1
EXHIBIT 10.17
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this "Agreement") is made as of March 31, 1998
by and among Simcala, Inc., a Delaware corporation (the "Company") and successor
by merger with SAC ACQUISITION CORP., a Georgia corporation ("Buyer"), each of
the individuals and entities listed on SCHEDULE B hereto (each being a "Seller,"
and all of them together being the "Sellers"), and SunTrust Bank, Atlanta, a
Georgia banking corporation ("Escrow Agent").
BACKGROUND
A. Immediately prior to the execution and delivery hereof, Buyer
became the owner of 100% of the issued and outstanding shares of capital stock
of (the Company), pursuant to the terms of that certain Stock Purchase
Agreement, dated as of February 10, 1998 (the "Purchase Agreement") among Buyer,
the Company, and the Sellers and Buyer merged with and into the Company, with
the Company being the surviving corporation.
B. The Purchase Agreement contemplates the establishment of an escrow
fund for the purposes stated therein.
C. Escrow Agent is willing to accept the escrow fund and to hold and
distribute the escrow fund in accordance with the terms and conditions set forth
herein.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties agree as follows:
1. Appointment of Escrow Agent. The Company and each of the Sellers
hereby designate and appoint Escrow Agent to serve as escrow agent hereunder,
and Escrow Agent hereby confirms its agreement to act as escrow agent upon the
terms, conditions, and provisions of this Agreement.
2. Creation of Escrow Fund.
(a) Concurrently with the execution and delivery of this Agreement, the
Buyer has deposited with Escrow Agent the sum of Four Million Dollars
($4,000,000) (the "Escrow Deposit").
(b) Escrow Agent agrees to hold, administer, invest and dispose of the
Escrow Deposit and any interest, dividends, distributions or other income or
capital appreciation earned and realized from the Escrow Deposit and the
realized earnings thereof (hereinafter collectively referred to as the
"Earnings"; the sum of the Escrow Deposit plus the Earnings less any
distributions pursuant to Section 5 is hereinafter referred to as the "Escrow
Fund") in accordance with the terms and conditions of this Escrow Agreement and
not permit any withdrawal thereof except pursuant to the terms hereof.
2
(c) Escrow Agent shall invest and reinvest any or all of the Escrow
Fund in any of the following:
(i) obligations issued or guaranteed by the United States of
America or any agency or instrumentality thereof with a remaining term of one
year or less;
(ii) certificates of deposit of, or accounts with, national
banks or corporations endowed with trust powers having capital and surplus in
excess of $100,000,000;
(iii) commercial paper at the time of investment rated A-1 by
Standard & Poor's Corporation or Prime-1 by Moody's Investor's Service, Inc.; or
(iv) obligations issued by any state or municipality of the
United States with a remaining term of one year or less.
The parties agree that the Sellers will include any Earnings in respect of the
Escrow Fund in their respective incomes.
(d) Escrow Agent shall maintain a ledger (the "Escrow Ledger") setting
forth (i) the name and address of each Seller, (ii) investments and
reinvestments of the Escrow Fund, (iii) the amount of the Escrow Fund
attributable to the remainder of the Escrow Deposit, (iv) the amount of the
remainder of the Escrow Deposit attributable to each Seller, determined
initially based on his or its Proportionate Share, (v) the amount of the Escrow
Fund attributable to the Earnings, and (vi) each Seller's share of the Earnings
based on such Seller's respective percentage interest in the Escrow Fund on the
date the Earnings are realized, and (vii) the amount of the Escrow Fund
attributable to each Seller, and (viii) such other information as may be
required from time to time in writing by the Company or the Sellers for the
administration of this Agreement. Copies of each updated version of the Escrow
Ledger shall be sent to the Company and all Sellers as soon as practicable
following each such update and each March 31, June 30, September 30 and December
31 during the term of this Agreement.
3. Disposition of Claims Amount. At any time prior to the close of
business on September 15, 2002, the Company may deliver to Escrow Agent an
Indemnification Claim, with a copy being contemporaneously delivered to the
Seller(s) named therein (the "Seller Indemnitor(s)"). Each Seller Indemnitor
shall have thirty (30) days following receipt of such Indemnification Claim to
deliver to Escrow Agent a written objection thereto specifying in reasonable
detail the basis for such objection (the "Objection"), with a copy being
contemporaneously delivered to the Company. If an Objection is not timely filed
with Escrow Agent by a Seller Indemnitor, the Indemnification Claim against such
Seller Indemnitor is an
2
3
"Uncontested Claim." If an Objection is timely filed with Escrow Agent by a
Seller Indemnitor, the Indemnification Claim against such Seller Indemnitor is a
"Contested Claim."
4. Tentatively Impounded Funds. With respect to each Indemnification
Claim received by Escrow Agent, Escrow Agent shall make a notation on the Escrow
Ledger setting aside from the Escrow Fund (and each Seller Indemnitor's share of
the Escrow Fund) the amount asserted by the Company as a Loss (the "Tentatively
Impounded Funds"). In connection with any asserted Loss in respect of a Company
Related Claim, such notation shall be made against each Seller Indemnitor's
share of the Escrow Fund pro rata based on his or its respective Proportionate
Shares, and any payment with respect thereto shall also be made from each Seller
Indemnitor's share of the Escrow Fund based on his or its Proportionate Share.
Upon notification of determination of the exact amount of the Loss with respect
to each Indemnification Claim (whether by Notice of Release or by Award Notice),
the Tentatively Impounded Funds shall be decreased or increased by Escrow Agent
as necessary to reflect the difference (if any) between the amount of the Loss
asserted in the Indemnification Claim and the amount of the Loss actually
payable to the Company pursuant to Section 5 hereof. Upon payment by Escrow
Agent to the Company of any amount in respect of any such Loss or upon receipt
of a Withdrawal Notice from the Company, any remaining Tentatively Impounded
Funds with respect to such Loss or Withdrawal Notice shall be reduced by the
amount of such payments or the amount stated in such Withdrawal Notice.
5. Distributions from Escrow Fund. Escrow Agent shall pay and disburse
from the Escrow Fund:
(a) To the Company the amount specified as an "Adjustment Amount" in
a written declaration executed by the Company and each of the Sellers;
(b) All accrued Earnings (net of amounts paid as the Sellers'
share of the expenses of Escrow Agent) on the Escrow Deposit will be
distributed by Escrow Agent beginning June 30, 1998 and, thereafter,
quarterly to the Sellers based on each of their respective shares of
the Earnings as reflected in the Escrow Ledger on the date of
distribution of the Earnings;
(c) To the Company the amount of Loss asserted if the
Indemnification Claim is an Uncontested Claim;
(d) To the Company the amount of Loss asserted if the
Indemnification Claim is a Contested Claim and the Seller Indemnitor
shall have delivered a Withdrawal Notice to Escrow Agent with respect
to such Contested Claim;
(e) To the Company the amount specified in any Notice of Release
with respect to an Indemnification Claim;
(f) To the Company the amount specified in any Award Notice
with respect to an Indemnification Claim;
-3-
4
(g) Pursuant to written notice received from the Sellers, to
each of the Sellers in Proportionate Shares, on the next business day
following September 30, 1998 an amount equal to Five Hundred Thousand
Dollars ($500,000); provided, however, that the amount distributed to
each Seller shall be reduced by the sum of (i) the amount of
Tentatively Impounded Funds attributable to such Seller on such date,
(ii) the amount of such Seller's Proportionate Share of any Adjustment
Amount paid from the Escrow Fund, and (iii) the amount of any and all
Losses attributable to such Seller paid from the Escrow Fund.
(h) Pursuant to written notice received from the Sellers, to
each of the Sellers in Proportionate Shares, on the next business day
following March 31, 1999 an amount equal to One Million Dollars
($1,000,000); provided, however, that the amount distributed to each
Seller shall be reduced by the sum of (i) the amount of Tentatively
Impounded Funds attributable to such Seller on such date, (ii) the
amount of such Seller's Proportionate Share of any Adjustment Amount
paid from the Escrow Fund (but only to the extent that such amount was
not withheld from the funds released pursuant to subparagraph (g)
above), and (iii) the amount of any and all Losses attributable to such
Seller paid from the Escrow Fund (but, in each case, only to the extent
that such amount was not withheld from the funds released pursuant to
subparagraph (g) above).
(i) Pursuant to written notice received from the Sellers, to
each of the Sellers in Proportionate Shares, on the next business day
following September 30, 1999 an amount equal to One Million Dollars
($1,000,000); provided, however, that the amount distributed to each
Seller shall be reduced by the sum of (i) the amount of Tentatively
Impounded Funds attributable to such Seller on such date, (ii) the
amount of such Seller's Proportionate Share of any Adjustment Amount
paid from the Escrow Fund (but only to the extent that such amount was
not withheld from the funds released pursuant to subparagraphs (g) and
(h) above), and (iii) the amount of any and all Losses attributable to
such Seller paid from the Escrow Fund (but, in each case, only to the
extent that such amount was not withheld from the funds released
pursuant to subparagraphs (g) and (h) above).
(j) If there are Tentatively Impounded Funds with respect to a
particular asserted Loss on any of the dates specified in (g), (h) or
(i) above, and the amount of the asserted Loss exceeds the amount of
the Loss actually paid to the Company pursuant to this Section 5, to
each Seller in an amount equal to his or its share of such excess (or,
if less, such Seller's remaining interest in the Escrow Fund).
(k) Pursuant to written notice received from the Sellers, to
each of the Sellers, on the next business day following September 15,
2002, the amounts equal to the amounts by which the then remaining
balance of each Seller's interest in the Escrow Fund exceeds the amount
of Tentatively Impounded Funds attributable to such Seller on such
date; and
-4-
5
(l) If there are Tentatively Impounded Funds with respect to a
particular asserted Loss on September 15, 2002, to the Seller to whom
or which the Tentatively Impounded Funds were attributable on September
15, 2002, on the next business day following the first day when the
Tentatively Impounded Funds attributable to such Seller with respect to
such Loss are equal to zero, an amount equal to the excess of the
remaining balance of such Seller's interest in the Escrow Deposit over
any remaining Tentatively Impounded Funds with respect to such Seller.
With respect to a disbursement made pursuant to subparagraph (f) above,
not less than 20 days before such disbursement, Escrow Agent shall give notice
of such pending disbursement to each of the Company and the relevant Seller(s).
All other disbursements described hereunder shall be made by Escrow Agent within
three (3) business days following the events described above by wire transfer to
an account designated in writing by the recipient(s) of the disbursement. A
Seller's share of the Escrow Fund shall be reduced by (and such reduction shall
be reflected on the Escrow Ledger) (i) the amount of all distributions to such
Seller, (ii) such Seller's Proportionate Share of any Adjustment Amount
distributed to the Company, and (iii) in accordance with Section 4 of this
Agreement, by the amount of payments made to the Company under subparagraphs
(c), (d), (e) and (f) of this Section 5 for Indemnification Claims for which
such Seller was the Seller Indemnitor. If at any time the amount of any payment
required to be made by Escrow Agent to the Company in respect of a particular
Seller exceeds such Seller's remaining share of the Escrow Fund, Escrow Agent
shall pay to the Company the entire Escrow Fund with respect to such Seller.
6. Escrow Agent's Duties. Escrow Agent shall be obligated to perform
only such duties as expressly set forth in this Agreement and the Schedules
hereto, and shall not be required, in carrying out its duties under this
Agreement, to refer to the Purchase Agreement or any other agreement between the
parties or any of them or among the parties or any of them and any other person
or entity.
7. Remedies of Escrow Agent. In the event of any disagreement or
controversy hereunder, or if conflicting demands or notices are made upon Escrow
Agent, or in the event Escrow Agent in good faith is in doubt as to what action
it should take hereunder, the parties expressly agree and consent that Escrow
Agent shall have the absolute right, at its option, to file a suit in
interpleader and obtain an order from a court of competent jurisdiction
requiring all persons involved to interplead their several claims and rights
among themselves and with Escrow Agent.
8. Reliance on Counsel. The Escrow Agent may from time to time consult
with legal counsel of its own choosing in the event of any disagreement, or
controversy, or question or doubt as to the construction of any of the
provisions hereof or its duties hereunder, and it shall incur no liability and
shall be fully protected in acting in good faith in accordance with the opinion
or instructions of such counsel, unless such opinion or instructions constitute
gross negligence or willful misconduct. Any such fees and expenses of such legal
counsel shall be considered part of the fees and expenses of the Escrow Agent
described within this Escrow Agreement.
-5-
6
9. Escrow Agent's Fees and Expenses. The Company hereby remits to
Escrow Agent the sum of $2,500, and the Sellers hereby remit to Escrow Agent the
sum of $2,500 based on their Proportionate Shares, in partial consideration for
carrying out the Escrow Agent's duties hereunder. All additional reasonable
compensation of Escrow Agent as set forth in SCHEDULE A hereto and all expenses,
disbursements and advances (including reasonable attorneys' fees and expenses)
incurred in carrying out Escrow Agent's duties hereunder shall be paid one-half
by the Company and one-half from the Escrow Fund (first from Earnings, then, if
necessary, from the Escrow Deposit) pro rata according to the Sellers'
Proportionate Shares. If Escrow Agent resigns or is terminated pursuant to
Section 11 of this Agreement, Escrow Agent shall be entitled to its compensation
earned prior to such resignation or termination.
10. Indemnification. The Company and each of the Sellers severally
shall indemnify, protect and save and hold Escrow Agent and its successors and
permitted assigns harmless from all liabilities, obligations, losses, damages,
penalties, claims, actions, suits, costs and expenses (including reasonable
attorneys' fees and expenses) of whatsoever kind or nature imposed on, incurred
by or asserted against Escrow Agent which in any way relate to or arise out of
the execution and delivery of this Agreement or any action taken hereunder;
provided, however, that the Company and the Sellers shall have no obligation to
indemnify and save and hold Escrow Agent harmless from any liability incurred
by, imposed upon or asserted against Escrow Agent resulting from the gross
negligence or willful misconduct of Escrow Agent The Company shall indemnify
Escrow Agent for up to one-half of the amount of any indemnification obligations
owing by the Company under this Section 10, and all of the Sellers shall
indemnify Escrow Agent for up to one-half of the amount of any indemnification
obligations owing under this Section 10, with each Seller being jointly and
severally liable for the Sellers' aggregate one-half share of any such
indemnification obligations. The provisions of this Section 10 shall survive the
term of this Agreement.
11. Resignation by or Termination of Escrow Agent. Escrow Agent may
resign as such by delivering written notice to such effect at least thirty (30)
days prior to the effective date of such resignation to each of the Sellers and
the Company. The Company and the Sellers, acting jointly, may terminate Escrow
Agent from its position as such by delivering written notice to Escrow Agent to
such effect executed by the Company and the Sellers at least thirty (30) days
prior to the effective date of such termination (unless such termination is as a
result of Escrow Agent's breach of its obligations hereunder, in which case the
effective date of such termination shall be any date specified in such notice by
the Company and the Sellers). In the event of such resignation by or termination
of Escrow Agent, a successor Escrow Agent shall be appointed by mutual written
agreement between the Company and the Sellers. Escrow Agent which has been so
terminated or has so resigned shall promptly deliver to the successor Escrow
Agent the entire balance of the Escrow Fund (together with copies of all records
pertaining thereto) upon presentation of evidence reasonably satisfactory to it
of the appointment and authorization of such successor Escrow Agent by the
Company and the Sellers. Upon receipt of the amounts in the Escrow Fund, such
successor Escrow Agent shall thereupon be bound by all of the provisions hereof.
From and after the appointment of a successor Escrow Agent pursuant to this
Section 11, all references herein to Escrow Agent shall be deemed to be to such
successor Escrow Agent. Should the Company and the Sellers fail to appoint a
successor Escrow Agent within thirty (30)
-6-
7
days of the effective date of any resignation or termination pursuant to this
Section 11, then Escrow Agent may institute suit in a court of competent
jurisdiction to have a successor Escrow Agent appointed and tender into the
custody of that court all of the remaining portion of the Escrow Fund.
12. Definitions. As used herein:
(a) "AWARD NOTICE" means a true copy of the final unappealable
order (or an order for which the time to appeal has expired without an
appeal having been made) of a court of competent jurisdiction.
(b) "COMPANY RELATED CLAIM" means an asserted Loss in respect
of an alleged breach of a representation, warranty, covenant or
agreement of the Company in the Purchase Agreement or certain other
documents referenced in Section 12.2(a) of the Purchase Agreement or a
claim under Section 8.7 of the Purchase Agreement.
(c) "INDEMNIFICATION CLAIM" means a written declaration by the
Company as successor in interest to the Buyer, stating (i) that the
Company as successor in interest to the Buyer has suffered a Loss, (ii)
the identity of the Seller Indemnitor(s) to whom or which the Loss is
attributable which, in the case of a Company Related Claim, shall be
all Sellers, (iii) the facts, circumstances and events giving rise to
such Loss, each specified in reasonable detail, (iv) the amount of the
asserted Loss, (v) that the amount of such Loss or portion thereof is a
reasonable estimate, and (vi) whether the Indemnification Claim is a
Company Related Claim. If the asserted Loss is a Company Related Claim,
the Company as successor in interest to the Buyer must name all Sellers
as Seller Indemnitors and allocate the Loss to each Seller Indemnitor
according to his or its Proportionate Share.
(d) "LOSS" means any and all demands, claims, actions or
causes of action, assessments, losses, fines, judgments, costs, damages
(including special and consequential damages), liabilities, costs,
removal and remediation requirements and expenses, including without
limitation, interest, penalties, cost of investigation and defense, and
reasonable attorneys' and other professional fees and expenses asserted
against, paid, suffered or incurred by the Company as successor in
interest to the Buyer.
(e) "NOTICE OF RELEASE" means a written declaration, executed
by the Company and the appropriate Seller Indemnitee, (which, in the
case of a Company Related Claim, must be executed by all Sellers),
specifying the resolution of an Indemnification Claim and the
disposition to be made of the Escrow Fund or any portion thereof that
was the subject of such Indemnification Claim.
(f) "OBJECTION" means a written objection by the appropriate
Seller Indemnitee to an Indemnification Claim stating in reasonable
detail the basis for such objection.
-7-
8
(g) "PROPORTIONATE SHARE" means the respective percentage
interest of each Seller in the Escrow Deposit and in certain amounts
disbursed to the Sellers hereunder, which percentage interest is set
forth on SCHEDULE B hereto.
(h) "WITHDRAWAL NOTICE" means an irrevocable written
declaration (x) withdrawing an Indemnification Claim executed by the
Company as successor in interest to the Buyer (which, in the case of a
Company Related Claim, must be a complete withdrawal against all
Sellers), or (y) executed by the appropriate Seller Indemnitee
withdrawing an Objection (which, in the case of a Company Related
Claim, must be executed by all Sellers).
13. General Provisions.
(a) Assignment. This Agreement shall be binding upon the successors and
permitted assigns of the parties. Neither this Agreement nor any right or
benefit of any party hereunder may be assigned or transferred by such party
without the prior written consent of all other parties hereto, which consent
shall not be unreasonably withheld or delayed; provided, however, that the
Company may assign its rights, together with its obligations, hereunder (i) to
any of its affiliates, (ii) to any lender or lenders providing financing to
Buyer, the Company or its affiliates or (iii) in connection with any sale,
transfer or other disposition (by operation of law or otherwise) of all or
substantially all of its assets or business or stock of the Company, without
prior written consent.
(b) Amendment. This Agreement may not be amended or modified without
the prior written consent of all parties.
(c) Waiver. Failure to insist upon strict compliance with any of the
terms or conditions of this Agreement at any one time shall not be deemed a
waiver of such term or condition at any other time; nor shall any waiver or
relinquishment of any right or power granted herein at any time be deemed a
waiver or relinquishment of the same or any other right or power at any other
time.
(d) Governing Law. Notwithstanding the place where this Agreement may
be executed by any of the parties, the parties expressly agree that this
Agreement shall in all respects be governed by, and construed in accordance
with, the laws of the State of Georgia, without regard for its conflict of laws
doctrine.
(e) Notices. Any notice or other communication to be given hereunder
shall be in writing, shall be sent to all parties, and shall be deemed
sufficient when (i) mailed by United States certified mail, return receipt
requested, (ii) mailed by overnight express mail, or (iii) delivered in person,
at the address set forth below, or such other address as a party may provide to
the other in accordance with the procedure for notices set forth in this
Section:
-8-
9
(i) If to the Company:
SIMCALA, Inc.
c/o CGW Southeast Partners III, L.P.
Suite 210
Twelve Piedmont Center
Xxxxxxx, Xxxxxxx 00000
Attn: Xx. Xxxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Taxpayer Identification Number: 00-0000000
with a copy (which shall not constitute notice) to:
Xxxxxx & Bird
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Attn: Xxxx X. XxXxxxx, Esq.
Telephone: 000-000-0000
Telecopier: 000-000-0000
(ii) If to a Seller:
(A) If to Charter Oak Partners:
00 Xxxxxx Xxxxxx, Xxxxxxxx X
Xxxxxxxx, Xxxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Taxpayer Identification Number: 00-0000000
(B) If to Capital One Investors:
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxx 00000
Attn: Xxxxx X. Xxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Taxpayer Identification Number: 00-00000-00
-9-
10
(C) If to Xxxx Xxxxxx Xxxxxxxxx:
c/o SIMCALA, Inc.
Xxxx Xxxxx Xxxxxx Xxxx
Xx. Xxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Taxpayer Identification Number: ###-##-####
(D) If to Xxxxxx X. Xxxx:
c/o SIMCALA, Inc.
Xxxx Xxxxx Xxxxxx Xxxx
Xx. Xxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Taxpayer Identification Number: ###-##-####
(E) If to R. Xxxxx Xxxxx:
c/o SIMCALA, Inc.
Xxxx Xxxxx Xxxxxx Xxxx
Xx. Xxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Taxpayer Identification Number: ###-##-####
(F) If to Xxxxxx X. Xxxx, Xx.:
00 Xxxxxxx Xxxx
Xxxxxxxxxx Xxxxxxxx 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Taxpayer Identification Number: ###-##-####
with a copy (which shall not constitute notice) to:
Xxxxxxx Xxxx & Xxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxx, Esq.
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
-10-
11
(iii) If to Escrow Agent:
SunTrust Bank, Atlanta
Corporate Trust Department
Room 400 - Annex
00 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
(f) Invalid Provision. If any provision of this Agreement shall be
determined to be invalid or unenforceable, this Agreement shall be deemed
amended to delete such provision and the remainder of this Agreement shall be
enforceable by its terms.
(g) Binding Effect. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective permitted successors and
assigns.
(h) Further Assurances. Each party agrees to execute and deliver all
such further instruments and do all such further acts as may be reasonably
necessary or appropriate to effectuate this Agreement.
(i) Headings. Headings and captions contained in this Agreement are
inserted only as a matter of convenience and for reference and in no way define,
limit, extend or prescribe the scope of this Agreement or the intent of any
provision.
(j) Person and Gender. The masculine gender shall include the feminine
and neuter genders and the singular shall include the plural.
(k) Entire Agreement. This Agreement constitutes the entire agreement
of the parties with respect to matters set forth in this Agreement, and
supersedes any prior understanding or agreement, oral or written, with respect
to such matters.
(l) Interpretations. Neither this Agreement nor any uncertainty or
ambiguity herein shall be construed or resolved against any party hereto,
whether under any rule of construction or otherwise. No party shall be
considered the draftsman. On the contrary, this Agreement has been reviewed,
negotiated and accepted by all parties and shall be construed and interpreted
according to the ordinary meaning of the words used so as to fairly accomplish
the purposes and intentions of all parties hereto.
(m) Execution in Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be an original, and all such
counterparts shall constitute one and the same Agreement, binding on all the
parties notwithstanding that all the parties are not signatories to the same
counterpart.
-11-
12
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
SIMCALA, Inc. as successor in interest to SAC
Acquisition Corp.
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------------
Xxxxxxx X. Xxxxxx
Chairman of the Board
SUNTRUST BANK, ATLANTA,
as Escrow Agent
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
SELLERS:
Charter Oak Partners
By Fine Partners L.P., the Managing
Partner of Charter Oak Partners
By: /s/ Xxxxxxx X. Xxxx
-------------------------------------------
Xxxxxxx X. Xxxx
Authorized Signatory
[Signatures Continued on Following Page]
-12-
13
Capital One Investors
By: MCK Corporation, General Partner
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Xxxxx X. Xxxxxx, President of
MCK Corporation
By: Briseis Capital Corporation, General Partner
By: /s/ Xxxxx X. Ireland III
-----------------------------------------
Xxxxx X. Ireland III, President of
Briseis Capital Corporation
Xxxx Xxxxxx Xxxxxxxxx
/s/ Xxxx Xxxxxx Xxxxxxxxx
--------------------------------------------------
Xxxxxx X. Xxxx
/s/ Xxxxxx X. Xxxx
--------------------------------------------------
R. Xxxxx Xxxxx
/s/ R. Xxxxx Xxxxx
--------------------------------------------------
Xxxxxx X. Xxxx, Xx.
/s/ Xxxxxx X. Xxxx, Xx.
--------------------------------------------------
-13-
14
SCHEDULE A
ESCROW AGENT'S FEES
The annual fee of $3,500 for administering this Escrow Agreement is due at the
time of closing. Each year on the anniversary of the date of this Escrow
Agreement, half of the annual fee will be invoiced to the Company and the other
half of the annual fee will be paid from the Escrow Fund (as provided in Section
9 of the Escrow Agreement).
Out of pocket expenses such as, but not limited to postage, courier, overnight
mail, insurance, money wire transfer, long distance telephone charges,
facsimile, stationery, travel, legal or accounting, etc., will be billed or
deducted from the Escrow Fund, as appropriate, at cost.
These fees do not include extraordinary services which will be priced according
to time and scope of duties.
It is acknowledged that the schedule of fees shown above are acceptable for the
services mutually agreed upon and the parties authorize SunTrust Bank, Atlanta
to perform said services.
15
SCHEDULE B
PROPORTIONATE SHARES
PROPORTIONATE SHARE
Charter Oak Partners 53.1%
X.X. Xxx 0000
00 Xxxxxx Xxxxxx, Xxxxxxxx X
Xxxxxxxx, Xxxxxxxxxxx 00000
Taxpayer Identification Number: 00-0000000
Capital One Investors 36.0%
000 Xxxxxxx Xxxxxx, Xxx. 000
Xxxxxxxxx, Xxxx 00000
Taxpayer Identification Number: 00-0000000
Xxxx Xxxxxx Xxxxxxxxx 8.0%
000 Xxxx Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Social Security Number: ###-##-####
Xxxxxx X. Xxxx 1.0%
0000 Xxxxxx Xxxxxx Xxxx
Xxxxx, Xxxxxxx 00000
Social Security Number: ###-##-####
R. Xxxxx Xxxxx 1.0%
0000 Xxxxxx Xxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
Social Security Number: ###-##-####
Xxxxxx X. Xxxx, Xx. 0.9%
00 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Social Security Number: ###-##-####
