EXHIBIT 10.5
AMENDED AND RESTATED ESCROW AGREEMENT
December 20, 2005
This Amended and Restated Escrow Agreement (the "Agreement") is among
Xxxxxxxx Xxxxxxx LLP, as escrow agent (the "Escrow Agent"), L Capital Management
SAS, a societe par actions simplifiee ("L Capital") and each of the persons
(other than the Escrow Agent and L Capital) executing a signature page to this
Agreement (the "Existing Stockholders").
On November 25, 2003, Advanced Aesthetics, Inc., a Delaware corporation
("AAI") and the Existing Stockholders entered into a Share Transfer Agreement
(the "Original Share Transfer Agreement"). Pursuant thereto, the Existing
Stockholders delivered to Jenkens & Xxxxxxxxx Xxxxxx Xxxxxx LLP, the former
escrow agent (the "Former Escrow Agent"), shares of Common Stock of AAI in
accordance with the Escrow Agreement dated November 25, 2003 by and among AAI,
the Former Escrow Agent and the Existing Stockholders (the "Original Escrow
Agreement").
In connection with the consummation of the Share Exchange Agreement
among AAI, XxxxXxx.xxx Inc. (the "Company") and the securityholders of AAI who
are signatories thereto (the "Share Exchange Agreement"), the parties hereto are
amending and restating the Original Share Transfer Agreement (the "Amended and
Restated Share Transfer Agreement") to make it applicable to the new shares of
Common Stock of the Company that are being issued in exchange for all of the
shares of AAI Common Stock.
The Amended and Restated Share Transfer Agreement requires the Existing
Stockholders to deliver the Escrow Shares (as hereunder defined) to the Escrow
Agent pursuant to the terms of this Agreement. Accordingly, the parties hereto
are amending and restating the Original Escrow Agreement to make it applicable
to the terms and conditions of the Share Exchange Agreement and the Amended and
Restated Share Transfer Agreement.
The parties agree as follows:
1. Appointment of Escrow Agent. The Existing Stockholders and L Capital
hereby appoint the Escrow Agent to act as escrow agent on the terms and
conditions set forth herein and the Escrow Agent hereby accepts such appointment
on such terms and conditions.
2. Deposit of the Escrow Shares. Pursuant to the Original Escrow
Agreement, each of the Existing Stockholders had previously delivered to the
Former Escrow Agent the amount of shares of AAI stock set forth opposite that
Existing Stockholder's name on Schedule A attached hereto (the "Original Escrow
Shares"). Pursuant to the Share Exchange Agreement, the Original Escrow Shares
are being exchanged for shares of Common Stock of the Company. Concurrently
herewith, each of the Existing Stockholders is delivering to the Escrow Agent a
certificate or certificates representing the number of Existing Stockholder
Common Shares (as such term is defined in the Amended and Restated Share
Transfer Agreement) set forth opposite that Existing Stockholder's name on
Schedule B attached hereto (the "Escrow Shares"), together with duly executed,
undated, blank stock transfer powers with respect thereto,
and the Escrow Agent hereby acknowledges receipt of such certificates. The
Escrow Agent shall hold the Escrow Shares in accordance with the terms of this
Agreement and shall not release the Escrow Shares except in accordance with this
Agreement. The Existing Stockholders shall have the right to vote or give
consents with respect to the Escrow Shares on all matters at all times prior to
delivery of any such Escrow Shares to FCPR L Capital, a fonds commun de
placements a risque, represented by L Capital pursuant to this Agreement.
3. Investment of Funds. The Escrow Agent shall deposit any funds paid
as dividends or otherwise in respect of the Escrow Shares in an interest bearing
money market account in a New York City commercial bank or shall otherwise
invest such funds as jointly directed by L Capital and Existing Stockholders
owning more than two-thirds of the Escrow Shares.
4. Disposition of Escrow Shares.
4.1 Disposition of Escrow Shares in Accordance With a Demand.
(a) If, at any time, the Escrow Agent shall receive a written statement
(an "L Capital Demand") purported to be signed by L Capital and stating:
(i) that, in accordance with the Amended and Restated Share
Transfer Agreement, L Capital is entitled to a number/amount of Escrow
Shares (and/or any amount of funds held in connection with the Escrow
Shares);
(ii) the aggregate number/amount of Escrow Shares to which L
Capital is entitled; and
(iii) a copy of the L Capital Demand has also been given to
each of the Existing Stockholders pursuant to this Agreement,
then the Escrow Agent shall, unless it receives within 15 Business Days
following the date of its receipt of the L Capital Demand (the "Existing
Stockholder Dispute Period") a written notice signed by Existing Stockholders
owning more than two-thirds of the Escrow Shares objecting to the payment of the
Escrow Shares to L Capital (an "Existing Stockholder Objection Notice"),
distribute the Escrow Shares in accordance with the L Capital Demand. However,
if the Escrow Agent receives an Existing Stockholder Objection Notice prior to
the expiration of the Existing Stockholder Dispute Period, then the provisions
of Sections 4.2 and 4.3 shall apply with respect to the L Capital Demand.
(b) If, at any time, Escrow Agent shall receive a written statement (an
"Existing Stockholder Demand") purported to be signed by Existing Stockholders
owning more than two-thirds of the Escrow Shares and stating:
(i) that, in accordance with the Amended and Restated Share
Transfer Agreement, the Existing Stockholders are entitled to a
number/amount of Escrow Shares (and/or any amount of funds held in
connection with the Escrow Shares);
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(ii) the aggregate number/amount of Escrow Shares to which the
Existing Stockholders are entitled; and
(iii) a copy of the Existing Stockholder Demand has also been
given to L Capital pursuant to this Agreement,
then the Escrow Agent shall, unless it receives within 15 Business Days
following the date of its receipt of the Existing Stockholder Demand (the "L
Capital Dispute Period") a written notice signed by L Capital objecting to the
payment of the Escrow Shares to the Existing Stockholders (an "L Capital
Objection Notice"), distribute the Escrow Shares in accordance with the Existing
Stockholder Demand. However, if the Escrow Agent receives an L Capital Objection
Notice prior to the expiration of the L Capital Dispute Period, then the
provisions of Section 4.2 and 4.3 shall apply with respect to the Existing
Stockholder Demand.
4.2 Disposition of the Escrow Shares by Agreement of the Parties. The
Escrow Agent may dispose of all or a portion of any of the Escrow Shares in
accordance with a written instruction signed by L Capital and Existing
Stockholders owning more than two-thirds of the Escrow Shares, whether such
disposition is pursuant to the terms of the Amended and Restated Share Transfer
Agreement or otherwise against receipt of documentation reasonably required by
the Escrow Agent in connection therewith.
4.3 Conflicting Demands. If conflicting or adverse claims or demands
are made or notices served upon the Escrow Agent with respect to the escrow
provided for herein, then the Escrow Agent may refrain from complying with any
such claim or demand so long as such disagreement shall continue. The parties
agree to negotiate any such disagreement in good faith and as expeditiously as
possible. In so doing, the Escrow Agent shall not be or become liable for
damages, losses, costs, expenses or interest to any person for its failure to
comply with such conflicting or adverse demands. The Escrow Agent may continue
to so refrain and refuse to act until it shall have received certification
satisfactory to it that such conflicting or adverse claims or demands shall have
been finally determined by a court of competent jurisdiction that is not subject
to further appeal or other appellate review, or shall have been settled by
agreement of the parties to such controversy, in which case the Escrow Agent
shall be notified thereof in a written notice signed by L Capital, on the one
hand, and Existing Stockholders owning more than two-thirds of the Escrow
Shares, on the other hand. The Escrow Agent may seek the advice of legal counsel
in any dispute or question as to the construction of any of the provisions of
this Agreement or its duties hereunder, and it shall incur no liability and
shall be fully protected in respect of any action taken, omitted or suffered by
it in good faith in accordance with the opinion of such counsel. The Escrow
Agent may also elect to commence an interpleader or other action for declaratory
judgment for the purpose of having the respective rights of the claimants
adjudicated, and may deposit with the court all property held pursuant to this
Agreement; and if it so commences and deposits, the Escrow Agent shall be
relieved and discharged from any further duties and obligations under this
Agreement.
5. Consent to Jurisdiction, Etc. L Capital and each Existing
Stockholder hereby consents to the exclusive personal jurisdiction over them by
the Supreme Court of the
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state of New York, County of New York, and the United States District Court for
the Southern District of New York and acknowledge that either of such courts is
the proper and exclusive venue for any dispute with the Escrow Agent. L Capital
and the Existing Stockholders hereby waive personal service of any summons,
complaint or other process and agree that such legal process may be delivered by
any of the means permitted for notices under Section 12.1. In any action or
proceeding involving the Escrow Agent, L Capital and each Existing Stockholder
waive trial by jury.
6. Expenses of the Escrow Agent. L Capital, on the one hand, and the
Existing Stockholders, on the other hand, shall each pay one-half of any and all
reasonable costs and expenses incurred by the Escrow Agent in connection with
the performances of its services hereunder, including, without limitation, all
waivers, releases, discharges, satisfactions, modifications and amendments of
this Agreement, the administration and investment of the Escrow Shares and the
enforcement of this Agreement, including, without limitation, the reasonable
disbursements, expenses and fees of the Escrow Agent (based upon the rates of
its attorneys) and those attorneys that may be retained by the Escrow Agent;
provided, however that: (x) if the Escrow Agent receives an Existing Stockholder
Objection Notice in response to an L Capital Demand and the Escrow Shares are
ultimately distributed in accordance with an L Capital Demand, then the Existing
Stockholders shall pay all of the reasonable costs and expenses incurred by the
Escrow Agent in connection with such L Capital Demand and Existing Stockholder
Objection Notice (and L Capital shall pay such costs and expenses if the Escrow
Shares are not ultimately distributed in accordance with such L Capital Demand);
and (y) if the Escrow Agent receives an L Capital Objection Notice in response
to an Existing Stockholder Demand and the Escrow Shares are ultimately
distributed in accordance with the Existing Stockholder Demand, then L Capital
shall pay all of the reasonable costs and expenses incurred by the Escrow Agent
in connection with such Existing Stockholder Demand and L Capital Objection
Notice (and the Existing Stockholders shall pay such costs and expenses if the
Escrow Shares are not ultimately distributed in accordance with such Existing
Stockholder Demand).
7. Reliance on Documents and Experts. The Escrow Agent shall be
entitled to rely upon any notice, consent, certificate, affidavit, statement,
paper, document, writing or other communication (which to the extent permitted
hereunder may be by telegram, cable, telex, telecopier, or telephone) reasonably
believed by it to be genuine and to have been signed, sent or made by the proper
person or persons, and upon opinions and advice of legal counsel (including
itself or counsel for any party hereto), independent public accountants and
other experts selected by the Escrow Agent.
8. Status of the Escrow Agent, Etc. The Escrow Agent is acting under
this Agreement as a stakeholder only and shall be considered an independent
contractor with respect to L Capital and the Existing Stockholders hereunder. No
term or provision of this Agreement is intended to create, nor shall any such
term or provision be deemed to have created, any principal-agent, trust, joint
venture, partnership, debtor-creditor or attorney-client relationship between or
among the Escrow Agent and L Capital, on the one hand, or the Existing
Stockholders, on the other hand. This Agreement shall not be deemed to prohibit
or in any way restrict the Escrow Agent's representation (in its capacity as
legal counsel) of L Capital or any Existing Stockholder
4
or the Company, who may be advised and/or represented by the Escrow Agent on any
and all matters pertaining to this Agreement, the Amended and Restated Share
Transfer Agreement and the Escrow Shares and otherwise. The Escrow Agent's
duties and obligations hereunder are limited to those expressly set forth in
this Agreement. The Escrow Agent may exercise or otherwise enforce any of its
rights, powers, privileges, remedies and interests under this Agreement and
applicable law or perform any of its duties under this Agreement by or through
its partners, employees, attorneys, agents or designees. To the extent that L
Capital and certain Existing Stockholders are and have been represented by the
Escrow Agent in connection with the transactions contemplated by the Amended and
Restated Share Transfer Agreement, L Capital and each Stockholder hereby waives
any conflict of interest that may exist or occur as a result of such
representation and consents to their continued representation in connection with
any action, suit or other proceeding relating to or arising out of this
Agreement or the transactions contemplated by the Amended and Restated Share
Transfer Agreement.
9. Exculpation. The Escrow Agent and its designees, and their
respective directors, officers, partners, employees, attorneys and agents, shall
not incur any liability whatsoever for the investment or disposition of Escrow
Shares or the taking of any other action or omission to act with respect to this
Agreement, for compliance with any applicable law or regulation or any
attachment, order or other directive of any court or other authority
(irrespective of any conflicting term or provision of the Amended and Restated
Share Transfer Agreement), or for any mistake or error in judgment of the Escrow
Agent or any act or omission of any other person engaged by the Escrow Agent in
connection with this Agreement (other than for the Escrow Agent's or such other
person's mistakes, errors in judgment, acts or omissions which have been
determined in a final and non-applicable ruling by a court of competent
jurisdiction to constitute gross negligence or willful misconduct).
10. Indemnification. The Escrow Agent and its designees, and their
respective directors, officers, partners, employees, attorneys and agents, shall
be indemnified, reimbursed, held harmless and, at the request of the Escrow
Agent, defended, by the Company and the Existing Stockholders from and against
any and all claims, liabilities, losses and expenses (including, without
limitation, the disbursements, expenses and reasonable fees of their respective
attorneys) that may be imposed upon, incurred by, or asserted against any of
them, arising out of or related directly or indirectly to this Agreement or the
Escrow Shares, except such as are occasioned by the indemnified person's own
acts and omissions amounting to gross negligence or willful misconduct.
11. Resignation of Escrow Agent; Appointment of Successor Escrow Agent.
The Escrow Agent may, at any time, at its option, elect to resign its duties as
Escrow Agent under this Agreement by providing written notice thereof to L
Capital and the Existing Stockholders. In such event, the Escrow Agent shall
transfer the Escrow Shares to a successor independent escrow agent, which must
be a bank, to be appointed by (a) L Capital and the holders of a majority of the
Escrow Shares within 30 days following the receipt of notice of resignation from
the Escrow Agent, or (b) the Escrow Agent, if L Capital and the holders of a
majority of the Escrow Shares shall have not agreed on a successor escrow agent
within the aforesaid 30 day period, as designated by the Escrow Agent and in
each case upon such
5
appointment and delivery of the Escrow Shares to the successor Escrow Agent, the
Escrow Agent shall be released of and from all liability under this Agreement;
provided, however, that the obligations of L Capital and the Existing
Stockholders to pay expenses and to reimburse, exculpate, indemnify, hold
harmless and/or defend the Escrow Agent pursuant to this Agreement shall
continue in full force and effect with respect to any Escrow Agent resigning
pursuant to this Section 11.
12. Miscellaneous.
12.1 Notices, Etc. All notices, consents, demands, instructions,
requests and other communications required or permitted hereunder must be in
writing and shall be deemed to have been duly given only if delivered
personally, by facsimile transmission, by first-class mail (postage prepaid,
return receipt requested), or by delivery by a recognized international courier
service (all costs prepaid) to the parties at the following addresses or
facsimile numbers:
If to the Escrow Agent, to:
Xxxxxxxx Xxxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxx
Telecopier No.: (000) 000-0000
If to L Capital to:
L Capital Management
00, xxxxxx Xxxxxxxxx
00000 Xxxxx
Xxxxxx
Attention: Xxxxxxxx Xxxxxxxx
Telecopier No.: x00-0-00-00-00-00
and a copy to:
Xxxxx Xxxx & Xxxxxxxx
00, xxxxxx Xxxxxxxx
00000 Xxxxx
Xxxxxx
Attention: Xxxxxxxx X. Xxxxxx
Telecopier No.: x00-00-0000-0000
6
If to an Existing Stockholder, to the address or telecopier
number set forth on a signature page hereto with a copy to:
Xxxxxxxx Xxxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Telecopier No.: (000) 000-0000
All such notices, requests and other communications will be deemed
given upon receipt thereof. Any party from time to time may change its address,
facsimile number or other information for the purpose of notices to that party
by giving like notice specifying such change to the other party hereto.
12.2 Further Assurances. L Capital and the Existing Stockholders agree
to take or cause to be taken all such corporate and other action as may be
necessary to effect the intent and purposes of this Agreement.
12.3 No Waiver. No failure or delay by any party in exercising any
right, power or privilege hereunder shall operate as a waiver thereof nor shall
any single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies herein provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
12.4 Entire Agreement. This Agreement supersedes all prior and/or
contemporaneous negotiations, understandings, discussions and agreements
(written or oral) between the parties with respect to the subject matter hereof
(all of which are merged herein), including, but not limited to, the Original
Escrow Agreement, and contains the sole and entire agreement among the parties
hereto with respect to the subject matter hereof.
12.5 Governing Law. This Agreement shall be construed, interpreted and
enforced in accordance with the laws of the state of New York without regard to
principles of conflicts of laws.
12.6 Binding Effect; Assignability. This Agreement shall be binding
upon and, except as otherwise provided herein, shall inure to the benefit of the
respective parties and their permitted successors and assigns. Except as and to
the extent expressly provided herein, the rights of the parties hereunder may
not be assigned without the prior written consent of the others.
12.7 Third Party Beneficiaries. Nothing contained in this Agreement,
whether express or implied, is intended, or shall be deemed, to create or confer
any right, interest or remedy for the benefit of any Person not a party hereto.
12.8 Severability. If any provision of this Agreement is found to be
void or unenforceable by a court of competent jurisdiction the remaining
provisions of this Agreement
7
shall nevertheless be binding upon the parties with the same force and effect as
though the unenforceable part had been severed and deleted.
12.9 Amendment and Waiver. No term or provision of this Agreement may
be amended, waived, altered, modified, rescinded or terminated except by a
written instrument signed by L Capital and the Existing Stockholders who own
more than two-thirds of the Escrow Shares, and any such amendment, waiver,
alteration, modification, rescission or termination shall be binding on all of
the parties. In no event shall any amendment, waiver, alteration, modification,
rescission or termination that affects the Escrow Agent be binding upon it
unless such amendment, waiver, alteration, modification, rescission or
termination has been executed by a duly authorized representative of the Escrow
Agent.
12.10 Counterparts; Effectiveness. This Agreement may be executed in
one or more counterparts (including signature pages delivered by facsimile
transmission), each of which shall be deemed an original but all of which
together will constitute one and the same agreement. This Agreement shall become
effective when each party hereto shall have received counterparts hereof signed
by all of the other parties hereto.
This parties have executed and delivered this Agreement as of the date
first written above.
(Signature Pages Follow)
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FCPR L CAPITAL
Represented by: L Capital Management SAS
/s/ Xxxxxxxx Xxxxxxxx
By:________________________________
Xxxxxxxx Xxxxxxxx
Attorney-in-fact
(Signature Page to Amended and Restated Escrow Agreement)
SEAPINE INVESTMENTS, LLC
By: /s/ Xxxxx X. Xxxx
-----------------------------------------
Xxxxx X. Xxxx
Member
Address:
c/o Kidd & Company, LLC
00 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxx
Telecopier No.: (000) 000-0000
(Signature Page to Amended and Restated Escrow Agreement)
/s/ Xxxxxx X. Xxxxxx
--------------------------------------------
Xxxxxx X. Xxxxxx
Address:
c/o Kidd & Company, LLC
00 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
XXXXXXX FAMILY LIMITED PARTNERSHIP
By: /s/ Xxxxxx XxXxxxx
-----------------------------------------
Name: Xxxxxx XxXxxxx
Title: GP
Address:
c/o Kidd & Company, LLC
00 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
(Signature Page to Amended and Restated Escrow Agreement)
/s/ Xxxxxxx Xxxx
--------------------------------------------
Xxxxxxx Xxxx
Address:
c/o Kidd & Company, LLC
00 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
/s/ Xxxxxxxx Xxxxxx
--------------------------------------------
Xxxxxxxx Xxxxxx
Address:
c/o Kidd & Company, LLC
00 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
(Signature Page to Amended and Restated Escrow Agreement)
/s/ Xxxxxxx Xxxxx
--------------------------------------------
Xxxxxxx Xxxxx
Address:
c/o Kidd & Company, LLC
00 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
/s/ Xxxxxxxx Xxxxxx
--------------------------------------------
Xxxxxxxx Xxxxxx
Address:
c/o Kidd & Company, LLC
00 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
(Signature Page to Amended and Restated Escrow Agreement)
/s/ Xxxxxxx Xxxxxxxx
--------------------------------------------
Xxxxxxx Xxxxxxxx
Address:
c/o Advanced Aesthetics, Inc.
000 Xxxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxx, XX 00000
Telecopier No.: (000) 000-0000
(Signature Page to Amended and Restated Escrow Agreement)
/s/ Xxxxxx X. Xxxxxxx
--------------------------------------------
Xxxxxx X. Xxxxxxx, as trustee of the
Xxxxxxxxx X. Xxxx Grantor Trust
Address:
c/o Troutman Xxxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopier No.: (000) 000-0000
/s/ Xxxxxx X. Xxxxxxx
--------------------------------------------
Xxxxxx X. Xxxxxxx, as trustee of the
Xxxx X. Xxxx Trust
Address:
c/o Troutman Xxxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopier No.: (000) 000-0000
/s/ Xxxxxx X. Xxxxxxx
--------------------------------------------
Xxxxxx X. Xxxxxxx, as trustee of the
Xxxxxx X. Xxxx Trust
Address:
c/o Troutman Xxxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopier No.: (000) 000-0000
(Signature Page to Amended and Restated Escrow Agreement)
SAND DOLLAR PARTNERS, L.P.
By: Sand Dollar Partners, LLC, its general
partner
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------------------
Xxxxxxx Xxxxxxx
Manager
Address:
0000 Xxxxxxx xx xxx Xxxxx
Xx Xxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxx
Telecopier No.:
(Signature Page to Amended and Restated Escrow Agreement)
/s/ Xxxxxx X. Xxxxxxx, Attorney-in-fact
--------------------------------------------
Xxxxxx Xxxxxxxx
Address:
c/o Kidd & Company, LLC
00 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
(Signature Page to Amended and Restated Escrow Agreement)
/s/ Xxxxxx Xxxxxxx
--------------------------------------------
Xxxxxx Xxxxxxx
Address:
c/o Kidd & Company, LLC
00 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
(Signature Page to Amended and Restated Escrow Agreement)
/s/ Xxxxxx Xxxxx
--------------------------------------------
Xxxxxx Xxxxx
Address:
0000 Xxxxx Xxxxx Xxxxxxxxx, 000X
Xxxx Xxxxx, XX 00000
Telecopier No.: (000) 000-0000
(Signature Page to Amended and Restated Escrow Agreement)
/s/ Xxxxx Xxxxxx
--------------------------------------------
Xxxxx Xxxxxx
Address:
0000 Xxxxxx Xxxx Xxxx
Xxxx Xxxxx, XX 00000
Telecopier No.:
(Signature Page to Amended and Restated Escrow Agreement)
--------------------------------------------
Xxxxx Xxxxxxx
Address:
0000 Xxxxxxx XxxXxxxxx Xxxxx
Xxxxxxxx, XX 00000
Telecopier No:
(Signature Page to Amended and Restated Escrow Agreement)
XXXXXXXX XXXXXXX LLP
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title:
(Signature Page to Amended and Restated Escrow Agreement)
SCHEDULE A
ORIGINAL ESCROW SHARES
(a) (b)
Number of Tranche I Number of Tranche II
Existing Stockholder Existing Stockholder
Name Common Shares Common Shares
---- ------------- -------------
Seapine Investments, LLC.................... 1,187,969 1,331,697
Xxxxxx X. Xxxxxx............................ 90,137 101,043
Xxxxxxx Xxxxxxxx............................ 27,055 30,327
XxXxxxx Family Limited Partnership.......... 15,610 17,498
Xxxxxxx Xxxx................................ 4,311 4,833
Xxxxxxxxx X. Xxxx Grantor Trust............. 83,999 94,162
Xxxx X. Xxxx Trust.......................... 83,999 94,162
Xxxxxx X. Xxxx Trust........................ 83,999 94,162
Sand Dollar Partners, L.P................... 36,736 41,182
Xxxxxxxx Xxxxxx............................. 2,289 2,565
Xxxxxx Xxxxxxxx............................. 2,289 2,565
Xxxxxxx Xxxxx............................... 2,289 2,565
Xxxxxx Xxxxxxx.............................. 2,289 2,565
Xxxxxxxx Xxxxxx............................. 572 642
Xxxxxx Xxxxx................................ 12,306 13,795
Xxxxx Xxxxxx................................ 2,461 2,758
Xxxxx Xxxxxxx............................... 2,461 2,758
-------------------------------------------------------
Total..................................... 1,640,771 1,839,279
=======================================================
SCHEDULE B
ESCROW SHARES
Name (a) (b)
---- Number of Tranche I Number of
Existing Stockholder Tranche II
Common Shares Existing Stockholder
Common Shares
Seapine Investments, LLC................
Xxxxxx X. Xxxxxx........................ [To be completed
based on Share
Exchange Agreement]
Xxxxxxx Xxxxxxxx........................
XxXxxxx Family Limited Partnership......
Xxxxxxx Xxxx............................
Xxxxxxxxx X. Xxxx Grantor Trust.........
Xxxx X. Xxxx Trust......................
Xxxxxx X. Xxxx Trust....................
Sand Dollar Partners, L.P...............
Xxxxxxxx Xxxxxx.........................
Xxxxxx Xxxxxxxx.........................
Xxxxxxx Xxxxx...........................
Xxxxxx Xxxxxxx..........................
Xxxxxxxx Xxxxxx.........................
Xxxxxx Xxxxx............................
Xxxxx Xxxxxx............................
Xxxxx Xxxxxxx...........................
----------------------- -----------------------
Total.................................
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