EXHIBIT 99.1
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ESCROW AGREEMENT
This Escrow Agreement dated as of the effective date (the "Effective Date")
set forth on schedule 1 attached hereto ("Schedule 1") by and among the
purchaser identified on Schedule 1 (the "Purchaser"), the sellers identified on
Schedule 1, as such schedule may be amended from time to time (the "Sellers"),
who shall be represented with respect to this Escrow Agreement by the
stockholder representative identified on Schedule 1 (the "Stockholder
Representative"), and JPMorganChase Bank, as escrow agent hereunder (the "Escrow
Agent"). Unless otherwise defined herein, all terms have the meaning set forth
in the Agreement and Plan of Merger among Cytyc Corporation, a Delaware
corporation, Cytyc Health Corporation, a Delaware corporation, and Pro Duct
Health, Inc., a Delaware corporation, dated as of October 17, 2001, as amended
(the "Merger Agreement").
WHEREAS, the Purchaser and the Sellers have agreed to deposit in escrow
certain shares of common stock and funds as security for the indemnification
obligations of the Sellers pursuant to Article VIII of the Merger Agreement and
the letter dated October 18, 2001 (the "Indemnification Letter") from Pro Duct
Health, Inc. to Cytyc Corporation and Cytyc Health Corporation (the
"Indemnification Obligations") and wish such deposit to be subject to the terms
and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants hereinafter set forth, the parties hereto agree as follows:
1. APPOINTMENT. The Purchaser and the Sellers hereby appoint the Escrow Agent
as their escrow agent for the purposes set forth herein, and the Escrow Agent
hereby accepts such appointment, under the terms and conditions set forth
herein.
2. ESCROW FUND. Simultaneous with the execution and delivery of this Escrow
Agreement and from time to time thereafter, the Sellers are depositing with the
Escrow Agent the shares of the common stock of the Purchaser, par value $0.01
per share (the "Purchaser Common Stock"), duly endorsed in blank (the "Escrow
Shares"), and the Purchaser is depositing with the Escrow Agent the cash
indicated as the escrow deposit on Schedule 1 and such additional amounts as the
Purchaser may deposit with the Escrow Agent from time to time (the "Escrow
Cash," and collectively the "Escrow Fund"). The Purchaser shall direct the
Escrow Agent with regard to the treatment of any deposits made into the Escrow
Fund following the execution and delivery of this Escrow Agreement. The Escrow
Agent shall hold the Escrow Fund and, subject to the terms and conditions
hereof, shall invest and reinvest the Escrow Cash and the proceeds thereof as
directed in Section 3. The Escrow Cash and the Escrow Shares shall be
separately accounted for by the Escrow Agent and shall be segregated into two
separate accounts within the Escrow Fund. The Escrow Cash shall be held for the
benefit of the Purchaser, and the parties agree to treat the Escrow Cash as
owned by the Purchaser and not received by the Sellers to the extent not
distributed to the Sellers, and to file all Tax Returns on a basis consistent
with such treatment.
3. INVESTMENT OF ESCROW CASH. During the term of this Escrow Agreement, the
Escrow Cash shall be invested and reinvested by the Escrow Agent in the
investment indicated on Schedule 1 or such other investments as shall be
directed in writing by the Purchaser and the Stockholder Representative and as
shall be acceptable to the Escrow Agent. All investment orders involving U.S.
Treasury obligations, commercial paper and other direct investments will be
executed through JPMorgan Xxxxxxx Asset Management (JPMFAM), in the investment
management division of JPMorgan Chase. Subject to principles of best execution,
transactions are effected on behalf of the Escrow Fund through broker-dealers
selected by JPMFAM. In this regard, JPMFAM seeks to attain the best overall
result for the Escrow Fund, taking into consideration quality of service and
reliability. An agency fee will be assessed in connection with each
transaction. Periodic statements will be provided to Purchaser and the
Stockholder Representative reflecting transactions executed on behalf of the
Escrow Fund. The Purchaser and the Stockholder Representative, upon written
request, will receive a statement of transaction details upon completion of any
securities transaction in the Escrow Fund without any additional cost. The
Escrow Agent shall have the right to liquidate any investments held in order to
provide funds necessary to make required payments under this Escrow Agreement.
The Escrow Agent shall have no liability for any loss sustained as a result of
any investment in an investment indicated on Schedule 1 or any investment made
pursuant to the instructions of the parties hereto or as a
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result of any liquidation of any investment prior to its maturity or for the
failure of the parties to give the Escrow Agent instructions to invest or
reinvest the Escrow Cash.
4. VOTING. The registered holders of the Escrow Shares shall have the full
right to vote any Escrow Shares in the Escrow Fund that are not distributed to
the Purchaser in respect of indemnification claims pursuant to the
Indemnification Obligations.
5. DISTRIBUTION ON ESCROW SHARES. The registered holders of the Escrow Shares
shall be entitled to receive the economic benefit of any dividends paid with
respect to the Escrow Shares that are not distributed to the Purchaser in
respect of indemnification claims pursuant to the Indemnification Obligations.
Any cash dividends, dividends payable in securities or other distributions of
any kind paid or made on a portion or all of the Escrow Shares (but excluding
any shares of Purchaser stock received upon a stock split or stock dividend
unless such stock dividend or stock split is taxable to the registered holder of
the Escrow Shares who is the beneficial owner of such shares pursuant to Section
301 of the Internal Revenue Code of 1986, as amended) shall not be held in
escrow hereunder, but shall be distributed by the Escrow Agent directly to the
registered holder of such Escrow Shares upon the Escrow Agent's receipt of
instructions to that effect from the Purchaser and the Stockholder
Representative.
6. DISPOSITION. Any request made of the Escrow Agent for the release of Escrow
Shares or Escrow Cash will be calculated and determined by the Purchaser and
submitted in written form to the Escrow Agent pursuant to the Merger Agreement.
Any such request shall also specify, if applicable, the amount of the Escrow
Fund to be retained in escrow for the benefit of the Sellers. If at any time
the Escrow Agent is requested pursuant to this Escrow Agreement to release the
Escrow Shares to any party other than the Purchaser or the Stockholder
Representative, the parties acknowledge that the Escrow Agent is not responsible
for the disposition of share certificates representing the Escrow Shares while
such certificates are outside its possession nor is the Escrow Agent required to
solicit any such third party for the return of such shares certificates to the
Escrow Fund.
Specifically, in the event that the Purchaser wishes to make any
indemnification claim under Section 8.2 of the Merger Agreement, the Purchaser
shall provide written notice of such claim (an "Indemnification Notice") to the
Escrow Agent and the Stockholder Representative. Any such notice shall, to the
extent practicable, set forth in reasonable detail the basis for the claim and
shall include a good faith determination of the estimated amount of the claim.
Thereafter, the Stockholder Representative shall have twenty-five (25) Business
Days following its receipt of the Indemnification Notice in which to deliver
notice of objection to such claim to the Purchaser and the Escrow Agent. If no
objection notice is given, then the claim in the amount alleged by the Purchaser
in the Indemnification Notice shall be deemed to be valid and indemnifiable
pursuant hereto. No offset shall be permitted if the relevant claim is timely
disputed as set forth above, unless and until its validity is finally resolved.
In the event that the Purchaser is entitled to offset, the Purchaser shall
provide written notice (the "Resolved Claim Notice") of such offset to the
Escrow Agent and the Stockholder Representative. Within five (5) Business Days
after receipt of the Resolved Claim Notice, the Escrow Agent shall deliver to
the Purchaser any Escrow Cash up to the amount of such offset and, to the extent
there is any balance remaining, the Escrow Agent shall also deliver to the
Purchaser a sufficient number of the certificates representing the Escrow Shares
to pay the balance of such offset, whereupon the Purchaser shall, subject to
Section 2.2.2 of the Merger Agreement, cancel the certificates and issue and
deliver to the Escrow Agent new certificates, to be held in escrow, in the names
of the Sellers, which certificates shall cover a number of shares equal to the
number of Escrow Shares covered by the certificates delivered to the Purchaser
less a number of shares determined by dividing the amount of the offset
remaining after payment of the Escrow Cash by the Closing Valuation Price,
subject to the requirements of Section 2.2.2 of the Merger Agreement.
Within five (5) Business Days following the first anniversary of the
Effective Date of the Merger Agreement, upon written notice from the Purchaser,
the Escrow Agent shall distribute to the Sellers, at their respective addresses
set forth on Schedule 1, in an equal amount per Escrow Share, any Escrow Cash
less (i) the amount of Escrow Cash offset prior to the first anniversary of the
Effective Date pursuant to Section 8.2.2 of the Merger Agreement and the above
paragraph, and (ii) an amount of Escrow Cash which the Escrow Agent shall retain
equal to the aggregate amount of indemnification claims in U.S. Dollars made by
the Purchaser pursuant to Section 8.2 of the Merger Agreement which shall be
outstanding and unresolved (the "Aggregate Outstanding Claims"), or in
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the event that the Aggregate Outstanding Claims exceed the remaining amount of
Escrow Cash, all remaining Escrow Cash (such amount of retained Escrow Cash, as
well as any such amount of retained Escrow Cash as it may be further reduced
after the first anniversary of the Effective Date by distributions to the
Sellers and offsets by the Purchaser pursuant to Section 8.2.2 of the Merger
Agreement, the "Retained Escrow Cash"). The Escrow Agent shall also deliver to
the Purchaser the certificates representing the Remaining Escrow Shares (as
defined below), whereupon the Purchaser shall cancel these certificates and (i)
issue in the names of the Sellers in accordance with the Merger Agreement,
certificates in an amount, not to exceed the Remaining Escrow Shares, equal to
the sum of the Claim Shares (as defined below) in respect of any outstanding
indemnification claim made in an Indemnification Notice provided by the
Purchaser pursuant to Section 8.2 of the Merger Agreement, which certificates
shall be delivered to the Escrow Agent to be held in escrow, and (ii) issue in
the names of the Sellers and send to them in accordance with Section 2.2.2 of
the Merger Agreement, certificates representing in the aggregate the amount of
the Distributable Shares (as defined below) (provided that the Purchaser may
adjust the number of shares represented by any certificate to the minimum extent
necessary to avoid fractional shares). For purposes of this Escrow Agreement,
(v) the term "Claim Shares" shall mean a number of shares of Purchaser Common
Stock determined by dividing (i) the Aggregate Outstanding Claims less the
Retained Escrow Cash, by (ii) the Closing Valuation Price; (w) the term
"Distributable Shares" shall mean a number of shares of Purchaser Common Stock
determined by subtracting the Claim Shares from the Remaining Escrow Shares; (x)
the term "Remaining Escrow Shares" shall mean a number of shares of Purchaser
Common Stock equal to the number of Escrow Shares deposited into the Escrow Fund
less the number of Escrow Shares already offset pursuant to Section 8.2.2 of the
Merger Agreement or distributed to the Sellers pursuant to Section 2.2.2 of the
Merger Agreement.
In the event and to the extent that after the first anniversary of the
Effective Date any outstanding indemnification claim made by the Purchaser
pursuant to Section 8.2 of the Merger Agreement is resolved against the
Purchaser, the Escrow Agent shall deliver to the Sellers at their respective
addresses set forth on Schedule 1, in an equal amount per Escrow Share, an
amount of the Retained Escrow Cash corresponding to the amount of the
outstanding indemnification claim resolved against the Purchaser. To the extent
the amount of such outstanding indemnification claim exceeds the amount of the
Retained Escrow Cash, the Escrow Agent shall deliver to the Purchaser the
certificates representing the Remaining Escrow Shares, whereupon the Purchaser
shall cancel these certificates and (i) issue in the names of the Sellers in
accordance with the Merger Agreement certificates in an amount, not to exceed
the Remaining Escrow Shares, equal to the sum of the Claim Shares in respect of
the Aggregate Outstanding Claims, which certificates shall be delivered to the
Escrow Agent to be held in escrow, and (ii) issue in the names of the Sellers
and send to them in accordance with Section 2.2.2 of the Merger Agreement,
certificates representing in the aggregate the amount of the Distributable
Shares (provided that the Purchaser may adjust the number of shares represented
by any certificate to the minimum extent necessary to avoid fractional shares).
In the event and to the extent that after the first anniversary of the Effective
Date any outstanding claim for indemnification made by the Purchaser pursuant to
Section 8.2 of the Merger Agreement is resolved in favor of the Purchaser, the
Purchaser shall be entitled to offset pursuant to Section 8.2.2 of the Merger
Agreement.
At the time that the Escrow Agent shall distribute any amount of Escrow
Cash to the Sellers pursuant to the foregoing, the Escrow Agent shall also
distribute to the Sellers the interest or other income earned with respect to
such amount while held in the Escrow Fund; provided, however, that the Escrow
Agent shall withhold from such amount of interest or other income, and pay to
the Purchaser, an amount equal to the product of (i) the Purchaser's aggregate
federal and state income tax rate, taking into account the deductibility of
state income taxes for federal income tax purposes, and (ii) the total taxable
income recognized by the Purchaser with respect to the amount of Escrow Cash
being distributed net of the total deductions allowed to the Purchaser pursuant
to the Internal Revenue Code of 1986, as amended, Section 483 with respect to
the distribution of such amount of Escrow Cash to the Sellers. The Purchaser
and the Stockholder Representative shall provide a calculation to the Escrow
Agent of the amount payable to the Purchaser pursuant to the preceding sentence.
Any interest or other income earned with respect to the Escrow Cash that is not
distributed to the Sellers or paid to the Purchaser pursuant to the first
sentence of this paragraph shall be paid to the Purchaser when all Escrow Cash
has been retained by the Purchaser or released from the Escrow Fund pursuant to
the terms and conditions of Section 2.2.2 or Section 8.2.2 of the Merger
Agreement. Any interest or other income earned with respect to the Escrow Cash
shall not be treated as Escrow Cash for purposes of Section 2.2.2 or Section
8.2.2 of the Merger Agreement.
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7. TERMINATION. Upon delivery of the Escrow Fund in full by the Escrow Agent
pursuant to the provisions of Section 6, this Escrow Agreement shall terminate,
subject to the provisions of Section 11. The Purchaser and the Sellers may also
terminate this Escrow Agreement upon their mutual written consent.
8. ESCROW AGENT. The Escrow Agent undertakes to perform only such duties as
are expressly set forth herein and no duties shall be implied. The Escrow Agent
shall have no liability under and no duty to inquire as to the provisions of any
agreement other than this Escrow Agreement. References to the Merger Agreement
included in this Escrow Agreement are for informational purposes only and have
been inserted for reference in connection with specific Escrow-related
occurrences. The Escrow Agent may rely upon and shall not be liable for 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
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
payments which may be due it or the Escrow Fund. The Escrow Agent shall not be
liable for any action taken or omitted by it in good faith except to the extent
that a court of competent jurisdiction determines that the Escrow Agent's gross
negligence or willful misconduct was the primary cause of any loss to the
Purchaser or the Sellers. The Escrow Agent may execute any of its powers and
perform any of its duties hereunder directly or through agents or attorneys (and
shall be liable only for the careful selection of any such agent or attorney)
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. In the event
that the Escrow Agent shall be uncertain as to its duties or rights hereunder or
shall receive instructions, claims or demands from any party hereto which, in
its opinion, conflict with any of the provisions of this Escrow Agreement, it
shall be entitled to refrain from taking any action and its sole obligation
shall be to keep safely all property held in escrow until it shall be directed
otherwise in writing by all of the other parties hereto or by a final order or
judgment of a court of competent jurisdiction. Anything in this Escrow
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), even if the Escrow Agent
has been advised of the likelihood of such loss or damage and regardless of the
form of action.
9. SUCCESSION. The Escrow Agent may resign and be discharged from its duties
or obligations hereunder by giving 30 days advance notice in writing of such
resignation to the other parties hereto specifying a date when such resignation
shall take effect. The Escrow Agent shall have the right to withhold an amount
equal to any amount due and owing to the Escrow Agent, plus any costs and
expenses the Escrow Agent shall reasonably believe may be incurred by the Escrow
Agent in connection with the termination of the Escrow Agreement. Any
corporation or association into which the Escrow Agent may be merged or
converted or with which it may be consolidated, or any corporation or
association to which all or substantially all the escrow business of the Escrow
Agent's corporate trust line of business may be transferred, shall be the Escrow
Agent under this Escrow Agreement without further act.
10. FEES. The Purchaser agrees to (i) pay the Escrow Agent upon execution of
this Escrow Agreement and from time to time thereafter reasonable compensation
for the services to be rendered hereunder, which unless otherwise agreed in
writing shall be as described in Schedule 1 attached hereto, and (ii) pay or
reimburse the Escrow Agent upon request for all expenses, disbursements and
advances, including reasonable attorney's fees and expenses, incurred or made by
it in connection with the preparation, execution, performance, delivery,
modification and termination of this Escrow Agreement.
11. INDEMNITY. The Purchaser shall indemnify, defend and save harmless the
Escrow Agent and its directors, officers, agents and employees (the
"indemnitees") from all loss, liability or expense (including the fees and
expenses of outside counsel) arising out of or in connection with third-party
claims or actions relating to (i) the Escrow Agent's execution and performance
of this Escrow Agreement, except to the extent that such loss, liability or
expense is due to the gross negligence or willful misconduct of any indemnitee,
or (ii) the Escrow Agent following any instructions or other directions given by
the Purchaser and the Stockholder Representative collectively, except to the
extent that its following any such instruction or direction is expressly
forbidden by the terms hereof. The Escrow Agent shall provide the Purchaser
prompt written notice of any such claim or action and the Purchaser shall have
the right to
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control the defense, compromise or settlement thereof. The Escrow Agent may
participate in the defense of such claim or action with its own counsel, at its
expense. The Escrow Agent shall provide the Purchaser reasonable assistance in
connection with the defense, compromise or settlement of any such claim or
action. The parties hereto acknowledge that the foregoing indemnities shall
survive the resignation or removal of the Escrow Agent or the termination of
this Escrow Agreement. The parties hereby grant the Escrow Agent a lien on,
right of set-off against and security interest in the Escrow Fund for the
payment of any claim for indemnification, compensation, expenses and amounts due
hereunder.
12. TINS. The Purchaser and the Sellers each represent that its correct
Taxpayer Identification Number ("TIN") assigned by the Internal Revenue Service
or any other taxing authority is set forth in Schedule 1. Each of the Purchaser
and the Sellers 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 a non-U.S. person) to the Escrow Agent prior to the date on which any
income earned on the investment of the Escrow Cash is credited to the Escrow
Fund. The Escrow Agent shall have no responsibility for ensuring that it
receives such forms from the Purchaser or the Sellers. All interest or other
income earned from the investment of the Escrow Cash ("Earnings") shall be
treated as having been received by the Purchaser for income tax purposes, and
the parties shall file Tax Returns on a basis consistent with such treatment.
All Earnings shall be paid as directed in a joint written direction of the
Purchaser and the Stockholder Representative and reported by the recipient to
the Internal Revenue Service or any other taxing authority. Notwithstanding
such written directions, the Escrow Agent shall report and, as required,
withhold any taxes as it determines may be required by any law or regulation in
effect at the time of the distribution. In the absence of timely direction, all
Earnings shall be retained in the Escrow Fund and reinvested from time to time
by the Escrow Agent as provided in Section 3. In the event that any Earnings
remain undistributed at the end of any calendar year, the Escrow Agent shall (a)
report to the Internal Revenue Service or such other authority such earnings as
it deems appropriate or as required by any applicable law or regulation or, to
the extent consistent therewith, as directed in writing by the Purchaser and the
Stockholder Representative and (b) withhold any taxes it deems appropriate and
shall remit such taxes to the appropriate authorities; provided, however, that
any such reporting or withholding by the Escrow Agent shall be done on a basis
consistent with the Earnings being treated as having been received by the
Purchaser for income tax purposes, as set forth above.
13. NOTICES. All communications hereunder shall be in writing and shall be
deemed to be duly given and received:
(i) upon delivery if delivered personally or upon confirmed transmittal if by
facsimile;
(ii) on the next Business Day (as hereinafter defined) if sent by overnight
courier; or
(iii) four (4) Business Days after mailing if mailed by prepaid registered
mail, return receipt requested, to the appropriate notice address set forth on
Schedule 1 or at such other address as any party hereto may have furnished to
the other parties in writing by registered mail, return receipt requested.
In the event that the Escrow Agent, in its sole discretion, shall determine that
an emergency exists, the Escrow Agent may use such other means of communication
as the Escrow Agent deems appropriate. "Business Day" shall mean any day on
which commercial banking institutions in New York, New York are customarily open
for the purpose of transacting business.
14. SECURITY PROCEDURES. In the event funds transfer instructions are given
(other than in writing at the time of execution of this Escrow Agreement),
whether in writing, by telecopier or otherwise, the Escrow Agent is authorized
to seek confirmation of such instructions by telephone call-back to the person
or persons designated on schedule 2 hereto ("Schedule 2"), and the Escrow Agent
may rely upon the confirmation of anyone purporting to be the person or persons
so designated. The persons and telephone numbers for call-backs may be changed
only in a writing actually received and acknowledged by the Escrow Agent. The
Escrow Agent and the beneficiary's bank in any funds transfer may rely solely
upon any account numbers or similar identifying numbers provided by the
Purchaser or the Stockholder Representative to identify (i) the beneficiary,
(ii) the beneficiary's bank, or (iii) an intermediary bank. The Escrow Agent
may apply any of the escrowed funds for any payment order it executes using any
such identifying number, even where its use may result in a person other than
the beneficiary being paid, or the transfer of
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funds to a bank other than the beneficiary's bank or an intermediary bank
designated. The parties to this Escrow Agreement acknowledge that these security
procedures are commercially reasonable.
15. MISCELLANEOUS. The provisions of this Escrow Agreement may be waived,
altered, amended or supplemented, in whole or in part, only by a writing
referencing this Escrow Agreement and signed by all of the parties hereto.
Neither this Escrow Agreement nor any right or interest hereunder may be
assigned in whole or in part by any party, except as provided in Section 9,
without the prior consent of the other parties. This Escrow Agreement shall be
governed by and construed under the laws of the State of New York. Each party
hereto irrevocably waives any objection on the grounds of venue, forum non-
conveniens or any similar grounds and irrevocably consents to service of process
by mail or in any other manner permitted by applicable law and consents to the
jurisdiction of the courts located in the State of New York. The parties
further hereby waive any right to a trial by jury with respect to any lawsuit or
judicial proceeding arising or relating to this Escrow Agreement. No party to
this Escrow Agreement is liable to any other party for losses due to, or if it
is unable to perform its obligations under this Escrow Agreement because of,
acts of God, fire, floods, strikes, or other similar force majeure causes
reasonably beyond its control, provided that the party experiencing such force
majeure promptly notifies the other parties thereof, takes all reasonable
actions to promptly remedy the effects of such force majeure, and resumes
performance under this Escrow Agreement as promptly as possible thereafter.
This Escrow Agreement may be executed in one or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this Escrow Agreement
as of the date set forth in Schedule 1.
XX XXXXXX XXXXX BANK
as Escrow Agent
By: /s/ Xxxxxxx X. Xxxxxxx
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CYTYC CORPORATION
By: /s/ A. Xxxxxxx Xxxxxxx-Xxxxxxx
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STOCKHOLDER REPRESENTATIVE on behalf of the
SELLERS
By: /s/ Xxxx Xxxxx
-----------------
Name: Xx. Xxxx Xxxxx
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Schedule 1
Effective Date: November 30, 2001
Name of Purchaser: Cytyc Corporation
Purchaser Notice Address: 00 Xxxxxxx Xxxx, Xxxxxxxxxx, XX 00000
Purchaser TIN: 00-0000000
Name of Sellers: see attached list
Sellers Notice Address: see attached list
Sellers TIN: see attached list
Name of Stockholder Representative: Xx. Xxxx Xxxxx
Stockholder Representative Notice Address: 0000 Xxxx Xxxx Xxxx, Xxxxxxxx 0,
Xxxxx 000 Xxxxx Xxxx, XX 00000
Escrow Cash: $3,765,880.96
Investment: [specify]
[ ] The Chase Manhattan Bank Money Market Account;
[ ] A trust account with The Chase Manhattan Bank;
[x] A money market mutual fund, including without limitation the JPMorgan
Fund or any other mutual fund for which the Escrow Agent or any
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, (ii) the Escrow Agent charges and collects fees for
services rendered pursuant to this Escrow Agreement, which fees are
separate from the fees received from such funds, and (iii) services
performed for such funds and pursuant to this Escrow Agreement may at
times duplicate those provided to such funds by the Escrow Agent or
its affiliates. Specifically the U.S. Government 30-day SEC yield
fund described on the attached schedule.
[ ] Such other investments as the Purchaser, the Stockholder
Representative and the Escrow Agent may from time to time mutually
agree upon in a writing executed and delivered by the Purchaser and
the Stockholder Representative and accepted by the Escrow Agent.
Escrow Agent notice address: JPMorgan Chase Bank
000 X. 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxxxxxxx
Fax No.: 000-000-0000
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Escrow Agent's compensation: As provided on attached Schedule of Fees
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Schedule 2
Telephone Number(s) for Call-Backs and
Person(s) Designated to Confirm Funds Transfer Instructions
If to the Purchaser:
Name Telephone Number
1. A. Xxxxxxx Xxxxxxx-Xxxxxxx (000) 000-0000
2. ______________________ _______________________
3. ______________________ _______________________
If to the Sellers:
Name Telephone Number
1. Xxxx Xxxxx (000) 000-0000
2. ______________________ _______________________
3. ______________________ _______________________
Telephone call-backs shall be made to each the Purchasers and the Sellers if
joint instructions are required pursuant to this Escrow Agreement.
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