DEPOSITARY AGREEMENT
THIS DEPOSITARY AGREEMENT, dated as of ____________, 1997, (this
"Agreement"), is by and between THE XXXXXXX GROUP, INC., a South Carolina
corporation ("Xxxxxxx"), and FIRST UNION NATIONAL BANK, a national banking
association with its main office in Charlotte, North Carolina ("First Union").
BACKGROUND
X. Xxxxxxx has granted subscription rights ("Rights") to the holders of
its common stock, $.01 par value (the "Common Stock"), which entitle the holders
to purchase up to 400,000 shares of Xxxxxxx'x Series A Cumulative Convertible
Preferred Stock, $.01 par value (the "Preferred Stock"), by tendering one share
of Common Stock and $10.00 in cash for two shares of the Preferred Stock (the
"Rights Offering"). One Right was granted for and has attached to each
outstanding share of Common Stock.
B. The Company has filed a Registration Statement on Form S-4 (the
"Registration Statement") with the United States Securities and Exchange
Commission (the "Commission") to register the shares of Preferred Stock to be
issued in the Rights Offering. A copy of the Registration Statement, as amended,
including a prospectus dated September __, 1997 (the "Prospectus"), is attached
hereto as Exhibit A.
C. In its capacity as the depositary under this Agreement (the
"Depositary"), First Union has agreed to (i) accept all cash payments submitted
by holders of Rights who wish to participate in the Rights Offering
("Participants"); (ii) hold and disburse such funds in accordance with the terms
of this Agreement; and (iii) accept and process all certificates representing
shares of Common Stock tendered in the Rights Offering. In its capacity as the
transfer agent and registrar for the Common Stock and the Preferred Stock (the
"Transfer Agent"), First Union has agreed to (i) issue certificates representing
shares of Common Stock surrendered but not used by Participants in exercising
the Rights and (ii) issue certificates representing the shares of Preferred
Stock purchased upon exercise of the Rights in accordance with instructions
provided by Xxxxxxx.
D. In order to exercise the Rights, Participants will be required to
submit a transmittal letter in the form attached hereto as Exhibit B (the
"Letter of Transmittal") to First Union, accompanied by the appropriate number
of shares of Common Stock and a cash payment instrument for the number of shares
of Preferred Stock they desire to purchase.
STATEMENT OF AGREEMENT
NOW THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto,
for themselves, their successors and assigns, hereby agree as follows:
1. Definitions. Capitalized terms defined in the section of this
Agreement entitled "Background" shall have such meaning throughout this
Agreement. The following terms shall have the following meanings when used
herein:
"Cash Investment" shall mean a dollar amount equal to one-half
of the number of shares of Preferred Stock to be purchased by any Participant
multiplied by $10.00.
"Cash Investment Instrument" shall mean a check, money order
or similar instrument, made payable to "First Union National Bank, Agent for The
Xxxxxxx Group, Inc." submitted in full payment of any Participant's Cash
Investment.
"Closing" shall have the meaning ascribed to it in Section 4
of this Agreement.
"Closing Notice" shall mean the writing delivered by Xxxxxxx
to First Union pursuant to Section 4 of this Agreement.
"Escrow Funds" shall mean the total Cash Investments deposited
with First Union.
"Pro Rata Basis," with respect to the allocation among
Participants of shares of Preferred Stock in the event Rights are validly
exercised to purchase more than 400,000 shares the Preferred Stock, shall mean
the proportion that the number of shares of Preferred Stock subscribed for by
each Participant bears to the total number of shares of Preferred Stock
subscribed for by all Participants.
"Subscription Accounting" shall mean an accounting of all
subscriptions for shares of Preferred Stock received by First Union on or prior
to the termination date of the Rights Offering, indicating for each subscription
(i) the Participant's name, social security number and address; (ii) the number
of shares of Preferred Stock subscribed; (iii) the number of shares of Preferred
Stock allocated to such Participant; (iv) the number of shares of Common Stock,
surrendered but not used by Participants in exercising rights; (v) the date of
receipt by First Union of (A) the Cash Investment Instrument and (B) the shares
of Common Stock tendered by such Participant; (vi) notations of any failure to
deliver shares of Common Stock or nonpayment of the Cash Investment Instrument
submitted with such subscription; (vii) any withdrawal of such subscription by
the Participant; and (viii) any rejection of such subscription by Xxxxxxx, or
other termination, for whatever reason, of such subscription.
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2. Appointment of and Acceptance by First Union. Xxxxxxx hereby
appoints First Union to serve as the Depositary for the Rights Offering,
pursuant to which First Union shall serve as (i) escrow agent hereunder with
respect to Cash Investments submitted by Participants and (ii) exchange agent
for the purpose of receipt and examination of certificates representing the
shares of Common Stock tendered with any Letter of Transmittal. In its capacity
as Transfer Agent, First Union shall issue shares of Preferred Stock issuable
upon exercise of the Rights and reissue shares of Common Stock surrendered but
not used by Participants to exercise the Rights.
3. Deposits of Escrow Funds.
a. Upon receipt by First Union of any Cash Investment
Instrument, First Union shall deposit the Cash Investment Instrument
into a non-interest bearing account titled "The Xxxxxxx Group, Inc.
Preferred Stock Subscription Escrow Account."
Each such deposit shall be accompanied by a Letter of
Transmittal. All funds so deposited shall remain the property of the
Participants according to their respective interests and shall not be
subject to any lien or charge by First Union or by judgment or
creditors' claims against Xxxxxxx until Xxxxxxx shall become entitled
to receive such funds in accordance with Section 4.a hereof.
x. Xxxxxxx understands and agrees that all Cash Investment
Instruments received by First Union hereunder are subject to collection
requirements of presentment and final payment, and that the funds
represented thereby cannot be drawn upon or disbursed until such time
as final payment has been made and is no longer subject to dishonor.
Upon receipt, First Union shall process each Cash Investment Instrument
for collection, and the proceeds thereof shall be held as part of the
Escrow Funds until disbursed in accordance with Section 4 hereof. If,
upon presentment for payment, any Cash Investment Instrument is
dishonored, First Union's sole obligation shall be to notify Xxxxxxx of
such dishonor and to deliver such Cash Investment Instrument to Xxxxxxx
to take whatever action it deems necessary. Notwithstanding the
foregoing, if for any reason any Cash Investment Instrument is
uncollectible after payment of the funds represented thereby has been
made by First Union, Xxxxxxx shall immediately reimburse First Union
upon receipt from First Union of written notice thereof.
4. Disbursement of Escrow Funds
a. Closing. At 9:00 a.m. on the date provided in the Closing
Notice (the "Closing"), which shall be on or after the fifth business day
subsequent to the termination date of the Rights Offering (i) First Union shall,
in its capacity as Depositary, (A) deliver the Subscription Accounting to
Xxxxxxx and (B) disburse to Xxxxxxx the Escrow Funds by certified or bank check
or by wire transfer, (ii) Xxxxxxx shall deliver instructions to First Union
regarding the issuance of Common Stock and Preferred Stock in accordance with
the Subscription Accounting, and (iii) First Union shall, in its capacity as the
Transfer Agent, issue, register, and deliver certificates for Common Stock and
Preferred Stock in accordance with the instructions delivered by Xxxxxxx.
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After the disbursement of Escrow Funds to Xxxxxxx and the issuance of
certificates for the Common Stock and Preferred Stock pursuant to this Section
4.a, this Agreement shall terminate. First Union shall return any Letters of
Transmittal and accompanying Cash Investment Instruments and Common Stock
certificates received subsequent to the termination date of the Rights Offering
promptly to the submitting shareholder with a notice that the Rights Offering
has terminated.
b. Rejection of Any Transmittal Letter or Termination of the
Rights Offering. No later than five (5) business days after receipt by
First Union of written notice (i) from Xxxxxxx that there will be no
closing of the sale of shares of Preferred Stock to Participants, or
(ii) from the Commission or any other federal or state regulatory
authority that a stop order has been issued with respect to the
Registration Statement and has remained in effect for at least twenty
(20) days, First Union shall pay to the applicable Participant(s), by
certified or bank check and by first class mail, the amount of the Cash
Investment paid by each Participant, and shall return or reissue a
certificate representing the shares of Common Stock submitted by the
applicable Participant(s).
c. Expiration of the Rights Offering Period. Notwithstanding
anything to the contrary contained herein, if First Union shall not
have received a Closing Notice on or before __________, 1997, First
Union shall, on the next business day after such date and without
further instruction or direction from Xxxxxxx, return to each
Participant, by certified or bank check and by first class mail, the
Cash Investment made by such Participant and return or reissue a
certificate representing the shares of Common Stock submitted by the
applicable Participant.
5. Suspension of Performance or Disbursement of Escrow Funds Into
Court. If, at any time, there shall exist any dispute between Xxxxxxx, First
Union, any Participant or any other person with respect to the holding or
disposition of any portion of the Escrow Funds, issuance or delivery of
certificates representing shares of Common Stock or Preferred Stock, or any
other obligation of First Union hereunder, or if at any time First Union is
unable to determine, to First Union's sole satisfaction, the proper disposition
of any portion of the Escrow Funds or First Union's proper actions with respect
to its obligations hereunder, or if Xxxxxxx has not within thirty (30) days of
the furnishing by First Union of a notice of resignation pursuant to Section 7
hereof, appointed a successor to act hereunder, then First Union may, in its
sole discretion, take either or both or the following actions:
a. suspend the performance of any of its obligations under
this Agreement until such dispute or uncertainty shall be resolved to
the sole satisfaction of First Union or until a successor to First
Union shall have been appointed (as the case may be); and/or
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b. petition (by means of an interpleader action or any other
appropriate method) any court of competent jurisdiction in Charlotte,
North Carolina, for instructions with respect to such dispute or
uncertainty, and release to such court all Escrow Funds and
certificates for Common Stock tendered by Participants for holding and
disposition in accordance with the instructions of such court.
First Union shall have no liability to Xxxxxxx, any Participant or any
other person with respect to any such suspension of performance or disbursement
into court, specifically including any liability or claimed liability that may
arise, or be alleged to have arisen, out of or as a result of any delay in the
disbursement of funds held in the Escrow Funds or any delay in or with respect
to any other action required or requested of First Union.
6. Investment of Escrow Funds. First Union shall hold the Escrow Funds
in a noninterest-bearing deposit account.
7. Exchange Agent Services.
a. Prior to or upon delivery of the Closing Notice, Xxxxxxx
shall deposit certificates with First Union representing the shares of
Preferred Stock to be issued to Participants upon exercise of the
Rights.
b. First Union shall, in addition to its Closing obligations
provided by Section 4.2 of this Agreement, provide exchange agent
services in accordance with this Agreement, and in that regard shall:
(1) Receive and log certificates for shares of Common
Stock tendered by Participants.
(2) Examine the certificates for shares of Common
Stock tendered by Participants, Letters of Transmittal and
other accompanying documents for compliance with the Letter of
Transmittal instructions.
(3) In each case where a Letter of Transmittal or
other document has been improperly executed or completed or,
for any other reason, is not in proper form, or some other
irregularity in connection with the delivery of the
certificate exists, First Union will take such action as it
considers best suited to notify the Participant of such
irregularity and to attempt to resolve the same. Determination
of all questions as to the proper completion or execution of a
Letter of Transmittal or as to the proper form for transfer of
the certificates representing Common Stock tendered by
Participants or as to any other irregularity in connection
with the Rights Offering shall be made by First Union,
together with officers or counsel for Xxxxxxx, and any
determination made by Xxxxxxx shall be final and binding.
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(4) In the event Rights are validly exercised to
purchase more than 400,000 shares of Preferred Stock, perform
the calculations necessary to (i) allocate the shares of
Preferred Stock on a Pro Rata Basis, (ii) calculate the
portion of Cash Investment that is to be refunded to each
Participant; and (iii) calculate the number of tendered shares
of Common Stock to be reissued to each Participant.
(5) Prepare and mail, prior to January 31, 1998,
Internal Revenue Service ("IRS") Form 1099-B or substitute
Form 1099-B to each Participant in accordance with IRS
regulations. First Union will comply with IRS regulations with
regard to due diligence in obtaining a certified Tax
Identification Number ("TIN") from Participants and will
deduct 31% on payments (i) to Participants who have not
supplied their correct TIN and the required certification and
(ii) to Participants who have been instructed by the IRS to
deduct such tax from their payments. First Union will forward
all withheld funds to the IRS in accordance with all
applicable IRS regulations.
(6) Prepare and file all required magnetic media
information returns with the IRS reflecting all payments made
in connection with the Rights Offering.
8. Resignation and Removal of First Union as the Depositary. First
Union may resign from the performance of its duties as the Depositary hereunder
at any time by giving ten (10) days' prior written notice to Xxxxxxx or may be
removed, with or without cause, by Xxxxxxx, at any time by the giving of ten
(10) days' prior written notice to First Union. Such resignation or removal
shall take effect upon the appointment of a successor as provided below. Upon
any such notice of resignation or removal, Xxxxxxx shall appoint a successor
hereunder. Upon the acceptance in writing of any appointment by a successor,
such successor shall thereupon succeed to and become vested with all the rights,
powers, privileges, and duties of First Union as the Depositary hereunder, and
First Union shall be discharged from its duties and obligations as the
Depositary under this Agreement, but shall continue to serve as the Transfer
Agent unless and until Xxxxxxx and First Union shall otherwise agree, and First
Union shall not be discharged from any liability for actions taken hereunder
prior to such succession. After First Union's resignation or removal as the
Depositary, the provisions of this Agreement shall inure to its benefit as to
any actions taken or omitted to be taken by it under this Agreement.
9. Liability of First Union. First Union shall have no liability or
obligation with respect to the Escrow Funds except for First Union's willful
misconduct or gross negligence. First Union's sole responsibility shall be for
the safekeeping and disbursement of the Escrow Funds in accordance with the
terms of this Agreement. First Union shall have no implied duties or obligations
and shall not be charged with knowledge or notice of any fact or circumstance
not specifically set forth herein. First Union may rely upon any instrument, not
only as to its due execution, validity and effectiveness, but also as to the
truth and accuracy of any information contained therein which First Union shall
in good faith believe to be genuine, to have been signed or presented by the
person or parties purporting to sign the same and to conform to the provisions
of this Agreement. In no event shall First Union be liable for incidental,
indirect,
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special, consequential or punitive damages. First Union shall not be obligated
to take any legal action or commence any proceeding in connection with the
Escrow Funds or any account in which Escrow Funds are deposited or this
Agreement, or to appear in, prosecute or defend any such legal action or
proceeding. Without limiting the generality of the foregoing, First Union shall
not be responsible for or required to enforce any of the terms or conditions of
any Transmittal Letter submitted by any Participant or any other agreement
between Xxxxxxx and/or any Participant. First Union shall not be responsible or
liable in any manner for the performance by Xxxxxxx or any Participant of their
respective obligations under the Prospectus or any Transmittal Letter nor shall
First Union be responsible or liable in any manner for the failure of Xxxxxxx or
any third party (including any Participant) to honor any of the provisions of
this Agreement. First Union may consult legal counsel selected by it in the
event of any dispute or question as to the construction of any of the provisions
hereof or of any other agreement or of its duties hereunder, and shall incur no
liability and shall be fully protected from any liability whatsoever in acting
in accordance with the opinion or instruction of such counsel. Xxxxxxx shall
promptly pay, upon demand, the reasonable fees and expenses of any such counsel.
10. Indemnification of First Union. From and at all times after the
date of this Agreement, Xxxxxxx shall, to the fullest extent permitted by law
and to the extent provided herein, indemnify and hold harmless First Union and
each director, officer, employee, or attorney, of First Union and any affiliate
of First Union (collectively, the "Indemnified Parties") against any and all
actions, claims (whether or not valid), losses, damages, liabilities, costs and
expenses of any kind or nature whatsoever (including without limitations
reasonable attorneys' fees, costs and expenses) incurred by or asserted against
any of the Indemnified Parties from and after the date hereof, whether direct,
indirect or consequential as a result of or arising from or in any way relating
to any claim, demand, suit action or proceeding (including any inquiry or
investigation) by any person, whether threatened or initiated, asserting a claim
for any legal or equitable remedy against any person under any statute or
regulation, including, but not limited to, any federal or state securities laws,
or under any common law or equitable cause or otherwise, arising from or in
connection with the negotiation, preparation, execution, performance or failure
of performance of this Agreement or any transactions contemplated herein,
whether or not any such Indemnified Party is a party to any such action,
proceeding, suit or the target of any such inquiry or investigation; provided,
however, that no Indemnified Party shall have the right to be indemnified
hereunder for any liability finally determined by a court of competent
jurisdiction, subject to no further appeal, to have resulted solely from the
gross negligence or willful misconduct of such Indemnified Party. If any such
action or claim shall be brought or asserted against any Indemnified Party, such
Indemnified Party shall promptly notify Xxxxxxx in writing, and Xxxxxxx shall
assume the defense thereof, including the employment of counsel and the payment
of all expenses. Such Indemnified Party shall, in its sole discretion, have the
right to employ separate counsel in any such action and to participate in the
defense thereof, and the fees and expenses of such counsel shall be paid by such
Indemnified Party unless (a) Xxxxxxx agrees to pay such fees and expenses, or
(b) Xxxxxxx shall fail to assume the defense of such action or proceeding or
shall fail, in the reasonable discretion of such Indemnified Party, to employ
counsel satisfactory to the Indemnified Party in any such action or proceeding,
or (c) that named parties to any such action or proceeding (including any
impleaded parties) include both Indemnified Party and Xxxxxxx, and Indemnified
Party shall have been advised by counsel that
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there may be one or more legal defenses available to it which are different from
or additional to those available to Xxxxxxx. All such fees and expenses payable
by Xxxxxxx pursuant to the foregoing sentence shall be paid from time to time as
incurred, both in advance of and after the final disposition of such action or
claim. The obligations of Xxxxxxx under this Section 9 shall survive any
termination of this Agreement and the resignation or removal of First Union.
11. Compensation to First Union.
a. Fees and Expenses. Xxxxxxx shall compensate First Union for
its services hereunder in accordance with Exhibit C attached hereto
and, in addition, shall reimburse First Union for all of its reasonable
out-of-pocket expenses, including attorneys' fees, travel expenses,
telephone and facsimile transmission costs, postage (including express
mail and overnight delivery charges), copying charges and the like. All
of the compensation and reimbursement obligations shall be payable by
Xxxxxxx upon demand by First Union. The obligations of Xxxxxxx under
this Section 10 shall survive any termination of this Agreement and the
resignation or removal of First Union.
b. Disbursements from Escrow Funds to Pay First Union. First
Union is authorized to and may disburse from time to time, to itself or
to any Indemnified Party from the Escrow Funds (to the extent of
Xxxxxxx'x rights thereto), the amount of any compensation and
reimbursement of out-of-pocket expenses due and payable hereunder
(including any amount to which First Union or any Indemnified Party is
entitled to seek indemnification pursuant to Section 9 hereof.) First
Union shall notify Xxxxxxx of any disbursement from the Escrow Funds to
itself or to any Indemnified Party in respect of any compensation or
reimbursement hereunder and shall furnish to Xxxxxxx copies of all
related invoices and other statements.
c. Security and Offset. Xxxxxxx hereby grants to First Union
and the other Indemnified Parties a security interest in and lien upon
the Escrow Funds (to the extent of Xxxxxxx'x rights thereto) to secure
all obligations hereunder, and First Union and the Indemnified Parties
shall have the right to offset the amount of any compensation or
reimbursement due any of them hereunder (including any claim for
indemnification pursuant to Section 9 hereof) against the Escrow Funds
(to the extent of Xxxxxxx'x rights thereto). If for any reason the
Escrow Funds available to First Union and the Indemnified Parties
pursuant to such security interest or right or offset are insufficient
to cover such compensation and reimbursement, Xxxxxxx shall promptly
pay such amounts to First Union and the Indemnified Parties upon
receipt of an itemized invoice.
12. Representations and Warranties; Legal Opinions. Xxxxxxx makes the
following representations and warranties to First Union:
x. Xxxxxxx is a corporation duly organized, validly existing,
and in good standing under the laws of the State of South Carolina, and
has full power and authority to execute and deliver this Agreement and
to perform its obligations hereunder;
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b. This Agreement has been duly approved by all necessary
action of Xxxxxxx, has been executed by duly authorized officers of
Xxxxxxx, and constitutes a valid and binding agreement of Xxxxxxx,
enforceable in accordance with its terms.
c. The execution, delivery and performance by Xxxxxxx of this
Agreement will not violate, conflict with, or cause a default under the
articles of incorporation or bylaws of Xxxxxxx, any applicable law or
regulation, any court order or administrative ruling or decree to which
Xxxxxxx is a party or any of its property is subject, or any agreement,
contract, indenture, or other binding arrangement to which Xxxxxxx is a
party or any of its property is subject. The execution, delivery and
performance of this Agreement is consistent with the terms of the
Rights Offering as described in the Prospectus.
d. No party other than the parties hereto have and the
prospective Participants have, or shall have, any lien, claim or
security interest in the Escrow Funds or any part thereof. No financing
statement under the Uniform Commercial Code is on file in any
jurisdiction claiming a security interest in or describing (whether
specifically or generally) the Escrow Funds or any part thereof.
x. Xxxxxxx hereby acknowledges and agrees that the status of
First Union is that of escrow and exchange agent only for the limited
purposes set forth herein, and hereby represents and covenants that no
representation or implication shall be made that First Union has
investigated the desirability or advisability of investment in the
Preferred Stock or has approved, endorsed or passed upon the merits of
the investment therein and that the name of First Union has not and
shall not be used in any manner in connection with the offer or sale of
the Preferred Stock other than to state that First Union has agreed to
serve as depositary for the limited purposes set forth herein.
f. All of the representations and warranties of Xxxxxxx
contained herein are true and complete as of the date hereof and will
be true and complete at the time of any disbursement from the Escrow
Funds.
13. Consent to Jurisdiction and Venue. In the event that any party
hereto commences a lawsuit or other proceeding relating to or arising from this
Agreement, the parties hereto agree that the United States District Court for
the Western District of North Carolina shall have the sole and exclusive
jurisdiction over any such proceeding. If all such courts lack federal subject
matter jurisdiction, the parties agree that the Superior Court Division of the
General Court of Justice of Mecklenburg County, North Carolina shall have sole
and exclusive jurisdiction. Any of these courts shall be proper venue for any
such lawsuit or judicial proceeding and the parties hereto waive any objection
to such venue. The parties hereto consent to and agree to submit to the
jurisdiction of any of the courts specified herein and agree to accept service
or process to vest personal jurisdiction over them in any of these courts.
14. Notice. All notices and other communications hereunder shall be in
writing and shall be deemed to have been validly served, given or delivered five
(5) days after deposit in the
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United States mails, by certified mail with return receipt requested and postage
prepaid, when delivered personally, one (1) day after delivery to any overnight
courier, or when transmitted by facsimile transmission facilities, and addressed
to the party to be notified as follows:
If to Xxxxxxx at: The Xxxxxxx Group, Inc.
0000 Xxxxxxxx Xxxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
ATTENTION: Xxxxxxx X. Xxxxx
Facsimile Number: (000)000-0000
With a Copy to: Xxxxxx Xxxxxxx III, Esq.
Xxxxx & Xxx Xxxxx, PLLC
NationsBank Corporate Center
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Facsimile Number: (000)000-0000
If to First Union at: First Union National Bank, as First Union
Shareholder Services Administration
0000 X.X. Xxxxxx Xxxx.
Xxxxxxxxx, XX 00000-0000
ATTENTION: Xxxxx X. Xxxx
Facsimile Number: (000) 000-0000
or to such other address as each party may designate for itself by like notice.
15. Amendment or Waiver. This Agreement may be changed, waived,
discharged, or terminated only by a writing signed by Xxxxxxx and First Union.
No delay or omission by any party in exercising any right with respect hereto
shall operate as a waiver. A waiver on any one occasion shall not be construed
as a bar to, or waiver of, any right or remedy on any future occasion.
16. Severability. To the extent any provision of this Agreement is
prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Agreement.
17. Governing Law. This Agreement shall be construed and interpreted in
accordance with the internal laws of the State of North Carolina without giving
effect to the conflict of laws principles thereof.
18. Entire Agreement. This Agreement constitutes the entire agreement
between the parties.
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19. Binding Effect. All of the terms of this Agreement, as amended from
time to time, shall be binding upon, inure to the benefit of and be enforceable
by the respective heirs, successors and assigns of Xxxxxxx and First Union.
20. Execution in Counterparts. This Agreement may be executed in two or
more counterparts, which when so executed shall constitute one and the same
agreement.
21. Termination. Upon the first to occur of (i) the disbursement of all
amounts in the Escrow Funds and issuance of all shares of Preferred Stock
issuable upon exercise of the Rights or (ii) deposit of all Escrow Funds into
court pursuant to Section 5 hereof, this Agreement shall terminate and First
Union shall have no further obligation or liability whatsoever with respect to
this Agreement or the Escrow Funds.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed under seal as of the date first above written.
THE XXXXXXX GROUP, INC.
By: ___________________________
Xxxxx X. Xxxxxxx, President
ATTEST:
___________________________
Xxxxxxx X. Xxxxx, Secretary
FIRST UNION NATIONAL BANK
By: ___________________________
Title: ________________________
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