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EXHIBIT 10.1
ESCROW AGREEMENT, dated as of this 2nd day of January, 1997 (this
"Agreement"), by and among Xxxxxx Industries, Inc., a Delaware corporation (the
"Parent"), all of the stockholders, and the holders of options to purchase
shares of ADCOR-Xxxxxxx Drilling Company, a Delaware corporation (the
"Company"), listed on the signatory pages hereto (collectively, the
"Stockholders"), collectively represented by Xxxx X. Xxxxxxx, Xx. as their
attorney-in-fact (the "Stockholders' Representative"), and Bank One, Texas,
N.A. (the "Escrow Agent").
W I T N E S S E T H
WHEREAS, Parent and the Stockholders have entered into a Consent and
Voting Agreement and Plan of Merger, dated as of December 20, 1996 (the
"Acquisition Agreement"; terms not otherwise defined herein shall have the
meaning ascribed to them in the Acquisition Agreement), by and among Parent,
Nabors Acquisition Corp. 96, a Delaware corporation and wholly-owned subsidiary
of Parent ("Acquisition Sub"), and the Company and the Stockholders pursuant to
which, at the Effective Time, Acquisition Sub will merge with and into the
Company and, as a result, the Company will become a wholly-owned subsidiary of
Parent;
WHEREAS, the Acquisition Agreement contemplates that, at the Effective
Time, an aggregate of $6,375,000 in deemed value (the "Indemnification
Amount"), initially comprised of ten percent of the shares of common stock of
Parent ("Parent Common Stock") to be issued at the Effective Time, be placed in
escrow to secure certain of the obligations of the Stockholders provided for in
the Acquisition Agreement and to be held and distributed by the Escrow Agent in
accordance with the terms of this Agreement;
WHEREAS, the parties to the Acquisition Agreement desire the Escrow
Agent, which is an independent party and not a party to the Acquisition
Agreement, to serve as Escrow Agent, as contemplated by the Acquisition
Agreement, and the Escrow Agent is willing to serve as Escrow Agent pursuant to
the provisions hereof;
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, and intending to be legally bound hereby, the
parties hereby agree as follows:
1. Appointment and Agreement of the Escrow Agent. Parent and the
Stockholders hereby appoint the Escrow Agent to serve as, and the Escrow Agent
hereby agrees to act as, escrow agent upon the terms and conditions of this
Agreement.
2. Establishment of Escrow Account. At the Effective Time,
Parent shall hold back and deliver to the Escrow Agent ten percent (10%) of the
total number of shares of Parent Common Stock to be received pursuant to the
Acquisition Agreement by the stockholders (other than holders of Dissenting
Shares) and optionholders of the Company (such amounts held by the Escrow Agent
from time to time pursuant hereto, the "Escrow Account").
3. Purpose of the Escrow Account. The Escrow Account will be
deposited with the Escrow Agent and held in escrow by the Escrow Agent to
secure the certain of the obligations of the Stockholders provided for in the
Acquisition Agreement.
4. Stockholder Rights. (a) While any of the shares of Parent
Common Stock are held in escrow ("Escrow Shares") in the Escrow Account, and
pending distribution thereof to the Parent or the Stockholders, as the case may
be, in accordance with the provisions of this Agreement, each Stockholder will
have all rights with respect to the Escrow Shares issued in his or her name
(including the right to vote such shares as set forth in Section 4(b) below),
except (i) the right of possession thereof and (ii) the right to sell, assign,
pledge, hypothecate or otherwise dispose of such shares or any interest
therein.
(b) Each Stockholder shall have the right to exercise any voting
rights with respect to the Escrow Shares issued in his or her name by so
directing the Escrow Agent. The Stockholders may replace the Stockholders'
Representative with any other Person by the written agreement of Stockholders
holding an interest in a majority of the
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Escrow Shares delivered to the Parent and the Escrow Agent, which agreement
must nominate the new Stockholders' Representative. In the absence of such
directions, the Escrow Agent shall not vote any of the Escrow Shares.
(c) Each Stockholder shall receive any dividends or other
distributions in respect of the Escrow Shares issued in his or her name.
(d) Each Stockholder shall be responsible for and shall pay and
discharge all taxes, assessments and governmental charges imposed on or with
respect to the Escrow Shares issued in his or her name.
(e) Each Stockholder may, commencing on the later of (i) the date
on which the Shelf Registration Statement is declared effective by the SEC and
(ii) the Financial Result Date, cause all (but not less than all) of its shares
of Parent Common Stock held in the Escrow Account to be sold in accordance with
the method of distribution set forth in the Shelf Registration Statement;
provided that such Stockholder shall deposit in the Escrow Account no later
than the Business Day after the settlement date of such sale an amount of cash
equal to the proceeds of such sale, and further provided that such proceeds are
greater than $18.75 per share of Parent Common Stock.
5. Distributions in Respect of Balance Sheet Claims. (a) If the
Parent shall deliver to the Escrow Agent a certificate of the Parent, executed
by an authorized officer of the Parent (a "Parent's Balance Sheet
Certificate"), which Parent's Balance Sheet Certificate shall:
(i) state that the Parent is entitled to receive an
amount in compensation for a deficiency in the Company's common equity
pursuant to Section 6.11 of the Acquisition Agreement (a "Balance
Sheet Claim");
(ii) state the aggregate amount of the Balance Sheet
Claim; and
(iii) specify the basis for the Balance Sheet Claim;
then the Escrow Agent shall, promptly, upon receipt of such Parent's Balance
Sheet Certificate, deliver a copy of such Parent's Balance Sheet Certificate to
the Stockholders' Representative. The Parent shall not deliver a Parent's
Balance Sheet Certificate after the date that is sixty (60) calendar days
following the Effective Time (or the next Business Day if such date is not a
Business Day) (the "Balance Sheet Expiration Date").
(b) If the Stockholders' Representative shall object to
the amount claimed in connection with the Parent's Balance Sheet Certificate,
the Stockholders' Representative shall, within thirty (30) Business Days after
delivery by the Escrow Agent to the Stockholders' Representative of such
Parent's Balance Sheet Certificate, deliver to the Escrow Agent a certificate
(a "Stockholders' Balance Sheet Certificate") (i) specifying the amount to
which the Stockholders' Representative objects and (ii) specifying in
reasonable detail the nature and basis for such objection. Promptly upon
receipt of a Stockholders' Balance Sheet Certificate, the Escrow Agent shall
deliver the Stockholders' Balance Sheet Certificate to the Parent. If the
Escrow Agent shall not have received a Stockholders' Balance Sheet Certificate
objecting to the amount claimed with respect to a Parent's Balance Sheet
Certificate within thirty (30) Business Days after delivery to the
Stockholders' Representative of a Parent's Balance Sheet Certificate, then the
Stockholders shall be deemed to have acknowledged the correctness of the amount
claimed on such Parent's Balance Sheet Certificate, and the Escrow Agent shall
promptly thereafter transfer to the Parent, out of the Escrow Account, an
amount equal to the full amount claimed in the Parent's Balance Sheet
Certificate, in accordance with Section 5(d) hereof.
(c) If the Escrow Agent receives, within thirty (30)
Business Days after delivery to the Stockholders' Representative of a Parent's
Balance Sheet Certificate, a Stockholders' Balance Sheet Certificate objecting
to the amount claimed on the Parent's Balance Sheet Certificate, the Escrow
Agent shall transfer to the Parent, out of the Escrow Account in accordance
with Section 5(d) hereof, an amount equal to the amount claimed in the Parent's
Balance Sheet Certificate but not contested in the Stockholders' Balance Sheet
Certificate, and shall not release further shares or funds from the Escrow
Account except in accordance with (i) written instructions executed both by an
authorized officer of the Parent and by the Stockholders' Representative or
(ii) an Accountant's Judgment (as defined below), promptly after which time the
Escrow Agent shall transfer to the Parent, out of the Escrow Account, an amount
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equal to the full amount set forth in the written instructions or the judgment,
as the case may be, in accordance with Section 5(d) hereof. An "Accountant's
Judgment" means the determination by the accounting firm determined pursuant to
Section 6.11 of the Acquisition Agreement of the disposition of any dispute with
respect to the Closing Balance Sheets, as contemplated by Section 6.11 of the
Acquisition Agreement.
(d) Any amounts payable to the Parent pursuant to this
Section 5 shall be allocated by the Escrow Agent against all Stockholders on a
pro rata basis, and shall be paid by the Escrow Agent to the Parent in Escrow
Shares (each with a deemed value of $18.75) and any cash deposited in lieu of
Escrow Shares pursuant to Section 4(a) hereof.
6. Distributions in Respect of Indemnities. (a) If
the Parent delivers to the Escrow Agent a certificate of the Parent, executed
by an authorized officer of the Parent (a "Parent's Indemnity Certificate"),
which Parent's Indemnity Certificate shall:
(i) state that the Parent is entitled to indemnification
under Section 8.06 of the Acquisition Agreement (an "Indemnification
Item");
(ii) state the aggregate amount of such Indemnification
Item; and
(iii) specify the nature and amount of each individual
Indemnification Item,
then the Escrow Agent shall, promptly upon receipt of such Parent's Indemnity
Certificate, deliver a copy of such Parent's Indemnity Certificate to the
Stockholders' Representative.
(b) If the Stockholders' Representative shall object to
any amount claimed in connection with any Indemnification Item specified in any
Parent's Indemnity Certificate, the Stockholders' Representative shall, within
thirty (30) calendar days after delivery by the Escrow Agent to the
Stockholders' Representative of such Parent's Indemnity Certificate, deliver to
the Escrow Agent a certificate (a "Stockholders' Indemnity Certificate"), (i)
specifying each such amount to which the Stockholders' Representative objects
and (ii) specifying in reasonable detail the nature and basis for each such
objection. Promptly upon receipt of a Stockholders' Indemnity Certificate, the
Escrow Agent shall deliver a copy of such Stockholders' Indemnity Certificate
to the Parent. If the Escrow Agent shall not have received a Stockholders'
Indemnity Certificate objecting to the amount claimed with respect to an
Indemnification Item within thirty (30) calendar days after delivery to the
Stockholders' Representative of a Parent's Indemnity Certificate specifying
such Indemnification Item, the Stockholders shall be deemed to have
acknowledged the correctness of the amount claimed on such Parent's Indemnity
Certificate with respect to such Indemnification Item and the Escrow Agent
shall promptly thereafter transfer to the Parent, out of the Escrow Account, an
amount equal to the full amount claimed in the Parent's Indemnity Certificate,
in accordance with Section 6(d) hereof.
(c) If the Escrow Agent receives, within thirty (30)
Calendar Days after delivery to the Stockholders' Representative of a Parent's
Indemnity Certificate, a Stockholders' Indemnity Certificate objecting to the
amount claimed with respect to any Indemnification Item specified in such
Parent's Indemnity Certificate, the amount so objected to shall be held by the
Escrow Agent. The Escrow Agent shall transfer to the Parent, out of the Escrow
Account in accordance with Section 6(d) hereof, an amount equal to the amount
claimed in the Parent's Balance Sheet Certificate but not contested in the
Stockholders' Balance Sheet Certificate, and shall not release further amounts
from the Escrow Account except in accordance with either (i) written
instructions executed both by an authorized officer of the Parent and by the
Stockholders' Representative or (ii) a Final Arbitration Judgment (as defined
below), promptly after which time the Escrow Agent shall transfer to the
Parent, out of the Escrow Account, an amount equal to the full amount set forth
in the written instructions or the judgment, as the case may be, in accordance
with Section 6(d) hereof. A "Final Arbitration Judgment" means the final
judgment of a panel of three (3) arbitrators as set forth in Section
8.06(c)(iii) of the Acquisition Agreement.
(d) Any amounts payable to the Parent pursuant to this
Section 6 shall be allocated by the Escrow Agent against all Stockholders on a
pro rata basis, and shall be paid by the Escrow Agent to the Parent in Escrow
Shares with a deemed value of $18.75 and, if cash has been deposited pursuant
to Section 4(e), in an amount of cash for each depositing Stockholder equal to
the product of the number of Escrow Shares due for such Stockholder, multiplied
by the sale proceeds per share for such Stockholder's Escrow Shares.
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7. Final Distribution of Escrow Account. Upon the
later of the expiration of (i) one (1) year from the Effective Time, (ii) the
resolution of any then-pending arbitration proceedings contemplated by Section
6(c) or Section 15(b) hereof, and (iii) the final determination of any Third
Party Claim in respect of a Loss, the Escrow Agent shall deliver all funds and
Escrow Shares as follows:
(a) The Escrow Agent shall deliver to each Stockholder
(other than holders of Dissenting Shares) that amount of cash and Escrow Shares
remaining in the Escrow Account which was allocated to such stockholder; and
(b) The Escrow Agent shall deliver to the Parent, or to
such Person or Persons as the Parent may designate in writing to the Escrow
Agent, any and all remaining contents of the Escrow Account.
8. Maintenance of the Escrow Account; Selected Payments
from the Escrow Account. (a) The Escrow Agent shall continue to maintain the
Escrow Account until the termination of this Agreement.
(b) Notwithstanding any other provision of this Agreement
to the contrary, at any time prior to the termination and distribution of the
Escrow Account, the Escrow Agent shall, if so instructed in a writing duly
signed both by an authorized officer of the Parent and any Stockholder, pay
from the Escrow Account to the Parent or such Stockholder, as directed in such
writing, the number of shares of Parent Common Stock, the amount of cash or the
property so instructed, which amount may not exceed the amount remaining in the
Escrow Account which is allocated to such Stockholder.
9. Investment of Escrow Account. The Escrow Agent shall
invest and reinvest any moneys on deposit in the Escrow Account, unless joint
written notice to the contrary is received from the Parent and the
Stockholders' Representative, in the One Group U.S. Treasury Money Market Fund.
10. Assignment of Rights to the Escrow Account;
Assignment of Obligations; Successors. This Agreement may not be assigned by
operation of Law or otherwise without the express written consent of the Parent
and the Stockholders' Representative (which consent may be granted or withheld
in the sole discretion of such Persons); provided, however, that the Parent may
assign this Agreement to a wholly-owned subsidiary of the Parent without the
consent of the Stockholders' Representative. This Agreement shall be binding
upon and inure solely to the benefit of the parties hereto and their permitted
assigns.
11. Other Duties of Escrow Agent. (a) Except as
expressly contemplated by this Agreement or by joint written instructions from
the Parent and the Stockholders, the Escrow Agent shall not sell, transfer or
otherwise dispose of in any manner all or any portion of the Escrow Account,
except pursuant to final order of a competent arbitration panel or a court of
competent jurisdiction.
(b) The duties and obligations of the Escrow Agent shall
be determined solely by this Agreement, and the Escrow Agent shall not be
liable except for the performance of such duties and obligations as are
specifically set forth in this Agreement.
(c) In the performance of its duties hereunder, the
Escrow Agent shall be entitled to rely upon any document, instrument or
signature believed by it in good faith to be genuine and signed by any party
hereto or an authorized officer or agent thereof, and shall not be required to
investigate the truth or accuracy of any statement contained in any such
document or instrument. The Escrow Agent may assume that any person purporting
to give any notice in accordance with the provisions of this Agreement has been
duly authorized to do so.
(d) The Escrow Agent shall not be liable for any error of
judgment, or any action taken, suffered or omitted to be taken, hereunder
except in the case of its gross negligence, bad faith or willful misconduct.
The Escrow Agent 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.
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(e) The Escrow Agent shall have no duty as to the
collection or protection of the Escrow Account or dividends, distributions or
income thereon, nor as to the preservation of any rights pertaining thereto,
beyond the safe custody of any such funds or property actually in its
possession.
(f) As compensation for its services to be rendered under
this Agreement, for each year or any portion thereof, the Escrow Agent shall
receive a fee in the amount specified in Schedule A to this Agreement and shall
be reimbursed upon request for all reasonable expenses, disbursements and
advances, including reasonable fees of outside counsel, if any, incurred or
made by it in connection with the preparation of this Agreement and the
carrying out of its duties under this Agreement. The Parent and the
Stockholders shall be jointly and severally liable to the Escrow Agent for such
fees and expenses. The Parent and the Stockholders agree that the Parent shall
pay one-half of such fees and expenses and the remaining one-half shall be paid
pro rata by the Stockholders.
(g) The Parent and the Stockholders (as a group) shall
jointly and severally reimburse and indemnify the Escrow Agent for, and hold it
harmless against, any loss, liability or expense, including, without
limitation, reasonable attorneys' fees, incurred without gross negligence, bad
faith or willful misconduct on the part of the Escrow Agent arising out of, or
in connection with the acceptance of, or the performance of, its duties and
obligations under this Agreement. The Parent, on the one hand, and the
Stockholders, on the other hand, agree that they shall each pay one-half of
such losses, liabilities and expenses. The Stockholders' obligation shall be
several but not joint.
(h) The Escrow Agent may at any time resign by giving
thirty (30) Business Days' prior written notice of resignation to the Parent
and the Stockholders' Representative. The Parent and the Stockholders may at
any time jointly remove the Escrow Agent by giving twenty (20) Business Days'
written notice signed by the Parent and the Stockholders' Representative to the
Escrow Agent. If the Escrow Agent shall resign or be removed, a successor
Escrow Agent, which shall be a bank or trust company having its principal
executive offices in New York, New York and assets in excess of $2 billion, and
which shall be reasonably acceptable to a majority of the Stockholders, shall
be appointed by the Parent by written instrument executed by the Parent and
such Stockholders' Representative and delivered to the Escrow Agent and to such
successor Escrow Agent and, thereupon, the resignation or removal of the
predecessor Escrow Agent shall become effective, and such successor Escrow
Agent, without any further act, deed or conveyance, shall become vested with
all right, title and interest to all cash and property held hereunder of such
predecessor Escrow Agent, and such predecessor Escrow Agent shall, on the
written request of the Parent, the Stockholders' Representative or the
successor Escrow Agent, execute and deliver to such successor Escrow Agent all
the right, title and interest hereunder in and to the Escrow Account of such
predecessor Escrow Agent and all other rights hereunder of such predecessor
Escrow Agent. If no successor Escrow Agent shall have been appointed within 20
Business Days of a notice of resignation by the Escrow Agent, the Escrow
Agent's sole responsibility shall thereafter be to hold the Escrow Account
until the earlier of receipt of designation of a successor Escrow Agent, a
joint written instruction by the Parent and the Stockholders' Representative
and termination of this Agreement in accordance with its terms.
(i) The Escrow Agent shall prepare and deliver to the
Parent and the Stockholders' Representative at the end of each calendar month
prior to termination of this Agreement a written account describing all
transactions with respect to the Escrow Account during such calendar month.
12. No Fractional Shares. Notwithstanding anything to
the contrary in this Agreement, in the event that, under any of the provisions
of this Agreement, the Escrow Agent would be required to deliver fractional
interests in shares of Parent Common Stock to Stockholders, the Parent shall be
entitled at its option to purchase from the Escrow Agent such number of shares
of Parent Common Stock (or fractional interests therein) as shall be necessary
to eliminate such fractional interests, at a purchase price equal to $18.75 per
share. In such event, the Escrow Agent shall distribute to the Stockholders
who would otherwise have been entitled to fractional interests in shares of
Parent Common Stock the cash equivalent of such fractional interests, based
upon the purchase price stated above.
13. Termination. This Escrow Agreement shall terminate
on the date on which there are no funds, shares of Parent Common Stock or other
property remaining in the Escrow Account.
14. Notices. All notices, requests, claims, demands and
other communications hereunder shall be in writing and shall be given or made
(and shall be deemed to have been duly given or made upon receipt) by
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delivery in person, by courier service, by cable, by telecopy, by telegram, by
telex or by registered or certified mail (postage prepaid, return receipt
requested) to the respective parties at the following addresses (or at such
other address for a party as shall be specified in a notice given in accordance
with this Section 14):
(a) if to the Parent:
Xxxxxx Industries, Inc.
000 Xxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
Telecopier No.: (000) 000-0000
with a copy to:
Xxxxx & XxXxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Telecopier No.: (000) 000-0000
(b) if to the Stockholders' Representative:
Xxxx X. Xxxxxxx, Xx.
000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Telecopier No.: (000) 000-0000
with a copy to:
Xxxxx & Xxxxx, L.L.P.
Xxx Xxxxx Xxxxx
000 Xxxxxxxxx
Xxxxxxx, Xxxxx 00000-0000
Attention: J. Xxxxx Xxxxxxxx, Jr., Esq.
Telecopier No.: (000) 000-0000
(c) if to the Stockholders:
Former Stockholders of ADCOR-Xxxxxxx Drilling Company
c/o Xxxx X. Xxxxxxx, Xx.
000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Telecopier No.: (000) 000-0000
with a copy to:
Xxxxx & Xxxxx, L.L.P.
Xxx Xxxxx Xxxxx
000 Xxxxxxxxx
Xxxxxxx, Xxxxx 00000-0000
Attention: J. Xxxxx Xxxxxxxx, Jr., Esq.
Telecopier No.: (000) 000-0000
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(d) if to the Escrow Agent:
Bank One, Texas, N.A.
000 Xxxxxx Xxxxxx, Xxxxx Xxxxx
Xxxxxxx, Xxxxx 00000
Attention: Corporate Trust Department
Telecopier No.: (000) 000-0000
15. Governing Law; Consent to Jurisdiction. (a) This Agreement
shall be governed by, and construed in accordance with, the laws of the State
of Delaware applicable to contracts executed and to be performed entirely
within that State.
(b) Each of the Parent and the Stockholders hereby irrevocably
agree that any disputes, claims or controversies between the Parent, on the one
hand, and the Stockholders, on the other hand, regarding their respective
rights and obligations hereunder shall be resolved by the Arbitration Panel in
accordance with the procedures set forth in Section 8.06(c)(ii) of the
Acquisition Agreement.
(c) Each of the Parent, the Stockholders' Representative, the
Stockholders and the Escrow Agent hereby (i) consents to the jurisdiction of
any United States District Court located in the state of Delaware in connection
with any disputes, claims or controversies regarding the rights and obligations
of the Escrow Agent hereunder, (ii) agrees that process may be served upon such
party (A) in any manner authorized by the laws of the State of Delaware, U.S.A.
for service upon non-resident Persons or (B) by certified mail addressed to the
Stockholders at the address therefor set forth in Section 14 and (iii) waives,
and covenants not to assert or plead, any objection or defense which such party
might otherwise have to such jurisdiction or process.
16. Amendments. This Agreement may not be amended or modified
except (a) by an instrument in writing signed by, or on behalf of, the Parent,
the Stockholders' Representative and the Escrow Agent or (b) by a waiver in
accordance with Section 17 of this Agreement.
17. Waiver. Any party hereto may (i) extend the time for the
performance of any obligation or other act of any other party hereto or (ii)
waive compliance with any agreement or condition contained herein. Any such
extension or waiver shall be valid only if set forth in an instrument in
writing signed by the party or parties to be bound thereby. Any waiver of any
term or condition shall not be construed as a waiver of any subsequent breach
or a subsequent waiver of the same term or condition, or a waiver of any other
term or condition, of this Agreement. The failure of any party to assert any
of its rights hereunder shall not constitute a waiver of any of such rights.
18. Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic and legal
substance of the transactions contemplated by this Agreement is not affected in
any manner materially adverse to any party. Upon such determination that any
term or other provision is invalid, illegal or incapable of being enforced, the
parties hereto shall negotiate in good faith to modify this Agreement so as to
effect the original intent of the parties as closely as possible in a mutually
acceptable manner in order that the transactions contemplated by this Agreement
be consummated as originally contemplated to the fullest extent possible.
19. Entire Agreement. This Agreement and the Acquisition
Agreement constitute the entire agreement of the parties hereto (except that
this Agreement alone constitutes the entire agreement of the Escrow Agent) with
respect to the subject matter hereof and supersede all prior agreements and
undertakings, both written and oral, among the Parent, the Stockholders and the
Escrow Agent with respect to the subject matter hereof.
20. No Third Party Beneficiaries. This Agreement is for the sole
benefit of the parties hereto and their permitted assigns and nothing herein,
express or implied, is intended to or shall confer upon any other person or
entity any legal or equitable right, benefit or remedy of any nature whatsoever
under or by reason of this Agreement.
21. Headings. The descriptive headings contained in this
Agreement are included for convenience of reference only and shall not affect
in any way the meaning or interpretation of this Agreement.
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22. Counterparts. This Agreement may be executed in one or more
counterparts, and by different parties hereto in separate counterparts, each of
which when executed shall be deemed to be an original but all of which when
taken together shall constitute one and the same agreement. Delivery of an
executed counterpart of a signature page to this Agreement by telecopier shall
be effective as manual delivery of an executed counterpart of this Agreement.
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IN WITNESS WHEREOF, each of the parties hereto has executed, or has
caused to be executed by its duly authorized representative, this Agreement as
of the date first written above.
PARENT:
/s/ Xxxxxx XxXxxxxxx
-------------------------------------------------
By: Xxxxxx XxXxxxxxx
Its: Vice-President, Administration and Secretary
ESCROW AGENT:
/s/ Xxxxx Xxxxx
--------------------------------------------------
By: Xxxxx Xxxxx
Its: Assistant Vice President
SHAREHOLDERS' REPRESENTATIVE,
ON BEHALF OF THE STOCKHOLDERS AND
OPTIONHOLDERS:
/s/ Xxxx X. Xxxxxxx, Xx.
--------------------------------------------------
Xxxx X. Xxxxxxx, Xx.
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