Partner
NEWLIGHT ASSOCIATES II-E, LP
BY: Newlight Partners II-E, LP,
General Partner
By: /s/ Xxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxx X. Xxxxx
Title: General Partner
/s/ Xxxxx Xxxxx
-------------------------------------
XXXXX XXXXX
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STOCKHOLDER SIGNATURE PAGE TO AMENDMENT TO MERGER AGREEMENT
/s/ Xxxxx and Xxxxx X. Xxxxx, XX TEN
-------------------------------------
XXXXX AND XXXXX X. XXXXX, XX TEN
XXXXXX INDUSTRIES
By: /s/ Xxxxx X. Xxxxx
---------------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Director
/s/ Xxxx Xxxxx
-------------------------------------
XXXX XXXXX
/s/ Xxxxx & Xxxxxxx X. Xxxxx, JTWROS
-------------------------------------
XXXXX X. AND XXXXXXX X. XXXXX, XX TEN
/s/ Xxxxxx Xxxxxx
-------------------------------------
XXXXXX XXXXXX
/s/ Xxxx Xxxxx
-------------------------------------
XXXX XXXXX
E-ZAD PARTNERSHIP LIMITED
By: /s/ Xxxxx Xxxxxx
---------------------------------
Name: Xxxxx Xxxxxx
Title: General Partner
/s/ Xxxxxxx X. Xxxxxx
-------------------------------------
XXXXXXX X. XXXXXX
/s/ Xxxxxxx Xxxx
-------------------------------------
XXXXXXX XXXX
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STOCKHOLDER SIGNATURE PAGE TO AMENDMENT TO MERGER AGREEMENT
/s/ Xxxxxxx Xxxxx
-------------------------------------
XXXXXXX XXXXX
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EXHIBIT A-1
REVISED ESCROW AGREEMENT
ESCROW AGREEMENT ("Agreement") dated [Closing Date] among CEA ACQUISITION
CORPORATION, a Delaware corporation ("CEA"), XXXXX X. XXXXX, XX., AS THE ETRIALS
STOCKHOLDERS' REPRESENTATIVE, being the representative of the former
stockholders of etrials Worldwide, Inc., a Delaware corporation (the
"Representative"), and CONTINENTAL STOCK TRANSFER & TRUST COMPANY, as escrow
agent (the "Escrow Agent").
CEA, etrials Worldwide, Inc. ("etrials"), certain stockholders of etrials,
and etrials Acquisition, Inc., a Delaware corporation and wholly-owned
subsidiary of CEA ("Merger Subsidiary"), are the parties to an Agreement and
Plan of Merger and Reorganization dated as of August 22, 2005 (the "Merger
Agreement") pursuant to which the Merger Subsidiary has merged with and into
etrials so that etrials has become a wholly-owned subsidiary of CEA. Pursuant to
Section 1.20 of the Merger Agreement, the Trigger Shares and Additional Trigger
Shares are subject to cancellation upon the occurrence of certain events.
Pursuant to Article VII of the Merger Agreement, CEA is to be indemnified in
certain respects by the application of the Holdback Shares (as that term is
defined in Section 1(a), below) including the Additional Trigger Shares. The
parties desire to establish escrow funds with respect to the application of the
Trigger Shares and Additional Trigger Shares in accordance with Section 1.20 of
the Merger Agreement and with respect to the application of the Holdback Shares
(including the Additional Trigger Shares) as collateral security for the
indemnification obligations under Article VII of the Merger Agreement. The
Representative has been designated pursuant to the Merger Agreement to represent
all of the former stockholders of etrials (the "Stockholders") and act on their
behalf for purposes of this Agreement. Capitalized terms used herein which are
not otherwise defined herein shall have the meanings ascribed to them in the
Merger Agreement.
The parties agree as follows:
1. (a) Concurrently with the execution hereof, the Escrow Agent, in its
capacity as Exchange Agent pursuant to the Merger Agreement, has withheld (i)
10% of the total number of shares of Parent Common Stock issuable to the
Stockholders pursuant to the Merger Agreement (the "Holdback Shares"), and (ii)
such additional number of shares of Parent Common Stock that, together with the
Holdback Shares, equal 1,400,000 shares of Parent Common Stock (the "Trigger
Shares"), in each instance pro rata in accordance with the number of shares of
Parent Common Stock issuable to each Stockholder. Such shares of Parent Common
Stock are herein referred to in the aggregate as the "Escrow Fund." The Escrow
Agent shall maintain separate accounts for each Stockholder's portion of the
Escrow Fund, designated separately with respect to Holdback Shares and Trigger
Shares.
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(b) The Escrow Agent hereby agrees to act as escrow agent and to hold,
safeguard and disburse the Escrow Fund pursuant to the terms and conditions
hereof. It shall treat the Escrow Fund as a trust fund in accordance with the
terms of this Agreement and not as the property of CEA. Its duties hereunder
shall cease upon its distribution of the entire Escrow Fund in accordance with
this Agreement.
(c) Except as herein provided, the Stockholders shall retain all of
their rights as stockholders of CEA during the period the Escrow Fund is held by
the Escrow Agent (the "Escrow Period"), including, without limitation, the right
to vote their shares of Parent Common Stock included in the Escrow Fund.
(d) During the Escrow Period, all dividends payable in cash with
respect to the shares of Parent Common Stock included in the Escrow Fund shall
be paid to the Stockholders, but all dividends payable in stock or other
non-cash property ("Non-Cash Dividends") shall be delivered to the Escrow Agent
to hold in accordance with the terms hereof. As used herein, the term "Escrow
Fund" shall be deemed to include the Non-Cash Dividends distributed thereon, if
any.
(e) During the Escrow Period, no sale, transfer or other disposition
may be made of any or all of the shares of Parent Common Stock in the Escrow
Fund except (i) by gift to a member of a Stockholder's immediate family or to a
trust, the beneficiary of which is a Stockholder or a member of a Stockholder's
immediate family, (ii) by virtue of the laws of descent and distribution upon
death of any Stockholder, or (iii) pursuant to a qualified domestic relations
order; provided, however, that such permissive transfers may be implemented only
upon the respective transferee's written agreement to be bound by the terms and
conditions of this Agreement. During the Escrow Period, the Stockholders shall
not pledge or grant a security interest in the shares of Parent Common Stock
included in the Escrow Fund or grant a security interest in their rights under
this Agreement.
2. (a) CEA, acting through the members of CEA's Board of Directors who
served on such Board prior to the Closing and who continue to serve on such
Board after the Closing (the "Committee"), who have been appointed by the Board
of Directors to take all necessary actions and make all decisions on behalf of
CEA with respect to its rights to indemnification under the Merger Agreement,
may make a claim for indemnification pursuant to Article VII of the Merger
Agreement ("Indemnity Claim") against the Escrow Fund by giving notice (a
"Notice") to the Representative (with a copy to the Escrow Agent) specifying (i)
the covenant, representation, warranty, agreement, undertaking or obligation
contained in the Merger Agreement which it asserts has been breached or
otherwise entitles CEA to indemnification, (ii) in reasonable detail, the nature
and dollar amount of any indemnity claim CEA may have by reason thereof under
the Merger Agreement ("Indemnity Claim"), and (iii) whether the Indemnity Claim
results from a Third Party Claim against CEA. The Committee also shall deliver
to the Escrow Agent (with a copy to the Representative), concurrently with its
delivery to the Escrow Agent of the Notice, a certification as to the date on
which the Notice was delivered to the Representative.
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(b) If the Representative shall give a notice to the Committee (with a
copy to the Escrow Agent) (a "Counter Notice"), within 30 days following the
date of receipt (as specified in the Committee's certification) by the
Representative of a copy of the Notice, disputing whether the Indemnity Claim is
indemnifiable under Article VII of the Merger Agreement, the parties shall
attempt to resolve such dispute by voluntary settlement as provided in paragraph
2(c) below. If no Counter Notice with respect to an Indemnity Claim is received
by the Escrow Agent from the Representative within such 30-day period, the
Indemnity Claim shall be deemed to be an Established Claim (as hereinafter
defined) for purposes of this Agreement.
(c) If the Representative delivers a Counter Notice to the Escrow
Agent, the Committee and the Representative shall, during the period of 60 days
following the delivery of such Counter Notice or such greater period of time as
the parties may agree to in writing (with a copy to the Escrow Agent), attempt
to resolve the dispute with respect to which the Counter Notice was given. If
the Committee and the Representative shall reach a settlement with respect to
any such dispute, they shall jointly deliver written notice of such settlement
to the Escrow Agent specifying the terms thereof. If the Committee and the
Representative shall be unable to reach a settlement with respect to a dispute,
such dispute shall be resolved by arbitration pursuant to paragraph 2(d) below.
(d) If the Committee and the Representative cannot resolve a dispute
prior to expiration of the 60-day period referred to in paragraph 2(c) above (or
such longer period as the parties may have agreed to in writing), then such
dispute shall be submitted (and either party may submit such dispute) for
arbitration before a single arbitrator in Orlando, Florida, in accordance with
the commercial arbitration rules of the American Arbitration Association then in
effect. The Committee and the Representative shall attempt to agree upon an
arbitrator; if they shall be unable to agree upon an arbitrator within 10 days
after the date on which it may, under this Agreement, be submitted for
arbitration, then either the Committee or the Representative, upon written
notice to the other, may apply for appointment of such arbitrator by the
American Arbitration Association. Each party shall pay the fees and expenses of
counsel used by it and 50% of the fees and expenses of the arbitrator and of
other expenses of the arbitration. The arbitrator shall render his decision
within 90 days after his appointment and may award costs to any of the parties
if, in his sole opinion reasonably exercised, the claims made by any other party
or parties had no reasonable basis and were arbitrary and capricious. Such
decision and award shall be in writing and shall be final and conclusive on the
parties, and counterpart copies thereof shall be delivered to each of the
parties. Judgment may be obtained on the decision of the arbitrator so rendered
in any court having jurisdiction and may be enforced in accordance with the law
of the State of Florida. If the arbitrator shall fail to render his decision or
award within such 90-day period, either the Committee or the Representative may
apply to any Florida or federal court then having jurisdiction by action,
proceeding or otherwise, as may be proper to determine the matter in dispute
consistently with the provisions of this Agreement. The parties consent to the
exclusive jurisdiction of the Florida courts sitting in the Hillsborough County
for this purpose. The prevailing party (or either party, in the case of
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a decision or award rendered in part for each party) shall send a copy of the
arbitration decision or of any judgment of the Florida or federal court to the
Escrow Agent.
(e) As used in this Agreement, "Established Claim" means any (i)
Indemnification Claim deemed established pursuant to the last sentence of
paragraph 2(b) above, (ii) Indemnification Claim resolved in favor of CEA by
settlement of the parties pursuant to paragraph 2(c) above, resulting in a
dollar award to CEA, (iii) Indemnification Claim established by the decision of
an arbitrator pursuant to paragraph 2(d) above, resulting in a dollar award to
CEA, (iv) Third Party Claim which has been sustained by a final determination
(after exhaustion of any appeals) of a court of competent jurisdiction, or (v)
Third Party Claim which the Committee and the Representative have jointly
notified the Escrow Agent has been settled in accordance with the provisions of
the Merger Agreement.
(f) (i) Promptly after an Indemnity Claim becomes an Established
Claim, the Committee shall deliver a notice to the Escrow Agent directing the
Escrow Agent to pay to CEA, and the Escrow Agent shall pay to CEA or cancel, as
directed by CEA, such number of Holdback Shares that have a value equal to the
aggregate dollar amount of the Established Claim (or, if at such time there
remains in the Escrow Fund Holdback Shares having a value less than the full
amount so payable, the full amount of the Holdback Shares remaining in the
Escrow Fund).
(ii) Payment of an Established Claim shall be made in shares of
Parent Common Stock, pro rata from the account maintained on behalf of each
Stockholder. In such event, such shares shall be valued at the "Fair Market
Value" (as defined below) and the Escrow Agent shall promptly cause the
appropriate number of shares to be transferred from the Escrow Fund to CEA, or
its order, or, if directed by CEA, cancel, to the extent of the number of
Holdback Shares in the Escrow Fund. The parties hereto (other than the Escrow
Agent) agree that the foregoing right to make payments of Established Claims in
shares of Parent Common Stock may be made notwithstanding any other agreements
restricting or limiting the ability of any Stockholder to sell any shares of CEA
stock or otherwise. As used herein, "Fair Market Value" means the average
reported last sales price for the Parent Common Stock for the ten trading days
ending on the last trading day prior to the day the Established Claim is paid.
3. On the first Business Day after the eighteen month anniversary of the
Closing Date, upon written instruction from CEA, the Escrow Agent shall
distribute and pay to each Stockholder who has an interest in the Escrow Fund
the Parent Common Stock then in such Stockholder's account in the Escrow Fund
that are Holdback Shares, unless at such time there are any Indemnity Claims
with respect to which Notices have been received but which have not been
resolved pursuant to Section 2 hereof or in respect of which the Escrow Agent
has not been notified of, and received a copy of, a final determination (after
exhaustion of any appeals) by a court of competent jurisdiction, as the case may
be (in either case, "Pending Claims"), and which, if resolved or finally
determined in favor of CEA, would result in a payment to CEA, in which case the
Escrow Agent shall retain, and the total amount of such distributions to such
Stockholder
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shall be reduced by, the "Pending Claims Reserve" (as hereafter defined).
Thereafter, if any Pending Claim becomes an Established Claim, the Escrow Agent
shall promptly pay to CEA an amount of Holdback Shares in respect thereof
determined in accordance with paragraph 2(f) above, and to the Stockholder the
amount by which the remaining portion of the Holdback Shares in his account in
the Escrow Fund exceeds the then Pending Claims Reserve (determined as set forth
below). If any Pending Claim is resolved against CEA, the Escrow Agent shall
promptly pay to each Stockholder the amount by which the remaining portion of
the Holdback Shares in his account in the Escrow Fund exceeds the then Pending
Claims Reserve. Upon resolution of all Pending Claims, the Escrow Agent shall
pay to such Stockholder the remaining portion of his or her Holdback Shares in
the Escrow Fund. Notwithstanding the foregoing, no Holdback Shares shall be
released by the Escrow Agent to any Stockholder so long as the Trigger Release
Date (as hereinafter defined) has not occurred.
As used herein, the "Pending Claims Reserve" at any time shall mean an
amount equal to the sum of the aggregate dollar amounts claimed to be due with
respect to all Pending Claims (as shown in the Notices of such Claims).
4. (a) Notwithstanding anything to the contrary in this Agreement, the
Trigger Shares and those Holdback Shares that have not been paid to CEA or
canceled as a consequence of an Indemnification Claim (the "Additional Trigger
Shares") shall be held in escrow by the Escrow Agent until the last day of the
first twenty (20) consecutive trading day period commencing after the date
hereof during which (i) the volume-weighted average price of the Parent Common
Stock is equal to or greater than $7.00 per share and (ii) the average daily
trading volume of the Parent Common Stock is at least 25,000 shares (the
"Trigger Release Date"), in each case based on information obtained from the
equity page for the Company provided by the Bloomberg reporting service. At any
time after the occurrence of the Trigger Release Date, the Representative may
deliver a notice (a "Trigger Release Notice") to the Escrow Agent, with a copy
to the Committee, stating that the Trigger Release Date has occurred and setting
forth its calculations of the volume-weighted average price of the Parent Common
Stock and the average daily trading volume for the twenty (20) consecutive
trading day period then ended. The Representative also shall deliver to the
Escrow Agent (with a copy to the Committee), concurrently with its delivery to
the Escrow Agent of the Trigger Release Notice, a certification as to the date
on which the Trigger Release Notice was delivered to the Representative.
(b) If the Committee shall give a notice to the Representative (with a
copy to the Escrow Agent) (a "Trigger Counter Notice"), within 10 days following
the date of receipt (as specified in the Representative's certification) by the
Committee of a copy of the Trigger Release Notice, disputing whether there has
been an occurrence of the Trigger Release Date, the parties shall attempt to
resolve such dispute by voluntary settlement as provided in paragraph 2(c)
above. If no Trigger Counter Notice with respect to a Trigger Release is
received by the Escrow Agent from the Committee within such 10-day period, the
Trigger Release Notice shall be deemed effective for purposes of this Agreement.
If the Committee and the Representative shall reach a settlement with respect to
any such dispute, they shall jointly deliver written notice of such settlement
to
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the Escrow Agent specifying the terms thereof. If the Committee and the
Representative shall be unable to reach a settlement with respect to a dispute,
such dispute shall be resolved by arbitration pursuant to paragraph 2(d) above.
If, as a result of resolution by the parties or by arbitration, it is determined
that the Trigger Release Date has occurred, the Trigger Release Notice shall be
deemed effective for purposes of this Agreement.
(c) If the Trigger Release Date occurs prior to the expiration of the
Holdback Period, the Escrow Agent shall release and deliver the Trigger Shares
upon receipt of an effective Trigger Release Notice and shall release and
deliver the Additional Trigger Shares upon the expiration of the Holdback
Period, in each case to the Stockholders having an interest therein. If the
Trigger Release Date occurs after the expiration of the Holdback Period, the
Trigger Shares and Additional Trigger Shares shall be so released and delivered
by the Escrow Agent upon receipt of an effective Trigger Release Notice. If the
Trigger Release Date has not occurred by February 19, 2008, upon written notice
to the Escrow Agent, the Trigger Shares and the Additional Trigger Shares shall
be canceled by the Escrow Agent in its capacity as Transfer Agent for CEA.
5. The Escrow Agent shall cooperate in all respects with the Committee and
the Representative in the calculation of any amounts determined to be payable to
CEA in accordance with this Agreement.
6. (a) The Escrow Agent undertakes to perform only such duties as are
expressly set forth herein. It is understood that the Escrow Agent is not a
trustee or fiduciary and is acting hereunder merely in a ministerial capacity.
(b) The Escrow Agent shall not be liable for any action taken or
omitted by it in good faith and in the exercise of its own best judgment, and
may rely conclusively and shall be protected in acting upon any order, notice,
demand, certificate, opinion or advice of counsel (including counsel chosen by
the Escrow Agent), statement, instrument, report or other paper or document (not
only as to its due execution and the validity and effectiveness of its
provisions, but also as to the truth and acceptability of any information
therein contained) which is believed by the Escrow Agent to be genuine and to be
signed or presented by the proper person or persons. The Escrow Agent shall not
be bound by any notice or demand, or any waiver, modification, termination or
rescission of this Agreement unless evidenced by a writing delivered to the
Escrow Agent signed by the proper party or parties and, if the duties or rights
of the Escrow Agent are affected, unless it shall have given its prior written
consent thereto.
(c) The Escrow Agent's sole responsibility upon receipt of any notice
requiring any payment to CEA pursuant to the terms of this Agreement or, if such
notice is disputed by the Committee or the Representative, the settlement with
respect to any such dispute, whether by virtue of joint resolution, arbitration
or determination of a court of competent jurisdiction, is to pay to CEA the
amount specified in such notice, and the Escrow Agent shall have no duty to
determine the validity, authenticity or enforceability of any specification or
certification made in such notice.
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(d) The Escrow Agent shall not be liable for any action taken by it in
good faith and believed by it to be authorized or within the rights or powers
conferred upon it by this Agreement, and may consult with counsel of its own
choice and shall have full and complete authorization and protection for any
action taken or suffered by it hereunder in good faith and in accordance with
the opinion of such counsel.
(e) The Escrow Agent may resign at any time and be discharged from its
duties as escrow agent hereunder by its giving the other parties hereto written
notice and such resignation shall become effective as hereinafter provided. Such
resignation shall become effective at such time that the Escrow Agent shall turn
over the Escrow Fund to a successor escrow agent appointed jointly by the
Committee and the Representative. If no new escrow agent is so appointed within
the 60 day period following the giving of such notice of resignation, the Escrow
Agent may deposit the Escrow Fund with any court it reasonably deems
appropriate.
(f) In the event of a dispute between the parties as to the proper
disposition of the Escrow Fund, the Escrow Agent shall be entitled (but not
required) to deliver the Escrow Fund into the United States District Court for
the Southern District of New York and, upon giving notice to the Committee and
the Representative of such action, shall thereupon be relieved of all further
responsibility and liability.
(g) The Escrow Agent shall be indemnified and held harmless by CEA
from and against any expenses, including counsel fees and disbursements, or loss
suffered by the Escrow Agent in connection with any action, suit or other
proceeding involving any claim which in any way, directly or indirectly, arises
out of or relates to this Agreement, the services of the Escrow Agent hereunder,
or the Escrow Fund held by it hereunder, other than expenses or losses arising
from the gross negligence or willful misconduct of the Escrow Agent. Promptly
after the receipt by the Escrow Agent of notice of any demand or claim or the
commencement of any action, suit or proceeding, the Escrow Agent shall notify
the other parties hereto in writing. In the event of the receipt of such notice,
the Escrow Agent, in its sole discretion, may commence an action in the nature
of interpleader in an appropriate court to determine ownership or disposition of
the Escrow Fund or it may deposit the Escrow Fund with the clerk of any
appropriate court or it may retain the Escrow Fund pending receipt of a final,
non-appealable order of a court having jurisdiction over all of the parties
hereto directing to whom and under what circumstances the Escrow Fund are to be
disbursed and delivered.
(h) The Escrow Agent shall be entitled to reasonable compensation from
CEA for all services rendered by it hereunder. The Escrow Agent shall also be
entitled to reimbursement from CEA for all expenses paid or incurred by it in
the administration of its duties hereunder including, but not limited to, all
counsel, advisors' and agents' fees and disbursements and all taxes or other
governmental charges.
(i) From time to time on and after the date hereof, the Committee and
the Representative shall deliver or cause to be delivered to the Escrow Agent
such further documents and instruments and shall do or cause to be done such
further acts as the Escrow Agent shall reasonably request to carry out more
effectively the provisions and purposes of
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this Agreement, to evidence compliance herewith or to assure itself that it is
protected in acting hereunder.
(j) Notwithstanding anything herein to the contrary, the Escrow Agent
shall not be relieved from liability hereunder for its own gross negligence or
its own willful misconduct.
7. This Agreement expressly sets forth all the duties of the Escrow Agent
with respect to any and all matters pertinent hereto. No implied duties or
obligations shall be read into this Agreement against the Escrow Agent. The
Escrow Agent shall not be bound by the provisions of any agreement among the
parties hereto except this Agreement and shall have no duty to inquire into the
terms and conditions of any agreement made or entered into in connection with
this Agreement, including, without limitation, the Merger Agreement.
8. This Agreement shall inure to the benefit of and be binding upon the
parties and their respective heirs, successors, assigns and legal
representatives, shall be governed by and construed in accordance with the law
of Delaware applicable to contracts made and to be performed therein except that
issues relating to the rights and obligations of the Escrow Agent shall be
governed by and construed in accordance with the law of New York applicable to
contracts made and to be performed therein. This Agreement cannot be changed or
terminated except by a writing signed by the Committee, the Representative and
the Escrow Agent.
9. The Committee and the Representative each hereby consents to the
exclusive jurisdiction of the Florida and federal courts sitting in Hillsborough
County with respect to any claim or controversy arising out of this Agreement.
Service of process in any action or proceeding brought against the Committee or
the Representative in respect of any such claim or controversy may be made upon
it by registered mail, postage prepaid, return receipt requested, at the address
specified in Section 10, with a copy delivered by nationally recognized
overnight carrier to Xxxxxxxx Xxxxxx, The Chrysler Building, 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, X.X. 00000-0000, Attention: Xxxxx Xxxx Xxxxxx, Esq.
10. All notices and other communications under this Agreement shall be in
writing and shall be deemed given if given by hand or delivered by nationally
recognized overnight carrier, or if given by telecopier and confirmed by mail
(registered or certified mail, postage prepaid, return receipt requested), to
the respective parties as follows:
A. If to the Committee, to it at
c/o CEA Acquisition Corporation
000 Xxxx Xxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx Xxxxxxx
Telecopier No.: 000-000-0000
with a copy to:
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Xxxxxxxx Xxxxxx
The Chrysler Building
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx Xxxx Xxxxxx, Esq.
Telecopier No.: 000-000-0000
B. If to the Representative, to him at
Xxxxx X. Xxxxx, Xx.
c/o etrials Worldwide, Inc.
0000 Xxxxxx Xxxxxx Xxxxxxx
Xxxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Telecopier No.: 000-000-0000
with a copy to:
Xxxxxxx, Xxxxxxx & Xxxxxxxx, P.A.
Xxxxx 000, Xxxxxxxxxx Xxxxx
0000 X.X. Xxxxxxx 00 East
P.O. Drawer 000
Xxxxxxxx Xxxxxxxx Xxxx, X.X. 00000-0000
Attention: Xxxxx X. Xxxxxxxx
Telecopier No.: 000 000 0000
C. If to the Escrow Agent, to it at:
Continental Stock Transfer & Trust Company
0 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx
Telecopier No.: 212-509-5150
or to such other person or address as any of the parties hereto shall specify by
notice in writing to all the other parties hereto.
11. (a) If this Agreement requires a party to deliver any notice or other
document, and such party refuses to do so, the matter shall be submitted to
arbitration pursuant to paragraph 3(d) of this Agreement.
(b) All notices delivered to the Escrow Agent shall refer to the
provision of this Agreement under which such notice is being delivered and, if
applicable, shall clearly specify the aggregate dollar amount due and payable to
CEA.
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(c) This Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original instrument and all of which together
shall constitute a single agreement.
IN WITNESS WHEREOF, each of the parties hereto has duly executed this
Agreement on the date first above written.
CEA ACQUISITION CORPORATION
By:
-------------------------------
Name:
Title:
THE REPRESENTATIVE
-----------------------------------
Name: Xxxxx X. Xxxxx, Xx.
ESCROW AGENT
CONTINENTAL STOCK TRANSFER &
TRUST COMPANY
By:
-------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chairman
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