Exhibit A
ESCROW AGREEMENT
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This Escrow Agreement is entered into as of March 29, 2001, by and
among xXxxx.xxx, Inc., a Delaware corporation which is the successor to
xXxxx.xxx, Inc. a California corporation (the "Buyer"), Xxxxxxxx Xxx Xxxxxx
(the "Indemnification Representative"), Xxxxx Bank N.A. (the "Escrow
Agent"), and the stockholders of Xxxx.xxx, Inc. whose names appear on the
signature pages hereof.
WHEREAS, the Buyer, KCI Acquisition Corp. (the "Transitory
Subsidiary"), Xxxx.xxx, Inc. (the "Company") and Xxxxxxxx Xxx Xxxxxx have
entered into an Agreement and Plan of Merger dated as of February 13, 2001,
as amended on February 23, 2001 (the "Merger Agreement"), pursuant to which
the Company will be merged (the "Merger") into the Transitory Subsidiary
which, as the surviving corporation (the "Surviving Corporation"), will be
a wholly-owned subsidiary of the Buyer;
WHEREAS, the Merger Agreement provides that an escrow account will be
established to secure the indemnification obligations of the stockholders
of the Company receiving consideration pursuant to Section 1.5 of the
Merger Agreement (collectively, the "Company Stockholders") to the Buyer
and the obligation of such stockholders to pay the Merger Adjustment Amount
(as such term is defined in the Merger Agreement); and
WHEREAS, the parties hereto desire to establish the terms and
conditions pursuant to which such escrow account will be established and
maintained;
NOW, THEREFORE, in consideration of the promises and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto hereby agree as follows:
1. Consent of Company Stockholders. The Company Stockholders have,
either by virtue of their approval of the Merger Agreement or through the
execution of a counterpart signature page to this Agreement or an
instrument to such effect, consented to: (a) the establishment of this
escrow to secure the Company Stockholders' indemnification obligations
under the Merger Agreement in the manner set forth herein and the
obligation to pay the Merger Adjustment Amount, (b) the appointment of the
Indemnification Representative as their representative for purposes of this
Agreement and as attorney-in-fact and agent for and on behalf of each
Company Stockholder, and the taking by the Indemnification Representative
of any and all actions and the making of any decisions required or
permitted to be taken or made by them under this Agreement and (c) all of
the other terms, conditions and limitations in this Agreement.
2. Escrow and Indemnification.
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(a) Escrow of Shares. Simultaneously with the execution of this
Agreement, the Buyer shall deposit with the Escrow Agent a certificate for
2,187,500 shares of common stock of the Buyer, as determined pursuant to
Section 1.5 of the Merger Agreement, issued in the name of the Escrow Agent
or its nominee. The Escrow Agent hereby acknowledges receipt of such stock
certificate. The shares deposited with the Escrow Agent pursuant to the
first sentence of this Section 2(a), together with any further shares
deposited by the Buyer pursuant to the immediately preceding sentence, are
referred to herein as the "Escrow Shares." The Escrow Shares shall be held
as a trust fund and shall not be subject to any lien, attachment, trustee
process or any other judicial process of any creditor of any party hereto.
The Escrow Agent agrees to hold the Escrow Shares in an escrow account (the
"Escrow Account"), subject to the terms and conditions of this Agreement.
(b) Obligation to Pay the Merger Adjustment Amount;
Indemnification. The Company stockholders have agreed in Article I of the
Merger Agreement to pay the Merger Adjustment Amount and in the Merger
Agreement to indemnify and hold harmless the Buyer from and against
specified Damages (as defined in Section 6.1 of the Merger Agreement). The
Escrow Shares shall be security for such obligations of the Company
Stockholders, subject to the limitations, and in the manner provided, in
this Agreement.
(c) Dividends, Etc. Any securities distributed in respect of or
in exchange for any of the Escrow Shares, whether by way of stock
dividends, stock splits or otherwise, shall be issued in the name of the
Escrow Agent or its nominee, and shall be delivered to the Escrow Agent,
who shall hold such securities in the Escrow Account. Such securities
shall be considered Escrow Shares for purposes hereof. Any cash dividends
or property (other than securities) distributed in respect of the Escrow
Shares shall promptly be distributed by the Escrow Agent to the Company
Stockholders in accordance with Section 3(c).
(d) Voting of Shares. The Indemnification Representative shall
have the right, in his or her sole discretion, on behalf of the Company
Stockholders, to direct the Escrow Agent in writing as to the exercise of
any voting rights pertaining to the Escrow Shares, and the Escrow Agent
shall comply with any such written instructions. In the absence of such
instructions, the Escrow Agent shall not vote any of the Escrow Shares.
The Indemnification Representative shall have no obligation to solicit
consents or proxies from the Company Stockholders for purposes of any such
vote.
(e) Transferability. The respective interests of the Company
Stockholders in the Escrow Shares shall not be assignable or transferable,
other than by operation of law. Notice of any such assignment or transfer
by operation of law shall be given to the Escrow Agent and the Buyer, and
no such assignment or transfer shall be valid until such notice is given.
3. Distribution of Escrow Shares.
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(a) The Escrow Agent shall distribute the Escrow Shares only in
accordance with (i) a written instrument delivered to the Escrow Agent that
is executed by both the Buyer and the Indemnification Representative and
that instructs the Escrow Agent as to the distribution of some or all of
the Escrow Shares, (ii) an order of a court of competent jurisdiction, a
copy of which is delivered to the Escrow Agent by either the Buyer or the
Indemnification Representative, that instructs the Escrow Agent as to the
distribution of some or all of the Escrow Shares, or (iii) the provisions
of Section 3(b) hereof.
(b) Within five business days after the date that is fifteen
months after the Closing Date (as such term is defined in the Merger
Agreement) (the "Termination Date"), the Escrow Agent shall initiate the
distribution process to the Company Stockholders of all of the Escrow
Shares then held in escrow, registered in the name of the Company
Stockholders. Notwithstanding the foregoing, if the Buyer has previously
delivered to the Escrow Agent a copy of a Claim Notice (as defined in
Section 6.3(c) of the Merger Agreement) and the Escrow Agent has not
received written notice of the resolution of the claim covered thereby, or
if the Buyer has previously delivered to the Escrow Agent a copy of an
Expected Claim Notice (as defined in Section 6.4 of the Merger Agreement)
and the Escrow Agent has not received written notice of the resolution of
the anticipated claim covered thereby, the Escrow Agent shall retain in
escrow after the Termination Date such number of Escrow Shares as have a
Value (as defined in Section 4 below) equal to the Claimed Amount covered
by such Claim Notice or equal to the estimated amount of Damages set forth
in such Expected Claim Notice, as the case may be. Any Escrow Shares so
retained in escrow shall be distributed only in accordance with the terms
of clauses (i) or (ii) of Section 3(a) hereof.
(c) Any distribution of all or a portion of the Escrow Shares
(or cash or other property pursuant to Section 2(c)) to the Company
Stockholders shall be made by delivery of stock certificates issued in the
name of the Company Stockholders covering such percentage of the Escrow
Shares being distributed as is calculated in accordance with the
percentages set forth opposite such holders' respective names on Attachment
A attached hereto. Distributions to the Company Stockholders shall be made
by mailing stock certificates to such holders at their respective addresses
shown on Attachment A (or such other address as may be provided in writing
to the Escrow Agent by any such holder). No fractional Escrow Shares shall
be distributed to Company Stockholders pursuant to this Agreement.
Instead, the number of shares that each Company Stockholder shall receive
shall be rounded up or down to the nearest whole number (provided that the
Indemnification Representative shall have the authority to effect such
rounding in such a manner that the total number of whole Escrow Shares to
be distributed equals the number of Escrow Shares then held in the Escrow
Account).
4. Valuation of Escrow Shares. For purposes of this Agreement, the
"Value" of any Escrow Shares shall be the greater of (x) $2.00 per share or
(y) the average of the closing sales price of such shares on the principal
market on which such shares are traded or quoted for the five consecutive
trading days ending on the date both the Buyer and the Indemnification
Representative deliver to the Escrow Agent a written instrument instructing
the Escrow Agent as to the distribution of such shares, multiplied by the
number of such Escrow Shares.
5. Fees and Expenses of Escrow Agent. The Buyer shall pay the fees
of the Escrow Agent for the services to be rendered by the Escrow Agent
hereunder.
6. Limitation of Escrow Agent's Liability.
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(a) The Escrow Agent shall incur no liability with respect to
any action taken or suffered by it in reliance upon any notice, direction,
instruction, consent, statement or other documents believed by it to be
genuine and duly authorized, nor for other action or inaction except its
own willful misconduct or gross negligence. The Escrow Agent shall not be
responsible for the validity or sufficiency of this Agreement. In all
questions arising under the Escrow Agreement, the Escrow Agent may rely on
the advice of counsel, and the Escrow Agent shall not be liable to anyone
for anything done, omitted or suffered in good faith by the Escrow Agent
based on such advice. The Escrow Agent shall not be required to take any
action hereunder involving any expense unless the payment of such expense
is made or provided for in a manner reasonably satisfactory to it. In no
event shall the Escrow Agent be liable for indirect, punitive, special or
consequential damages.
(b) The Buyer and the Company Stockholders hereby, jointly and
severally, agree to indemnify the Escrow Agent for, and hold it harmless
against, any loss, liability or expense incurred without gross negligence
or willful misconduct on the part of Escrow Agent, arising out of or in
connection with its carrying out of its duties hereunder. The Buyer, on
the one hand, and the Company Stockholders, on the other hand, shall each
be liable for one-half of such amounts.
7. Liability and Authority of Indemnification Representative;
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Successors and Assignees.
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(a) The Indemnification Representative shall incur no liability
to the Company Stockholders with respect to any action taken or suffered by
him in reliance upon any note, direction, instruction, consent, statement
or other documents believed by him to be genuinely and duly authorized, nor
for other action or inaction except their own willful misconduct or gross
negligence. The Indemnification Representative may, in all questions
arising under the Escrow Agreement, rely on the advice of counsel and the
Indemnification Representative shall not be liable to the Company
Stockholders for anything done, omitted or suffered in good faith by the
Indemnification Representative based on such advice.
(b) In the event of the death or permanent disability of any
Indemnification Representative, or his or her resignation as an
Indemnification Representative, a successor Indemnification Representative
shall be appointed or, absent its appointment, a successor Indemnification
Representative shall be elected by a majority vote of the Company
Stockholders, with each such Company Stockholder (or his, her or its
successors or assigns) to be given a vote equal to the number of votes
represented by the shares of stock of the Company held by such Company
Stockholder immediately prior to the effective time of the Merger. Each
successor Indemnification Representative shall have all of the power,
authority, rights and privileges conferred by this Agreement upon the
original Indemnification Representative, and the term "Indemnification
Representative" as used herein shall be deemed to include successor
Indemnification Representatives.
(c) The Indemnification Representative shall have full power and
authority to represent the Company Stockholders, and their successors, with
respect to all matters arising under this Agreement and all actions taken
by any Indemnification Representative hereunder shall be binding upon the
Company Stockholders, and their successors, as if expressly confirmed and
ratified in writing by each of them. Without limiting the generality of the
foregoing, the Indemnification Representative shall have full power and
authority to interpret all of the terms and provisions of this Agreement,
to compromise any claims asserted hereunder and to authorize any release of
the Escrow Shares to be made with respect thereto, on behalf of the Company
Stockholders and their successors. All actions to be taken by the
Indemnification Representative hereunder shall be evidenced by, and taken
upon, the written direction thereof.
(d) The Escrow Agent may rely on the Indemnification
Representative as the exclusive agents of the Company Stockholders under
this Agreement and shall incur no liability to any party with respect to
any action taken or suffered by it in reliance thereon.
8. Amounts Payable by Company Stockholders. The amounts payable by
the Company Stockholders under this Agreement (i.e., the indemnification
obligations pursuant to Section 6(b)) shall be payable in cash by the
Company Stockholders or, if the Company Stockholders fail to pay such
amount in cash, then with shares, as described below. The Escrow Agent
shall notify the Indemnification Representative of any such amount payable
by the Company Stockholders as soon as it becomes aware that any such
amount is payable, with a copy of such notice to the Buyer. On the sixth
business day after the delivery of such notice, if the Company Stockholders
have not paid such amount in cash, the Escrow Agent shall sell such number
of Escrow Shares (up to the number of Escrow Shares then available in the
Escrow Account), subject to compliance with all applicable securities laws,
as is necessary to raise such amount, and shall be entitled to apply the
proceeds of such sale in satisfaction of such obligations of the Company
Stockholders; provided that if the Buyer delivers to the Escrow Agent (with
a copy to the Indemnification Representative), within five business days
after delivery of such notice by the Indemnification Representative, a
written notice contesting the legitimacy or reasonableness of such amount,
then the Escrow Agent shall not sell Escrow Shares to raise the disputed
portion of such claimed amount except in accordance with the terms of
clauses (i) or (ii) of Section 3(a).
9. Termination. This Agreement shall terminate upon the
distribution by the Escrow Agent of all of the Escrow Shares in accordance
with this Agreement; provided that the provisions of Sections 6 and 7 shall
survive such termination.
10. Notices. All notices, instructions and other communications
given hereunder or in connection herewith shall be in writing. Any such
notice, instruction or communication shall be sent either (i) by registered
or certified mail, return receipt requested, postage prepaid, or (ii) via a
reputable international overnight courier service, in each case to the
address set forth below. Any such notice, instruction or communication
shall be deemed to have been delivered four business days after it is sent
by registered or certified mail, return receipt requested, postage prepaid,
or two business days after it is sent via a reputable international
overnight courier service.
If to the Buyer:
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XXxxx.xxx, Inc.
New Xxxxxxxxxx Xxxxx
Xx. Xxxxxx Xxxxxx
Xxxxx Xxxxxxx XX0 0XX
United Kingdom
Phone: x00 0000-000000
Fax: x00 00 0000-0000
Attention: Xxxxxx Xxxxxxxx
with a copy to:
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Xxxx and Door LLP
The Xxxxxxx Office Building
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
If to the Indemnification Representative:
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Xxxxxxxx Xxx Xxxxxx
000 Xxxxx Xxxxxx X., #0000
Xxxxxxx, Xxxxxxxxxx 00000
Phone: (000) 000-0000
Fax: (206) ________
with a copy to:
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Cairncross & Hempelmann, P.S.
000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxx Xxxxxx, Esq.
If to the Escrow Agent:
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Xxxxx Bank N.A.
Soverign Trust Services
000 00xx Xxxxxx, 0xx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxx, Xx.
Phone: (000) 000-0000
Fax: (000) 000-0000
Any party may give any notice, instruction or communication in
connection with this Agreement using any other means (including personal
delivery, telecopy or ordinary mail), but no such notice, instruction or
communication shall be deemed to have been delivered unless and until it is
actually received by the party to whom it was sent. Any party may change
the address to which notices, instructions or communications are to be
delivered by giving the other parties to this Agreement notice thereof in
the manner set forth in this Section 10.
11. Successor Escrow Agent. In the event the Escrow Agent becomes
unavailable or unwilling to continue in its capacity herewith, the Escrow
Agent may resign and be discharged from its duties or obligations hereunder
by delivering a resignation to the parties to this Escrow Agreement, not
less than 60 days prior to the date when such resignation shall take
effect. The Buyer may appoint a successor Escrow Agent without the consent
of the Indemnification Representative so long as such successor is a bank
with assets of at least $500 million, and may appoint any other successor
Escrow Agent with the consent of the Indemnification Representative, which
shall not be unreasonably withheld. If, within such notice period, the
Buyer provides to the Escrow Agent written instructions with respect to the
appointment of a successor Escrow Agent and directions for the transfer of
any Escrow Shares then held by the Escrow Agent to such successor, the
Escrow Agent shall act in accordance with such instructions and promptly
transfer such Escrow Shares to such designated successor. If no successor
Escrow Agent is named as provided in this Section 11 prior to the date on
which the resignation of the Escrow Agent is to properly take effect, the
Escrow Agent may apply to a court of competent jurisdiction for appointment
of a successor Escrow Agent.
12. General.
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(a) Governing Law; Assigns. This Agreement shall be governed by
and construed in accordance with the internal laws of the State of
Washington without regard to conflict-of-law principles and shall be
binding upon, and inure to the benefit of, the parties hereto and their
respective successors and assigns.
(b) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(c) Entire Agreement. Except for those provisions of the Merger
Agreement referenced herein, this Agreement constitutes the entire
understanding and agreement of the parties with respect to the subject
matter of this Agreement and supersedes all prior agreements or
understandings, written or oral, between the parties with respect to the
subject matter hereof.
(d) Waivers. No waiver by any party hereto of any condition or
of any breach of any provision of this Escrow Agreement shall be effective
unless in writing. No waiver by any party of any such condition or breach,
in any one instance, shall be deemed to be a further or continuing waiver
of any such condition or breach or a waiver of any other condition or
breach of any other provision contained herein.
(e) Amendment. This Agreement may be amended only with the
written consent of the Buyer, the Escrow Agent and the Indemnification
Representative.
(f) Consent to Jurisdiction and Service. The parties hereby
absolutely and irrevocably consent and submit to the jurisdiction of the
courts in the State of Washington and of any Federal court located in said
State in connection with any actions or proceedings brought against any
party hereto by the Escrow Agent arising out of or relating to this Escrow
Agreement. In any such action or proceeding, the parties hereby absolutely
and irrevocably waive personal service of any summons, complaint,
declaration or other process and hereby absolutely and irrevocably agree
that the service thereof may be made by certified or registered first-class
mail directed to such party, at their respective addresses in accordance
with Section 10 hereof.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as
of the day and year first above written.
BUYER:
XXXXXX.XXX, INC.
By:/s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
Title: Executive Vice President
ESCROW AGENT:
Xxxxx Bank N.A.
By:/s/ D. Xxxxxxx Xxxxx
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Name: D. Xxxxxxx Xxxxx
Title: Vice President
INDEMNIFICATION REPRESENTATIVE:
By:/s/ Xxxxxxxx Xxx Xxxxxx
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Xxxxxxxx Xxx Xxxxxx
SHAREHOLDER CONSENT
The undersigned, a stockholder of Xxxx.xxx, Inc., hereby consents to:
(a) the establishment of this escrow to secure the Company Stockholders'
indemnification obligations under the Merger Agreement in the manner set
forth herein and the obligation to pay the Merger Adjustment Amount, (b)
the appointment of the Indemnification Representative as his or her
representative for purposes of this Agreement and as his or her
attorney-in-fact and agent, and the taking by the Indemnification
Representative of any and all actions and the making of any decisions
required or permitted to be taken or made by him under this Agreement and
(c) all of the other terms, conditions and limitations in this Agreement.
Dated this 29th day of March, 2001.
By:/s/ Xxxxxxxx Xxx Xxxxxx
--------------------------------
Name: Xxxxxxxx Xxx Xxxxxx
Address:
000 Xxxxx Xxxxxx X
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Seattle, WA. 98119
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CONSENT OF SPOUSE
I, ______________________________, spouse of _______________________,
have read and hereby approve the foregoing Escrow Agreement dated March __,
2001 by and among xXxxx.xxx, Inc., the Indemnification Representative, the
Escrow Agent, and the stockholders of Xxxx.xxx whose names appear on the
signature pages hereof. I hereby agree to be irrevocably bound by the
Escrow Agreement and further agree that any community property or other
such interest shall be similarly bound by the Escrow Agreement. I hereby
appoint Indemnification Representative as my representative for purposes of
this Agreement and as my attorney-in-fact and agent, to take any and all
actions and the make any decisions required or permitted to be taken or
made by him under this Agreement.
Dated this __ day of March, 2001.
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(Signature)
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(Print Name)
SHAREHOLDER CONSENT
The undersigned, a stockholder of Xxxx.xxx, Inc., hereby consents to:
(a) the establishment of this escrow to secure the Company Stockholders'
indemnification obligations under the Merger Agreement in the manner set
forth herein and the obligation to pay the Merger Adjustment Amount, (b)
the appointment of the Indemnification Representative as his or her
representative for purposes of this Agreement and as his or her
attorney-in-fact and agent, and the taking by the Indemnification
Representative of any and all actions and the making of any decisions
required or permitted to be taken or made by him under this Agreement and
(c) all of the other terms, conditions and limitations in this Agreement.
By:/s/ Xxxx Xxxxxx
--------------------------------
Name: Xxxx Xxxxxx
Address:
00 Xxxxx Xxxx Xxx
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Xxx Xxxxxxxxx, XX 00000
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CONSENT OF SPOUSE
I, Xxxxxxx Xxxxxx, spouse of Xxxx Xxxxxx, have read and hereby approve
the foregoing Escrow Agreement dated March __, 2001 by and among xXxxx.xxx,
Inc., the Indemnification Representative, the Escrow Agent, and the
stockholders of Xxxx.xxx whose names appear on the signature pages hereof.
I hereby agree to be irrevocably bound by the Escrow Agreement and further
agree that any community property or other such interest shall be similarly
bound by the Escrow Agreement. I hereby appoint Indemnification
Representative as my representative for purposes of this Agreement and as
my attorney-in-fact and agent, to take any and all actions and the make any
decisions required or permitted to be taken or made by him under this
Agreement.
Dated this 26 day of March, 2001.
/s/ Xxxxxxx Xxxxxx
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(Signature)
Xxxxxxx Xxxxxx
------------------------------------
(Print Name)
SHAREHOLDER CONSENT
The undersigned, a stockholder of Xxxx.xxx, Inc., hereby consents to:
(a) the establishment of this escrow to secure the Company Stockholders'
indemnification obligations under the Merger Agreement in the manner set
forth herein and the obligation to pay the Merger Adjustment Amount, (b)
the appointment of the Indemnification Representative as his or her
representative for purposes of this Agreement and as his or her
attorney-in-fact and agent, and the taking by the Indemnification
Representative of any and all actions and the making of any decisions
required or permitted to be taken or made by him under this Agreement and
(c) all of the other terms, conditions and limitations in this Agreement.
By:/s/ Xxxxxx Xxxxxx XxXxxxx
--------------------------------
Name: Xxxxxx Xxxxxx XxXxxxx
Address:
0000 0xx Xxx XX
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Xxxxxxx, XX 00000
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CONSENT OF SPOUSE
I, Xxxx X. XxXxxxx, spouse of Xxxxxx X. XxXxxxx, have read and hereby
approve the foregoing Escrow Agreement dated March 26, 2001 by and among
xXxxx.xxx, Inc., the Indemnification Representative, the Escrow Agent, and
the stockholders of Xxxx.xxx whose names appear on the signature pages
hereof. I hereby agree to be irrevocably bound by the Escrow Agreement and
further agree that any community property or other such interest shall be
similarly bound by the Escrow Agreement. I hereby appoint Indemnification
Representative as my representative for purposes of this Agreement and as
my attorney-in-fact and agent, to take any and all actions and the make any
decisions required or permitted to be taken or made by him under this
Agreement.
Dated this 29th day of March, 2001.
/s/ Xxxx XxXxxxx
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(Signature)
Xxxx XxXxxxx
------------------------------------
(Print Name)
SHAREHOLDER CONSENT
The undersigned, a stockholder of Xxxx.xxx, Inc., hereby consents to:
(a) the establishment of this escrow to secure the Company Stockholders'
indemnification obligations under the Merger Agreement in the manner set
forth herein and the obligation to pay the Merger Adjustment Amount, (b)
the appointment of the Indemnification Representative as his or her
representative for purposes of this Agreement and as his or her
attorney-in-fact and agent, and the taking by the Indemnification
Representative of any and all actions and the making of any decisions
required or permitted to be taken or made by him under this Agreement and
(c) all of the other terms, conditions and limitations in this Agreement.
By:/s/ Xxxxx XxXxx
--------------------------------
Name: Xxxxx XxXxx
Address:
0000 Xxxx Xxx
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Xxxxxxx Xx 00000
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CONSENT OF SPOUSE
I, ______________________________, spouse of _______________________,
have read and hereby approve the foregoing Escrow Agreement dated March __,
2001 by and among xXxxx.xxx, Inc., the Indemnification Representative, the
Escrow Agent, and the stockholders of Xxxx.xxx whose names appear on the
signature pages hereof. I hereby agree to be irrevocably bound by the
Escrow Agreement and further agree that any community property or other
such interest shall be similarly bound by the Escrow Agreement. I hereby
appoint Indemnification Representative as my representative for purposes of
this Agreement and as my attorney-in-fact and agent, to take any and all
actions and the make any decisions required or permitted to be taken or
made by him under this Agreement.
Dated this __ day of March, 2001.
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(Signature)
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(Print Name)
ATTACHMENT A
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Company Stockholder Percentage
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Xxxxxxxx Xxx Xxxxxx 97.9%
Xxxxx XxXxx 1.2%
Xxxx Xxxxxx .05%
Xxxxxx Xxxxxx .04%
