EXHIBIT 2(b)
ESCROW AGREEMENT
This Escrow Agreement (the "Agreement") is entered into as
of December 8, 1995, by and among Thermo Remediation Inc., a
Delaware corporation (the "Buyer"), Xxxxxx X. Xxxxxx and Xxxxxx
X. Xxxxxx (the "Indemnification Representatives"), those persons
or entities set forth in Schedule I hereto and State Street Bank
and Trust Company, a Massachusetts trust company (the "Escrow
Agent").
WHEREAS, the Buyer and Remediation Technologies, Inc. (the
"Company") have entered into an Agreement and Plan of Merger
dated December 1, 1995 (the "Merger Agreement") by and among the
Company, the Buyer and a subsidiary of the Buyer, pursuant to
which such subsidiary will be merged into the Company which, as
the surviving corporation (the "Surviving Corporation"), will
become a wholly-owned subsidiary of the Buyer.
WHEREAS, the Merger Agreement provides that an escrow
account will be established to secure the indemnification
obligations to the Buyer in Article VI of the Merger Agreement on
the terms and conditions set forth herein.
WHEREAS, the parties hereto desire to establish the terms
and conditions pursuant to which such escrow account will be
established and maintained.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Defined Terms. Capitalized terms used in this
Agreement and not otherwise defined shall have the meanings given
them in the Merger Agreement.
2. Consent of Company Stockholders. By virtue of the
Company Stockholders' approval of the Merger Agreement, and/or by
their execution of Forms of Election and/or Optionee Consent
Agreements, Company Stockholders set forth in Schedule I hereto,
as such schedule may be amended, (the "Indemnifying
Stockholders") have consented to: (a) the indemnification of the
Buyer, the Company and the Subsidiaries as set forth in Article
VI of the Merger Agreement; and (b) their agreement to be bound
by the terms of this Escrow Agreement and to be a party hereto
with the same force and effect as if they were a signatory
hereto, including without limitation (i) the establishment of
this escrow to secure the indemnification obligations to the
Buyer under Article VI of the Merger Agreement in the manner set
forth herein, and (ii) the appointment of the Indemnification
Representatives as their representatives for purposes of this
Agreement and as attorneys-in-fact and agents for and on behalf
of each Indemnifying Stockholder, and the taking by the
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Indemnification Representatives of any and all actions and the
making of any decisions required or permitted to be taken or made
by them under this Agreement.
3. Escrow and Indemnification.
(a) Escrow of Shares, Warrants and Cash. On the
Closing Date, the Buyer shall deposit with the Escrow Agent a
check issued in the name of the Escrow Agent in the amount of
Cash Consideration (the "Escrow Cash") and on, but not before,
January 3, 1996 the Buyer shall deposit with the Escrow Agent
shares of Buyer Common Stock and Buyer Warrants comprising the
Merger Units (the "Escrow Units"), which shall be registered in
the name of the Escrow Agent or its nominee. The Escrow Units
and the Escrow Cash are collectively referred to herein as the
"Escrow Property." The Buyer may from time to time deposit
additional Escrow Property with the Escrow Agent, as provided
under Optionee Consent Agreements being executed by the Buyer and
certain individuals in connection with the Merger. The Buyer
shall be entitled to a pro rata distribution of the Escrow Cash
to reflect the payment of any amounts to a Dissenting
Stockholder. As any such Escrow Property is deposited or
withdrawn, Schedule I shall be appropriately modified by the
Indemnification Representative and provided to the Escrow Agent.
The Escrow Property shall be held as a trust fund and shall not
be subject to any lien, attachment, trustee process or any other
judicial process of any creditor of any party hereto. The Escrow
Agent agrees to accept delivery of the Escrow Property and to
hold the Escrow Property in an escrow account (the "Escrow
Account"), subject to the terms and conditions of this Agreement.
(b) Investment of Escrow Cash. The Escrow Agent shall
invest the Escrow Cash as directed in writing by the
Indemnification Representatives in any of the following:
(i) obligations issued by The United States
of America or an agency or instrumentality thereof and guaranteed
by The United States of America;
(ii) certificates of deposit of, or interest
bearing deposits with, national banks or corporations endowed
with trust powers, including the Escrow Agent, having capital and
surplus in excess of $100,000,000;
(iii) commercial paper that at the time of
investment is rated A-1 by Standard & Poor's Corporation or P-1
by Xxxxx'x Investor Services, Inc.;
(iv) repurchase agreements with any bank or
corporation described in Section 3(b)(ii) hereof, or registered
broker-dealers, fully secured by obligations described in Section
3(b)(i) hereof; or
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(v) an insured money market account offered
by the Escrow Agent ("IMMA").
(c) Indemnification. The Buyer, the Company and the
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Subsidiaries shall be held harmless from and against specified
Damages as set forth in Article VI of the Merger Agreement. The
Escrow Property shall be security for such indemnity obligation,
subject to the limitations, and in the manner provided, in this
Agreement.
(d) Interest, Dividends, Etc. Any securities, cash
dividends or property (other than securities) distributable on or
after January 3, 1996 in respect of or in exchange for any of the
Escrow Units, whether by way of stock dividends, stock splits or
otherwise, shall be delivered to the Escrow Agent, who shall hold
such securities, cash dividends or property (other than
securities) in the Escrow Account. Such securities shall be
issued in the name of the Escrow Agent or its nominee and all
such securities, cash dividends or property (other than
securities) shall be considered Escrow Property for purposes
hereof. Any interest on the Escrow Cash on or after January 3,
1996 shall be added to the Escrow Property and for tax reporting
purposes shall be allocable to the Indemnifying Stockholders.
Any interest on the Escrow Cash prior to January 3, 1996 shall be
distributed to and for tax purposes shall be allocable to the
Buyer. The Escrow Units shall not be considered as outstanding
securities of the Buyer for any purpose (including for
entitlement to dividends) prior to January 3, 1996. For tax
purposes, the Escrow Property shall be deemed to be the property
of the Buyer until January 3, 1996, and all parties hereto shall
file all their tax returns consistent with such treatment. The
parties hereto agree to supply the Escrow Agent with an original,
signed IRS Form W-9 or its equivalent.
(e) Voting of Shares. The Indemnification
Representatives shall have the right, in their sole discretion,
on behalf of the Indemnifying Stockholders, to direct the Escrow
Agent in writing as to the exercise of any voting rights
pertaining to the Escrow Units on or after January 3, 1996, and
the Escrow Agent shall comply with any such written instructions.
In the absence of such instructions, the Escrow Agent shall not
vote any of the Escrow Units. The Indemnification
Representatives shall have no obligation to solicit consents or
proxies from the Indemnifying Stockholders for purposes of any
such vote.
(f) Transferability. The respective interests of the
Indemnifying Stockholders in the Escrow Property shall not be
assignable or transferable, other than by operation of law.
Notice of any such assignment or transfer by operation of law
shall be given to the Escrow Agent and the Buyer, and no such
assignment or transfer shall be valid until such notice is given.
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4. Administration of Escrow Account. The Escrow Agent
shall administer the Escrow Account as follows:
(a) If the Buyer, the Company or any Subsidiary has
incurred or suffered Damages for which it is entitled to
indemnification under Article VI of the Merger Agreement, it
shall, prior to the expiration of the representation, warranty,
covenant or agreement to which such claim relates, give written
notice of such claim (a "Claim Notice") to the Indemnification
Representatives and the Escrow Agent. The Buyer may make a Claim
Notice only based upon a good faith belief that it has incurred
Damages for which it is entitled to indemnification under Article
VI of the Merger Agreement. Each Claim Notice shall state the
amount of claimed Damages (the "Claimed Amount") and the basis
for such claim. The date on which all of the representations,
warranties, covenants and agreements of the Company expire in
accordance with Section 6.5 of the Merger Agreement shall be
referred to herein as the "Termination Date."
(b) Claims for indemnification involving a claim or
legal proceeding by a third party shall be made in accordance
with the procedures set forth in Article VI of the Merger
Agreement. For indemnification claims not involving any claim or
legal proceeding by a third party, the procedures herein shall
apply. Within 30 days after delivery of a Claim Notice the
Indemnification Representatives shall provide to the Buyer, with
a copy to the Escrow Agent, a written response (the "Response
Notice") in which the Indemnification Representatives shall:
(i) agree that Escrow Property having a Fair Market Value (as
computed pursuant to Section 6) equal to the full Claimed Amount
may be released from the Escrow Account to the Buyer, (ii) agree
that Escrow Property having a Fair Market Value equal to part,
but not all, of the Claimed Amount (the "Agreed Amount") may be
released from the Escrow Account to the Buyer, or (iii) contest
that any of the Escrow Property may be released from the Escrow
Account to the Buyer. The Indemnification Representatives may
contest the release of Escrow Property having a Fair Market Value
equal to all or a portion of the Claimed Amount only based upon a
good faith belief that all or such portion of the Claimed Amount
does not constitute Damages for which the Buyer is entitled to
indemnification under Article VI of the Merger Agreement. If no
Response Notice is delivered by the Indemnification
Representatives within such 30-day period, the Indemnification
Representatives shall be deemed to have agreed that Escrow
Property having a Fair Market Value equal to all of the Claimed
Amount may be released to the Buyer from the Escrow Account.
(c) If the Indemnification Representatives in the
Response Notice agree (or are deemed to have agreed) that Escrow
Property having a Fair Market Value equal to all of the Claimed
Amount may be released from the Escrow Account to the Buyer, the
Escrow Agent shall, promptly following the earlier of the
required delivery date for the Response Notice or the delivery of
the Response Notice, transfer, deliver and assign to the Buyer
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such amount of Escrow Property held in the Escrow Account which
has a Fair Market Value equal to the Claimed Amount (or such
lesser amount of Escrow Property as is then held in the Escrow
Account). The relative amount of Escrow Cash and Escrow Units to
be released shall be determined in accordance with the provisions
of Section 5 below.
(d) If the Indemnification Representatives in the
Response Notice agree that Escrow Property having a Fair Market
Value equal to part, but not all, of the Claimed Amount may be
released from the Escrow Account to the Buyer, the Escrow Agent
shall promptly following the delivery of the Response Notice
transfer, deliver and assign to the Buyer such amount of Escrow
Property held in the Escrow Account which has a Fair Market Value
equal to the Agreed Amount (or such lesser amount of Escrow
Property as is then held in the Escrow Account). The relative
amount of Escrow Cash and Escrow Units to be released shall be
determined in accordance with the provisions of Section 5 below.
(e) If the Indemnification Representatives in the
Response Notice contest the release of Escrow Property having a
Fair Market Value equal to all or part of the Claimed Amount (the
"Contested Amount"), the Indemnification Representatives and the
Buyer shall attempt promptly and in good faith to agree upon the
rights of the parties with respect to the Contested Amount. If
the Indemnification Representatives and the Buyer should so
agree, a memorandum setting forth such agreement shall be
prepared and signed by both parties and the Escrow Agent shall
transfer, assign and deliver to the Buyer an amount of Escrow
Property which has a Fair Market Value equal to the amount so
agreed. The relative amount of Escrow Cash and Escrow Units to
be released shall be determined in accordance with the provisions
of Section 5 below. If no such agreement can be reached after
good faith negotiation over a period of 30 days (or such longer
period as the Buyer and the Indemnification Representatives may
mutually agree), the matter shall be settled by binding
arbitration in Boston, Massachusetts. All claims shall be
settled by a single arbitrator mutually agreeable to the Buyer
and the Indemnification Representatives, or if they cannot agree
to a single arbitrator in 30 days, by three arbitrators, in
accordance with the Commercial Arbitration Rules then in effect
of the American Arbitration Association (the "AAA Rules"). If a
single arbitrator has not been mutually agreed upon, the
Indemnification Representatives and the Buyer shall each
designate one arbitrator within 60 days of the delivery of the
Indemnification Representatives' Response Notice contesting the
Claimed Amount. The Indemnification Representatives and the
Buyer shall cause such designated arbitrators mutually to agree
upon and designate a third arbitrator; provided, however, that
(i) failing such agreement within 90 days of delivery of the
Indemnification Representatives' Response Notice, the third
arbitrator shall be appointed in accordance with the AAA Rules,
and (ii) if either the Indemnification Representatives or the
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Buyer fail to timely designate an arbitrator, the dispute shall
be resolved by the one arbitrator timely designated. The
Indemnifying Stockholders and the Buyer shall pay the fees and
expenses of their respectively designated arbitrators and shall
bear equally the fees and expenses of the third arbitrator (or of
the sole arbitrator, in the event a single arbitrator decides the
matter). The Indemnification Representatives and the Buyer shall
cause the arbitrators to decide the matter to be arbitrated
pursuant hereto within 60 days after the appointment of the last
arbitrator. The arbitrators' decision shall relate solely to
whether the Buyer, the Company and/or the Subsidiary is entitled
to receive the Contested Amount (or a portion thereof) pursuant
to the applicable terms of the Merger Agreement and this
Agreement. The final decision of the arbitrator, or the majority
of the arbitrators in the case of three arbitrators, shall be
furnished to the Indemnification Representatives, the Buyer and
the Escrow Agent in writing and shall constitute a conclusive
determination of the issue in question, binding upon the
Indemnification Representatives, the Indemnifying Stockholders,
the Buyer, the Company, the Subsidiaries and the Escrow Agent,
and shall not be contested by any of them. Such decision may be
used in a court of law only for the purpose of seeking
enforcement of the arbitrators' award.
(f) After delivery of a Response Notice that the
Claimed Amount is contested by the Indemnification
Representatives, the Escrow Agent shall continue to hold in the
Escrow Account an amount of Escrow Property having a Fair Market
Value sufficient to cover the Contested Amount (up to the amount
of Escrow Property then available in the Escrow Account),
notwithstanding the occurrence of a release date (as set forth in
Section 5 below), until (i) delivery of a copy of a settlement
agreement executed by the Buyer and the Indemnification
Representatives setting forth instructions to the Escrow Agent as
to the release of Escrow Property, if any, that shall be made
with respect to the Contested Amount, or (ii) delivery of a copy
of the final award of the arbitrator, or a majority of the
arbitrators in the case of three arbitrators, setting forth
instructions to the Escrow Agent as to the release of Escrow
Property, if any, that shall be made with respect to the
Contested Amount. The Escrow Agent shall thereupon release
Escrow Property from the Escrow Account (to the extent Escrow
Property is then held in the Escrow Account) in accordance with
such agreement or instructions.
(g) If, as a result of any third party claim or legal
proceeding subject to the indemnification procedures set forth in
the Merger Agreement, any settlement has been entered into, or
any judgment entered in favor of any third party (which is not
subject to further appeal), the Buyer, the Company or any
Subsidiary may give notice of the resulting Damages to the Escrow
Agent and the Escrow Agent shall, promptly following the receipt
of such notice, transfer, deliver and assign to the Buyer such
amount of Escrow Property held in the Escrow Account which has a
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Fair Market Value equal to such Damages (or such lesser amount of
Escrow Property as is then held in the Escrow Account). The
relative amounts of Escrow Cash and Escrow Units to be released
shall be determined in accordance with the provisions of
Section 5 below.
(h) In the event that, at the time that the Escrow
Agent is to release any amounts to the Buyer hereunder,
signatories to Optionee Consent Agreements would be required to
forfeit certain stock options, the Buyer and the Indemnification
Representatives agree that they will in good faith determine the
value of such forfeitures and issue joint written instructions to
the Escrow Agent identifying an adjustment to be made in the
amounts of the Escrow Property to be distributed to the Buyer
hereunder.
5. Release of Escrow Property.
(a) Promptly after January 5, 1996, the Escrow Agent
shall distribute to the Indemnifying Stockholders Escrow Property
having a Fair Market Value equal to the difference between (i)
80% of the Escrow Property initially deposited with the Escrow
Agent and (ii) any amounts previously distributed from the Escrow
Fund in payment of any indemnification obligation to the Buyer
under Article VI of the Merger Agreement (the "Initial
Distribution"). Notwithstanding the foregoing, if the Buyer has
previously given a Claim Notice which has not then been resolved
in accordance with Section 4 or the terms of the Merger Agreement
(as applicable), the Escrow Agent shall only distribute under
this subsection 5(a) Escrow Property having a Fair Market Value
equal to the difference between (x) the Fair Market Value of the
Initial Distribution, and (y) the Claimed Amount.
(b) Promptly after the first anniversary of the
Effective Time, the Escrow Agent shall distribute to the
Indemnifying Stockholders Escrow Property having a Fair Market
Value equal to the difference between (i) 10% of the Escrow
Property initially deposited with the Escrow Agent, and (ii) any
amounts previously distributed from the Escrow Fund in payment of
any indemnification obligation to the Buyer under Article VI of
the Merger Agreement, except to the extent such amounts had
previously reduced the Initial Distribution (the "Second
Distribution"). Notwithstanding the foregoing, if the Buyer has
previously given a Claim Notice which has not then been resolved
in accordance with Section 4 or the Terms of the Merger Agreement
(as applicable) or otherwise fully reserved for in connection
with a distribution under subsection 5(a) above, the Escrow Agent
shall only distribute under this subsection 5(b) Escrow Property
having a Fair Market value equal to the difference between (x)
10% of the Fair Market Value of the Escrow Property initially
deposited with the Escrow Agent, and (y) the Claimed Amount (or
such portion thereof as has not been fully reserved for in
connection with a distribution under subsection 5(a) above).
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(c) Promptly after the Termination Date, the Escrow
Agent shall distribute to the Indemnifying Stockholders all of
the Escrow Property then held in escrow. Notwithstanding the
foregoing, if the Buyer has previously given a Claim Notice which
has not then been resolved in accordance with Section 4 or the
terms of the Merger Agreement (as applicable), the Escrow Agent
shall retain in the Escrow Account after the Termination Date an
amount of Escrow Property having a Fair Market Value equal to the
Claimed Amount covered by any Claim Notice which has not then
been resolved. Any funds so retained in escrow shall be
disbursed in accordance with the terms of the resolution of such
claims.
(d) Any distribution of all or a portion of the Escrow
Property to the Indemnifying Stockholders shall be made in
accordance with the percentage interests set forth opposite such
holders' respective names on Schedule I attached hereto;
provided, however, (i) that the Escrow Agent shall withhold the
distribution of the portion of the Escrow Property otherwise
distributable to Indemnifying Stockholders who have not,
according to written notice provided by the Buyer to the Escrow
Agent, prior to such distribution, surrendered their respective
Certificates pursuant to the terms and conditions of the Merger
Agreement; (ii) that such Schedule I shall be appropriately
revised in the event the Buyer deposits additional Escrow
Property with the Escrow Agent pursuant to the Merger Agreement
or Optionee Consent Agreements following the date of this
Agreement; (iii) that Escrow Units shall only be distributed to
those Indemnifying Stockholders listed in Schedule I as entitled
to receive Escrow Units (the "Unit Stockholders"); (iv) that,
with respect to the Initial Distribution, the Indemnification
Representatives shall direct the Escrow Agent in writing the
relative amount of the Escrow Cash and whole Escrow Units to
distribute to the Unit Stockholders (consistent with the
provisions of subsection 5(a) hereof); and (v) that Unit
Stockholders shall thereafter receive Escrow Cash and Escrow
Units in proportion to the relative Fair Market Value of Escrow
Cash and Escrow Units held on their behalf in escrow hereunder
immediately after the Initial Distribution (with any fractional
Escrow Units rounded down to the next whole Escrow Unit). Any
property withheld pursuant to clause (i) above shall be delivered
to the Buyer promptly after the Termination Date, and shall be
delivered by the Buyer to the Indemnifying Stockholders to whom
such property would have otherwise been distributed upon
surrender of their respective Certificates. Distributions to the
Indemnifying Stockholders shall be made by mailing stock
certificates and Buyer Warrants and/or cash to such holders at
their respective addresses shown on Schedule I (or such other
address as may be provided in writing to the Escrow Agent by any
such holder). No fractional Escrow Units shall be distributed to
Indemnifying Stockholders pursuant to this Agreement. Instead,
the Buyer shall redeem such Escrow Units for an amount equal to
their Fair Market Value and the Escrow Agent shall distribute
cash in lieu thereof. The Buyer will cooperate with the Escrow
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Agent and will make available certificates for Buyer Common Stock
and Buyer Warrants in such denominations and in such names as may
be required to effectuate any distributions hereunder.
6. Valuation of Escrow Shares. For purposes of this
Agreement, the Fair Market Value of each Escrow Unit shall be
$49.00, the Fair Market Value of each Warrant shall be $4.00, and
the Fair Market Value of the Buyer Common Stock shall be $15.00
per share.
7. Fees and Expenses of Escrow Agent. The Buyer agrees to
pay or reimburse the Escrow Agent for any legal fees and expenses
incurred in connection with the preparation of this Agreement and
to pay the Escrow Agent's reasonable compensation for its normal
services hereunder in accordance with the attached Schedule II,
which may be subject to change on an annual basis. The Escrow
Agent shall be entitled to reimbursement on demand for all
expenses incurred in connection with the administration of the
escrow created hereby which are in excess of its compensation for
normal services hereunder, including without limitation, payment
of any legal fees and expenses incurred by the Escrow Agent in
connection with the resolution of any claim by any party
hereunder.
8. Responsibility of the Escrow Agent.
(a) The Escrow Agent may act upon any instrument or
other writing believed by it in good faith to be genuine and to
have been signed or presented by the proper person and shall have
no responsibility for determining the accuracy thereof. The
Escrow Agent shall not be liable to any party hereto in
connection with the performance of its duties hereunder, except
for its own gross negligence, bad faith or willful misconduct.
The Escrow Agent's duties shall be determined only with reference
to this Agreement and applicable laws and the Escrow Agent is not
charged with knowledge of, or any duties or responsibilities in
connection with, any other document or agreement. If in doubt as
to its duties and responsibilities hereunder, the Escrow Agent
may consult with counsel of its choice and shall be protected in
any action reasonably taken or omitted in connection with the
advice or opinion of such counsel.
(b) If any party to this Agreement disagrees on
anything connected with this escrow, (i) the Escrow Agent will
not have to settle the matter, (ii) the Escrow Agent may wait for
a settlement by appropriate legal proceedings or other means it
may require, and in such event it will not be liable for damages,
(iii) if the Escrow Agent intervenes in or is made a party to any
legal proceedings, it will be entitled to such reasonable
compensation for services, costs and attorney's fees as the court
may award, and (iv) the Escrow Agent is entitled to hold assets
deposited in escrow hereunder pending settlement of the
disagreement by any of the above means.
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(c) The Escrow Agent is to act as a depository agent
only and is hereby relieved of any liability in connection with
any representations made by the other parties hereto or any of
their agents. The Escrow Agent shall not be responsible for and
shall not be under a duty to examine any other agreement.
9. Indemnification of Escrow Agent. Neither the Escrow
Agent nor any of its directors, officers or employees shall be
liable to anyone for any action taken or omitted to be taken by
it or any of its directors, officers or employees hereunder
except in the case of gross negligence, bad faith or willful
misconduct. Buyer and Indemnifying Stockholders, jointly and
severally, covenant and agree to indemnify the Escrow Agent and
hold it harmless without limitation from and against any loss,
liability or expense of any nature incurred by the Escrow Agent
arising out of or in connection with this Agreement or with the
administration of its duties hereunder, including, but not
limited to, legal fees and expenses and other costs and expenses
of defending or preparing to defend against any claim of
liability in the premises, unless such loss, liability or expense
shall be caused by the Escrow Agent's gross negligence, bad faith
or willful misconduct. In no event shall the Escrow Agent be
liable for indirect, punitive, special or consequential damages.
10. Resignation of the Escrow Agent. The Escrow Agent may
resign and be discharged from its duties hereunder at any time by
giving not less than 60 days prior written notice of such
resignation to the Buyer and the Indemnification Representatives,
which notice shall specify the date when such resignation shall
take effect. Upon such notice, the Buyer and the Indemnification
Representatives shall jointly appoint a successor to the Escrow
Agent. If the Buyer and the Indemnification Representatives are
unable to agree upon a successor to the Escrow Agent within 30
days after such notice, the Escrow Agent may apply to a court of
competent jurisdiction for such appointment. The Escrow Agent
shall continue to serve until its successor delivers to the Buyer
and the Indemnification Representatives a duly executed
instrument of acceptance of the terms and conditions of this
Agreement and receives the Escrow Property. The provisions of
Section 9 hereof shall survive the resignation or removal of the
Escrow Agent or the termination of this Escrow Agreement.
11. Liability and Authority of Indemnification
Representatives; Successors and Assignees.
(a) The Indemnification Representatives shall incur no
liability to the Indemnifying Stockholders with respect to any
action taken or suffered by them in reliance upon any note,
direction, instruction, consent, statement or other documents
believed by them to be genuinely and duly authorized, nor for
other action or inaction except their own willful misconduct or
gross negligence. The Indemnification Representatives may, in
all questions arising under the Escrow Agreement, rely on the
advice of counsel and for anything done, omitted or suffered in
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good faith by the Indemnification Representatives based on such
advice, the Indemnification Representatives shall not be liable
to the Indemnifying Stockholders.
(b) In the event of the death or permanent disability
of either Indemnification Representative, or his resignation as
an Indemnification Representative, a successor Indemnification
Representative shall be appointed by the other Indemnification
Representative or, absent such appointment, a successor
Indemnification Representative shall be elected by a majority
vote of the Indemnifying Stockholders, with each such
Indemnifying Stockholder (or his or her successors or assigns) to
be given a vote equal to the number of votes represented by the
Company Shares held by such Indemnifying Stockholder immediately
prior to the Effective Time. Each successor Indemnification
Representative shall have all of the power, authority, rights and
privileges conferred by this Agreement upon the original
Indemnification Representatives, and the term "Indemnification
Representatives" as used herein shall be deemed to include any
and all successor Indemnification Representatives.
(c) The Indemnification Representatives, acting
jointly but not singly, shall have full power and authority to
represent the Indemnifying Stockholders, and their successors,
with respect to all matters arising under this Agreement and all
actions taken by any Indemnification Representative hereunder
shall be binding upon the Indemnifying Stockholders, and their
successors, as if expressly confirmed and ratified in writing by
each of them. Without limiting the generality of the foregoing,
the Indemnification Representatives, acting jointly but not
singly, shall have full power and authority to interpret all of
the terms and provisions of this Agreement, to compromise any
claims asserted hereunder and to authorize payments to be made
with respect thereto, on behalf of the Indemnifying Stockholders
and their successors. All actions to be taken by the
Indemnification Representatives hereunder shall be evidenced by,
and taken upon, the written direction of both of them.
12. Amounts Payable by Indemnifying Stockholders. The fees
and out-of-pocket expenses incurred by the Indemnifying
Stockholders in resolving Claim Notices under this Agreement and
in defending third party claims in connection with Article VI of
the Merger Agreement shall be payable solely as follows. The
Indemnification Representatives shall notify the Escrow Agent of
any such fees and expenses incurred by the Indemnifying
Stockholders prior to making payment thereof, with a copy of such
notice to the Buyer. On the sixth business day after the
delivery of such notice, the Escrow Agent shall disburse Escrow
Cash and the Buyer will redeem the Escrow Units, as is necessary
to raise an amount necessary to pay such fees and expenses, and
shall disburse such amounts to the party to whom such amount is
owed in accordance with the instructions of the Indemnification
Representatives; provided that if the Buyer delivers to the
Escrow Agent (with a copy to the Indemnification
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Representatives), within five business days after delivery of
such notice by the Indemnification Representatives, a written
notice contesting the legitimacy or reasonableness of such fees
and expenses, then the Escrow Agent shall not make such
disbursement and such dispute shall be resolved by the Buyer and
the Indemnification Representatives in accordance with the
procedures set forth in Section 4(e).
13. Termination. This Agreement shall terminate upon the
later of the Termination Date or the distribution by the Escrow
Agent of all of the Escrow Property in accordance with this
Agreement.
14. Notices. All notices, instructions and other
communications given hereunder or in connection herewith shall be
in writing. Any such notice, instruction or communication shall
be sent either (i) by registered or certified mail, return
receipt requested, postage prepaid, or (ii) via a reputable
nationwide overnight courier service, in each case to the address
set forth below. Any such notice, instruction or communication
shall be deemed to have been delivered two business days after it
is sent by registered or certified mail, return receipt
requested, postage prepaid, or one business day after it is sent
via a reputable nationwide overnight courier service.
If to the Buyer:
Thermo Remediation Inc.
00 Xxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Attention: President
with a copy to:
Xxxx and Xxxx
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
If to the Indemnification Representatives:
Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
c/o Van Xxxx & Xxxxxx
Xxx Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
If to the Escrow Agent:
State Street Bank and Trust Company
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Corporate Trust Department
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PAGE
Any party may give any notice, instruction or communication
in connection with this Agreement using any other means
(including personal delivery, telecopy or ordinary mail), but no
such notice, instruction or communication shall be deemed to have
been delivered unless and until it is actually received by the
party to whom it was sent. Any party may change the address to
which notices, instructions or communications are to be delivered
by giving the other parties to this Agreement notice thereof in
the manner set forth in this Section 14.
15. General.
(a) Governing Law, Assigns. This Agreement shall be
governed by and construed in accordance with the internal laws of
the Commonwealth of Massachusetts without regard to
conflict-of-law principles and shall be binding upon, and inure
to the benefit of, the parties hereto and their respective
successors and assigns.
(b) Counterparts. This Agreement may be executed in
two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the
same instrument.
(c) Entire Agreement. Except for those provisions of
the Merger Agreement and the Optionee Consent Agreements
referenced herein, this Agreement constitutes the entire
understanding and agreement of the parties with respect to the
subject matter of this Agreement and supersedes all prior
agreements or understandings, written or oral, between the
parties with respect to the subject matter hereof.
(d) Waivers. No waiver by any party hereto of any
condition or of any breach of any provision of this Escrow
Agreement shall be effective unless in writing. No waiver by any
party of any such condition or breach, in any one instance, shall
be deemed to be a further or continuing waiver of any such
condition or breach or a waiver of any other condition or breach
of any other provision contained herein.
(e) Amendment. This Agreement may be amended only
with the written consent of the Buyer, the Escrow Agent and the
Indemnification Representatives.
(f) Force Majeure. Neither the Buyer, nor the
Indemnification Representatives, nor the Escrow Agent shall be
responsible for delays or failures in performance resulting from
acts beyond their 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 disaster.
13
PAGE
(g) 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 any photographic,
photostatic, microfilm, optical disk, micro-card, miniature
photographic or other similar process. The parties hereto 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 shall likewise be admissible in evidence.
IN WITNESS WHEREOF, the parties have duly executed this
Agreement as of the day and year first above written.
THERMO REMEDIATION INC.
By: /s/ Xxxx X. Xxxxxxxx
/s/ Xxxxxx X. Xxxxxx
XXXXXX X. XXXXXX
/s/ Xxxxxx X. Xxxxxx
XXXXXX X. XXXXXX
EACH INDEMNIFYING STOCKHOLDER AS
SET FORTH IN SCHEDULE I AND EACH
PARTY TO AN OPTIONEE CONSENT
AGREEMENT
By: /s/ Xxxxxx X. Xxxxxx
XXXXXX X. XXXXXX
ATTORNEY-IN-FACT
STATE STREET BANK AND TRUST COMPANY
By: /s/ Xxxx Xxxxxx
14
