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EXHIBIT NO. 10.7
ESCROW AGREEMENT
This Escrow Agreement (the "Agreement") is entered into as of
March 31, 1998 by and among, Nextera Enterprises, L.L.C., a Delaware limited
liability company ("Buyer"), Nextera Enterprises Holdings, L.L.C., a Delaware
limited liability company and the controlling member of Nextera ("Holdings"),
Pyramid Imaging, Inc., a California corporation (the "Company"), the holders of
the Company's common stock listed on Exhibit A attached hereto (herein
collectively referred to as the "Holders" and individually as a "Holder") and
Chase Manhattan Trust Company, National Association, as escrow agent (the
"Escrow Agent").
WHEREAS, pursuant to a Purchase Agreement (the "Purchase
Agreement") dated as of March 31, 1998 by and among Buyer, Holdings, the Company
and the Holders, Buyer is acquiring all of the issued and outstanding common
stock of the Company from the Holders;
WHEREAS, the Holders have agreed to indemnify Buyer against
certain breaches of the representations, warranties and covenants made by the
Company and the Holders in the Purchase Agreement and against certain other
matters as specified in Section 9 of the Purchase Agreement; and
WHEREAS, to secure payment of the Holders' indemnification
obligations, Eight Hundred Twenty-Five Thousand ($825,000) in cash (the
"Escrowed Cash") and 66,000 Buyer Class A Units (the "Escrowed Units")
(together, the Escrowed Cash and the Escrowed Units and additions to or earnings
on the same, the "Escrow Deposit") are being deposited, pursuant to Section
1.2(b) of the Purchase Agreement, in escrow to be held as hereinafter provided.
NOW, THEREFORE, in consideration of the foregoing and the
mutual promises of the parties herein contained, and other good and valuable
consideration, receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
1. Establishment of Escrow: Investment. Buyer has herewith
deposited the Escrow Deposit with the Escrow Agent on the date of the Closing.
The Escrowed Units have been issued in the names of the Holders who, subject to
the provisions herein, have the right to receive such shares as set forth on
Exhibit A attached hereto, and shall be accompanied by stock powers or similar
instruments duly signed in blank by the appropriate Holder. The Escrow Deposit
shall be held in escrow in an account designated as The Pyramid Imaging Escrow
Account or an account having such other similar designation, subject to the
terms and conditions set forth herein Xxxxxxxx Xxxxxxxxx shall serve as the
exclusive representative of the Holders with respect to the Escrow Deposit and
this Agreement (the "Escrow Representative"). If, for any reason, the Escrow
Representative shall be either unable or unwilling to serve, a successor Escrow
Representative shall be appointed by written consent of all Holders and all
references to the Escrow Representative shall be deemed to include such
successor. The Escrow Agent shall invest all cash held as part of the Escrow
Deposit only in such specific investments as Buyer and the Escrow Representative
shall from time to time jointly direct in writing to the Escrow Agent; provided,
however, that such investments shall be limited to:
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(a) time and demand deposits, certificates of deposit and
acceptances, maturing within ninety (90) days from
the date of acquisition thereof, issued by state and
national banks located in the United States of
America, including the Escrow Agent or any of its
affiliates, and having capital, surplus and profits
aggregating at least one hundred million dollars
($100,000,000);
(b) securities or other obligations of, or guaranteed by,
the United States of America or any agency thereof
having maturities of not greater than one (1) year;
(c) commercial paper, maturing within ninety (90) days
from the date of acquisition thereof, rated A-1 or
P-1 by Standard & Poor's or Xxxxx'x Investors
Service;
(d) repurchase agreements fully collateralized by
obligations described in clauses 1(a), 1(b) or 1(c)
hereof;
(e) shares of investment companies registered under the
Investment Company Act of 1940 which invest in any
obligation described herein, or shares of the Vista
Prime Money Market Fund, including those for which
the Escrow Agent or any of its affiliates provide
services for a fee, whether as an investment advisor,
custodian, transfer agent, registrar, sponsor,
distributor, manager, or otherwise.
Until further written notice, cash in the Escrow Deposit shall
be invested in Vista Prime. Unless otherwise directed in writing by the Escrow
Representative and Buyer, the Escrow Agent shall not invest all or any portion
of the Escrow Deposit in any investment if the maturity date of such investment
is later than the Termination Date (as defined below).
2. Amounts Earned on Escrow Deposit: Tax Matters. All amounts
earned, paid or distributed with respect to the Escrow Deposit (whether
interest, dividends, distributions from Buyer with respect to the Escrowed Units
or otherwise) shall become a part of the Escrow Deposit, shall be held hereunder
upon the same terms as the original Escrow Deposit and shall be distributed
together with the underlying portion of the original Escrow Deposit pursuant to
the terms of this Agreement. The parties agree that to the extent permitted by
applicable law, including Section 468B(g) of the Internal Revenue Code of 1986,
as amended, the Holders will include all amounts earned on the Escrow Deposit in
accordance with their respective percentage interests in their gross income for
federal, state and local income tax (collectively, "income tax") purposes and
pay any income tax resulting therefrom.
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3. Claims Against Escrow Deposit.
(a) At any time or times prior to the expiration of this
Agreement, Buyer may make claims against the Escrow Deposit for indemnification
pursuant to and in accordance with Article XII of the Purchase Agreement . Buyer
shall notify the Escrow Representative and the Escrow Agent in writing prior to
the expiration of this Agreement of each such claim, including a summary of the
amount of and bases for such claim. If the Escrow Representative shall dispute
such claim, the Escrow Representative shall give written notice thereof to Buyer
and to the Escrow Agent within thirty (30) days after receipt of notice of
Buyer's claim, in which case the Escrow Agent shall continue to hold the Escrow
Deposit in accordance with the terms of this Agreement; otherwise, such claim
shall be deemed to have been acknowledged to be payable out of the Escrow
Deposit in the full amount thereof and the Escrow Agent shall use its best
efforts to pay such claim to Holdings within three (3) business days after
expiration of said thirty day period or as soon thereafter as possible. If the
amount of the claim exceeds the value of the Escrow Deposit, the Escrow Agent
shall have no liability or responsibility for any deficiency.
(b) The Escrow Agent shall follow the procedure below in
making any payment in satisfaction of a claim against the Escrow Deposit:
(i) The Escrow Agent shall make such payment first
from the Escrowed Cash and any cash additions to or earnings on the Escrow
Deposit until all cash in the Escrow Deposit has been exhausted.
(ii) To the extent that any claim exceeds the amount
of Escrowed Cash or other cash in the Escrow Deposit, the Escrow Agent shall
make payment from the Escrowed Units in such number of Escrowed Units (computed
to the nearest whole unit) having a value equal to the value of the claim not
satisfied by cash payment. Any payment of Escrowed Units by the Escrow Agent to
Holdings shall be treated as a sale by the Holders of such Escrowed Units for
the value described herein. The value of an Escrowed Unit for purposes of this
Section shall be the fair market value of such unit on the date of the claim as
determined by the Board of Directors of Buyer (the "Board"). The fair market
value shall be determined in good faith by the Board and the Board shall notify
the Escrow Representative and Escrow Agent in writing of its determination (the
"Valuation Notice"). If the Escrow Representative disputes the fair market value
of the Escrowed Units as determined by the Board, then the Escrow Representative
shall so notify the Board and Escrow Agent in writing (the "Appraisal Notice")
within five (5) business days of receipt of the Valuation Notice. Within fifteen
(15) business days of the receipt of the Appraisal Notice, the Board and the
Escrow Representative shall each appoint a professional appraiser to determine
the fair market value of the Escrowed Units. Each appraiser shall have at least
five (5) years experience in appraising companies similar to Buyer. The two
appraisers shall within the succeeding twenty (20) day period after their
selection, attempt to reach agreement on the fair market value. If the
appraisers reach such agreement they shall so notify the Escrow Agent and their
agreement shall be final and binding on Buyer, Holdings, the Board, the Escrow
Representative, the Company, the Holders, and their affiliates. If the
appraisers fail to agree, they shall within ten (10) days thereafter select a
third appraiser with the same qualification requirements, and the three (3)
appraisers shall establish the fair market value by majority vote within the
succeeding twenty (20) day period and shall notify the Escrow Agent of their
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determination. Such determination of the fair market value shall be final and
binding on Buyer, Holdings, the Board, the Escrow Representative, the Holders,
the Company, and their affiliates. In all events, the appraisers selected shall
be unaffiliated with and otherwise independent of Buyer, Holdings, the Board,
the Company, the Escrow Representative, the Company, the Holders, and their
affiliates. If the fair market value of the Escrowed Units, as determined by the
appraisers, is less than or no more than five percent (5%) greater than the
value as determined by the Board, then the Holders shall pay all costs
associated with the appraisers. If the fair market value as determined by the
appraisers is more than five percent (5%) greater than the value as determined
by the Board, then Buyer shall pay for all costs associated with the appraisers.
The Escrowed Units delivered to Holdings in satisfaction of a claim shall be
allocated among the Holders so as to reduce each Holder's interest in the
remaining Escrowed Units by the pro rata interests shown in Exhibit A. In the
event that the Escrow Agent must make payment with a number of units less than
or different from the number of units represented by a certificate in the Escrow
Deposit, the Escrow Agent shall surrender such certificate to Buyer and Buyer
shall issue to the Escrow Agent certificates of Buyer Class A Units identical in
form but for the number of units as necessary to allow for proper payment of the
claim so long as the number of units of the new certificates plus the amount of
units used to satisfy such claim shall be equivalent to the total number of
units covered by the surrendered certificate.
4. Disputed Claims.
(a) If the Escrow Representative shall dispute an
indemnification claim of Buyer as above provided, the Escrow Agent shall set
aside a portion of the Escrow Deposit sufficient to pay said claim in full (the
"Set Aside Amount"). If Buyer notifies the Escrow Agent in writing that it has
made out-of-pocket expenditures in connection with any such disputed claim, and
provides paid receipts for such expenditures, in addition to expenditures
included in the Set Aside Amount, an amount equal to such additional
expenditures shall be added to the Set Aside Amount. If the Set Aside Amount
exceeds the amount of the Escrowed Cash, the Escrow Agent shall set aside an
appropriate number of Escrowed Units as determined by the procedure described in
Section 3(b)(ii) above.
(b) If the disputed indemnification claim has not been
resolved or compromised within sixty (60) days after the Escrow Representative
sends notice of dispute of the same, or in the event of a third-party claim or
suit, within fifteen (15) days after its resolution or compromise, said
indemnification claim shall be referred to the American Arbitration Association,
to be settled by binding arbitration in Boston, Massachusetts, in accordance
with the commercial arbitration rules of the Association. The fees and expenses
of the arbitrator shall be borne equally by the Holders and Buyer. In no event
shall the Escrow Agent be responsible for any fee or expense of any party to any
arbitration proceeding. The determination of the arbitrator as to the amount, if
any, of the indemnification claim which is properly allowable shall be
conclusive and binding upon the parties hereto and judgment may be entered
thereon in any court having jurisdiction thereof, including, without limitation,
any Superior Court in the Commonwealth of Massachusetts. The arbitrator shall
have the authority to award to the prevailing party reasonable costs and
expenses including attorney's fees and the cost of arbitration. The Escrow Agent
shall use its best efforts to make payment of such claim, as and to the extent
allowed, to Buyer out of the Set Aside
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Amount (or if insufficient, out of the Escrow Deposit) within three (3) business
days following the Escrow Agent's receipt of said determination or as soon
thereafter as possible.
(c) Notwithstanding Section 4(b), if a disputed
indemnification claim has not been resolved or compromised as of the Termination
Date (as hereinafter defined), and such claim does not involve a third-party
claim or suit, Buyer and the Escrow Representative shall continue to negotiate
in good faith a settlement of such claims for a period of ten (10) days. If,
after the expiration of such ten-day period, such indemnification claim still
has not been resolved or compromised, such claim shall be settled in accordance
with the arbitration provisions set forth in Section 4(b).
(d) It is understood and agreed that should any dispute arise
under this Section 4, the Escrow Agent, upon receipt of written notice of such
dispute or claim by the Escrow Representative, is authorized and directed to
retain in its possession without liability to anyone, the Set Aside Amount
relating to such dispute plus any expenditures of Buyer made pursuant to Section
4(a) until such dispute shall have been settled pursuant to this Section 4. The
Escrow Agent may, but shall be under no duty whatsoever to, institute or defend
any legal proceedings which relate to the Escrow Deposit.
5. Termination. This Agreement shall terminate on the date
that the Escrow Deposit is reduced to zero as the result of payments by the
Escrow Agent to Holdings in accordance with the provisions of Section 3 or
Section 4. If, however, the Escrow Deposit has not been reduced to zero as of
the date that is eighteen (18) months following the date of this Agreement (the
"Termination Date") and there are no outstanding indemnification claims on the
Termination Date, this Agreement shall terminate and the Escrow Agent shall
distribute the amount remaining in the Escrow Deposit to the Holders in
accordance with their pro rata interest in the Escrow Deposit as set forth in
Exhibit A attached hereto; otherwise this Agreement shall continue in effect
until all indemnification claims Buyer has made pursuant to Section 3 hereof on
or prior to the Termination Date shall have been disposed of. As of the
Termination Date, an amount of the Escrow Deposit adequate to cover all disputed
and undisputed claims made by Buyer pursuant to Section 3 hereof, plus an
additional ten percent (10%) of any such amount to cover potential expenses of
Buyer associated with such claims, will be held by the Escrow Agent, and the
Escrow Agent shall distribute on the Termination Date the balance, if any, of
the Escrow Deposit to the Holders in accordance with their pro rata interest in
the Escrow Deposit as set forth in Exhibit A attached hereto. At such time as
all remaining indemnification claims hereunder have been resolved and the Escrow
Agent has received a written notice executed by Buyer and the Escrow
Representative, or notification of a determination of an arbitrator pursuant to
Section 4(b), to that effect and any amounts to be distributed to Holdings in
connection therewith have been so distributed, the Escrow Agent shall distribute
the remaining Escrow Deposit, if any, to the Holders in accordance with their
pro rata interest in the Escrow Deposit as set forth in Exhibit A attached
hereto.
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6. The Escrow Agent.
(a) Direction from Buyer and Escrow Representative.
Notwithstanding anything herein to the contrary, the Escrow Agent shall promptly
dispose of all or any part of the Escrow Deposit as directed by a writing signed
by Buyer and Escrow Representative.
(b) Reliance by Escrow Agent; Liability of Escrow Agent.
Except with respect to capitalized terms used herein and defined in the Purchase
Agreement, the Escrow Agent will not be subject to, or be obliged to recognize,
any other agreement between the parties hereto or directions or instructions not
specifically set forth as provided for herein. The Escrow Agent will not make
any payment or disbursement from or out of the Escrow Deposit that is not
expressly authorized pursuant to this Agreement. The Escrow Agent undertakes to
perform only such duties as are expressly set forth herein. The Escrow Agent may
rely and shall be protected in acting or refraining from acting upon any written
notice, instruction or request furnished to it hereunder and believed by it to
be genuine and to have been signed or presented by the proper party or parties.
The Escrow Agent shall be under no duty to inquire into or investigate the
validity, accuracy or content of any such document. The Escrow Agent shall have
no duty to solicit any payment which may be due it hereunder. The Escrow Agent
shall not be liable for any action taken or omitted by it in good faith unless a
court of competent jurisdiction determines that the Escrow Agent's gross
negligence or willful misconduct was the primary cause of any loss to the Buyer,
Holdings, the Company or the Holders. In the administration of the Escrow
Deposit hereunder, the Escrow Agent may execute any of its powers and perform
its duties hereunder directly or through agents or attorneys and may consult
with counsel, accountants and other skilled persons to be selected and retained
by it. The Escrow Agent shall not be liable for anything done, suffered or
omitted in good faith by it in accordance with the advice or opinion of any such
counsel, accountants or other skilled persons. The Buyer and the Holders jointly
and severally hereby agree to indemnify and hold the Escrow Agent and its
directors, officers, agents and employees (collectively, the "Indemnitees")
harmless from and against any and all claims, liabilities, losses, damages,
fines, penalties, and expenses, including out-of-pocket and incidental expenses
and legal fees and expenses ("Losses") that may be imposed on, incurred by, or
asserted against the Indemnitees or any of them for following any instructions
or other directions upon which the Escrow Agent is authorized to rely pursuant
to the terms of this Agreement. In addition to and not in limitation of the
immediately preceding sentence, the Buyer and the Holders also agree to
indemnify and hold the Indemnitees and each of them harmless from and against
any and all Losses that may be imposed on, incurred by, or asserted against the
Indemnitees or any of them in connection with or arising out of Escrow Agent's
performance under this Agreement, provided the Indemnitees have not acted with
gross negligence or engaged in willful misconduct. Anything in this Agreement to
the contrary notwithstanding, in no event shall the Escrow Agent be liable for
special, indirect or consequential loss or damage of any kind whatsoever
(including but not limited to lost profits). The provisions of this Section 6(b)
shall survive the termination of this Agreement and the resignation or removal
of the Escrow Agent for any reason.
(c) Fees and Expenses of the Escrow Agent. All fees of the
Escrow Agent for its services hereunder, together with any expenses reasonably
incurred by the Escrow Agent in connection with this Agreement, shall be shared
equally by Buyer on the one hand and the
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Holders on the other. The fees to be paid by the Holders shall be deducted from
the Escrow Deposit.
(d) Resignation and Removal of Escrow Agent. Successor Escrow
Agent.
(i) The Escrow Agent may resign from its duties
hereunder by giving each of the parties hereto not less than thirty (30) days
prior written notice of the effective date of such resignation (which effective
date shall be at least thirty (30) days after the date such notice is given). In
addition, the Escrow Agent may be removed and replaced on a date designated in a
written instrument signed by Buyer and the Escrow Representative and delivered
to the Escrow Agent. The parties hereto intend that a successor escrow agent
mutually acceptable to the Escrow Representative and Buyer will be appointed to
fulfill the duties of the Escrow Agent hereunder for the remaining term of this
Agreement in the event of the Escrow Agent's resignation or removal. Upon the
effective date of such resignation or removal, the Escrow Agent shall deliver
the property comprising the Escrow Deposit to such successor escrow agent,
together with an accounting of the investments held by it and all transactions
related to this Agreement, including any distributions made and such records
maintained by the Escrow Agent in connection with its duties hereunder and other
information with respect to the Escrow Deposit as such successor may reasonably
request. If on or before the effective date of such resignation or removal, a
successor escrow agent has not been appointed, the Escrow Agent will thereupon
deposit the Escrow Deposit into the registry of a court of competent
jurisdiction.
Upon written acknowledgment by a successor
escrow agent appointed in accordance with this Section 6(d)(i) of its agreement
to serve as escrow agent hereunder and the receipt of the property then
comprising the Escrow Deposit, the Escrow Agent shall be fully released and
relieved of all duties, responsibilities and obligations under this Agreement,
except for those arising under Section 6(b) of this Agreement, and such
successor escrow agent shall for all purposes hereof be the Escrow Agent.
(ii) Any corporation, association or other entity
into which the Escrow Agent may be converted or merged, or with which it may be
consolidated, or to which it may sell or otherwise transfer all or substantially
all of its corporate trust business, or any corporation, association or other
entity resulting from any such merger, conversion, consolidation, sale or other
transfer, shall, ipso facto, be and become successor Escrow Agent hereunder,
vested with all of the powers, discretions, immunities, privileges and all other
matters as was its predecessor, without the execution or filing of any
instrument or any further act on the part or any of the parties hereto, anything
herein to the contrary notwithstanding.
7. Voting of Escrowed Units. So long as any Escrowed Units are
retained by the Escrow Agent, the Holders shall not be entitled to exercise the
voting power, if any, with respect to that Holder's proportional interest in the
Escrowed Units as set forth in Exhibit A hereto.
8. Governing Law. IT IS THE PARTIES' INTENT THAT THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
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THE INTERNAL LAWS OF THE COMMONWEALTH OF MASSACHUSETTS (WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW).
9. Counterparts. This Escrow Agreement may be executed in one
or more counterparts, all of which documents shall be considered one and the
same document.
10. Notices. Any notice or other communication required or
permitted hereunder shall be in writing and shall be deemed to have been given
when received, if personally delivered or sent by facsimile transmission, or
three (3) days after deposited in the U.S. mails for delivery by registered or
certified mail, return receipt requested, postage prepaid, addressed as follows:
TO BUYER OR HOLDINGS: Nextera Enterprises, L.L.C.
Xxx Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx, Xx.
Fax: (000) 000-0000
Nextera Enterprises Holdings, L.L.C.
Xxx Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx, Xx.
Fax: (000) 000-0000
With a copy to: Xxxxxx & Xxxxxxx
00 Xxxxxx Xxxx
Xxxxx Xxxx, XX 00000
Attention: Xxxxxxxxxxx X. Xxxxxxx, Esq.
Fax: (000) 000-0000
Xxxxxx & Xxxxxxx
000 "X" Xxxxxx, Xxxxx 0000
Xxx Xxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
With an additional copy to: Maron & Sandler
000 Xxxxxx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Fax: (000) 000-0000
TO COMPANY: Pyramid Imaging, Inc.
000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx
Fax: (000) 000-0000
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With a copy to: Pillsbury Madison & Sutro LLP
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Fax: (000) 000-0000
TO ANY HOLDER: To the address last by provided by such
Holder to the Company
With a copy to: Pillsbury Madison & Sutro LLP
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Fax: (000) 000-0000
TO ESCROW AGENT: Chase Manhattan Trust Company, National
Association
Union Trust Building
000 Xxxxx Xxxxxx, Xxxx 000
Xxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx
Fax: (000) 000-0000
Addresses may be changed by written notice given pursuant to
this Section. Any notice given hereunder may be given on behalf of any party by
his counsel or other authorized representatives.
11. Certification of Tax Identification Number. The parties
hereto agree to provide the Escrow Agent with a certified tax identification
number by signing and returning a Form W-9 (or Form W-8, in the case of non-U.S.
persons) to the Escrow Agent prior to the date on which any income earned on the
investment of the Escrow Deposit is credited to the Escrow Deposit. The parties
hereto understand that, in the event their tax identification numbers are not
certified to the Escrow Agent, 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 Escrow Deposit.
12. Force Majeure. Neither Buyer, Holdings, the Company, the
Holders nor the Escrow Agent shall be responsible for delays or failures in
performance under this Agreement resulting from acts beyond its 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.
13. Modifications. This Agreement may not be altered or
modified without the express written consent of the parties hereto. No course of
conduct shall constitute a waiver of any of the terms and conditions of this
Escrow Agreement, unless such waiver is specified in writing, and then only to
the extent so specified. A waiver of any of the terms and conditions of this
Escrow Agreement on one occasion shall not constitute a waiver of the other
terms of this Escrow Agreement, or of such terms and conditions on any other
occasion.
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14. Reproduction of Documents. This Agreement and all
documents relating thereto, including, without limitation, (a) consents, waivers
and modifications which may hereafter be executed, and (b) certificates and
other information previously or hereafter furnished, may be reproduced by a
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.
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IN WITNESS WHEREOF, the parties have caused this Escrow
Agreement to be executed by their duly authorized representatives, as of the
date first written above.
BUYER:
NEXTERA ENTERPRISES, L.L.C.
By: /s/ XXXXXXX X. XXXXXXXXX
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
------------------------------
Title:
------------------------------
HOLDINGS:
NEXTERA ENTERPRISES HOLDINGS, L.L.C.
By: /s/ XXXXXXX X. XXXXXXXXX
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
------------------------------
Title:
------------------------------
SELLER:
PYRAMID IMAGING, INC.
By: /s/ XXXXXXX X. XXXXXXXX
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
------------------------------
Title: President
------------------------------
ESCROW AGENT:
CHASE MANHATTAN TRUST COMPANY,
NATIONAL ASSOCIATION, as Escrow Agent
By: /s/ XXXXX X. XXXXX
-------------------------------------
Name: Xxxxx X. Xxxxx
------------------------------
Title: Vice President
------------------------------
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HOLDERS:
/s/ XXXX XXXXXXXXX
--------------------------------------------
Xxxx Xxxxxxxxx
Tax Identification Number:__________________
/s/ XXXXXXX X. XXXXXXXX
--------------------------------------------
Xxxxxxx X. Xxxxxxxx
Tax Identification Number:__________________
/s/ XXXXXX XXXXXXXXX
--------------------------------------------
Xxxxxx Xxxxxxxxx
Tax Identification Number:__________________
/s/ XXXXXXX XXXXXXXXX
--------------------------------------------
Xxxxxxx Xxxxxxxxx
Tax Identification Number:__________________
/s/ XXXXXXX XXXXXXXXX
--------------------------------------------
Xxxxxxx Xxxxxxxxx
Tax Identification Number:__________________
/s/ XXXXXXX XXXXX
--------------------------------------------
Xxxxxxx Xxxxx
Tax Identification Number:__________________
/s/ XXXXX VAN STRAATUM
--------------------------------------------
Xxxxx Van Straatum
Tax Identification Number:__________________
/s/ XXXX XxXXXX
--------------------------------------------
Xxxx XxXxxx
Tax Identification Number:__________________
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