EXHIBIT 10.13
INDEMNIFICATION ESCROW AGREEMENT
--------------------------------
This ESCROW AGREEMENT (the "Agreement") is made and entered into as of
December 18, 1998, by and among Xxxxxxx American Corporation (formerly known as
Monroe, Inc.), a Delaware corporation ("Buyer"), Xxxxxx X. Xxxxx, an individual
(the "Stockholders' Representative"), State Street Bank and Trust Company (the
"Escrow Agent"), and the parties identified as the Xxxxxxx Stockholders on the
signature pages hereto (the "Xxxxxxx Stockholders"), with reference to the
following facts:
A. Pursuant to the terms and conditions of a Stock Purchase Agreement
dated as of May 20, 1998, as amended as of November 18, 1998 and December 15,
1998 (as so amended, the "Purchase Agreement"), by and among Buyer, Xxxxxxx
Enterprises, Inc., a Massachusetts corporation, Xxxxxx X. Xxxxxxx and the
Xxxxxxx Stockholders, Buyer 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, Buyer 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 cash and shares of Buyer's common stock, par value $.01 per share
("Buyer 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 Stockholders' Representative;
-------------------------------------------------------------
Indemnification.
---------------
1.1 Escrow Agent. The Escrow Agent is hereby appointed as escrow
------------
agent for the purposes set forth herein, and the Escrow Agent hereby accepts
such appointment on the terms set forth herein.
1.2 Stockholders' Representative. The Stockholders' Representative
----------------------------
is hereby appointed as agent and representative of the Xxxxxxx Stockholders for
the purposes set forth herein, and the Stockholders' Representative accepts such
appointment on the terms set forth herein.
1.3 Indemnification. The Xxxxxxx Stockholders have agreed to
---------------
indemnify and hold harmless Buyer pursuant to Section 10 of the Purchase
Agreement. The Xxxxxxx Escrow Fund, the State Escrow Fund, the General Escrow
Fund and the Escrowed Shares (as each such term is 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 Funds.
-----------
2.1 Deposit; Proportionate Interest. In accordance with Section 1.9
-------------------------------
of the Purchase Agreement, on the Closing Date (defined as the date of this
Agreement), Buyer shall deposit with the Escrow Agent cash in the aggregate
amount of $3,891,161 of which (i) $2,000,000 shall be held in a designated
separate account of the Escrow Agent (inclusive of any earnings on the same, the
"Xxxxxxx Escrow Fund"), (ii) $191,161 shall be held in a designated separate
account of Escrow Agent (inclusive of any earnings on the same, the "State
Escrow Fund"), and (iii) $1,700,000 shall be held in a designated separate
account of Escrow Agent (inclusive of any earnings on the same, the "General
Escrow Fund"). Also, in accordance with Section 1.9 of the Purchase Agreement,
on the Closing Date, Buyer, on behalf of the Xxxxxxx Stockholders, shall deposit
with the Escrow Agent a number of shares of Buyer Common Stock (rounded to the
nearest whole share) equal to (i) $1,300,000 divided by (ii) $15.00, the price
----------
at which shares of Buyer Common Stock will be sold to the public in the initial
public offering of Buyer Common Stock (the "IPO Price") (the "Escrowed Shares").
Each Xxxxxxx Stockholder shall thereby contribute to the Escrowed Shares, a
number of shares of Buyer Common Stock in an amount equal to the percentage
interests or amounts set forth on Schedule B attached hereto. 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 promptly, but in no event
not less than three (3) business days, 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
2.2 Voting of Escrowed Shares. The Escrowed Shares held by the
-------------------------
Escrow Agent pursuant to this Agreement shall be deemed issued and outstanding,
shall appear as issued and outstanding on Buyer's balance sheet, and shall be
legally outstanding under applicable state law. With respect to any matter on
which stockholders of Buyer 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 received not less than three (3)
business days prior to such vote, 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 Buyer and the Xxxxxxx Stockholders promptly
forward, or cause to be forwarded, copies of any proxies, proxy statements or
other materials which it receives to the Stockholders' Representative, and shall
vote the applicable portion of the Escrowed Shares in accordance with any
written instructions timely received by the Escrow Agent from any Xxxxxxx
Stockholder. Absent any such written instructions, the Escrow Agent shall not
vote any Escrowed Shares.
2.3 Amounts Earned on Escrow Funds; Tax Matters. The Xxxxxxx Escrow
-------------------------------------------
Fund, the State Escrow Fund and the General Escrow Fund shall be invested from
time to time in Eligible Investments (as defined in Section 15) pursuant to (and
as specified in) the written direction of Buyer received by the Escrow Agent
(which direction shall include maturity terms selected by Buyer). The Escrow
Agent shall be entitled to presume that any maturity terms set forth in an
investment instruction from Buyer have been agreed to by the Stockholders'
Representative. In no instance shall the Escrow Agent have any liability for
any loss on any such investment. All amounts earned, paid or distributed with
respect to the Xxxxxxx Escrow Fund, the State Escrow Fund or the General Escrow
Fund (whether interest, dividends or otherwise) shall become a part of the
Xxxxxxx Escrow Fund, the State Escrow Fund or the General Escrow Fund, as the
case may be, and shall be held hereunder upon the same terms as the original
funds. The parties agree that (i) for tax reporting purposes, and for any tax
year, all interest or other income earned from the investment of the Xxxxxxx
Escrow Fund, the State Escrow Fund and the General Escrow Fund shall be
allocable to Buyer and (ii) to the extent permitted by applicable law, including
Section 468B(g) of the Internal Revenue Code of 1986, as amended (the "Code"),
Buyer will include all amounts earned on the Xxxxxxx Escrow Fund, the State
Escrow Fund or the General Escrow Fund in its gross income for federal, state
and local income tax (collectively, "income tax") purposes and pay any income
tax resulting therefrom. The parties also agree for income tax purposes to
treat all amounts distributed to the Xxxxxxx Stockholders from the Xxxxxxx
Escrow Fund, the State Escrow Fund or the General Escrow Fund as payments of
deferred purchase price paid to the Xxxxxxx Stockholders on the date received.
Buyer agrees to provide the Escrow Agent with a certified tax identification
number by signing and returning a Form W-9 to the Escrow Agent prior to the date
on which interest or other income is first earned by the Xxxxxxx Escrow Fund,
the State Escrow Fund or the General Escrow Fund. Buyer understands that, in
the event its tax identification number is not certified to the Escrow Agent
prior to the date on which interest or other income is first earned on the
Xxxxxxx Escrow Fund, the State Escrow Fund or
3
the General Escrow Fund, the Internal Revenue Code, as amended from time to
time, may require withholding of a portion of any interest or other income
earned on the investment of the Xxxxxxx Escrow Fund, the State Escrow Fund or
the General Escrow Fund.
2.4 Escrowed Shares Nontransferable. The Xxxxxxx Stockholders'
-------------------------------
interest in this Agreement and the Escrowed Shares (prior to the disbursement
thereof) may not be transferred or assigned, except by operation of law,
intestacy, devise or descent.
3. Application of Escrow Funds. The Xxxxxxx Escrow Fund, the State
---------------------------
Escrow Fund and the General Escrow Fund shall be held in 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
------------------
from Buyer and the Stockholders' Representative that the Xxxxxxx Escrow Fund,
the State Escrow Fund or the General Escrow Fund, 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 Claims.
----------------------
3.2.1 General Escrow Fund; Escrowed Shares. If at any time, or from
------------------------------------
time to time, on or before the later of (i) the first (lst) anniversary of the
Closing Date and (ii) the date on which the Escrow Agent receives a joint
written notice signed by Buyer and the Stockholders' Representative 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 "General Fund Termination
Date"), Buyer delivers to the Escrow Agent written notice (an "Indemnification
Notice") and a copy thereof to the Stockholders' Representative pursuant to
Section 4.1 hereof asserting that Buyer 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 Buyer from the General Escrow Fund, on the thirtieth (30th) day
following receipt by the Escrow Agent of such Indemnification Notice, an amount
equal to the value of such claim (a "General Escrow Payout"). Any General
Escrow Payout shall be disbursed from the General Escrow Fund; provided,
--------
however, in the event that the General Escrow Fund is not sufficient to pay the
-------
value of any such claim, the Escrow Agent shall distribute the entire balance of
the General Escrow Fund, if any, and, in addition, shall distribute a number of
the Escrowed Shares equal to (a) the amount of such claim which was not paid
from the General Escrow Fund) divided by (b) the IPO Price (subject to
----------
appropriate adjustment after the Closing Date for any stock split or stock
dividend with respect to Buyer Common Stock, or any combination or
reclassification of Buyer Common Stock into a greater or smaller number of
shares), as certified in writing to the Escrow Agent by Buyer. Notwithstanding
the foregoing, each Stockholder may elect to pay in cash, in accordance with its
respective Proportionate Interest, the portion of any such
4
indemnification claim which is being satisfied, in whole or in part, by the
Escrowed Shares (each, an "Electing Stockholder"). In the event of any such
election, Buyer and the Stockholders' 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 directly to Buyer 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
Buyer Common Stock, or any combination or reclassification of the Buyer Common
Stock into a greater or smaller number of shares), as certified in writing to
the Escrow Agent by Buyer (the "Cash Option"). Notwithstanding the foregoing,
any Indemnification Notice asserting that Buyer is entitled to indemnification
under Section 10.2(f) of the Purchase Agreement may only be delivered pursuant
to, and satisfied in accordance with, Section 3.2.2 of this Agreement.
3.2.2 Xxxxxxx Escrow Fund. If at any time, or from time to time,
-------------------
on or before the date on which the Escrow Agent receives a joint written notice
signed by Buyer and the Stockholders' Representative certifying that the
ABD/Xxxxxxx Dispute has been fully and finally settled or otherwise disposed of
(the "Xxxxxxx Fund Termination Date"), Buyer delivers to the Escrow Agent an
Indemnification Notice and a copy thereof to the Stockholders' Representative
pursuant to Section 4.1 hereof asserting that Buyer is entitled to
indemnification under Section 10.2(f) of the Purchase Agreement, which
Indemnification Notice shall state the basis and amount of such indemnification
claim, then the Escrow Agent shall disburse to Buyer from the Xxxxxxx Escrow
Fund, on the thirtieth (30th) day following receipt by the Escrow Agent of such
Indemnification Notice, an amount equal to the value of such claim (a "Xxxxxxx
Escrow Payout").
3.2.2A State Escrow Fund. If at any time, or from time to time, on or
-----------------
before January 31, 2000 (or if such date is not a business day, the next
business day, the "State Fund Termination Date"), Buyer delivers to the Escrow
Agent an Indemnification Notice and a copy thereof to the Stockholders'
Representative pursuant to Section 4.1 hereof asserting that Buyer is entitled
to indemnification under Section 10 of the Purchase Agreement with respect to
penalties imposed by any state taxing authority arising out of or as a result of
the Settled Audits, which Indemnification Notice shall state the basis and
amount of such indemnification claim, then the Escrow Agent shall disburse to
Buyer from the State Escrow Fund, on the thirtieth (30th) day following receipt
by the Escrow Agent of such Indemnification Notice, an amount equal to the value
of such claim (a "State Escrow Payout").
3.2.3 Notwithstanding the foregoing provisions of this Section
3.2, if prior to the thirtieth (30th) day following receipt by the Escrow Agent
of an Indemnification Notice the Escrow Agent receives written notice from the
Stockholders' Representative that a dispute exists with respect to any such
indemnification claims (a "Dispute Notice"), which Dispute Notice shall state
the basis of such dispute and the portion of the General Escrow Payout, the
Xxxxxxx Escrow Payout or the State Escrow Payout, if any, as to which no dispute
5
exists, the Escrow Agent shall continue to hold the portion of the General
Escrow Payout, the Xxxxxxx Escrow Payout or the State Escrow Payout, as the case
may be, that is in dispute (but shall disburse to Buyer the portion of the
General Escrow Payout, the Xxxxxxx Escrow Payout or the State Escrow Payout, as
the case may be, as to which no dispute exists) until directed otherwise
pursuant to Section 3.3 hereof.
3.3 Dispute of Indemnification Claim. If the Escrow Agent timely
--------------------------------
receives a Dispute Notice, the Escrow Agent shall retain the portion of the
Xxxxxxx Escrow Fund, the State Escrow Fund, the General Escrow Fund and/or the
Escrowed Shares, as the case may be, 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 Buyer and the Stockholders' Representative, in which case the
Escrow Agent shall disburse the Xxxxxxx Escrow Fund, the State Escrow Fund, the
General Escrow Fund and/or the Escrowed Shares, as the case may be (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 time for all appeals therefrom having
expired) (the "Indemnity Award") resolving the dispute, in which case the Escrow
Agent shall disburse the Xxxxxxx Escrow Fund, the State Escrow Fund, the General
Escrow Fund and/or the Escrowed Shares, as the case may be (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.
------------------------------------------
3.4.1 General Escrow Fund. If, on the General Fund Termination
-------------------
Date, there is any amount of the General Escrow Fund remaining undisbursed and
not subject to an Indemnification Notice received by the Escrow Agent, the
Escrow Agent shall disburse (a) to the Xxxxxxx Shareholders in accordance with
each Xxxxxxx Stockholder's Proportionate Interest (rounded to the nearest whole
share) (upon receipt of proper stock certificates from Buyer's transfer agent)
Escrowed Shares, (b) to the Xxxxxxx Shareholders in accordance with each Xxxxxxx
Stockholder's Proportionate Interest (rounded to the nearest whole cent) an
amount equal to (1) the excess of $1,700,000 over the aggregate amount of all
cash distributions and other cash amounts paid from the General Escrow Fund
(including, without limitation, all cash General Escrow Payouts), plus (2)
interest on all amounts in the General Escrow Fund to the extent actually earned
up to the Federal short-term rate (as defined in Section 1274(d) of the Code)
for the period beginning on the date hereof and ending on the General Fund
Termination Date and (c) to Buyer, an amount equal to the interest on all
amounts in the General Escrow Fund to the extent such interest exceeds the
amount of interest calculated pursuant to subclause
6
(2) of the preceding clause (b). The calculation in clauses (b) and (c) above
shall be provided to the Escrow Agent by joint written certificate of Buyer and
Stockholders' Representative. The Escrow Agent will be protected in reliance
thereon.
3.4.2 Xxxxxxx Escrow Fund. If, on the Xxxxxxx Fund Termination
-------------------
Date, there is any amount of the Xxxxxxx Escrow Fund remaining undisbursed and
not subject to an Indemnification Notice received by the Escrow Agent, the
Escrow Agent shall disburse (a) to the Xxxxxxx Stockholders in accordance with
each Xxxxxxx Stockholder's Proportionate Interest (rounded to the nearest whole
cent), an amount equal to (1) the excess of $2,000,000 over the aggregate amount
of all cash distributions and other cash amounts paid from the Xxxxxxx Escrow
Fund (including, without limitation, all cash Xxxxxxx Escrow Payouts), plus (2)
interest on all amounts in the Xxxxxxx Escrow Fund to the extent actually earned
up to the Federal short-term rate (as defined in Section 1274(d) of the Code)
for the period beginning on the date hereof and ending on the Xxxxxxx Fund
Termination Date and (b) to Buyer, an amount equal to the interest on all
amounts in the Xxxxxxx Escrow Fund to the extent such interest exceeds the
amount of interest calculated pursuant to subclause (2) of the preceding clause
(a). The calculation in clauses (a) and (b) above shall be provided to the
Escrow Agent by joint written certificate of Buyer and Stockholders'
Representative. The Escrow Agent will be protected in reliance thereon.
3.4.2A State Escrow Fund. If, on the State Fund Termination Date,
-----------------
there is any amount of the State Escrow Fund remaining undisbursed and not
subject to an Indemnification Notice received by the Escrow Agent, the Escrow
Agent shall disburse (a) to the Xxxxxxx Stockholders in accordance with each
Xxxxxxx Stockholder's Proportionate Interest (rounded to the nearest whole
cent), an amount equal to (1) the excess of $191,161 over the aggregate amount
of all cash distributions and other cash amounts paid from the State Escrow Fund
(including, without limitation, all cash State Escrow Payouts), plus (2)
interest on all amounts in the State Escrow Fund to the extent actually earned
up to the Federal short-term rate (as defined in Section 1274(d) of the Code)
for the period beginning on the date hereof and ending on the State Fund
Termination Date and (b) to Buyer, an amount equal to the interest on all
amounts in the State Escrow Fund to the extent such interest exceeds the amount
of interest calculated pursuant to subclause (2) of the preceding clause (a).
The calculation in clauses (a) and (b) above shall be provided to the Escrow
Agent by joint written certificate of Buyer and Stockholders' Representative.
The Escrow Agent will be protected in reliance thereon.
3.5 Fractional Shares. No fractional shares shall be issued under
-----------------
this Agreement to any of the Xxxxxxx Stockholders. Any payment which would
result in the disbursement of a fractional share of Buyer Common Stock shall be
rounded to the nearest whole share.
7
3.6 Payment of Indemnification Claims; Valuation of Buyer Common
------------------------------------------------------------
Stock. Whenever this Agreement provides that the Escrow Agent may or shall
-----
disburse Escrowed Shares to Buyer, 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 Buyer and
another stock certificate representing the balance of Escrowed Shares remaining.
The Escrow Agent shall then deliver to Buyer 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 Buyer 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 Buyer 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
----------
the Closing Date for any stock split or stock dividend with respect to Buyer
Common Stock, or any combination or reclassification of Buyer Common Stock into
a greater or smaller number of shares, all as certified in writing to the Escrow
Agent by Buyer. Buyer will promptly forward an updated Schedule B to the Escrow
----------
Agent to reflect any such changes to the capital structure of Buyer. Except as
set forth in Section 3.2.1 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 Stockholders' Representative.
------------------------------------------------
4.1 Notice of Indemnification Claims. Buyer shall provide a copy of
--------------------------------
any Indemnification Notice to the Stockholders' Representative concurrently with
the delivery thereof to the Escrow Agent.
4.2 Additional Information Regarding Indemnification Claims. Within
-------------------------------------------------------
five (5) business days after receiving a request therefor from the Stockholders'
Representative, Buyer shall furnish the Stockholders' 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
--------------------
or obligation of any kind in connection with this Agreement, the Xxxxxxx Escrow
Fund, the State Escrow Fund, the General Escrow Fund 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 Xxxxxxx Escrow Fund, the
State Escrow Fund, the General Escrow Fund and the Escrowed Shares, as herein
expressly provided or by reason of a judgment or order of a court of competent
jurisdiction.
8
6. Knowledge and Sufficiency of Documents. The Escrow Agent shall not be
--------------------------------------
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 Xxxxxxx Escrow Fund, the State Escrow Fund, the General Escrow Fund
and 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 Xxxxxxx Escrow Fund, the State Escrow Fund, the General
Escrow Fund and 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 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 Buyer, on
---------------------
one hand, and the Stockholders' Representative, on the other, or any other
person, firm or entity, with respect to this Agreement, the Xxxxxxx Escrow Fund,
the State Escrow Fund, the General Escrow Fund and the Escrowed Shares, or any
part thereof, or the right of any party or other person to receive the Xxxxxxx
Escrow Fund, the State Escrow Fund, the General Escrow Fund and 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 Xxxxxxx Escrow Fund, the State
Escrow Fund, the General Escrow Fund and 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 Xxxxxxx Escrow Fund,
the State Escrow Fund, the General Escrow Fund and the Escrowed Shares as
hereinabove set forth, other than to tender the Xxxxxxx Escrow Fund, the State
Escrow Fund, the General Escrow Fund and 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 Xxxxxxx Escrow Fund,
the State Escrow Fund, the General Escrow Fund and the Escrowed Shares, then as
between themselves and the Escrow Agent, Buyer and the Xxxxxxx Stockholders,
jointly and severally, hereby bind and obligate themselves, their successors,
heirs, executors and assigns to pay the Escrow Agent its
9
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, Buyer 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
--------------------------------------
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 Xxxxxxx Escrow Fund, the State Escrow Fund, the General Escrow Fund and
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.
9. Indemnity. As between themselves and the Escrow Agent, Buyer and the
---------
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.
Buyer 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 the Xxxxxxx Escrow Fund, the State Escrow Fund,
the General Escrow Fund and the 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. Buyer and the Stockholders' 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. Buyer 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,
10
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 attorneys'
fees and expenses), interest and penalties.
Notwithstanding the foregoing, as between themselves, Buyer 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
-------------------------------
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
---------------------------------------------
be entitled to reimbursement from Buyer 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 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, Buyer 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
-----------
notice to Buyer and the Stockholders' Representative, and upon written
instruction to Buyer and the Stockholders' Representative, the Escrow Agent
shall deliver the Xxxxxxx Escrow Fund, the State Escrow Fund, the General Escrow
Fund and the Escrowed Shares to any designated substitute Escrow Agent mutually
agreeable to such parties. If Buyer and the Stockholders' 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 Xxxxxxx
Escrow Fund, the State Escrow Fund, the General Escrow Fund and the Escrowed
Shares or (ii) institute a xxxx of interpleader as contemplated by Section 7
hereof.
13. Compensation. Buyer and the Xxxxxxx Stockholders covenant and agree,
------------
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
11
attached hereto as Schedule A. Without altering or limiting the joint and
----------
several liability of Buyer and the Xxxxxxx Stockholders hereunder, as between
themselves, Buyer 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. Responsibilities of the Stockholders' Representative.
----------------------------------------------------
14.1 General. The Stockholders' Representative has been designated by
-------
the Xxxxxxx Stockholders to represent the Xxxxxxx Stockholders with respect to
the Xxxxxxx Escrow Fund, the State Escrow Fund, the General Escrow Fund and the
Escrowed Shares pursuant to the terms of this Agreement. The duties of the
Stockholders' Representative hereunder shall be limited to the observance of the
express provisions of this Agreement. The Stockholders' 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.
14.2 Reimbursement of Expenses of the Stockholders' Representative.
-------------------------------------------------------------
The Xxxxxxx Stockholders shall reimburse the Stockholders' Representative for
reasonable out-of-pocket expenses incurred by the Stockholders' Representative
in the performance of his duties hereunder. During the period the Xxxxxxx
Escrow Fund, the State Escrow Fund, the General Escrow Fund and/or the Escrowed
Shares are held in escrow under this Agreement, the reimbursement provided under
this Section 14.2 shall be from sources of funds other than the Xxxxxxx Escrow
Fund, the State Escrow Fund, the General Escrow Fund and the Escrowed Shares.
14.3 Duties. The Xxxxxxx Stockholders hereby authorize and direct the
------
Stockholders' 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 Stockholders' Representative shall deem necessary or
appropriate in connection with the transactions contemplated by this Agreement.
All decisions and actions by the Stockholders' 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.
14.4 Reliance. By their execution of this Agreement, the Xxxxxxx
--------
Stockholders agree that (i) Buyer and the Escrow Agent shall be able to rely
conclusively on the instructions and decisions of the Stockholders'
Representative as to any actions required or permitted to be taken by the
Xxxxxxx Stockholders or the Stockholders' 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 Stockholders' Representative,
(ii) all actions, decisions and instructions of the Stockholders' Representative
shall be conclusive and
12
binding upon all of the Xxxxxxx Stockholders and no Xxxxxxx Stockholder shall
have any cause of action against the Stockholders' Representative or any other
person for any action taken, decision made or instruction given by the
Stockholders' 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 Stockholders' Representative and (iii) the
provisions of this Section 14 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 Stockholders' Representative and
shall be binding upon the executors, heirs, legal representatives and successors
of each Xxxxxxx Stockholder.
15. Investment. Subject to Section 2.3 of this Agreement, the available
----------
uninvested portion of the Xxxxxxx Escrow Fund, the State Escrow Fund, and the
General Escrow Fund shall be invested (and reinvested, as the case may be) from
time to time by the Escrow Agent in any of the following investments
(collectively, "Eligible Investments"):
(i) Short term obligations issued or guaranteed by The United States
of America or any agency or instrumentality thereof; or
(ii) Certificates of deposit of or interest bearing accounts with
national banks or corporations endowed with trust powers, including the
Escrow Agent, having capital and surplus in excess of $100,000,000; or
(iii) Insured Money Market Account short term investments with
national banks or corporations endowed with trust powers, including Escrow
Agent, having capital and surplus in excess of $100,000,000; or
(iv) Corporate bond funds with a rating of at least A+ or the
equivalent thereof by Standard & Poor's Corporation, at least A+ or thereof
by Xxxxx'x Investors Service, Inc. or an equivalent rating by another
nationally recognized rating agency.
Investments pursuant to such investment instructions described above shall
in all instances be subject to availability (including any time-of-day
requirements). In no instance shall the Escrow Agent have any obligation to
provide investment advice of any kind. The Escrow Agent shall not be required
to invest any funds held hereunder except as expressly provided in written
instructions received from the Stockholders' Representative pursuant to Section
2 hereof, and shall not be obligated to pay interest on uninvested funds. All
amounts received by the Escrow Agent (and any credits to the Xxxxxxx Escrow
Fund, the State Escrow Fund, and the General Escrow Fund) shall be conditional
upon collection (and actual receipt by the Escrow Agent of final payment). In
no event shall the Escrow Agent have any obligation to advance funds.
13
The Escrow Agent may be authorized at all times and from time to time to
liquidate any investment of the Xxxxxxx Escrow Fund, the State Escrow Fund, and
the General Escrow Fund as may be necessary to provide available cash to make
any release, disbursement or payment called for under the terms of this
Agreement. The Escrow Agent shall have no responsibility or liability for any
losses resulting from liquidation of the Xxxxxxx Escrow Fund, the State Escrow
Fund, and the General Escrow Fund (such as liquidation prior to maturity).
16. Change in the Stockholders' Representative. The Stockholders'
------------------------------------------
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 Stockholders' Representative.
17. Confidentiality. All of the information provided by the parties to
---------------
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 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.
-------------
18.1 Complete Agreement. This Agreement and any documents referred to
------------------
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
----------------------
and supplemented, and compliance with any provision hereof may be waived, only
by a writing signed by Buyer, the Escrow Agent and the Stockholders'
Representative.
14
18.3 Assignment. This Agreement shall be binding upon and inure to
----------
the benefit of Buyer, the Escrow Agent, the Xxxxxxx Stockholders and the
Stockholders' 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 Buyer
-------- -------
may assign its rights under this Agreement in connection with a merger,
consolidation or sale of substantially all of the assets of Buyer.
18.4 Waivers Strictly Construed. With regard to any power, remedy or
--------------------------
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
------------
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 Xxxxxxx Escrow
-----------
Fund, the State Escrow Fund, the General Escrow Fund and the Escrowed Shares
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.
18.7 Notices. All notices under this Agreement will be in writing and
-------
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 Buyer, the Stockholders' Representative and the Escrow Agent; provided,
--------
however, that the failure to give copies of such notice shall not render the
-------
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:
15
(a) If to Buyer:
Xxxxxxx American Corporation
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: President
Facsimile: (000) 000-0000
With a copy to:
Xxxxxxx, Procter & Xxxx LLP
Exchange Place
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx, Xx., Esq.
Facsimile: (000) 000-0000
(b) If to the Stockholders' 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:
State Street Bank and Trust Company
Financial Markets Group
Corporate Trust
Attn: Xxxxxxx Indemnity Escrow Account
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
16
With a copy to:
Peabody & Xxxxxx LLP
00 Xxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
18.8 Governing Law; Consent to Jurisdiction and Service. The rights
--------------------------------------------------
and liabilities of the parties under 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. Buyer, each Xxxxxxx
Stockholder and the Stockholders' Representative hereby absolutely and
irrevocably consents and submits to the jurisdiction of the courts in The
Commonwealth of Massachusetts and of any Federal court located in said
Commonwealth in connection with any actions or proceedings brought against
Buyer, the Xxxxxxx Stockholders and/or the Stockholders' Representative arising
out of or relating to this Agreement. In any such action or process, Buyer,
each Xxxxxxx Stockholder and the Stockholders' Representative hereby absolutely
and irrevocably waive personal service of any summons, complaint, declaration or
other process and hereby absolutely and irrevocably agree that the service
thereof may be made by certified or registered first-class mail directed to
Buyer and the Stockholders' Representative, as the case may be, at their
respective addresses in accordance with Section 18.7 hereof.
18.9 Headings. The headings in this Agreement are inserted only as a
--------
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 Buyer, the Stockholders' Representative
-------------
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
-------------------------
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.
17
18.12 Counterparts. This Agreement may be executed in counterparts,
------------
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
[Remainder of page intentionally left blank]
18
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, as of the day and year first above written.
XXXXXXX AMERICAN CORPORATION
/s/ Xxxxxx X. Xxxxxxx
---------------------
Xxxxxx X. Xxxxxxx
President
STATE STREET BANK AND TRUST COMPANY,
as Escrow Agent
By: /s/ Xxxxxx Xxxxxxxxx
---------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Assistant Vice President
/s/ Xxxxxx X. Xxxxx
---------------------------------
Xxxxxx X. Xxxxx, as Stockholders' Representative
XXXXXXX STOCKHOLDERS:
/s/ Xxxxxx Xxxxxxxx
---------------------------------
Xxxxxx Xxxxxxxx
/s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Xxxxxxx X. Xxxxxxx
/s/ Xxxxxx X. Xxxxx
---------------------------------
Xxxxxx X. Xxxxx
/s/ Xxxxxx X. Xxxxx, Xx.
---------------------------------
Xxxxxx X. Xxxxx, Xx.
19
/s/ Xxxxxx X. Xxxxxxx
---------------------------------
Xxxxxx X. Xxxxxxx
XXXXXX X. XXXXXXX 1984 REVOCABLE
TRUST
/s/ Xxxxxx X. Xxxxxxx
---------------------------------
Xxxxxx X. Xxxxxxx, Trustee
/s/ Xxxxxx X. Xxxxx
---------------------------------
Xxxxxx X. Xxxxx, Trustee
/s/ Xxxxx Xxxxx
---------------------------------
Xxxxx Xxxxx, Trustee
XXXXXX X. XXXXXXX 1991 CHARITABLE
REMAINDER UNITRUST
/s/ Xxxxxx X. Xxxxxxx
---------------------------------
Xxxxxx X. Xxxxxxx, Trustee
/s/ Xxxxxx X. Xxxxx
---------------------------------
Xxxxxx X. Xxxxx, Trustee
XXXXXXX ENTERPRISES, INC. EMPLOYEE
STOCK OWNERSHIP TRUST
/s/ Xxxxx X. Xxxxxxxxxxx
---------------------------------
Xxxxx X. Xxxxxxxxxxx, as Trustee
and not individually
20
/s/ Xxxxxx X. Xxxxxx, Xx.
---------------------------------
Xxxxxx X. Xxxxxx, Xx.
/s/ Xxxxxx X. Xxxxx
---------------------------------
Xxxxxx X. Xxxxx
21
