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EXHIBIT 10.18
ESCROW AGREEMENT
This AGREEMENT (the "Agreement"), dated as of May 12, 1997, by
and among INTEGRATED SITE DEVELOPMENT, INC. (the "Company"), a Delaware
corporation, XXXXXX FAMILY LIMITED PARTNERSHIP (the "Stockholder"), an Arkansas
limited partnership, and XXXXXXXX XXXXX SINGER & XXXXXXXXX, LLP (the "Escrow
Agent"), as escrow agent hereunder. Any capitalized terms used herein and not
otherwise defined herein, shall have the meanings assigned to them in the Stock
Restriction Agreement (as defined below).
W I T N E S S E T H:
WHEREAS, the Company and the Stockholder are parties to a
Stock Restriction Agreement (the "Stock Restriction Agreement"), dated as of
May 12, 1997;
WHEREAS, pursuant to the Stock Restriction Agreement, the
Company and the Stockholder have agreed that 408,764 of his shares of Common
Stock, par value $0.001, per share of the Company, shall be deposited with the
Escrow Agent to be held in escrow (the "Escrowed Shares") for the purpose of
facilitating the repurchase by the Company of the Escrowed Shares under the
circumstances set forth in the Stock Restriction Agreement.
NOW, THEREFORE, in consideration of the foregoing and of the
mutual covenants contained herein, the parties hereto agree as follows:
1. ESCROW.
(a) The Company and the Stockholder hereby
establish this escrow by designating the Escrow Agent as their escrow agent for
the purposes set forth herein, and the Escrow Agent hereby agrees to act as
said escrow agent.
(b) The Stockholder is herewith assigning and
delivering to the Escrow Agent, and the Escrow Agent hereby acknowledges
receipt of, the Escrowed Shares, duly endorsed in blank or accompanied by stock
powers duly executed in blank. The term "Escrowed Shares" as used herein shall
include such securities of the Company distributed with respect to the Escrowed
Shares then in escrow, together with any proceeds thereof. Upon receipt of any
securities distributed to the Stockholder with respect to the Escrowed Shares
or any proceeds with respect to any Escrowed Shares, the Stockholder agrees to
promptly deliver such distributed securities or proceeds, as the case may be,
directly to the Escrow Agent, to be held in escrow in accordance with the terms
hereof.
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(c) The Escrow Agent shall hold and release the
Escrowed Shares in accordance with the terms and conditions of this Agreement.
2. DISPOSITION OF ESCROWED SHARES.
(a) At such times as the Company exercises the
Purchase Option pursuant to the terms of the Stock Restriction Agreement, it
shall provide the Escrow Agent with a copy of the notice (the "Exercise
Notice") delivered pursuant to Section 3(a) of the Stock Restriction Agreement,
together with a check in the amount of the Option Price payable to the order of
the Stockholder (the "Company Check"). The copy of the Exercise Notice shall be
accompanied by a certification by the Company that it was contemporaneously
delivered to the Stockholder. Promptly following ten (10) days after its
receipt of the Exercise Notice, the Escrow Agent shall deliver to (i) the
Company the number of Escrowed Shares specified in the Exercise Notice and (ii)
the Stockholder the Company Check; provided, however, that no such delivery of
the Escrowed Shares or the Company Check shall be made if the Escrow Agent
shall have received from the Stockholder a notice (the "Stockholder Counter
Notice") stating that the Company is not entitled to the Escrowed Shares
pursuant to the terms of the Stock Restriction Agreement. The Stockholder
Counter Notice shall be accompanied by a certification by the Stockholder that
a copy of the Stockholder Counter Notice was contemporaneously delivered to the
Company.
(b) In the event the Purchase Option has expired
as to any of the Escrowed Shares, the Stockholder may provide written notice
(the "Release Notice") to the Escrow Agent setting forth the number of Escrowed
Shares that are no longer subject to the Purchase Option. The Release Notice
shall be accompanied by a certification by the Company that a copy of the
Release Notice was contemporaneously delivered to the Company. Promptly
following ten (10) days after its receipt of the Release Notice, the Escrow
Agent shall deliver to the Stockholder the number of Escrowed Shares specified
in the Release Notice; provided, however, that no such delivery of the Escrowed
Shares shall be made if the Escrow Agent shall have received from the Company a
notice (the "Company Counter Notice") stating that the Stockholder is not
entitled to the Escrowed Shares pursuant to the terms of the Stock Restriction
Agreement. The Company Counter Notice shall be accompanied by a certification
by the Stockholder that a copy of the Company Counter Notice was
contemporaneously delivered to the Company.
(c) On July 1, 1999, the Escrow Agent shall
deliver to the Stockholder all of the Escrowed Shares, if any, then remaining
in escrow. Notwithstanding the foregoing, the Escrowed Shares shall not be
released pursuant to this Section 2(c) if an Exercise Notice or Company Counter
Notice was received by the Escrow Agent before July 1, 1999. The Escrowed
Shares shall be released in accordance with the provisions of Section 4(g)
hereof.
3. DIVIDENDS AND VOTING POWER.
While the Escrowed Shares are being held in escrow, the
Stockholder shall be entitled to all rights (other than the right to dispose of
the Escrowed Shares) with respect to the Escrowed
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Shares, including without limitation, the right to exercise all voting power
and to receive and retain any and all dividends (other than stock or
liquidating dividends, which shall be deposited into escrow in accordance with
the terms and conditions of paragraph 1(b) hereof) declared or paid on the
Escrowed Shares being held in escrow.
4. NO LIABILITY OF ESCROW AGENT.
(a) The duties and obligations of the Escrow
Agent shall be determined solely by the express provisions of this Agreement,
and the Escrow Agent shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this Agreement.
(b) The Escrow Agent shall not be responsible in
any manner whatsoever for any failure or inability of the Company or the
Stockholder to perform or comply with any of the provisions of this Agreement
or the Stock Restriction Agreement.
(c) In the performance of its duties hereunder,
the Escrow Agent shall be entitled to rely upon any document, instrument or
signature believed by it to be genuine and signed by the Company or the
Stockholder. The Escrow Agent may assume that any person purporting to give
any notice in accordance with the provisions hereof has been duly authorized to
do so.
(d) The Escrow Agent shall not be bound by any
modification, cancellation or rescission of this Agreement unless in writing
and signed by it, the Company and the Stockholder.
(e) The Escrow Agent shall not be liable for any
error of judgment, or any action taken or omitted to be taken hereunder, except
in the case of its willful misconduct or gross negligence. The Escrow Agent
shall be entitled to consult with counsel of its choosing and shall not be
liable for any action taken or omitted by it in accordance with the advice of
such counsel.
(f) The Escrow Agent shall have no responsibility
as to the validity or value of the Escrowed Shares held in escrow hereunder.
Furthermore, the Escrow Agent shall have no duty as to the collection or
protection of the Escrowed Shares (including the proceeds thereof) income
thereon, nor as to the preservation of any rights pertaining thereto, beyond
the safe custody of any such Escrowed Shares (including the proceeds thereof)
or income thereon actually in its possession.
(g) In the event that the Escrow Agent shall be
uncertain as to its duties or rights hereunder or shall receive instructions
from any party hereto with respect to any or all of the Escrowed Shares
(including the proceeds thereof) or income thereon which, in its reasonable
opinion, are in conflict with any of the provisions of this Agreement or any
instructions received from one of the other parties to this Agreement, the
Escrow Agent shall be entitled to (i) refrain from taking any action other than
to keep the Escrowed Shares (including the proceeds thereof) or income thereon
in question until such time as there has been a "final determination" of the
rights of the
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applicable parties with respect to such Escrowed Shares (including the proceeds
thereof) or income thereon or (ii) deposit at any time the Escrowed Shares,
together with any proceeds received by it, into any court with competent
jurisdiction and to commence an action in the nature of interpleader to
adjudicate the parties' rights thereto and thereafter shall have no further
obligations or liabilities to anyone under this Agreement. For purposes of
this subparagraph 4(g), there shall be deemed to have been a "final
determination" of the rights of the applicable parties with respect to such
Escrowed Shares in question (including the proceeds thereof) or income thereon
at such time as any of the applicable parties shall file with the Escrow Agent
(i) an official certified copy of a court order, together with an opinion of
counsel of the party filing the foregoing, in form and substance acceptable to
the Escrow Agent and its counsel, stating that the court order is a final
determination of the rights of the parties hereto with respect to the Escrowed
Shares in question, that the time to appeal from said court order has expired,
and that said court order is binding upon the applicable parties, or (ii) a
fully executed agreement or consent by and among the applicable parties, which
provides for disposition of the Escrowed Shares in question (including the
proceeds thereof) or income thereon.
(h) The Escrow Agent or any successor to it as
escrow agent hereafter appointed may at any time resign and be discharged of
the duties imposed hereunder by giving notice to each of the parties hereto,
such resignation to take effect upon a successor escrow agent's acceptance of
appointment.
(i) The parties hereto acknowledges that the
Escrow Agent is counsel to an affiliate of the Company and consents that the
Escrow Agent may represent the Company, any of its affiliates and any entities
in which Company or its affiliates own any securities, equity, debt or
otherwise, in any dispute, controversy, action or legal proceeding (including,
without limitation, against the Stock Holder or involving this Agreement or the
Stock Restriction Agreement).
5. EXPENSES AND INDEMNIFICATION OF ESCROW AGENT.
The Company and the Stockholder shall jointly and severally
reimburse and indemnify the Escrow Agent for, and hold it harmless against, any
and all loss, liability, costs or expenses in connection herewith (including
reasonable fees, disbursements and other charges of counsel incurred by the
Escrow Agent in any dispute, controversy, action or legal proceeding between it
and one of the other parties hereto, or between it and a third party), incurred
by the Escrow Agent arising out of or in connection with its acceptance of, or
the performance of its duties and obligations under this Agreement (except
those arising out of or in connection with Escrow Agent's willful misconduct or
gross negligence) as well as the reasonable costs and expenses of defending
against any claim or liability arising out of or relating to this Agreement. As
between themselves, the Company and the Stockholder each agrees to bear fifty
percent (50%) of all amounts paid or reimbursed to the Escrow Agent pursuant to
this Section 5.
6. TERMINATION.
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This Agreement, and the obligations of the Escrow Agent
hereunder, shall terminate upon the release and delivery by the Escrow Agent of
all Escrowed Shares (including the proceeds thereof) and stock powers relating
thereto, if any, in accordance with the provisions of Section 2 hereof.
7. NOTICE.
All notices, instructions and other communications required or
permitted to be given, forwarded or transmitted hereunder or necessary or
convenient in connection herewith shall be in writing and shall be deemed to
have been duly given if delivered by facsimile transmission with a copy
delivered by personal service or sent by United States first class registered
or certified mail, return receipt requested, postage prepaid, addressed as
follows, or to such other address as a party shall have given notice of
pursuant hereto:
In the case of the Company:
Integrated Site Development, Inc.
0000 Xxxxxxxx Xxxx Xxxx
Xxxx, Xxxxx Xxxxxxxx 00000
Telecopier: (000) 000-0000
Attention: Xx. Xxxxxxx X. Xxxxx
Mr. Xxx. Xxxxxx, III
with a copy to:
Xxxxxxxxx & Xxxxx PLLC
0000 Xxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxx Xxxxxxxx 00000
Telecopier: (000) 000-0000
Attention: Xxxx X Xxxxxxxxx, Esq.
In the case of the Stockholder
c/o Xxx X. Xxxxxx, III
00000 Xxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
Telecopier: (000) 000-0000
with a copy to:
Friday, Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxx
0
0
Xxxxx 0000
Xxxxx, Xxxxx Xxxxxxxx 00000
Attention: Price X. Xxxxxxx, Esq.
Telecopier: (000) 000-0000
In the case of the Escrow Agent:
Xxxxxxxx Xxxxx Singer & Xxxxxxxxx, LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telefacsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxx, Esq.
8. GOVERNING LAW.
This Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the State of New York, without regard
to the conflicts of law principles thereof.
9. SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon and inure to the benefit
of the successors and assigns of the parties hereto.
10. ENTIRE AGREEMENT; AMENDMENTS.
This Agreement contains the entire agreement among the parties
hereto with respect to the subject matter hereof. This Agreement may be
amended only by a written instrument signed by all the parties hereto.
11. WAIVERS.
No waiver by any party of any breach of any term contained in
this Agreement, in any one or more instances, shall be deemed to be or
construed as a further or continuing waiver of any such breach or a waiver of
any breach of any other term contained in this Agreement.
12. PARAGRAPH HEADINGS.
The paragraph headings contained in this Agreement are for
convenience of reference only and shall not limit or define the text thereof.
13. COUNTERPARTS.
Telefacsimile transmissions of any executed original document
and/or retransmission of any executed telefacsimile transmission shall be
deemed to be the same as the delivery of an executed original. At the request
of any party hereto, the other parties hereto shall confirm
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telefacsimile transmissions by executing duplicate original documents and
delivering the same to the requesting party or parties. This Agreement may be
executed in any number of counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed on the date first above written.
INTEGRATED SITE DEVELOPMENT, INC.
By: /s/ XXXXXXX X. XXXXX
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General Partner
XXXXXX FAMILY LIMITED PARTNERSHIP
By: /s/ W. XXXXX XXXXXX
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Name: W. Xxxxx Xxxxxx
Title: General Partner
XXXXXXXX XXXXX SINGER & XXXXXXXXX, LLP
By: /s/ XXXXXXXX XXXXX SINGER &
XXXXXXXXX, LLP
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[SIGNATURE PAGE TO ESCROW AGREEMENT]
