ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this "Agreement"), is made and
entered on the 27th day of July, 1998, by and among ICG
Communications, Inc., a Colorado corporation ("Buyer"), the
persons listed on Exhibit A (collectively, "Sellers"), and
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Norwest Bank Colorado, N.A. ("Escrow Agent"), together, the "Parties."
RECITALS
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A. Buyer and Sellers have executed a Purchase Agreement
dated as of June 11, 1998 (the "Purchase Agreement") pursuant to
which Buyer has agreed to purchase all of the interests in
DataChoice Network Services, L.L.C., a Nevada limited liability
company (the "Company"), held by Sellers. Article VII of the
Purchase Agreement provides that on or prior to the Closing Date,
each of the Sellers, as a group, and Buyer shall have delivered
to the other this Agreement, duly and properly executed.
B. Section 2.2 of the Purchase Agreement provides that at
the Closing (as defined in the Purchase Agreement), Buyer shall
deposit with the Escrow Agent 16,441 ICG Shares (as defined in
the Purchase Agreement), representing a portion of the Purchase
Price, such amount so paid to be held pursuant to this Agreement.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, and for other good and
valuable consideration, the receipt, adequacy and sufficiency of
which is hereby acknowledged, the Parties hereby agree as
follows:
1. Escrow.
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a. Upon delivery of this Agreement properly executed by
the Parties, Buyer shall tender 16,441 in ICG Shares (the
"Escrowed Amount") to the Escrow Agent, to be held by the Escrow
Agent in trust upon the express terms and conditions, with the
powers and limitations, and for the exclusive purpose set forth
herein. The ICG Shares shall be issued and held in the names of
Sellers, in proportion to their ownership of the Company,
accompanied with stock powers duly executed in blank by Sellers.
Such Escrowed Amount and all proceeds of such Escrowed Amount now
or hereafter subject to this Agreement are hereinafter referred
to as the "Escrow Assets." The Parties agree that the Escrow
Assets are the sole property of Sellers held by the Escrow Agent
for the sole purpose of securing the indemnification obligations
of Sellers pursuant to Article VIII of the Purchase Agreement.
The Sellers shall have the right to vote the ICG Shares held in
the Escrow Account, and all dividends paid on the ICG Shares
shall be held in the Escrow Account pursuant to this Agreement
for the benefit of Sellers.
b. The Escrow Agent shall hold and safeguard the Escrow
Assets separate and apart from the assets of the Escrow Agent.
The Escrow Agent represents that the Escrow Assets shall not at
any time, including in the event of the bankruptcy, dissolution
or insolvency of the Escrow Agent or otherwise, be or be deemed
to be assets of the Escrow Agent.
x. Xxxxxxx, as a group, and Buyer shall each execute a
certificate of incumbency substantially in the form of Exhibit B
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for the purpose of establishing the identity of the
representative(s) of each party entitled to issue instructions or
directions to the Escrow Agent pursuant to Paragraph 2 herein on
behalf of such party (each such person being referred to herein
as "Authorized Representative"). Sellers shall designate
Sellers' Agent as their Authorized Representative.
d. Each Seller and Buyer shall furnish to the Escrow Agent
a Form W-8 or Form W-9, as applicable.
2. Claims. If, prior to July 27, 1999 (the first anniversary
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of the Closing Date (the "Termination Date")), the Escrow Agent
receives from an Authorized Representative of Buyer one or more
notices addressed to Escrow Agent and to Sellers' Agent (each, a
"Demand Notice") requesting payment to Buyer of a specified
amount of the Escrow Assets ("Claimed Amount"), the Escrow Agent
shall, within three Business Days (as such term is defined in the
Purchase Agreement) of receipt of such Demand Notice, send a copy
of the Demand Notice to Sellers' Agent via courier or facsimile,
with a cover letter indicating the date such Demand Notice was
received by the Escrow Agent. If, within five Business Days of
the date the Escrow Agent received such Demand Notice ("Reply
Period"), the Escrow Agent receives written notice from the
Authorized Representative of Sellers ("Reply Notice") requesting
the Escrow Agent to continue to hold all or a portion of the
Claimed Amount ("Disputed Amount"), the Escrow Agent shall
continue to hold the Disputed Amount until the Escrow Agent
receives (1) a written agreement signed by an Authorized
Representative of both Sellers and Buyer to pay the Disputed
Amount, or a portion thereof, as directed in such written
agreement; or (2) until such time as the Escrow Agent has
received an order of a court of competent jurisdiction directing
the Escrow Agent to pay such Disputed Amount, or portion thereof,
according to such order. If the Escrow Agent does not receive a
Reply Notice within the Reply Period or if the Escrow Agent
receives a Reply Notice requesting that the Escrow Agent hold a
Disputed Amount which is less than all of the Claimed Amount, the
Escrow Agent shall pay to Buyer the Claimed Amount specified in
such Demand Notice less any Disputed Amount ("Agreed Amount"),
such payment to be made as follows: within two Business Days of
expiration of the Reply Period or the receipt of the Reply
Notice, whichever is applicable, the Escrow Agent shall (a) send
to the transfer agent for the ICG Shares (the "Transfer Agent")
the certificates representing the ICG Shares held by the Escrow
Agent, and (b) request the Transfer Agent to cancel the number of
ICG Shares equal to the Agreed Amount and issue to Sellers and
deliver to the Escrow Agent certificates representing a number of
ICG Shares equal to the difference between the number of ICG
Shares delivered to the Escrow Agent pursuant to this sentence
and the number of ICG Shares representing the Agreed Amount. The
calculation of the number of ICG Shares representing the Agreed
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Amount to be cancelled in favor of Buyer and the number of ICG
Shares to be reissued to Sellers and delivered to the Escrow
Agent pursuant to this Section 2 shall be made pursuant to
Section 4.
3. Payment of Escrow Assets Upon Termination.
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a. The Escrow Agent shall pay to Sellers, in accordance
with Paragraph 2, within two Business Days following the
Termination Date the Excess Amount (as hereinafter defined). As
used in this Agreement, "Excess Amount" shall mean the amount by
which any Escrowed Amount held by the Escrow Agent on the
Termination Date exceeds the Disputed Amount, if any, taking into
account all Demand Notices issued during the Escrow Period.
b. Following the Termination Date, as claims for Disputed
Amounts are fully and finally resolved or at any time any Excess
Amount exists, the Escrow Agent shall release the Excess Amount
to Sellers in accordance with Paragraph 2.
c. Notwithstanding anything to the contrary in this
Agreement, the Escrow Agent shall promptly disburse all or any
part of the Escrow Assets as agreed in writing and signed by an
Authorized Representative of Buyer and Sellers or upon receipt
of, and in accordance with, an order or decree or final and non-
appealable judgment of a court of competent jurisdiction.
4. Calculation and Payment of Amounts Payable by Escrow Agent.
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For purposes of calculating the number of ICG Shares representing
the Agreed Amount, the Disputed Amount or the Excess Amount, as
applicable under Paragraphs 2 and 3, the per share value of the
ICG Shares, calculated as of any applicable date of
determination, shall be the average of the volume weighted
average price of the shares of common stock of ICG
Communications, Inc. on the five trading days ending two trading
days prior to the date that the Escrow Agent makes a payment (or
is deemed to make a payment) of any amount out of the Escrow
Account on account of any indemnification claim or attributable
to any Excess Amount, as the case may be. Buyer and Sellers will
cooperate in good faith to determine the number of ICG Shares
representing the Agreed Amount, the Disputed Amount and the
Excess Amount, as applicable, and shall execute written
instructions to the Transfer Agent with respect to the issuance
of certificates representing ICG Shares to be canceled in favor
of Buyer, or delivered to Sellers or the Escrow Agent in
accordance with Paragraphs 2 and 3.
5. Further Provisions Relating to Escrow. Notwithstanding any
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provision contained herein to the contrary, the Escrow Agent,
including its officers, directors, employees and agents, agrees
to the following:
a. The Escrow Agent shall not be liable for any action
taken or omitted under this Agreement so long as it shall have
acted in good faith and without negligence or willful misconduct
on its part. The Escrow Agent shall have no responsibility to
inquire into or determine the genuineness, authenticity or
sufficiency of any securities, checks or other documents or
instruments submitted to it in connection with its duties
hereunder; provided, however, that nothing herein shall be
construed to relieve the Escrow Agent of its obligations to
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exercise such care under the circumstances as comports with
reasonable commercial practices in its examination of written
communications and instruments furnished hereunder, except with
respect to verifying the genuineness of signatures and in
accordance with Paragraph 6.b. below.
b. The Escrow Agent shall be entitled to deem the
signatures on any documents or instruments submitted to it
hereunder as being those of persons purported to be authorized to
sign such documents or instruments on behalf of the Parties
hereto and shall be entitled to rely upon the genuineness of the
signatures of such signatories without inquiry and without
requiring substantiating evidence of any kind.
c. The Escrow Agent shall have no responsibility or
liability for any diminution in value of any assets held
hereunder.
d. The Escrow Agent shall be entitled to compensation for
its services hereunder in accordance with Exhibit C, which is
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attached hereto and made a part hereof, to be paid by Buyer;
e. The Escrow Agent shall be under no obligation to invest
the Escrowed Funds until it has received a Form W-9 or W-8, as
applicable, from Buyer and each of the Sellers, regardless of
whether any party is exempt from reporting or withholding
requirements under the Internal Revenue Code of 1986, as amended.
f. The Escrow Agent shall be, and hereby is, jointly and
severally indemnified and saved harmless by Buyer and Sellers
from all losses, costs and expenses, including reasonable outside
counsel fees, which may be incurred by it as a result of its
acceptance of the Escrow Assets or arising from the performance
of its duties hereunder, unless the Escrow Agent shall have been
adjudged to have acted in bad faith or to have been negligent.
Such indemnification shall survive the resignation or removal of
the Escrow Agent or the termination of this Agreement, until
extinguished by any applicable statute of limitations;
g. In the event any dispute shall arise between Buyer and
Sellers with respect to the disposition or disbursement of any of
the assets held hereunder, the Escrow Agent shall be permitted to
institute an arbitration proceeding under Paragraph 17 and to
interplead all of the assets held hereunder into such arbitration
proceeding and thereafter shall be fully relieved from any and
all liability or obligation with respect to such interpleaded
assets. Buyer and Sellers further agree to pursue any redress or
recourse in connection with such a dispute, without making the
Escrow Agent a party to same.
h. The Escrow Agent shall only have those duties as are
specifically provided herein, which shall be deemed purely
ministerial in nature, and shall under no circumstance be deemed
a fiduciary for any of Buyer or Sellers. The Escrow Agent shall
not be responsible for the performance by Buyer or Sellers under
any other agreement, instrument or document between Buyer or
Sellers, in connection herewith, including, without limitation,
the Purchase Agreement. This Agreement sets forth all matters
pertinent to the escrow contemplated hereunder, and no additional
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obligations of the Escrow Agent shall be inferred from the terms
of this Agreement or any other Agreement. IN NO EVENT SHALL THE
ESCROW AGENT BE LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY: (i)
DAMAGES OR EXPENSES ARISING OUT OF THE SERVICES PROVIDED
HEREUNDER, OTHER THAN DAMAGES WHICH RESULT FROM THE ESCROW
AGENT'S FAILURE TO ACT IN ACCORDANCE WITH THE REASONABLE
COMMERCIAL STANDARDS OF THE BANKING BUSINESS IN FULFILLING ITS
OBLIGATIONS HEREUNDER OR ITS BREACH OF ITS OBLIGATIONS HEREUNDER;
OR (ii) SPECIAL OR CONSEQUENTIAL DAMAGES, EVEN IF THE ESCROW
AGENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
i. The Escrow Agent shall have the right at its sole
expense, but not the obligation, to consult with counsel of its
choice, and the Escrow Agent shall not be liable for action taken
by it or omitted to be taken in good faith, either in accordance
with the advice of such counsel or in accordance with any opinion
of counsel to either Buyer or Sellers addressed and delivered to
the Escrow Agent.
j. The Escrow Agent shall have the right to perform any of
its duties hereunder though agents, custodians or nominees.
k. The Escrow Agent shall not be required by any provision
of this Agreement to expend or risk its own funds in the
performance of its duties if it shall have reasonable grounds for
believing that repayment of such funds is not reasonably assured
to it.
Any banking association or corporation into which the Escrow
Agent (or substantially all of its corporate trust business) is
merged or converted or with which the Escrow Agent is
consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Escrow Agent shall be a
party, shall succeed to all the Escrow Agent's rights,
obligations and immunities hereunder without the execution or
filing of any paper or any further act on the part of any of
Buyer or Sellers, anything herein to the contrary
notwithstanding.
6. Resignation or Removal of Escrow Agent. The Escrow Agent
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may resign as such following the giving of 30 days' prior written
notice to the other Parties hereto. Similarly, the Escrow Agent
may be removed and replaced by the other Parties hereto following
the giving of 30 days' prior written notice to the Escrow Agent
by an Authorized Representative of each of Buyer and Sellers. In
either event, the duties of the Escrow Agent shall terminate 30
days after receipt of such notice (or as of such earlier date as
may be mutually agreeable), at which time the Escrow Agent shall
deliver the balance of the moneys or assets then in its
possession to a successor escrow agent as shall be appointed by
Buyer and Sellers in a written notice signed by an Authorized
Agent of both Buyer and Sellers and filed with the Escrow Agent.
If Buyer and Sellers are unable to agree upon a successor
escrow agent or fail to appoint a successor escrow agent prior to
the expiration of 30 days following receipt of the notice of
resignation or removal, any of the Parties hereto may petition
any court of competent jurisdiction for the appointment of a
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successor escrow agent or for other appropriate relief, and any
such resulting appointment shall be binding upon all Parties
hereto.
7. Termination of Escrow Agent's Liability. The Escrow Agent's
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responsibilities and liabilities hereunder shall terminate upon
payment by the Escrow Agent of all the Escrow Assets in
accordance with the provisions of this Agreement.
8. No Third-Party Beneficiaries. This Agreement will not
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confer any rights or remedies upon any person other than the Parties
and their respective successors and permitted assigns.
9. Entire Agreement. This Agreement, together with its
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Exhibits, constitutes the entire agreement among the Parties and
supersedes any prior understandings, agreements or representations
by or among the Parties, written or oral, to the extent they relate
in any way to the subject matter hereof.
10. Succession and Assignment. This Agreement will be binding
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upon and inure to the benefit of the Parties and their respective
heirs, executors, administrators, personal representatives,
successors and assigns.
11. Counterparts. This Agreement may be executed in any number
of ------------
counterparts, each of which shall be deemed an original and all
of which together shall be deemed to be one and the same
instrument. The execution of a counterpart of the signature page
to this Agreement will be deemed the execution of a counterpart
of this Agreement. The delivery of this Agreement may be made by
facsimile, and facsimile signatures shall be treated as original
signatures for all applicable purposes.
12. Headings, Terms. The section headings contained in this
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Agreement are inserted for convenience only and will not affect
in any way the meaning or interpretation of this Agreement.
Unless otherwise defined in this Agreement, terms used with
initial capital letters will have the meanings ascribed to them
in the Purchase Agreement, applicable to both singular and plural
forms, for all purposes of this Agreement. All pronouns (and any
variation) will be deemed to refer to the masculine, feminine or
neuter, as the identity of the person may require. The singular
or plural includes the other, as the context requires or permits.
The word "include" (and any variation) is used in an illustrative
sense rather than a limiting sense. The word "day" means a
calendar day.
13. Notices. All notices, requests, demands, claims and other
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communications hereunder will be in writing. Any notice,
request, demand, claim, payment or other communication hereunder
shall be deemed duly given if it is sent by registered or
certified mail, return receipt requested, postage prepaid, or by
courier, telecopy or facsimile, and addressed to the intended
recipient as set forth below:
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If to Sellers: Copy to:
Addressed to Sellers' Agent at: Olona & Associates, P.C.
0000 Xxxxx Xxxx Xxxxxx 000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxxxxx 00000 Xxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000 Telecopy: (000) 000-0000
Attention: G. Xxxxxx Xxxxx Attention: Xxxxxxx X. Xxxxx, Esq.
If to Buyer: Copy to:
ICG Communications, Inc. Xxxxxxx & Xxxxxx L.L.C.
000 Xxxxxxxxx Xxxxx Xxxx 000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxxxxx 00000 Xxxxxx, Xxxxxxxx 00000
Attn: H. Xxx Xxxxxx, Esq. Attention: Xxxxxx Xxxxx, Esq.
Executive Vice President
General Counsel and Secretary
Telecopy: (000) 000-0000 Telecopy: (000) 000-0000
If to Escrow Agent: Copy to:
Norwest Bank Colorado, N.A.
0000 Xxxxxxxx
Xxxxxx, Xxxxxxxx 00000
Attn: Corporate Trust and Escrow
Services Department
Notices will be deemed given seven days after mailing if sent by
certified mail, when delivered if sent by courier, and upon
receipt of confirmation by person or machine if sent by telecopy
or facsimile transmission. Any party may change the address to
which notices, requests, demands, claims and other communications
hereunder are to be delivered by giving the other Parties notice
in the manner herein set forth.
14. Governing Law. This Agreement will be governed by and
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construed in accordance with the domestic laws of the State of
Colorado without giving effect to any choice or conflict of law
provision or rule (whether of the State of Colorado or any other
jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Colorado.
15. Amendments and Waivers. No amendment of any provision of
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this Agreement shall be valid unless the same is in writing and
signed by the Parties. No waiver by any party of any default,
misrepresentation or breach of warranty or covenant hereunder,
whether intentional or not, will be deemed to extend to any prior
or subsequent default, misrepresentation or breach of warranty or
covenant hereunder or affect in any way any rights arising by
virtue of any prior or subsequent such occurrence, and no waiver
will be effective unless set forth in writing and signed by the
party against whom such waiver is asserted.
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16. Severability. Any term or provision of this Agreement that
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is invalid or unenforceable in any situation in any jurisdiction
shall not affect the validity or enforceability of the remaining
terms and provisions hereof or the validity or enforceability of
the offending term or provision in any other situation or in any
other jurisdiction.
17. Arbitration. Any disputes arising under or in connection
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with this Agreement, including, without limitation, those involving
claims for specific performance or other equitable relief, will
be submitted to binding arbitration under the Commercial
Arbitration Rules of the American Arbitration Association under
the authority of federal and state arbitration statutes, and
shall not be the subject of litigation in any forum. EACH PARTY,
BY SIGNING THIS AGREEMENT, VOLUNTARILY, KNOWINGLY AND
INTELLIGENTLY WAIVES ANY RIGHTS SUCH PARTY MAY OTHERWISE HAVE TO
SEEK REMEDIES IN COURT OR OTHER FORUMS, INCLUDING THE RIGHT TO
JURY TRIAL. The arbitration will be conducted only in Denver,
Colorado before a single arbitrator selected by the parties or,
if they are unable to agree on an arbitrator, before a panel of
three arbitrators, one selected by Buyer, one selected by
Sellers' Agent and the third selected by the other two
arbitrators. The arbitrators shall have full authority to order
specific performance and award damages and other relief available
under this Agreement or applicable law, but shall have no
authority to add to, detract from, change or amend the terms of
this Agreement or existing law. All arbitration proceedings,
including settlements and awards, shall be confidential. The
decision of the arbitrators will be final and binding, and
judgment on the award by the arbitrators may be entered in any
court of competent jurisdiction. THIS SUBMISSION AND AGREEMENT
TO ARBITRATE WILL BE SPECIFICALLY ENFORCEABLE. The arbitrator
will have no power to award punitive or exemplary damages, to
ignore or vary the terms of this Agreement or any Other Buyer
Agreement or Other Seller Agreement, and will be bound to apply
controlling law. The party who prevails on entry of the award of
judgment will be entitled to his or its costs and expenses,
including reasonable attorney's fees incurred in connection with
the arbitration. A judgment upon the award may be entered in any
court having jurisdiction.
18. Construction. The Parties have participated jointly in the
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negotiation and drafting of this Agreement. In the event an
ambiguity or question of intent or interpretation arises, this
Agreement will be construed as if drafted jointly by the Parties
and no presumption or burden of proof will arise favoring or
disfavoring any party by virtue of the authorship of any of the
provisions of this Agreement. The Parties intend that each
representation, warranty and covenant contained herein will have
independent significance. If any Party breaches any
representation, warranty or covenant contained herein in any
respect, the fact that there exists another representation,
warranty or covenant relating to the same subject matter
(regardless of the relative levels of specificity) which the
Party has not breached will not detract from or mitigate the fact
that the Party is in breach of the first representation, warranty
or covenant.
19. Incorporation. The Exhibits identified in this Agreement
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are incorporated herein by reference and made a part hereof.
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20. Sellers' Agent. Each Seller hereby authorizes and appoints
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Sellers' Agent as its, his or her exclusive agent and attorney-
in-fact to act on behalf of each of them with respect to all
matters which are the subject of this Agreement, including,
without limitation, (a) receiving or giving all notices,
instructions, other communications, consents or agreements that
may be necessary, required or given hereunder and (b) asserting,
settling, compromising, or defending, or determining not to
assert, settle, compromise or defend, (i) any claims which any
Seller or Escrow Agent may assert, or have the right to assert,
against Buyer or Escrow Agent, or (ii) any claims which Buyer or
Escrow Agent may assert, or have the right to assert, against any
Seller or Escrow Agent. Sellers' Agent hereby accepts such
authorization and appointment, provided that Sellers' Agent shall
have no duty or liability whatsoever to Buyer in his capacity at
Sellers' Agent. Upon the receipt of written evidence
satisfactory to Buyer to the effect that Sellers' Agent has been
substituted as agent of Sellers by reason of his death,
disability or resignation, Buyer shall be entitled to rely on
such substituted agent to the same extent as it was theretofore
entitled to rely upon Sellers' Agent with respect to the matters
covered by this Section 20. No Seller shall act with respect to
any of the matters which are the subject of this Agreement except
through Sellers' Agent. Sellers acknowledge and agree that Buyer
may deal exclusively with Sellers' Agent in respect of such
matters, that the enforceability of this Section 20 is material
to Buyer, and that Buyer has relied upon the enforceability of
this Section 20 in entering into this Agreement. In the event
Sellers' Agent declines to represent Sellers with respect to any
matter delegated to Sellers' Agent under this Agreement, Sellers
agree that the affirmative written determination those Sellers
holding more than 50 percent of the interests held by all Sellers
as set forth on Schedule 3.3 of the Purchase Agreement
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will constitute the action of all Sellers, and each Seller agrees
that in such event it will be bound by the determination of such
majority of Sellers and will not seek to challenge any such
determination in any forum.
21. Specific Performance. If any Party fails to perform its
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obligations under this Article, the other Parties shall be
entitled to specific performance in addition to any other rights
and remedies available at law or in equity.
22. Modification. This Agreement may not be amended, modified
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or supplemented except by a written instrument signed by each of the
Parties or their respective authorized officers or
representatives.
IN WITNESS WHEREOF, the Parties have executed this Agreement
as of the date first above written.
BUYER:
ICG COMMUNICATIONS, INC.
By:
Title:
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SELLERS:
G. Xxxxxx Xxxxx Trust
By:
G. Xxxxxx Xxxxx, Trustee
Xxxxxxx X. X. Fought
T & D CONSULTING, INC.
By:
Xxxxx Xxxxxxx
XXXXXX X. XXXX DAUGHTERS TRUST
By:
Xxxxxx X. Xxxxx, Trustee
By G. Xxxxxx Xxxxx as attorney in fact
ESCROW AGENT:
NORWEST BANK COLORADO, N.A.
By:
Its:
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EXHIBIT A
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LIST OF SELLERS
G. Xxxxxx Xxxxx Trust
Xxxxxx X. Xxxx Daughters Trust
Xxxxxxx R. K. Fought
T & D Consulting
EXHIBIT B
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CERTIFICATE OF INCUMBENCY
EXHIBIT C
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ESCROW AGENT FEES, CHARGES AND OTHER COMPENSATION
