1
Exhibit 10.74
LOSSES ESCROW AGREEMENT
LOSSES ESCROW AGREEMENT (the "Agreement"), dated as of August 26, 1997,
by and among International Post Limited, a Delaware corporation ("IPL"), Xxxxx
X. Xxxxxxxxxx ("Xxxxxxxxxx"); Xxxxxx X. Xxxxxxxx ("Xxxxxxxx"); and Xxxxxx X.
Xxxx ("Buck") (each a "Stockholder" and collectively, the "Stockholders") and
IBJ Xxxxxxxx Bank & Trust Company (the "Escrow Agent"). Any reference herein to
any Stockholder shall be deemed to also include a reference to the heirs, estate
and personal representatives of such Stockholder. Unless otherwise indicated
herein, each capitalized term used herein shall have the meaning attributed to
it in the glossary set forth in Section 20 hereof.
W I T N E S S E T H:
WHEREAS, IPL, Video Services Corporation, a New Jersey corporation
("Video") and the Stockholders are parties to an Agreement and Plan of Merger
(the "Merger Agreement"), dated the date hereof, which, among other things,
provides for the merger (the "Merger") of Video with and into IPL; and
WHEREAS, as a condition to the closing of the Merger, IPL and the
Stockholders have agreed to execute and deliver this Agreement;
NOW, THEREFORE, in consideration of the mutual agreements hereinafter
set forth, the parties hereto, intending to be legally bound, do hereby agree as
follows:
Section 1. Appointment of Escrow Agent
IPL and the Stockholders hereby appoint the Escrow Agent as their agent
to hold and disburse all assets from time to time deposited with the Escrow
Agent pursuant hereto on the terms and subject to the conditions set forth in
this Agreement, and the Escrow Agent hereby accepts such appointment. By their
execution of this Agreement, IPL and the Stockholders expressly authorize the
Escrow Agent to, and the Escrow Agent expressly agrees to, take the actions
contemplated by this Agreement in accordance with the provisions of this
Agreement.
Section 2. Escrow Accounts; Deposit of Funds.
(a) On the date hereof each of the Stockholders is delivering to the
Escrow Agent a stock certificate (duly endorsed in blank or accompanied by a
stock power duly endorsed in blank) representing the number of shares of IPL
Common Stock set forth opposite its name below:
2
Name Number of Shares
---- ----------------
Siracusano 878,186 (the "Siracusano Deposited Shares")
Xxxxxxxx 878,186 (the "Xxxxxxxx Deposited Shares")
Buck 16,941 (the "Buck Deposited Shares")
The shares represented by the certificates so deposited (together with
shares deposited pursuant to Section 4 hereof) are referred to herein
collectively as the "Deposited Shares". Each Stockholder shall retain all voting
rights in respect of the Deposited Shares deposited by such Stockholder, as well
as the right to receive all cash dividends paid on such shares until such time,
if any, as they are transferred to IPL. All securities received in respect of
such shares as dividends and all other shares of IPL Common Stock deposited
pursuant to this Agreement shall be added to the Deposited Shares and shall be
deemed Siracusano Deposited Shares, Xxxxxxxx Deposited Shares and Buck Deposited
Shares, as applicable.
(b) The Escrow Agent will, upon receipt of any funds from any
Stockholder as contemplated in Section 3 hereof, establish money-market escrow
accounts at the Escrow Agent's office, which accounts shall be designated in the
records of the Escrow Agent as follows: (i) Siracusano Escrow Account (the
"Siracusano Escrow Account"); (ii) Xxxxxxxx Escrow Account (the "Xxxxxxxx Escrow
Account"); (iii) Buck Escrow Account (the "Buck Escrow Account"), in which the
Escrow Agent shall deposit the funds submitted to it in respect of such
Stockholder. Each account listed in clauses (i) through (iii) is referred to
herein as an "Escrow Account" and the Siracusano Escrow Account, the Xxxxxxxx
Escrow Account and the Buck Escrow Account are referred to collectively as the
"Escrow Accounts". Each Escrow Account shall be maintained by, and shall be
under the exclusive dominion and control of, the Escrow Agent. The Escrow
Accounts shall be maintained as separate accounts; funds deposited in each
Escrow Account shall not be co-mingled with the funds deposited in any other
Escrow Account; and the Escrow Agent shall disburse the funds in the Escrow
Accounts only in accordance with the provisions of this Agreement; provided,
however, that the Escrow Agent also shall disburse funds from any of the Escrow
Accounts in accordance with written directions executed by all of the
Stockholders and IPL. Each Escrow Account may, upon the written direction of the
Stockholder depositing any funds therein, be invested in one or more of the
following: (i) securities issued or directly and fully guaranteed or insured by
the United States
3
of America or any agency or instrumentality thereof, (ii) time deposits and
certificates of deposit and commercial paper issued by any domestic commercial
bank having capital and surplus in excess of $50,000,000 (an "Approved Bank"),
(iii) commercial paper issued by any person incorporated under the laws of the
United States, or any State thereof, rated at least A-1 or the equivalent
thereof by Standard & Poor's Corporation or at least P-1 or the equivalent
thereof by Moody's Investor's Service, Inc. and in each case maturing within one
year after the date of acquisition, (iv) repurchase obligations with a term of
not more than five days for underlying securities of the type described in
clauses (i) through (iii) of this definition entered into with any Approved
Bank, and (v) investments in money market funds which have net assets of at
least $50 million, substantially all of whose assets comprise securities of the
types described in clauses (i) - (iv) above.
All amounts earned in each Escrow Account shall be paid over to the
appropriate Stockholder on a quarterly basis on each January 1, April 1, July 1
and October 1 (or the first Business Day thereafter) upon the written request of
such Stockholder to the Escrow Agent and such interest shall be reported by such
Stockholder as income of such Stockholder for all income tax purposes.
Section 3. Substitution of Cash.
(a) At any time and from time to time a Stockholder may, upon
compliance with the procedures set forth in this Section 3, obtain possession of
all or any portion of the Deposited Shares deposited by such Stockholder in
accordance with Section 2 or Section 4 hereof, by substituting therefor (a "Cash
Substitution") cash in an amount equal to the Determined Cash Amount and
depositing such amount with the Escrow Agent. At any time a Cash Substitution is
to be made pursuant hereto and upon compliance with the provisions of this
Section 3, any necessary certificates shall be delivered to the Stockholder as
soon as practicable after issuance by the transfer agent. In connection
therewith, the Escrow Agent is authorized to submit certificates as necessary
directly to the transfer agent by FedEx or by messenger service and IPL and the
Stockholders agree and acknowledge that the Escrow Agent shall have no duty,
obligation or liability in connection with such delivery or any action of the
transfer agent.
(b) In the event that a Stockholder desires to engage in a Cash
Substitution, the Stockholder shall deliver a written notice signed by the
Stockholder to the Escrow Agent, who shall deliver such notice to the other
Stockholders and to IPL no later than one Business Day after receipt thereof
(the "Cash Substitution
4
Notice") which notice shall state: (i) that the Stockholder desires to engage in
such Cash Substitution; and (ii) the Determined Cash Amount in respect thereof
together with a statement setting forth in reasonable detail the computation
thereof.
(c) Within 5 Business Days (the "Section 3 Acceptance Period") of
receipt of the Cash Substitution Notice by IPL, IPL may object to the Cash
Substitution on the basis (and only on the basis) that it disagrees with the
computation of the Determined Cash Amount by sending written notice of such
objection (a "Section 3 Objection") to the Escrow Agent, who shall deliver such
notice to the Stockholders no later than one Business Day after receipt thereof
, which shall set forth the reasons therefor and the date of IPL's receipt of
the Cash Substitution Notice. Failure by IPL to deliver a Section 3 Objection to
the Escrow Agent, prior to the end of the Section 3 Acceptance Period, shall be
deemed an acceptance of the Cash Substitution Notice and the Determined Cash
Amount. In the event that the Escrow Agent receives a Cash Substitution Notice
and fails to receive a Section 3 Objection prior to the end of the related
Section 3 Acceptance Period, the Escrow Agent shall complete the Cash
Substitution in accordance with the terms hereof and as contemplated in the Cash
Substitution Notice.
(d) In the event that IPL timely delivers a Section 3 Objection to the
Escrow Agent; who shall deliver a copy to the Stockholders no later than one
Business Day after receipt thereof: (i) the Stockholder may submit the matter to
dispute resolution pursuant to Section 11 hereof; and (ii) the Escrow Agent
shall not complete the Cash Substitution until: (A) directed to do so pursuant
to a written instruction signed by IPL; or (B) directed to do so pursuant to a
certificate signed by the Stockholders and IPL stating that pursuant to the
dispute resolution procedures set forth in Section 11 hereof, it has been
resolved that the Determined Cash Amount, as stated in the Cash Substitution
Notice, is correct and that the requested Cash Substitution should be completed.
(e) In engaging in a Cash Substitution, a Stockholder shall be entitled
to substitute cash proceeds to be derived from the sale of all or a portion of
the Deposited Shares to be received in such Cash Substitution. The Stockholders
and IPL shall take such action as is reasonably necessary to permit and
facilitate any such sale and substitution. In connection therewith, the Escrow
Agent shall only be required to act upon joint instructions signed by the
Stockholders and IPL.
5
Section 4. Substitution of Stock.
(a) At any time and from time to time, a Stockholder may, upon
compliance with the procedures set forth in this Section 4, obtain possession of
all or any portion of the cash held in the Escrow Account applicable to such
Stockholder, by substituting therefore (a "Stock Substitution") certificates
representing shares of IPL Common Stock in an amount equal to the Determined
Stock Amount and depositing such certificates with the Escrow Agent. At any time
a Stock Substitution is to be made pursuant hereto and upon compliance with the
provisions of this Section 4, any necessary certificates shall be delivered to
the Stockholder as soon as practicable after issuance by the transfer agent. In
connection therewith, the Escrow Agent is authorized to submit certificates as
necessary directly to the transfer agent by FedEx or by messenger service and
IPL and the Stockholders agree and acknowledge that the Escrow Agent shall have
no duty, obligation or liability in connection with such delivery or any action
of the transfer agent.
(b) In the event that a Stockholder desires to engage in a Stock
Substitution, the Stockholder shall deliver a written notice signed by the
Stockholder to the Escrow Agent, who shall deliver such notice to the other
Stockholders and to IPL no later than one Business Day after receipt thereof
(the "Stock Substitution Notice") which notice shall state: (i) that the
Stockholder desires to engage in such Stock Substitution; and (ii) the
Determined Stock Amount in respect thereof together with a statement setting
forth in reasonable detail the computation thereof.
(c) Within 5 Business Days (the "Section 4 Acceptance Period") of
receipt of the Stock Substitution Notice by IPL, IPL may object to the Stock
Substitution on the basis (and only on the basis) that it disagrees with the
computation of the Determined Stock Amount by sending written notice of such
objection (a "Section 4 Objection") to the Escrow Agent, who shall deliver such
notice to the Stockholders no later than one Business Day after receipt thereof,
which shall set forth the reasons therefor and the date of IPL's receipt of the
Stock Substitution Notice. Failure by IPL to deliver a Section 4 Objection to
the Stockholders and the Escrow Agent, prior to the end of the Section 4
Acceptance Period, shall be deemed an acceptance of the Stock Substitution
Notice and the Determined Amount. In the event that the Escrow Agent receives a
Stock Substitution Notice and fails to receive a Section 4 Objection prior to
the end of the related Section 4 Acceptance Period,
6
the Escrow Agent shall complete the Stock Substitution in accordance with the
terms hereof and as contemplated in the Stock Substitution Notice.
(d) In the event that IPL timely delivers a Section 4 Objection to the
Escrow Agent, who shall deliver a copy to the Stockholders no later than one
Business Day after receipt thereof: (i) the Stockholder may submit the matter to
dispute resolution pursuant to Section 11 hereof; and (ii) the Escrow Agent
shall not complete the Stock Substitution until: (a) directed to do so pursuant
to a written instruction signed by IPL; or (B) directed to do so pursuant to a
certificate signed by the Stockholders and IPL stating that pursuant to the
dispute resolution procedures set forth in Section 11 hereof, it has been
resolved that the Determined Stock Amount, as stated in the Stock Substitution
Notice, is correct and that the requested Stock Substitution should be
completed.
Section 5. Indemnification Claims.
(a) The Stockholders and IPL agree that in the event and to the extent
that any Stockholder has any liability or obligation to provide indemnification
or contribution (collectively, "Indemnification") for any losses of IPL, its
successors or assigns (each an "Indemnified Person") pursuant to the terms of
the Merger Agreement:
(i) the claims of an Indemnified Person in respect of
such Stockholder shall be limited to the Deposited Shares and the Escrow Account
in respect of such Stockholder and no Indemnified Person shall have any other
right, claim or recourse to such Stockholder or the assets of such Stockholder;
(ii) to the extent that such losses arise from any
obligation for which such Stockholders are jointly and severally liable under
the Merger Agreement, and in respect of which an Indemnified Person is entitled
to Indemnification under the Merger Agreement, the right of the Indemnified
Person to receive such Indemnification in respect of any particular Stockholder
regarding any such loss and to assert any claim against the Deposited Shares and
the Escrow Account attributable to such Stockholder hereunder, shall be limited
to an amount determined by multiplying: (A) the amount of such loss for which
such Indemnification is required to be provided under the Merger Agreement; by
(B) the Stockholder Percentage of such Stockholder; and
(iii) to the extent that such losses arise from any
obligation for which such Stockholders are not jointly or severally liable under
the Merger Agreement, and in respect of which an Indemnified Person is entitled
to Indemnification under
7
the Merger Agreement, the right of an Indemnified Person to receive such
Indemnification in respect of any particular Stockholder regarding any such loss
and to assert any claim against the Deposited Shares and the Escrow Account
attributable to such Stockholder hereunder, shall be limited solely to the
Deposited Shares and the Escrow Account attributable to the particular
Stockholder having an Indemnification obligation in respect of such loss and no
Indemnified Person shall have recourse to, or have any right to make any claim
against, receive any payment from, or receive all or any portion of the
Deposited Shares or the Escrow Account attributable to, any other Stockholder or
any other assets of any Stockholder.
(b) In the event that an Indemnified Person believes that it is
entitled to the payment of money for Indemnification from a Stockholder pursuant
to the provisions of Article X of the Merger Agreement, such Indemnified Person
shall proceed to assert any such claim (an "Indemnification Claim") in the
manner set forth in the Merger Agreement.
(c) The Escrow Agent shall not disburse any amount with respect to any
claim for Indemnification made by any Indemnified Person until directed to make
a payment pursuant to either: (i) a written instruction signed by the
Stockholder against which such claim is asserted (the "Subject Stockholder") and
the Indemnified Person (it being understood and agreed that, in the event that a
Stockholder agrees in writing, or it is determined by a final, binding
non-appealable order or judgment of a court of competent jurisdiction, that he
is obligated to provide a specified amount as Indemnification to an Indemnified
Person pursuant to the terms of Article X of the Merger Agreement, then such
Stockholder shall also provide the notice contemplated herein); or (ii) a
certificate signed by the Stockholders and IPL stating that the claim has been
resolved pursuant to a final, binding non-appealable order or judgment of a
court of competent jurisdiction.
(d) In the event that the Escrow Agent is required to make any payment
in respect of a Subject Stockholder to any Indemnified Person pursuant to the
terms of Section 5(c) above, then such payment shall be made by the Escrow Agent
subject to and in accordance with the following procedure:
(i) the Escrow Agent shall make such payment on the
fifth (5th) Business Day (provided that in the event of a Cash Substitution or
Stock Substitution during such period with respect to which a Section 3
Objection or Section 4 Objection is given, then the date will be the fifth day
following the date such objection is resolved or as soon as thereafter
practicable pursuant to Section 11 hereof) following the occurrence of the
8
first to occur of the events contemplated in Section 5(c)(i) or (ii), (the
"Payment Date");
(ii) during the four (4) Business Days prior to the
Payment Date the Subject Stockholder may, at its option, engage in a Cash
Substitution or Stock Substitution by giving a Cash Substitution Notice or a
Stock Substitution Notice pursuant to Section 3 or 4 hereof and the Payment Date
will be appropriately extended to the minimum extent necessary to permit such
Cash Substitution or Stock Substitution to occur;
(iii) the Subject Stockholder may, at its option by
written notice to the Escrow Agent, who shall deliver a copy to the Indemnified
Person no later than one Business Day after receipt thereof, given not less than
four (4) Business Days prior to the Payment Date, elect to have any amount to be
paid hereunder, paid in either cash from the Escrow Account, Deposited Shares,
or a combination thereof (provided that in the event of the failure of the
Escrow Agent to receive any such notice prior to the fifth day preceding the
Payment Date, such payment will be made first in cash from the Escrow Account
and then from the Deposited Shares);
(iv) for the purpose of making any payment in
Deposited Shares, the same shall be valued at Market Value determined as of the
close of business on the fourth day preceding the Payment Date; and
(v) in executing funds transfers, the Escrow Agent
will rely upon account numbers or other identifying numbers of a Stockholder or
Indemnified Person or its bank, rather than names. The Escrow Agent shall not be
liable for any loss, liability or expense resulting from any error made by a
Stockholder or Indemnified Person with respect to an account number or other
identifying number provided it has accurately followed written instructions from
the Stockholder or Indemnified Person in accordance with the disbursement
provisions set forth above. The Escrow Agent will confirm the instructions set
forth in such written instructions with the authorized individuals making such
request at the authorized telephone numbers appearing above each such
individual's name. The Escrow Agent will verify by telephone all payment orders
unless they call for a transfer to a pre-identified account.
(e) Notwithstanding anything to the contrary contained herein, the
Stockholders and IPL will not take any action pursuant to this Agreement which
would constitute or result in any assignment of a Federal Communications
Commission ("FCC") license or any change of control of any FCC licensee, whether
de facto or de jure, if such assignment of license or change of
9
control would require under then existing law (including the written rules and
regulations promulgated by the FCC), the prior approval of the FCC, without
first obtaining such approval of the FCC. The parties hereto hereby agree that
voting rights in the Deposited Shares transferred to IPL hereunder will remain
in each Stockholder unless any required approval of the FCC shall be obtained to
the transfer of voting rights. The Stockholders hereby agree to take such action
as IPL may reasonably request in order to complete any transfer of Deposited
Shares contemplated hereby, including specifically, at IPL's cost and expense,
the use of each Stockholders reasonable efforts to assist in obtaining the
approval of the FCC for any action or transaction contemplated hereby which is
then required by law, and specifically, without limitation, upon request, to
prepare, sign and file with the FCC the assignor's or transferor's portion of
any application or applications for consent to the assignment of license or
transfer of control necessary or appropriate under the FCC's rules and
regulations for approval of (a) any sale or sales of Deposited Shares by or on
behalf of the Escrow Agent pursuant hereto, or (b) any assumption by IPL of
voting rights or management rights in the Deposited Shares effected in
accordance herewith.
Section 6. Final Distribution.
(a) Promptly following the date (the "Final Date") which is the later
of: (i) three (3) years following the date hereof; and (ii) the Section 6 Date,
the Escrow Agent shall, not less than five (5) Business Days following the
giving of written notice to IPL and each Stockholder of its intention to do so,
distribute all Deposited Shares and all funds on deposit in the Escrow Accounts
to the applicable Stockholder who has deposited such funds or shares hereunder;
provided, however, that if, prior to the Final Date, an Indemnified Person has
delivered to the Escrow Agent a written notice (a "Claim Notice") that it has
asserted an Indemnification Claim pursuant to the terms of the Merger Agreement
and the amount of such claim (the "Indemnification Claimed Amount") in respect
of any Subject Stockholder and there has been no disposition of the
Indemnification Claim covered thereby either: (A) as a result of a final,
binding, non-appealable order or judgment of a court of competent jurisdiction
resulting in an order of such court to the Escrow Agent regarding the payment of
such Indemnification Claim; or (B) a written agreement of the Subject
Stockholder resulting in written instructions to the Escrow Agent signed by the
Indemnified Person and the Subject Stockholder: (i) the Escrow Agent shall
continue to hold an aggregate amount (determined in the manner set forth in
Section 6(c)) through the retention of Deposited Shares and of funds in the
Escrow Account, in each case applicable to such
10
Stockholder, equal to the Indemnification Claimed Amount until such
Indemnification Claim is so disposed of; and (ii) shall deliver to each
Stockholder the balance of the Deposited Shares or the funds held in the
applicable Escrow Account, in excess of the amounts required to be retained
pursuant to the preceding clause (i) (such distribution pursuant to this clause
(ii) and retention pursuant to clause (i), to be made from Deposited Shares,
cash in Escrow Accounts, or a combination thereof, as shall be designated by
each Stockholder by written notice to the Escrow Agent and IPL within five (5)
Business Days following the Final Date); provided that if such notice has not
been received by the Escrow Agent at least three (3) days prior to the Final
Date, then the Escrow Agent shall make such distribution on the third Business
Day following its receipt of such notice. The Escrow Agent shall not make any
distribution of Deposited Shares or funds on deposit in the Escrow Accounts
until it has received written notice from the Stockholders.
(b) Any amount or portion thereof retained pursuant to Section 6(a),
shall be: (i) applied pursuant to Section 5 hereof; or (ii) applied pursuant to
written instructions to the Escrow Agent executed by the Indemnified Person and
the Subject Stockholder; or (iii) in the event that the Escrow Agent receives a
certificate from a Subject Stockholder and the Indemnified Person which states
that the matters set forth in the Claim Notice have been determined by a final,
binding, non-appealable order of a court of competent jurisdiction, and the
amount retained in respect of such Indemnification Claim, pursuant to this
Section 6, exceeds the amount required to be paid pursuant to Section 5 hereof
in respect of such Indemnification Claim, then the excess shall be paid over to
the Subject Stockholder (and, in the event of any dispute with respect to the
foregoing, the same may be submitted for resolution pursuant to the dispute
resolution procedures set forth in Section 11 hereof and the Escrow Agent shall
thereafter release amounts in the applicable Escrow Account and the applicable
Deposited Shares, in accordance with the determination resulting therefrom).
(c) For purposes of withholding assets pursuant to Section 6(a), any
Deposited Shares shall be valued at Market Value determined in good faith by the
Board of Directors of IPL as of the Final Date and all amounts held in any
Escrow Account shall be valued at the amount of cash held in such account. For
the purposes of this Agreement, the Escrow Agent may assume, without inquiry or
responsibility, that all actions taken by the Board of Directors of IPL shall be
in good faith. In the event that any amounts held in any Escrow Account in cash
are withheld from distribution pursuant to this Section 6, due to the existence
of any Indemnification Claim pending as of such date, then to the extent that
the amount so withheld (the "Retained Amount") exceeds 150% of the amount
specified in a certificate signed by
11
the Stockholders and IPL as the amount finally determined by a court of
competent jurisdiction pursuant to a final, binding, non-appealable order to be
the actual amount to be paid in respect of the Indemnification Claim, IPL shall
pay to the Subject Stockholders in respect of such Indemnification Claim, an
amount (reduced by any other earnings received by the Subject Stockholder
pursuant to this Agreement in respect of such amounts during such period) equal
to interest on such excess calculated from the Final Date until the date of such
payment, at a rate equal to 2% in excess of the average annual interest rate
paid by IPL to its then current lending bank during each annual period (or part
thereof) that such amounts are retained (or, in the event there is no such bank
during any such period, 15% per annum), but not in excess of the maximum rate of
interest permitted by law.
Section 7. Duties and Obligations.
(a) It is agreed that the duties and obligations of the Escrow Agent
are those herein specifically provided and no other. The Escrow Agent shall not
have any liability under, or duty to inquire into, the terms and provisions of
any agreement, other than this Agreement. The Escrow Agent's duties are
ministerial in nature and the Escrow Agent shall not incur any liability
whatsoever so long as it has acted in good faith, except for willful misconduct
or gross negligence. In the event that, at any time, the Escrow Agent has any
question as to the interpretation or application of any provision of this
Agreement, or requests written instructions or confirmation of any action or
inaction to be taken or not to be taken by the Escrow Agent hereunder, the
Escrow Agent may, in its discretion, refrain from taking any action or engaging
in any activity, until it has received such instruction or confirmation as it
may reasonably request and the parties hereto will provide the same as
reasonably requested by the Escrow Agent from time to time.
(b) The Escrow Agent may consult with counsel of its choice, and shall
not be liable for any action taken, suffered or omitted by it in accordance with
the advice of such counsel. The Escrow Agent shall not be bound by any
modification, amendment, termination, cancellation, rescission or supersession
of this Agreement unless the same shall be in writing and signed by all of the
parties hereto.
(c) 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 Agreement, it shall be entitled to commence an action in interpleader
and to
12
pay the funds and property then held in the Escrow Accounts into court,
whereupon its sole obligation shall be to take such action as is ordered by a
final, binding, non-appealable order or judgment of a court of competent
jurisdiction.
(d) The Escrow Agent shall not incur any liability for following the
instructions herein contained or expressly provided for.
(e) The Escrow Agent shall not have any responsibility for the
genuineness or validity of any document or other item deposited with it or any
liability for action in accordance with any written instructions or certificates
given to it hereunder and reasonably believed by it to be signed by the proper
parties.
(f) The Escrow Agent shall not be required to institute legal
proceedings of any kind and shall not be required to initiate or defend any
legal proceedings (including interpleader) which may be instituted against it in
respect of the subject matter of this Agreement. If it does elect to act, it
will do so only if it is indemnified against the reasonable cost and expense of
such defense or initiation.
(g) This Agreement shall terminate when all funds and property on
deposit pursuant hereto have been disbursed as provided in this Agreement.
Section 8. Resignation. The Escrow Agent may at any time resign
hereunder by giving written notice of its resignation to the parties hereto, at
least thirty days prior to the date specified for such resignation to take
effect, and, upon the effective date of such resignation, all funds and property
then held by the Escrow Agent hereunder shall be delivered by it to such person
as may be designated in writing by all of IPL and the Stockholders, whereupon
all of the Escrow Agent's obligations hereunder shall cease and terminate. If no
such person shall have been designated by such date, all obligations of the
Escrow Agent hereunder shall nevertheless cease and terminate except that the
Escrow Agent's sole responsibility thereafter shall be to continue to hold all
the funds and property then held by it and to deliver the same to a person
designated in writing by all of IPL and the Stockholders or in accordance with
the directions of a final, binding, non-appealable order or judgment of a court
of competent jurisdiction.
Section 9. Indemnification. IPL agrees to indemnify, defend and hold
the Escrow Agent harmless from and against any and all loss, damage, tax,
liability and expense, including, without limitation, reasonable attorneys'
fees, that may be incurred by the Escrow Agent arising out of or in connection
with
13
its acceptance of appointment as Escrow Agent hereunder, except as caused by its
gross negligence or willful misconduct, including, without limitation, the legal
costs and expenses of defending itself against any claim or liability in
connection with its performance hereunder. Each Stockholder agrees to indemnify,
defend and hold the Escrow Agent harmless from and against any and all loss,
damage, tax, liability and expense, including, without limitation, reasonable
attorneys' fees, that may be incurred by the Escrow Agent arising out of any
wrongful act or omission by such Stockholder hereunder, except as caused by the
Escrow Agent's gross negligence or willful misconduct, including, without
limitation, the legal costs and expenses of defending itself against any claim
or liability in connection with its performance hereunder.
Section 10. Expenses. IPL shall reimburse the Escrow Agent for all
expenses and disbursements incurred by the Escrow Agent including, without
limitation, fees and expenses, of counsel of the Escrow Agent incurred in
connection with this Agreement.
Section 11. Arbitration. Disputes that arise under this Agreement,
between the Stockholders and IPL will be resolved as follows:
(i) except as set forth in the penultimate paragraph of this
Section 11, neither IPL nor any of the Stockholders shall bring a civil action
arising under or with respect to this Agreement;
(ii) at any time IPL or any of the Stockholders may demand
arbitration of any dispute, arising under or with respect to this Agreement by
delivering written notice thereof to: (x) the parties hereto; and (y) an office
of JAMS/Endispute located in New York City (or, if none, then the office of
JAMS/Endispute located closest to New York City); and
(iii) any such arbitration shall be conducted in New York City
according to JAMS/Endispute's Arbitration Rules then in effect applicable to
disputes of the types submitted to arbitration and the results of such
arbitration shall be final and binding on the parties.
In the event that JAMS/Endispute is not available to provide such arbitration
services with respect to any such dispute, then that dispute shall be resolved
by final, binding arbitration in New York City by three arbitrators pursuant to
the rules then prevailing of the American Arbitration Association applicable to
disputes of the type submitted to arbitration. Judgement on the award rendered
by any of the above referenced arbitrators may be confirmed and entered in and
by any court having jurisdiction.
14
Notwithstanding the foregoing, each party specifically reserves the
right to seek equitable remedies in a court of competent jurisdiction.
It is understood and agreed by IPL and the Stockholders that the
purpose of this Agreement is to provide a mechanism to fund the payment of
certain indemnification obligations that may arise pursuant to the terms of
Article X of the Merger Agreement. This Section 11 is to be utilized solely to
resolve disputes under this Agreement. The determination of the right of any
party to be indemnified or to receive any payment under Section X of the Merger
Agreement in respect of any matter is not within the subject matter of this
Agreement and is not subject to the provisions of this Section 11.
Section 12. Fees. The fees and expenses of the Escrow Agent are to be
paid by IPL pursuant to the terms of a letter agreement between Escrow Agent and
IPL dated April 7, 1997 and the Escrow Agent shall not collect any such fees
from the amounts or property escrowed hereunder.
Section 13. Notices. All notices, requests, demands, waivers, consents,
approvals or other communications to any party hereunder shall be in writing and
shall be deemed to have been duly given if: (i) delivered personally to such
party; or (ii) sent to such party by telegram or telecopy, with a copy sent on
the same day via overnight delivery to the following addresses:
If to IPL, to:
International Post Limited
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxx
Fax # (000) 000-0000
with a copy to:
Shereff, Friedman, Xxxxxxx & Xxxxxxx, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
(000) 000-0000
Fax # (000) 000-0000
If to Siracusano, to:
15
Xxxxx X. Xxxxxxxxxx
00 Xxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxxxx 00000
(000) 000-0000
Fax # (000) 000-0000
If to Xxxxxxxx, to:
Xxxxxx X. Xxxxxxxx
c/o Video Services Corporation
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000-0000
(000) 000-0000
Fax # (000) 000-0000
If to Buck, to:
Xxxxxx X. Xxxx
0 Xxxxxxxx Xxxxx
Xxxxxxx Xxxx, XX 00000
(000) 000-0000
Fax # (000) 000-0000
All notices to the Stockholders shall also be sent to:
Xxxxxx Xxxxxx Butowsky Xxxxxxx Xxxxxx & Xxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx X. Xxxxxxxxx
Fax # (000) 000-0000
If to Escrow Agent, to it at:
IBJ Xxxxxxxx Bank & Trust Company
Xxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust
Fax # (000) 000-0000
or to such other address as the addressee may have specified in notice duly
given to the sender as provided herein. Such notice, request, demand, waiver,
consent, approval or other communications shall be deemed to have been given and
received as of the date so delivered, telegraphed or telecopied, provided that
any notice, request, demand, waiver, consent, approval or other communications
sent to the Escrow Agent shall be deemed to have been given and received as of
the date received by the Escrow Agent.
16
Section 14. Assignment. A party hereto may assign its rights under this
Agreement upon notice to all other parties hereto, provided that in connection
with any assignment by the Escrow Agent, the Escrow Agent shall comply with the
terms of Section 8 hereof.
Section 15. Binding Nature. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns, heirs and personal representatives.
Section 16. Governing Law. This Agreement shall be governed by and
interpreted under the laws of the State of New York applicable to contracts made
and performed therein without giving effect to the principles of conflict of
laws thereof.
Section 17. Amendment; Waiver. No amendment, modification or waiver of
the provisions of this Agreement shall be effective unless in a writing executed
by the party against whom such amendment or modification is sought to be
enforced (or in the case of a waiver by the party waiving one or more of its
rights hereunder).
Section 18. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original, but
collectively all of such counterparts shall constitute one and the same
agreement.
Section 19. Adjustments. For purposes of this Agreement all references
to numbers of shares or calculations based thereon or relating thereto, shall be
appropriately adjusted for any stock dividend, stock split, reverse stock split,
combination, recapitalization or other similar event.
Section 20. Glossary. The following terms as used in this Agreement
shall have the meanings indicated below.
"Business Day" shall mean any day other than (i) a Saturday or
Sunday; or (ii) a day on which banks in the State of New York are
required or permitted to be closed.
"Cash Substitution Percentage" shall mean, with respect to any
Cash Substitution being sought by any Stockholder, a percentage
determined by dividing the Shares to be Removed pursuant to such Cash
Substitution, by the number of Initial Deposited Shares in respect of
such Stockholder.
"Cash to be Removed" shall mean, with respect to each
Stockholder, the amount of cash it is seeking to obtain
17
possession of through a Stock Substitution pursuant to this
Section 4.
"Determined Cash Amount" shall mean an amount in U.S. dollars
determined, from time to time, with respect to any Stockholder seeking
to engage in a Cash Substitution, by multiplying the Total Cash Amount
in respect of such Stockholder, by the applicable Cash Substitution
Percentage.
"Determined Stock Amount" shall mean a certificate
representing a number of shares of IPL Common Stock determined, from
time to time, with respect to any Stockholder seeking to engage in a
Stock Substitution, by multiplying the Initial Deposited Shares in
respect of such Stockholder, by the applicable Stock Substitution
Percentage.
"Initial Deposited Shares" shall mean, with respect to each of
Siracusano, Ferolito and Buck, respectively, a number of shares equal
to the Siracusano Deposited Shares, the Xxxxxxxx Deposited Shares and
the Buck Deposited Shares (in each case including only those shares
deposited in escrow pursuant to this Agreement on the date hereof),
appropriately adjusted for any stock dividend, stock split, reverse
stock split, combination, recapitalization or other similar event.
"IPL Common Stock" shall mean the authorized common stock,
$.01 par value per share, of IPL.
"Market Value" shall mean the average of the closing bid and
asked prices of a share of IPL Common Stock on The Nasdaq Stock Market
during the five (5) trading days immediately prior to the date such
calculation is made, appropriately adjusted for stock dividends,
splits, combinations, subdivisions, recapitalizations and similar
events.
"Section 6 Date" in the event that the Escrow Agent and each
Stockholder have received written notice from IPL of an extension of
the applicable statute of limitations relating to any matter
contemplated in Sections 4.8, 4.9 or 4.14 of the Merger Agreement by
agreement of IPL and any Governmental Entity entered into prior to the
expiration of three (3) years from the date of the Closing, the date of
expiration of the last such extension.
"Shares to be Removed" shall mean, with respect to each
Stockholder, the number of Deposited Shares it is seeking to
18
obtain possession of through a Cash Substitution pursuant to
this Section 3.
"Stock Substitution Percentage" shall mean, with respect to
any Stock Substitution being sought by any Stockholder, a percentage
determined by dividing the Cash to be Removed pursuant to such Stock
Substitution, by the Total Cash Amount in respect of such Stockholder.
"Stockholder Percentage" shall mean: (i) with respect
to Xxxxx X. Xxxxxxxxxx, 46.062%; (ii) with respect to Xxxxxx
X. Xxxxxxxx, 46.02%; and (iii) with respect to Xxxxxx X.
Xxxx, 7.876%.
"Total Cash Amount" shall mean, with respect to: (i)
Siracusano, $2.3 million; (ii) Xxxxxxxx, $2.3 million, and
(iii) Buck, $400,000.
19
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first above written.
INTERNATIONAL POST LIMITED
/s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: President
STOCKHOLDERS:
/s/ Xxxxx X. Xxxxxxxxxx
Xxxxx X. Xxxxxxxxxx
/s/ Xxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxxx
/s/ Xxxxxx X. Xxxx
Xxxxxx X. Xxxx
IBJ XXXXXXXX BANK & TRUST
COMPANY
By: /s/ Xxxxxxx XxXxxxxxx
