Exhibit 10.6
EXHIBIT D
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FORM OF INDEMNIFICATION ESCROW AGREEMENT
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This ESCROW AGREEMENT (the "Agreement") is made and entered into as of
_______________, 1998, by and among Monroe, Inc., a Delaware corporation
("Monroe"), Xxxxxx X. Xxxxx, an individual (the "Stockholder Representative"),
____________________ (the "Escrow Agent"), and the parties identified as the
Xxxxxxx Stockholders on the signature pages hereto, with reference to the
following facts:
A. Pursuant to the terms and conditions of a Stock Purchase Agreement
(the "Purchase Agreement") dated as of May ___, 1998, by and among Monroe,
Merkert Enterprises, Inc., a Massachusetts corporation, Xxxxxx X. Xxxxxxx and
the Xxxxxxx Stockholders, Monroe has agreed to acquire all of the issued and
outstanding capital stock of Xxxxxxx Enterprises, Inc. Capitalized terms not
otherwise defined herein have the meanings set forth in the Purchase Agreement.
B. Under the terms of the Purchase Agreement, Monroe is entitled to
indemnification under certain circumstances as set forth in Section 10 of the
Purchase Agreement.
C. The purpose of this Agreement is to provide for the deposit into
escrow of shares of Monroe's common stock, par value $.01 per share ("Monroe
Common Stock"), pursuant to Section 1.9 of the Purchase Agreement to secure, in
part, the indemnification obligations of the Xxxxxxx Stockholders under Section
10 of the Purchase Agreement.
NOW, THEREFORE, based on the above premises and for good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties agree as follows:
1. Appointment of Escrow Agent and Stockholder Representative;
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Indemnification.
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1.1 Escrow Agent. The Escrow Agent is hereby appointed as escrow
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agent for the purposes set forth herein, and the Escrow Agent hereby accepts
such appointment on the terms set forth herein.
1.2 Stockholder Representative. The Stockholder Representative is
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hereby appointed as agent and representative of the Xxxxxxx Stockholders for the
purposes set forth herein, and the Stockholder Representative accepts such
appointment on the terms set forth herein.
1.3 Indemnification. The Xxxxxxx Stockholders have agreed to
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indemnify and hold harmless Monroe pursuant to Section 10 of the Purchase
Agreement. The Escrowed Shares (as defined in Section 2.1 hereof) shall secure,
in part, the indemnification obligations of the Xxxxxxx Stockholders in the
manner provided in this Agreement.
2. Escrow of Shares.
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2.1 Escrowed Shares: Proportionate Interest. In accordance with
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Section 1.9 of the Purchase Agreement, on the Closing Date (which date shall be
set forth in a certificate of Monroe delivered to the Escrow Agent), Monroe, on
behalf of the Xxxxxxx Stockholders, shall deposit with the Escrow Agent a number
of shares of Monroe Common Stock (the "Escrowed Shares") equal to (a) $3,583,124
divided by (b) the price at which shares of Monroe Common Stock will be sold to
the public in the initial underwritten public offering of shares of Monroe
Common Stock (the "IPO Price"). Each Xxxxxxx Stockholder shall thereby
contribute a number of shares of Monroe Common Stock pro rata based upon the
ratio that the number of shares of common stock of Xxxxxxx Enterprises, Inc.,
par value $.01 per share ("Xxxxxxx Common Stock") held by such Xxxxxxx
Stockholder bears to the total number of shares of Xxxxxxx Common Stock held by
all Xxxxxxx Stockholders immediately prior to the Closing. Such pro rata
interest shall be referred to as such Xxxxxxx Stockholder's "Proportionate
Interest." Although the Escrowed Shares shall be issued in the name of the
Escrow Agent or its nominee, all Escrowed Shares shall be held by the Escrow
Agent for the benefit of the Xxxxxxx Stockholders. If during the term of this
Agreement there is declared a stock dividend or stock split, all securities
thereby issuable with respect to the Escrowed Shares shall be deposited
hereunder and shall be deemed "Escrowed Shares" for the purposes of this
Agreement. If during the term of this Agreement there is paid to the Escrow
Agent any dividends in cash or other property (other than securities) in respect
of the Escrowed Shares, such dividends shall be paid currently by the Escrow
Agent to the Xxxxxxx Stockholders in accordance with each Xxxxxxx Stockholder's
Proportionate Interest. The Escrowed Shares shall be held for the benefit of the
Xxxxxxx Stockholders and disbursed by the Escrow Agent in accordance with the
terms of this Agreement. The parties agree that for federal income tax
purposes, the Xxxxxxx Stockholders will own the Escrowed Shares as of the
Closing Date.
2.2 Voting of Escrowed Shares. The Escrowed Shares held by the
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Escrow Agent pursuant to this Agreement shall be deemed issued and outstanding,
shall appear as issued and outstanding on Monroe's balance sheet, and shall be
legally outstanding under applicable state law. With respect to any matter on
which stockholders of Monroe have a right to vote, the Escrow Agent, upon
receipt of written notices to such effect, on behalf of the Xxxxxxx
Stockholders, acting at the written direction of such stockholders, shall
exercise the right to vote, or not vote, all Escrowed Shares (or any portion
thereof); provided, however, that the Escrow Agent shall at the expense of
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Monroe and the Xxxxxxx Stockholders promptly forward, or cause to be forwarded,
copies of any proxies, proxy statements and other soliciting materials which it
receives to the Xxxxxxx Stockholders, and shall vote the applicable portion of
the Escrowed Shares in accordance with any written instructions timely received
by the
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Escrow Agent from any Xxxxxxx Stockholder. Absent any such written instructions,
the Escrow Agent shall not vote any Escrowed Shares.
2.3 Escrowed Shares Nontransferable. The Xxxxxxx Stockholders'
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interest in this Agreement and the Escrowed Shares (prior to the disbursement
thereof) may not be transferred, except by operation of law, intestacy, devise
or descent.
3. Application of Escrowed Shares. The Escrowed Shares shall be held in
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escrow under the terms of this Agreement and released by the Escrow Agent upon
the following terms:
3.1 Joint Instructions. Upon joint written notice and instruction
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from Monroe and the Stockholder Representative that the Escrowed Shares, or any
portion thereof, should be disbursed, the Escrow Agent shall make such
disbursement in accordance with the directions set forth in such joint written
notice and instruction.
3.2 Indemnification Claim. If at any time, or from time to time, on
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or before the later of (i) the first (lst) anniversary of the Closing Date and
(ii) the date on which the Escrow Agent receives from Monroe or the Stockholder
Representative a certificate certifying that full and final settlements with the
IRS and the DOR of all matters relating to the Audits have been reached (such
later date, the "Termination Date"), Monroe delivers to the Escrow Agent written
notice (an "Indemnification Notice") and a copy thereof pursuant to Section 4.1
hereof asserting that Monroe is entitled to indemnification under Section 10 of
the Purchase Agreement, which Indemnification Notice shall state the basis and
amount of such indemnification claim, then the Escrow Agent shall disburse to
Monroe, on the thirtieth (30th) day following receipt by the Escrow Agent of the
Indemnification Notice, a number of the Escrowed Shares equal to (a) the amount
of such claim divided by (b) the IPO Price (subject to appropriate adjustment
after the Closing Date for any stock split or stock dividend with respect to
Monroe Common Stock, or any combination or reclassification of the Monroe Common
Stock into a greater or smaller number of shares), as certified by Monroe;
provided, however, that each Stockholder may elect to pay its respective portion
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of such indemnification claim, in accordance with its respective Proportionate
Interest, in cash in lieu of Escrowed Shares (each, an "Electing Stockholder").
In the event of any such election, Monroe and the Stockholder Representative
shall provide joint written notice and instructions to the Escrow Agent to
deliver to each Electing Stockholder a number of the Escrowed Shares, equal to
(x) the amount of the cash payment that was made by such Electing Stockholder in
respect of such claim divided by (y) the IPO Price (subject to appropriate
adjustment after the Closing Date for any stock split or stock dividend with
respect to Monroe Common Stock, or any combination or reclassification of the
Monroe Common Stock into a greater or smaller number of shares), as certified by
Monroe (the "Cash Option"). Notwithstanding the foregoing, if the Escrow Agent
receives written notice from the Stockholder Representative prior to such
thirtieth (30th) day
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that a dispute exists with respect to such indemnification claim (a "Dispute
Notice"), which Dispute Notice shall state the basis of such dispute and the
number of Escrowed Shares, if any, as to which no dispute exists, the Escrow
Agent shall continue to hold the Escrowed Shares that are in dispute (but shall
disburse to Monroe the number of Escrowed Shares as to which no dispute exists)
until directed otherwise pursuant to Section 3.3 hereof. Monroe and the
Stockholder Representative shall deliver a joint written notice to the Escrow
Agent setting forth the Termination Date.
3.3 Dispute of Indemnification Claim. If the Escrow Agent timely
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receives a Dispute Notice, the Escrow Agent shall retain the Escrowed Shares in
dispute until the first to occur of the following:
3.3.1 the date on which the Escrow Agent receives joint written
instructions from Monroe and the Stockholder Representative, in which case the
Escrow Agent shall disburse the Escrowed Shares (or applicable portions thereof)
as set forth in such joint written instructions;
3.3.2 the date on which the Escrow Agent receives a final order
of a court of competent jurisdiction (the "Indemnity Award") resolving the
dispute, in which case the Escrow Agent shall disburse the Escrowed Shares (or
applicable portions thereof) as set forth in the Indemnity Award; or
3.3.3 the date which is four years and 364 days after the Closing
Date.
3.4 Automatic Disbursement on Termination Date. If, on the
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Termination Date, there are Escrowed Shares remaining undisbursed and not
subject to an Indemnification Notice received by the Escrow Agent, the Escrow
Agent shall disburse (upon receipt of proper stock certificates from Monroe's
transfer agent) such Escrowed Shares to the Xxxxxxx Stockholders in accordance
with each Xxxxxxx Stockholder's Proportionate Interest.
3.5 Fractional Shares. No fractional shares shall be issued under
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this Agreement to any of the Xxxxxxx Stockholders. Any payment which would
result in the disbursement of a fractional share of Monroe Common Stock shall be
rounded to the nearest whole share.
3.6 Payment of Indemnification Claims; Valuation of Monroe Common
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Stock. Whenever this Agreement provides that the Escrow Agent may or shall
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disburse Escrowed Shares to Monroe, the Escrow Agent shall deliver to the
transfer agent for the Escrowed Shares the stock certificate representing such
Escrowed Shares and the transfer agent shall deliver to the Escrow Agent one
stock certificate representing the number of shares to be delivered to Monroe
and another stock certificate representing the balance of Escrowed Shares
remaining. The Escrow Agent shall then deliver to Monroe a stock certificate
representing the
appropriate number of Escrowed Shares determined in accordance with the next
sentence. The number of Escrowed Shares disbursed to satisfy an indemnification
claim by Monroe shall be equal to the number of Escrowed Shares (rounded to the
nearest whole share) determined as follows: (i) the amount of Losses with
respect to which Monroe is entitled to indemnification under Section 10 of the
Purchase Agreement and as to which the Escrow Agent has received an
Indemnification Notice for which a Dispute Notice is not timely delivered or, if
so delivered, the dispute has been resolved in accordance with Section 3.3
hereof divided by (ii) the IPO Price, subject to appropriate adjustment after
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the Closing Date for any stock split or stock dividend with respect to Monroe
Common Stock, or any combination or reclassification of the Monroe Common Stock
into a greater or smaller number of shares, as certified by Monroe. Except as
set forth in Section 3.2 with respect to the Cash Option, the Xxxxxxx
Stockholders shall not have the right to substitute other property for the
Escrowed Shares with respect to the satisfaction of any indemnification claims
secured hereby.
4. Communications with Stockholder Representative.
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4.1 Notice of Indemnification Claims. Monroe shall provide a copy of
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any Indemnification Notice to the Stockholder Representative concurrently with
the delivery thereof to the Escrow Agent.
4.2 Additional Information Regarding Indemnification Claims. Within
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five (5) business days after receiving a request therefor from the Stockholder
Representative, Monroe shall furnish the Stockholder Representative with such
additional information relating to any claim made in an Indemnification Notice
as he may reasonably request from time to time for the purpose of evaluating the
merits of the claim for indemnification.
5. Scope of Undertaking. The Escrow Agent shall have no responsibility
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or obligation of any kind in connection with this Agreement and the Escrowed
Shares, and shall not be required to deliver the same or any part thereof or
take any action with respect to any matters that might arise in connection
therewith, other than to receive, hold, and make delivery of the Escrowed Shares
as herein expressly provided or by reason of a judgment or order of a court of
competent jurisdiction.
6. Knowledge and Sufficiency of Documents. The Escrow Agent shall not be
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bound by or have any responsibility with respect to compliance with any
agreement between any of the other parties hereto, including the Purchase
Agreement, irrespective of whether the Escrow Agent has knowledge of the
existence of any such agreement or terms and provisions thereof, the Escrow
Agent's only duty, liability, and responsibility being to receive, hold and
deliver the Escrowed Shares as herein provided. The Escrow Agent shall not be
required in any way to determine the validity or sufficiency, whether in form or
in substance, of the Escrowed Shares or the validity, sufficiency, genuineness
or accuracy of any instrument, document, certificate, statement or notice
referred to in this Agreement or contemplated
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hereby, or the adequacy of any security interest created hereunder; or the
identity or authority of the persons executing the same, and it shall be
sufficient if any writing purporting to be such instrument, document,
certificate statement or notice is delivered to the Escrow Agent and purports on
its face to be correct in form and signed or otherwise executed by the party or
parties required to sign or execute the same under this Agreement.
7. Right of Interpleader. Should any controversy arise between Monroe,
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on one hand, and the Stockholder Representative, on the other, or any other
person, firm or entity, with respect to this Agreement, the Escrowed Shares, or
any part thereof, or the right of any party or other person to receive the
Escrowed Shares, or should such parties fail to designate another Escrow Agent
as provided in Section 12 hereof, or if the Escrow Agent should be in doubt as
to what action to take, the Escrow Agent shall have the right (but not the
obligation) to (i) withhold delivery of the Escrowed Shares until the
controversy is resolved as provided in Section 3.3 hereof or (ii) institute a
xxxx of interpleader in any court of competent jurisdiction to determine the
rights of the parties hereto (the right of the Escrow Agent to institute such
xxxx of interpleader, however, shall not be deemed to modify the manner in which
the Escrow Agent is entitled to make disbursements of the Escrowed Shares as
hereinabove set forth, other than to tender the Escrowed Shares into the
registry of such court). Should a xxxx of interpleader be instituted, or should
the Escrow Agent be threatened with litigation or become involved in litigation
in any manner whatsoever on account of this Agreement or the Escrowed Shares,
then as between themselves and the Escrow Agent, Monroe and the Xxxxxxx
Stockholders, jointly and severally, hereby bind and obligate themselves, their
successors, heirs, executors and assigns to pay the Escrow Agent its reasonable
attorneys' fees and any and all other disbursements, expenses, losses, costs and
damages of the Escrow Agent in connection with or resulting from such threatened
or actual litigation. Notwithstanding the foregoing, as between themselves,
Monroe and the Xxxxxxx Stockholders shall each pay one-half of all amounts
payable to the Escrow Agent pursuant to this Section 7.
8. Scope of Duties and Errors in Judgment. It is expressly understood
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and agreed that the Escrow Agent shall be under no duty or obligation to give
any notice, or to do or to omit the doing of any action or anything with respect
to the Escrowed Shares, except to hold the same and to make disbursements in
accordance with the terms of this Agreement. Without limiting the generality of
the foregoing, it is acknowledged and agreed that (i) no implied duties shall be
read into this Agreement on the part of the Escrow Agent, and (ii) the Escrow
Agent shall not be obligated to take any legal or remedial action which might in
its judgment involve it in any expense or liability for which it has not been
furnished acceptable indemnification. The Escrow Agent, its directors, officers
and employees shall not be liable for any error in judgment or any act or steps
taken or permitted to be taken in good faith, or for any mistake of law or fact,
or for anything it may do or refrain from doing in connection herewith, except
for its own willful misconduct or gross negligence.
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9. Indemnity. As between themselves and the Escrow Agent, Monroe and the
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Xxxxxxx Stockholders, jointly and severally, agree to indemnify the Escrow Agent
against and hold the Escrow Agent and its officers, employees and directors
harmless from any and all losses, costs, damages, expenses, claims, and
attorney's fees and expenses suffered or incurred by the Escrow Agent as a
result of, in connection with or arising from or out of the acts or omissions of
the Escrow Agent in performance of or pursuant to this Agreement, except such
acts or omissions as may result from the Escrow Agent's willful misconduct or
gross negligence. In no event shall the Escrow Agent be liable for indirect,
punitive, special or consequential damages.
Monroe and the Xxxxxxx Stockholders, jointly and severally, agree to assume
any and all obligations imposed now or hereafter by any applicable tax law with
respect to the distribution of Escrowed Shares under this Agreement, and to
indemnify and hold the Escrow Agent harmless from and against any taxes,
additions for late payment, interest, penalties and other expenses, that may be
assessed against the Escrow Agent in any such distribution or other activities
under this Agreement. Monroe and the Stockholder Representative undertake to
instruct the Escrow Agent in writing with respect to the Escrow Agent's
responsibility for withholding and other taxes, assessments, or other
governmental charges, certifications and governmental reporting in connection
with its acting as Escrow Agent under this Agreement. Monroe and the Xxxxxxx
Stockholders, jointly and severally, agree to indemnify and hold the Escrow
Agent harmless from any liability on account of taxes, assessments or other
governmental charges, including without limitation the withholding or deduction
or the failure to withhold or deduct the same, and any liability for failure to
obtain proper certifications or to properly report to governmental authorities,
to which the Escrow Agent may be or become subject in connection with or which
arises out of this Agreement, including costs and expenses (including reasonable
legal fees and expenses), interest and penalties.
Notwithstanding the foregoing, as between themselves, Monroe and the
Xxxxxxx Stockholders shall each pay one-half of all amounts payable to the
Escrow Agent pursuant to this Section 9.
10. Consultation with Legal Counsel. The Escrow Agent may consult with
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its in-house counsel or other counsel satisfactory to it in respect to questions
relating to its duties or responsibilities hereunder or otherwise in connection
herewith and shall not be liable for any action taken, suffered, or omitted by
the Escrow Agent in good faith upon the advice of such counsel. The Escrow
Agent may act through its officers, employees, agents and attorneys.
11. Reimbursement of Expenses of the Escrow Agent. The Escrow Agent shall
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be entitled to reimbursement from Monroe and the Xxxxxxx Stockholders of all its
reasonable costs and expenses, including reasonable fees and expenses of legal
counsel incurred by it in connection with the preparation, operating,
administration and enforcement of this Agreement. The Escrow Agent shall be
entitled to reimbursement on demand for all expenses incurred in
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connection with the administration of this Agreement or 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 resolution of any claim by any party
hereunder. Notwithstanding the foregoing, as between themselves, Monroe and the
Xxxxxxx Stockholders shall each pay one-half of all amounts payable to the
Escrow Agent pursuant to this Section 11.
12. Resignation. The Escrow Agent may resign upon 10 days' prior written
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notice to Monroe and the Stockholder Representative, and upon written
instruction to Monroe and the Stockholder Representative, the Escrow Agent shall
deliver the Escrowed Shares to any designated substitute Escrow Agent mutually
agreeable to such parties. If Monroe and the Stockholder Representative fail to
designate a substitute Escrow Agent within 10 days, the Escrow Agent, in its
sole discretion and its sole option, either may (i) continue to hold the
Escrowed Shares or (ii) institute a xxxx of interpleader as contemplated by
Section 7 hereof.
13. Compensation. Monroe and the Xxxxxxx Stockholders covenant and agree,
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jointly and severally, to pay to the Escrow Agent the fee determined by the
Escrow Agent, from time to time, to be applicable to this escrow and bear all
costs and expenses incurred by the Escrow Agent in connection therewith. The
Escrow Agent's fees, as in effect on the date hereof, are attached hereto as
Schedule A. Without altering or limiting the joint and several liability of
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Monroe and the Xxxxxxx Stockholders hereunder, as between themselves, Monroe and
the Xxxxxxx Stockholders agree that they shall each pay one-half of all amounts
payable to the Escrow Agent pursuant to this Section 13.
14. [Intentionally Omitted]
15. Responsibilities of the Stockholder Representative.
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15.1 General. The Stockholder Representative has been designated by
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the Xxxxxxx Stockholders to represent the Xxxxxxx Stockholders with respect to
the Escrowed Shares pursuant to the terms of this Agreement. The duties of the
Stockholder Representative hereunder shall be limited to the observance of the
express provisions of this Agreement. The Stockholder Representative shall not
be subject to, or be obliged to recognize, any other agreement between the
parties hereto or directions or instructions not specifically set forth or
provided for herein or in the Purchase Agreement.
15.2 Reimbursement of Expenses of the Stockholder Representative. The
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Xxxxxxx Stockholders shall reimburse the Stockholder Representative for
reasonable out-of-pocket expenses incurred by the Stockholder Representative in
the performance of his duties hereunder. During the period the Escrowed Shares
are held in escrow under this Agreement, the reimbursement provided under this
Section 15.2 shall be from sources of funds other than the Escrowed Shares.
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15.3 Duties. The Xxxxxxx Stockholders hereby authorize and direct
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the Stockholder Representative to take all action necessary in connection
with the implementation of this Agreement on behalf of the Xxxxxxx Stockholders,
including, without limitation, giving and receiving all notices required to be
given under this Agreement, settling any dispute arising hereunder and executing
all such documents as the Stockholder Representative shall deem necessary or
appropriate in connection with the transactions contemplated by this Agreement.
All decisions and actions by the Stockholder Representative shall be binding
upon all of the Xxxxxxx Stockholders, and no Xxxxxxx Stockholder shall have the
right to object, dissent, protest or otherwise contest the same.
15.4 Reliance. By their execution of this Agreement, the Xxxxxxx
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Stockholders agree that (i) Monroe and the Escrow Agent shall be able to rely
conclusively on the instructions and decisions of the Stockholder Representative
as to any actions required or permitted to be taken by the Xxxxxxx Stockholders
or the Stockholder Representative hereunder, and no party hereto shall have any
cause of action against any other for any action taken in reliance upon the
instructions or decisions of the Stockholder Representative, (ii) all actions,
decisions and instructions of the Stockholder Representative shall be conclusive
and binding upon all of the Xxxxxxx Stockholders and no Xxxxxxx Stockholder
shall have any cause of action against the Stockholder Representative or any
other person for any action taken, decision made or instruction given by the
Stockholder Representative under this Agreement, except for gross negligence,
breach of fiduciary duties owed to the Xxxxxxx Stockholders, fraud or willful
breach of this Agreement by the Stockholder Representative and (iii) the
provisions of this Section 15 are independent and severable, shall constitute an
irrevocable power of attorney, coupled with an interest and surviving death,
granted by the Xxxxxxx Stockholders to the Stockholder Representative and shall
be binding upon the executors, heirs, legal representatives and successors of
each Xxxxxxx Stockholder.
16. Change in the Stockholder Representative. The Stockholder
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Representative may be removed and a successor named in accordance with the terms
of the Purchase Agreement. The Escrow Agent shall be promptly notified in
writing of any such change in the Stockholder Representative.
17. Confidentiality. All of the information provided by the parties to
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this Agreement pursuant to this Agreement shall be deemed "Confidential
Information" except to the extent that such information (i) was known to the
receiving party prior to its receipt from the disclosing party, (ii) is or
becomes part of the public domain through no fault of any party hereto or (iii)
is disclosed by a party hereto to a third party that is legally free to disclose
such information. Each of the parties to this Agreement agrees that, without
the express written consent of the other parties hereto, it will (i) not use the
Confidential Information for any purpose except as required to discharge its
responsibilities under this Agreement; (ii) use reasonable efforts to prevent
the disclosure or other dissemination of the Confidential
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Information in its possession to any third party; and (iii) upon discharging its
responsibilities under this Agreement, return or destroy any document in its
possession containing any Confidential Information supplied by the other parties
to this Agreement.
18. Miscellaneous.
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18.1 Complete Agreement. This Agreement and any documents referred to
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herein (including, without limitation, the Purchase Agreement) or executed
contemporaneously herewith constitute the parties' entire agreement with respect
to the subject matter hereof and supersede all agreements, representations,
warranties, statements, promises and understandings, whether oral or written,
with respect to the subject matter hereof. This Agreement shall be binding upon
the respective parties hereto and their heirs, executors, successors and
assigns.
18.2 Amendments and Waivers. This Agreement may be amended, modified
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and supplemented, and compliance with any provision hereof may be waived, only
by a writing signed by Monroe, the Escrow Agent and the Stockholder
Representative.
18.3 Assignment. This Agreement shall be binding upon and inure to
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the benefit of Monroe, the Escrow Agent, the Xxxxxxx Stockholders and the
Stockholder Representative and their respective successors and permitted
assigns. Except as expressly provided in this Agreement, none of the parties
may assign any of his or its rights or obligations under this Agreement without
the prior written consent of the other parties; provided, however, that Monroe
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may assign its rights under this Agreement in connection with a merger,
consolidation or sale of substantially all of the assets of Monroe.
18.4 Waivers Strictly Construed. With regard to any power, remedy or
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right provided herein or otherwise available to any party hereunder (a) no
waiver or extension of time shall be effective unless expressly contained in a
writing signed by the waiving party; and (b) no alteration, modification or
impairment shall be implied by reason of any previous waiver, extension of time,
delay or omission in exercise, or other indulgence.
18.5 Severability. In case any one or more of the provisions
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contained in this Agreement shall, for any reason, be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Agreement, and
this Agreement shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein.
18.6 Termination. Upon the final distribution of the Escrowed Shares
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pursuant to Section 3 hereof, this Agreement shall terminate. Anything
contained herein to the contrary notwithstanding, the provisions of Sections 7,
9 and 17 shall remain in full force and effect following the termination of this
Agreement.
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18.7 Notices. All notices under this Agreement will be in writing and
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will be delivered by personal service or facsimile or certified mail (or, if
certified mail is not available, then by first class mail), postage prepaid, to
such address as may be designated from time to time by the relevant party, and
which will initially be as set forth below. Copies of all notices shall be
given to Monroe, the Stockholder Representative and the Escrow Agent; provided,
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however, that the failure to give copies of such notice shall not render the
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notice invalid or unenforceable. Any notice sent by certified mail will be
deemed to have been given three (3) days after the date on which it is mailed.
Any notice transmitted by facsimile will be deemed given upon confirmation of
receipt. All other notices will be deemed given when received. No objection
may be made to the manner of delivery of any notice actually received in writing
by an authorized agent of a party. Notices will be addressed as follows or to
such other address as the party to whom the same is directed will have specified
in conformity with the foregoing:
(a) If to Monroe:
Monroe, Inc.
0 Xxxxx Xxxxxx, Xxxxx 00X
Xxxxxx, XX 00000
Attn: President
Facsimile: (000) 000-0000
(b) If to the Stockholder Representative:
Xxxxxx X. Xxxxx
0 Xxxxxxxxx Xxxx
Xxxxxxxxx Xxxxx, XX 00000
with a copy to:
Xxxx Xxxxxxxxx, P.A.
000 X.X. 0xx Xxxxxx, Xxxxx 0000
Xxxxx, XX 00000
Attn: Xxxxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
(c) If to the Escrow Agent:
___________________________
___________________________
___________________________
___________________________
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18.8 Governing Law. The rights and liabilities of the parties under
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this Agreement shall be governed by the laws of The Commonwealth of
Massachusetts, regardless of the choice of laws provisions of such state or any
other jurisdiction. Any litigation between the parties shall be conducted
exclusively in the state or federal courts of Massachusetts, and each party
consents to the exclusive jurisdiction of such courts for such purposes.
18.9 Headings. The headings in this Agreement are inserted only as a
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matter of convenience, and in no way define, limit, or extend or interpret the
scope of this Agreement or of any particular Section.
18.10 Force Majeure. Neither Monroe, the Stockholder Representative
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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 disasters.
18.11 Reproduction of Documents. This Agreement and all documents
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relating hereto, 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 agree that any such
reproduction shall be admissible in evidence as the original itself in any
judicial or administrative proceeding, whether or not the original is in
existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
18.12 Counterparts. This Agreement may be executed in counterparts,
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each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
[NEXT PAGE IS SIGNATURE PAGE]
12
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed, as of the day and year first above written.
MONROE, INC.
________________________________________________
Xxxxx X. Xxxxxx
President
_____________,as ESCROW AGENT
________________________________________________
Name:
Title:
________________________________________________
Xxxxxx X. Xxxxx, as Stockholder Representative
XXXXXXX STOCKHOLDERS:
_________________________________________________
Xxxxxx Xxxxxxxx
________________________________________________
Xxxxxxx X. Xxxxxxx
________________________________________________
Xxxxxx X. Xxxxx
________________________________________________
Xxxxxx X. Xxxxx, Xx.
______________________________________
Xxxxxx X. Xxxxxxx
XXXXXX X. XXXXXXX 1984 REVOCABLE
TRUST
______________________________________
Xxxxxx X. Xxxxxxx, Trustee
XXXXXX X. XXXXXXX 1991 CHARITABLE
REMAINDER UNITRUST
______________________________________
Xxxxxx X. Xxxxxxx, Trustee
XXXXXXX ENTERPRISES, INC. EMPLOYEE
STOCK OWNERSHIP TRUST
______________________________________
Xxxxx X. Xxxxxxxxxxx, as Trustee
and not individually
______________________________________
Xxxxxx X. Xxxxxx, Xx.
______________________________________
Xxxxxx X. Xxxxx
Schedule A
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ESCROW AGENT FEES
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