Exhibit 10(b)
* Confidential treatment has been granted for certain portions of this
exhibit. Omitted portions have been filed separately with the Commission.
ESCROW AGREEMENT, dated as
of May 27, 1999, among GHS, INC., a
Delaware corporation ("PARENT"),
Debbie Dworkin (the "STOCKHOLDER"
and together with Parent referred to
herein as "INTERESTED PARTIES") and
State Street Bank and Trust Company,
in its capacity as Escrow Agent
hereunder (the "ESCROW AGENT", which
term shall also include any
successor escrow agent appointed in
accordance with Section 9(d)
hereof).
Reference is made to the Agreement and Plan of Reorganization
dated as of the date hereof (the "REORGANIZATION AGREEMENT"), among Parent,
Concept Acquisition Corporation, a Delaware corporation and a wholly-owned
subsidiary of Parent ("ACQUISITION SUB"), Concept Development, Inc., a Delaware
corporation (the "COMPANY"), the Stockholder and William Zanker (together with
the Stockholder, the "FOUNDERS") providing for, among other things, the merger
(the "MERGER") of Acquisition Sub with and into the Company, with the Company
surviving the Merger as a wholly-owned subsidiary of Parent and the Stockholder
is receiving shares of preferred stock of Parent ("PARENT PREFERRED STOCK") in
exchange for shares of capital stock of the Company, in the manner provided in
the Reorganization Agreement and the Agreement of Merger. As used herein, the
term "Reorganization Agreement" shall be deemed to mean and include the
Reorganization Agreement and the Agreement of Merger executed and delivered in
connection therewith.
Reference is also made to the Repurchase Agreement dated as of
the date hereof (the "REPURCHASE AGREEMENT") between Parent and the Stockholder
providing for the repurchase by Parent of the Parent Preferred Stock in order to
provide an incentive to William Zanker, the Stockholder's husband, to exercise
his best efforts on behalf of Parent or any subsidiaries or affiliates of
Parent.
This Agreement is designed to implement the provisions of the
Reorganization Agreement and the Repurchase Agreement pursuant to which Parent,
on behalf of the Stockholder, is depositing with the Escrow Agent that number of
shares of Parent Preferred Stock listed on SCHEDULE I hereto issued in the
Merger to the Stockholder as security for the satisfaction of (i) the
indemnification obligations of the Stockholder pursuant to Article VIII of the
Reorganization Agreement and (ii) the repurchase obligations of the Stockholder
pursuant to the Repurchase Agreement.
NOW, THEREFORE, in consideration of the premises and the
representations and warranties and agreements contained herein, the parties
hereto agree as follows:
1. DEFINITIONS. As used herein the following capitalized terms shall have
the following meanings:
(a) "ESCROW SHARES" shall mean the Parent Common Stock and the Parent
Preferred Stock held by the Escrow Agent hereunder.
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(b) "INDEMNIFIED PERSONs" shall mean and include Parent, Acquisition
Sub and the Company and their respective affiliates, successors and assigns, and
the respective officers and directors of each of the foregoing.
(c) "INDEMNITY ESCROW SHARES" shall mean 5,000 (of the total of 50,000)
shares of Parent Preferred Stock issued to the Stockholder pursuant to the
Reorganization Agreement (including, without limitation, any shares issued
pursuant to any stock dividend, stock split, reverse stock split, combination or
reclassification thereof), and any shares of common stock of Parent ("PARENT
COMMON STOCK") issued upon conversion thereof (including, without limitation,
any shares issued pursuant to any stock dividend, stock split, reverse stock
split, combination or reclassification thereof).
(d) "REPURCHASE ESCROW SHARES" shall mean 50,000 shares of Parent
Preferred Stock issued to the Stockholder pursuant to the Reorganization
Agreement (including, without limitation, any shares issued pursuant to any
conversion, stock dividend, stock split, reverse stock split, combination or
reclassification thereof), and any shares of Parent Common Stock issued upon
conversion thereof (including, without limitation, any shares issued pursuant to
any conversion, stock dividend, stock split, reverse stock split, combination or
reclassification thereof).
(e) "SALE TRANSACTION" shall mean the merger or consolidation of the
Company into or with another corporation or other entity, or the sale of all or
substantially all the assets or the sale of all of the outstanding capital stock
of the Company, in each case under circumstances in which the holders of the
outstanding capital stock of the Company immediately prior to the Transaction,
own less than a majority in voting power of the outstanding capital stock of the
Company or the surviving or resulting company or acquiror, as the case may be,
immediately following such transaction.
(f) "STIPULATED PRICE" shall mean (i) in the event that the Parent
Preferred Stock has not been converted into Parent Common Stock, the product of
(x) (A) the closing price of the Parent Common Stock on any securities exchange,
the Nasdaq National Market or (B) if actively traded over-the-counter, the
average of the closing bid or sale prices (whichever is applicable), on the date
hereof TIMES (y) ten (10) or (ii) in the event that the Parent Preferred Stock
has been converted into Parent Common Stock, the closing price per share of the
Parent Common Stock on any securities exchange, the Nasdaq National Market or
OTC Bulletin Board on the date hereof, all as calculated and/or ascertained by
the Parent and communicated to the Escrow Agent in writing.
2. APPOINTMENT OF ESCROW AGENT; ESCROW ACCOUNT. The Escrow Agent is hereby
appointed to act as escrow agent hereunder and the Escrow Agent agrees to act as
such.
3. ESCROW FUND AND ESCROW ACCOUNT. (a) Parent shall deliver to the Escrow Agent,
within a reasonable time from the date hereof, certificates registered in the
name of the Stockholder representing the Indemnity Escrow Shares and the
Repurchase Escrow Shares (in each case, with stock powers executed in blank by
the Stockholder attached thereto) and the Escrow Agent shall accept such
certificates in escrow for the benefit of (i) Parent, and the
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Indemnified Persons and (ii) the Stockholder, pursuant and subject to the
provisions of this Agreement. The shares of Parent Preferred Stock to be
delivered to the Escrow Agent pursuant to this Section 3(a), together with any
stock dividends or stock distributions or any securities of Parent issued in
respect thereof (including, without limitation, any shares issued pursuant to
any conversion, stock dividend, stock split, reverse stock split, combination or
reclassification thereof) shall become part of, and are hereinafter referred to
collectively as, the "ESCROW FUND". The Escrow Agent shall have no
responsibility for the genuineness, validity, market value, title or sufficiency
for any intended purpose of the Parent Preferred Stock to be delivered to it
under this Agreement.
(b) The Escrow Agent shall establish a segregated account (the "ESCROW
ACCOUNT") at its office located at its address set forth on SCHEDULE II in which
to hold the Escrow Fund.
4. RIGHTS TO THE ESCROW FUND. The Escrow Fund shall be for the exclusive benefit
of the Parent and the Indemnified Persons and their respective successors and
assigns, as provided herein, in the Repurchase Agreement and in the
Reorganization Agreement, and no other person or entity shall have any right,
title or interest therein other than the Stockholder's underlying ownership
interests in the property constituting the Escrow Fund.
5. DISTRIBUTION OF THE INDEMNITY ESCROW SHARES IN CONNECTION WITH INDEMNITY
CLAIMS. The Escrow Agent shall continue to hold the Indemnity Escrow Shares in
its possession until authorized hereunder to distribute the Indemnity Escrow
Shares or any part thereof. The Escrow Agent shall distribute the Indemnity
Escrow Shares as follows:
(a) INDEMNIFICATION. In the event any Indemnified Person (the "CLAIMING
PERSON") asserts a right of indemnity against the Stockholder under Section 8 of
the Reorganization Agreement, Parent shall execute and deliver to the Escrow
Agent a written notice to such effect (a "NOTICE OF CLAIM"; and the right of
indemnity asserted in a Notice of Claim being hereinafter referred to as a
"CLAIM"), which Notice of Claim shall instruct the Escrow Agent to deliver that
portion of the Indemnity Escrow Shares the Fair Market Value (as defined in
Section 8 hereof) of which shall equal the amount of the Claim (or, if the
amount of the Claim shall be greater than the Fair Market Value of the Indemnity
Escrow Shares, the balance of the Indemnity Escrow Shares) to such Claiming
Person, and the following shall apply:
(i) a Notice of Claim delivered to the Escrow Agent pursuant
to this Section 5(a) shall set forth the name of the Claiming Person,
the nature and details of such Claim (to the extent known), and a
calculation setting forth the amount thereof (or if not ascertainable,
a reasonable good faith estimate of the maximum amount thereof); and
(ii) if within 10 business days after the Escrow Agent's
receipt of any Notice of Claim pursuant to this Section 5(a), the
Escrow Agent has not received a notification (a "NOTICE OF DISPUTE")
from the Stockholder that the Claim, or the amount thereof, is
disputed, the Escrow Agent shall, within 5 business days after the
expiration of such 10-day period, deliver to the Claiming Person that
portion of the Indemnity Escrow Shares the Fair Market Value of which
shall equal the amount of the Claim as set forth in such Notice of
Claim (or, if the amount of the Claim shall be greater than the Fair
Market Value of the
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aggregate Indemnity Escrow Shares as of such date, the balance of the
Indemnity Escrow Shares) (the date of any such delivery being referred
to herein as a "RELEASE DATE"). If the Escrow Agent does receive a
Notice of Dispute within such 10-day period (a copy of the Notice of
Dispute being simultaneously sent to Parent by the Stockholder), the
Escrow Agent shall not deliver such amount to such Claiming Person
until 5 business days after such dispute has been settled as provided
in Section 17 hereof and written notice of such settlement and of the
amount, if any, to be paid in respect of the disputed Claim has been
received by the Escrow Agent from the Parent.
(b) Anything contained herein to the contrary notwithstanding, if the
Escrow Agent is authorized, at any time pursuant to Section 5(a) hereof, to
deliver all or any portion of the Indemnity Escrow Shares to a Claiming Person
with respect to a Claim or Claims, then (i) such delivery shall be made
regardless of the Escrow Agent's prior or subsequent receipt of any Notice of
Claim or Notice of Dispute with respect to any other Claim or Claims and (ii)
the Escrow Agent shall (A) deliver to the transfer agent for the Parent
Preferred Stock (who shall be identified to the Escrow Agent in writing by
Parent) on behalf of the Stockholder the certificate registered in such
Stockholder's name representing the Escrow Shares, together with a completed
stock power transferring to such Claiming Person that number of shares of Parent
Preferred Stock being delivered to such Claiming Person and (B) instruct such
transfer agent to issue and deliver to the Escrow Agent for retention hereunder
as part of the Escrow Fund a certificate of like tenor, registered in the name
of the Stockholder representing the balance of the shares of Parent Preferred
Stock represented thereby, if any. Parent and the Stockholder shall take all
such actions and execute and deliver all such documents as are necessary to
effectuate the intent and purpose of this Section 5(b).
6. DISTRIBUTION OF THE REPURCHASE ESCROW SHARES IN CONNECTION WITH EXERCISE OF
THE REPURCHASE OPTION.
(a) In the event Parent and/or any assignee of Parent shall elect to
exercise the Purchase Option set forth in the Repurchase Agreement, Parent shall
execute and deliver to the Escrow Agent and the Stockholder a written notice (a
"REPURCHASE NOTICE") specifying (i) the number of shares of (A) Parent Preferred
Stock or (B) upon conversion of the Parent Preferred Stock, Parent Common Stock,
which Parent is entitled to repurchase, (ii) the number of Repurchase Escrow
Shares as to which it is exercising the Repurchase Option, (iii) the purchase
price and the calculation thereof and (iv) the time for a closing thereunder at
the principal office of Parent (the "REPURCHASE CLOSING"). Said Repurchase
Notice shall be given no sooner than five (5) business days before the
Repurchase Closing.
(b) Stockholder and Parent hereby irrevocably authorize and direct the
Escrow Agent to deliver to the Parent the number of shares of Parent Preferred
Stock or Parent Common Stock, as applicable, to close the transaction
contemplated by such Repurchase Notice in accordance with the terms of said
Repurchase Notice. Subject to the provisions of the Repurchase Agreement and
Section 6(b) hereof, the Escrow Agent shall deliver to the Stockholder the
number of shares equal to the difference between (x) the total number of
Repurchase Escrow Shares held by the Escrow Agent on the date of delivery of the
Repurchase Notice MINUS (y) the number of Repurchase Escrow Shares for which the
Purchase Option has been exercised.
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(c) If the Escrow Agent has not received from Parent a Repurchase
Notice to the Escrow Agent, or has exercised the Purchase Option with respect to
less than all of the then remaining Repurchase Escrow Shares, prior to the
applicable date set forth on the table below, the Escrow Agent shall deliver to
the Stockholder, subject to payment of escrow fees and expenses by the Company
as required herein, within five (5) business days after the dates set forth
below the number of Repurchase Escrow Shares equal to the Vested Shares (as set
forth below):
- --------------------------- --------------------------------------------- ------------------------------------------
VESTED SHARES (IF THE PARENT VESTED SHARES (IF THE PARENT
PREFERRED STOCK HAS NOT PREFERRED STOCK HAS
BEEN CONVERTED TO PARENT BEEN CONVERTED TO PARENT
DATE COMMON STOCK) COMMON STOCK)
---- ------------- -------------
- --------------------------- --------------------------------------------- ------------------------------------------
September 1, 1999 [*] [*]
- --------------------------- --------------------------------------------- ------------------------------------------
December 1, 1999 [*] [*]
- --------------------------- --------------------------------------------- ------------------------------------------
March 1, 2000 [*] [*]
- --------------------------- --------------------------------------------- ------------------------------------------
June 1, 2000 [*] [*]
- --------------------------- --------------------------------------------- ------------------------------------------
September 1, 2000 [*] [*]
- --------------------------- --------------------------------------------- ------------------------------------------
December 1, 2000 [*] [*]
- --------------------------- --------------------------------------------- ------------------------------------------
March 1, 2001 [*] [*]
- --------------------------- --------------------------------------------- ------------------------------------------
June 1, 2001 [*] [*]
- --------------------------- --------------------------------------------- ------------------------------------------
September 1, 2001 [*] [*]
- --------------------------- --------------------------------------------- ------------------------------------------
December 1, 2001 [*] [*]
- --------------------------- --------------------------------------------- ------------------------------------------
March 1, 2002 [*] [*]
- --------------------------- --------------------------------------------- ------------------------------------------
June 1, 2002 [*] [*]
- --------------------------- --------------------------------------------- ------------------------------------------
(d) SALE TRANSACTION. Subject to Section 7 hereof and anything
contained herein to the contrary notwithstanding, upon the consummation of a
Sale Transaction, Parent shall deliver a notice to the Escrow Agent (the "SALE
TRANSACTION NOTICE") and Escrow Agent shall thereafter deliver the Repurchase
Escrow Shares (including, without limitation, any shares issued pursuant to any
stock split, reverse stock split, combination or reclassification thereof) to
the Stockholder within five (5) business days after receipt of the Sale
Transaction Notice, subject to the following:
(i) if the Sale Transaction Notice is received by the Escrow
Agent before the first anniversary of the date hereof (the "FIRST
ANNIVERSARY"), the Escrow Agent shall not distribute to the
Stockholder, and the Escrow Agent shall hold and retain in Escrow, the
balance of the Indemnity Escrow Shares (including, without limitation,
any shares issued pursuant to any stock split, reverse stock split,
combination or reclassification thereof) and on and after the First
Anniversary the Escrow Agent shall distribute to the Stockholder within
five (5) business days after the First Anniversary the balance of the
Indemnity Escrow Shares; PROVIDED, HOWEVER, that, regardless of whether
the Sale Transaction Notice is received before, on or after the First
Anniversary, the Escrow Agent
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shall NOT distribute to the Stockholder, and the Escrow Agent shall
hold and retain in Escrow, the number of Indemnity Escrow shares
specified in all Notices of Claim which, prior to the First
Anniversary, have been received by the Escrow Agent but which have not
been paid to Parent or otherwise discharged pursuant to this Section
6. Any portion of the Indemnity Escrow Shares which shall continue to
be held by the Escrow Agent pursuant to the preceding sentence shall
be so held until such time as all disputed Claims hereunder have been
settled as provided in Section 17 and written notice of such
settlement or settlements setting forth the amounts to be paid to
Parent, on the one hand, and the Stockholder, on the other hand, have
been received by the Escrow Agent.
7. ESCROW FEES. Notwithstanding anything herein to the contrary, at any time
that the Escrow Agent is authorized or directed or otherwise required to make a
disbursement or distribution from the Escrow Fund, the Escrow Agent may refrain
from making such disbursement or distribution from the Escrow Fund, without
liability, if and to the extent that there are any fees or expenses then due to
the Escrow Agent pursuant to Sections 11, 12, 13 and/or Schedule II.
8. VALUATION. For all purposes of this Agreement, the "FAIR MARKET VALUE" of any
property (other than cash and shares of Parent Preferred Stock or Parent Common
Stock) contained in the Escrow Fund as of any date shall be the fair market
value of such property as of such date as determined by the Board of Directors
of Parent in the good faith exercise of its reasonable business judgment, which
determination shall be evidenced by a certificate executed by the Secretary of
Parent and delivered to the Escrow Agent and the Stockholder, and the "FAIR
MARKET VALUE" per share of Parent Preferred Stock and/or Parent Common Stock, as
applicable, shall be the lesser of (i) the Stipulated Price and (ii) (A) if such
shares are traded on a securities exchange or through the Nasdaq National
Market, the value shall be deemed to be the closing price of the securities on
such exchange on the date of delivery of the Notice of Claim or Repurchase
Notice or (B) if actively traded over-the-counter, the value shall be deemed to
be the closing bid or sale prices (whichever is applicable) on the date of
delivery of the Notice of Claim or Repurchase Notice, as calculated and/or
ascertained by the Parent and provided to the Escrow Agent in writing.
9. STOCKHOLDER RIGHTS. (a) Except as expressly provided otherwise herein, the
Stockholder shall at all times retain and have the full and absolute right to
exercise all rights and indicia of ownership with respect to the Escrow Shares
owned by such Stockholder, including, without limitation, voting and consensual
rights; PROVIDED, HOWEVER, that the Stockholder shall have no right to transfer,
pledge or encumber or otherwise dispose in any manner whatsoever any Escrow
Shares that are held in Escrow Account. In accordance with Section 3(a), all
dividends or distributions or proceeds in stock or other property issued (other
than cash) in respect of the Escrow Shares shall be deposited into the Escrow
Account and become part of the Escrow Fund so long as the Escrow Agent is
authorized to retain such shares hereunder. If any such shares of Parent
Preferred Stock are transferred to a Claiming Person pursuant to Section 5
hereof in satisfaction of a Claim or Claims, all rights and indicia of ownership
with respect to such shares shall thereupon reside with such Claiming Person or
any subsequent holder thereof.
(b) The Escrow Agent shall be under no duty to preserve, protect or
exercise rights in
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the Escrow Shares, and shall be responsible only for reasonable measures to
maintain the physical safekeeping thereof, and otherwise to perform such
duties on its part as are expressly set forth in this Agreement. The Escrow
Agent will not be responsible for authenticating the right of the Stockholder
to exercise voting or consent-giving authority in respect of shares of Parent
Preferred Stock held by it hereunder. The Escrow Agent shall not be
responsible for forwarding to, or notifying any party, or taking any other
action with respect to any notice, solicitation or other document or
information, written or oral, received by the Escrow Agent from an issuer or
other person with respect to Escrow Shares held by the Escrow Agent
hereunder, including, without limitation, any proxy material, tenders,
options, the pendency of calls and maturities and the expiration of rights.
10. TERMINATION. This Agreement may be terminated at any time by and upon the
receipt by the Escrow Agent of 10 days' prior written notice of termination
executed by Parent and the Stockholder directing the distribution of all
property then held by the Escrow Agent under and pursuant to the distribution
provisions of Section 5(c) of this Agreement and such termination notice. This
Agreement shall automatically terminate if and when all amounts in the Escrow
Account (including all the securities in which any funds, if any, contained in
the Escrow Account shall have been invested) shall have been distributed by the
Escrow Agent in accordance with the terms of this Agreement and all amounts
payable to the Escrow Agent pursuant to Sections 11, 12 or 13 have been paid.
11. CONCERNING THE ESCROW AGENT.
(a) Each party acknowledges and agrees that the Escrow Agent (i) shall
not be responsible for any of the agreements referred to or described herein
(including without limitation the Reorganization Agreement), or for determining
or compelling compliance therewith, and shall not otherwise be bound thereby,
(ii) shall be obligated only for the performance of such duties as are expressly
and specifically set forth in this Agreement on its part to be performed, each
of which is ministerial (and shall not be construed to be fiduciary) in nature,
and no implied duties or obligations of any kind shall be read into this
Agreement against or on the part of the Escrow Agent, (iii) shall not be
obligated to take any legal or other action hereunder that might in its judgment
involve or cause it to incur any expense or liability unless it shall have been
furnished with acceptable indemnification, (iv) may rely on and shall be
protected in acting (or, if so requested, refraining from acting) upon and in
accordance with any written notice, instruction (including, without limitation,
wire transfer instructions, whether incorporated herein or provided in a
separate written instruction), instrument, statement, certificate, request or
other document furnished to it hereunder and believed by it to be genuine and to
have been signed or presented by the proper person, and shall have no
responsibility for determining the accuracy thereof, and (v) may consult counsel
satisfactory to it, including in-house counsel, and the opinion or advice of
such counsel in any instance shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in accordance with the opinion or advice of such counsel.
(b) The Escrow Agent shall not be liable to anyone for any action taken
or omitted to be taken by it hereunder except in the case of the Escrow Agent's
gross negligence or willful misconduct in breach of the terms of this Agreement.
In no event shall the Escrow Agent be
7
liable for indirect, punitive, special or consequential damage or loss
(including but not limited to lost profits) whatsoever, even if the Escrow Agent
has been informed of the likelihood of such loss or damage and regardless of the
form of action.
(c) The Escrow Agent shall have no more or less responsibility or
liability on account of any action or omission of any book-entry depository or
securities intermediary employed by the Escrow Agent than any such book-entry
depository or securities intermediary has to the Escrow Agent, except to the
extent that such action or omission of any book-entry depository or securities
intermediary was caused by the Escrow Agent's own gross negligence or willful
misconduct in breach of this Agreement.
(d) The Escrow Agent may resign and be discharged from its duties
hereunder at any time by giving at least 30 days' prior written notice of such
resignation to Parent and the Stockholder specifying a date upon which such
resignation shall take effect; PROVIDED, HOWEVER, that the Escrow Agent shall
continue to serve until its successor accepts the Escrow Fund. Upon receipt of
such notice, a successor escrow agent shall be appointed by Parent and the
Stockholder, such successor escrow agent to become the Escrow Agent hereunder on
the resignation date specified in such notice. If a written instrument of
acceptance by a successor escrow agent shall not have been received by the
Escrow Agent within 40 days after the giving of such notice of resignation, the
resigning Escrow Agent may at the expense of Parent petition any court of
competent jurisdiction for the appointment of a successor escrow agent. Parent
and the Stockholder acting jointly, may at any time substitute a new escrow
agent by giving 10 days' prior written notice thereof to the Escrow Agent then
acting and by Parent paying all fees and expenses of such Escrow Agent.
12. INDEMNIFICATION. Each of the Interested Parties covenant and agree, jointly
and severally, to indemnify the Escrow Agent (and its directors, officers and
employees) and hold it (and such directors, officers and employees) harmless
from and against any loss, liability, damage, cost and expense of any nature
incurred by the Escrow Agent arising out of or in connection with this Agreement
or with the administration of its duties hereunder, including but not limited to
reasonable attorney's fees and other costs and expenses of defending or
preparing to defend against any claim of liability unless and except to the
extent such loss, liability, damage, cost and expense shall be caused by the
Escrow Agent's gross negligence or willful misconduct. The foregoing
indemnification and agreement to hold harmless shall survive the termination of
this Agreement and the resignation of the Escrow Agent.
13. FEES OF ESCROW AGENT. For its services hereunder, the Escrow Agent shall be
entitled to the fees set forth on SCHEDULE II attached hereto. The annual
Administrative Fee shall be subject to adjustment annually, upon notice. Such
fees shall be paid by Parent. In addition, the Parent and the Stockholder
jointly and severally agree to pay equally the cost of reimbursing the Escrow
Agent, and shall reimburse the Escrow Agent on demand, for all costs and
expenses incurred in connection with the administration of this Agreement or the
escrow created hereby or the performance or observance of its duties hereunder
which are in excess of its compensation for normal services hereunder, including
without limitation, payment of any reasonable legal fees and expenses incurred
by the Escrow Agent in connection with resolution of any claim by any party
hereunder ("EXTRAORDINARY ADMINISTRATIVE EXPENSES"). The Escrow Agent shall
8
periodically bill Parent and the Stockholder for such out of pocket fees and
expenses. The Escrow Fund shall not be available to, and shall not be used by,
the Escrow Agent to set off any obligations of any party hereto owing the Escrow
Agent in any capacity. Without altering or limiting the joint and several
liability of any of the Interested Parties to the Escrow Agent hereunder, each
of the Interested Parties agrees as between themselves that they shall share,
one half each, all amounts payable to the Escrow Agent for Extraordinary
Administrative Expenses pursuant to this Section 13.
14. CERTIFICATION OF TAX IDENTIFICATION NUMBER. The Interested 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 case of non-U.S. persons) to
the Escrow Agent prior to the date on which any income earned on the Escrow Fund
is credited to the Escrow Fund. The Interested Parties 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 income earned on the Escrow Fund.
15. TAX REPORTING. The interested Parties agree that, for tax reporting
purposes, all income earned on the Escrow Fund in any tax year shall (i) to the
extent such income is distributed by the Escrow Agent to any person or entity
pursuant to the terms of this Agreement during such tax year, to be allocated to
such person or entity, and (ii) otherwise shall be allocated to the Stockholder.
16. TAX INDEMNIFICATION. Each of the Interested Parties agree, jointly and
severally, (i) to assume any and all obligations now or hereafter arising under
any applicable tax law with respect to any payment or distribution of the Escrow
Fund to, or performance of other activities under this Agreement by, such
Interested Party, (ii) 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, and to instruct the Escrow Agent with respect to
any certifications and governmental reporting that may be required under any
laws or regulations that may be applicable in connection with its action as
Escrow Agent under this Agreement, and (iii) to indemnify and hold the Escrow
Agent harmless from any liability or obligation on account of taxes,
assessments, additions for late payment, interest, penalties expenses and other
governmental charges that may be assessed or asserted against the Escrow Agent
in connection with or relating to any payment made or other activities performed
under the terms of this Agreement, including without limitation any liability
for the withholding or deduction of (or the failure to withhold or deduct) the
same, and any liability for failure to obtain proper certifications or to report
properly to governmental authorities in connection with this Agreement,
including costs and expenses (including reasonable legal fees and expenses),
interest and penalties, to the extent that it relates to such individual
Interested Party. The foregoing indemnification and agreement to hold harmless
shall survive the termination of this Agreement and the resignation of the
Escrow Agent.
17. DISPUTES. If any dispute should arise with respect to the payment or
ownership or right of possession of the Escrow Fund, or the duties of the Escrow
Agent hereunder or should any claim be made upon the Escrow Agent or the Escrow
Fund by any third party, the Escrow Agent is authorized and directed to retain
in its possession, without liability to anyone, any part of the
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Escrow Fund in dispute until such dispute shall have been settled either by
mutual agreement of Parent and the Stockholder (evidenced by appropriate
instructions in writing to the Escrow Agent signed by Parent and the
Stockholder) or by the final order, decree or judgment, received by the Escrow
Agent, of a court of competent jurisdiction in the United States of America (the
time for appeal having expired with no appeal having been taken) in a proceeding
to which Parent and the Stockholder are parties, but the Escrow Agent shall be
under no duty whatsoever to institute or defend any such proceedings.
18. MISCELLANEOUS.
(a) All notices or other communications which are required or permitted
hereunder shall be in writing and shall be deemed given (i) when received by the
addressee if delivered personally or sent by nationally-recognized overnight
courier (ii) when received by the addressee if sent by registered or certified
mail, return receipt requested and postage prepaid, or (iii) when sent by
telecopier, provided that a confirmation copy thereof is sent the same day by
postage prepaid U.S. mail. Notwithstanding the foregoing, no notice nor other
communication shall be deemed given to the Escrow Agent until the Escrow Agent's
actual receipt thereof. Notices shall be sent to the addresses given below for
the parties, or to such other address for any party notice of which, complying
with these requirements, is given by that party to all others.
(i) if to the Stockholder then to:
Debbie Dworkin
20 Taconic Road
Millwood, New York 10546
Fax: (212) 967-6256
(ii) if to Parent, to:
GHS, Inc.
2400 Research Blvd.
Rockville, Maryland 20850
Attention: Alan Gold
Telecopier: (301) 308-3254
with copies to:
Orrick, Herrington & Sutcliffe LLP
30 Rockefeller Plaza
New York, New York 10112
Attention: Martin H. Levenglick, Esq.
Telecopier: (212) 506-5151; and
if to the Escrow Agent, to the address set forth on
SCHEDULE II hereto;
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or to such other address as the party to whom notice is to be given may have
furnished to the other parties hereto in writing in accordance herewith.
(b) COUNTERPARTS. This Agreement may be executed in any number of
counterparts, and each such counterpart hereof shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
(c) GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the domestic laws of the Commonwealth of Massachusetts without
giving effect to any choice of law or conflicting provision or rule.
(d) PARTIES IN INTEREST. This Agreement shall be binding upon, inure to
the benefit of, and be enforceable by, the parties hereto and their respective
successors and assigns. Anything contained herein to the contrary
notwithstanding, this Agreement shall not be assigned by any party hereto
without the consent of the other parties hereto.
(e) AMENDMENTS. This Agreement may be amended only by a written
instrument duly executed by the parties hereto. 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 terms of this Escrow
Agreement, or of such terms and conditions on any other occasion.
(f) HEADINGS. The section and paragraph headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
(g) ENTIRE AGREEMENT. This Agreement and, with respect to the
Interested Parties only, the Reorganization Agreement, contain the entire
agreement among the parties hereto with respect to the transactions contemplated
hereby and supersedes all prior agreements or understandings, written or oral,
among the parties identified above with respect thereto; PROVIDED, that anything
contained herein to the contrary notwithstanding, the parties hereto agree that
the Escrow Agent shall perform its obligations under this Agreement solely by
reference to this Agreement.
(h) FORCE MAJEURE. The Escrow Agent will not be responsible for delays
or failures in performing its duties resulting from acts beyond its control such
as, but not 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.
(i) REPRODUCTION OF AGREEMENT. This Agreement and all documents
relating hereto, including, without limitation, (1) consents, waivers and
modifications that may hereafter be executed, and (2) 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. It is agreed that any such reproduction
shall be admissible in evidence as the original itself in any judicial or
administrative proceeding, whether or not the
11
original is in existence and whether or not the 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.
(j) INVESTMENT OF CASH. Should the Escrow Agent hold any cash in the
Escrow fund, the Escrow Agent shall be under no obligation to invest (or
otherwise pay interest on) such cash.
(k) CONSENT TO JURISDICTION AND SERVICE. Each of the Interested Parties
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 any of the Interested Parties (or each of them) by the Escrow Agent
arising out of or relating to this Escrow Agreement. In any such action or
proceeding, the Interested Parties each hereby absolutely and irrevocably (i)
waives any objection to jurisdiction or venue, (ii) waives personal service of
any summons, complaint, declaration or other process, and (iii) agrees that the
service thereof may be made by certified or registered first-class mail directed
to such party, as the case may be, at their respective addresses in accordance
Section 16(a) hereof.
(l) CERTAIN DISTRIBUTIONS OF ESCROW SHARES. Notwithstanding anything
herein to the contrary, if the Escrow Agent is required to distribute Escrow
Shares pursuant hereto to a particular recipient or recipients (an "Intended
Recipient"), and the Escrow Agent has sufficient Parent Common Stock or Parent
Preferred Stock, as the case may be, to satisfy such distribution, but the stock
certificates in the Escrow Agent's possession are in such denominations that the
Escrow Agent is not able to distribute the exact number of Escrow Shares so
required to be distributed (the "Required Amount"), the Escrow Agent shall
deliver to the Parent such number of Parent Common Stock and/or Parent Preferred
Stock, as the case may be, as may exceed the Required Amount, and the Parent
shall promptly deliver to the Escrow Agent a certificate representing the number
of such shares in excess of the Required Amount (the "Excess Shares") for the
Escrow Agent to retain in escrow pursuant to the terms hereof. The Parent shall,
to the extent necessary, deliver a certificate representing the Required Amount
of the Parent Common Stock or Parent Preferred Stock, as the case may be, to the
Intended Recipient. The Escrow Agent shall not be responsible for safekeeping
the Excess Shares until received by the Escrow Agent from the Parent, and the
Escrow Agent shall not be responsible for its failure to perform hereunder
resulting from the failure of the Escrow Agent to receive such Excess Shares
from the Parent.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Escrow
Agreement to be executed and delivered on the date first above written.
GHS, INC.
By: /s/ Alan Gold
---------------------------
Name: Alan Gold
Title: President
STOCKHOLDER:
/s/ Debbie Dworkin
------------------------------
Debbie Dworkin
Accepted and Agreed to
as of the Date First Above Written:
STATE STREET BANK AND TRUST COMPANY,
AS ESCROW AGENT:
By: /s/
---------------------------
Name:
Title:
13
SCHEDULE I
ESCROW SHARES
- ------------------------------------- ------------------------------------------
STOCKHOLDER ESCROW SHARES
- ------------------------------------- ------------------------------------------
Debbie Dworkin 50,000
Parent Preferred
Stock and all
shares of Parent
Common Stock
issued upon
conversion
thereof.
- ------------------------------------- ------------------------------------------
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SCHEDULE II
FEES OF ESCROW AGENT
ESCROW AGENT:
State Street Bank and Trust Company
Financial Markets Group
Corporate Trust
Two International Place, 5th Floor
Boston, MA 02110-2804
Attention: GHS/Dworkin Escrow
Wire Transfer Information:
State Street Bank and Trust Company
ABA#: 011 000 028
DDA: 99039901
FFC: 122299-010
Attn: Corporate Trust Dept
Ref: GHS/Dworkin Escrow
FEES AND EXPENSES:
ACCEPTANCE FEE: $1,000.00
ADMINISTRATIVE FEE: 3,500.00 per year or any part
thereof
INVESTMENT FEE: $65.00 per buy/sell
SWEEP FEE: 40 basis points per annum of the
average daily net assets
WIRE FEE: $20 per wire
OUT OF POCKET EXPENSES: At Cost
LEGAL FEES: At Cost, including attorney's fees
incurred in the preparation of this
Escrow Agreement
EXTRAORDINARY ADMINISTRATIVE EXPENSES As billed as per Section 13
15