Exhibit 99.3
ESCROW AGREEMENT
Escrow Agreement ("Agreement") dated as of the effective date (the
"Effective Date"), by and among the buyer identified on Schedule 1 (the
"Buyer"), the seller identified on Schedule 1 (the "Seller") and JP Morgan Chase
Bank, as escrow agent hereunder (the "Escrow Agent").
RECITALS
A. The Buyer and the Seller have entered into a Stock Purchase Agreement dated
as of October 12, 2001, as amended by the Letter Agreement (defined hereto),
(the "Stock Purchase Agreement"), pursuant to which Buyer will purchase all
outstanding shares of capitalized stock of the subsidiary of the Seller
identified on Schedule 1. In addition, the Buyer and the Seller are entering
into a Letter Agreement, dated as of the date hereof (the "Letter Agreement"),
with respect to the Stock Purchase Agreement and the transactions contemplated
thereby. Capitalized terms used in this Agreement and not otherwise defined in
this Agreement shall have the meanings given to them in the Stock Purchase
Agreement or the Letter Agreement, as applicable.
B. The Buyer will deposit in escrow the Escrow Amount (such deposit constituting
the "Escrow Fund"), which shall be held pursuant to the Stock Purchase
Agreement. The "Escrow Amount" shall consist of the Indemnity Escrow, the
Litigation Escrow, the Adjustment Cash Escrow (including any interest paid on
the Adjustment Cash Escrow) and the Adjustment Stock Escrow. The Buyer Common
Stock subject to the Escrow Amount and any dividends or equitable adjustment
thereto in the event of a stock split dividend, stock recombination,
recapitalization or the like event are collectively the "Escrow Shares".
C. The parties to this Agreement desire to establish the terms and conditions
pursuant to which the Escrow Amount will be deposited, held in, and disbursed
from the Escrow Fund.
AGREEMENT
NOW THEREFORE, in consideration of the foregoing and of the mutual
covenants hereinafter set forth, the parties hereto agree as follows:
1. APPOINTMENT. The Buyer and the Seller hereby appoint the Escrow Agent as
their escrow agent for the purposes set forth herein, and the Escrow Agent
hereby accepts such appointment under the terms and conditions set forth herein.
2. ESCROW FUND. Simultaneous with the execution and delivery of this Agreement,
the Buyer is depositing with the Escrow Agent the sums indicated as the escrow
deposit on Schedule 1. The Escrow Agent agrees to: (a) accept delivery of the
Escrow Amount; and (b) hold such Escrow Amount in escrow as part of the Escrow
Fund, all subject to the terms and conditions of this Agreement, the Letter
Agreement and Article 2 and Section 7.3 of the Stock Purchase Agreement (which
Letter Agreement and Article 2 and Section 7.3 of the Stock Purchase Agreement
are attached to this Agreement as Appendix I and incorporated by reference into
this
Agreement). The Stock Purchase Agreement and the Letter Agreement shall control
over any conflicting terms in this Agreement.
3. INDEMNIFICATION AND TRUE-UP DISBURSEMENT.
(a) The Escrow Agent is hereby notified that the Seller has agreed
pursuant to Section 7.3 of the Stock Purchase Agreement to
indemnify and hold harmless the Indemnified Parties from and
against all Losses as contemplated by the Stock Purchase
Agreement. The Seller agrees that the Indemnity Fund and
Litigation Fund will be held to satisfy this indemnity
obligation in the manner provided in this Agreement and in the
Stock Purchase Agreement. If the Buyer seeks indemnification
for any Losses under the Stock Purchase Agreement, the Buyer
shall give the Seller and the Escrow Agent written notice of
such Losses which shall specify in detail the nature and
calculation of such Losses (a "Notice of Claim") in accordance
with Section 5(b) hereof. The Buyer shall notify the Seller of
the progress of any such Losses and shall permit the Seller to
participate in such defense solely in accordance with the
Stock Purchase Agreement.
(b) Within five (5) Business Days after the True-Up Resolution
Date and pursuant to Section 2.7 of the Stock Purchase
Agreement, the Buyer shall deliver (such date of delivery, the
"True-Up Notice Delivery Date") (i) a written notice signed by
an officer of the Buyer to the Escrow Agent which shall
specify in detail the payment and delivery instructions of the
Escrow Shares to be delivered pursuant to Section 2.7 of the
Stock Purchase Agreement (the "True-Up Escrow Shares") and the
Adjustment Cash Escrow (the "True-Up Notice") in accordance
with Section 5(c) hereof and (ii) a copy of such True-Up
Notice to the Seller.
4. INVESTMENT OF ESCROW FUND. During the term of this Agreement, the Adjustment
Cash Fund and any cash dividends or other cash distributions from the Escrow
Shares shall be invested and reinvested by the Escrow Agent in the investment
indicated on Schedule 1 or such other investments as shall be directed in
writing by the Buyer and the Seller and as shall be acceptable to the Escrow
Agent. All trust investment orders involving U.S. Treasury obligations,
commercial paper and other direct investments will be executed through JPMorgan
Fleming Asset Management ("JPMFAM") of the investment management division of
JPMorgan Chase Bank. Subject to the principles of best execution, transactions
pursuant to this Section 4 shall be executed through broker-dealers selected by
JPMFAM. In this regard, JPMFAM shall seek to attain the best overall result for
such transactions, taking into consideration quality of service and reliability.
An agency fee as listed on Schedule 2 attached hereto ("Schedule 2") will be
assessed in connection with each such transaction. Periodic statements will be
provided to the Buyer and the Seller reflecting transactions executed on behalf
of the Escrow Fund. The Buyer and the Seller, upon written request of either of
the Buyer or the Seller, will receive a statement of transaction details upon
completion of any securities transaction in the Escrow Fund without any
additional cost. The Escrow Agent shall have the right to liquidate any
investments held, other than the Escrow Shares, in order to provide funds
necessary to make required payments pursuant to Section 5 hereof. The Escrow
Agent shall have no liability for any loss sustained as a result of any
investment in an investment indicated on Schedule 1 or any investment made
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pursuant to the instructions of the Buyer and the Seller hereto or as a result
of any liquidation of any investment prior to its maturity or for the failure of
the Buyer and the Seller to give the Escrow Agent instructions to invest or
reinvest the Escrow Fund.
5. DISPOSITION AND TERMINATION.
(a) The Escrow Agent shall deliver the sums and release Escrow
Shares subject to Escrow Fund upon, and pursuant to, Article 2
and Section 7.3 of the Stock Purchase Agreement.
(b) Any Notice of Claim received by the Seller and the Escrow
Agent pursuant to Section 3(a) above will be resolved as
follows:
(i) UNCONTESTED CLAIMS. In the event that the Seller does not
contest a Notice of Claim (or contests only a portion of the
Notice of Claim) in writing to the Escrow Agent by the Buyer
within thirty (30) Business Days after such Notice of Claim is
deemed delivered to the Escrow Agent pursuant to Section 11
below, the Escrow Agent will (i) promptly release to the Buyer
in accordance with the Stock Purchase Agreement and the
Buyer's written instructions that portion of the Indemnity
Fund and/or Litigation Fund equal in value to the amount
specified in the Notice of Claim (that is not contested) and
(ii) notify the Seller of such transfer in writing.
(ii) CONTESTED CLAIMS. In the event that the Seller gives (and
the Escrow Agent receives) written notice contesting all of,
or a portion of, a Notice of Claim to the Buyer and the Escrow
Agent (a "Contested Claim") within the thirty (30) Business
Day period provided above, the Escrow Agent shall not release
any of the Indemnity Fund and/or Litigation Fund to the Buyer
with respect to the contested portion of such Notice of Claim,
and the Seller and the Buyer shall attempt to resolve the
matter. All disputes regarding the Indemnity Fund and/or
Litigation Fund under this Section 5(b) shall be settled
either by (i) mutual agreement of the Buyer and the Seller
(evidenced by appropriate instructions in writing to the
Escrow Agent signed by the Buyer and the Seller specifically
instructing the Escrow Agent as to disposition of the
Indemnity Fund and/or Litigation Fund) or (ii) by a final
judgment, order or decree of a court of competent jurisdiction
(the time for modification or appeal therefrom having expired
and no action having been taken or perfected, or if any such
action or motion to alter, amend, modify or appeal such final
judgment, order or decree has been taken and perfected, after
final resolution by the highest court having jurisdiction
thereof), a copy of which judgment, order or decree
(collectively, "Settlement Documentation") in either case
shall be delivered to the Escrow Agent by the Buyer or the
Seller and accompanied by instructions to the effect that such
judgment, order or decree is final, that the time for appeal
therefrom has expired (without an appeal having been
perfected) and that such judgment, order or decree entitles
the Seller or the Buyer, as the case may be, to a specified
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amount of the Indemnity Fund and/or Litigation Fund. Such
instructions, in the case of mutual agreement between the
parties, or Settlement Documentation, in the case of a final
judgment, order or decree of a court of competent
jurisdiction, shall constitute written instructions to the
Escrow Agent to deliver promptly the number of Escrow Shares
in the Indemnity Fund and/or Litigation Fund equal in value to
the amount of such settled Contested Claim in accordance with
such agreement, judgment, order or decree. The balance, if
any, of property constituting the Indemnity Fund and/or
Litigation Fund shall be released promptly in accordance with
Article 2 of the Stock Purchase Agreement. The Escrow Agent
shall be under no duty to institute or defend any such
proceedings, and none of the costs and expenses of such
proceedings shall be borne by the Escrow Agent. If the terms
of a settlement of a dispute hereunder increase the duties or
liabilities of the Escrow Agent and the Escrow Agent has not
participated in such settlement so as to be bound thereby,
then such settlement shall be effective as to the Escrow Agent
in respect of such increase in its duties or liabilities only
upon the Escrow Agent's written assent thereto. Prior to the
settlement of any dispute as provided in this Section
5(b)(ii), the Escrow Agent is authorized and directed to
retain in its possession, without liability to any party
hereto, the Indemnity Fund and/or Litigation Fund; provided,
however, that any portion of the Indemnity Fund and/or
Litigation Fund which is not contested shall be disbursed in
accordance with the provisions of Article 2 of the Stock
Purchase Agreement.
(iii) DELIVERY OF INDEMNITY FUND AND/OR LITIGATION FUND. In
the event that it is determined pursuant to this Section 5(b)
that any portion of the Indemnity Fund and/or Litigation Fund
is owed to any Indemnified Parties hereunder, then the Escrow
Agent will deliver within three (3) Business Days the stock
certificate(s) representing the Escrow Shares in the Indemnity
Fund and/or Litigation Fund to the Buyer's transfer agent,
accompanied by instructions (i) to issue new stock
certificate(s) for the number of Escrow Shares owed to such
Indemnified Parties in the name of such Indemnified Parties
and (ii) to forward such stock certificate(s) to the Buyer. In
the event that the total of the Escrow Shares from the
Indemnity Fund and/or Litigation Fund is greater than the
amount owed to such Indemnified Parties, the Buyer shall cause
its transfer agent to issue and deliver the balance of the
Escrow Shares from the Indemnity Fund and/or Litigation Fund
to the Escrow Agent in the form of new stock certificate(s) in
the name of the Seller within three (3) Business Days of the
receipt by the Buyer's transfer agent of the original stock
certificate(s). Any portion of the Indemnity Fund and/or
Litigation Fund, other than Escrow Shares owed to any
Indemnified Parties, will be delivered to the Seller promptly
after expiration of the Indemnity Escrow Period or the
Litigation Escrow Period, as applicable, pursuant to Section
2.4 of the Stock Purchase Agreement, to the Seller's address
set forth on Schedule 1 hereto or another address the Seller
indicates to the Escrow Agent in writing.
(c) Upon the delivery of the True-Up Notice by the Buyer to the
Escrow Agent and the Seller pursuant to Section 3(b) hereof
and Section 2.7 of the Stock Purchase
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Agreement, the Escrow Agent shall deliver the stock
certificate(s) representing the True-Up Escrow Shares and the
sums subject to the Adjustment Cash Escrow as follows:
(i) In the event the True-Up Notice indicates any or all of
such True-Up Escrow Shares shall be delivered to the Buyer,
pursuant to Section 2.7(a) of the Stock Purchase Agreement,
then the Escrow Agent shall (A) deliver to the Buyer's
transfer agent, within three (3) Business Days from the
True-Up Notice Delivery Date, the stock certificate(s)
representing the number of True-Up Escrow Shares set forth in
the True-Up Notice, accompanied by instructions to issue the
new stock certificate(s) to the Buyer and to forward such
stock certificate(s) to the Buyer at the address set forth on
Schedule 1 hereto or another address the Buyer indicates to
the Escrow Agent in writing and (B) notify the Seller of such
transfer in writing. In the event any of the Escrow Shares
from the Adjustment Stock Escrow are owed to the Seller
pursuant to Section 2.7(a) of the Stock Purchase Agreement
(the "Seller's Adjustment Stock"), the Escrow Agent shall
provide the transfer agent instructions to issue and deliver
the new stock certificate(s) for the Seller's Adjustment Stock
in the name of the Seller to the Seller and the Buyer shall
cause its transfer agent to issue and deliver such Seller's
Adjustment Stock in the name of the Seller to the Seller
within three (3) Business Days of the receipt by the Buyer's
transfer agent of the stock certificate(s) representing such
True-Up Escrow Shares. Such Seller's Adjustment Stock shall be
delivered to the Seller's address set forth on Schedule 1
hereto or another address the Seller indicates to the Escrow
Agent in writing.
(ii) In the event the True-Up Notice indicates any or all of
the Adjustment Cash Escrow shall be paid pursuant to Section
2.7(a) of the Stock Purchase Agreement to the Buyer (the
"Buyer's Adjustment Cash Payment"), the Escrow Agent shall (A)
deliver such Buyer's Adjustment Cash Payment to the Buyer
within two (2) Business Days from the True-Up Notice Delivery
Date to the Buyer's address set forth on Schedule 1 hereto or
another address the Buyer indicates to the Escrow Agent in
writing and (B) notify the Seller of such transfer in writing.
In the event such Buyer's Adjustment Cash Payment is less than
the Adjustment Cash Escrow, the difference of such amounts
(the "Seller's Adjustment Cash") shall be delivered to the
Seller within two (2) Business Days from the True-Up Notice
Delivery Date. Such Seller's Adjustment Cash shall be
delivered to the Seller's address set forth on Schedule 1
hereto or another address the Seller indicates to the Escrow
Agent in writing.
(iii) In the event the True-Up Notice indicates all of the
Adjustment Stock Escrow and/or all of the Adjustment Cash
Escrow shall be payable to the Seller, pursuant to Section
2.7(b) of the Stock Purchase Agreement, the Adjustment Stock
Escrow and/or the Adjustment Cash Escrow shall be delivered to
the Seller within two (2) Business Days from the True-Up
Notice Delivery Date. The Escrow Agent shall (A) deliver such
Adjustment Stock Escrow and/or Adjustment Cash Escrow to the
Seller's address set forth on Schedule 1 hereto or another
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address the Seller indicates to the Escrow Agent in writing
and (B) notify the Buyer of such transfer(s) in writing.
(d) Upon delivery of all of the Escrow Fund by the Escrow Agent,
this Agreement shall terminate, unless as otherwise provided
herein.
(e) As to compliance with any of the foregoing restrictions and
limitations, the Escrow Agent shall have no responsibility to
independently calculate or otherwise determine such matters
but may rely conclusively on the other parties hereto in their
related requests and instructions.
(f) The parties hereto acknowledge that, for purposes of
administering the Escrow Fund in connection with this
Agreement and Article 2 and Section 7.3 of the Stock Purchase
Agreement, shares of Buyer Common Stock will be valued at
$15.50 per share (without regard to the trading value of such
shares at the time of the delivery thereof from the Escrow
Fund).
6. TINs. The Buyer and the Seller each represent that its correct Taxpayer
Identification Number ("TIN") assigned by the Internal Revenue Service or any
other taxing authority is set forth in Schedule 1. All interest or other income
earned under this Agreement shall be allocated and/or paid as directed in a
joint written direction of the Buyer and the Seller and reported by the
recipient to the Internal Revenue Service or any other taxing authority.
Notwithstanding such written directions, the Escrow Agent shall report and, as
required withhold any taxes as it determines may be required by any law or
regulation in effect at the time of the distribution. In the absence of timely
direction, all proceeds of the Escrow Fund shall be retained in the Escrow Fund
and reinvested from time to time by the Escrow Agent as provided in Section 4.
In the event that any earnings remain undistributed at the end of any calendar
year, the Escrow Agent shall report to the Internal Revenue Service or such
other authority such earnings as it deems appropriate or as required by any
applicable law or regulation or, to the extent consistent therewith, as directed
in writing by the Buyer and the Seller. In addition, the Escrow Agent shall
withhold any taxes it deems appropriate and shall remit such taxes to the
appropriate authorities. Upon execution of this Agreement, the Buyer and Seller
shall each provide the Escrow Agent with a fully executed W-9 Internal Revenue
Service Form.
7. ESCROW AGENT. The Escrow Agent undertakes to perform only such duties as are
expressly set forth herein and no duties shall be implied. The Escrow Agent
shall have no liability under and no duty to inquire as to the provisions of any
agreement other than this Agreement. The Escrow Agent may rely upon and shall
not be liable for 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 payments, which may be due it or the Escrow Fund. The Escrow Agent
shall not be liable for any action taken or omitted by it in good faith except
to the extent that a court of competent jurisdiction determines that the Escrow
Agent's gross negligence, willful misconduct or violation of law was the primary
cause of any loss to the Buyer or the Seller. The Escrow Agent may execute any
of
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its powers and perform any of its duties hereunder directly or through agents or
attorneys (and shall be liable only for the careful selection of any such agent
or attorney) 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 a
written opinion of any such counsel or accountants. In the event that the Escrow
Agent shall be uncertain as to its duties or rights hereunder or shall receive
instructions, claims or demands from any party hereto which, in its opinion,
conflict with any of the provisions of this Agreement, it shall be entitled to
refrain from taking any action and its sole obligation shall be to keep safely
all property held in escrow until it shall be directed otherwise in writing by
all of the other parties hereto or by a final order or judgment of a court of
competent jurisdiction. 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), even if the Escrow Agent has been advised of the
likelihood of such loss or damage and regardless of the form of action.
8. SUCCESSION. The Escrow Agent may resign and be discharged from its duties or
obligations hereunder by giving thirty (30) Business Days advance notice in
writing of such resignation to the other parties hereto specifying a date when
such resignation shall take effect. The Escrow Agent shall have the right to
withhold any amount owed to the Buyer pursuant to this Agreement equal to any
amount due and owing to the Escrow Agent, plus any costs and expenses the Escrow
Agent shall reasonably believe may be incurred by the Escrow Agent in connection
with the termination of this Agreement. Any corporation or association into
which the Escrow Agent may be merged or converted or with which it may be
consolidated, or any corporation or association to which all or substantially
all the escrow business of the Escrow Agent's corporate trust line of business
may be transferred, shall be the Escrow Agent under this Agreement without
further act.
9. FEES. The Buyer agrees to (i) pay the Escrow Agent upon execution of this
Agreement and from time to time thereafter reasonable compensation for the
services to be rendered hereunder, which unless otherwise agreed in writing,
shall be as described in Schedule 2 attached hereto, and (ii) pay or reimburse
the Escrow Agent upon request for all reasonable expenses, disbursements and
advances, including reasonable attorney's fees and expenses, incurred or made by
it in connection with the preparation, execution, performance, delivery,
modification and termination of this Agreement. The obligations of this Section
9 shall survive termination of this Agreement.
10. INDEMNITY. The Buyer and the Seller shall jointly and severally indemnify,
defend and save harmless the Escrow Agent and its directors, officers, agents
and employees (the "indemnitees") from all loss, liability or expense (including
the reasonable fees and expenses of in house or outside counsel) arising out of
or in connection with (i) the Escrow Agent's execution and reasonable
performance of this Agreement, except in the case of any indemnitee to the
extent that such loss, liability or expense is due to the gross negligence or
willful misconduct of such indemnitee or is due to a violation of law by such
indemnitee, or (ii) its following any instructions or other directions from the
Buyer or the Seller, except to the extent that its following any such
instruction or direction is expressly forbidden by the terms hereof. The
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parties hereto acknowledge that the foregoing indemnities shall survive the
resignation or removal of the Escrow Agent or the termination of this Agreement.
The parties hereby grant the Escrow Agent a lien on, right of set-off against
and security interest in the Escrow Fund for the payment of any claim for
indemnification, compensation, expenses and amounts due hereunder.
11. NOTICES. Except as otherwise provided for in this Agreement, all
communications hereunder shall be in writing and shall be deemed to be duly
given and received:
(i) upon delivery if delivered personally or upon confirmed transmittal
if by facsimile;
(ii) on the next Business Day (as hereinafter defined) if sent by
overnight courier; or
(iii) four (4) Business Days after mailing if mailed by prepaid
registered mail, return receipt requested, to the appropriate notice
address set forth on Schedule 1 or at such other address as any party
hereto may have furnished to the other parties in writing by registered
mail, return receipt requested.
Notwithstanding the above, in the case of communications delivered to
the Escrow Agent pursuant to (ii) and (iii) of this Section 11, such
communications shall be deemed to have been given on the date received by the
Escrow Agent. In the event that the Escrow Agent, in its sole discretion, shall
determine that an emergency exists, the Escrow Agent may use such other means of
communication as the Escrow Agent deems appropriate. "Business Day" shall mean
any day other than a Saturday, Sunday or any other day on which the Escrow Agent
located at the notice address set forth on Schedule 1 is authorized or required
by law or executive order to remain closed.
12. CERTAIN TERMS CONCERNING ESCROW SHARES. The Escrow Agent shall be under no
duty to take any action to preserve, protect, exercise or enforce any rights or
remedies under or with respect to the Escrow Shares (including without
limitation with respect to the exercise of any voting or consent rights,
conversion or exchange rights, defense of title, preservation of rights against
prior matters or otherwise). The Buyer hereby undertakes to furnish copies of
all proxies, proxy materials and related notices directly to the Seller and to
cooperate with the Seller and the Escrow Agent to facilitate the exercise by the
Seller of voting rights in the Escrow Shares.
13. SECURITY PROCEDURES. In the event funds transfer instructions are given
(other than in writing at the time of execution of this Agreement), whether in
writing, by telecopier or otherwise, the Escrow Agent is authorized to seek
confirmation from each of the Buyer and the Seller of such instructions by
telephone call-back to the person or persons designated on Schedule 3 hereto
("Schedule 3"), and the Escrow Agent may rely upon the confirmation of anyone
purporting to be the person or persons so designated by each of the Seller and
Buyer. The persons and telephone numbers for call-backs may be changed only by
the Seller or the Buyer, respectively, in a writing actually received and
acknowledged by the Escrow Agent. The Escrow Agent and the beneficiary's bank in
any funds transfer may rely solely upon any account numbers or similar
identifying numbers provided by the Buyer or the Seller to identify their
respective (i) beneficiary, (ii) beneficiary's bank, or (iii) intermediary bank.
The Escrow Agent may apply any of the Escrow Fund, other than Escrow Shares, for
any payment order it executes using any such identifying number, even where its
use may result in a person other than the
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beneficiary being paid, or the transfer of funds to a bank other than the
beneficiary's bank or an intermediary bank designated. The parties to this
Agreement acknowledge that these security procedures are commercially
reasonable.
14. CERTAIN TAX MATTERS. In accordance with Rev. Rul. 73-451, 1973-2 C.B. 158,
Rev. Rul. 77-294, 1977-2 C.B. 173 (as amplified by Rev. Rul. 79-91, 1979-1 C.B.
179), and Private Letter Ruling 8629038 (April 18, 1996), as supplemented by
Private Letter Ruling 8645029 (July 1, 1986), the Buyer and the Seller recognize
that the establishment of this Agreement amounts to a substantial restriction on
the Seller's right to receive a portion of the purchase price under the Stock
Purchase Agreement. The Buyer and the Seller agree to treat the Escrow Fund as a
"contingent at-closing escrow" as defined in Treasury Regulation Section
1.468B-8.
15. GOVERNING LAWS. It is the intention of the parties hereto that the internal
laws of the State of Texas (irrespective of its choice of law principles) shall
govern the validity of this Agreement, the construction of its terms, and the
interpretation and enforcement of the rights and duties of the parties to this
Agreement.
16. CONSENT TO JURISDICTION AND SERVICE. Each of the Buyer and the Seller hereby
absolutely and irrevocably consents and submits to the jurisdiction of the
courts in the State of Texas and of any Federal court located in said State in
connection with any actions or proceedings brought against the Buyer or the
Seller (or any of them) by the Escrow Agent arising out of or relating to this
Agreement. In any such action or proceeding, the Buyer and the Seller 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 with Section 11 hereof.
17. BINDING UPON SUCCESSORS AND ASSIGNS. Subject to, and unless otherwise
provided in, this Agreement, each and all of the covenants, terms, provisions,
and agreements contained in this Agreement shall be binding upon, and inure to
the benefit of, the permitted successors, executors, heirs, representatives,
administrators and assigns of the parties to this Agreement including, without
limitation, assigns of the right to receive any of the Escrow Shares. Any entity
into which the Escrow Agent may be merged or with which it may be consolidated,
or any entity to whom the Escrow Agent may transfer a substantial part of its
global escrow business, shall be the successor to the Escrow Agent without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding.
18. COUNTERPARTS. This Agreement may be executed in any number of counterparts,
each of which shall be an original as against any party whose signature appears
on such counterpart and all of which together shall constitute one and the same
instrument. This Agreement shall become binding when one or more counterparts of
this Agreement, individually or taken together, shall bear the signatures of all
of the parties reflected in this Agreement as signatories.
19. ENTIRE AGREEMENT. Except as set forth in the Stock Purchase Agreement, this
Agreement, the Letter Agreement, the documents referenced in this Agreement and
the exhibits
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to such documents, constitute the entire understanding and agreement of the
parties to this Agreement with respect to the subject matter of this Agreement
and of such documents and exhibits and supersede all prior and contemporaneous
agreements or understandings, inducements or conditions, express or implied,
written or oral, between the parties with respect to this Agreement. The express
terms of this Agreement control and supersede any course of performance or usage
of the trade inconsistent with any of the terms of this Agreement.
20. WAIVERS. No waiver by any party to this Agreement of any condition or of any
breach of any provision of this Agreement will be effective unless in writing.
No waiver by any party of any such condition or breach, in any one instance,
will be deemed to be a further or continuing waiver of any such condition or
breach or a waiver of any other condition or breach of any other provision
contained in this Agreement.
21. AMENDMENT. This Agreement may be amended with the written consent of the
Buyer, the Escrow Agent and the Seller, provided that if the Escrow Agent does
not agree to an amendment agreed upon by the Buyer and the Seller, the Buyer and
the Seller will appoint a successor Escrow Agent in accordance with Section 8.
22. FORCE MAJEURE. Neither the Buyer nor the Seller nor the Escrow Agent shall
be responsible for delays or failures in performance 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.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date set forth in Schedule 1.
JP MORGAN CHASE BANK
AS ESCROW AGENT
By: /s/ Robert J. Stanislaro
-----------------------------------------------
Name: Robert J. Stanislaro
Title: Vice President
BUYER
By: /s/ David M. Stoner
-----------------------------------------------
Name: David M. Stoner
Title: President and Chief Executive Officer
SELLER
By: /s/ Paul Bourke
-----------------------------------------------
Name: Paul Bourke
Title: President and Chief Executive Officer