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EXHIBIT NO. 10.9
ESCROW AGREEMENT
This Escrow Agreement (the "Agreement") is entered into as of
March 31, 1998 by and among The Planning Technologies Group, L.L.C., a Delaware
limited liability company ("Buyer"), Nextera Enterprises, L.L.C., a Delaware
limited liability company and the controlling member of Buyer ("Nextera"),
Nextera Enterprises Holdings, L.L.C., a Delaware limited liability company and
the controlling member of Nextera ("Holdings"), The Planning Technologies Group,
Inc., a Massachusetts corporation ("Seller"), the holders of Seller's common
stock listed on Exhibit A attached hereto (herein collectively referred to as
the "Shareholders" and individually as a "Shareholder") and Chase Manhattan
Trust Company, National Association, as escrow agent (the "Escrow Agent").
WHEREAS, pursuant to an Asset Purchase Agreement (the
"Purchase Agreement") dated as of March 31, 1998 by and among Buyer, Nextera,
Holdings, Seller and the Shareholders, Buyer is purchasing certain assets and
assuming certain liabilities from Seller;
WHEREAS, Seller and the Shareholders have agreed to indemnify
Buyer, Nextera and Holdings against certain breaches of the representations,
warranties and covenants made by Seller and the Shareholders in the Purchase
Agreement and against certain other matters as specified in Article XII of the
Purchase Agreement; and
WHEREAS, to secure payment of the Shareholders'
indemnification obligations, ONE MILLION SIX THOUSAND FIVE HUNDRED DOLLARS
($1,006,500) in cash (the "Escrowed Cash") and 32,100 Nextera Class A Units (the
"Escrowed Units") (together, the Escrowed Cash and the Escrowed Units and
additions to or earnings on the same, the "Escrow Deposit") are being deposited,
pursuant to Section 2.4 of the Purchase Agreement, in escrow to be held as
hereinafter provided.
NOW, THEREFORE, in consideration of the foregoing and the
mutual promises of the parties herein contained, and other good and valuable
consideration, receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
1. Establishment of Escrow: Investment. Buyer has herewith
deposited the Escrow Deposit with the Escrow Agent on the date of the Closing.
The Escrowed Units have been issued in the name of Seller, or at the direction
of Seller, the names of the Shareholders, and shall be accompanied by stock
powers or similar instruments duly signed in blank by Seller or the
Shareholders, as appropriate. The Escrow Deposit shall be held in escrow in an
account designated as The Planning Technologies Group Escrow Account or an
account having such other similar designation, subject to the terms and
conditions set forth herein. Xxxxx Xxxxxxxx shall serve as the exclusive
representative of Seller and the Shareholders with respect to the Escrow Deposit
and this Agreement (the "Escrow Representative"). If, for any reason, the Escrow
Representative shall be either unable or unwilling to serve, a successor Escrow
Representative shall be appointed by written consent of Seller and the
Shareholders and all references to the Escrow Representative shall be deemed to
include such successor. The Escrow Agent shall invest all cash held as part of
the Escrow Deposit only in such specific investments as
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Buyer and the Escrow Representative shall from time to time jointly direct in
writing to the Escrow Agent; provided, however, that such investments shall be
limited to:
(a) time and demand deposits, certificates of deposit and
acceptances, maturing within ninety (90) days from
the date of acquisition thereof, issued by state and
national banks located in the United States of
America, including the Escrow Agent or any of its
affiliates, and having capital, surplus and profits
aggregating at least one hundred million dollars
($100,000,000);
(b) securities or other obligations of, or guaranteed by,
the United States of America or any agency thereof
having maturities of not greater than one (1) year;
(c) commercial paper, maturing within ninety (90) days
from the date of acquisition thereof, rated A-1 or
P-1 by Standard & Poor's or Xxxxx'x Investors
Service;
(d) repurchase agreements fully collateralized by
obligations described in clauses 1(a), 1(b) or 1(c)
hereof;
(e) shares of investment companies registered under the
Investment Company Act of 1940 which invest in any
obligation described herein, or shares of the Vista
Prime Money Market Fund, including those for which
the Escrow Agent or any of its affiliates provide
services for a fee, whether as an investment advisor,
custodian, transfer agent, registrar, sponsor,
distributor, manager or otherwise.
Until further written notice, cash in the Escrow Deposit shall
be invested in Vista Prime. Unless otherwise directed in writing by the Escrow
Representative and Buyer, the Escrow Agent shall not invest all or any portion
of the Escrow Deposit in any investment if the maturity date of such investment
is later than the Termination Date (as defined below).
2. Amounts Earned on Escrow Deposit: Tax Matters. All amounts
earned, paid or distributed with respect to the Escrow Deposit (whether
interest, dividends, distributions from Nextera with respect to the Escrowed
Units or otherwise) shall become a part of the Escrow Deposit, shall be held
hereunder upon the same terms as the original Escrow Deposit and shall be
distributed together with the underlying portion of the original Escrow Deposit
pursuant to the terms of this Agreement. The parties agree that to the extent
permitted by applicable law, including Section 468B(g) of the Internal Revenue
Code of 1986, as amended, Seller or the Shareholders, as applicable, will
include all amounts earned on the Escrow Deposit in its/their gross income for
federal, state and local income tax (collectively, "income tax") purposes and
pay any income tax resulting therefrom.
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3. Claims Against Escrow Deposit.
(a) At any time or times prior to the Termination Date (as
hereinafter defined), Buyer may make claims against the Escrow Deposit for
indemnification pursuant to and in accordance with Article XII of the Purchase
Agreement. Buyer shall notify the Escrow Representative and the Escrow Agent in
writing promptly upon determination to make a claim and in any event prior to
the expiration of this Agreement of each such claim, including a summary of the
amount of and bases for such claim. If the Escrow Representative shall dispute
such claim, the Escrow Representative shall give written notice thereof to Buyer
and to the Escrow Agent within thirty (30) days after receipt of notice of
Buyer's claim, in which case the Escrow Agent shall continue to hold the Escrow
Deposit in accordance with the terms of this Agreement; otherwise, such claim
shall be deemed to have been acknowledged to be payable out of the Escrow
Deposit in the full amount thereof and the Escrow Agent shall use its best
efforts to pay such claim to Holdings within three (3) business days after
expiration of said thirty (30) day period or as soon thereafter as possible. If
the amount of the claim exceeds the value of the Escrow Deposit, the Escrow
Agent shall have no liability or responsibility for any deficiency.
(b) The Escrow Agent shall follow the procedure below in
making any payment in satisfaction of a claim against the Escrow Deposit:
(i) The Escrow Agent shall make such payment first
from the Escrowed Cash and any additions to or earnings on the Escrowed Cash
until all cash in the Escrow Deposit has been exhausted.
(ii) To the extent that any claim exceeds the amount
of Escrowed Cash or other cash in the Escrow Deposit, the Escrow Agent shall
make payment from the Escrowed Units in such number of Escrowed Units (computed
to the nearest whole unit) having a value equal to the value of the claim not
satisfied by cash payment. Any payment of Escrowed Units by the Escrow Agent to
Holdings shall be treated as a sale by Seller or the Shareholders, as
applicable, of such Escrowed Units for the value described herein. The value of
an Escrowed Unit for purposes of this Section shall be the fair market value of
such unit on the date of the claim as determined by the Board of Directors of
Nextera (the "Board"). The fair market value shall be determined in good faith
by the Board and the Board shall notify the Escrow Representative and Escrow
Agent in writing of its determination, together with an explanation of how the
value was determined and such supporting data as the Escrow Representative shall
reasonably require (the "Valuation Notice"). If the Escrow Representative
disputes the fair market value of the Escrowed Units as determined by the Board,
then the Escrow Representative shall so notify the Board and Escrow Agent in
writing (the "Appraisal Notice") within ten (10) business days of receipt of the
Valuation Notice. Within twenty (20) business days of the receipt of the
Appraisal Notice, the Board and the Escrow Representative shall each appoint a
professional appraiser to determine the fair market value of the Escrowed Units.
Each appraiser shall have at least five (5) years experience in appraising
companies similar to Nextera. The two appraisers shall within the succeeding
twenty (20) day period after their selection, attempt to reach agreement on the
fair market value. If the appraisers reach such agreement they shall so notify
the Escrow Agent and their agreement shall be final and binding on Buyer,
Nextera, Holdings, the Board, the Escrow Representative, Seller, the
Shareholders, and their affiliates. If
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the appraisers fail to agree, they shall within ten (10) days thereafter select
a third appraiser with the same qualification requirements, and the three (3)
appraisers shall establish the fair market value by majority vote within the
succeeding twenty (20) day period and shall notify the Escrow Agent of their
determination. Such determination of the fair market value shall be final and
binding on Buyer, Nextera, Holdings, the Board, the Escrow Representative,
Seller, the Shareholders, and their affiliates. In all events, the appraisers
selected shall be unaffiliated with and otherwise independent of Buyer, Nextera,
Holdings, the Board, the Escrow Representative, Seller, the Shareholders, and
their affiliates. If the fair market value of the Escrowed Units, as determined
by the appraisers, is less than or no more than five percent (5%) greater than
the value as determined by the Board, then the Shareholders shall pay all costs
associated with the appraisers, provided that the Board shall have provided
substantially similar information to the appraisers as that delivered to the
Escrow Representative in the Valuation Notice. If the fair market value as
determined by the appraisers is more than five percent (5%) greater than the
value as determined by the Board, then Buyer shall pay for all costs associated
with the appraisers. To the extent Seller has transferred its rights to the
Escrowed Units to the Shareholders, the Escrowed Units delivered to Holdings in
satisfaction of a claim shall be allocated among the Shareholders so as to
reduce each Shareholder's interest in the remaining Escrowed Units by an equal
proportion. In the event that the Escrow Agent must make payment with a number
of units less than or different from the number of units represented by a
certificate in the Escrow Deposit, the Escrow Agent shall surrender such
certificate to Nextera and Nextera shall issue to the Escrow Agent certificates
of Nextera Class A Units identical in form but for the number of units as
necessary to allow for proper payment of the claim so long as the number of
units of the new certificates plus the amount of units used to satisfy such
claim shall be equivalent to the total number of units covered by the
surrendered certificate.
4. Disputed Claims.
(a) If the Escrow Representative shall dispute an
indemnification claim of Buyer as above provided, the Escrow Agent shall set
aside a portion of the Escrow Deposit sufficient to pay said claim in full as
reasonably determined by Buyer in good faith (the "Set Aside Amount"). If Buyer
notifies the Escrow Agent in writing that it has made out-of-pocket expenditures
in connection with any such disputed claim, and provides paid receipts for such
expenditures, in addition to expenditures included in the Set Aside Amount, an
amount equal to such additional expenditures shall be added to the Set Aside
Amount. If the Set Aside Amount exceeds the amount of the Escrowed Cash, the
Escrow Agent shall set aside an appropriate number of Escrowed Units as
determined by the procedure described in Section 3(b)(ii) above.
(b) If the disputed indemnification claim has not been
resolved or compromised within sixty (60) days after the Escrow Representative
sends notice of dispute of the same, or in the event of a third-party claim or
suit, within fifteen (15) days after its resolution or compromise, said
indemnification claim shall be referred to the American Arbitration Association,
to be settled by binding arbitration in Boston, Massachusetts, in accordance
with the commercial arbitration rules of the Association. The fees and expenses
of the arbitrator shall be borne equally by Seller and the Shareholders on the
one hand and Buyer on the other. In no event shall the Escrow Agent be
responsible for any fee or expense of any party to any arbitration proceeding.
The determination of the arbitrator as to the amount, if any, of the
indemnification claim which is
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properly allowable shall be conclusive and binding upon the parties hereto and
judgment may be entered thereon in any court having jurisdiction thereof,
including, without limitation, any Superior Court in the Commonwealth of
Massachusetts. The arbitrator shall have the authority in its discretion to
award to the prevailing party reasonable costs and expenses including attorney's
fees and the cost of arbitration. The Escrow Agent shall use its best efforts to
make payment of such claim, as and to the extent allowed, to Buyer out of the
Set Aside Amount (or if insufficient, out of the Escrow Deposit) within three
(3) business days following the Escrow Agent's receipt of said determination or
as soon thereafter as possible.
(c) Notwithstanding Section 4(b), if a disputed
indemnification claim has not been resolved or compromised as of the Termination
Date (as hereinafter defined), and such claim does not involve a third-party
claim or suit, Buyer and the Escrow Representative shall continue to negotiate
in good faith a settlement of such claims for a period of ten (10) days after
the Termination Date. If, after the expiration of such ten-day period, such
indemnification claim still has not been resolved or compromised, such claim
shall be settled in accordance with the arbitration provisions set forth in
Section 4(b).
(d) It is understood and agreed that should any dispute arise
under this Section 4, the Escrow Agent, upon receipt of written notice of such
dispute or claim by the Escrow Representative, is authorized and directed to
retain in its possession without liability to anyone, the Set Aside Amount
relating to such dispute plus any expenditures of Buyer made pursuant to Section
4(a) until such dispute shall have been settled pursuant to this Section 4. The
Escrow Agent may, but shall be under no duty whatsoever to, institute or defend
any legal proceedings which relate to the Escrow Deposit.
5. Termination. This Agreement shall terminate on the date
that the Escrow Deposit is reduced to zero as the result of payments by the
Escrow Agent to Holdings in accordance with the provisions of Section 3 or
Section 4. If, however, the Escrow Deposit has not been reduced to zero as of
the date that is eighteen (18) months following the date of this Agreement (the
"Termination Date") and there are no outstanding indemnification claims on the
Termination Date, the Escrow Agent shall distribute the amount remaining in the
Escrow Deposit to the Seller or, to the extent Seller has transferred to the
Shareholders its rights to the Escrow Deposit, the Shareholders and after such
payment this Agreement shall terminate; otherwise this Agreement shall continue
in effect until all indemnification claims Buyer has made pursuant to Section 3
hereof on or prior to the Termination Date shall have been disposed of. As of
the Termination Date, an amount of the Escrow Deposit adequate to cover all
disputed and undisputed claims made by Buyer pursuant to Section 3 hereof, plus
an additional ten percent (10%) of any such amount to cover potential expenses
to be incurred by Buyer associated with such claims, will be held by the Escrow
Agent, and the Escrow Agent shall distribute on the Termination Date the
balance, if any, of the Escrow Deposit to Seller or, to the extent Seller has
transferred to the Shareholders its rights to the Escrow Deposit, the
Shareholders. At such time as all remaining indemnification claims hereunder
have been resolved and the Escrow Agent has received a written notice executed
by Buyer and the Escrow Representative, or notification of a determination of an
arbitrator pursuant to Section 4(b), to that effect and any amounts to be
distributed to Holdings in connection therewith have been so distributed, the
Escrow Agent shall
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distribute the remaining Escrow Deposit, if any, to Seller or, to the extent
Seller has transferred to the Shareholders its rights to the Escrow Deposit, the
Shareholders.
6. The Escrow Agent.
(a) Direction from Buyer and Escrow Representative.
Notwithstanding anything herein to the contrary, the Escrow Agent shall promptly
dispose of all or any part of the Escrow Deposit as directed by a writing signed
by Buyer and Escrow Representative.
(b) Reliance by Escrow Agent; Liability of Escrow Agent.
Except with respect to capitalized terms used herein and defined in the Purchase
Agreement, the Escrow Agent will not be subject to, or be obliged to recognize,
any other agreement between the parties hereto or directions or instructions not
specifically set forth as provided for herein. The Escrow Agent will not make
any payment or disbursement from or out of the Escrow Deposit that is not
expressly authorized pursuant to this Agreement. The Escrow Agent undertakes to
perform only such duties as are expressly set forth herein. The Escrow Agent may
rely and shall be protected in acting or refraining from acting upon any written
notice, instruction or request furnished to it hereunder and believed by it to
be genuine and to have been signed or presented by the proper party or parties.
The Escrow Agent shall be under no duty to inquire into or investigate the
validity, accuracy or content of any such document. The Escrow Agent shall have
no duty to solicit any payment which may be due it hereunder. The Escrow Agent
shall not be liable for any action taken or omitted by it in good faith unless a
court of competent jurisdiction determines that the Escrow Agent's gross
negligence and willful misconduct was the primary cause of any loss to Buyer,
Nextera, Holdings, Seller or the Shareholders. In the administration of the
Escrow Deposit hereunder, the Escrow Agent may execute any of its powers and
perform its duties hereunder directly or through agents or attorneys and may
consult with counsel, accountants and other skilled persons to be selected and
retained by it. The Escrow Agent shall not be liable for anything done, suffered
or omitted in good faith by it in accordance with the advice or opinion of any
such counsel, accountants or other skilled persons. Buyer, Nextera, Holdings,
Seller and the Shareholders jointly and severally hereby agree to indemnify and
hold the Escrow Agent and its directors, officers, agents and employees
(collectively, the "Indemnitees") harmless from and against any and all claims,
liabilities, losses, damages, fines, penalties, and expenses, including
out-of-pocket and incidental expenses and legal fees and expenses ("Losses")
that may be imposed on, incurred by, or asserted against the Indemnitees or any
of them for following any instructions or other directions upon which the Escrow
Agent is authorized to rely pursuant to the terms of this Agreement. In addition
to and not in limitation of the immediately preceding sentence, the Buyer,
Nextera, Holdings, Seller and the Shareholders also agree to indemnify and hold
the Indemnitees and each of them harmless from and against any and all Losses
that may be imposed on, incurred by, or asserted against the Indemnitees or any
of them in connection with or arising out of Escrow Agent's performance under
this Agreement, provided the Indemnitees have not acted with gross negligence or
engaged in willful misconduct. Anything in this Agreement to the contrary
notwithstanding, in no event shall the Escrow Agent be liable for special,
indirect or consequential loss or damage of any kind whatsoever (including but
not limited to lost profits). As between Buyer, Nextera and Holdings on the one
hand and Seller and the Shareholders on the other, each shall bear equally the
indemnification obligations set forth in this Section 6(b). The provisions of
this Section 6(b) shall survive the termination of this Agreement and the
resignation or removal of
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the Escrow Agent for any reason.
(c) Fees and Expenses of the Escrow Agent. All fees of the
Escrow Agent for its services hereunder, together with any expenses reasonably
incurred by the Escrow Agent in connection with this Agreement, shall be shared
equally by Buyer on the one hand and Seller and the Shareholders on the other.
The fees to be paid by Seller and the Shareholders shall be deducted from the
Escrow Deposit.
(d) Resignation and Removal of Escrow Agent. Successor
Escrow Agent.
(i) The Escrow Agent may resign from its duties
hereunder by giving each of the parties hereto not less than thirty (30) days
prior written notice of the effective date of such resignation (which effective
date shall be at least thirty (30) days after the date such notice is given). In
addition, the Escrow Agent may be removed and replaced on a date designated in a
written instrument signed by Buyer and the Escrow Representative and delivered
to the Escrow Agent. The parties hereto intend that a successor escrow agent
mutually acceptable to the Escrow Representative and Buyer will be appointed to
fulfill the duties of the Escrow Agent hereunder for the remaining term of this
Agreement in the event of the Escrow Agent's resignation or removal. Upon the
effective date of such resignation or removal, the Escrow Agent shall deliver
the property comprising the Escrow Deposit to such successor escrow agent,
together with an accounting of the investments held by it and all transactions
related to this Agreement, including any distributions made and such records
maintained by the Escrow Agent in connection with its duties hereunder and other
information with respect to the Escrow Deposit as such successor may reasonably
request. If on or before the effective date of such resignation or removal, a
successor escrow agent has not been appointed, the Escrow Agent will thereupon
deposit the Escrow Deposit into the registry of a court of competent
jurisdiction.
Upon written acknowledgment by a successor escrow
agent appointed in accordance with this Section 6(d)(i) of its agreement to
serve as escrow agent hereunder and the receipt of the property then comprising
the Escrow Deposit, the Escrow Agent shall be fully released and relieved of all
duties, responsibilities and obligations under this Agreement, except for those
arising under the last sentence of Section 6(b) of this Agreement, and such
successor escrow agent shall for all purposes hereof be the Escrow Agent.
(ii) Any corporation, association or other entity
into which the Escrow Agent may be converted or merged, or with which it may be
consolidated, or to which it may sell or otherwise transfer all or substantially
all of its corporate trust business, or any corporation, association or other
entity resulting from any such merger, conversion, consolidation, sale or other
transfer, shall, ipso facto, be and become successor Escrow Agent hereunder,
vested with all of the powers, discretions, immunities, privileges and all other
matters as was its predecessor, without the execution or filing of any
instrument or any further act on the part or any of the parties hereto, anything
herein to the contrary notwithstanding.
7. Voting of Escrowed Units. So long as any Escrowed Units are
retained by the Escrow Agent, Seller or, to the extent Seller has transferred to
the Shareholders its rights to
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the Escrowed Units, the Shareholders shall be entitled to exercise the voting
power, if any, with respect to in the Escrowed Units.
8. Governing Law. IT IS THE PARTIES' INTENT THAT THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL
LAWS OF THE COMMONWEALTH OF MASSACHUSETTS (WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW).
9. Counterparts. This Escrow Agreement may be executed in one
or more counterparts, all of which documents shall be considered one and the
same document.
10. Notices. Any notice or other communication required or
permitted hereunder shall be in writing and shall be deemed to have been given
when received, if personally delivered or sent by facsimile transmission, or
three (3) days after deposited in the U.S. mails for delivery by registered or
certified mail, return receipt requested, postage prepaid, addressed as follows:
TO BUYER: The Planning Technologies Group, L.L.C.
Xxx Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx, Xx.
Fax: (000) 000-0000
With a copy to: Xxxxxx & Xxxxxxx
000 X Xxxxxx, Xxxxx 0000
Xxx Xxxxx, XX 00000
Attention: Xxxxx X. Xxxx, Esq.
Fax: (000) 000-0000
With an additional copy to: Maron & Sandler
000 Xxxxxx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Fax: (000) 000-0000
TO NEXTERA: Nextera Enterprises, L.L.C.
Xxx Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx, Xx.
Fax: (000) 000-0000
With a copy to: Xxxxxx & Xxxxxxx
000 X Xxxxxx, Xxxxx 0000
Xxx Xxxxx, XX 00000
Attention: Xxxxx X. Xxxx, Esq.
Fax: (000) 000-0000
With an additional copy to: Maron & Sandler
000 Xxxxxx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
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Fax: (000) 000-0000
TO HOLDINGS: Nextera Enterprises Holdings, L.L.C.
Xxx Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx, Xx.
Fax: (000) 000-0000
With a copy to: Xxxxxx & Xxxxxxx
000 X Xxxxxx, Xxxxx 0000
Xxx Xxxxx, XX 00000
Attention: Xxxxx X. Xxxx, Esq.
Fax: (000) 000-0000
With an additional copy to: Maron & Sandler
000 Xxxxxx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Fax: (000) 000-0000
TO SELLER: The Planning Technologies Group, Inc.
00 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Attention: Xxxxx Xxxxxxxx
Fax: (000) 000-0000
With a copy to: Xxxxxx, Hall & Xxxxxxx
Exchange Place
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
TO ANY SHAREHOLDER: To the address last provided by such
Shareholder to the Company.
With a copy to: Xxxxxx, Xxxx & Xxxxxxx
Exchange Place
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
TO ESCROW AGENT: Chase Manhattan Trust Company, National
Association
Union Trust Building
000 Xxxxx Xxxxxx, Xxxx 000
Xxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx
Fax: (000) 000-0000
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Addresses may be changed by written notice given pursuant to
this Section. Any notice given hereunder may be given on behalf of any party by
his counsel or other authorized representatives.
11. Certification of Tax Identification Number. The parties
hereto agree to provide the Escrow Agent with a certified tax identification
number by signing and returning a Form W-9 (or Form W-8, in the case of non-U.S.
persons) to the Escrow Agent prior to the date on which any income earned on the
investment of the Escrow Deposit is credited to the Escrow Deposit. The parties
hereto understand that, in the event their tax identification numbers are not
certified to the Escrow Agent, the Internal Revenue Code, as amended from time
to time, may require withholding of a portion of any interest or other income
earned on the investment of the Escrow Deposit.
12. Force Majeure. Neither Buyer, Nextera, Holdings, Seller,
the Shareholders nor the Escrow Agent shall be responsible for delays or
failures in performance under this Agreement resulting from acts beyond its
control. Such acts shall include but not be limited to acts of God, strikes,
lockouts, riots, acts of war, epidemics, governmental regulations superimposed
after the fact, fire, communication line failures, computer viruses, power
failures, earthquakes or other disasters.
13. Modifications. This Agreement may not be altered or
modified without the express written consent of the parties hereto, provided
that the Escrow Representative shall be authorized to agree to any amendment,
modification or waiver on behalf of the Shareholders. No course of conduct shall
constitute a waiver of any of the terms and conditions of this Escrow Agreement,
unless such waiver is specified in writing, and then only to the extent so
specified. A waiver of any of the terms and conditions of this Escrow Agreement
on one occasion shall not constitute a waiver of the other terms of this Escrow
Agreement, or of such terms and conditions on any other occasion.
14. Reproduction of Documents. This Agreement and all
documents relating thereto, including, without limitation, (a) consents, waivers
and modifications which may hereafter be executed, and (b) certificates and
other information previously or hereafter furnished, may be reproduced by a
photographic, photostatic, microfilm, optical disk, micro-card, miniature
photographic or other similar process. The parties agree that any such
reproduction shall be admissible in evidence as the original itself in any
judicial or administrative proceeding, whether or not the original is in
existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
15. Obligations of Buyer. All obligations of Buyer hereunder
shall be joint and several obligations of Buyer, Nextera and Holdings.
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IN WITNESS WHEREOF, the parties have caused this Escrow
Agreement to be executed by their duly authorized representatives, as of the
date first written above.
BUYER:
THE PLANNING TECHNOLOGIES GROUP, L.L.C.
By: /s/ XXXXXXX X. XXXXXXXXX
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Treasurer
NEXTERA:
NEXTERA ENTERPRISES, L.L.C.
By: /s/ XXXXXXX X. XXXXXXXXX
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Treasurer
HOLDINGS:
NEXTERA ENTERPRISES HOLDINGS, L.L.C.
By: /s/ XXXXXXX X. XXXXXXXXX
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Treasurer
SELLER:
THE PLANNING TECHNOLOGIES GROUP, INC.
By: /s/ XXXXX XXXXXXXX
------------------------------------
Name: Xxxxx Xxxxxxxx
Title: President
Tax Identification Number:
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ESCROW AGENT:
CHASE MANHATTAN TRUST COMPANY,
NATIONAL ASSOCIATION, as Escrow Agent
By: /s/ XXXXX X. XXXXX
------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
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