Exhibit F
ESCROW AGREEMENT
THIS ESCROW AGREEMENT, dated as of July 25, 1995 ("Escrow Agreement"),
is by and among Pesa, Inc., a Delaware corporation ("PESA"); CC Acquisition
Company B, L.L.C., a Delaware limited liability company ("CCACB"), on behalf of
CCACB and the parties listed on Schedule A hereto (the "CCACB Group"), WPG
Corporate Development Associates IV, L.P., a Delaware limited partnership
("WPG"), and the parties listed on Schedule B hereto (the "WPG Group"), and
First Union National Bank of North Carolina, a national banking association, as
Escrow Agent hereunder ("Escrow Agent"). CCACB, the parties listed on Schedule
A, WPG, and the parties listed on Schedule B are collectively referred to as the
"Purchasers".
BACKGROUND
X. XXXX, CC Acquisition Company A, L.L.C., a Delaware limited
liability company ("CCACA"), and CCACB have entered into a Stock Purchase
Agreement (the "Underlying Agreement"), dated as of May 26, 1995, pursuant to
which CCACA and CCACB will acquire common stock, par value $.01 per share (the
"Common Stock") of Chyron Corporation (the "Company"). CCACB has assigned a
portion of its rights to the other Purchasers. On the Closing Date, PESA shall
deliver to the Purchasers stock certificates representing 29,414,732 shares of
Common Stock (the "Acquisition Shares"). On the Closing Date, the Purchasers
shall deposit such Acquisition Shares with the Escrow Agent.
B. Escrow Agent has agreed to accept, hold, and distribute the
Escrowed Property deposited with it and any dividends or distributions thereon
in accordance with the terms of this Escrow Agreement.
X. XXXX and the Purchasers have each appointed the Representatives (as
defined below) to represent them for all purposes in connection with the
Escrowed Property, as defined below, to be deposited with Escrow Agent.
D. In order to establish the escrow of the Escrowed Property and to
effect the provisions of the Underlying Agreement, the parties hereto have
entered into this Escrow Agreement.
STATEMENT OF AGREEMENT
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, for
themselves, their successors and assigns, hereby agree as follows:
1. Definitions. The following terms shall have the following meanings
when used herein:
"CCACB Representative" shall mean Xxxxxxx Wellesley-Xxxxxx or Xxxxxx
XxXxxx, severally, or any other person designated in a writing signed by
CCACB and delivered to the Escrow Agent, the PESA Representative and the
WPG Representative in accordance with the notice provisions of this Escrow
Agreement, to act as CCACB's and the CCACB Group's representative under
this Escrow Agreement.
"Escrowed Property" shall mean (i) the Acquisition Shares and the
stock certificates representing the Acquisition Shares deposited with
Escrow Agent pursuant to this Agreement, together with any dividends and
other income or distributions thereon, and (ii) the payments provided for
in Section 1.1(c)(ii) of the Underlying Agreement deposited with the Escrow
Agent pursuant to this Agreement.
"Escrow Period" shall mean the period commencing on the date hereof
and ending on the date all Escrowed Property is delivered out of Escrow.
"Joint Written Direction" shall mean a written direction executed by
the Representatives and directing Escrow Agent to disburse all or a portion
of the Escrowed Property or to take or refrain from taking an action
pursuant to this Escrow Agreement.
"PESA Escrow Account" shall mean the PESA, Inc. Escrow Account
established at the PESA Escrow Agent pursuant to the escrow agreements by
and among PESA, the PESA Escrow Agent and each of Dresdner Bank AG and
Extebank, of even dates herewith.
"PESA Escrow Agent" shall mean Banco Santander Puerto Rico, New York.
"PESA Representative" shall mean Xxxxxx X. Xxxxxx or Xxxxxxx Xxxxx de
Villages, severally, or any other person designated in a writing signed by
PESA and delivered to the Escrow Agent, CCACB Representative and the WPG
Representative in accordance with the notice provisions of this Escrow
Agreement, to act as PESA's Representative under this Escrow Agreement.
"Representatives" shall mean the PESA Representative, the CCACB
Representative and the WPG Representative.
"WPG Representative" shall mean WPG or any other person or entity
designated in a writing signed by WPG and delivered to the Escrow Agent,
the Pesa Representative and the CCACB Representative in accordance with the
notice provisions of this Escrow Agreement, to act as the WPG Group's
representative under this Escrow Agreement.
2. Appointment of and Acceptance by Escrow Agent. PESA, the
Purchasers, and the Representatives on behalf of PESA and the Purchasers hereby
appoint Escrow Agent as escrow agent hereunder. Escrow Agent hereby accepts such
appointment and, upon receipt of the Escrowed Property in accordance with
Section 3 below, agrees to hold and distribute the Escrowed Property in
accordance with this Escrow Agreement.
3. Deposit of Escrowed Property.
(a) On the date hereof, the Purchasers shall deposit with the Escrow
Agent a stock certificate or stock certificates representing 29,414,732 shares
of Common Stock of the Company, duly endorsed in blank or accompanied with stock
powers duly endorsed in blank. Until delivered out of escrow, each of the
Purchasers shall retain its respective right to vote its Acquisition Shares and
to any dividend rights related thereto.
(b) The Escrow Agent acknowledges receipt of the Acquisition Shares,
and will hold such Escrowed Property safely in a segregated account.
(c) Notwithstanding Section 1.1(c)(ii) of the Underlying Agreement,
the parties hereto agree that the payments described therein will be deposited
(pursuant to the schedule of installments therein) with the Escrow Agent,
instead of being paid directly to PESA.
4. Disbursement of Escrowed Property. The Escrowed Property shall be
disbursed and distributed as follows:
(a) For each $1,000 paid by a Purchaser to the Escrow Agent, the
Escrow Agent shall promptly deliver (i) to such Purchaser 2,083 Acquisition
Shares and (ii) to the PESA Escrow Account said funds paid by such
Purchaser. Simultaneously with any payment to the Escrow Agent, the CCACB
Representative and the WPG Representative shall deliver a notice to the
Escrow Agent specifying to which of the Purchasers such Acquisition Shares
shall be released with a copy of such notice to the PESA Representative.
(b) Within five (5) business days after receipt of an affidavit from
the PESA Representative stating that (i) there has occurred a payment
default pursuant to Section 1.1(c)(iv) of the Underlying Agreement, (ii)
that the thirty (30) day cure period specified in Section 1.1(c)(iv) of the
Underlying Agreement has expired without such default being cured, and
(iii) the dollar amount of the default, the Escrow Agent shall promptly
deliver to the PESA Escrow Account 2,083 Acquisition Shares (with their
attached stock powers in blank) for each unpaid $1,000 of said noticed
defaulted payment. The PESA Representative shall also send a copy of such
affidavit to the CCACB Representative and the WPG Representative.
(c) The Escrow Agent shall, at any time, deliver such part of the
Escrowed Property as shall be set forth in an affidavit signed by the PESA
Escrow Agent, the CCACB Representative and the WPG Representative.
(d) The Escrow Agent shall, at any time, deliver such part of the
Escrowed Property as shall be set forth in any order, decree, or judgment
of a court of competent jurisdiction which has been finally affirmed on
appeal or which, by lapse of time or otherwise, is not subject to appeal.
All distributions of the Escrowed Property shall be subject to the
claims of Escrow Agent and the Indemnified Parties (as defined below) pursuant
to Section 9 below.
5. Delivery Into Court. If, at any time, there shall exist any
dispute between PESA, the Purchasers, or the Representatives with respect to the
holding or disposition of any portion of the Escrowed Property or any other
obligations of Escrow Agent hereunder, or if at any time the Escrow Agent is
unable to determine, to Escrow Agent's sole satisfaction, the proper disposition
of any portion of the Escrowed Property or Escrow Agent's proper actions with
respect to its obligations hereunder, or if the Representatives have not, within
thirty (30) 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 or
the following actions:
(a) suspend the performance of any of its 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 hold the Escrowed Property safely until directed as
to distribution by the court; and/or
(b) petition (by means of an interpleader action or any other
appropriate method) any court of competent jurisdiction in New York, New
York, for instructions with respect to such dispute or uncertainty, and
disposition in accordance with the instructions of such court.
The Escrow Agent shall have no liability to PESA, the Purchasers,
their respective shareholders or any other person with respect to any such
suspension of performance or disbursement or distribution into court,
specifically including any liability or claimed liability that may arise, or be
alleged to have arisen, out of or as a result of any delay in the delivery of
the Escrowed Property or any delay in or with respect to any other action
required or requested of Escrow Agent.
6. Intentionally Deleted.
7. Resignation and Removal of Escrow Agent. Escrow Agent may resign
from the performance of its duties hereunder at any time by giving ten (10) days
prior written notice to the Representatives or may be removed, with or without
cause, by the Representatives, acting jointly by furnishing a Joint Written
Direction to Escrow Agent, at any time by the giving of ten (10) days prior
written notice to Escrow Agent. Such resignation or removal shall take effect
upon the appointment of a successor Escrow Agent as provided hereinbelow. Upon
any such notice of resignation or removal, the Representatives jointly shall
appoint a successor Escrow Agent hereunder, which shall be a United States
commercial bank, trust company, or other financial institution with a combined
capital and surplus in excess of $10,000,000 and not affiliated with PESA or the
Purchasers. 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.
8. Liability of Escrow Agent. Escrow Agent shall have no liability or
obligation with respect to the Escrowed Property except for Escrow Agent's
willful misconduct or gross negligence. Escrow Agent's sole responsibility shall
be for the safekeeping and distribution of the Escrowed Property 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. In no
event shall Escrow Agent be liable for incidental indirect, special,
consequential or punitive damages. Escrow Agent shall not be obligated to take
any legal action or commence any proceeding in connection with the Escrowed
Property, this Escrow Agreement, or the Underlying 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, and shall incur no liability and shall be fully
protected from any liability whatsoever in acting in accordance with the opinion
or instruction of such counsel. PESA, CCACB, and the WPG Group, jointly and
severally, shall promptly pay, upon demand, the reasonable fees and expenses of
any such counsel. The parties agree that the payment by Pesa or CCACB, or the
WPG Group for the reasonable fees and expenses of the Escrow Agent's legal
counsel hereunder shall not impair, limit, modify, or affect, the respective
rights and obligations as between PESA, CCACB, the WPG Group and the other
Purchasers and the respective rights of each of PESA, CCACB, and the WPG Group
and the other Purchasers as against each other.
9. Indemnification of Escrow Agent. From and at all times after the
date of this Escrow Agreement, PESA, CCACB, and the WPG Group jointly and
severally, shall, 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, (whether or not valid),
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, 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 solely from the gross negligence or willful misconduct 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
PESA, CCACB, and the WPG Group in writing, and PESA, CCACB, and the WPG Group
shall assume the defense thereof, including the employment of counsel and the
payment of all expenses. Such Indemnified Party shall, in its sole discretion,
have the right to employ separate counsel 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 unless (a) PESA and/or CCACB and/or the WPG Group
agree to pay such fees and expenses, or (b) PESA and/or CCACB and/or the WPG
Group shall fail to assume the defense of such action or proceeding or shall
fail, in the reasonable discretion of such Indemnified Party, to employ counsel
satisfactory to the Indemnified Party in any such action or proceeding, or (c)
the named parties to any such action or proceeding (including any impleaded
parties) include both Indemnified Party and PESA and/or CCACB and/or the WPG
Group, and Indemnified Party shall have been advised by counsel that there may
be one or more legal defenses available to it which are different from or
additional to those available to PESA or CCACB or the WPG Group. All such fees
and expenses payable by PESA and/or CCACB and/or the WPG Group pursuant to the
foregoing sentence shall be paid from time to time as incurred, both in advance
of and after the final disposition of such action or claim. All of the foregoing
losses, damages, costs and expenses of the Indemnified Parties shall be payable
by PESA and CCACB and the WPG Group, jointly and severally, upon demand by such
Indemnified Party. The obligations of PESA and CCACB and the WPG Group under
this Section 9 shall survive any termination of this Escrow Agreement and the
resignation or removal of Escrow Agent.
The parties agree that the payment by PESA or CCACB or the WPG Group
of any claim by Escrow Agent for indemnification hereunder in respect of a claim
by Escrow Agent for indemnification shall not impair, limit, modify, or affect,
the respective rights and obligations as between PESA, CCACB, the WPG Group, and
the other Purchasers and the respective rights of each of PESA, CCACB, the WPG
Group and the other Purchasers as against each other.
10. Fees and Expenses of Escrow Agent. PESA, CCACB and the WPG Group
shall compensate Escrow Agent for its services hereunder in accordance with
Schedule C attached hereto, except that the WPG Group shall not be responsible
for any payments due at Closing as defined in the Underlying Agreement. PESA,
CCACB and the WPG Group 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 PESA,
CCACB and the WPG Group, jointly and severally, upon demand by Escrow Agent. The
obligations of PESA, CCACB and the WPG Group under this Section 10 shall survive
any termination of this Escrow Agreement and the resignation or removal of
Escrow Agent.
11. Representations and Warranties.
(a) PESA makes the following representations and warranties to Escrow
Agent:
(i) PESA is a corporation duly organized, validly existing, and in
good standing under the laws of the State of Delaware, and has full power
and authority to execute and deliver this Escrow Agreement and to perform
its obligations hereunder.
(ii) This Escrow Agreement has been duly approved by all necessary
corporate action of PESA, including any necessary shareholder approval, has
been executed by duly authorized officers of PESA, and constitutes a valid
and binding agreement of PESA, enforceable against PESA in accordance with
its terms.
(iii) The execution, delivery, and performance by PESA of this Escrow
Agreement is in accordance with the Underlying Agreement and will not
violate, conflict with, or cause a default under the articles of
incorporation or bylaws of PESA, any applicable law or regulation, any
court order or administrative ruling or decree to which PESA is a party, or
any of its property is subject, or any agreement, contract, indenture, or
other binding arrangement, including, without limitation, the Underlying
Agreement, to which PESA is a party or any of its property is subject.
(iv) Each of Xxxxxx X. Xxxxxx and Xxxxxxx Xxxxx de Villages,
severally, has been duly appointed to act as the representative of PESA
hereunder and has full power and authority to execute, deliver, and perform
this Escrow Agreement, to execute and deliver any joint written direction
or affidavit, to amend, modify or waive any provision of this Agreement and
to take any and all other actions as the PESA Representative under this
Agreement, all without further consent or direction from, or notice to,
PESA or any other party.
(v) No party other than the parties hereto have, or shall have, any
lien, claim or security interest in the Escrowed Property or any part
thereof. No financing statement under the Uniform Commercial Code is on
file in any jurisdiction claiming a security interest in or describing
(whether specifically or generally) the Escrowed Property or any part
thereof.
(b) CCACB makes the following representations and warranties to
Escrow Agent:
(i) CCACB is a limited liability company duly organized, validly
existing, and in good standing under the laws of the State of Delaware, and
has full power and authority to execute and deliver this Escrow Agreement
and to perform its obligations hereunder.
(ii) This Escrow Agreement has been duly approved by all necessary
action of CCACB, including any necessary member approval, has been executed
by duly authorized officers of CCACB, and constitutes a valid and binding
agreement of CCACB, enforceable against CCACB in accordance with its terms.
(iii) The execution, delivery, and performance by CCACB of this
Escrow Agreement is in accordance with the Underlying Agreement and will
not violate, conflict with, or cause a default under the charter documents
of CCACB, any applicable law or regulation, any court order or
administrative ruling or decree to which CCACB is a party or any of its
property is subject, or any agreement, contract, indenture, or other
binding arrangement, including, without limitation, the Underlying
Agreement, to which CCACB is a party or any of its property is subject.
(iv) Each of Messrs. Wellesley-Xxxxxx and XxXxxx, severally, has been
duly appointed to act as the representative of the CCACB Group hereunder
and has full power and authority to execute, deliver, and perform this
Escrow Agreement, to execute and deliver any Joint Written Direction or
affidavit, to amend, modify, or waive any provision of this Agreement, and
to take any and all other actions as the CCACB Representative under this
Agreement, all without further consent or direction from, or notice to, the
CCACB or any other party.
(v) No party other than the parties hereto have, or shall have, any
lien, claim, or security interest in the Escrowed Property or any part
thereof. No financing statement under the Uniform Commercial Code is on
file in any jurisdiction claiming a security interest in or describing
(whether specifically or generally) the Escrowed Property or any part
thereof.
(c) The WPG Group makes the following representations and warranties
to Escrow Agent:
(i) WPG is a limited partnership duly organized, validly existing, and
in good standing under the laws of the State of Delaware, and has full
power and authority to execute and deliver this Escrow Agreement and to
perform its obligations hereunder.
(ii) This Escrow Agreement has been duly approved by all necessary
action of WPG, including any necessary partnership approval, has been
executed by duly authorized officers of WPG, and constitutes a valid and
binding agreement of WPG, enforceable against WPG in accordance with its
terms.
(iii) The execution, delivery, and performance by WPG of this Escrow
Agreement will not violate, conflict with, or cause a default under its
partnership agreement, any applicable law or regulation, any court order or
administrative ruling or decree to which WPG is a party or any of its
property is subject, or any agreement, contract, indenture, or other
binding arrangement, to which WPG is a party or any of its property is
subject.
(iv) No party other than the parties hereto have, or shall have, any
lien, claim, or security interest in the Escrowed Property or any part
thereof. No financing statement under the Uniform Commercial Code is on
file in any jurisdiction claiming a security interest in or describing
(whether specifically or generally) the Escrowed Property or any part
thereof.
12. By execution of this Escrow Agreement, each member of the WPG
Group appoints WPG to act as the representative of the WPG Group hereunder and
WPG has full power and authority to execute, deliver, and perform this Escrow
Agreement, to execute and deliver any Joint Written Direction or affidavit, to
amend, modify, or waive any provision of this Agreement, and to take any and all
other actions as the WPG Representative under this Agreement, all without
further consent or direction from, or notice to, the WPG Group or any other
party.
13. 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 Southern District of New York shall have the sole and exclusive jurisdiction
over any such proceeding. If such Federal Court lacks jurisdiction, the parties
agree that the State courts in New York County, State of New York 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.
14. Notice. All notices and other communications hereunder shall be
in writing and shall be deemed to have been validly served, given or delivered
three (3) days after deposit in the United States mails, by certified mail with
return receipt requested and postage prepaid; or upon receipt when delivered
personally; and addressed to the party to be notified as follows:
If to PESA at:
Pesa Inc.
00 Xxxxxxxx Xxxx, Xxxxx 00X
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx
With a copy (which copy shall not constitute notice) to:
Xxxx X. Xxxx, Esq.
Dow, Xxxxxx & Xxxxxxxxx
0000 Xxxxxx-xxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
If to CCACB Group at:
Xxxxxxx Wellesley-Xxxxxx
c/o Camhy Karlinsky & Xxxxx LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx XxXxxx, Esq.
with a copy (which copy shall not constitute notice) to:
Xxxxxxx X. Xxxxx, Esq.
Camhy Xxxxxxxxx & Xxxxx LLP
0000 Xxxxxxxx - 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
If to WPG Group at:
Xxxxxx X. Xxxx Xx.
c/x Xxxxx, Xxxx & Xxxxx
Private Equity Group
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
with a copy (which copy shall not constitute notice to:
Xxxxxx X. Xxxxxxxx, Esq.
Xxxxxxxxxx & Xxxxx
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
If to the Escrow Agent at:
First Union National Bank of
North Carolina, as Escrow Agent
Corporate Trust Department
000 Xxxxx Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxx Xxxxxx
Facsimile Number: (000) 000-0000
or to such other address as each party may designate for itself by like notice.
15. Amendment or Waiver. This Escrow Agreement may be changed,
waived, discharged or terminated only by a writing signed by the Representatives
and Escrow Agent. No delay or omission by any party in exercising any right with
respect hereto shall operate as a waiver. A waiver on any one occasion shall not
be construed as a bar to, or waiver of, any right or remedy on any future
occasion.
16. Severability. To the extent any provision of this Escrow
Agreement is prohibited by or invalid under applicable law, such provision shall
be ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Escrow Agreement.
17. Governing Law. This Escrow Agreement shall be construed and
interpreted in accordance with the internal laws of the State of New York
without giving effect to the conflict of laws principles thereof.
18. Entire Agreement. This Escrow Agreement constitutes the entire
agreement between the parties relating to the holding, investment and
disbursement of the Escrowed Property and sets forth in their entirety the
obligations and duties of Escrow Agent with respect to the Escrowed Property.
19. Binding Effect. All of the terms of this Escrow Agreement, as
amended from time to time, shall be binding upon, inure to the benefit of and be
enforceable by the respective heirs, successors and assigns of PESA and the
Purchasers, the Representatives and Escrow Agent.
20. Execution in Counterparts. This Escrow Agreement and any joint
written direction may be executed in one or more counterparts, which when so
executed shall constitute one and the same agreement or direction.
21. Termination. Upon the delivery out of escrow of all Escrowed
Property, this Escrow Agreement shall terminate and Escrow Agent shall have no
further obligation or liability whatsoever with respect to this Escrow Agreement
or the Escrowed Property.
22. Other Actions. The Escrow Agent and any stockholder, director,
officer or employee of the Escrow Agent may buy, sell, and deal in any of the
securities of PESA or the Purchasers and become pecuniarily interested in any
action in which PESA or the Purchasers may be interested, and contract and lend
money to PESA or the Purchasers and otherwise act as fully and freely as though
it were not Escrow Agent under this Agreement. Nothing herein shall preclude the
Escrow Agent from acting in any other capacity for PESA or the Purchasers or for
any other entity.
23. No Consent. The execution of this Escrow Agreement shall not be
construed as the consent of PESA to any assignment by CCACB of its rights, or
delegation by CCACB of its duties or liabilities, with respect to the Underlying
Agreement other than the Assignment and Assumption Agreement by and among the
WPG Group and the CCACB Group dated July 25, 1995.
IN WITNESS WHEREOF, the parties hereto have caused this Escrow
Agreement to be executed under seal as of the date first above written.
PESA, INC.
By: s/Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: C.F.O. and Treasurer
CC ACQUISITION COMPANY B, L.L.C.
By: s/M.I. Wellesley-Xxxxxx
Name: M.I. Wellesley-Xxxxxx
Title: Vice President
PESA REPRESENTATIVES
s/Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
s/Xxxxxxx Xxxxx xx Xxxxxxxx
Name: Xxxxxxx Xxxxx xx Xxxxxxxx
CCACB REPRESENTATIVES
s/M.I. Wellesley-Xxxxxx
Name: Xxxxxxx Wellesley-Xxxxxx
s/Xxxxxx XxXxxx
Name: Xxx XxXxxx
WPG CORPORATE DEVELOPMENT
ASSOCIATES IV, L.P.
By: WPG PRIVATE EQUITY PARTNERS,
L.P., its general partner
By: s/Xxxxxx X. Xxxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxxx
Title: Managing Partner
WPG CORPORATE DEVELOPMENT ASSOCIATES
IV (OVERSEAS), L.P.
By: WPG CDA IV (OVERSEAS), LTD.,
its general partner
By: s/Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Director
WPG ENTERPRISE FUND II, L.P.
By: WPG VENTURE PARTNERS III,
L.P., its general partner
By: s/Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: General Partner
XXXXX, XXXX & XXXXX VENTURE
ASSOCIATES III, L.P.
By: WPG VENTURE PARTNERS III,
L.P., its general partner
By: s/Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: General Partner
WESTPOOL INVESTMENT TRUST PLC
By: s/Xxxxxx X. Xxxx, Xx.
Name: Xxxxxx X. Xxxx, Xx.
Title: Attorney-in-Fact
LION INVESTMENTS LIMITED
By: s/Xxxxxx X. Xxxx, Xx.
Name: Xxxxxx X. Xxxx, Xx.
Title: Attorney-in-Fact
s/Xxxxxxx X. Xxxxx
XXXXXXX X. XXXXX
FIRST UNION NATIONAL BANK
OF NORTH CAROLINA, as Escrow Agent
By:s/Xxx Xxxxx
Name: Xxx Xxxxx
Title: Vice President
SCHEDULE A
A. ANNEX
A.J.L. BEARE
X. XXXXXX
X. XXXXXXXX
MINT HOUSE NOMINEES LIMITED
PINE STREET VENTURES, L.L.C.
Z FOUR PARTNERS L.L.C.
SCHEDULE B
- Xxxxx, Xxxx & Xxxxx Venture Associates III, L.P.
- WPG Enterprise Fund II, L.P.
- WPG Corporate Development Associates, IV, L.P.
- WPG Corporate Development Associates IV (Overseas),
L.P.
- Westpool Investment Trust plc
- Lion Investments Limited
- Xxxxxxx X. Xxxxx
SCHEDULE C
Fees Payable to Escrow Agent
SCHEDULE D
[Letterhead of Banco Santander Puerto Rico]
TO WHOM IT MAY CONCERN:
Wire Transfer Information:
Bank Name: Bankers Trust Co., New York, NY
ABA Number: 021-001033
Favor of: Banco Santander Puerto Rico
New York Branch
Account No.: 00-000-000
For further credit:
Account No.: 000 000 0000 PESA, INC. ESCROW ACCOUNT
Should you have any questions, please do not hesitate to contact our office.
Sincerely,
s/Xxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxxx
Manager, New York Branch
