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EXHIBIT 10.14
ESCROW AGREEMENT
This Escrow Agreement (the "Agreement") is entered into as of August
31, 1998 by and among NEXTERA ENTERPRISES, L.L.C. ("Nextera"), SIBSON
ACQUISITION, CO., a newly formed Nova Scotia unlimited liability company
("Canadian Buyer") and an indirect wholly-owned subsidiary of Nextera, the
holders of all of the issued and outstanding shares of SIBSON CANADA INC.
("Sibson Canada") identified on Exhibit A hereto as such (collectively, the "SC
Shareholders"), and CHASE MANHATTAN TRUST COMPANY, NATIONAL ASSOCIATION, as
escrow agent (the "Escrow Agent").
WHEREAS, pursuant to a Share Purchase Agreement (the "Purchase
Agreement") dated as of the date hereof, by and among Nextera, Canadian Buyer,
and the SC Shareholders, Canadian Buyer is purchasing all of the issued and
outstanding shares in Sibson Canada;
WHEREAS, the SC Shareholders have agreed to indemnify Canadian Buyer
and Nextera against certain breaches of the representations, warranties and
covenants made by the SC Shareholders in the Purchase Agreement and against
certain other matters as specified in Article 9 of the Purchase Agreement; and
WHEREAS, to secure payment of the SC Shareholders' indemnification
obligations, 59,052 Exchangeable Shares of the Canadian Buyer (the "Escrow
Shares" and together with additions to or earnings on the same, the "Escrow
Deposit") are being deposited, pursuant to Section 2.4 of the Purchase
Agreement, in escrow to be held as hereinafter provided.
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises of the parties herein contained, and other good and valuable
consideration, receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
1. Establishment of Escrow: Investment.
(a) Canadian Buyer and Nextera have herewith deposited the Escrow
Shares with the Escrow Agent contemporaneously herewith. The
Escrow Shares have been issued in the name of the SC
Shareholders, and shall be accompanied by stock powers or
similar instruments duly signed in blank by the SC
Shareholders. The Escrow Deposit shall be held in escrow in an
account designated as the Sibson Canada Account or an account
having such other similar designation, subject to the terms
and conditions set forth herein. The Escrow Agent shall invest
all cash, if any, held as part of the Escrow Deposit only in
such specific investments as Nextera and the Escrow
Representative (as hereinafter defined) shall from time to
time jointly direct in writing to the Escrow Agent; provided,
however, that such investments shall be limited to:
(i) time and demand deposits, certificates of deposit and
acceptances, maturing within ninety (90) days from
the date of acquisition thereof, issued by state and
national banks located in the United States of
America, including the Escrow Agent or any of its
affiliates, and having capital, surplus and profits
aggregating at least one hundred million dollars
($100,000,000);
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(ii) securities or other obligations of, or guaranteed by,
the United States of America or any agency thereof
having maturities of not greater than one (1) year;
(iii) commercial paper, maturing within ninety (90) days
from the date of acquisition thereof, rated A- I or
P- I by Standard & Poor's or Xxxxx'x Investors
Service;
(iv) repurchase agreements fully collateralized by
obligations described in clauses l(a)(i), l(a)(ii) or
l(a)(iii) hereof,
(v) shares of investment companies registered under the
Investment Company Act of 1940 which invest in any
obligation described herein, or shares of the Chase
Vista Money Market Mutual Funds or any other mutual
fund for which the Escrow Agent or an affiliate of
the Escrow Agent serves as investment manager,
administrator, shareholder servicing agent, and/or
custodian or subcustodian, notwithstanding that (i)
the Escrow Agent or an affiliate of the Escrow Agent
receives fees from such funds for services rendered
or (ii) services performed for such funds and
pursuant to this Agreement may at times duplicate
those provided to such funds by the Escrow Agent or
its affiliates.
Until further written notice, cash in the Escrow Deposit shall be
invested in Vista Prime Money Market Fund. Unless otherwise directed in writing
by the Escrow Representative and Nextera, the Escrow Agent shall not invest all
or any portion of the Escrow Deposit in any investment if the maturity date of
such investment is later than the Termination Date (as defined below).
(b) Escrow Representative: Xxxxxxx XxXxxxxxx shall serve as the
exclusive representative of the SC Shareholders with respect
to the Escrow Deposit and this Agreement (the "Escrow
Representative"). If, for any reason, the Escrow
Representative shall be either unable or unwilling to serve, a
successor Escrow Representative shall be appointed by written
consent of the SC Shareholders and all references to the
Escrow Representative shall be deemed to include such
successor. Each SC Shareholder whose signature appears below
expressly agrees that this Agreement may be amended or
modified, and compliance with any condition or covenant may be
waived without the consent of, or execution thereof by, such
SC Shareholder if the Escrow Representative agrees to such
amendment or modification or grants such waiver, in each case
by a writing duly and validly executed by the Escrow
Representative as provided in Section 14; provided, however,
that the Escrow Representative will not enter into any such
amendment or modification or waive any condition or covenant
that materially and adversely affects any SC Shareholder
differently than all other SC Shareholders affected thereby
without the consent of such SC Shareholder.
2. Amounts Earned on Escrow Deposit: Tax Matters. All amounts earned, paid
or distributed with respect to the Escrow Deposit, if any, (whether
interest, dividends,
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distributions from Nextera with respect to the Escrow Shares or
otherwise) shall become a part of the Escrow Deposit, shall be held
hereunder upon the same terms as the original Escrow Deposit and shall
be distributed together with the underlying portion of the original
Escrow Deposit pursuant to the terms of this Agreement. The parties
agree that the SC Shareholders will include all amounts earned on the
Escrow Deposit (or allocated or distributed with respect thereto) in
their gross income for federal, provincial and local income tax
(collectively, "income tax") purposes and pay any income tax resulting
therefrom, pro rata in accordance with their combined ownership
percentage as set forth on Exhibit A.
3. Claims Against Escrow Deposit.
(a) At any time or times prior to the Termination Date (as
hereinafter defined), Nextera, or any successor of Nextera,
may make claims against the Escrow Deposit for indemnification
pursuant to and in accordance with Article 9 of the Purchase
Agreement. Nextera shall notify the Escrow Representative and
the Escrow Agent in writing promptly upon determination to
make a claim and in any event prior to the expiration of this
Agreement of each such claim, including a summary of the
amount of and bases for such claim. If the Escrow
Representative shall dispute such claim, the Escrow
Representative shall give written notice thereof to Nextera
and to the Escrow Agent within thirty (30) days after receipt
of notice of Nextera's claim, in which case the Escrow Agent
shall continue to hold the Escrow Deposit in accordance with
the terms of this Agreement; otherwise, such claim shall be
deemed to have been acknowledged to be payable out of the
Escrow Deposit in the full amount thereof and the Escrow Agent
shall use its best efforts to pay such claim to Nextera within
three (3) business days after expiration of said thirty (30)
day period or as soon thereafter as possible following the
determination of the fair market value of the Escrow Shares
pursuant to Section 3(b)(ii) below. If the amount of the claim
exceeds the value of the Escrow Deposit, the Escrow Agent
shall have no liability or responsibility for any deficiency.
(b) The Escrow Agent shall follow the procedure below in making
any payment in satisfaction of a claim against the Escrow
Deposit:
(i) The Escrow Agent shall make such payment first from
cash additions to or earnings on the Escrow Shares,
if any, until all cash in the Escrow Deposit has been
exhausted.
(ii) To the extent that any claim exceeds the amount of
cash in the Escrow Deposit, the Escrow Agent shall
make payment from the Escrow Shares in such number of
Escrow Shares (computed to the nearest whole unit)
having a value equal to the value of the claim not
satisfied by cash payment. Any payment of Escrow
Shares by the Escrow Agent to Nextera shall be
treated as a sale by the SC Shareholders of such
Escrow Shares for the value described herein. The
value of an Escrow Unit for purposes of this Section
shall be the fair market value of a Class A Common
Unit of Nextera, or after the Incorporation
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Transaction (as defined in that certain Share
Exchange Agreement dated as of August 31, 1998 by and
among Nextera, the SC Shareholders and the other
parties listed on the signature pages thereto (the
"Share Exchange Agreement")), a share of Class A
Common Stock of Newco (as defined in the Exchange
Agreement), on the date of the claim as determined by
the Board of Directors of Nextera (the "Board"). The
fair market value shall be determined in good faith
by the Board and the Board shall notify the Escrow
Representative and Escrow Agent in writing of its
determination (the "Initial Valuation Notice"). If
the Escrow Representative disputes the fair market
value of the Escrow Shares as determined by the
Board, then the Escrow Representative shall so notify
the Board and Escrow Agent in writing (the "Appraisal
Notice") within ten (10) business days of receipt of
the Initial Valuation Notice. Within twenty (20)
business days of the receipt of the Appraisal Notice,
the Board and the Escrow Representative shall each
appoint a professional appraiser to determine the
fair market value of the Escrow Shares. Each
appraiser shall have at least five (5) years
experience in appraising companies similar to
Nextera. The two appraisers shall within the
succeeding twenty (20) day period after their
selection, attempt to reach agreement on the fair
market value. If the appraisers reach such agreement
they shall so notify the Escrow Agent and their
agreement shall be final and binding on Canadian
Buyer, Nextera, the Board, the Escrow Representative,
and the SC Shareholders, and their affiliates. If the
appraisers fail to agree, they shall within ten (10)
days thereafter select a third appraiser with the
same qualification requirements, and the three (3)
appraisers shall establish the fair market value by
majority vote within the succeeding twenty (20) day
period and shall notify the Escrow Agent of their
determination. Such determination of the fair market
value shall be final and binding on Canadian Buyer,
Nextera, the Board, the Escrow Representative, and
the SC Shareholders, and their affiliates. In all
events, the appraisers selected shall be unaffiliated
with and otherwise independent of Canadian Buyer,
Nextera, the Board, the Escrow Representative, and
the SC Shareholders, and their affiliates. If the
fair market value of the Escrow Shares, as determined
by the appraisers, is less than or no more than five
percent (5%) greater than the value as determined by
the Board, then the SC Shareholders shall pay all
costs associated with the appraisers. If the fair
market value as determined by the appraisers is more
than five percent (5%) greater than the value as
determined by the Board, then Canadian Buyer and
Nextera shall pay for all costs associated with the
appraisers. In determining fair market value, neither
the Board nor any appraiser shall take into account
(x) the value assigned to the Nextera Class A Shares
in connection with the Purchase Agreement or (y) any
discount for a minority interest.
The Escrow Shares delivered to Nextera in satisfaction of a claim shall
be allocated among the SC Shareholders so as to reduce each SC Shareholder's
interest in the remaining
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Escrow Shares in proportion to their respective ownership percentages as set
forth on Exhibit A hereto. Notwithstanding the foregoing, (i) any claim that is
an Individual Claim (as defined in the Purchase Agreement) shall be satisfied by
reduction of the interest in the Escrow Deposit of the SC Shareholder who
committed fraud or who made the representation, warranty or covenant from which
the Individual Claim arose and no other SC Shareholder shall have any liability
therefor hereunder and (ii) the satisfaction of one or more Individual Claims as
describe in clause (i) shall not increase the proportion of any subsequent claim
for which any SC Shareholder would have been responsible absent such prior
satisfaction of such Individual Claims. In the event that the Escrow Agent must
make payment with a number of Shares less than or different from the number of
Shares represented by a certificate in the Escrow Deposit, the Escrow Agent
shall surrender such certificate to Nextera and Nextera shall issue to the
Escrow Agent certificates of Nextera Class A Shares identical in form but for
the number of Shares as necessary to allow for proper payment of the claim so
long as the number of Shares of the new certificates plus the amount of Shares
used to satisfy such claim shall be equivalent to the total number of Shares
covered by the surrendered certificate.
4. Disputed Claims.
(a) If the Escrow Representative shall dispute an indemnification
claim of Nextera as above provided, the Escrow Agent shall set
aside a portion of the Escrow Deposit sufficient to pay said
claim in full as reasonably determined by Nextera in good
faith (the "Set Aside Amount"). Nextera shall notify the
Escrow Agent in writing of the Set Aside Amount. If Nextera
notifies the Escrow Agent in writing that it has made
out-of-pocket expenditures in connection with any such
disputed claim, and provides paid receipts for such
expenditures, in addition to expenditures included in the Set
Aside Amount, an amount equal to such additional expenditures
shall be added to the Set Aside Amount. The appropriate number
of Escrow Shares in the Set Aside Amount shall be determined
by the procedure described in Section 3(b)(ii) above.
(b) If the disputed indemnification claim has not been resolved or
compromised within sixty (60) days after the Escrow Agent's
receipt of the Escrow Representative's notice of dispute of
the same, or in the event of a third-party claim or suit,
within fifteen (15) days after its resolution or compromise,
said indemnification claim shall be referred to the American
Arbitration Association, to be settled by binding arbitration
in New York, New York, in accordance with the commercial
arbitration rules of the Association. The fees and expenses of
the arbitrator shall be borne equally by the SC Shareholders
on the one hand and Canadian Buyer and Nextera on the other.
In no event shall the Escrow Agent be responsible for any fee
or expense of any party to any arbitration proceeding. The
determination of the arbitrator as to the amount, if any, of
the indemnification claim which is properly allowable shall be
conclusive and binding upon the parties hereto and judgment
may be entered thereon in any court having jurisdiction
thereof, including, without limitation, any court in the State
of New York. The arbitrator shall have the authority in its
discretion to award to the prevailing party reasonable costs
and
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expenses including attorney's fees and the cost of
arbitration. The Escrow Agent shall use its best efforts to
make payment of such claim, as and to the extent allowed, to
Nextera out of the Set Aside Amount (or if insufficient, out
of the Escrow Deposit) within three (3) business days
following the Escrow Agent's receipt of said determination or
as soon thereafter as possible.
(c) Notwithstanding Section 4(b), if a disputed indemnification
claim has not been resolved or compromised as of the
Termination Date (as hereinafter defined), and such claim does
not involve a third-party claim or suit, Nextera and the
Escrow Representative shall continue to negotiate in good
faith a settlement of such claims for a period of ten (10)
days after the Termination Date. If, after the expiration of
such ten-day period, such indemnification claim still has not
been resolved or compromised, such claim shall be settled in
accordance with the arbitration provisions set forth in
Section 4(b).
(d) It is understood and agreed that should any dispute arise
under this Section 4, the Escrow Agent, upon receipt of
written notice of such dispute or claim by the Escrow
Representative, is authorized and directed to retain in its
possession without liability to anyone, the Set Aside Amount
relating to such dispute plus any expenditures of Nextera made
pursuant to Section 4(a) until such dispute shall have been
settled pursuant to this Section 4. The Escrow Agent may, but
shall be under no duty whatsoever to, institute or defend any
legal proceedings which relate to the Escrow Deposit.
(e) In connection with the resolution of a disputed
indemnification claim, the arbitrator may award, in its
discretion, to the SC Shareholders interest on the amount by
which the Set Aside Amount exceeds the amount which the
arbitrator determined would have been a reasonable Set Aside
Amount, computed from the Termination Date to the date such
Set Aside Amount is released from escrow if the arbitrator
determines that (i) Nextera had no reasonable basis for making
the indemnification claim or (ii) the Set Aside Amount as
determined by Nextera had no reasonable relation to the amount
of the claim. The arbitrator may not award interest under this
Section 4(e) if Nextera's claim is occasioned by, or the Set
Aside Amount corresponds to the amount of, a third-party claim
regardless of the merits of such third-party claim.
5. Exchange of Escrow Shares. Pursuant to the provisions attaching to the
Exchangeable Shares and the provisions under the Share Exchange
Agreement (the "Share Exchange Agreement"), SC Shareholders may
exchange their Exchangeable Shares for Nextera Class A Shares, or such
other Shares or other security (the "Exchanged Securities") as provided
for in the Share Exchange Agreement. In the event of an exchange during
the term of this Agreement, the remaining Escrow Shares shall be
released from escrow under this Agreement and an appropriate number of
Exchanged Securities shall be delivered to the Escrow Agent in
substitution for the Escrow Shares. Following such an exchange, all
references to Escrow Shares in this Agreement shall be deemed to
include such Exchanged
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Securities. The Escrow Agent shall follow the joint written instruction
of Nextera and the Escrow Representative in carrying out the provisions
of this Section 5.
6. Termination. This Agreement shall terminate on the date that the Escrow
Deposit is reduced to zero as the result of payments by the Escrow
Agent to Nextera in accordance with the provisions of Section 3 or
Section 4. If, however, the Escrow Deposit has not been reduced to zero
as of the date that is eighteen (18) months following the date of this
Agreement (the "Termination Date") and there are no outstanding
indemnification claims on the Termination Date of which Escrow Agent
has received notice hereunder, the Escrow Agent shall distribute the
amount remaining in the Escrow Deposit to the SC Shareholders in
accordance with their respective ownership percentages as set forth on
Exhibit A hereto. After such payment this Agreement shall terminate;
otherwise this Agreement shall continue in effect until all
indemnification claims Nextera has made pursuant to Section 3 hereof on
or prior to the Termination Date shall have been disposed of. As of the
Termination Date, an amount of the Escrow Deposit adequate to cover all
disputed and undisputed claims made by Nextera pursuant to Section 3
hereof will be held by the Escrow Agent (with the number of Escrow
Shares, if any, to be retained determined in accordance with Section
3(b)(ii)) and the Escrow Agent shall distribute on the Termination Date
the balance, if any, of the Escrow Deposit to the SC Shareholders in
accordance with their respective ownership percentages as set forth on
Exhibit A hereto. At such time as all remaining indemnification claims
hereunder have been resolved and the Escrow Agent has received a
written notice executed by Nextera and the Escrow Representative, or
notification of a determination of an arbitrator pursuant to Section
4(b), to that effect and any amounts to be distributed to Nextera in
connection therewith have been so distributed, the Escrow Agent shall
distribute the remaining Escrow Deposit, if any, to the SC Shareholders
in accordance with their respective ownership percentages as set forth
on Exhibit A hereto.
7. The Escrow Agent.
(a) Direction from Nextera and Escrow Representative.
Notwithstanding anything herein to the contrary, the Escrow
Agent shall promptly dispose of all or any part of the Escrow
Deposit as directed by a writing signed by Nextera and Escrow
Representative.
(b) Reliance by Escrow Agent; Liability of Escrow Agent. Except
with respect to capitalized terms used herein and defined in
the Purchase Agreement or the Exchange Agreement, the Escrow
Agent will not be subject to, or be obliged to recognize, any
other agreement between the parties hereto or directions or
instructions not specifically set forth as provided for
herein. The Escrow Agent will not make any payment or
disbursement from or out of the Escrow Deposit that is not
expressly authorized pursuant to this Agreement. The Escrow
Agent undertakes to perform only such duties as are expressly
set forth herein. The Escrow Agent may rely and shall be
protected in acting or refraining from acting upon any written
notice, instruction or request furnished to it hereunder and
believed by it to be genuine and to have been signed or
presented by the proper party or parties. The Escrow Agent
shall be
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under no duty to inquire into or investigate the validity,
accuracy or content of any such document. The Escrow Agent
shall have no duty to solicit any payment which may be due it
hereunder. The Escrow Agent shall not be liable for any action
taken or omitted by it in good faith unless a court of
competent jurisdiction determines that the Escrow Agent's
gross negligence and willful misconduct was the primary cause
of any loss to Canadian Buyer, Nextera or the SC Shareholders.
In the administration of the Escrow Deposit hereunder, the
Escrow Agent may execute any of its powers and perform its
duties hereunder directly or through agents or attorneys and
may consult with counsel, accountants and other skilled
persons to be selected and retained by it. The Escrow Agent
shall not be liable for anything done, suffered or omitted in
good faith by it in accordance with the advice or opinion of
any such counsel, accountants or other skilled persons.
Canadian Buyer, Nextera and the SC Shareholders jointly and
severally hereby agree to indemnify and hold the Escrow Agent
and its directors, officers, agents and employees
(collectively, the "Indemnities") harmless from and against
any and all claims, liabilities, losses, damages, fines,
penalties, and expenses, including out-of-pocket and
incidental expenses and legal fees and expenses ("Losses")
that may be imposed on, incurred by, or asserted against the
Indemnitees or any of them for following any instructions or
other directions upon which the Escrow Agent is authorized to
rely pursuant to the terms of this Agreement. In addition to
and not in limitation of the immediately preceding sentence,
Canadian Buyer, Nextera and the SC Shareholders also agree
jointly and severally to indemnify and hold the Indemnitees
and each of them harmless from and against any and all Losses
that may be imposed on, incurred by, or asserted against the
Indemnitees or any of them in connection with or arising out
of Escrow Agent's performance under this Agreement, provided
the Indemnitees have not acted with gross negligence or
engaged in willful misconduct. 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). As between Canadian Buyer and Nextera on the
one hand and the SC Shareholders on the other, each shall bear
equally the indemnification obligations set forth in this
Section 7(b). The provisions of this Section 7(b) shall
survive the termination of this Agreement and the resignation
or removal of the Escrow Agent for any reason.
(c) Fees and Expenses of the Escrow Agent. All fees of the Escrow
Agent for its services hereunder, together with any expenses
reasonably incurred by the Escrow Agent in connection with
this Agreement, shall be paid by Canadian Buyer. All fees of
the Escrow Agent in connection herewith shall be due from the
parties upon receipt of an invoice from the Escrow Agent
delivered to Nextera.
(d) Resignation and Removal of Escrow Agent; Successor Escrow
Agent.
(i) The Escrow Agent may resign from its duties hereunder
by giving each of the parties hereto not less than
thirty (30) days prior written
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notice of the effective date of such resignation
(which effective date shall be at least thirty (30)
days after the date such notice is given). In
addition, the Escrow Agent may be removed and
replaced on a date designated in a written instrument
signed by Nextera and the Escrow Representative and
delivered to the Escrow Agent. The parties hereto
intend that a successor escrow agent mutually
acceptable to the Escrow Representative and Nextera
will be appointed to fulfill the duties of the Escrow
Agent hereunder for the remaining term of this
Agreement in the event of the Escrow Agent's
resignation or removal. Upon the effective date of
such resignation or removal, the Escrow Agent shall
deliver the property comprising the Escrow Deposit to
such successor escrow agent, together with an
accounting of the investments held by it and all
transactions related to this Agreement, including any
distributions made and such records maintained by the
Escrow Agent in connection with its duties hereunder
and other information with respect to the Escrow
Deposit as such successor may reasonably request. If
on or before the effective date of such resignation
or removal, a successor escrow agent has not been
appointed, the Escrow Agent will thereupon deposit
the Escrow Deposit into the registry of a court of
competent jurisdiction.
Upon written acknowledgment by a successor escrow agent appointed in
accordance with this Section 7(d)(i) of its agreement to serve as escrow agent
hereunder and the receipt of the property then comprising the Escrow Deposit,
the Escrow Agent shall be fully released and relieved of all duties,
responsibilities and obligations under this Agreement, except for those arising
under the last sentence of Section 7(b) of this Agreement, and such successor
escrow agent shall for all purposes hereof be the Escrow Agent.
(ii) Any corporation, association or other entity into
which the Escrow Agent may be converted or merged, or
with which it may be consolidated, or to which it may
sell or otherwise transfer all or substantially all
of its corporate trust business, or any corporation,
association or other entity resulting from any such
merger, conversion, consolidation, sale or other
transfer, shall, ipso facto, be and become successor
Escrow Agent hereunder, vested with all of the
powers, discretions, immunities, privileges and all
other matters as was its predecessor, without the
execution or filing of any instrument or any further
act on the part or any of the parties hereto,
anything herein to the contrary notwithstanding.
8. Voting of Escrow Shares. So long as any Escrow Shares are retained by
the Escrow Agent, the SC Shareholders in accordance with their
respective ownership percentages as set forth on Exhibit A hereto,
shall be entitled to exercise the voting power, if any, with respect to
in the Escrow Shares, in accordance with their respective ownership
percentages as set forth on Exhibit A hereto.
9. Governing Law. IT IS THE PARTIES' INTENT THAT THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
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INTERNAL LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW).
10. Counterparts. This Escrow Agreement may be executed in one or more
counterparts, all of which documents shall be considered one and the
same document.
11. Notices. Any notice or other communication required or permitted
hereunder shall be in writing and shall be deemed to have been given
when received, if personally delivered or delivered by overnight
delivery service or sent by facsimile transmission:
TO CANADIAN BUYER c/o SC/NE. LLC
Xxx Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx, Xx.
Fax: (000) 000-0000
With a copy to: Xxxxxx and Xxxxxxx
000 X Xxxxxx, Xxxxx 0000
Xxx Xxxxx, XX 00000
Attention: Xxxxx X. Xxxx, Esq.
Fax: (000) 000-0000
With an additional copy to: Stikeman, Xxxxxxx
Suite 0000
Xxxxxxxx Xxxxx Xxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: Xxxxxxx X. Xxxxx
Fax: (000) 000-0000
TO NEXTERA Nextera Enterprises, L.L.C.
Xxx Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx, Xx.
Fax: (000) 000-0000
With a copy to: Xxxxxx & Xxxxxxx
000 X Xxxxxx, Xxxxx 0000
Xxx Xxxxx, XX 00000
Attention: Xxxxx X. Xxxx, Esq.
Fax: (000) 000-0000
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With an additional copy to: Maron & Sandler
000 Xxxxxx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Fax: (000) 000-0000
With a copy to: Weil, Gotshal & Manages LLP
000 Xxxxx Xxxxxx
Xxx Xxxx XX 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Fax: (000) 000-0000
TO ANY To the address set forth in the Purchase
SC SHAREHOLDER: Agreement
With a copy to: Xxxxxxx & Partners
Ernst & Young Tower
Toronto-Dominion Centre
000 Xxx Xxxxxx
Xxxxx 0000, Xxx 000
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: Xxxxx Xxxxxxx, Esq.
Fax: (000) 000-0000
TO ESCROW AGENT: Chase Manhattan Trust Company, National
Association
One Oxford Centre
301 Grant Street, Suite 1100
Xxxxxxxxxx Xxxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxx
Fax: (000) 000-0000
Addresses may be changed by written notice given pursuant to this
Section. Any notice given hereunder may be given on behalf of any party by his
counsel or other authorized representatives.
12. Certification of Tax Identification Number. The parties hereto agree to
provide the Escrow Agent with a certified tax identification number by
signing and returning a Form W-9 (or Form W-8, in the case of non-U.S.
persons) to the Escrow Agent prior to the date on which any income
earned on the investment of the Escrow Deposit is credited to the
Escrow Deposit. The parties hereto understand that, in the event their
tax identification numbers are not certified to the Escrow Agent, the
Internal Revenue Code, as amended from time to time, may require
withholding of a portion of any interest or other income earned on the
investment of the Escrow Deposit.
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13. Force Majeure. Neither Canadian Buyer, Nextera, the SC Shareholders nor
the Escrow Agent shall be responsible for delays or failures in
performance under this Agreement resulting from acts beyond its
control. Such acts shall include but not be limited to acts of God,
strikes, lockouts, riots, acts of war, epidemics, governmental
regulations superimposed after the fact, fire, communication line
failures, computer viruses, power failures, earthquakes or other
disasters.
14. Modifications. This Agreement may not be altered or modified nor may
any condition or covenant set forth herein be waived, without the
express written consent of the parties hereto, provided that, except as
specifically provided by Section 1(b) above, the Escrow Representative
shall be authorized to agree to any amendment, modification or waiver
on behalf of the SC Shareholders which shall be valid and binding upon
the SC Shareholders. No course of conduct shall constitute a waiver of
any of the terms and conditions of this Escrow Agreement, unless such
waiver is specified in writing, and then only to the extent so
specified. A waiver of any of the terms and conditions of this Escrow
Agreement on one occasion shall not constitute a waiver of the other
terms of this Escrow Agreement, or of such terms and conditions on any
other occasion.
15. Reproduction of Documents. This Agreement and all documents relating
thereto, including, without limitation, (a) consents, waivers and
modifications which may hereafter be executed, and (b) certificates and
other information previously or hereafter furnished, may be reproduced
by a photographic, photostatic, microfilm, optical disk, micro-card,
miniature photographic or other similar process. The parties agree that
any such reproduction shall be admissible in evidence as the original
itself in any judicial or administrative proceeding, whether or not the
original is in existence and whether or not such reproduction was made
by a party in the regular course of business, and that any enlargement,
facsimile or further reproduction of such reproduction shall likewise
be admissible in evidence.
16. Permitted Transfers. The Parties hereby acknowledge that from the date
hereof, each SC Shareholder shall be permitted to transfer his
beneficial interest in the Escrow Shares to an individual holding
company ("HOLDCO") and that upon such a transfer, such SC Shareholder
and his Holdco will continue to be jointly and severally liable for the
obligations of such SC Shareholder under the Purchase Agreement and
hereunder. The certificates representing the Escrow Shares shall be
deemed to be in the name of the Holdco of the respective SC
Shareholder. In the event of a transfer of the beneficial interest in
the Escrow Shares to the Holdcos, all of the terms and conditions of
this Agreement shall apply to the Holdcos, as if the Holdcos were the
SC Shareholders mutatis mutandis. The SC Shareholders will promptly
notify the Escrow Agent upon a transfer of any beneficial interest in
the Escrow Shares to Holdco and provide the Escrow Agent with evidence
of such a transfer.
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IN WITNESS WHEREOF, the parties have caused this Escrow Agreement to be
executed as of the date first written above.
CANADIAN BUYER:
SIBSON ACQUISITION CO.
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Secretary
NEXTERA:
NEXTERA ENTERPRISES, L.L.C.
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
ESCROW AGENT:
CHASE MANHATTAN TRUST COMPANY,
NATIONAL ASSOCIATION, As Escrow Agent
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
(Signatures continued on the following page)
14
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(Signatures continued from previous page)
SC SHAREHOLDERS:
/s/ Xxxx Xxxxxxx
________________________________________
Xxxx Xxxxxxx
Tax Identification Number: ___________
/s/ Xxxxx Xxxxxxxxx
________________________________________
Xxxxx Xxxxxxxxx
Tax Identification Number: ___________
/s/ Xxxxxxx Xxxxx
________________________________________
Xxxxxxx Xxxxx
Tax Identification Number: ___________
/s/ Xxxxxxx XxXxxxxxx
________________________________________
Xxxxxxx XxXxxxxxx
Tax Identification Number: ___________
