EXHIBIT 10.46
INDEMNIFICATION AND ESCROW AGREEMENT
THIS INDEMNIFICATION AND ESCROW AGREEMENT, dated as of August 16, 1995
(the "Agreement"), by and among TRAK International, Inc., a Delaware corporation
(the "Company"), each of the persons listed on EXHIBIT A attached hereto
(collectively the "Stockholders"), and Boatmen's Trust Company, a Missouri trust
company, as Escrow Agent ("Escrow Agent").
WHEREAS, TRK Acquisition Corporation, a Delaware corporation ("TRK"),
the Company and the Major Stockholders listed therein have entered into an
Agreement and Plan of Merger (the "Merger Agreement") providing for the merger
of TRK with and into the Company (the "Merger");
WHEREAS, Section 3.2(b) of the Merger Agreement provides for the
delivery of a sum equal to Two Million Dollars ($2,000,000) (the "Escrow
Amount") to the Escrow Agent at the closing of the Merger, such Escrow Amount to
be delivered to and maintained by the Escrow Agent in accordance with the terms
of this Agreement and EXHIBIT B hereto; and
WHEREAS, the parties hereto desire to provide for (i) any downward
adjustment in Merger Consideration pursuant to Section 3.2(d) of the Merger
Agreement, and (ii) indemnification for breaches of representations, warranties
and covenants and for certain other matters under the Merger Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants contained herein, the parties hereto agree as follows:
1. DEFINITIONS.
Capitalized terms not otherwise defined herein shall have the meanings
ascribed to such terms in the Merger Agreement.
2. INDEMNIFICATION.
(a) Subject to the limitations hereinafter set forth in this Section
2, including in particular the non-recourse provisions hereof, from and after
the Effective Time, the Stockholders shall protect, defend, hold harmless and
indemnify the Company, its officers, directors, stockholders, employees and
agents, and their respective successors and assigns from, against
and in respect of any and all losses, liabilities, deficiencies, penalties,
fines costs, damages and expenses whatsoever (including without limitation,
reasonable professional fees and costs of investigation, litigation, settlement
and judgment and interest) (collectively, the "Losses") that may be suffered or
incurred by any of them arising from or by reason of any of the following:
(i) Any breach of any representation or warranty, made by the
Company in the Merger Agreement or contained in any certificate executed by the
Company to TRK in connection with the Merger;
(ii) Any breach of any covenant or agreement made by the Company
in the Merger Agreement to the extent such breach occurred on or prior to the
Closing Date;
(iii) Any breach of any covenant or agreement made by any of the
Major Stockholders in the Merger Agreement; and
(iv) Any and all actions, suits, proceedings, claims, demands,
assessments, judgments, costs and expenses (including without limitation,
interest, penalties, reasonable legal fees and accounting fees) incident to the
foregoing and the enforcement of the provisions of this Section 2.
(b) Subject to the limitations hereinafter set forth in this Section
2, from and after the Effective Time, the Company shall protect, defend, hold
harmless and indemnify the Stockholders, their respective officers, directors,
employees, agents, and personnel or legal representatives, and their respective
successors and assigns from, against and in respect of any and all Losses that
may be suffered or incurred by any of them arising from or by reason of any of
the following:
(i) Any breach of any representation, warranty, covenant or
agreement made by TRK in the Merger Agreement or contained in any certificate
executed by TRK and delivered to the Company in connection with the Merger
Agreement;
(ii) Any breach of any covenant or agreement made by the Company
in the Merger Agreement to the extent such breach occurs after the Closing Date;
and
(iii) Any and all actions, suits, proceedings, claims, demands,
assessments, judgments, costs and expenses (including without limitation,
interest, penalties, reasonable legal fees and
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accounting fees) incident to the foregoing and the enforcement of the provisions
of this Section 2.
(c) Whenever the Company shall learn after Closing of a claim of a
third party that, if allowed (whether voluntarily or by judicial or
quasi-judicial tribunal or agency), would constitute a breach of, or give rise
to an obligation of indemnification under Section 2(a), before paying the same
or agreeing thereto, the Company shall promptly notify the Stockholders'
Representative and the State of Wisconsin Investment Board ("SWIB") in writing
of all such facts within the Company's knowledge with respect to such and the
amount thereof. If, prior to the expiration of twenty (20) days from the
mailing of such notice, either the Stockholders' Representative or SWIB shall
request, in writing, that such not be paid, the Company shall not pay the same,
provided the Stockholders' Representative or SWIB proceeds promptly, at the
Stockholders' expense (including employment of counsel reasonably satisfactory
to the Company), while reserving the right to contest the issue of whether the
Stockholders have an obligation under Section 2(a), to settle, compromise or
litigate, in good faith, such claim, and to pursue at its expense other sources
of indemnity, contribution or compensation with respect to such claim on the
Company's behalf, including insurance policies maintained by the Company or its
Affiliates. After notice from the Stockholders' Representative or SWIB
requesting the Company not to pay such claim and the Stockholders' assumption of
the defense of such claim at their expense, the Stockholders shall not be liable
to the Company for any legal or other expense subsequently incurred by the
Company in connection with the defense thereof. However, the Company shall have
the right to participate at its expense and with counsel of its choice in such
settlement, compromise or litigation and shall have the right to direct and
control the negotiations, settlement and litigation if the same (i) has a direct
and material effect upon the continuing operations of the Company or (ii)
involves a claim which may reasonably be expected to exceed the amount that is
available in the Escrow Account which is not subject to a Claim (as defined
below). The Company shall not be required to refrain from paying any claim
which has matured by a court judgment or decree, unless an appeal is duly taken
therefrom and execution thereof has been stayed, nor shall the Company be
required to refrain from paying any claim where the delay in paying such claim
would result in the foreclosure of a lien upon any of the property or assets
then held by the Company or where any delay in payment would cause the Company a
material economic loss. The failure to provide notice
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as provided in this paragraph shall not excuse the Stockholders from their
continuing obligations hereunder; however, the claim shall be reduced by any
damages to the Stockholders resulting from the Company's delay or failure to
provide notice as provided in this paragraph.
(d) Whenever the Stockholders shall learn after Closing of a claim
(other than a claim under Section 2(b)(ii), as to which only a demand for
payment by the Stockholders' Representative or SWIB shall be required) that, if
allowed (whether voluntarily or by judicial or quasi-judicial tribunal or
agency), would constitute a breach of, or give rise to an obligation of
indemnification under Section 2(b), before paying the same or agreeing thereto,
the Stockholders' Representative or SWIB shall promptly notify the Company in
writing of all such facts within the Stockholders' knowledge with respect to
such claim and the amount thereof. If, prior to the expiration of twenty (20)
days from the mailing of such notice, the Company shall request, in writing,
that such claim not be paid, the Stockholders shall not pay the same, provided
the Company proceeds promptly, at its own expense (including employment of
counsel reasonably satisfactory to the Stockholders' Representative and SWIB),
to settle, compromise or litigate, in good faith, such claim. After notice from
the Company requesting the Stockholders' Representative not to pay such claim
and the Company's assumption of the defense of such claim at its expense, the
Company shall not be liable to the Stockholders for any legal or other expense
subsequently incurred by the Stockholders in connection with the defense
thereof. The Stockholders shall not be required to refrain from paying any
claim which has matured by a court judgment or decree, unless an appeal is duly
taken therefrom and execution thereof has been stayed, nor shall the
Stockholders be required to refrain from paying any claim where the delay in
paying such claim would result in the foreclosure of a lien upon any of the
property or assets then held by the Stockholders or where any delay in payment
would cause the Stockholders a material economic loss. The failure to provide
notice as provided in this paragraph shall not excuse the Company from its
continuing obligations hereunder; however, the Stockholders' claim shall be
reduced by any damages to the Company resulting from the Stockholders' delay or
failure to provide notice as provided in this paragraph.
(e) Notwithstanding the foregoing, the Stockholders and the Company
shall not be responsible to each other for any Losses arising under this Section
2 or caused by any breach of a
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representation or warranty (other than those contained in Sections 5.5(c), 5.29,
5.32 and 7.5 of the Merger Agreement) made by the Company or TRK as to which the
Stockholders or the Company are otherwise entitled to indemnity under this
Section 2 unless and until such Losses exceed $350,000, and then only to the
extent of such excess; provided that the foregoing limitations shall not apply
to Losses under Section 2(b)(ii) to the extent such Losses relate to the Atlas
Adjustment, which Losses, together with the costs and expenses incident thereto
under Section 2(b)(iii), shall be recoverable in full by the Stockholders with
no deductible. In no event shall the Company have recourse to the Stockholders
for Losses under this Section 2 other than to the assets held hereunder by the
Escrow Agent in the Escrow Funds. In no event shall the Stockholders have
recourse to the Company for Losses under this Section 2 in excess of an amount
equal to (i) $2,000,000 PLUS (ii) the Atlas Adjustment owed by the Company as of
the date of the claim for which recourse is sought by the Stockholders.
(f) For purposes of this Section 2, any assertion of fact and/or law
by a third party that, if true, would constitute a breach of a representation or
warranty made by a party to the Merger Agreement or make operational an
indemnification obligation hereunder, shall, on the date that such assertion is
made, immediately invoke that party's obligation to protect, defend, hold
harmless and indemnify the other party pursuant to this Section 2.
(g) With respect to claims made under Section 2(a), the Stockholders
hereby waive and agree not to assert against the Company, its officers,
directors and any other Stockholders, any claims for contribution or
indemnification with respect to the representations, warranties and agreements
made by the Company with respect thereto.
(h) The amount recoverable by the Company or the Stockholders under
this Section 2 for Losses shall be determined after giving effect to the amount
of proceeds actually received by the indemnified party from third parties such
as insurance companies or other indemnitors with respect to any such Losses
(except to the extent any such proceeds must be repaid by the indemnified party
or its Affiliates through direct adjustments to past, present or future
insurance premiums or other methods).
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3. DEPOSIT OF ESCROW FUNDS.
Upon the execution of this Agreement, TRK will deliver to the Escrow
Agent the Escrow Amount by wire transfer, the receipt of which is hereby
acknowledged by the Escrow Agent. The Escrow Agent shall invest the Escrow
Amount and any additions thereto by the Company in an account identified as
being established pursuant to this Agreement (the "Escrow Account"). The Escrow
Agent will hold said Escrow Amount together with all investments thereof,
additions thereto and all interest accumulated thereon and proceeds therefrom
(the "Escrow Funds") in escrow upon the terms and conditions set forth in this
Agreement and shall not withdraw the Escrow Funds from the Escrow Account except
as provided herein.
4. INVESTMENTS.
(a) The Escrow Agent shall invest and reinvest from time to time the
Escrow Funds (i) in any obligation of, or guaranteed as to principal and
interest by, the United States or any agency or instrumentality thereof
(provided that the full faith and credit of the United States supports the
obligation or guarantee of such agency or instrumentality), (ii) in any money
market fund that invests solely in such obligations or types described in clause
(i), (iii) in any other investment agreed to in writing by the Stockholders'
Representative, SWIB and the Company. In the absence of such direction, the
Escrow Agent shall invest the Escrow Funds in the Pilot U.S. Treasury Money
Market Fund. Investments may be executed by the Escrow Agent's own trading
department. To the extent the Escrow Agent invests any funds in the manner
provided for in this Section, no party hereto shall be liable for any loss which
may be incurred by reason of any such investment.
(b) The Escrow Agent shall have the power to reduce, sell or
liquidate the foregoing investments whenever the Escrow Agent shall be required
to release all or any portion of the Escrow Funds pursuant to Section 5 hereof.
The Escrow Agent shall have no liability for any investment losses resulting
from the investment, reinvestment, sale or liquidation of any portion of the
Escrow Funds, except in the case of the gross negligence or willful misconduct
of the Escrow Agent.
(c) Unless and until a Claims Notice has been given to the Escrow
Agent pursuant to Section 5 and remains unsatisfied,
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the Escrow Agent shall cause interest paid on the Escrow Amount, less amounts
owed to the Stockholders' Representative pursuant to Section 7 hereof, to be
paid to the Stockholders on a quarterly basis in accordance with the escrow
percentages listed on EXHIBIT A hereto.
5. CLAIMS
(a) At any time and from time to time, during the period from the
Closing Date through the Escrow Expiration Date (as defined in Section 8
hereof), the Company may give to the Escrow Agent one or more notices ("Claims
Notice") containing the information set forth in subparagraph (b) below and
stating that, pursuant to Sections 3.1 or 3.2 of the Merger Agreement and/or
Section 2 of this Agreement, the Company is asserting against the Stockholders a
right of indemnity with respect to a claim (a "Claim"). Upon receipt of the
Claims Notice, the Escrow Agent shall, if such Claims Notice sets forth the
amount of such Claim, hold a portion of the Escrow Funds equal to the amount of
such Claim as set forth in such Claims Notice (or, if the amount set forth
exceeds the entire amount of the Escrow Funds, the entire amount of the Escrow
Funds) in escrow until receiving notice of a Determination (as defined in
subparagraph (c) below) of such Claim. If the Claims Notice states that the
amount of such Claim is not reasonably ascertainable by the Company, the Escrow
Agent shall hold the entire amount of the Escrow Funds then in its possession
until subsequently notified by the Company of the amount of such Claim, and
thereafter shall hold a portion of the Escrow Funds equal to the amount of such
Claim as set forth in such subsequent notice in escrow until Determination of
such Claim. In the case of any Claim, the amount of which is not reasonably
ascertainable by the Company at the time the Claims Notice of such Claim is
given, the Company agrees to notify the Escrow Agent and the Stockholders'
Representative and SWIB of the amount of such Claim promptly after such amount
becomes reasonably ascertainable by the Company.
(b) The Claims Notice given to the Escrow Agent pursuant to
Section 5(a) shall set forth the nature and details of such Claim, the Section
of the Merger Agreement or this Agreement pursuant to which the Claim is made,
the amount thereof if reasonably ascertainable by the Company (or a statement
that the amount thereof is not then reasonably ascertainable by the Company and
the basis for such statement) and whether or not such Claim arises from the
assertion of liability by a third party. The
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Escrow Agent shall promptly forward such Claims Notice to the Stockholders'
Representative and to SWIB.
(c) For the purpose of this Agreement, a "Determination" shall mean
(A) a written compromise, settlement or joint notice signed by the Company, the
Stockholders' Representative and SWIB or (B) a binding arbitration award or a
judgment of a court of competent jurisdiction in the United States of America or
elsewhere (the time for appeal having expired and no appeal having been
perfected) in favor of the Company and against the Stockholders and based on a
Claim under Sections 3.1 or 3.2 of the Merger Agreement and/or Section 2 of this
Agreement; PROVIDED, HOWEVER, that in the case of a Claim not resulting from the
assertion of liability by a third party, the Claims Notice to the Escrow Agent
setting forth the amount thereof as reasonably ascertained by the Company shall
constitute a Determination of such Claim unless, within thirty (30) days of the
receipt by the Stockholders' Representative and SWIB of such Claims Notice, as
above provided, including the amount of such Claim, either the Stockholders'
Representative or SWIB notifies the Escrow Agent that it disputes such amount in
whole or in part (an "Objection").
(d) Within ten (10) business days following notice of a Determination
given to the Escrow Agent jointly by the Company, the Stockholders'
Representative and SWIB, the Escrow Agent shall disburse to the Company from the
Escrow Funds the amount set forth in such Determination. In the event of an
Objection, the Escrow Agent shall release the amount which is not in dispute, if
any, and shall hold the amount in dispute until such Objection is resolved in
accordance with the provisions of Section 6 hereof.
(e) One (1) year after the Closing Date, the Escrow Agent shall
distribute to the Stockholders in accordance with the escrow percentages set
forth in EXHIBIT A an amount equal to $750,000 minus the amount of the Escrow
Funds previously paid or set aside by the Escrow Agent for Claims of the Company
pursuant to Section 5(a); and two (2) years after the Closing Date the Escrow
Agent shall distribute to the Stockholders', in accordance with the same
percentages, an amount equal to the Escrow Funds remaining at that time minus
(i) the amount of the Escrow Funds set aside by the Escrow Agent for Claims of
the Company pursuant to Section 5(a) and (ii) the amount owed to the
Stockholders' Representative pursuant to Section 7 hereof.
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6. SETTLEMENT OF DISPUTES.
Any dispute which may arise under the Escrow Agreement with respect to
the delivery and/or ownership or right of possession of the Escrow Funds or any
part thereof, or the duties of the Escrow Agent hereunder, shall be settled
either by mutual agreement of the Company, the Stockholders' Representative and
SWIB (evidenced by appropriate instructions in writing to the Escrow Agent,
signed by such parties) or by a binding arbitration award or a final order,
decree or judgment of any appropriate court located in the State of Wisconsin
(the time for appeal having expired and no appeal having been perfected), each
party or parties bearing its own costs and expenses with respect to the dispute;
PROVIDED, HOWEVER, that neither the Company nor the Stockholders shall have the
right to dispute any Claim which has been the subject of a Determination. The
Escrow Agent shall be under no duty whatsoever to institute or defend any such
proceedings. Prior to the settlement of any such dispute, the Escrow Agent is
authorized and directed to retain in its possession, without liability to
anyone, that portion of the Escrow Funds which is the subject of such dispute.
7. EXPENSES OF STOCKHOLDERS' REPRESENTATIVE.
The costs and expenses incurred by the Stockholders' Representative in
connection with his duties hereunder and pursuant to the Merger Agreement which
have not been otherwise reimbursed to the Stockholders' Representative shall be
reimbursed to the Stockholders' Representative, as appropriate, first from the
interest earned on the Escrow Funds and then from the Escrow Funds' remaining on
the Expiration Date, after taking into account any funds set aside by the Escrow
Agent for Claims of the Company pursuant to Section 5(a). All requests for
reimbursement of expenses and costs under this Section 7 (the "Request for
Reimbursement") shall be in writing to the Escrow Agent and shall include an
itemized list of such expenses and costs. The Escrow Agent shall disburse funds
directly to the Stockholders' Representative or his designee upon receipt of a
Request for Reimbursement.
8. TERMINATION OF ESCROW AGREEMENT.
(a) This Agreement shall terminate upon the earlier to occur of: (i)
the second anniversary of the Closing Date; and (ii) the distribution of all of
the Escrow Funds by the Escrow
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Agent pursuant to this Agreement (the earliest to occur of (i) and (ii) above
being hereinafter referred to as the "Escrow Expiration Date"); provided,
however, that if there are any unresolved or unsettled claims pursuant to
Sections 3.1 or 3.2 of the Merger Agreement and/or Section 2 of this Agreement
outstanding on the last day of the foregoing two (2) year period, this Agreement
will not terminate until the resolution of all such Claims; and provided further
that the indemnification provisions of Sections 2(b)(ii) and 2(b)(iii) hereof
shall survive for so long as the Company has any obligation to the Stockholders,
whether fixed or contingent, in respect of the Atlas Adjustment.
(b) As soon as practicable after the Escrow Expiration Date, the
Escrow Agent shall promptly deliver to the Stockholders out of the Escrow
Account the excess, if any, of the total amount remaining in the Escrow Funds
over the sum of all amounts under unresolved or unsettled Claims then
outstanding, and the Escrow Agent shall continue to retain in the Escrow Funds
all such amounts under unresolved or unsettled Claims then outstanding, subject
to the terms of this Escrow Agreement until resolution of such Claims. Payments
from the Escrow Funds to the Stockholders shall be made to the Stockholders in
accordance with the escrow percentages listed on EXHIBIT A hereto.
9. CONCERNING THE ESCROW AGENT.
(a) The Escrow Agent shall have no duties or responsibilities except
those expressly set forth herein. The Escrow Agent may consult with counsel and
shall have no liability hereunder except for its own negligence or willful
misconduct. It may rely on any notice, instruction, certificate, statement,
request, consent, confirmation, agreement or other instrument which it
reasonably believes to be genuine and to have been signed or presented by a
proper person or persons.
(b) The Escrow Agent shall have no duties with respect to any
agreement or agreements with respect to any or all of the Escrow Funds other
than as provided in this Agreement. In the event that any of the terms and
provisions of any other agreement between any of the parties hereto conflict or
are inconsistent with any of the terms and provisions of this Agreement, the
terms and provisions of this Agreement shall govern and control in all respects.
Notwithstanding any provision to the contrary contained in any other agreement,
the Escrow Agent shall have no interest in the Escrow Funds except as provided
in this Agreement.
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(c) So long as the Escrow Agent shall have any obligation to pay any
amount to the Stockholders and/or the Company from the Escrow Funds hereunder,
the Escrow Agent shall keep proper books of record and account, in which full
and correct entries shall be made of all receipts, disbursements and investment
activity in the Escrow Account.
(d) The Escrow Agent shall not be bound by any modification of this
Agreement affecting the rights, duties and obligations of the Escrow Agent,
unless such modification shall be in writing and signed by the other parties
hereto, and the Escrow Agent shall have given its prior written consent thereto.
The Escrow Agent shall not be bound by any other modification of this Agreement
unless the Escrow Agent shall have received written notice thereof.
(e) The Escrow Agent may resign as escrow agent at any time by giving
thirty (30) days written notice by registered or certified mail to the Company,
the Stockholders' Representative and SWIB and such resignation shall take effect
at the end of such 30 days or upon earlier appointment of a successor. A
successor escrow agent hereunder may be appointed by designation in writing
signed by the Company, the Stockholders' Representative and SWIB. The Company
and the Stockholders' Representative undertake to utilize their best efforts to
arrange for the appointment of a successor escrow agent. If any instrument of
acceptance by a successor escrow agent shall not have been delivered to the
Escrow Agent within sixty (60) days after the giving of such notice of
resignation, the resigning Escrow Agent may at the expense of the Stockholders
and the Company petition any court of competent jurisdiction for the appointment
of a successor escrow agent.
(f) If at any time hereafter the Escrow Agent shall resign, be
removed, be dissolved or otherwise become incapable of acting, or the bank or
trust company acting as the Escrow Agent shall be taken over by any government
official, agency, department or board, or the position of the Escrow Agent shall
become vacant for any of the foregoing reasons or for any other reason, the
Stockholders' Representative, the Company and SWIB shall appoint a successor
escrow agent to fill such vacancy.
(g) Every successor escrow agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor, and also to the Company, the
Stockholders' Representative and SWIB, an instrument in writing accepting such
appointment hereunder, and thereupon such successor escrow agent, without any
further act,
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shall become fully vested with all the rights, immunities and powers and shall
be subject to all of the duties and obligations, of its predecessor; and every
predecessor escrow agent shall deliver all property and moneys held by it
hereunder to its successor.
(h) The Company and the Stockholders shall share equally the fee
charged by the Escrow Agent for performing its services hereunder. The portion
of such fee owed by the Stockholders shall be deducted from the Escrow Account
by the Escrow Agent. Except as provided in Section 9(i) hereof, the Company and
the Stockholders shall share equally any reasonable out of pocket cost incurred
by the Escrow Agent in performing its duties hereunder. This covenant shall
survive termination of this Agreement.
(i) The Company and the Stockholders (other than SWIB) shall
indemnify and hold the Escrow Agent harmless from and against any and all
expenses (including reasonable attorneys' fees), liabilities, claims, damages,
actions, suits or other charges ("Agent Claims") incurred by or assessed against
the Escrow Agent for anything done or omitted by the Escrow Agent in the
performance of the Escrow Agent's duties hereunder, except such which result
from the Escrow Agent's bad faith, gross negligence or willful misconduct.
Agent Claims payable hereunder shall be paid one-half by the Company and
one-half by the Stockholders. This indemnity shall survive the resignation of
the Escrow Agent or the termination of this Agreement. To the extent any amount
due to the Escrow Agent from the Stockholders pursuant to this Section 9(i) is
not paid, the Escrow Agent may deduct fifty percent (50%) of the same from the
Escrow Account.
(j) The Escrow Agent's fees shall be $1,800 per annum.
(k) To the extent of any conflict between the terms of this Agreement
and the terms of EXHIBIT B, the terms of EXHIBIT B shall control.
10. MISCELLANEOUS.
(a) This Agreement shall be construed by and governed in accordance
with the laws of the State of Wisconsin, without regard to such jurisdiction's
conflict of laws principles.
(b) No Stockholder may assign, sell, encumber or otherwise transfer
its beneficial interest in this Agreement or the Escrow Fund. This Agreement
shall be binding upon and shall
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inure to the benefit of the heirs, executors, administrators, legal
representatives, successors and permitted assigns of the parties hereto.
(c) This Agreement may be executed in one or more counterparts which
taken together shall constitute but one and the same instrument.
(d) Section headings contained herein have been inserted for
reference purposes only and shall not be construed as part of this Agreement.
(e) This Agreement may be modified or amended only by a written
instrument duly executed by all parties hereto or their respective successors or
assigns.
(f) All notices, requests, demands and other communications hereunder
shall be in writing and shall be deemed to have been duly given (unless
otherwise specifically provided for herein) if delivered personally (including
by courier), telecopied (which is confirmed) or mailed (registered or certified
mail), postage prepaid:
If to the Company:
c/o Harbour Group Industries, Inc.
0000 Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xx. Xxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
with a copy to:
Xxxxxxxxx, Xxxxxxx & Xxxxx, L.L.P.
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Xxx X. Xxxxx, Esquire
If to the Stockholders' Representative:
Xxxxxxxx & Xxxxx
0000 00xx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, Xx., Esq.
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with a copy to:
Hill & Xxxxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxxxx, Esq.
If to SWIB:
State of Wisconsin Investment Board
000 X. Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx
with a copy to:
Xxxxx Xxxxxxxxxxx Xxxxx S.C.
Suite 2100
000 X. Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxxxxx Esq.
If to the Escrow Agent:
Boatmen's Trust Company
000 Xxxxxx Xxxxxx
Xx. Xxxxx, XX 00000
Attention: Corporate Trust Department
or to such other addresses or persons as any party may have furnished to the
other parties in writing, in accordance herewith, provided, however, that
notices to any party shall be deemed effective only upon receipt.
(g) The Escrow Agent shall not be liable to pay any tax on any
interest earned on the Escrow Amount, it being the understanding of the parties
that any tax attributable to interest earned on the Escrow Funds shall be the
responsibility of the Stockholders. The tax identification numbers for the
Stockholders are set forth on EXHIBIT A. The tax identification number of the
Company is 00-0000000.
(h) Pursuant to Section 2.8 of the Merger Agreement, the Stockholders
(other than SWIB) have irrevocably and unconditionally appointed Xxxxxx X.
Xxxxx, Xx. or his designee as their Stockholders' Representative to take any and
all action on the Stockholders' behalf in connection with this Agreement. With
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respect to the Stockholders (other than SWIB), the Company and the Escrow Agent
shall be required only to deal with the Stockholders' Representative appointed
hereunder.
(i) If any party hereto refuses to comply with, or at any time
violates or attempts to violate, any term, covenant or agreement contained in
this Agreement, any other party hereto may, by injunctive action, compel the
defaulting party to comply with, or refrain from violating, such term, covenant
or agreement, and may, by injunctive action, compel specific performance of the
obligations of the defaulting party.
(j) Except as provided herein, the rights and obligations of the
parties under this Agreement shall not be assigned to any person or entity,
without the written consent of the other parties.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed and delivered on the date first above written.
TRAK INTERNATIONAL, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------
Name:
Title:
MAJOR STOCKHOLDERS:
STATE OF WISCONSIN INVESTMENT
BOARD
By: /s/ Xxxxxx Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Investment Director
/s/ Xxxx X. Xxxxxx
------------------------------
Xxxx X. Xxxxxx
/s/ X. Xxxxx Stiff
------------------------------
X. Xxxxx Stiff
STOCKHOLDERS' REPRESENTATIVE:
/s/ Xxxxxx X. Xxxxx, Xx.
------------------------------
Xxxxxx X. Xxxxx, Xx., Esq.
BOATMEN'S TRUST COMPANY
By /s/ Xxxxx Xxxxxx
---------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
