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EXHIBIT 2.3
AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER
AMENDMENT NO. 1 (the "Amendment"), dated as of January 8,
1997, to the AGREEMENT AND PLAN OF MERGER (the "Original Merger Agreement"),
dated as of November 13, 1996, among XXXXXXX INCORPORATED, a Connecticut
corporation ("Parent"), FMC Acquisition Corporation, a New York corporation and
a wholly owned subsidiary of Parent (the "Purchaser"), and FARGO MFG. COMPANY,
INC., a New York corporation (the "Company").
WHEREAS, Parent, the Purchaser and the Company have entered
into the Original Merger Agreement; and
WHEREAS, Parent, the Purchaser and the Company desire to amend
the Original Merger Agreement as provided herein.
NOW, THEREFORE, in consideration of the premises set forth
herein, Parent, the Purchaser and the Company hereby agree that the Original
Merger Agreement is, subject to the satisfaction of the condition referred to
below, amended as follows:
ARTICLE I
AMENDMENTS
SECTION 1.1 Section 2.1 of the Original Merger Agreement is
hereby amended by deleting the phrase:
", which meeting shall not be held later than ten (10) business days
following the end of a calendar month".
SECTION 1.2 Exhibit A of the Original Merger Agreement is
hereby amended by deleting Exhibit A in its entirety and substituting Exhibit A
attached hereto.
ARTICLE II
MISCELLANEOUS
SECTION 2.1 This Amendment shall become effective upon the
execution and delivery hereof by the Parent, the Purchaser and the Company.
SECTION 2.2 Capitalized terms defined in the Original Merger
Agreement and not otherwise defined herein shall have the meanings assigned
thereto in the Original Merger Agreement.
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SECTION 2.3 This Amendment may be executed by the parties
hereto in separate counterparts, each of which when so executed and delivered
shall be deemed an original, but all of which counterparts together shall
constitute but one and the same instrument.
SECTION 2.4 This Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
SECTION 2.5 All references in the Original Merger Agreement to
"this Agreement," "hereof," "herein" or the like shall mean and refer to the
Original Merger Agreement as amended by this Amendment (as well as by all other
subsequent amendments, restatements, modifications and supplements thereto).
SECTION 2.6 Except as expressly amended herein, the Original
Merger Agreement shall continue to be, and shall remain, in full force and
effect in accordance with its terms.
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IN WITNESS WHEREOF, Parent, the Purchaser and the Company have
caused this Amendment to the Original Merger Agreement to be executed as of the
day and year first written above.
XXXXXXX INCORPORATED
By: /s/ Xxxxx X. Xxxxx
-----------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
FMC ACQUISITION CORPORATION
By: /s/ Xxxxx X. Xxxxx
------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
FARGO MFG. COMPANY, INC.
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
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EXHIBIT A
TO EXHIBIT 2.3
FORM OF ESCROW AGREEMENT
Escrow Agreement (the "Escrow Agreement") dated as of [ ], 1996
among XXXXXXX INCORPORATED, a Connecticut corporation ("Xxxxxxx"), FARGO MFG.
COMPANY, INC., a New York corporation ("Fargo"), Xxxx X. Xxxxx in his capacity
as the person selected by the Company as the representative (the "Shareholder
Representative") of the former holders of the Common Stock of Fargo (the
"Shareholders") and The Chase Manhattan Bank, as escrow agent (the "Escrow
Agent").
1. Introduction. This is the Escrow Agreement referred to in the
Agreement and Plan of Merger, dated as of November 13, 1996, as amended by
Amendment No. 1 thereto dated as of January 8, 1997, among Xxxxxxx, FMC
Acquisition Corporation, a New York corporation and a wholly owned subsidiary of
Xxxxxxx, and Fargo (the "Merger Agreement"), providing for the acquisition of
Fargo by Xxxxxxx and related transactions (the "Merger"). All capitalized terms
used herein without definition have the meanings specified in the Merger
Agreement.
2. Appointment of Escrow Agent. Xxxxxxx and the Shareholder
Representative do hereby appoint and designate the Escrow Agent as escrow agent
for the purposes set forth herein, and the Escrow Agent does hereby accept such
appointment under the terms and conditions set forth herein.
3. Establishment of Escrow Account. (a) As promptly as practicable
after the execution of this Escrow Agreement, Fargo shall deliver to the Escrow
Agent an accurate list of (i) the names and mailing addresses of all of the
holders of record of Common Stock, without par value, of Fargo (the "Fargo
Common Stock") immediately prior to the Closing of the Merger and (ii) the
number of shares of Fargo Common Stock held by each Shareholder.
(b) Upon execution of this Escrow Agreement, Xxxxxxx shall deposit
in an escrow account (the "Escrow Account") a certificate (the "Certificate")
representing the number of whole shares (after rounding down to the nearest
share in the case of fractional shares) equal to 10% of the number of whole
shares of Class B Common Stock, par value $0.01 per share, of Xxxxxxx (the
"Class B Common Stock") to be issued pursuant to the Merger to each Shareholder
(such shares of Class B Common Stock, the "Initial Escrow Shares"). The
Certificate will be registered in the name of the Escrow Agent as escrow agent
hereunder.
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(c) Each holder of Fargo Common Stock for whom at least one whole
share of Class B Common Stock is deposited pursuant to Section 3(b) above shall
be deemed an "Escrow Participant." Each Escrow Participant shall have an
interest in the Escrow Account equal to the quotient obtained by dividing (i)
the number of whole shares deposited into the Escrow Account with regard to such
Escrow Participant pursuant to Section 3(b) above by (ii) the number of Initial
Escrow Shares (each such quotient hereinafter referred to individually as an
"Interest" and the aggregate of all such quotients collectively as the
"Interests"). Such Interests shall be set forth on Schedule A hereto and made a
part hereof. The Escrow Agent shall be entitled to rely upon such list as most
recently updated in making any distributions to Escrow Participants hereunder.
Dissenting Shares shall be excluded for all purposes hereunder.
(d) The Escrow Account shall be used solely at the option of Xxxxxxx
to (i) reimburse Xxxxxxx to the extent that the Estimated Net Worth Amount used
in determining the Merger Consideration exceeds the Final Closing Net Worth
Amount and (ii) satisfy any indemnification obligations to Xxxxxxx set forth in
Section 7 of the Merger Agreement.
(e) The Escrow Agent hereby agrees to act as escrow agent and to
hold, safeguard and disburse the Escrow Account pursuant to the terms and
conditions hereof.
4. Disbursements from the Escrow Account. (a) In the event that the
Estimated Net Worth Amount exceeds the Final Closing Net Worth Amount (as such
amounts are determined pursuant to Section 2.2 of the Merger Agreement and
subject to the dispute resolution procedures set forth therein), Xxxxxxx may
submit to the Escrow Agent (i) a certificate signed by a duly authorized officer
of Xxxxxxx stating that the Estimated Net Worth Amount exceeded the Final
Closing Net Worth Amount (as finally determined pursuant to Section 2.2 of the
Merger Agreement) and specifying the amount of such excess (the "Excess Net
Worth Amount") and (ii) written instructions to the Escrow Agent signed by a
duly authorized officer requesting that such Excess Net Worth Amount be paid to
Xxxxxxx from shares of Class B Common Stock on deposit in the Escrow Account.
The Escrow Agent shall deliver such Excess Net Worth Amount, in accordance with
Section 4(d) hereof, not later than the second business day following receipt of
such written instructions. Xxxxxxx shall send copies of the foregoing documents
to the Shareholder Representative concurrently with the delivery thereof to the
Escrow Agent.
(b) In the event that Xxxxxxx suffers any loss, claim, damage or
liability for which it is entitled to be indemnified pursuant to Section 7 of
the Merger Agreement (each, a "Claim"), Xxxxxxx may submit to the Escrow Agent
and the Shareholder Representative (i) a certificate signed by a duly authorized
officer of Xxxxxxx (A) stating that Xxxxxxx has a Claim and specifying the
section or sections of the Merger Agreement which are the subject of the Claim
and (B) specifying in reasonable detail, with reasonable supporting
documentation, the components of such Claim, including a calculation of the
amount of the requested indemnity or other payment and (ii) written instructions
to the Escrow Agent signed by a duly authorized officer of Xxxxxxx setting forth
the amount (the "Escrow Payment") to be paid to
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Xxxxxxx from the Escrow Account based upon the information set forth in such
certificate. Xxxxxxx shall furnish the Shareholder Representative with copies of
all books, records and other information reasonably requested by the Shareholder
Representative to the extent necessary (or reasonably appropriate) to
substantiate such Claim. If, within thirty (30) days (the "Objection Period") of
delivery of the certificate pursuant to clause (i) above and the instructions
pursuant to clause (ii) above, the Shareholder Representative does not object
thereto in a writing (the "Objection Notice") delivered to the Escrow Agent and
Xxxxxxx, then the Escrow Agent shall act in accordance with such instructions
and Section 4(d) hereof. If during the Objection Period, the Shareholder
Representative delivers to the Escrow Agent and Xxxxxxx an Objection Notice,
signed by the Shareholder Representative, specifying in reasonable detail the
Shareholder Representative's objection to such certificate and the portion of
the Escrow Payment to which the Shareholder Representative objects, then the
Escrow Agent shall pay to Xxxxxxx only such portion of the Escrow Payment as is
not specifically objected to in such Objection Notice. The Shareholder
Representative and Xxxxxxx shall negotiate in good faith to determine whether,
and to what extent, Xxxxxxx is entitled to the disputed portion of the Escrow
Payment. To the extent such agreement is reached, Xxxxxxx and the Shareholder
Representative shall within two (2) business days thereof set forth the
determination regarding the remainder of the Escrow Payment, if any, to be paid
to Xxxxxxx in written instructions to the Escrow Agent signed by a duly
authorized officer of Xxxxxxx and by the Shareholder Representative, and the
Escrow Agent shall deliver shares of Class B Common Stock representing such
amount to Xxxxxxx in accordance with Section 4(d). If within thirty (30) days of
delivery of the Objection Notice the Shareholder Representative and Xxxxxxx have
not reached agreement as to such matter, such matter shall be determined by a
competent disinterested person acting as arbitrator, to be selected by mutual
agreement of the Shareholder Representative and Xxxxxxx within ten (10) days
after such 30-day period. The determination of such arbitrator shall be binding
and final for all purposes on Xxxxxxx and the Shareholders and may be enforced
as such by any court of competent jurisdiction. If Xxxxxxx and the Shareholder
Representative fail to agree on the selection of an arbitrator during such
period, then each of Xxxxxxx and the Shareholder Representative shall designate
a competent disinterested person to act as arbitrator within ten (10) days after
such 10-day period. Within thirty (30) days of their appointment, each of the
two arbitrators shall submit to Xxxxxxx and the Shareholder Representative a
written report setting forth its determination and the factors utilized in
making such determination. If the two arbitrators agree as to whether and to
what extent Xxxxxxx is entitled to be indemnified pursuant to Section 7 of the
Merger Agreement for such Claim, such determination shall be binding and final
for all purposes on Xxxxxxx and the Shareholders and may be enforced as such by
any court of competent jurisdiction. If the two arbitrators do not agree as to
whether and to what extent Xxxxxxx is entitled to be indemnified for such Claim,
a third arbitrator shall be selected by the two arbitrators within five (5) days
thereof, and within ten (10) days of such arbitrator's selection such arbitrator
shall select one of the determinations of the two arbitrators as the most
accurate, and the determination so selected shall be binding and final for all
purposes on Xxxxxxx and the Shareholders and may be enforced as such by any
court of competent jurisdiction. Within two business days of a binding
determination made by the first arbitrator, by the two arbitrators or by the
third arbitrator, as the case may be, Xxxxxxx and the Shareholder Representative
shall set forth the determination regarding the remainder of the Escrow Payment,
if any, to be paid to Xxxxxxx in written instructions to the Escrow Agent signed
by
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a duly authorized officer of Xxxxxxx and by the Shareholder Representative, and
the Escrow Agent shall deliver shares of Class B Common Stock representing such
amount to Xxxxxxx in accordance with Section 4(d). The costs incurred in
retaining the arbitrator selected by mutual agreement of the parties and the
third arbitrator shall be borne one-half by Xxxxxxx and one-half by the
Shareholder Representative on behalf of the Shareholders. The costs incurred in
retaining the arbitrator (x) selected by Xxxxxxx shall be borne by Xxxxxxx and
(y) selected by the Shareholder Representative shall be borne by the Shareholder
Representative on behalf of the Shareholders.
(c) The Escrow Agent shall deliver the Escrow Payment, or any
portion thereof, as instructed, not later than (i) the second business day
following receipt of written instructions signed by a duly authorized officer of
Xxxxxxx and by the Shareholder Representative or (ii) the second business day
following the last day of an Objection Period in the event that the Shareholder
Representative does not deliver an Objection Notice during such period in
response to any certificate and instructions delivered to the Escrow Agent.
(d) Any payment of the Excess Net Worth Amount or of any Claim made
by the Escrow Agent pursuant to this Section 4 shall be paid in shares of Class
B Common Stock deposited in the Escrow Account, such number of shares to be
equal to the quotient (rounded up to the nearest whole share) of (i) the amount
of the payment to be made by the Escrow Agent divided by (ii) the Average Price.
The Escrow Agent shall effect such payment by surrendering the certificate for
such shares to Xxxxxxx'x transfer agent (ChaseMellon Shareholder Services,
L.L.C.) for cancellation upon receipt by the Escrow Agent of a copy of a letter
from Xxxxxxx to Xxxxxxx'x transfer agent, instructing such transfer agent to
issue a new certificate to the Escrow Agent for the shares of Class B Common
Stock remaining in the Escrow Account. In surrendering the shares to the
transfer agent, the Escrow Agent shall instruct the transfer agent to issue a
certificate for the number of shares of Class B Common Stock equal to the Excess
Net Worth Amount or the Claim, as the case may be, to Xxxxxxx. Upon delivery by
the Escrow Agent of shares of Class B Common Stock and such instructions to the
transfer agent, the Escrow Agent shall have no further obligations with respect
to the application of such shares of Class B Common Stock by the recipient
thereof. All shares of Class B Common Stock distributed from the Escrow Account
shall be deemed to be distributed pro rata by the Escrow Participants in
accordance with each Escrow Participant's Interest. If the amount of the Excess
Net Worth Amount or any Claim exceeds the aggregate value of the shares of Class
B Common Stock then on deposit with the Escrow Agent, the Escrow Agent shall
have no liability or responsibility for any deficiency.
(e) In the event that either Xxxxxxx or the Shareholder
Representative fails to select an arbitrator as required in accordance with
paragraph (b) of this Section 4, or if the arbitrator selected by such party in
accordance with such paragraph fails to comply with the provisions of such
paragraph, then the determination made by the arbitrator selected by the other
party shall be binding and final for all purposes on Xxxxxxx and the
Shareholders and may be enforced as such by any court of competent jurisdiction
in respect of the matter to be arbitrated under such paragraph.
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(f) Nothing contained herein shall be deemed to obligate the Escrow
Agent to pay or transfer any shares of Class B Common Stock hereunder unless the
same shall have been received by the Escrow Agent pursuant to the provisions of
this Escrow Agreement.
(g) With respect to any Claim for which Xxxxxxx requests indemnity
or other payment pursuant to Section 4(b) above, where such Claim is one arising
out of a third-party claim, the Shareholder Representative will have the right
to assume the defense of such third-party claim. To the extent that the
Shareholder Representative elects not to assume the defense of such third-party
claim, the Shareholder Representative will have the right to participate in or
consent to any settlement of such third-party claim which would result in an
Escrow Payment to Xxxxxxx. Any and all costs or expenses (including, but not
limited to, reasonable costs of investigation, court costs, and attorneys' fees
and disbursements) incurred in such defense, participation, or consent shall be
borne by the Shareholder Representative on behalf of the Shareholders.
5. Termination of the Escrow Account. Upon the earlier of (i)
eighteen (18) months from the Closing Date or (ii) at the completion of the
first full audit cycle for the year commencing on January 1, 1997 during which
the Company has been consolidated with Xxxxxxx and its subsidiaries (each a
"Termination Date"), the Escrow Agent shall disburse all shares of Class B
Common Stock then in the Escrow Account (the "Remaining Escrow Shares") by (x)
disbursing to each Escrow Participant that number of whole shares (after
rounding down to the nearest share in the case of fractional shares) equal to
such Escrow Participant's Interest multiplied by the number of Remaining Escrow
Shares and (y) aggregating and transferring to Xxxxxxx any and all fractions of
Remaining Escrow Shares; provided, however, that if the dispute resolution
process for determination of the Final Closing Net Worth Amount is still
continuing or if there are any outstanding or unsatisfied Claims against the
Escrow Account as to which the Escrow Agent has received notice pursuant to
Section 4 hereof on or prior to the Termination Date, this Escrow Agreement
shall continue in full force and effect until the resolution of the Final
Closing Net Worth Amount or all such Claims, as the case may be, and a number of
shares of Class B Common Stock (rounded up to the nearest whole share) equal in
value (with each such share valued at the Average Price) to satisfy the Excess
Net Worth Amount or any outstanding or unsatisfied Claims against the Escrow
Account, as the case may be, shall be retained in the Escrow Account until the
Excess Net Worth Amount or such Claims have been satisfied and discharged, and
any unused amount remaining after such satisfaction and discharge shall be
promptly paid to the Escrow Participants. Upon the transfer to Xxxxxxx pursuant
to (y) above, Xxxxxxx shall deliver to the Escrow Agent an amount equal to the
(a) the number of Remaining Escrow Shares transferred pursuant to (y) above
(including any fractional share) multiplied by (b) the closing price of the
Class B Common Stock on the business day immediately preceding such transfer.
Such amount shall be distributed by the Escrow Agent to the Escrow Participants
in proportion to the fraction of a share of Class B Common Stock so allocable to
each such Escrow Participant.
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6. Dividends; Voting Rights. (a) Any distributions or dividends
("Dividends") payable with respect to the Class B Common Stock held in the
Escrow Account shall not be deemed to be part of the Escrow Account and shall be
distributed on the dividend payment date therefor or as soon as practical
thereafter by the Escrow Agent directly to the Escrow Participants in accordance
with each such Escrow Participant's Interest. Dividends shall not be made a part
of the Escrow Account, shall not be deemed to be part of the Escrow Account and
shall not be available hereunder for the payment of the Excess Net Worth Amount
or of any Claims made by Xxxxxxx against the Escrow Account.
(b) The Escrow Participants shall retain all voting rights with
respect to the shares of Class B Common Stock held in the Escrow Account for so
long as any such shares are held by the Escrow Agent hereunder. Upon receipt of
any notice, or other voting or proxy materials, from Xxxxxxx with respect to the
Class B Common Stock, the Escrow Agent shall promptly remit such materials to
the Escrow Participants in order to allow such persons to exercise their
respective voting rights hereunder based on the Interest owned by each such
Escrow Participant. On any matter for which the Class B Common Stock has a vote,
the Escrow Agent shall vote the shares of Class B Common Stock held by it as
instructed by the Escrow Participants in accordance with their Interests. If any
Escrow Participant fails to provide voting instructions to the Escrow Agent,
then the Escrow Agent shall abstain from voting with respect to the shares of
Class B Common Stock represented by the Interest held by such Escrow
Participant.
7. Escrow Agent Expenses. Xxxxxxx and the Shareholder Representative
(on behalf of the Shareholders) hereby agree that the Escrow Agent's fees as set
forth on Schedule B attached hereto and made a part hereof shall be initially
advanced by Xxxxxxx to the Escrow Agent and subsequently reimbursed to Xxxxxxx
by the transfer to Xxxxxxx by the Escrow Agent of a certificate representing
that number of whole shares of Class B Common Stock equal in value (valued at
the Average Price) to the amount of such fees. All expenses of the Escrow Agent,
if any, apart from the fee set forth on Schedule B hereto, shall be recouped by
the Escrow Agent as incurred from time to time through the sale at fair market
value by the Escrow Agent of that number of whole shares of Class B Common Stock
necessary to pay such expenses. Any shares of Class B Common Stock sold by the
Escrow Agent to pay expenses shall be deemed to be sold pro rata by the Escrow
Participants in accordance with each Escrow Participant's Interest. The Escrow
Agent shall notify Xxxxxxx and the Shareholder Representative of any sale of
shares of Class B Common Stock pursuant to this Section 7, and such notice shall
state the amount of the expenses recouped, the date of the sale and the number
of shares of Class B Common Stock sold. The Escrow Agent shall have no duty to
solicit any payments which may be due it under this Escrow Agreement.
8. Tax Matters. For purposes of federal and other taxes based on
income, the Escrow Participants will be treated as the owners of the Escrow
Account in proportion to their respective Interests therein. The Escrow Agent
shall report the income, if any, that is earned on, or derived from, the Escrow
Account as income of the Escrow Participants in the taxable year or years in
which such income is properly includible and shall prepare and
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distribute to the Escrow Participants Forms 1099 or equivalent tax reporting
forms reflecting such income. The Shareholder Representative will provide the
Escrow Agent with the Tax Identification Numbers (TIN) of the Escrow
Participants as assigned by the Internal Revenue Service. All interest or other
income earned under the Escrow Agreement shall be allocated and paid as provided
herein and reported by the recipient Escrow Participant to the Internal Revenue
Service as having been so allocated and paid.
9. The Shareholder Representative. The Shareholder Representative
shall mean Xxxx X. Xxxxx, or such replacement or successor as shall be
designated by Shareholders owning an aggregate of a majority of Fargo Common
Stock. The Shareholder Representative shall be entitled to take the actions
specified in this Escrow Agreement and the Merger Agreement without seeking the
concurrence of any Shareholders, except that the voluntary acceptance of a Claim
without any objection whatsoever thereto, which would result in the payment to
Xxxxxxx of shares of Class B Common Stock having a value (based on the Average
Price) of $500,000 or more, shall require the prior concurrence (which may be by
written consent without a meeting) of the holders of a majority of the
Interests.
10. The Escrow Agent. (a) The Escrow Agent undertakes to perform
only such duties as are expressly set forth herein.
(b) The Escrow Agent may rely and shall be protected in acting or
refraining from acting upon any written notice, instruction or request furnished
to it hereunder and reasonably believed by it to be genuine and to have been
signed or presented by the proper party or parties.
(c) The Escrow Agent shall not be liable for any action taken by it
in good faith and reasonably believed by it to be authorized or within the
rights or powers conferred upon it by this Escrow 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.
(d) In the event that the Escrow Agent shall be uncertain as to its
duties or rights hereunder or shall receive instructions, claims or demands from
any party hereto which, in its opinion, conflict with any of the provisions of
this Escrow Agreement, it shall be entitled to refrain from taking any action
and its sole obligation shall be to keep safely all property held in escrow
until it shall be directed otherwise in writing by all of the other parties
hereto or by a final order or judgment of a court of competent jurisdiction.
(e) The Escrow Agent may resign and be discharged from its duties or
obligations hereunder by giving notice in writing of such resignation specifying
a date upon which such resignation shall take effect, which date shall not be
less than sixty (60) days prior to the date such notice is given and provided
that such resignation shall not take effect until a successor Escrow Agent shall
have been appointed jointly by Xxxxxxx and the hareholder Representative.
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(f) This Escrow 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 Escrow Agreement against the
Escrow Agent. The Escrow Agent shall not be bound by the provisions of any
agreement among the other parties hereto except this Escrow Agreement and shall
not be deemed to have knowledge of nor responsibility under the terms of the
Merger Agreement. The Escrow Agent shall be under no duty to inquire into or
investigate the validity, accuracy or content of any such document.
(g) Xxxxxxx and the Shareholder Representative (on behalf of the
Shareholders) hereby agree, jointly and severally, to indemnify and hold
harmless the Escrow Agent against any and all costs, losses, claims, damages,
liabilities, expenses, including reasonable costs of investigation, court costs,
and attorneys' fees and disbursements, which may be imposed upon the Escrow
Agent in connection with its acceptance of appointment as Escrow Agent
hereunder, including any litigation arising from this Agreement or involving the
subject matter hereof, except in the case of the Escrow Agent's own willful
default or gross negligence; 50% of any such amount shall be payable by Xxxxxxx
and 50% shall be payable by the Shareholder Representative on behalf of the
Shareholders. Anything in this agreement to the contrary notwithstanding, in no
event shall the Escrow Agent be liable for special, indirect or consequential
loss or damage of any kind whatsoever (including but not limited to lost
profits), even if the Escrow Agent has been advised of the likelihood of such
loss or damage and regardless of the form of action; provided, however, that
this sentence shall not apply in the case of gross negligence or bad faith on
the part of the Escrow Agent in the performance of its duties as Escrow Agent.
11. Interests. Interests will not be represented by any form of
certificate or other instrument and will not be transferable or assignable,
other than by will, the laws of intestacy or other operation of law.
12. Assignment. Neither this Escrow Agreement nor any right or
interest hereunder may be assigned in whole or in part by any party without the
prior consent of the other parties. This Escrow Agreement shall inure to the
benefit of and be binding upon the parties and their respective successors and
assigns.
13. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York and any action brought
hereunder shall be brought in the courts of the State of New York, located in
the County of New York. Each party hereto irrevocably waives any objection on
the grounds of venue, forum non-conveniens or any similar grounds and
irrevocably consents to service of process by mail or in any other manner
permitted by applicable law and consents to the jurisdiction of said courts.
14. Amendment. This Agreement cannot be amended or modified except
by a writing signed by Xxxxxxx, the Shareholder Representative and the Escrow
Agent.
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15. Notices. (a) All notices and other communications under this
Escrow Agreement shall be in writing and shall be deemed to have been duly given
or delivered when delivered in person, or sent by courier or other overnight
delivery service, or when sent by telecopy (with receipt confirmed) provided
that a copy is then mailed by registered or certified mail, return receipt
requested, with first class postage prepaid; except that, with respect to the
Escrow Agent, notices and other communications under this Escrow Agreement shall
be deemed to have been duly given or delivered on the date received by the
Escrow Agent:
(i) If to Xxxxxxx:
Xxxxxxx Incorporated
000 Xxxxx Xxxxxxx Xxxx
Xxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxx, Esq.
(ii) If to the Shareholder Representative:
Xxxx X. Xxxxx
00 Xxxxxx Xxxxx
Xxxxxxxxx, Xxx Xxxx 00000
with a copy to:
Xxxx Xxxxx & Xxxxxxx LLP
Xxx Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
(iii) If to the Escrow Agent:
The Chase Manhattan Bank
Corporate Trust Group
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxx Xxxxxxx Escrow Administration,
15th Floor
000-000-0000 (Fax 000-000-0000/56)
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(b) In the event that the Escrow Agent, in its sole discretion,
shall determine that an emergency exists, the Escrow Agent may use such other
means of communications as the Escrow Agent deems advisable.
16. Counterparts. This Escrow 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.
17. Termination. This Agreement shall terminate at the time that all
shares of Class B Common Stock held by the Escrow Agent hereunder have been
disbursed.
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IN WITNESS WHEREOF, each of the parties hereto has duly executed
this Escrow Agreement on the date first above written.
XXXXXXX INCORPORATED
By:________________________________
FARGO MFG. COMPANY, INC.
By:________________________________
THE CHASE MANHATTAN BANK
By:________________________________
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SCHEDULE A
TO EXHIBIT A
TO EXHIBIT 2.3
Shareholder Interests
Shareholder Interests
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SCHEDULE B
TO EXHIBIT A
TO EXHIBIT 2.3
Escrow Agent Fees
$10,000, such fee to be in full payment of the fees of the Escrow Agent for so
long as this Escrow Agreement shall be in effect.
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SCHEDULE C
TO EXHIBIT A
TO EXHIBIT 2.3
TELEPHONE NUMBER(S) FOR CALL-BACKS AND
PERSON(S) DESIGNATED TO CONFIRM FUNDS TRANSFER INSTRUCTIONS
If to Xxxxxxx:
Name Telephone Number
1.
------------------------- -------------------------
2.
------------------------- -------------------------
3.
------------------------- -------------------------
If to Fargo:
1.
------------------------- -------------------------
2.
------------------------- -------------------------
3.
------------------------- -------------------------
If to Shareholder Representative:
1. Xxxx X. Xxxxx
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Telephone call-backs shall be made to each of Xxxxxxx and Fargo or to Xxxxxxx
and the Shareholder Representative, as the case may be, if joint instructions
are required pursuant to the Agreement.
