ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this "Agreement") is made as of July 14,
2000, by and among Cambex Corporation, a corporation incorporated under
the laws of Massachusetts, (the "Company"), Thumberland Limited
("Purchaser"), and Xxxxxxx Xxxxxx & Green, P.C., having an address at 000
Xxxx Xxxxxx, Xxx Xxxx, XX 00000 (the "Escrow Agent"). Capitalized
terms used but not defined herein shall have the meanings set forth in the
Common Stock Purchase Agreement referred to in the first recital.
WHEREAS, the Purchaser will from time to time as requested by the
Company, purchase shares of the Company's Common Stock from the
Company as set forth in that certain Common Stock Purchase Agreement (the
"Purchase Agreement") dated the date hereof between the Purchaser and the
Company, which will be issued as per the terms and conditions contained
herein and in the Purchase Agreement; and
WHEREAS, the Company and the Purchaser have requested that the Escrow
Agent hold in escrow and then distribute the initial documents and certain
funds which are conditions precedent to the effectiveness of the Purchase
Agreement, and have further requested that upon each exercise of a Draw
Down, the Escrow Agent hold the relevant documents and the applicable
purchase price pending receipt by Purchaser of certificates representing the
securities issuable upon such Draw Down;
NOW, THEREFORE, in consideration of the covenants and mutual promises
contained herein and other good and valuable consideration, the receipt and
legal sufficiency of which are hereby acknowledged and intending to be
legally bound hereby, the parties hereby agree as follows:
ARTICLE 1
TERMS OF THE ESCROW FOR THE INITIAL CLOSING
1.1. The parties hereby agree to establish an escrow
account with the Escrow Agent whereby the Escrow Agent shall hold the
funds and documents, which are referenced in Section 5.2 of the Purchase
Agreement.
1.2. At the Closing, the Company shall deliver to the
Escrow Agent:
(i) the original executed Registration Rights
Agreement in the form of Exhibit A to the Purchase Agreement;
(ii) the original executed opinion of Mintz, Levin,
Cohn, Ferris, Glovsky and Popeo PC, in the form of Exhibit C to the
Purchase Agreement;
(iii) the sum of $7,500 for the non-accountable
expenses of Ladenburg Xxxxxxxx & Co. Inc.;
(iv) the sum of $10,000 for the fees and expenses of
the Purchaser's counsel;
(v) the original executed Company counterpart of
this Escrow Agreement;
(vi) the original executed Company counterpart of
the Purchase Agreement;
(vii) the original executed Warrant in the form of
Exhibit E to the Purchase Agreement; and
(viii) a warrant certificate to purchase shares of the
Company's Common Stock issued to Ladenburg Xxxxxxxx & Co. Inc. (the
"LT Warrant"). The number of warrant shares shall be determined by
dividing $500,000 by the average of the VWAP on the five (5) Trading Days
immediately prior to the Closing Date. The LT Warrants shall have an
exercise price of 115% of the average of the VWAP on the five (5) Trading
Days immediately preceding the Closing and a term of three (3) years.
1.3. Upon receipt of the foregoing, and receipt of executed
counterparts from Purchaser of the Purchase Agreement, the Registration
Rights Agreement and this Escrow Agreement, the Escrow Agent shall
calculate the exercise price and enter the exercise price, the issuance date and
termination date on the face of the LT Warrant, as appropriate, and
immediately transfer the sum of Ten Thousand Dollars ($10,000) to Xxxxxxx
Xxxxxx & Green, P.C. ("EB&G"), 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 for the Purchaser's legal, administrative and escrow costs, the sum of
Seven Thousand Five Hundred Dollars ($7,500), as a non-accountable
expense allowance to Ladenburg Xxxxxxxx & Co. Inc., and deliver the LT
Warrant to Ladenburg Xxxxxxxx & Co. Inc. and the Escrow Agent shall then
arrange to have the Purchase Agreement, this Escrow Agreement, the
Registration Rights Agreement, the Warrant and the opinion of counsel
delivered to the appropriate parties.
ARTICLE 2
TERMS OF THE ESCROW FOR EACH DRAW DOWN
2.1. Each time the Company shall send a Draw Down
Notice to the Purchaser as provided in the Purchase Agreement, it shall send
a copy, by facsimile, to the Escrow Agent.
2.2. Each time the Purchaser shall purchase Shares
pursuant to a Draw Down, the Purchaser shall send the applicable purchase
price of the Draw Down Shares to the Escrow Agent, the Company and its
counsel, which shall advise the Company in writing that it has received the
purchase price for such Draw Down Shares. The Company shall promptly,
but no later than three (3) Trading Days after receipt of such funding notice
from the Escrow Agent, cause its transfer agent to issue the Draw Down
Shares to the Purchaser via DTC deposit to the account specified by the
Purchaser from time to time. Upon receipt of written confirmation from the
transfer agent or from the Purchaser that such Draw Down Shares have been
so deposited the Escrow Agent shall within one (1) Trading Day wire 95% of
the purchase price per the written instructions of the Company, net of One
Thousand Five Hundred Dollars ($1,500) per Draw Down as escrow
expenses to the Escrow Agent and net of Seventeen Thousand Five Hundred
Dollars ($17,500) as a non-accountable expense allowance to Ladenburg
Xxxxxxxx & Co. Inc. (only as to the initial Draw Down only), and the
remaining 5% of the purchase price as directed by Ladenburg Xxxxxxxx &
Co. Inc.
ARTICLE 3
MISCELLANEOUS
3.1. No waiver or any breach of any covenant or provision
herein contained shall be deemed a waiver of any preceding or succeeding
breach thereof, or of any other covenant or provision herein contained. No
extension of time for performance of any obligation or act shall be deemed an
extension of the time for performance of any other obligation or act.
3.2. All notices or other communications required or
permitted hereunder shall be in writing, and shall be sent by fax, overnight
courier, registered or certified mail, postage prepaid, return receipt
requested, and shall be deemed received upon receipt thereof, as set forth in
the Purchase Agreement.
3.3. This Escrow Agreement shall be binding upon and
shall inure to the benefit of the permitted successors and permitted assigns of
the parties hereto.
3.4. This Escrow Agreement is the final expression of, and
contains the entire agreement between, the parties with respect to the subject
matter hereof and supersedes all prior understandings with respect thereto.
This Escrow Agreement may not be modified, changed, supplemented or
terminated, nor may any obligations hereunder be waived, except by written
instrument signed by the parties to be charged or by their respective agents
duly authorized in writing or as otherwise expressly permitted herein.
3.5. Whenever required by the context of this Escrow
Agreement, the singular shall include the plural and masculine shall include
the feminine. This Escrow Agreement shall not be construed as if it had been
prepared by one of the parties, but rather as if both parties had prepared the
same. Unless otherwise indicated, all references to Articles are to this
Escrow Agreement.
3.6. The parties hereto expressly agree that this Escrow
Agreement shall be governed by, interpreted under and construed and
enforced in accordance with the laws of the State of New York. Except as
expressly set forth herein, any action to enforce, arising out of, or relating
in any way to, any provisions of this Escrow Agreement shall brought in the
Federal or state courts of New York, New York as is more fully set forth in
the Purchase Agreement.
3.7. The Escrow Agent's duties hereunder may be altered,
amended, modified or revoked only by a writing signed by the Company,
Purchaser and the Escrow Agent.
3.8. The Escrow Agent shall be obligated only for the
performance of such duties as are specifically set forth herein and may rely
and shall be protected in relying or refraining from acting on any instrument
reasonably believed by the Escrow Agent to be genuine and to have been
signed or presented by the proper party or parties. The Escrow Agent shall
not be personally liable for any act the Escrow Agent may do or omit to do
hereunder as the Escrow Agent while acting in good faith, excepting only its
own gross negligence or willful misconduct, and any act done or omitted by
the Escrow Agent pursuant to the advice of the Escrow Agent's attorneys-at-
law (other than Escrow Agent itself) shall be conclusive evidence of such
good faith.
3.9. The Escrow Agent is hereby expressly authorized to
disregard any and all warnings given by any of the parties hereto or by any
other person or corporation, excepting only orders or process of courts of law
and is hereby expressly authorized to comply with and obey orders,
judgments or decrees of any court. In case the Escrow Agent obeys or
complies with any such order, judgment or decree, the Escrow Agent shall
not be liable to any of the parties hereto or to any other person, firm or
corporation by reason of such decree being subsequently reversed, modified,
annulled, set aside, vacated or found to have been entered without
jurisdiction.
3.10. The Escrow Agent shall not be liable in any respect on
account of the identity, authorization or rights of the parties executing or
delivering or purporting to execute or deliver the Purchase Agreement or any
documents or papers deposited or called for thereunder or hereunder.
3.11. The Escrow Agent shall be entitled to employ such
legal counsel and other experts as the Escrow Agent may deem necessary
properly to advise the Escrow Agent in connection with the Escrow Agent's
duties hereunder, may rely upon the advice of such counsel, and may pay
such counsel reasonable compensation therefor. The Escrow Agent has
acted as legal counsel for the Purchaser, and may continue to act as legal
counsel for the Purchaser, from time to time, notwithstanding its duties
as the Escrow Agent hereunder. The Company consents to the Escrow
Agent in such capacity as legal counsel for the Purchaser and waives any
claim that such representation represents a conflict of interest on the
part of the Escrow Agent. The Company understands that the
Purchaser and the Escrow Agent are relying explicitly on the foregoing
provision in entering into this Escrow Agreement.
3.12. The Escrow Agent's responsibilities as escrow agent
hereunder shall terminate if the Escrow Agent shall resign by written notice
to the Company and the Purchaser. In the event of any such resignation, the
Purchaser and the Company shall appoint a successor Escrow Agent.
3.13. If the Escrow Agent reasonably requires other or
further instruments in connection with this Escrow Agreement or obligations
in respect hereto, the necessary parties hereto shall join in furnishing such
instruments.
3.14. It is understood and agreed that should any dispute
arise with respect to the delivery and/or ownership or right of possession of
the documents or the escrow funds held by the Escrow Agent hereunder, the
Escrow Agent is authorized and directed in the Escrow Agent's sole
discretion (1) to retain in the Escrow Agent's possession without liability to
anyone all or any part of said documents or the escrow funds until such
disputes shall have been settled either by mutual written agreement of the
parties concerned by a final order, decree or judgment or a court of
competent jurisdiction after the time for appeal has expired and no appeal has
been perfected, but the Escrow Agent shall be under no duty whatsoever to
institute or defend any such proceedings or (2) to deliver the escrow funds
and any other property and documents held by the Escrow Agent hereunder
to a state or Federal court having competent subject matter jurisdiction and
located in the State and City of New York in accordance with the applicable
procedure therefor.
3.15. The Company and the Purchaser agree jointly and
severally to indemnify and hold harmless the Escrow Agent and its partners,
employees, agents and representatives from any and all claims, liabilities,
costs or expenses in any way arising from or relating to the duties or
performance of the Escrow Agent hereunder or the transactions contemplated
hereby or by the Purchase Agreement other than any such claim, liability,
cost or expense to the extent the same shall have been determined by final,
unappealable judgment of a court of competent jurisdiction to have resulted
from the gross negligence or willful misconduct of the Escrow Agent.
IN WITNESS WHEREOF, the parties hereto have executed this Escrow
Agreement as of this 14th day of July, 2000.
CAMBEX
CORPORATION
By: /s/ Xxxxxx Xxxx
Name: Xxxxxx Xxxx
Its: Chairman,
President & CEO
Thumberland Limited:
By: /s/ Xxxx Xxxxxxx
Xxxx Xxxxxxx,
Authorized Signatory
ESCROW AGENT:
Xxxxxxx Xxxxxx & Green,
P.C.
By: /s/ Xxxxxx X. Xxxxxxx
Xxxxxx X.
Xxxxxxx
Authorized
Signatory
