Exhibit 2.6
ESCROW AGREEMENT
THIS ESCROW AGREEMENT, dated October 23, 2002, ("Escrow
Agreement"), is by and among SYSTEMS & COMPUTER TECHNOLOGY CORPORATION, a
corporation organized and existing under the laws of the State of Delaware
("SCT"), Xxxxx Xxxxxxxx, as representative of the former stockholders of Campus
Pipeline, Inc., a corporation organized and existing under the laws of the State
of Delaware ("CPI"), (the "Stockholder Representative") and X.X. Xxxxxx, Trust
Company, National Association, as Escrow Agent hereunder ("Escrow Agent").
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, SCT, CPI ACQUISITION COMPANY, INC., a corporation
organized and existing under the laws of the State of Delaware ("Acquisition
Sub"), and CPI have entered into an Agreement and Plan of Merger, dated
September 30, 2002 (the "Merger Agreement");
WHEREAS, pursuant to the Merger Agreement, Acquisition Sub has
been merged into CPI, with CPI surviving, and the former stockholders of CPI
have authorized the Stockholder Representative to act on their behalf in
connection with this Escrow Agreement and the Merger Agreement;
WHEREAS, this Escrow Agreement is the Escrow Agreement
referred to and contemplated by Section 2.2.3 of the Merger Agreement.
NOW, THEREFORE, in consideration of the foregoing premises,
the agreements herein contained, and other good and valuable consideration, the
receipt and legal sufficiency of which are hereby acknowledged, the parties
hereto, intending to be legally bound, hereby agree as follows:
1. Definitions. Capitalized terms used in this Escrow
Agreement but not defined herein shall have the meanings ascribed to such terms
in the Merger Agreement. The following terms shall have the following meanings
when used herein:
"Claim" shall mean a claim for indemnification by SCT pursuant
to Section 11 of the Merger Agreement.
"Claim Response" shall mean a written notification, signed by
the Stockholder Representative, which shall set forth whether or not Stockholder
Representative disputes any matter with respect to a Claim Notice or the Claim
described therein.
"Escrow Funds" shall mean the sum of $3,550,000 deposited with
Escrow Agent pursuant to this Escrow Agreement.
"Escrow Interest" is defined in Section 4.4
"Escrow Period" shall mean the period commencing on the date
hereof and ending on December 31, 2003.
"Estimated Claim Amount" shall mean the amount designated by
SCT, acting reasonably, necessary to satisfy any Claim for which a Claim Notice
has been delivered.
"Joint Written Direction" shall mean a written direction
executed by SCT and the Stockholder Representative and directing Escrow Agent to
disburse all or a portion of the Escrow Funds or to take or refrain from taking
an action pursuant to this Escrow Agreement.
2. Appointment of and Acceptance by Escrow Agent. SCT and the
Stockholder Representative hereby appoint Escrow Agent to serve as escrow agent
hereunder. Escrow Agent hereby accepts such appointment and, upon receipt by
wire transfer of the Escrow Funds in accordance with Section 3 below, agrees to
hold, invest and disburse the Escrow Funds and the Escrow Interest in accordance
with this Escrow Agreement.
3. Creation of Escrow Funds. On the date hereof, SCT will,
pursuant to the terms of the Merger Agreement, transfer the sum of $3,550,000,
which shall constitute the Escrow Funds. The Escrow Funds and the Escrow
Interest shall be held by the Escrow Agent as financial support for the
indemnification obligations of the Stockholders. SCT shall deliver the Escrow
Funds to the Escrow Agent by wire transfer of immediately available funds, to
the following account:
JPMorgan Bank
ABA 000000000
Acct No. 507831144
Acct. Name: Pittsburgh Wire Acct.
FFC: SCT&Campus
4. Disbursements of Escrow Funds and Escrow Interest.
4.1. Claim.
(a) SCT shall deliver to the Escrow Agent all
Liquidated Claim Notices and Claim Notices with respect to Unliquidated Claims,
at the same time or promptly after SCT delivers such Claim Notices to the
Stockholder Representative, such delivery to be in accordance with the notice
provisions of this Escrow Agreement. SCT shall also deliver to the Escrow Agent
and the Stockholder Representative an Estimated Claim Amount with respect to
each Claim Notice that SCT delivers to the Escrow Agent. Upon receipt of any
Claim Notice, Escrow Agent shall promptly make entries or notations in the
account records relating to the Escrow Funds, indicating that funds in the
amount of the Estimated Claim Amount are reserved to satisfy such Claim, and
identifying the date and number of such Claim Notice.
(b) Within thirty (30) days of receipt by the
Stockholder Representative of any Claim Notice, the Stockholder Representative
shall deliver a Claim Response to SCT and Escrow Agent, such delivery to be in
accordance with the notice provisions of this Escrow Agreement.
(c) If SCT and Stockholder Representative are in
dispute regarding the subject matter of a Claim and do not execute a Joint
Written Direction regarding the Claim Notice and Claim Response within ten (10)
days after the receipt by SCT of the Claim Response, the parties shall resolve
their dispute pursuant to Section 13.6.2 of the Merger Agreement.
(d) Upon resolution of a dispute regarding a Claim
pursuant to Section 13.6.2 of the Merger Agreement, the arbitrators shall
prepare a written report (the "Arbitrator Direction") setting forth their
conclusion and the amount, if any, that should be disbursed from the Escrow
Funds.
Escrow Agent shall not disburse the amount of the Estimated
Claim Amount unless it receives a Joint Written Direction or Arbitrator
Direction made with specific reference to the Claim that is the subject of such
Joint Written Direction or Arbitrator Direction.
4.2. Joint Written Direction or Arbitrator Direction.
Escrow Agent shall disburse Escrow Funds, at any time and from time to time, in
accordance with a Joint Written Direction or Arbitrator Direction.
4.3. Expiration of Escrow Period.
(a) Upon the expiration of the Escrow Period, Escrow
Agent shall: (a) retain a sufficient portion of the Escrow Funds and all of the
Escrow Interest to pay in full all Estimated Claim Amounts, if any, that have
not been resolved at such time; and (b) distribute to each stockholder his, her
or its Pro Rata Share of the funds not retained under this Section 4.3.
(b) Escrow Agent shall retain the amount of any
Estimated Claim Amounts, to be held and invested in accordance with the
provisions of this Escrow Agreement, until receipt by Escrow Agent of a Joint
Written Direction or Directions or Arbitrator Direction or Directions with
respect to such Estimated Claim Amounts.
4.4. Escrow Interest. For federal income tax purposes (and,
if applicable, comparable state and local tax purposes), the Escrow Funds shall
be treated as owned by SCT and SCT shall report all interest and other income
earned on the Escrow Funds ("Escrow Interest") as income of SCT. To the extent
that the Escrow Interest is distributed to the Stockholders, the Escrow Interest
shall be treated as an amount paid by SCT to the Stockholders of CPI as interest
in respect of the obligation of SCT to pay the Escrow Amount to the Stockholders
as Merger Consideration in the future; provided, however, that the Escrow
Interest shall not be distributed to the Stockholders currently but shall
instead be added to, and become a part of, the Escrow Funds as additional
financial support for the indemnification obligations of the Stockholders.
Escrow Interest shall be distributed to the Stockholders and SCT upon the last
to occur of (i) the expiration of the Escrow Period, or (ii) the date on which
any amounts held by the Escrow Agent pursuant to Section 4.3(b) are distributed.
Escrow Interest shall be distributed to the Stockholders and SCT in the same
proportion as the Escrow Funds are distributed.
4.5. Stockholder Representative Payment. Each of SCT and
the Stockholder Representative agree to execute a Joint Written Direction in
order to timely disburse the Stockholder Representative Payment in accordance
with Section 13.12 of the Merger Agreement.
5. Disbursement Into Court. If, at any time, there shall exist
any dispute between SCT and the Stockholder Representative with respect to the
holding or disposition of any portion of the Escrow Funds or any other
obligations of Escrow Agent hereunder, or if at any time Escrow Agent is unable
to determine, to Escrow Agent's sole satisfaction, the proper disposition of any
portion of the Escrow Funds or Escrow Agent's proper actions with respect to its
obligations hereunder, or if SCT and the Stockholder Representative have not
within 90 days of the furnishing by Escrow Agent of a notice of resignation
pursuant to Section 7 hereof, appointed a successor Escrow Agent to act
hereunder, then Escrow Agent may, in its sole discretion, take either or both of
the following actions:
(a) suspend the performance of any of its obligations
(including without limitation any disbursement obligations) under this Escrow
Agreement until such dispute or uncertainty shall be resolved to the sole
satisfaction of Escrow Agent or until a successor Escrow Agent shall have been
appointed (as the case may be); provided, however, that Escrow Agent shall
continue to invest the Escrow Funds in accordance with Section 6 hereof; or
(b) petition (by means of an interpleader action or
any other appropriate method) any court of competent jurisdiction in
Philadelphia, PA, for instructions with respect to such dispute or uncertainty,
and to the extent required by law, pay into such court for holding and
disposition in accordance with the instructions of such court, all funds held by
it in the Escrow Funds, after deduction and payment to Escrow Agent of all fees
and expenses (including court costs and reasonable attorneys' fees) payable
Escrow Agent in connection with the performance of its duties hereunder.
6. Investment of Funds. Escrow Agent shall invest and reinvest
the funds held in the Escrow Funds as the Stockholder Representative shall
direct (subject to applicable minimum investments) by the furnishing of a Joint
Written Direction; provided, however, that no investment or reinvestment may be
made except in the following:
(a) direct obligations of the United States of America
or obligations the principal of and the interest on which are unconditionally
guaranteed by the United States of America;
(b) certificates of deposit issued by any bank, bank
and trust company, or national banking association (including Escrow Agent and
its affiliates), which certificates of deposit are insured by the Federal
Deposit Insurance Corporation or a similar governmental agency;
(c) repurchase agreements with any bank, trust
company, or national banking association (including Escrow Agent and its
affiliates); or
(d) any money market fund substantially all of which
is invested in the foregoing investment categories, including any money market
fund managed by Escrow Agent and any of its affiliates.
If Escrow Agent has not received a Joint Written Direction at
any time that an investment decision must be made, Escrow Agent shall invest the
Escrow Funds, or such portion thereof as to which no Joint Written Direction has
been received, in investments described in clause (d) above. Each of the
foregoing investments shall be made in the name of Escrow Agent. No investment
shall be made in any instrument or security that has a maturity of greater than
six months. Notwithstanding anything to the contrary contained herein, Escrow
Agent may, without notice to SCT or the Stockholder Representative, sell or
liquidate any of the foregoing investments at any time if the proceeds thereof
are required for any release of funds permitted or required hereunder, and
Escrow Agent shall not be liable or responsible for any loss, cost or penalty
resulting from any such sale or liquidation. With respect to any funds received
by Escrow Agent for deposit into the Escrow Funds or any Joint Written Direction
received by Escrow Agent with respect to investment of any funds in the Escrow
Funds after 10:00 A.M. Philadelphia time, Escrow Agent shall not be required to
invest such funds or to effect such investment instruction until the next day
upon which banks in Philadelphia, Pennsylvania are open for business. All
investment orders involving U.S. Treasury obligations, and other direct
investments will be executed through XX Xxxxxx Xxxxxxx Asset Management
(JPMFAM), in the investment management division of JPMorgan Chase. Subject to
principles of best execution, transactions will be effected on behalf of the
Escrow Fund through broker-dealers selected by JPMFAM. In this regard, JPMFAM
will seek to attain the best overall result for the Escrow Fund, taking into
consideration quality of service and reliability. An agency fee (the amount of
which will be delivered to the Stockholder Representative prior to accepting the
order) will be assessed in connection with each transaction. Periodic statements
will be provided to Purchaser and Seller reflecting transactions executed on
behalf of the Escrow Fund. SCT and the Stockholder Representative, upon written
request, will receive a statement of transaction details upon completion of any
securities transaction in the Escrow Fund without any additional cost.
7. Resignation and Removal of Escrow Agent. Escrow Agent may
resign from the performance of its duties hereunder at any time by giving 30
days' prior written notice to SCT and the Stockholder Representative in writing
or may be removed, with or without cause, by SCT and the Stockholder
Representative, acting jointly by furnishing a Joint Written Direction to Escrow
Agent, at any time by the giving of 30 days' prior written notice to Escrow
Agent. Such resignation or removal shall take effect upon the appointment of a
successor Escrow Agent as provided below. Upon any such notice of resignation or
removal, SCT and the Stockholder Representative jointly shall appoint a
successor Escrow Agent hereunder, which shall be a commercial bank, trust
company or other financial institution with a combined capital and surplus in
excess of $10,000,000. Upon the acceptance in writing of any appointment as
Escrow Agent hereunder by a successor Escrow Agent, such successor Escrow Agent
shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Escrow Agent, and the retiring Escrow
Agent shall be discharged from its duties and obligations under this Escrow
Agreement, but shall not be discharged from any liability for actions taken as
Escrow Agent hereunder prior to such succession. After any retiring Escrow
Agent's resignation or removal, the provisions of this Escrow Agreement shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Escrow Agent under this Escrow Agreement. The retiring Escrow Agent shall
transmit all records pertaining to the Escrow Funds and shall pay all funds held
by it in the Escrow Funds to the successor Escrow Agent, after making copies of
such records as the retiring Escrow Agent deems advisable and after deduction
and payment of the retiring Escrow Agent of all fees and expenses (including
court costs and reasonable attorneys' fees) payable to the Escrow Agent in
connection with the performance of its duties hereunder.
8. Liability of Escrow Agent.
(a) Escrow Agent shall not be liable for any action
taken or omitted by it in good faith, except to the extent that a court of
competent jurisdiction determines that the Escrow Agent's gross negligence or
willful misconduct was the primary cause of any loss. Escrow Agent's sole
responsibility shall be for the safekeeping, investment, and disbursement of the
Escrow Funds in accordance with the terms of this Escrow Agreement. Escrow Agent
shall have no implied duties or obligations and shall not be charged with
knowledge or notice of any fact or circumstance not specifically set forth
herein. Escrow Agent may rely upon any instrument, not only as to its due
execution, validity and effectiveness, but also as to the truth and accuracy of
any information contained therein, which Escrow Agent shall in good faith
believe to be genuine, to have been signed or presented by the person or parties
purporting to sign the same and to conform to the provisions of this Escrow
Agreement. Escrow Agent shall not be obligated to take any legal action or
commence any proceeding in connection with the Escrow Funds, any account in
which Escrow Funds are deposited, this Escrow Agreement or the Merger Agreement,
or to appear in, prosecute or defend any such legal action or proceeding. Escrow
Agent may consult legal counsel selected by it in the event of any dispute or
question as to the construction of any of the provisions hereof or of any other
agreement or of its duties hereunder, or relating to any dispute involving any
party hereto, and shall incur no liability and shall be fully indemnified from
any liability whatsoever in acting in accordance with the opinion or instruction
of such counsel.
(b) The Escrow Agent is authorized, in its sole
discretion, to comply with orders issued or process entered by any court with
respect to the Escrow Funds, without determination by the Escrow Agent of such
court's jurisdiction in the matter. If any portion of the Escrow Funds is at any
time attached, garnished or levied upon under any court order, or in case the
payment, assignment, transfer, conveyance or delivery of any such property shall
be stayed or enjoined by any court order, or in case any order, judgment or
decree shall be made or entered by any court affecting such property or any part
thereof, then and in any such event, the Escrow Agent is authorized, in its sole
discretion, to rely upon and comply with any such order, writ, judgment or
decree which it is advised by legal counsel selected by it is binding upon it
without the need for appeal or other action; and if the Escrow Agent complies
with any such order, writ, judgment or decree, it shall not be liable to any of
the parties hereto or to any other person or entity by reason of such compliance
even though such order, writ, judgment or decree may be subsequently reversed,
modified, annulled, set aside or vacated.
9. Indemnification of Escrow Agent. From and at all times
after the date of this Escrow Agreement, SCT and the Stockholder Representative,
on behalf of the Stockholders, shall, severally, but not jointly, to the fullest
extent permitted by law and to the extent provided herein, indemnify and hold
harmless Escrow Agent and each director, officer, employee, attorney, agent and
affiliate of Escrow Agent (collectively, the "Indemnified Parties") against any
and all actions, claims, losses, damages, liabilities, costs and expenses of any
kind or nature whatsoever (including without limitation reasonable attorneys'
fees, costs and expenses) incurred by or asserted against any of the Indemnified
Parties from and after the date hereof, whether direct, indirect or
consequential, as a result of or arising from or in any way relating to any
claim, demand, suit, action or proceeding (including any inquiry or
investigation) by any person, including without limitation SCT and the
Stockholder Representative, whether threatened or initiated, asserting a claim
for any legal or equitable remedy against any person under any statute or
regulation, including, but not limited to, any federal or state securities laws,
or under any common law or equitable cause or otherwise, arising from or in
connection with the negotiation, preparation, execution, performance or failure
of performance of this Escrow Agreement or any transactions contemplated herein,
whether or not any such Indemnified Party is a party to any such action,
proceeding, suit or the target of any such inquiry or investigation; provided,
however, that no Indemnified Party shall have the right to be indemnified
hereunder for any liability finally determined by a court of competent
jurisdiction, subject to no further appeal, to have resulted from the actions or
omissions of such Indemnified Party. If any such action or claim shall be
brought or asserted against any Indemnified Party, such Indemnified Party shall
promptly notify SCT and the Stockholder Representative in writing, and SCT and
the Stockholder Representative shall assume the defense thereof, including the
employment of counsel and the payment of all expenses. Such Indemnified Party
shall have the right to employ separate counsel (who may be selected by such
Indemnified Party in its sole discretion) in any such action and to participate
in the defense thereof, and the fees and expenses of such counsel shall be paid
by such Indemnified Party. All of the foregoing losses, damages, costs and
expenses of the Indemnified Parties shall be payable by SCT and the Stockholder
Representative, severally, but not jointly, to the extent of the Escrow Funds,
upon demand by such Indemnified Party. The obligations of SCT and the
Stockholder Representative under this Section 9 shall survive any termination of
this Escrow Agreement and the resignation or removal of Escrow Agent shall be
independent of any obligation of the Escrow Agent. SCT and the Stockholder
Representative, on behalf of the Stockholders, shall each be responsible for one
half of the amount of all of the foregoing losses, damages, costs and expenses
of the Indemnified Parties; provided, however, that in no event shall the
Stockholder Representative, on behalf of the Stockholders, be responsible for
any of the foregoing losses, damages, costs and expenses of the Indemnified
Parties to the extent that the amount of such obligation exceeds the amount of
the Escrow Funds plus the Escrow Interest minus the Stockholder Representative
Payment; provided, further, that the sole source of funds to be paid to the
Escrow Agent by the Stockholder Representative on behalf of the Stockholders
pursuant to this section shall be the Escrow Funds. Additionally, Stockholder
Representative shall have no personal liability for indemnification of the
Escrow Agent pursuant to this section. 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. The parties hereto acknowledge that the foregoing indemnities shall
survive the resignation or removal of the Escrow Agent or the termination of
this agreement.
The parties agree that neither the payment by SCT and the
Stockholder Representative of any claim by Escrow Agent for indemnification
hereunder nor the disbursement of any amounts to Escrow Agent from the Escrow
Funds in respect of a claim by Escrow Agent for indemnification shall impair,
limit, modify, or affect, as between SCT and the Stockholder Representative, the
respective rights and obligations of SCT, on the one hand, and the Stockholder
Representative, on the other hand, under the Merger Agreement.
10. Fees and Expenses of Escrow Agent. SCT shall compensate
Escrow Agent for its services hereunder in accordance with Schedule A attached
hereto and, in addition, shall reimburse Escrow Agent for all of its reasonable
out-of-pocket expenses, including attorneys' fees, travel expenses, telephone
and facsimile transmission costs, postage (including express mail and overnight
delivery charges), copying charges and the like. All of the compensation and
reimbursement obligations set forth in this Section 10 shall be payable by SCT
upon demand by Escrow Agent. The obligations of SCT under this Section 10 shall
survive any termination of this Escrow Agreement and the resignation or removal
of Escrow Agent.
11. Consent to Jurisdiction and Venue. In the event that any
party hereto commences a lawsuit or other proceeding relating to or arising from
this Agreement, the parties hereto agree that the United States District Court
for the Eastern District of Pennsylvania shall have the sole and exclusive
jurisdiction over any such proceeding. If all such courts lack federal subject
matter jurisdiction, the parties agree that the Superior Court Division of the
General Court of the Commonwealth of Pennsylvania shall have sole and exclusive
jurisdiction. Any of these courts shall be proper venue for any such lawsuit or
judicial proceeding and the parties hereto waive any objection to such venue.
The parties hereto consent to and agree to submit to the jurisdiction of any of
the courts specified herein and agree to accept service or process to vest
personal jurisdiction over them in any of these courts.
12. Notices. All notices that are required or permitted
hereunder shall be in writing and shall be sufficient if personally delivered or
sent by mail, facsimile message or by a nationally recognized overnight delivery
courier. Any notices shall be deemed given upon the earlier of the date when
received at, or the third day after the date when sent by registered or
certified mail or the day after the date when sent by overnight delivery courier
to, the address or fax number set forth below, unless such address or fax number
is changed by notice to the other party hereto:
If to the Stockholder Representative: Xxxxx Xxxxxxxx
0000 X Xxxxxx Xxx
Xxxx Xxxx Xxxx, XX 00000
CELL: (000) 000-0000
Copy to: Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
FAX: (000) 000-0000
Attention: Xxxx Xxxxxx, Esquire
If to SCT: SCT
0 Xxxxxxx Xxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
Attention: Chief Financial Officer
FAX: (000) 000-0000
Copy to: SCT
0 Xxxxxxx Xxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
Attention: General Counsel
FAX: (000) 000-0000
If to the Escrow Agent at: X.X. Xxxxxx, Trust Company,
National Association
000 Xxxxx Xxxxxx, Xxxxx 0000
One Oxford Centre
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Jo Xxxx Xxxxxx
FAX: (000) 000-0000
13. Amendment, Parties in Interest, Assignment, Etc. This
Agreement may be amended, modified or supplemented only by a written instrument
duly executed by each of the parties hereto. If any provision of this Agreement
shall for any reason be held to be invalid, illegal, or unenforceable in any
respect, such invalidity, illegality, or unenforceability shall not affect any
other provision hereof, and this Agreement shall be construed as if such
invalid, illegal or unenforceable provision had never been contained herein.
This Agreement shall be binding upon and inure to the benefit of and be
enforceable by the respective heirs, legal representatives, successors and
permitted assigns of the parties hereto. No party hereto shall assign this
Agreement or any right, benefit or obligation hereunder.
14. Governing Law. This Agreement shall be construed and
interpreted in accordance with the laws of the State of Delaware without regard
to its provisions concerning conflict of laws of the State of Delaware or any
other jurisdiction.
15. Counterparts. This Agreement may be executed in two or
more counterparts and by facsimile, each of which shall be binding as of the
date first written above, and all of which shall constitute one and the same
instrument. Each such copy shall be deemed an original, and it shall not be
necessary in making proof of this Agreement to produce or account for more than
one such counterpart.
16. Termination. Upon the first to occur of the disbursement
of all amounts in the Escrow Funds pursuant to Joint Written Directions or
Arbitrator Directions or the disbursement of all amounts in the Escrow Funds
into court pursuant to Section 5 hereof, this Escrow Agreement shall terminate
and Escrow Agent shall have no further obligation or liability whatsoever with
respect to this Escrow Agreement or the Escrow Funds.
17. Security Procedures. In the event funds transfer
instructions are given (other than in writing at the time of execution of this
Escrow Agreement, as indicated in Schedule 1 ("Schedule 1") attached hereto),
whether in writing, by telecopier or otherwise, the Escrow Agent is authorized
to seek confirmation of such instructions by telephone call-back to the person
or persons designated on Schedule 1 hereto, and the Escrow Agent may rely upon
the confirmation of anyone purporting to be the person or persons so designated.
The persons and telephone numbers for call-backs may be changed only in a
writing actually received and acknowledged by the Escrow Agent. If the Escrow
Agent is unable to contact any of the authorized representatives of SCT
identified on Schedule 1, the Escrow Agent is hereby authorized to seek
confirmation of such instructions by telephone call-back to any one or more of
SCT's executive officers, ("Executive Officers"), which shall include the titles
of General Counsel and Chief Financial Officer, as the Escrow Agent may select.
Such "Executive Officer" shall deliver to the Escrow Agent a fully executed
Incumbency Certificate, and the Escrow Agent may rely upon the confirmation of
anyone purporting to be any such officer. The Escrow Agent and the beneficiary's
bank in any funds transfer may rely solely upon any account numbers or similar
identifying numbers provided by the SCT and the Stockholder Representative to
identify (i) the beneficiary, (ii) the beneficiary's bank, or (iii) an
intermediary bank. The Escrow Agent may apply any of the escrowed funds for any
payment order it executes using any such identifying number, even when its use
may result in a person other than the beneficiary being paid, or the transfer of
funds to a bank other than the beneficiary's bank or an intermediary bank
designated. The parties to this Escrow Agreement acknowledge that these security
procedures are commercially reasonable.
[THE REST OF THE PAGE LEFT INTENTIONALLY BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this Escrow
Agreement to be executed under seal as of the date first above written.
SYSTEMS & COMPUTER TECHNOLOGY CORPORATION
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
ESCROW AGENT:
X.X. Xxxxxx, Trust Company, National Association
By: /s/ XxXxxx Xxxxxx
Name: XxXxxx Xxxxxx
Title: Assistant Vice President
STOCKHOLDER REPRESENTATIVE:
By: /s/ Xxxxx Xxxxxxxx
