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EXHIBIT 10.2
ESCROW AGREEMENT
This Escrow Agreement dated as of August 10, 1999 (this "Agreement")
is made by and among (i) Xxxxxxxx.xxx Incorporated, a New York corporation
("Parent"), (ii) Xxxxxx X. Xxxxxx ("Xxxxxx") and Xxxxxx X. Xxxxxxx
(collectively, the "Principals"); (iii) Xxxxxx as agent for the Principals (the
"Principals' Agent"), and (iv) Eastern Bank and Trust Company, a Massachusetts
banking corporation, as escrow agent (the "Escrow Agent"),
WHEREAS, pursuant to an Agreement and Plan of Merger dated as of June
18, 1999 (the "Merger Agreement") by and among Parent, XxxxxxxXxxx.xxx
Incorporated, a Delaware corporation ("Merger Sub"), ECI, Inc., a Massachusetts
corporation ("ECI"), the Principals and the Principals Agent, the parties
thereto have agreed, subject to the terms and conditions set forth therein, to
merge ECI with and into Merger Sub (the "Merger") and thereby to convert all
outstanding shares of Common Stock, $.01 par value per share, of the Company
("ECI Common Stock") into (i) shares of Common Stock, $.001 par value per share,
of Parent ("Parent Common Stock") and (ii) shares of Series B Preferred Stock,
$.01 par value per share, of Parent ("Parent Series B Stock");
WHEREAS, pursuant and subject to the Merger Agreement, the Principals
have agreed to indemnify Parent and certain affiliates of Parent for Parent
Claims (as defined below); and
WHEREAS, it is a condition to the closing of the Merger Agreement, the
Principals have agreed to transfer shares of Parent Common Stock and Parent
Series B Stock (collectively, "Parent Stock") received in connection with the
Merger to the Escrow Agent to be held by the Escrow Agent as security for
potential Parent Claims upon the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements herein contained, the parties hereto agree as follows:
1. Definitions. As used in this Agreement, the following terms shall
have the following meanings:
"Account" means a book entry account (or subaccounting entry within an
omnibus account containing the entire Escrow Fund) maintained by the Escrow
Agent for each Principal.
"Allocation Statement" means a statement setting forth the Claim
Disbursement Amounts with respect to a Parent Claim and the calculations
supporting the determination of such amounts.
"Certificate Returned by Principals" has the meaning set forth in
Section 8(b)(ii).
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"Certificate Returned by Parent" has the meaning set forth in Section
8(a).
"Claim Date" has the meaning set forth in Section 6(a).
"Claim Disbursement Amount" has the meaning set forth in Section 6(b).
"Claim Notice" has the meaning set forth in Section 6(a).
"Deposited Certificates" means the certificates representing shares of
Parent Stock deposited with the Escrow Agent pursuant to Section 3.
"Escrow Fund" means the Escrowed Shares and the stock transfer powers
held by the Escrow Agent from time to time pursuant to this Agreement.
"Escrowed Shares" means the shares of Parent Stock held by the Escrow
Agent from time to time pursuant to this Agreement.
"Final Instruction" has the meaning set forth in Section 7.
"Indemnification Price" means (i) with respect to the calculation of
the portion of a Claim Disbursement Amount to be comprised of Parent Common
Stock, the closing asked price per share of Parent Common Stock (as quoted on
the Nasdaq OTC Bulletin Board) on the business day immediately preceding the
Claim Date, and (ii) with respect to the calculation of the portion of a Claim
Disbursement Amount to be comprised of Parent Series B Stock, a dollar amount
per share equal to the conversion price applicable on the day immediately
preceding the Claim Date.
"Loss" means any damage, loss, cost or expense, including reasonable
attorneys' fees and settlement costs, suffered, incurred or paid by any member
of the Parent Group in connection with a Parent Claim.
"Parent Claim" means a claim for any Loss suffered, incurred or paid by
any member of the Parent Group and indemnifiable pursuant to the Merger
Agreement.
"Parent Group" means Parent and Merger Sub and each of their respective
directors, officers and agents.
"Pro Rata Share" means, with respect to each Principals, the percentage
set forth opposite its name on Schedule A attached hereto.
"Termination Date" means October 31, 2000.
"Transfer Agent" means Parent's stock transfer agent, American
Securities Transfer, Inc.
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2. Appointment of Escrow Agent. Parent and the Principals hereby
appoint the Escrow Agent to serve as agent for the purpose of holding and
distributing the Escrow Fund upon the terms and conditions herein set forth, and
the Escrow Agent accepts such appointment subject to the terms and conditions
hereof.
3. Deposit of Escrowed Shares.
(a) Original Deposit. Simultaneously with the execution of this
Agreement, each Principal has deposited with the Escrow Agent, for credit to
such Principal's Account, (i) a certificate registered in the name of such
Principal representing the number of shares of Parent Common Stock set forth
opposite such Principal's name on Schedule A hereto, and (ii) a certificate
registered in the name of such Principal representing the number of shares of
Parent Series B Stock set forth opposite such Principal's name on Schedule A
hereto. Each such certificate has been accompanied by a stock transfer power
executed in blank by the Principal in whose name the certificate is registered.
(b) Stock Dividends. If Parent effects a non-taxable (for federal
income tax purposes) stock dividend, reclassification or any other change in its
capital structure while the Escrow Agent holds any Principal's Escrowed Shares
hereunder, Parent shall deposit with the Escrow Agent, for credit to such
Principal's Account, a certificate for the number of additional, substituted or
new securities to be issued to each such Principal by reason of any such change
with respect to such Principal's Escrowed Shares, which deposit shall be
accompanied by written notice by Parent to the Escrow Agent identifying such
certificate as a Deposited Certificate being delivered pursuant to this Section
3(b). Such shares shall for all purposes constitute Escrowed Shares hereunder
and be deemed shares of Parent Stock as such term is used herein. At the time of
such deposit, the Principal in whose name the certificate is registered shall
deposit with the Escrow Agent a stock transfer power, duly executed in blank by
such Principal, relating to the shares covered by such certificate.
(c) Conversion of Series B Stock. If a Principal converts any
escrowed shares of Parent Series B Stock into Parent Common Stock in accordance
with the terms and conditions of Certificate of Incorporation of Parent, Parent
shall deposit with the Escrow Agent, for credit to such Principal's Account, a
certificate for the number of shares of Parent Common Stock to be issued to each
such Principal by reason of any such conversion, which deposit shall be
accompanied by written notice by Parent to the Escrow Agent identifying such
certificate as a Deposited Certificate being delivered pursuant to this Section
3(c). Such shares shall for all purposes constitute Escrowed Shares hereunder
and be deemed shares of Parent Stock as such term is used herein. At the time of
such deposit, the Principal in whose name the certificate is registered shall
deposit with the Escrow Agent a stock transfer power, duly executed in blank by
such Principal, relating to the shares covered by such certificate.
(d) Returned Certificates. If the Transfer Agent issues a
Certificate Returned by Parent or a Certificate Returned by Principal to any
Principal pursuant to Sections 8(a) or 8(b)(ii),
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respectively, Parent shall cause the Transfer Agent to deposit such certificate
with the Escrow Agent, for deposit to such Principal's Accounts, and Parent
shall at the same time send written notice to the Escrow Agent identifying any
such certificate as a Deposited Certificate being delivered pursuant to this
Section 3(d). At the time of such deposit, the Principal in whose name the
certificate is registered shall deposit with the Escrow Agent a stock transfer
power, duly executed in blank by such Principal, relating to the shares covered
by such certificate.
(e) Limitation on Deposits. Notwithstanding any other provision
herein, no Principal shall have any obligations to deposit additional shares of
Parent Stock with the Escrow Agent because a Claim Disbursement Amount allocated
to such Principal exceeds the number of Escrowed Shares in such Principal's
Account.
4. Maintenance of Escrow. The Escrow Agent shall hold the Escrowed
Shares in escrow and shall maintain and disburse the Escrowed Shares pursuant to
this Agreement. The Escrow Agent shall maintain updated Accounts for each
Principal, reflecting increases or decreases in the number of Escrowed Shares.
5. Certain Rights of Principals.
(a) Voting. Notwithstanding anything to the contrary herein, each
Principal shall have the right to vote all shares of Parent Common Stock in his
Account.
(b) Cash Dividends and Distributions. Notwithstanding anything to
the contrary herein, the Escrow Agent shall distribute all cash dividends or
other distributions of cash with respect to the Escrowed Shares to the
Principals in accordance with their respective Pro Rata Shares of any such
distribution or dividend. All such payments shall be made by check, mailed first
class postage paid, to the Principals immediately following the receipt of such
dividends or distributions by the Escrow Agent.
6. Assertion of Parent Claim.
(a) Claim Notice. Parent may assert one or more Parent Claims for
which it seeks recovery hereunder on or prior to the Termination Date. Parent
shall assert such Parent Claims by delivering a written notice (a "Claim
Notice") to the Escrow Agent and the Principals' Agent which includes (i) the
date of the Parent Claim Notice (the "Claim Date"), (ii) Parent's estimate of
the Loss incurred by the Parent Group in connection with such Parent Claim,
(iii) an Allocation Statement, and (iv) a reasonably detailed summary of the
basis for such Parent Claim. Parent may assert one or more Parent Claims in a
single Claim Notice.
(b) Allocation Statement. The Allocation Statement shall include
calculations setting forth the number of Escrowed Shares to be disbursed to
Parent from each Principal's Account to satisfy a given Parent Claim ("Claim
Disbursement Amount"). All disbursements shall be pro rata among Principals and
as between shares of Common Stock and Shares of
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Preferred Stock. Claim Disbursement Amounts shall be determined by the formula
set forth below, subject to any limitations set forth in Article 7 of the Merger
Agreement. The Allocation Statement shall include a Claim Disbursement Amount
with respect to each Principal. The Allocation Statement shall also indicate
whether the Claim Disbursement Amount for any Principal exceeds the number of
Escrowed Shares in such Principal's Account.
CDA = L x Z
-----
P
where:
CDA = The Claim Disbursement Amount for a particular
Principal with respect to a Parent Claim (rounded
up to the next whole number of shares)
L = The Loss incurred by the Parent Group in connection
with such Parent Claim
P = The Indemnification Price
Z = The Pro Rata Share of such Principal
In calculating the Claim Disbursement Amount with respect to a given Parent
Claim, Parent shall have complete discretion in determining whether such Parent
Claim shall be satisfied by a disbursement of escrowed Parent Common Stock,
escrowed Parent Series B Stock or both. The Allocation Statement shall indicate
the number of shares of each class of Escrowed Shares that comprise each
Principal's Claim Disbursement Amount.
7. Final Instruction. For the purposes of this Agreement, a "Final
Instruction" shall mean a written notice, including an Allocation Statement,
delivered to the Escrow Agent directing the disbursement of the Claim
Disbursement Amounts relating to a particular Parent Claim, and which expressly
states that it is a "Final Instruction" pursuant to this Section 7. Except as
provided in Subsections (b) and (d) below, a Final Instruction shall be signed
by Parent and the Principals' Agent. A Final Instruction shall be delivered to
the Escrow Agent only under the following circumstances, and accompanied by the
indicated documentation:
(a) If the Principals' Agent disputes either the validity, amount or
allocation of the Parent Claims described in a Claim Notice, the Principals'
Agent shall give written notice of such dispute to Parent, with a copy to the
Escrow Agent, within 30 calendar days after receipt by the Principal's Agents of
such Claim Notice. In such event, no Final Instruction may be given to the
Escrow Agent except as provided in (c) or (d) below.
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(b) If the Principals' Agent fails to respond to a Claim Notice
within 30 calendar days after receipt by the Principals' Agent of such Claim
Notice, or if the Principals' Agent notifies Parent and the Escrow Agent in
writing that there is no dispute with respect to the validity, amount or
allocation of the Parent Claims described in a Claim Notice, Parent shall have
the right to deliver to the Escrow Agent a Final Instruction, signed only by
Parent, with respect to the Parent Claims described in such Claim Notice. Upon
receipt of a Final Instruction pursuant to this Section 7(b), the Escrow Agent
may (unless it has actual notice to the contrary) presume receipt by the
Principal's Agent of the related Claim Notice on the date of receipt thereof by
the Escrow Agent (without any duty on its part to confirm the actual date of
receipt by the Principal's Agent).
(c) In the case of a Parent Claim Notice which the Principals' Agent
has disputed (as provided in Subsection 7(a) above), if Parent and the
Principals' Agent reach an agreement with respect to the validity, amount and
allocation of the Parent Claims described in a Claim Notice, Parent and the
Principals' Agent shall give the Escrow Agent a Final Instruction, signed by
both Purchasers and the Principals' Agent, with respect to such Parent Claims.
(d) In the case of a Claim Notice which the Principals' Agent has
disputed (as provided in Subsection 7(a) above), if an arbitrator or a court of
competent jurisdiction issues a final, non-appealable order specifying the
amount of Parent' recovery with respect to a Parent Claim, either Parent or the
Principals' Agent shall have the right to deliver to the Escrow Agent a Final
Instruction with respect to such Parent Claim based on and in compliance with
such order, signed only by Parent or the Principals' Agent, as the case may be,
and accompanied by a copy of such order.
8. Distribution of Escrowed Shares.
(a) Disbursements to Parent. Upon receipt of a Final Instruction,
the Escrow Agent shall promptly distribute to Parent from the Escrow Fund shares
of Parent Stock in an amount equal to the sum of the Claim Disbursement Amounts
set forth in the Allocation Statement of such Final Instruction. The Escrow
Agent shall effect such distributions to Parent by delivering to the Transfer
Agent such Deposited Certificates and related stock transfer powers and written
instructions as are necessary to transfer any Claim Disbursement Amounts from
the Accounts of the Principals. Upon receipt thereof, the Transfer Agent shall
(i) issue to Parent one or more certificates registered in the name of Parent
representing shares of Parent Stock equal to the sum of the Claim Disbursement
Amounts, and (ii) if any positive balance of Parent Stock remains after
deducting the appropriate amount of Parent Stock from the surrendered Deposited
Certificates of any Principal, Parent shall (A) cause the Transfer Agent to
issue one or more certificates registered in the name of such Principal
representing the remaining balance of Parent Stock (a "Certificate Returned by
Parent") and (B) promptly deliver any Certificates Returned by Parent to the
Escrow Agent in accordance with Section 3(d).
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(b) Disbursements to Principals.
(i) If no Parent Claim is "asserted and unresolved" (as defined
below) on the Termination Date, then the Escrow Agent shall promptly deliver to
the Principals all of the Escrowed Shares in each such Principal's Account. If
any Parent Claim is asserted and unresolved on the Termination Date, then the
Escrow Agent shall promptly deliver to each Principal the positive difference,
if any, between (A) the Claim Disbursement Amounts relating to such Principal
with respect to such Parent Claim and (B) the number of Escrowed Shares in such
Principal's Account. Upon receipt of a Final Instruction relating to any Parent
Claim that is asserted and unresolved on the Termination Date, the Escrow Agent
shall promptly deliver to each Principal the positive difference, if any,
between (A) the Claim Disbursement Amounts relating to such Principal in such
Final Instruction and (B) the number of Escrowed Shares in such Principal's
Account. For the purposes of this Section 7(b), the phrase "asserted and
unresolved" means, with respect to any Parent Claim, the Escrow Agent has
received a Claim Notice but no Final Instruction with respect to such Parent
Claim.
(ii) In the case of any delivery of Escrowed Shares to
Principals pursuant to this Section 8(b), if no Escrowed Shares are then
required by the terms hereof to be retained in such Principal's Account, the
Deposited Certificates representing such Principals' Escrowed Shares shall be
delivered to the Principals. If any Escrowed Shares are required to be retained
in any Principal's Account pursuant to the terms of this Section 8(b), the
delivery to such Principal anticipated hereby shall be made by the Escrow Agent
by delivering to the Transfer Agent the Deposited Certificates representing such
Principals' Escrowed Shares and the related stock transfer powers. Parent shall
cause the Transfer Agent, upon receipt thereof, to (A) issue and deliver to the
Escrow Agent (or directly to such Principal) one or more certificates registered
in the name of such Principal representing the shares of Parent Stock to be
released to such Principal hereunder and (B) issue and deliver to the Escrow
Agent one or more certificates registered in the name of such Principal
representing the remaining balance of Parent Stock to be retained by the Escrow
Agent in the Principal's Account ("Certificate Returned by Principal") in
accordance with Section 3(d).
9. Limitation of Liability of Escrow Agent; Etc.
(a) Nature of Duties; Liability; Indemnification. It is understood
and agreed that the duties of the Escrow Agent hereunder are purely ministerial
in nature and that the Escrow Agent shall not be liable for any error of
judgment, fact or law, or any act done or omitted to be done, except for its own
willful misconduct or gross negligence or that of its employees and agents. The
Escrow Agent's determination as to whether an event or condition has occurred,
or been met or satisfied, or as to whether a provision of this Agreement has
been complied with, or as to whether sufficient evidence of the event or
condition or compliance with the provision has been furnished to it, shall not
subject the Escrow Agent to any claim, liability or obligation whatsoever, even
if it shall be found that such determination was improper and incorrect;
provided, that the Escrow Agent and its employees and agents shall not have been
guilty of
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willful misconduct or gross negligence in making such determination. Parent and
the Principals jointly and severally agree to indemnify the Escrow Agent for,
and to hold it harmless against, any loss, liability, or expense ("Cost")
incurred without gross negligence or willful misconduct on the part of the
Escrow Agent, arising out of or in connection with its entering into this
Agreement and carrying out its duties hereunder, including costs and expenses of
defending itself against any claim of liability in connection herewith or
therewith. The right to indemnification set forth in the preceding sentence
shall include the right to be paid by Parent and the Principals in respect of
Costs as they are incurred (including Costs incurred in connection with
defending itself against any claim of liability in connection herewith). The
Escrow Agent shall repay any amounts so advanced if it shall ultimately be
determined by a final order of a court of competent jurisdiction from which no
appeal is or can be taken that the Escrow Agent is not entitled to such
indemnification.
(b) Documents and Instructions. The Escrow Agent acts hereunder as a
depository only and shall not be responsible or liable in any manner whatsoever
for the genuineness, sufficiency, correctness or validity of any agreement,
document, certificate, instrument or item deposited with it or any notice,
consent, approval direction or instruction given to it, and the Escrow Agent
shall be fully protected, under Section 9(a) above, for all acts taken in
accordance with any written instruction or instrument given to it hereunder, and
reasonably believed by the Escrow Agent to be genuine and what it purports to
be.
(c) Conflicting Notices, Parent Claims, Demands or Instructions. If
at any time the Escrow Agent shall receive conflicting notices, claims, demands
or instructions with respect to the Escrow Fund, or if for any other reason it
shall in good faith be unable to determine the party or parties entitled to
receive any of the Escrowed Shares, the Escrow Agent may refuse to make any
distribution or payment and may retain the Escrowed Shares in its possession
until it shall have received instructions in writing concurred in by all parties
in interest, or until directed by a final order or judgment of a court of
competent jurisdiction from which no appeal is or can be taken, whereupon the
Escrow Agent shall make such disposition in accordance with such instructions or
such order.
(d) Advice of Counsel. The Escrow Agent may consult with, and obtain
advice from, legal counsel and employees in the event of any dispute or question
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 and indemnified
under Section 9(a) above for all acts taken, in the absence of gross negligence
or willful misconduct, in accordance with the opinion and instructions of such
counsel, and the costs of such counsel shall be subject to reimbursement under
Section 9(a) above.
(e) Compensation and Expenses. Parent agree to pay, and shall be
solely responsible for, all fees, disbursements and other expenses charged by
the Escrow Agent for the performance of the Escrow Agent's services hereunder.
The Escrow Agent shall be entitled to reimbursement on demand for all expenses
incurred in connection with the administration of this
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Agreement or the escrow created hereby which are in excess of its compensation
for normal services hereunder, including without limitation, payment of any
legal fees and expenses incurred by the Escrow Agent in connection with
resolution of any Parent Claim by any party hereunder. Property in the Escrow
Fund shall not be used to pay any such fees, disbursements or other expenses.
(f) Resignation of Escrow Agent. The Escrow Agent may resign at any
time upon giving the other parties hereto thirty (30) days' notice to that
effect. In such event the successor Escrow Agent shall be such person, firm or
corporation as shall be mutually selected by Parent and the Principals' Agent.
It is understood and agreed that the Escrow Agent's resignation shall not be
effective until a successor Escrow Agent agrees to act hereunder; provided, that
in the event no successor Escrow Agent is appointed and acting hereunder within
thirty (30) days of such notice, the Escrow Agent may pay and deliver the Escrow
Fund into a court of competent jurisdiction; and provided, further, that Parent
and the Principal's Agent may appoint a successor escrow agent hereunder at any
time so long as such successor shall accept and agree to be bound by the terms
of this Agreement (except that any such successor escrow agent shall be entitled
to customary fees payable by Parent) and shall be a bank or trust company with a
minimum net capital of $100 million as evidenced on their most recently filed
audited financial statements, insured by the Federal Deposit Insurance
Corporation, authorized to do business in the Commonwealth of Massachusetts and
located in Boston, Massachusetts.
10. Principals' Agent.
(a) In order to administer efficiently the defense and/or
settlement of any Parent Claims, the Principals hereby appoint the Principals'
Agent as their agent and representative, and the Principals' Agent hereby
accepts such appointment.
(b) The Principals hereby authorize the Principals' Agent (i) to
take all action necessary in connection with the defense and/or settlement of
any Parent Claims for which the Parent may be required to indemnify members of
the Parent Group pursuant to Article 7 of the Merger Agreement and (ii) to give
and receive all notices required to be given and take all action required or
permitted to be taken by the Principals under this Agreement.
(c) In the event that Xxxxxx dies, becomes unable to perform his
responsibilities hereunder as a Principals' Agent or resigns from such position,
Xxxxxxx shall be deemed to be the Principals' Agent for all purposes of this
Agreement.
(d) Parent and the Escrow Agent may rely on any written document
signed by the Principals' Agent (or its successor) as evidence of the
Principals' Agent authority to act hereunder.
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(e) All decisions and actions by the Principals' Agent, including
the defense or settlement of any Parent Claims, shall be binding upon all of the
Principals, and no Principal shall have the right to object, dissent, protest or
otherwise contest the same.
(f) By their execution of this Agreement, the Principals agree
that:
(i) Parent shall be able to rely conclusively on the
instructions and decisions of the Principals' Agent as to the settlement of any
Parent Claims or any other actions required to be taken by the Principals' Agent
hereunder, and no party hereunder shall have any cause of action against any
member of the Parent Group for any action taken by any member of the Parent
Group in reliance upon the instructions or decisions of the Principals' Agent;
(ii) all actions, decisions and instructions of the Principals'
Agent shall be conclusive and binding upon all of the Principals and no
Principal, nor Parent, shall have any cause of action against the Principals'
Agent for any action taken, decision made or instruction given by the
Principals' Agent under this Agreement, except for fraud or willful breach of
this Agreement by the Principals' Agent;
(iii) the provisions of this Section 10 are independent and
severable, are irrevocable and coupled with an interest and shall be enforceable
notwithstanding any rights or remedies that any Principal may have in connection
with the transactions contemplated by this Agreement; and
(iv) the provisions of this Section 10 shall be binding upon
the heirs, legal representatives, successors and assigns of each Principal, and
any references in this Agreement to a Principal or the Principals shall mean and
include the successors to the Principals' rights hereunder, whether pursuant to
testamentary disposition, the laws of descent and distribution or otherwise.
11. Notices. All notices, consents, approvals, directions and
instructions required or permitted under this Agreement shall be effective when
received and shall be given in writing and delivered either by hand or by
registered or certified mail, postage prepaid, or by telecopier, and addressed
as follows:
If to any Principal or the Principals' Agent:
Xxxxxx X. Xxxxxx
XxxxxxxXxxx.xxx Incorporated
c/o Xxxxxxxx.xxx Incorporated
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
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If to Parent:
Xxxxxxxx.xxx Incorporated
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: General Counsel
Facsimile: (000) 000-0000
If to the Escrow Agent:
Eastern Bank and Trust Company
000 Xxxxx Xxxxxx
Xxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxx
Facsimile: (000) 000-0000
12. Miscellaneous.
(a) Entire Agreement, etc. This Agreement and the Merger Agreement
contain the entire agreement among the parties with respect to the subject
matter hereof and supercede all other prior agreements and understandings, both
written and oral, among the parties with respect to the subject matter hereof.
In the event of a conflict between the terms and provisions hereof and of the
Merger Agreement, the terms and provisions hereof shall govern the rights,
obligations and liabilities of the Escrow Agent.
(b) Amendments and Supplements. This Agreement may not be amended,
supplemented or discharged, and no provision hereof may be modified or waived,
except by an instrument in writing signed by all of the parties hereto.
(c) No Waiver. No provision hereof may be waived, except by an
instrument in writing signed by the party waiving compliance. The failure of any
party hereto to enforce at any time any of the provisions of this Agreement
shall in no way be construed to be a waiver of any such provision, nor in any
way to affect the validity of this Agreement or any part hereof or the right of
such party thereafter to enforce each and every such provision. No waiver of any
breach of or non-compliance with this Agreement shall be held to be a waiver of
any other or subsequent breach or non-compliance. The rights and remedies herein
provided are cumulative and are not exclusive of any rights or remedies that any
party may otherwise have at law or in equity.
(d) Successors and Assigns. This Agreement shall be binding upon
and shall inure to the benefit of each of the parties hereto, and their
respective heirs, successors, assigns, distributees and legal Agents.
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(e) Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the substantive law of the
Commonwealth of Massachusetts without regard to its principles of conflicts of
laws. Any provision hereof which may prove invalid or unenforceable under any
law shall not affect the validity or enforceability of any other provision
hereof.
(f) Construction of Agreement. A reference to a Section shall mean
a Section in this Agreement unless otherwise expressly stated. The titles and
headings herein are for reference purposes only and shall not in any manner
limit the construction of this Agreement which shall be considered as a whole.
The words "include," "includes" and "including" when used herein shall be deemed
in each case to be followed by the words "without limitation".
(g) Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have executed or caused this
Escrow Agreement to be duly executed as a sealed instrument as of the day and
year first above written.
XXXXXXXX.XXX INCORPORATED
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chief Financial Officer
/s/ Xxxxxx X. Xxxxxx
---------------------------------------------
Xxxxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxxxxx
---------------------------------------------
Xxxxxx X. Xxxxxxx
/s/ Xxxxxx X. Xxxxxx
---------------------------------------------
Xxxxxx X. Xxxxxx, as agent for the Principals
EASTERN BANK AND TRUST COMPANY
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President & Trust ***
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Schedule A
Escrowed Shares and Pro-Rata Shares
(as of the date of Escrow Agreement)
Number of
Escrowed Shares
-----------------------
Name Common Series B Pro Rata Share
---- ------ -------- --------------
Xxxxxx X. Xxxxxx 46,669 42,702 71.17%
Xxxxxx X. Xxxxxxx 18,905 17,298 28.83%
------ ------ ------
Total 65,574 60,000 100.00%
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