EXHIBIT 10.14
INDEMNIFICATION ESCROW AGREEMENT
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This ESCROW AGREEMENT (the "Agreement") is made and entered into as of
December 18, 1998, by and among Xxxxxxx American Corporation (formerly known as
Monroe, Inc.), a Delaware corporation ("Buyer"), Xxxxxx X. Xxxxxx, Xx., an
individual (the "Stockholders' Representative"), State Street Bank and Trust
Company (the "Escrow Agent"), and the parties identified as the Xxxxxx
Stockholders on the signature pages hereto, with reference to the following
facts:
A. Pursuant to the terms and conditions of a Stock Purchase Agreement,
dated as of May 22, 1998, as amended as of November 16, 1998 (as so amended, the
"Purchase Agreement"), by and among Buyer, Xxxxxx-American Company, Inc., a
North Carolina corporation, Xxxxxx X. Xxxxxx, Xx., as representative, and the
Xxxxxx Stockholders, Buyer has agreed to acquire all of the issued and
outstanding capital stock of Xxxxxx-American Company, Inc. Capitalized terms
not otherwise defined herein have the meanings set forth in the Purchase
Agreement.
B. Under the terms of the Purchase Agreement, Buyer is entitled to
indemnification under certain circumstances as set forth in Section 10 of the
Purchase Agreement.
C. The purpose of this Agreement is to provide for the deposit into
escrow of cash, pursuant to Section 1.8 of the Purchase Agreement to secure, in
part, the indemnification obligations of the Xxxxxx Stockholders under Section
10 of the Purchase Agreement.
NOW, THEREFORE, based on the above premises and for good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties agree as follows:
1. Appointment of Escrow Agent and Stockholders' Representative;
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Indemnification.
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1.1 Escrow Agent. The Escrow Agent is hereby appointed as escrow
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agent for the purposes set forth herein, and the Escrow Agent hereby accepts
such appointment on the terms set forth herein.
1.2 Stockholders' Representative. The Stockholders' Representative
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is hereby appointed as agent and representative of the Xxxxxx Stockholders for
the purposes set forth herein, and the Stockholders' Representative accepts such
appointment on the terms set forth herein.
1.3 Indemnification. The Xxxxxx Stockholders have agreed to
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indemnify and hold harmless Buyer pursuant to Section 10 of the Purchase
Agreement. The Escrow Fund (as defined in Section 2.1 hereof) shall secure, in
part, the indemnification obligations of the Xxxxxx Stockholders in the manner
provided in this Agreement.
2. Escrow Fund.
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2.1 Escrow Fund. In accordance with Section 1.8 of the Purchase
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Agreement, on the date hereof, Buyer, on behalf of the Xxxxxx Stockholders, has
deposited with the Escrow Agent One Million Five Hundred and Fifty Thousand
Dollars ($1,550,000) to be held in a designated separate account of the Escrow
Agent (inclusive of any earnings on the same, the "Escrow Fund"). The Xxxxxx
Stockholders shall each contribute such amounts to the Escrow Fund as provided
in Schedule B hereto (each such Xxxxxx Stockholder's "Percentage Interest").
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2.2 Amounts Earned on Escrow Fund; Tax Matters. The Escrow Fund
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shall be invested from time to time in Eligible Investments (as defined in
Section 15) pursuant to (and as specified in) the written direction of the
Stockholders' Representative received by the Escrow Agent (which direction shall
include maturity terms selected by the Stockholders' Representative). The
Escrow Agent shall be entitled to presume that any maturity terms set forth in
an investment instruction from the Stockholders' Representative have been agreed
to by Buyer. In no instance shall the Escrow Agent have any liability for any
loss on any such investment. All amounts earned, paid or distributed with
respect to the Escrow Fund (whether interest, dividends or otherwise) shall
become a part of the Escrow Fund and shall be held hereunder upon the same terms
as the original Escrow Fund. The parties agree that (i) for tax reporting
purposes, and for any tax year, all interest or other income earned from the
investment of the Escrow Fund shall be allocable to the Xxxxxx Stockholders
according to their respective Percentage Interests and (ii) to the extent
permitted by applicable law, including Section 468B(g) of the Internal Revenue
Code of 1986, as amended, the Xxxxxx Stockholders will include all amounts
earned on the Escrow Fund in their gross income for federal, state and local
income tax (collectively, "income tax") purposes and pay any income tax
resulting therefrom. The parties also agree for income tax purposes to treat
all amounts distributed to the Xxxxxx Stockholders from the Escrow Fund as
payments of purchase price received by the Xxxxxx Stockholders on the date of
this Escrow Agreement. Each Xxxxxx Stockholder agrees to provide the Escrow
Agent with a certified tax identification number by signing and returning a Form
W-9 to the Escrow Agent prior to the date on which interest or other income is
first earned by the Escrow Fund. The Xxxxxx Stockholders understand that, in
the event their tax identification numbers are not certified to the Escrow Agent
prior to the date on which interest or other income is first earned on the
Escrow Fund, 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 Fund.
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2.3 [Intentionally Omitted.]
3. Application of Escrow Fund. The Escrow Fund shall be held in escrow
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under the terms of this Agreement and released by the Escrow Agent upon the
following terms.
3.1 Joint Instructions. Upon joint written notice and instruction
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from Buyer and the Stockholders' Representative that the Escrow Fund, or any
portion thereof, should be disbursed, the Escrow Agent shall make such
disbursement in accordance with the directions set forth in such joint written
notice and instruction.
3.2 Indemnification Claim. If at any time, or from time to time, on
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or before the first (1st) anniversary of the Closing Date, as defined in the
Purchase Agreement (the "Termination Date"), Buyer delivers to the Escrow Agent
written notice (an "Indemnification Notice") and a copy thereof to the
Stockholders' Representative pursuant to Section 4.1 hereof asserting that Buyer
is entitled to indemnification under Section 10 of the Purchase Agreement, which
Indemnification Notice shall state the basis and amount of such indemnification
claim, then the Escrow Agent shall disburse to Buyer from the Escrow Fund, on
the thirtieth (30th) day following receipt by the Escrow Agent of the
Indemnification Notice, an amount equal to the value of such claim (the "Escrow
Payout"). Notwithstanding the foregoing, if the Escrow Agent receives written
notice from the Stockholders' Representative prior to such thirtieth (30th) day
that a dispute exists with respect to such indemnification claim (a "Dispute
Notice"), which Dispute Notice shall state the basis of such dispute and the
portion of the Escrow Payout, if any, as to which no dispute exists, the Escrow
Agent shall continue to hold the Escrow Payout that is in dispute (but shall
disburse to Buyer the portion of the Escrow Payout as to which no dispute
exists) until directed otherwise pursuant to Section 3.4 hereof.
3.3 [Intentionally Omitted.]
3.4 Dispute of Indemnification Claim. If the Escrow Agent timely
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receives a Dispute Notice, the Escrow Agent shall retain the Escrow Payout in
dispute until the first to occur of the following:
3.4.1 the date on which the Escrow Agent receives joint written
instructions from Buyer and the Stockholders' Representative, in which case the
Escrow Agent shall disburse the Escrow Payout (or applicable portions thereof)
as set forth in such joint written instructions; or
3.4.2 the date on which the Escrow Agent receives a final order of
a court of competent jurisdiction (the time for all appeals therefrom having
expired) (the "Indemnity Award") resolving the dispute, in which case the Escrow
Agent shall disburse the Escrow Payout (or applicable portions thereof) as set
forth in the Indemnity Award.
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3.4.3 [Intentionally Omitted.]
3.5 Automatic Disbursement on Termination Date. If, on the
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Termination Date, there is any amount of the Escrow Fund remaining undisbursed
and not subject to an Indemnification Notice or Dispute Notice received by the
Escrow Agent, the Escrow Agent shall disburse such Escrow Fund to the Xxxxxx
Stockholders in proportion to their Percentage Interests in the Escrow Fund
(rounded to the nearest whole cent).
3.6 [Intentionally Omitted.]
4. Communications with Stockholders' Representative.
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4.1 Notice of Indemnification Claims. Buyer shall provide a copy of
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any Indemnification Notice to the Stockholders' Representative concurrently with
the delivery thereof to the Escrow Agent.
4.2 Additional Information Regarding Indemnification Claims. Within
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five (5) business days after receiving a request therefor from the Stockholders'
Representative, Buyer shall furnish the Stockholders' Representative with such
additional information relating to any claim made in an Indemnification Notice
as he may reasonably request from time to time for the purpose of evaluating the
merits of the claim for indemnification.
5. Scope of Undertaking. The Escrow Agent shall have no responsibility
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or obligation of any kind in connection with this Agreement and the Escrow Fund,
and shall not be required to deliver the same or any part thereof or take any
action with respect to any matters that might arise in connection therewith,
other than to receive, hold, and make delivery of the Escrow Fund as herein
expressly provided or by reason of a judgment or order of a court of competent
jurisdiction.
6. Knowledge and Sufficiency of Documents. The Escrow Agent shall not be
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bound by or have any responsibility with respect to compliance with any
agreement between any of the other parties hereto, including the Purchase
Agreement, irrespective of whether the Escrow Agent has knowledge of the
existence of any such agreement or terms and provisions thereof, the Escrow
Agent's only duty, liability, and responsibility being to receive, hold and
deliver the Escrow Fund as herein provided. The Escrow Agent shall not be
required in any way to determine the validity or sufficiency, whether in form or
in substance, of the Escrow Fund or the validity, sufficiency, genuineness or
accuracy of any instrument, document, certificate, statement or notice referred
to in this Agreement or contemplated hereby, or the adequacy of any security
interest created hereunder; or the identity or authority of the persons
executing the same, and it shall be sufficient if any writing purporting to be
such instrument, document, certificate, statement or notice is delivered to the
Escrow Agent and purports on its
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face to be correct in form and signed or otherwise executed by the party or
parties required to sign or execute the same under this Agreement.
7. Right of Interpleader. Should any controversy arise between Buyer, on
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one hand, and the Stockholders' Representative, on the other, or any other
person, firm or entity, with respect to this Agreement, the Escrow Fund or any
part thereof, or the right of any party or other person to receive the Escrow
Fund or should such parties fail to designate another Escrow Agent as provided
in Section 12 hereof, or if the Escrow Agent should be in doubt as to what
action to take, the Escrow Agent shall have the right (but not the obligation)
to (i) withhold delivery of the Escrow Fund until the controversy is resolved as
provided in Section 3.4 hereof or (ii) institute a xxxx of interpleader in any
court of competent jurisdiction to determine the rights of the parties hereto
(the right of the Escrow Agent to institute such xxxx of interpleader, however,
shall not be deemed to modify the manner in which the Escrow Agent is entitled
to make disbursements of the Escrow Fund as hereinabove set forth, other than to
tender the Escrow Fund into the registry of such court). Should a xxxx of
interpleader be instituted, or should the Escrow Agent be threatened with
litigation or become involved in litigation in any manner whatsoever on account
of this Agreement or the Escrow Fund, then as between themselves and the Escrow
Agent, Buyer and the Xxxxxx Stockholders, jointly and severally, hereby bind and
obligate themselves, their successors, heirs, executors and assigns to pay the
Escrow Agent its reasonable attorneys' fees and any and all other disbursements,
expenses, losses, costs and damages of the Escrow Agent in connection with or
resulting from such threatened or actual litigation. Notwithstanding the
foregoing, as between themselves, Buyer and the Xxxxxx Stockholders shall each
pay one-half of all amounts payable to the Escrow Agent pursuant to this
Sectio 7.
8. Scope of Duties and Errors in Judgment. It is expressly understood
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and agreed that the Escrow Agent shall be under no duty or obligation to give
any notice, or to do or to omit the doing of any action or anything with respect
to the Escrow Fund, except to hold the same and to make disbursements in
accordance with the terms of this Agreement. Without limiting the generality of
the foregoing, it is acknowledged and agreed that (i) no implied duties shall be
read into this Agreement on the part of the Escrow Agent, and (ii) the Escrow
Agent shall not be obligated to take any legal or remedial action which might in
its judgment involve it in any expense or liability for which it has not been
furnished acceptable indemnification. The Escrow Agent, its directors, officers
and employees shall not be liable for any error in judgment or any act or steps
taken or permitted to be taken in good faith, or for any mistake of law or fact,
or for anything it may do or refrain from doing in connection herewith, except
for its own willful misconduct or gross negligence.
9. Indemnity. As between themselves and the Escrow Agent, Buyer and the
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Xxxxxx Stockholders, jointly and severally, agree to indemnify the Escrow Agent
against and hold the Escrow Agent and its officers, employees and directors
harmless from any and all losses, costs, damages, expenses, claims, and
attorney's fees and expenses suffered or incurred
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by the Escrow Agent as a result of, in connection with or arising from or out of
the acts or omissions of the Escrow Agent in performance of or pursuant to this
Agreement, except such acts or omissions as may result from the Escrow Agent's
willful misconduct or gross negligence. In no event shall the Escrow Agent be
liable for indirect, punitive, special or consequential damages.
Buyer and the Xxxxxx Stockholders, jointly and severally, agree to assume
any and all obligations imposed now or hereafter by any applicable tax law with
respect to the payment of Escrow Funds under this Agreement, and to indemnify
and hold the Escrow Agent harmless from and against any taxes, additions for
late payment, interest, penalties and other expenses, that may be assessed
against the Escrow Agent in any such distribution or other activities under this
Agreement. Buyer and the Stockholders' Representative undertake to instruct the
Escrow Agent in writing with respect to the Escrow Agent's responsibility for
withholding and other taxes, assessments, or other governmental charges,
certifications and governmental reporting in connection with its acting as
Escrow Agent under this Agreement. Buyer and the Xxxxxx Stockholders, jointly
and severally, agree to indemnify and hold the Escrow Agent harmless from any
liability on account of taxes, assessments or other governmental charges,
including without limitation the withholding or deduction or the failure to
withhold or deduct the same, and any liability for failure to obtain proper
certifications or to properly report to governmental authorities, to which the
Escrow Agent may be or become subject in connection with or which arises out of
this Agreement, including costs and expenses (including reasonable attorneys'
fees and expenses), interest and penalties.
Notwithstanding the foregoing, as between themselves, Buyer and the Xxxxxx
Stockholders shall each pay one-half of all amounts payable to the Escrow Agent
pursuant to this Section 9.
10. Consultation with Legal Counsel. The Escrow Agent may consult with
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its in-house counsel or other counsel satisfactory to it in respect to questions
relating to its duties or responsibilities hereunder or otherwise in connection
herewith and shall not be liable for any action taken, suffered, or omitted by
the Escrow Agent in good faith upon the advice of such counsel. The Escrow
Agent may act through its officers, employees, agents and attorneys.
11. Reimbursement of Expenses of the Escrow Agent. The Escrow Agent shall
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be entitled to reimbursement from Buyer and the Xxxxxx Stockholders of all its
reasonable costs and expenses, including reasonable fees and expenses of legal
counsel incurred by it in connection with the preparation, operating,
administration and enforcement of this Agreement. The Escrow Agent shall be
entitled to reimbursement on demand for all expenses incurred in connection with
the administration of this 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 claim by any party hereunder.
Notwithstanding the foregoing, as between themselves, Buyer and the Xxxxxx
Stockholders shall each pay one-half of all amounts payable to the Escrow Agent
pursuant to this Section 11.
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12. Resignation. The Escrow Agent may resign upon 10 days' prior written
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notice to Buyer and the Stockholders' Representative, and upon written
instruction to Buyer and the Stockholders' Representative, the Escrow Agent
shall deliver the Escrow Fund to any designated substitute Escrow Agent mutually
agreeable to such parties. If Buyer and the Stockholders' Representative fail
to designate a substitute Escrow Agent within 10 days, the Escrow Agent, in its
sole discretion and its sole option, either may (i) continue to hold the Escrow
Fund or (ii) institute a xxxx of interpleader as contemplated by Section 7
hereof.
13. Compensation. Buyer covenants and agrees to pay to the Escrow Agent
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the fee determined by the Escrow Agent, from time to time, to be applicable to
this escrow and bear all costs and expenses incurred by the Escrow Agent in
connection therewith. The Escrow Agent's fees, as in effect on the date hereof,
are attached hereto as Schedule A.
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14. Responsibilities of the Stockholders' Representative.
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14.1 General. The Stockholders' Representative has been designated by
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the Xxxxxx Stockholders to represent the Xxxxxx Stockholders with respect to the
Escrow Fund pursuant to the terms of this Agreement. The duties of the
Stockholders' Representative hereunder shall be limited to the observance of the
express provisions of this Agreement. The Stockholders' Representative shall
not be subject to, or be obliged to recognize, any other agreement between the
parties hereto or directions or instructions not specifically set forth or
provided for herein or in the Purchase Agreement.
14.2 Reimbursement of Expenses of the Stockholders' Representative.
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The Xxxxxx Stockholders shall reimburse the Stockholders' Representative for
reasonable out-of-pocket expenses incurred by the Stockholders' Representative
in the performance of his duties hereunder. During the period of this
Agreement, the reimbursement provided under this Section 14.2 shall be from
sources of funds other than the Escrow Fund.
14.3 Duties. The Xxxxxx Stockholders hereby authorize the
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Stockholders' Representative to take all action necessary in connection with the
implementation of this Agreement on behalf of the Xxxxxx Stockholders,
including, without limitation, giving and receiving all notices required to be
given under this Agreement, settling any dispute arising hereunder and executing
all such documents as the Stockholders' Representative shall deem necessary or
appropriate in connection with the transactions contemplated by this Agreement.
All decisions and actions by the Stockholders' Representative shall be binding
upon all of the Xxxxxx Stockholders, and no Xxxxxx Stockholder shall have the
right to object, dissent, protest or otherwise contest the same.
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14.4 Reliance. By their execution of this Agreement, the Xxxxxx
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Stockholders agree that (i) Buyer and the Escrow Agent shall be able to rely
conclusively on the instructions and decisions of the Stockholders'
Representative as to any actions required or permitted to be taken by the Xxxxxx
Stockholders or the Stockholders' Representative hereunder, and no party hereto
shall have any cause of action against any other for any action taken in
reliance upon the instructions or decisions of the Stockholders' Representative,
(ii) all actions, decisions and instructions of the Stockholders' Representative
shall be conclusive and binding upon all of the Xxxxxx Stockholders and no
Xxxxxx Stockholder shall have any cause of action against the Stockholders'
Representative or any other person for any action taken, decision made or
instruction given by the Stockholders' Representative under this Agreement,
except for gross negligence, breach of fiduciary duties owed to the Xxxxxx
Stockholders, fraud or willful breach of this Agreement by the Stockholders'
Representative and (iii) the provisions of this Section 14 are independent and
severable, shall constitute an irrevocable power of attorney, coupled with an
interest and surviving death, granted by the Xxxxxx Stockholders to the
Stockholders' Representative and shall be binding upon the executors, heirs,
legal representatives and successors of each Xxxxxx Stockholder.
15. Investment. Subject to Section 2.2 of this Agreement, the available
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uninvested portion of the Escrow Fund shall be invested (and reinvested, as the
case may be) from time to time by the Escrow Agent in any of the following
investments (collectively, "Eligible Investments"):
(i) Short term obligations issued or guaranteed by The United States
of America or any agency or instrumentality thereof; or
(ii) Certificates of deposit of or interest bearing accounts with
national banks or corporations endowed with trust powers, including the
Escrow Agent, having capital and surplus in excess of $100,000,000; or
(iii) Insured Money Market Account short term investments with
national banks or corporations endowed with trust powers, including Escrow
Agent, having capital and surplus in excess of $100,000,000; or
(iv) Corporate bond funds with a rating of at least A+ or the
equivalent thereof by Standard & Poor's Corporation, at least A+ or thereof
by Xxxxx'x Investors Service, Inc. or an equivalent rating by another
nationally recognized rating agency.
Investments pursuant to such investment instructions described above shall
in all instances be subject to availability (including any time-of-day
requirements). In no instance shall the Escrow Agent have any obligation to
provide investment advice of any kind. The Escrow Agent shall not be required
to invest any funds held hereunder except as expressly
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provided in written instructions received from the Stockholders' Representative
pursuant to Section 2 hereof, and shall not be obligated to pay interest on
uninvested funds. All amounts received by the Escrow Agent (and any credits to
the Escrow Account) shall be conditional upon collection (and actual receipt by
the Escrow Agent of final payment). In no event shall the Escrow Agent have any
obligation to advance funds.
The Escrow Agent may be authorized at all times and from time to time to
liquidate any investment of the Escrow Fund as may be necessary to provide
available cash to make any release, disbursement or payment called for under the
terms of this Agreement. The Escrow Agent shall have no responsibility or
liability for any losses resulting from liquidation of the Escrow Fund (such as
liquidation prior to maturity).
16. Change in the Stockholders' Representative. In the event that the
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Stockholders' Representative dies, become legally incapacitated or resigns from
such position, Xxxxxxx X. Xxxxxxxx shall fill such vacancy and shall be deemed
to be the Stockholders' Representative for all purposes of this Agreement;
however, no change in the Stockholders' Representative shall be effective until
Buyer is given notice of such change by the Xxxxxx Stockholders.
17. Confidentiality. All of the information provided by the parties to
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this Agreement pursuant to this Agreement shall be deemed "Confidential
Information" except to the extent that such information (i) was known to the
receiving party prior to its receipt from the disclosing party, (ii) is or
becomes part of the public domain through no fault of any party hereto or (iii)
is disclosed to a party hereto by a third party that is legally free to disclose
such information. Each of the parties to this Agreement agrees that, without
the express written consent of the other parties hereto, it will (i) not use the
Confidential Information for any purpose except as required to discharge its
responsibilities under this Agreement; (ii) use reasonable efforts to prevent
the disclosure or other dissemination of the Confidential Information in its
possession to any third party; and (iii) upon discharging its responsibilities
under this Agreement, return or destroy any document in its possession
containing any Confidential Information supplied by the other parties to this
Agreement.
18. Miscellaneous.
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18.1 Complete Agreement. This Agreement and any documents referred to
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herein (including, without limitation, the Purchase Agreement) or executed
contemporaneously herewith constitute the parties' entire agreement with respect
to the subject matter hereof and supersede all agreements, representations,
warranties, statements, promises and understandings, whether oral or written,
with respect to the subject matter hereof. This Agreement shall be binding upon
the respective parties hereto and their heirs, executors, successors and
assigns.
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18.2 Amendments and Waivers. This Agreement may be amended, modified
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and supplemented, and compliance with any provision hereof may be waived, only
by a writing signed by Buyer, the Escrow Agent and the Stockholders'
Representative.
18.3 Assignment. This Agreement shall be binding upon and inure to
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the benefit of Buyer, the Escrow Agent, the Xxxxxx Stockholders and the
Stockholders' Representative and their respective successors and permitted
assigns. Except as expressly provided in this Agreement, none of the parties
may assign any of his or its rights or obligations under this Agreement without
the prior written consent of the other parties; provided, however, that Buyer
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may assign its rights under this Agreement in connection with a merger,
consolidation or sale of substantially all of the assets of Buyer.
18.4 Waivers Strictly Construed. With regard to any power, remedy or
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right provided herein or otherwise available to any party hereunder (a) no
waiver or extension of time shall be effective unless expressly contained in a
writing signed by the waiving party; and (b) no alteration, modification or
impairment shall be implied by reason of any previous waiver, extension of time,
delay or omission in exercise, or other indulgence.
18.5 Severability. In case any one or more of the provisions
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contained in this Agreement shall, for any reason, be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Agreement, and
this Agreement shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein.
18.6 Termination. Upon the final distribution of the Escrow Fund
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pursuant to Section 3 hereof, this Agreement shall terminate. Anything
contained herein to the contrary notwithstanding, the provisions of Sections 7,
9 and 17 shall remain in full force and effect following the termination of this
Agreement.
18.7 Notices. All notices under this Agreement will be in writing and
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will be delivered by personal service or facsimile or certified mail (or, if
certified mail is not available, then by first class mail), postage prepaid, to
such address as may be designated from time to time by the relevant party, and
which will initially be as set forth below. Copies of all notices shall be
given to Buyer, the Stockholders' Representative and the Escrow Agent; provided,
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however, that the failure to give copies of such notice shall not render the
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notice invalid or unenforceable. Any notice sent by certified mail will be
deemed to have been given three (3) days after the date on which it is mailed.
Any notice transmitted by facsimile will be deemed given upon confirmation of
receipt. All other notices will be deemed given when received. No objection
may be made to the manner of delivery of any notice actually received in writing
by an authorized agent of a party. Notices will be addressed as follows or to
such other address as the party to whom the same is directed will have specified
in conformity with the foregoing:
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(a) If to Buyer:
Xxxxxxx American Corporation
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: President
Facsimile: (000) 000-0000
With a copy to:
Xxxxxxx, Procter & Xxxx LLP
Exchange Place
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx, Xx., Esq.
Facsimile: (000) 000-0000
(b) If to the Stockholders' Representative:
Xxxxxx X. Xxxxxx, Xx.
0000 Xxxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
With a copy to:
Xxxxxxxx, Xxxxxxx & Xxxx, P.A.
000 Xxxx Xxxxxxxx Xxxxxx (28202)
Xxxx Xxxxxx Xxx 00000
Xxxxxxxxx, XX 00000
Attn: X. Xxxxxxxx Xxxxxxxx, Esq.
(c) If to the Escrow Agent:
State Street Bank and Trust Company
Financial Markets Group
Corporate Trust
Attn: Xxxxxx Cash Escrow Account
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
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With a copy to:
Peabody & Xxxxxx LLP
00 Xxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
18.8 Governing Law; Consent to Jurisdiction and Service. The rights
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and liabilities of the parties under this Agreement shall be governed by the
laws of The Commonwealth of Massachusetts, regardless of the choice of laws
provisions of such state or any other jurisdiction. Buyer, each Xxxxxx
Stockholder and the Stockholders' Representative hereby absolutely and
irrevocably consents and submits to the jurisdiction of the courts in The
Commonwealth of Massachusetts and of any Federal court located in said
Commonwealth in connection with any actions or proceedings brought against
Buyer, the Xxxxxx Stockholders and/or the Stockholders' Representative arising
out of or relating to this Agreement. In any such action or process, Buyer,
each Xxxxxx Stockholder and the Stockholders' Representative hereby absolutely
and irrevocably waive personal service of any summons, complaint, declaration or
other process and hereby absolutely and irrevocably agree that the service
thereof may be made by certified or registered first-class mail directed to
Buyer and the Stockholders' Representative, as the case may be, at their
respective addresses in accordance with Section 18.7 hereof.
18.9 Headings. The headings in this Agreement are inserted only as a
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matter of convenience, and in no way define, limit, or extend or interpret the
scope of this Agreement or of any particular Section.
18.10 Force Majeure. Neither Buyer, the Stockholders' Representative
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nor the Escrow Agent shall be responsible for delays or failures in performance
resulting from acts beyond their 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.
18.11 Reproduction of Documents. This Agreement and all documents
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relating hereto, 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 any
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
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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.
18.12 Counterparts. This Agreement may be executed in counterparts,
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each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
[Remainder of page intentionally left blank]
13
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, as of the day and year first above written.
XXXXXXX AMERICAN CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Xxxxxx X. Xxxxxxx
President
STATE STREET BANK AND TRUST COMPANY,
as escrow agent
By: /s/ Xxxxxx Xxxxxxxxx
---------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Assistant Vice President
/s/ Xxxxxx X. Xxxxxx, Xx.
---------------------------------
Xxxxxx X. Xxxxxx, Xx., as Stockholders'
Representative
XXXXXX STOCKHOLDERS:
/s/ Xxxx X. Xxxxx, Xx.
---------------------------------
Xxxx X. Xxxxx, Xx.
/s/ Xxxxx X. Xxxxxxxxxx
---------------------------------
Xxxxx X. Xxxxxxxxxx
/s/ Xxxxx X. Xxxxxx
---------------------------------
Xxxxx X. Xxxxxx
14
/s/ Xxxxxx X. Xxxxxxx
---------------------------------
Xxxxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxxx
---------------------------------
Xxxxxxx X. Xxxxxxxx
/s/ E. Xxx Xxxxxxx
---------------------------------
E. Xxx Xxxxxxx
/s/ Xxxxxx X. Xxxxxxxxx, Xx.
---------------------------------
Xxxxxx X. Xxxxxxxxx, Xx.
/s/ Xxxxxx X. Xxxxxxxxx, Xx.
---------------------------------
Xxxxxx X. Xxxxxxxxx, Xx.
/s/ Xxxxxx X. Xxxxxx, Xx.
---------------------------------
Xxxxxx X. Xxxxxx, Xx.
/s/ Xxxxxx X. Xxxxxx, III.
---------------------------------
Xxxxxx X. Xxxxxx, III
15
