EXHIBIT 2.3
ESCROW AGREEMENT
Escrow Agreement (this "Agreement") dated as of November 24, 1997, by and among
Cambridge Technology Partners (Massachusetts), Inc., a Delaware corporation
("Parent"), the persons and entities listed on Schedule 1 to the Purchase
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Agreement (as defined below) (referred to collectively herein as the "Sellers,"
and each individually as a "Seller"), Mellon Bank, N.A. (the "Escrow Agent"),
and Xxxxxxx Xxxx, Xxx Xxxxxxxx and Xxxxxxx Xxxx (each a "Seller Representative"
and collectively, the "Seller Representatives"). Capitalized terms used herein
without definition shall have the meaning ascribed thereto in the Purchase
Agreement.
WHEREAS, Parent, the Sellers and the Seller Representatives have entered into a
Share and Option Purchase Agreement (the "Purchase Agreement") dated as of the
date hereof; and
WHEREAS, this Agreement is required to be executed and delivered in connection
with the Purchase Agreement.
NOW, THEREFORE, in consideration of the premises and agreements set forth below,
the parties agree as follows:
Section 1. Delivery of Certificates; Notice of Claims.
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(a) Pursuant to Section 2.2(a)(ii) of the Purchase Agreement, Parent shall
deliver to the Paying Agent (which shall then deliver to the Escrow Agent)
certificates for 325,550 shares of Parent Common Stock accompanied by a
schedule in which are set out against the name of each Seller the number of
shares of Parent Common Stock so delivered which are registered in that
Seller's name.
(b) The Escrow Agent shall maintain a separate record of each Seller, the
number of shares of Parent Common Stock in the escrow account registered in
such Seller's name (hereinafter referred to as an "Individual Seller's
Account") and the number of such Seller's said shares delivered to Parent
pursuant to the provisions of this Agreement out of such Individual
Seller's Account. The delivery of such shares to Parent is sometimes
herein referred to as "debiting an Individual Seller's Account."
(c) In the event that Parent delivers a Certificate pursuant to Article VII of
the Purchase Agreement at any time prior to the earlier to occur of (a) the
first anniversary of the Closing Date or (b) the date all Escrow Shares
have been delivered to Parent in satisfaction of prior Payment Claims (the
earlier of such dates being referred to as the "Escrow Termination Date"),
Parent shall also send a copy of the Certificate to the Escrow Agent. In
the case of an Individual Seller Certificate (including a Certificate
treated as an Individual Seller Certificate pursuant to Section 7.5(f) of
the Purchase Agreement in the case of a claim for fraud), such Certificate
or an accompanying notice
shall name the Seller or Sellers to whom such Certificate relates and
whether such Certificate relates to a claim against such Seller for
committing fraud in respect of the representations and warranties set forth
in Article IV of the Purchase Agreement, in which case such Certificate
shall be referred to herein as an "Individual Seller Fraud Certificate."
Section 2. Escrow Agreed Claims, Individual Seller Agreed Claims, Fraud Claims.
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(a) In the event that a Payment Claim becomes an Escrow Agreed Claim or an
Individual Seller Agreed Claim in accordance with Section 7.5(e) of the
Purchase Agreement, Parent shall promptly give notice to the Escrow Agent
of the amount of such Escrow Agreed Claim or Individual Seller Agreed Claim
(which, for avoidance of doubt, may in either case be zero) and notice (a
"Payment Notice") of the amount to which Parent is then entitled to receive
out of the escrow (which, for avoidance of doubt, may be zero if, for
example, the Reimbursement Threshold, if applicable, has not yet been
reached) and specifying whether such Payment Notice relates to an Escrow
Agreed Claim or an Individual Seller Agreed Claim. Any Payment Notice
relating to an Escrow Agreed Claim shall also specify the number of Escrow
Shares of each Individual Seller's Account to which such Payment Notice
relates. In the case of a Payment Notice which relates to the Individual
Seller's Accounts of the Sellers generally a copy of such notice shall also
be given to the Seller Representatives, and, in the case of a Payment
Notice which relates to a particular Seller's Individual Seller's Account,
a copy of such notice shall also be given to such Seller. Notwithstanding
the foregoing, in the event of an Individual Seller Agreed Claim in an
amount greater than zero, Parent may, in lieu of a Payment Notice, give the
Escrow Agent (with a copy being given to the Seller Representatives) a
deferral notice (a "Deferral Notice") stating that Parent has deferred
collection against the shares in such Seller's Individual Seller's Account
in respect of such Individual Seller Agreed Claim because it anticipates
trying to collect the amount of such Individual Seller Agreed Claim outside
of the escrow account. Parent shall promptly notify the Escrow Agent and
the Seller Representatives of any amounts so collected by Parent in respect
of such Individual Seller Agreed Claim outside of the escrow account (a
"Cancellation Notice") and the amount of such Individual Seller Agreed
Claim shall be reduced accordingly. Parent may give a Payment Notice with
respect to any uncollected amount of an Individual Seller Agreed Claim at
any time.
(b) In the event that a Payment Claim which relates to fraud in respect of the
representations and warranties set forth in Article IV of the Purchase
Agreement (a "Fraud Claim") becomes treated as an Individual Seller Agreed
Claim pursuant to Section 7.5(f) of the Purchase Agreement (herein, an
"Individual Seller Fraud Agreed Claim"), Parent shall promptly give notice
to the Escrow Agent of the amount of such Individual Seller Fraud Agreed
Claim (which, for the avoidance of doubt, may be zero) and a Payment Notice
stating that it relates to an Individual Seller Fraud Agreed Claim or a
Deferral Notice as described in Section 2(a) above, a copy of which shall
also be given to the particular Seller in question. The provisions of the
last two sentences of Section 2(a) shall also apply to any Individual
Seller Fraud Claim which is the subject of a Deferral Notice. In
the event that a Fraud Claim becomes treated as an Escrow Agreed Claim
pursuant to Section 7.5(f)
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of the Purchase Agreement (herein, an "Escrow Fraud Agreed Claim"), Parent
shall promptly give notice to the Escrow Agent of the amount of such Escrow
Fraud Agreed Claim (which, for the avoidance of doubt, may be zero) and a
Payment Notice specifying that it relates to an Escrow Fraud Agreed Claim,
a copy of which shall also be given to the Seller Representatives.
Section 3. Distributions.
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(a) (i) Ten days after receiving a Payment Notice, the Escrow Agent shall
deliver to Parent as promptly as practicable that number of Escrow
Shares with a value equal to the amount set forth in the Payment
Notice (rounded up to the nearest whole share). For this purpose, the
value of each Escrow Share shall be (Pounds)21.82.
(ii) (A) In the case of a Payment Notice in respect of an Escrow Agreed
Claim, the Escrow Shares to be delivered to Parent pursuant to
Section 3(a)(i) shall represent each Seller's Pro Rata Share of
the amount set forth in the Payment Notice, rounded as necessary
to avoid fractional shares, and the number of shares delivered
to Parent with respect to a Seller shall be debited to such
Seller's Individual Seller's Account. Parent shall deliver a
schedule to the Escrow Agent with the Payment Notice setting
forth the number of shares of Parent Common Stock to be
delivered to Parent from each Seller's Individual Seller's
Account. For purposes of this Agreement, Pro Rata Share shall
mean, with respect to each Seller, a fraction, the numerator of
which is the number of shares of Parent Common Stock delivered
to the Paying Agent (and then delivered to the Escrow Agent) for
such Individual Seller's Account in connection with the Closing
pursuant to Article II of the Purchase Agreement, and the
denominator of which is the aggregate number of Escrow Shares
delivered to the Paying Agent (and then delivered to the Escrow
Agent) in connection with the Closing pursuant to Article II of
the Purchase Agreement. If the number of shares held in a
Seller's Individual Seller's Account is insufficient to pay such
Seller's full Pro Rata Share of a Payment Notice (for example,
if shares originally deposited in escrow in such Seller's
Individual Seller's Account have been delivered to Parent to
satisfy one or more Individual Seller Agreed Claims), all of the
Escrow Shares held in such Seller's Individual Seller's Account
shall be delivered to Parent in connection with such Payment
Notice, but in connection with an Escrow Agreed Claim no
Seller's Individual Seller's Account shall be debited for more
than his Pro Rata Share of the amount set forth in such Payment
Notice.
(B) In the case of a Payment Notice in respect of an Individual
Seller Agreed Claim or an Individual Seller Fraud Agreed Claim,
the Escrow Shares to be delivered to Parent pursuant to Section
3(a)(i) shall represent only Escrow Shares held in the
Individual Seller's Account of the Seller with respect to which
the Individual Seller Agreed Claim or Individual Seller Fraud
Agreed
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Claim relates, as specified in the Payment Notice, and only such
Seller's Individual Seller's Account shall be debited in
connection therewith.
(C) In the case of a Payment Notice in respect of an Escrow Fraud
Agreed Claim, if Parent has received payment from the Seller
committing the fraud in an amount which represents more than
such Seller's Pro Rata Share of total Losses with respect to
such Escrow Fraud Agreed Claim, then the Escrow Shares to be
delivered to Parent pursuant to Section 3(a)(i) from the
Individual Seller's Account of each Seller who did not commit
such fraud (the "Non-Fraudulent Sellers") shall represent each
such Non-Fraudulent Seller's proportionate share (rounded as
necessary to avoid fractional shares) of the amount set forth in
the Payment Notice. For this purpose, each Non-Fraudulent
Seller's proportionate share shall be the proportion which such
Non-Fraudulent Seller's Pro Rata Share bears to the aggregate
Pro Rata Shares of all Non-Fraudulent Sellers. If, however,
Parent has not received payment from the Seller committing the
fraud in an amount which represents more than such Seller's Pro
Rata Share of total Losses with respect to such Escrow Fraud
Agreed Claim, then the Escrow Shares to be delivered to Parent
pursuant to Section 3(a)(i) from the Individual Seller's Account
of each Non-Fraudulent Seller shall represent each such Non-
Fraudulent Seller's Pro Rata Share of the amount set forth in
the Payment Notice relating to such Escrow Fraud Agreed Claim.
Parent shall inform the Escrow Agent, in connection with the
Payment Notice, as to which of the allocations described in this
Section 3(a)(ii)(C) is applicable to such Payment Notice, a copy
of which shall also be given to the Seller Representatives. For
purposes of this Section 3(a)(ii)(C), shares of Parent Common
Stock delivered to Parent by or on behalf of the Seller
committing the fraud shall be valued at (Pounds)21.82.
(b) The Escrow Agent shall retain in escrow in each Seller's Individual
Seller's Account after the first anniversary of the Closing Date, with
respect to each Seller, a number of Escrow Shares having a value (as
determined pursuant to Section 3(a)(i) and rounded up to the nearest whole
share) equal to the sum of (i) such Seller's Pro Rata Share of the pounds
sterling amount (as set forth in the Certificate or Certificates) of all
Payment Claims which were the subject of an Escrow Certificate pursuant to
Section 7.5(b) of the Purchase Agreement and which have not as of that date
become Agreed Claims ("Pending Escrow Claims"), (ii) such Seller's Pro Rata
Share of the pounds sterling amount (as set forth in the Certificate or
Certificates) of all Payment Claims which were the subject of an Individual
Seller Fraud Certificate with respect to any Seller other than such Seller
and which have not become Individual Fraud Agreed Claims or which have
become Individual Fraud Agreed Claims with respect to which a Deferral
Notice was given to the Escrow Agent (to the extent a Payment Notice or
Cancellation Notice was not subsequently given), (iii) the pounds sterling
amount such Seller would be liable for with respect to a Certificate
treated as an Escrow Certificate pursuant to Section 7.5(b) of the Purchase
Agreement in the case of a claim for fraud (based on the pounds sterling
amount set forth
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in such Certificate) as determined in accordance with Section 3(a)(ii)(C)
and taking into account amounts, if any, paid to Parent as of the first
anniversary of the Closing Date by the Seller committing the fraud, (iv)
the pounds sterling amount (as set forth in the Certificate or
Certificates) of all Payment Claims which were the subject of an Individual
Seller Certificate (including in respect of a Fraud Claim against such
Seller) with respect to such Seller and which have not then become
Individual Seller Agreed Claims or Individual Fraud Agreed Claims ("Pending
Individual Seller Claims"), (v) the pounds sterling amount of all
Individual Seller Agreed Claims or Individual Seller Fraud Agreed Claims of
such Seller for which a Deferral Notice was given to the Escrow Agent (to
the extent a Payment Notice or a Cancellation Notice was not subsequently
given) and (vi) such Seller's Pro Rata Share of the aggregate pound
sterling amount of all Escrow Agreed Claims for which Parent was not
entitled to payment because of the Reimbursement Threshold, provided that
an amount shall be retained pursuant to this clause (vi) only to the extent
that, assuming Parent was to become entitled to payment in full in respect
of the Pending Escrow Claims, Parent would also become entitled to full
payment in respect of such amount because the Reimbursement Threshold had
been exceeded. Parent shall provide the Escrow Agent and the Seller
Representatives with a schedule showing the number of shares to be retained
after the first anniversary of the Closing Date in each Seller's Individual
Seller's Account.
(c) As promptly as practicable after the first anniversary of the Closing Date
(but following receipt of the schedule from the Seller Representatives
referred to in this Section 3(c)), the Escrow Agent shall deliver to the
Paying Agent, on behalf of the Sellers, certificates for the balance of the
Escrow Shares not delivered to Parent (or to be delivered to Parent
pursuant to a Payment Notice received by the Escrow Agent on or prior to
the first anniversary of the Closing Date) or retained in escrow pursuant
to Section 3(b). The number of Escrow Shares to be delivered to each
Seller shall be equal to (i) the number of Escrow Shares delivered to the
Escrow Agent for such Seller's Individual Seller's Account in connection
with the Closing reduced by (ii) the sum of (A) the number of shares
delivered to Parent (or which are to be delivered to Parent pursuant to a
Payment Notice received by the Escrow Agent on or prior to the first
anniversary of the Closing Date) from such Seller's Individual Seller's
Account and (B) the number of shares retained in escrow in such Seller's
Individual Seller's Account pursuant to Section 3(b). The amount
distributable to the Paying Agent on behalf of each Seller may be reduced
by amounts used to pay expenses of the Seller Representatives pursuant to
Article IX of the Purchase Agreement. The Seller Representatives shall
promptly after the time Escrow Shares become distributable to or on behalf
of the Sellers deliver a schedule to the Escrow Agent and Parent setting
forth the number of shares to be delivered to the Paying Agent on behalf of
each Seller, and the number of shares, if any, to be delivered to the
Seller Representatives in the name of each Seller to be sold by the Seller
Representatives for the account of such Seller in order to satisfy such
Seller's obligation to reimburse the Seller Representatives for expenses in
accordance with Article IX of the Purchase Agreement.
(d) Escrow Shares that are not distributed to the Sellers on the first
anniversary of the Closing Date because they have been retained pursuant to
Section 3(b) in respect of a Pending
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Escrow Claim shall be handled as follows as promptly as practicable after
such Pending Escrow Claim becomes an Escrow Agreed Claim. If the value of
the Escrow Shares (determined in accordance with Section 3(a)(i)) retained
in respect of such Pending Escrow Claim exceeds the amount of such Escrow
Agreed Claim, a number of Escrow Shares representing such excess (with any
fraction being rounded down) shall be delivered to the Paying Agent, on
behalf of the Sellers. Each Seller shall be entitled to his proportional
share of such distribution based on the number of shares of such Seller
retained in escrow in respect of such Pending Escrow Claim and the last two
sentences of Section 3(c) shall apply to such distribution. The number of
Escrow Shares with a value (determined in accordance with Section 3(a)(i)
and rounded up to the nearest whole share) equal to the amount set forth in
the Payment Notice delivered by Parent to the Escrow Agent (which may
include amounts retained in escrow pursuant to clause (vi) of Section 3(b)
if Parent is then entitled to such amounts) accompanying notice of such
Escrow Agreed Claim shall be delivered to Parent in accordance with
Sections 3(a)(i) and (ii). Any Escrow Shares that are retained in escrow
pursuant to clause (vi) of Section 3(b) shall remain in escrow until they
are delivered to Parent pursuant to a Payment Notice or until Parent, even
if it became entitled to payment in respect of Payment Claims which are
then Pending Escrow Claims and other claims which are subject to the
Reimbursement Threshold, would not be entitled to receive such shares, in
which case such shares shall be delivered to the Paying Agent, on behalf of
the Sellers. Each Seller shall be entitled to his proportional share of
such distribution based on the number of shares of such Seller that had
been so retained, and the last two sentences of Section 3(c) shall apply to
such distribution.
(e) Escrow Shares that are not distributed to the Sellers on the first
anniversary of the Closing Date because they have been retained pursuant to
Section 3(b) in respect of a Pending Individual Seller Claim shall be
handled as follows. If a Pending Individual Seller Claim becomes an
Individual Seller Agreed Claim with a pounds sterling amount of zero or if
any of such claims is paid in full by the Seller against which such claim
was made, all of the Escrow Shares retained in respect of such claim shall
be delivered to the Paying Agent, on behalf of the Seller with respect to
which such Pending Individual Seller Claim related upon notice from Parent
to such effect (and Parent agrees to give notice to the Escrow Agent
promptly in such circumstances). Except as set forth in the preceding
sentence, in the event a Pending Individual Seller Claim becomes an
Individual Seller Agreed Claim, the number of Escrow Shares with a value
(determined in accordance with Section 3(a)(i) and rounded up to the
nearest whole share) equal to the amount set forth in the Payment Notice
delivered by Parent to the Escrow Agent accompanying notice of such
Individual Seller Agreed Claim shall be delivered to Parent in accordance
with Section 3(a)(i) and (ii), and the remainder of the Escrow Shares
retained in respect of such claim shall be delivered to the Paying Agent,
on behalf of the Seller with respect to which such Individual Seller
Pending Claim related upon notice from Parent to such effect (and Parent
agrees to give notice to the Escrow Agent promptly in such circumstances).
Escrow Shares which are retained in escrow following the first anniversary
of the Closing Date pursuant to clause (v) of Section 3(b) shall be
delivered to the Paying Agent, on behalf of the Seller with respect to
which such shares were retained, or Parent, as appropriate, as
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directed in Parent's Payment Notice or Cancellation Notice relating
thereto. Shares delivered to Parent pursuant to the preceding sentence
shall be valued in accordance with Section 3(a)(i). Notwithstanding the
foregoing, this Section 3(e) shall not apply to any Escrow Shares retained
in escrow following the first anniversary of the Closing Date in connection
with a Fraud Claim in respect of an Individual Seller Fraud Certificate or
an Individual Seller Fraud Agreed Claim, which shall be governed by Section
3(f) below.
(f) With respect to shares retained in escrow following the first anniversary
of the Closing Date in respect of a Payment Claim referred to in the last
sentence of Section 3(e), when any such claim becomes an Individual Seller
Fraud Agreed Claim or an Escrow Fraud Agreed Claim, as the case may be,
Escrow Shares retained in respect of such claim shall be delivered to
Parent pursuant to a Payment Notice or, to the extent Parent is not
entitled to such shares, (i) delivered to the Paying Agent on behalf of the
Sellers based on the number of shares of each Seller retained in respect of
such claim or (ii) if Parent would be entitled to such shares but for the
Reimbursement Threshold, retained in escrow, all in accordance with the
general principles of this Agreement. Parent shall instruct the Escrow
Agent, and deliver a copy of such instructions to the Seller
Representatives, with respect to matters referred to in this Section 3(f).
(g) Notwithstanding anything herein to the contrary, no Escrow Shares shall be
distributed to a Seller pursuant to Section 3(d), 3(e) or 3(f) if the
number of shares then held in escrow in such Seller's Individual Seller's
Account would be less than the maximum number of Escrow Shares which may
become deliverable to Parent out of such Seller's Individual Seller's
Account pursuant to this Agreement in connection with claims for which
shares were retained in escrow following the first anniversary of the
Closing Date.
Section 4. Voting Rights and Distributions.
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(a) The Escrow Shares, unless and until delivered to Parent pursuant to this
Agreement, shall be registered in the respective names of the Sellers, who
shall be entitled to vote their respective Escrow Shares and who shall be
the absolute beneficial owners of their respective Escrow Shares until such
time as they may be delivered to Parent in accordance with this Agreement.
All cash dividends or distributions of assets declared by Parent with
respect to the Parent Common Stock shall be payable to the Sellers as if no
shares had been placed into escrow under this Agreement (subject to
reduction to reflect the delivery of Escrow Shares to Parent under this
Agreement).
(b) All shares of Parent Common Stock relating to Escrow Shares still held by
the Escrow Agent under this Agreement and resulting from conversion, stock
dividend, stock split, reclassification, recapitalization or corporate
reorganization of Parent, shall be issued to and registered in the
respective names of the Sellers and certificates therefor shall be
delivered to the Escrow Agent when deliverable to holders of other
outstanding shares of Parent Common Stock, shall be credited to the
respective Individual Seller's Accounts of the Sellers and shall constitute
additional Escrow Shares. In such event, appropriate
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adjustment shall be made to the value of the Parent Common Stock as
determined pursuant to Section 3(a)(i).
Section 5. Interest in Escrow Shares. The Sellers severally agree that they
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will not assign or transfer their interest in the Escrow Shares (until released
to them hereunder) and such interest shall be transferable only by operation of
law, unless Parent, in its sole discretion, consents in writing otherwise and
the Seller and any transferee execute such documents as Parent may request.
Section 6. Power of Attorney in Favor of Parent. If Parent becomes entitled to
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have Escrow Shares delivered to it in accordance with this Agreement and the
Seller Representatives fail or refuse to execute any documents necessary to
transfer such Escrow Shares to Parent, then in such event, each Seller hereby
constitutes Parent as such Seller's true and lawful attorney-in-fact with full
power and authority, in the name and on behalf of such Seller, to transfer and
deliver or authorize the delivery to Parent of such Escrow Shares to which
Parent is entitled pursuant to this Agreement and to execute stock powers in
favor of Parent in connection therewith.
Section 7. Provisions Concerning the Escrow Agent.
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(a) The Escrow Agent shall be entitled to reasonable compensation for all
services rendered and expenses incurred by it in the performance of its
obligations hereunder. The Escrow Agent shall be entitled to employ such
legal counsel and other experts as it may deem necessary to properly advise
it in connection with its obligations hereunder, and may rely on the advice
of such counsel, and may pay them reasonable compensation therefor. The
Escrow Agent and such legal counsel's and other expert's fees and expenses
shall be borne by Parent.
(b) The Escrow Agent shall not be liable for any diminution of value of the
Escrow Shares. The Escrow Agent shall have no authority to sell or
otherwise dispose of or encumber the Escrow Shares except as provided
herein.
(c) Notwithstanding any other provisions herein contained, the Escrow Agent may
at all times act upon and in accordance with the joint written instructions
of Parent and a Seller Representative. The Escrow Agent shall not be
liable for any act done or omitted by it in accordance with such
instructions or pursuant to the advice of counsel of its selection.
(d) The duties and responsibilities of the Escrow Agent shall be limited to
those expressly set forth in this Agreement and instructions given to the
Escrow Agent pursuant to this Agreement, and the Escrow Agent shall not be
subject to, nor obligated to recognize, any other agreement between any or
all of the parties hereto even though reference thereto may be made herein;
provided, however, with the written consent of the Escrow Agent, this
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Agreement may be amended at any time by an instrument in writing signed by
Parent and a Seller Representative. The Escrow Agent shall advise Parent
and the Seller Representatives from time to time, upon request, as to (i)
the number of Escrow Shares
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represented by certificates held by the Escrow Agent, and (ii) the number
of Escrow Shares distributed by the Escrow Agent to the Sellers.
(e) The Escrow Agent shall not be responsible for the sufficiency or accuracy
of the form, execution, validity or genuineness of documents or securities
now or hereafter deposited hereunder, or of any endorsement thereof, or for
any lack of endorsement thereon, or for any description therein, nor shall
it be responsible or liable in any respect on account of the identity,
authority or rights of the persons executing or delivering or purporting to
execute or deliver any such document, security or endorsement of this
Agreement, and the Escrow Agent shall be fully protected in relying upon
any written notice, demand, certificate or document which it in good faith
believes to be genuine.
(f) The Escrow Agent is authorized, in its sole discretion, to disregard any
and all notices or instructions given by any of the parties hereto or by
any other person, firm or corporation, except only such notices or
instructions as are herein provided for in this Agreement and orders or
process of any court entered or issued with or without jurisdiction. If
any property subject hereto is at any time attached, garnished or levied
upon under any court order, or in case the payment, assignment, transfer,
conveyance or delivery of any such property shall be stayed or enjoined by
any court order, or in case any order, judgment or decree shall be made or
entered by any court affecting such property or any part thereof, then and
in any of such events, the Escrow Agent is authorized, in its sole
discretion, to rely upon and comply with any such order, writ, judgment or
decree which the Escrow Agent is advised by legal counsel of its own
choosing is binding upon it; and if the Escrow Agent complies with any such
order, writ, judgment or decree, it shall not be liable to any of the
parties hereto or to any other person, firm or corporation by reason of
such compliance even though such order, writ, judgment or decree may be
subsequently reversed, modified, annulled, set aside or vacated.
(g) The Escrow Agent may resign by giving sixty (60) days advance written
notice to Parent and the Seller Representatives and thereafter shall
deliver the Escrow Shares to such substitute escrow agent as Parent and the
Seller Representatives shall jointly direct in writing. If such direction
to deliver to a substitute escrow agent is not received by the Escrow Agent
within sixty (60) days after mailing such notice of resignation, it is
unconditionally and irrevocably authorized, directed and empowered to file
an interplea motion and deliver all items held by it to a court of
competent jurisdiction.
(h) In consideration of its acceptance of the appointment as the Escrow Agent,
Parent agrees to indemnify and hold the Escrow Agent harmless as to any
liability incurred by it to any person, firm or corporation by reason of
its having accepted the same or in carrying out any of the terms hereof
(except as such liability may arise out of or be based upon the gross
negligence or willful misconduct of the Escrow Agent), and to reimburse the
Escrow Agent for all its reasonable expenses, including, among other
things, counsel fees and court costs, incurred by reason of its position
hereunder or actions taken pursuant hereto.
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Section 8. Notices. All notices, requests, claims, demands and other
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communications hereunder shall be in writing and shall be given if delivered in
person, by cable, telegram, telex or facsimile (and shall be deemed to have been
duly given on the date of delivery if so given), or by registered or certified
mail (postage prepaid, return receipt requested) (and shall be deemed to have
been duly given the second business day after the date of the postmark if so
given unless sent from inside the United States to a location outside of the
United States, and vice versa, in which case, it shall be deemed to have been
duly given the fifth business day after the date of postmark), or by
internationally recognized delivery service guaranteeing delivery in two
business days or less, with the price of delivery paid by the sender (and shall
be deemed to have been duly given on the date of delivery if so given) to the
respective parties as follows:
If to Parent:
Cambridge Technology Partners (Massachusetts), Inc.
000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Chief Financial Officer
Facsimile: 000-000-000-0000
With copies to:
U.S. Counsel
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Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP
000 Xxxx Xxxxxx
Xxxx Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000 XXX
Attention: Xxxxxx X. Xxxxxx
Facsimile: 000-000-000-0000
U.K. Counsel
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Xxxxxx, Xxxxxxx & Xxxxxx
Xxxxxx Xxxxx
Xxxxxx Xxxxxx
Xxxxxx XX0X 0XX Xxxxxxx
Attention: Xxxxxxxx Xxxxxx
Facsimile: 011-44-171-481-0316
If to any Seller:
at the address of such Seller set forth in
Schedule 3 to the Purchase Agreement
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If to the Seller Representatives:
Xxxxxxx Xxxx, Xxx Xxxxxxxx and Xxxxxxx Xxxx
at the addresses of the Seller Representatives
set forth in Schedule 3 to the Purchase Agreement
in either case with copies to:
U.S. Counsel
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Xxxx Xxxxx Xxxx & XxXxxx
2500 One Liberty Place
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000 XXX
Attention: Xxxx Xxxxxx
Facsimile: 000-000 000-0000
U.K. Counsel
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Macfarlanes
00 Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX Xxxxxxx
Attention: Xxxxx Xxxxxxxx and Xxxx Xxxxxxxxx
Facsimile: 011-44-171-831-9607
If the Escrow Agent:
Mellon Bank, N.A.
Two Mellon Bank Center
Room 325
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxx Xxxxx
Facsimile: 000-000-0000
or to such other address as any party may have furnished to the others in
writing in accordance herewith, except that notices of changes of address shall
only be effective upon receipt.
Section 9. Headings. The descriptive headings in this Agreement have been
--------
inserted for convenience only and shall not be deemed to limit or otherwise
affect the construction of any provision hereof.
Section 10. Entire Agreement; Assignment. This Agreement, the Purchase
----------------------------
Agreement, the Purchaser Ancillary Agreements and the Seller Ancillary
Agreements constitute the entire agreement among the parties with respect to the
subject matter hereof and thereof and supersede all other prior agreements and
understandings, both written and oral, among the parties or any of them with
respect to the subject matter hereof and thereof. This Agreement shall not be
assigned by operation of law or otherwise.
-11-
Section 11. Parties in Interest. This Agreement shall be binding upon and
-------------------
inure solely to the benefit of the parties hereto, and nothing in this
Agreement, express or implied, is intended to confer upon any other person any
rights or remedies of any nature whatsoever under or by reason of this
Agreement.
Section 12. Validity. The invalidity or unenforceability of any provision of
--------
this Agreement shall not affect the validity or enforceability of any other
provisions of this Agreement, each of which shall remain in full force and
effect, provided that enforcement of such other provisions in the absence of the
invalid or unenforceable provisions does not materially alter the benefit of the
bargain to any party hereto.
Section 13. Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed to be an original but all of which
shall constitute one and same Agreement.
Section 14. Governing Law. This Agreement shall be governed by and construed
-------------
in accordance with the State of Delaware, regardless of the laws that might
otherwise govern under applicable principles of conflicts of laws thereof.
Section 15. Appointment. Parent, the Sellers and the Seller Representatives
-----------
hereby appoint Mellon Bank, N.A. to act as the Escrow Agent and Mellon Bank,
N.A. accepts such appointment.
Insert Rider Y
IN WITNESS WHEREOF, Parent, the Sellers, the Seller Representatives and the
Escrow Agent (or their duly authorized representatives) have hereunto set their
hands as of the date first written above.
-12-
ESCROW AGREEMENT - RIDER Y
Section 16. Successor Escrow Agent. Any corporation, association or other
----------------------
entity into which the Escrow Agent may be converted or merged, or with which it
may be consolidated, or to which it may sell or otherwise transfer all or
substantially all of its corporate trust business, or any corporation,
association or other entity resulting from any such merger, conversion,
consolidation, sale or other transfer, shall, ipso facto, be and become
successor Escrow Agent hereunder, vested with all of the powers, discretions,
immunities, privileges and all other matters as was its predecessor, without the
execution or filing of any instrument or any further act on the part or any of
the parties hereto, anything herein to the contrary notwithstanding.
/s/ Xxxxxxx Xxxx
--------------------------------
Xxxxxxx Xxxx (as Attorney)
-13-
PARENT:
CAMBRIDGE TECHNOLOGY PARTNERS
(MASSACHUSETTS), INC.
By: /s/
----------------------------------
Title:
SELLERS:
Xxx Xxxxxxxx /s/
-------------------------
Xxxxxxx Xxxx /s/
-------------------------
FENS LIMITED
By: /s/
----------------------------------
Title:
FANMORE INVESTMENTS LIMITED
By: /s/
----------------------------------
Title:
ST. HELIER TRUST CO. LIMITED
By: /s/
----------------------------------
Title:
-00-
XXXXX XXXXX TRUSTEES LIMITED
By: /s/
----------------------------------
Title:
Xxxxxxx Xxxxx /s/
------------------------
Xxxxxxxx Xxxxxx /s/
----------------------
Xxxxxxx Cable /s/
------------------------
Xxxx Xxxxxxxxx /s/
-----------------------
Xxx Xxxx /s/
-----------------------------
Xxxxxxx Xxxxxxxx /s/
---------------------
Xxx Xxxxxxxx /s/
-------------------------
ARROW NOMINEES INC.
By: /s/
----------------------------------
Title:
Xxxxx Xxxxxxxx /s/
-----------------------
Xxxxxx Xxxx /s/
--------------------------
Xxxxx Xxxxxxxx /s/
-----------------------
Xxxxxxx Court /s/
------------------------
Xxxxxx Cuignet /s/
-----------------------
Xxxxxx Xxxxx /s/
-------------------------
Xxxxx Xxxxxx /s/
-------------------------
Xxxxx Xxxxxxx /s/
------------------------
Xxxxxxx Xxxxxx /s/
-----------------------
Xxx Xxxxxxx /s/
--------------------------
-15-
JERMYN TRUSTEES (JERSEY) LIMITED
By: /s/
----------------------------------
Title:
Xxxxxx Xxxxxxxxxxx /s/
-------------------
Xxxxxxx Xxxx /s/
-------------------------
Xxxx Xxxxxxxxxx /s/
----------------------
Xxxxx Xxxx /s/
---------------------------
Xxxx Xxxxxxx /s/
-------------------------
Xxxxx Xxxxxxxxx /s/
----------------------
Xxxx Xxxxxx /s/
--------------------------
Xxxxxx Xxxxxx /s/
------------------------
Xxxx Xxxxxx /s/
--------------------------
Xxxxx Xxxxx /s/
--------------------------
Wolfram Kurshener /s/
--------------------
Xxxxxxx Xxxxxx /s/
-----------------------
Xxxxxx Lechanteaux /s/
-------------------
Xxxxx Xxxxxxxxx /s/
----------------------
Xxxx Xxxxxx /s/
--------------------------
Xxxxxxx Xxxxxxx /s/
----------------------
Xxxxx Xxxxxxxx /s/
-----------------------
Xxxxx Xxxxxxx /s/
------------------------
Xxxxx Xxxxxxx /s/
------------------------
Xxxx Xxxxxxx /s/
-------------------------
-00-
XXXXXX XXXXXX NV
By: /s/
----------------------------------
Title:
Xxx Puarr /s/
----------------------------
Xxxxxxx Xxxx /s/
-------------------------
Xxxxxxx Xxxxx /s/
------------------------
-17-
DARNLEY ASSETS LIMITED
By: /s/
----------------------------------
Title:
Xxxxx-Xxxxxx Xxxxxx /s/
------------------
Xxxxxx Xxxxxxxxx /s/
---------------------
Xxxxxx Xxxxxxxx /s/
----------------------
Xxxxxxx Xxxx /s/
-------------------------
Xxxx Xxxxx /s/
---------------------------
Xxxxx Xxxxx /s/
--------------------------
Xxxxx Xxxxx /s/
--------------------------
Xxxxxx Xxxxxxxxxx /s/
--------------------
Xxxx Xxxxxxx /s/
-------------------------
Xxxxx Xxxxxx /s/
-------------------------
Xxxxxx Xxxxxxxx /s/
----------------------
Xxxx Xxxxxxx /s/
-------------------------
Xxxxxxx Xxxxxxxx /s/
---------------------
Xxxxx Xxxxx /s/
--------------------------
Xxxx Xxxxx /s/
---------------------------
Xxxx Van Daalen /s/
----------------------
Xxxxxx Xxx Xxxxxx /s/
--------------------
Xxxx Xxx Xxxxxxx /s/
---------------------
Xxxxxxx Xxxxxxxxx /s/
--------------------
Xxxxxxx Xxxxxx /s/
-----------------------
-18-
Xxxx Xxxxxx /s/
--------------------------
Xxxxx Xxxxxxx /s/
------------------------
Xxxxxx Xxxxx /s/
-------------------------
Xxxxxxx Xxxxx /s/
------------------------
Xxxx Xxxxxxxx /s/
------------------------
Xxxx Xxxxxxx /s/
-------------------------
-19-
SELLER REPRESENTATIVES
Xxxxxxx Xxxx
as a Seller Representative
/s/
Xxx Xxxxxxxx
as a Seller Representative
/s/
Xxxxxxx Xxxx
as a Seller Representative
/s/
MELLON BANK, N.A.
As Escrow Agent
By: /s/
----------------------------------
Title:
-20-
