ESCROW AGREEMENT
THIS ESCROW AGREEMENT (the "Agreement") dated as of May 29, 1998 is
among STEVEN MYERS & ASSOCIATES, INC., a California corporation ("SM&A") SPACE
APPLICATIONS CORPORATION, a California corporation ("SAC"), the shareholders of
SAC as identified on SCHEDULE 1 hereto, STANLEY Y.H. HEE (the "SAC
REPRESENTATIVE"), and FIRST AMERICAN TRUST COMPANY, as escrow agent (the "ESCROW
AGENT").
PRELIMINARY STATEMENT
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Pursuant to an Agreement and Plan of Reorganization and Merger dated as
of May 29, 1998 (the "MERGER AGREEMENT"), by and among SM&A, SAC, SAC
Acquisition, Inc., a wholly owned subsidiary of SM&A, and Roger H. Skinner, SM&A
is acquiring SAC through the merger of SAC Acquisition, Inc. with and into SAC.
Capitalized terms used herein and not otherwise defined have the meanings
ascribed to them in the Merger Agreement.
The holders of the Company Stock outstanding immediately prior to the
Effective Time (the "SHAREHOLDERS") have agreed to indemnify SM&A as provided in
Article 9 of the Merger Agreement through the deposit of 81,974 shares of SM&A
Stock (the "ESCROW SHARES") pursuant to Section 2.8 of the Merger Agreement. A
list of all Shareholders and their pro rata interest in the Escrow Shares is
attached hereto as SCHEDULE 2.
The parties hereto agree as follows:
1. Establishment of Escrow.
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SM&A has delivered to the Escrow Agent and the Escrow Agent
acknowledges receipt of the Escrow Shares in the form of a single stock
certificate. The Escrow Shares shall be held in escrow in the name of the Escrow
Agent or its nominee, subject to the terms and conditions set forth herein.
Unless and until the Escrow Shares are returned to SM&A or delivered to the
Shareholders pursuant to the terms of this Agreement, the Escrow Agent shall
vote the Escrow Shares in accordance with the written instructions of the SAC
Representative.
Escrow Agent shall invest any cash held by it pursuant to this
Agreement in interest bearing accounts or certificates of deposit with such
bank(s) or financial institution(s) as it deems advisable.
2. Amounts Earned on Escrow Shares; Tax Matters.
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All amounts earned on the Escrow Shares (dividends or other
distributions, and interest earned thereon) shall be distributed
pro rata to the Shareholders on a quarterly basis. All interest earned on cash
deposited by Shareholders pursuant to SECTION 3.3, shall be paid to the
Shareholders entitled thereto on a quarterly basis. The parties agree that to
the extent required by applicable law, including Section 468B(g) of the Internal
Revenue Code of 1986, as amended (the "CODE"), the Shareholders will include all
amounts earned on the Escrow Shares and all interest earned on cash deposits in
their gross income for federal, state and local income tax (collectively,
"INCOME TAX") purposes and pay any income tax resulting therefrom. As a
condition to a Shareholder's right to replace Escrow Shares with Escrow Funds as
provided in SECTION 3.3, such Shareholder shall have previously furnished to the
Escrow Agent all information necessary to enable the Escrow Agent to comply with
the reporting and backup withholding obligations of the Code
3. Claims Against Escrow Shares.
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3.1 At any time or times prior to the Expiration Date (as defined in
SECTION 5) SM&A may make claims against the Escrow Shares and "Escrow Funds" (as
defined in SECTION 3.3) for amounts due for indemnification under Article 9 of
the Merger Agreement. SM&A shall notify the SAC Representative and the Escrow
Agent in writing of each such claim ("NOTICE OF CLAIM"), including a brief
description of the amount and nature of such claim. If the amount subject to the
claim is unliquidated, SM&A shall make a good faith estimate as to the amount of
the claim for purposes of determining the number of Escrow Shares and/or amount
of Escrow Funds, if any, to be withheld by the Escrow Agent if such claim is not
resolved or otherwise adjudicated by the Expiration Date. Such good faith
estimate shall be included in the Notice of Claim. If the SAC Representative
shall dispute a claim or SM&A's estimate as to the amount of the claim, the SAC
Representative shall give written notice thereof to SM&A and to the Escrow Agent
within 30 days after the date SM&A's Notice of Claim was given to the SAC
Representative, in which case the Escrow Agent shall continue to hold the Escrow
Shares/Escrow Funds in accordance with the terms of this Agreement; otherwise,
such liquidated claim shall be deemed to have been acknowledged to be payable
out of the Escrow Shares/Escrow Funds in the full amount thereof as set forth in
the Notice of Claim and the Escrow Agent shall use its best efforts to pay such
liquidated claim from the Escrow Shares/Escrow Funds to SM&A within three
business days after expiration of said 30-day period. Unliquidated claims shall
not be paid until liquidated. Disputes as to the SM&A's good faith estimate of a
claim shall be resolved as provided in SECTION 4.1. The value of Escrow Shares
and Escrow Funds paid to satisfy a claim under this Agreement shall be allocated
pro rata among the Shareholders based on their proportionate interests in the
aggregate Escrow Shares and Escrow Funds. With respect to each Shareholder, the
amount paid to satisfy a claim under this Agreement shall be deducted first from
the Escrow Funds and then, to the extent necessary, from the Escrow Shares
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allocable to such Shareholder. If the amount of the claim exceeds the aggregate
value of the Escrow Shares/Escrow Funds subject thereto, the Escrow Agent shall
have no liability or responsibility for any deficiency.
3.2 The Escrow Agent shall effect the payment of Escrow Shares to SM&A
by surrendering such Escrow Shares to SM&A's stock transfer agent (U.S. Stock
Transfer Corporation, 1745 Gardena Avenue, Glendale, CA 91204 ("UST")) for
cancellation upon receipt by the Escrow Agent of a copy of a letter from SM&A to
UST, instructing UST to issue a new certificate to the Escrow Agent for the
remaining Escrow Shares after giving effect to such payment. The value per share
of the Escrow Shares for purposes of this Agreement shall be the Average Closing
Price for the Base Period. All claims paid out of the Escrow Shares shall be
rounded to the nearest whole share. The Escrow Agent shall not be responsible
for and shall have no liability in connection with determining whether the
transfer of any Escrow Shares complies with federal or state securities laws.
3.3 In the event that the Escrow Shares become eligible for sale
pursuant to Rule 144 under the Securities Act or are entitled to be included in
a registration statement filed by SM&A pursuant to the Securities Act ("ELIGIBLE
ESCROW SHARES"), then a Shareholder may sell (pursuant to Rule 144 or an
effective registration statement) all or any portion of his allocation of the
Eligible Escrow Shares; provided that such Shareholder has arranged, to SM&A
satisfaction, for the deposit into escrow of the proceeds from the sale of such
Eligible Escrow Shares. The funds deposited by a Shareholder pursuant to this
SECTION 3.3 ("ESCROW FUNDS") shall be held by the Escrow Agent and subject to
the terms and conditions of this Agreement.
3.4 If the SAC Representative shall give notice to SM&A and the Escrow
Agent pursuant to Section 3.1 disputing an SM&A claim, no distribution of the
Escrow Shares/Escrow Funds shall be made by the Escrow Agent to SM&A or to the
Shareholders of the Set Aside Amount (as defined in Section 4.1) with respect to
such claim until either: (i) such disputed claim has been resolved as evidenced
by a written notice executed by SM&A and the SAC Representative instructing the
Escrow Agent as to the distribution of such Set Aside Amount or a portion
thereof; or (ii) such dispute shall have been adjudicated in accordance with the
arbitration procedures described in Section 4.2.
4. Disputed Claims.
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4.1 If the SAC Representative shall dispute an indemnification claim of
SM&A as provided in SECTION 3, the Escrow Agent shall set aside a portion of the
Escrow Shares/Escrow Funds equal to the amount of the claim as set forth in the
Notice of Claim (the "SET ASIDE AMOUNT"), which amount may subsequently be
modified by arbitration. If the SAC Representative shall dispute the Set Aside
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Amount as provided in SECTION 3, the Escrow Shares/Escrow Funds constituting the
Set Aside Amount shall be withheld pursuant to the immediately preceding
sentence until otherwise determined by arbitration. The Set Aside Amount shall
be allocated pro rata among the Shareholders based upon their percentage
interests in the aggregate Escrow Shares/Escrow Funds. With respect to each
Shareholder, the amount constituting the Set Aside Amount shall be deducted
first from the Escrow Funds and then, to the extent necessary, from the Escrow
Shares allocable to such shareholder. In the event SM&A notifies the Escrow
Agent in writing that it has made out-of-pocket expenditures or anticipates that
it will incur legal expenses in connection with any such disputed claim with
respect to which it is entitled to be indemnified under the Merger Agreement, a
portion of the Escrow Shares/Escrow Funds equal to such reasonable incurred or
anticipated expenditures shall also be set aside and added to and become a part
of the Set Aside Amount; provided, that in the event that it shall be agreed (as
evidenced by a written notice executed by SM&A and the SAC Representative as
described in SECTION 3.4) or determined through an arbitration proceeding
described in SECTION 4.2 that SM&A is not entitled to indemnification with
respect to such claim or such expenses, SM&A shall not be entitled to the
portion of the Escrow Shares/Escrow Funds set aside for such expenses.
4.2 If, within 60 days after the SAC Representative sends notice of a
dispute, the Escrow Agent has not received written notice executed by SM&A and
the SAC Representative to the effect that the disputed indemnification claim has
been resolved, the indemnification claim shall be referred to an arbitrator
chosen by agreement of the SAC Representative and SM&A. If no agreement is
reached regarding selection of the arbitrator within 30 days after written
request from either party to the other, SM&A or the SAC Representative may
submit the matter in dispute to JAMS, to be settled by arbitration in Orange
County, California in accordance with the commercial arbitration rules of such
association. SM&A and the SAC Representative agree to act in good faith to
select mutually an arbitrator. The fees and expenses of any arbitration shall be
borne equally by the Shareholders as a group and SM&A, unless and until the
arbitrator determines otherwise. Any fees or expenses attributable to the
Shareholders as a group shall be payable only out of the Escrow Shares/Escrow
Funds. In no event shall the Escrow Agent be responsible for any fees or
expenses of any party to any arbitration proceedings. The determination of the
arbitrator as to the amount, if any, of the indemnification claim that is
properly allowable shall be conclusive and binding upon the parties hereto and
judgment may be entered thereon in any court having jurisdiction thereof,
including, without limitation, any Superior Court in the State of California.
The Escrow Agent shall make payments of such claim, as and to the extent
allowed, to SM&A within three business days following its receipt of a copy of
the arbitration award determination.
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5. Termination and Distribution of Escrow Shares.
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5.1 This Agreement shall terminate two (2) years after the Effective
Time (as defined in Section 1.2 of the Merger Agreement) (the "EXPIRATION
DATE"); provided that this Agreement shall continue in effect until the
resolution of all outstanding indemnification claims as to which the Escrow
Agent has received notice pursuant to SECTION 3 hereof on or prior to the
Expiration Date.
5.2 SM&A shall provide the Escrow Agent with reasonable advance notice
of the expected Expiration Date and shall confirm the occurrence of such as soon
as practicable thereafter. On the Expiration Date or as soon thereafter as is
practicable, the Escrow Agent shall distribute the remaining Escrow
Shares/Escrow Funds less (i) the number of Escrow Shares and amount of Escrow
Funds constituting any then existing Set Aside Amounts, and (ii) the number of
Escrow Shares and amount of Escrow Funds equal to the amount specified in any
Notice of Claim delivered to the Escrow Agent prior to the Expiration Date with
respect to which no Set Aside Amount has yet been established and the Escrow
Agent has not otherwise been instructed by SM&A and the SAC Representative. At
such time thereafter as any remaining indemnification claim hereunder has been
resolved and the Escrow Agent has received a written notice executed by SM&A and
the SAC Representative to that effect (or a copy of an arbitration award
pursuant to SECTION 4.2 to that effect) and any amounts to be distributed to
SM&A in connection therewith have been so distributed, the Escrow Agent shall
distribute any portion of the remaining Escrow Shares/Escrow Funds withheld in
respect of such claim to the Shareholders based on their relative percentage
interest in such Escrow Share and/or Escrow Funds. Upon the resolution of all
outstanding indemnification claims hereunder, the Escrow Agent shall distribute
the remaining amount, if any, of the Escrow Shares/Escrow Funds to the
Shareholders based on their relative percentage interest in such Escrow Share
and/or Escrow Funds and this Agreement shall terminate. SM&A shall not be
required to issue certificates for fractional shares in any distribution of
Escrow Shares pursuant to this Agreement, but rather shall pay to the Escrow
Agent for distribution to the Shareholders an amount in cash (without interest)
determined by multiplying each Stockholder's fractional interest by the Average
closing Price for the Base Period. The Escrow Agent shall effect such
distributions of Escrow Shares as it is required to make to the Shareholders
under this Agreement by surrendering such Escrow Shares to UST for cancellation
upon receipt by the Escrow Agent of a copy of a letter from SM&A to UST,
instructing such transfer agent to issue such shares to the Shareholders based
upon their relative interests therein. The combination of Escrow Shares and
Escrow Funds to be withheld under this SECTION 5.3 as Set Aside Amounts or
pursuant to a Notice of Claim (for which no set aside amount has been
established) shall be determined in accordance with SECTION 4.1.
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6. The Escrow Agent.
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6.1 Notwithstanding anything herein to the contrary, the Escrow Agent
shall promptly dispose of all or any part of the Escrow Shares/Escrow Funds as
directed by a writing jointly signed by the SAC Representative and SM&A. The
reasonable fees and expenses of the Escrow Agent (as set forth on the fee
schedule attached hereto as SCHEDULE 3) in connection with its performance of
this Agreement shall be borne by SM&A. The Escrow Agent shall not be liable for
any act or omission to act under this Agreement, including any and all claims
made against the Escrow Agent as a result of its holding the Escrow
Shares/Escrow Funds in its own name, except for its own gross negligence or
willful misconduct. The Escrow Agent shall not be liable for, and the
Shareholders (only to the extent of their proportionate share of the Escrow
Shares/Escrow Funds) and SM&A shall jointly and severally indemnify the Escrow
Agent against, any losses or claims (including reasonable out-of-pocket
expenses) arising out of, any action taken or omitted in good faith hereunder or
upon the advice of counsel. The Escrow Agent may decline to act and shall not be
liable for failure to act if in doubt as to its duties under this Agreement. The
Escrow Agent may act upon any instrument or signature believed by it to be
genuine and may assume that any person purporting to give any notice or
instruction hereunder, reasonably believed by it to be authorized, has been duly
authorized to do so. The Escrow Agent's duties shall be determined only with
reference to this Agreement and applicable laws, and the Escrow Agent is not
charged with knowledge of or any duties or responsibilities in connection with
any other document or agreement, including, but not limited to, the Merger
Agreement.
6.2 The Escrow Agent shall have the right at any time to resign
hereunder by giving written notice of its resignation to the parties hereto, at
the addresses set forth herein or at such other address as the parties shall
provide, at least 30 days prior to the date specified for such resignation to
take effect. In such event SM&A and the SAC Representative shall by agreement
appoint a successor escrow agent within said 30 days; if SM&A and the SAC
Representative do not agree upon the selection of a successor escrow agent
within such period, the Escrow Agent may appoint a successor escrow agent. Upon
the effective date of such resignation, the Escrow Shares together with all cash
and other property then held by the Escrow Agent hereunder shall be delivered by
it to such successor escrow agent or as otherwise shall be designated in writing
by SM&A and the SAC Representative.
6.3 In the event that the Escrow Agent should at any time be confronted
with inconsistent or conflicting claims or demands by the parties hereto, the
Escrow Agent shall have the right to interplead said parties in any court of
competent jurisdiction and request that such court determine the respective
rights of such parties with respect to this Agreement and, upon doing so, the
Escrow Agent shall be released from any obligations or liability to either party
as a consequence of any such claims or demands. The reasonable fees and costs
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incurred by the Escrow Agent in interpleading said parties shall be borne
equally by SM&A and the Shareholders as a group.
6.4 The Escrow Agent may execute any of its powers or responsibilities
hereunder and exercise any rights hereunder, either directly or by or through
its agents or attorneys. The Escrow Agent shall not be responsible for and shall
not be under a duty to examine, inquire into or pass upon the validity, binding
effect, execution or sufficiency of this Agreement or of any amendment or
supplement hereto.
7. SAC Representative.
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7.1 The SAC Representative accepts and agrees to discharge diligently
the duties and responsibilities of the SAC Representative set forth in this
Agreement. SM&A and the Escrow Agent shall be entitled to rely upon the
authorization and designation of the SAC Representative under this SECTION 7.
7.2 The SAC Representative is authorized to take any action it deems
appropriate or necessary to carry out the provisions of, and to determine the
rights of the Shareholders under, this Agreement, including without limitation,
taking any action required or permitted under this Agreement to protect or
enforce the Shareholders' rights to the Escrow Shares/Escrow Funds. The SAC
Representative's authority includes but is not limited to:
(a) receiving all notices or other documents given or to be
given pursuant to this Agreement or in connection with the transactions
contemplated hereby;
(b) engaging special counsel, accountants, investment banks or
other advisors and incurring such other expenses in connection with the
Agreement and the transactions contemplated thereby as are required
therein;
(c) prosecuting and settling any dispute in connection with
the Agreement, including without limitation the resolution of any
disputes related to disbursements of the Escrow Shares/Escrow Funds;
and
(d) paying all expenses incurred in connection with the
Agreement and the transactions contemplated thereby out of the Escrow
Shares/Escrow Funds pursuant to SECTIONS 7.5 AND 7.8 below.
7.3 In the event of the death, resignation, discharge or incapacity of
the SAC Representative, Shareholders holding a majority of the Escrow
Shares/Escrow Funds shall appoint a successor SAC Representative. Such successor
SAC Representative shall be appointed by an instrument in writing signed by the
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requisite Shareholders, and such appointment shall become effective as to any
such successor SAC Representative when such instrument shall have been delivered
to such person, and that person has consented to such appointment.
7.4 The SAC Representative shall keep the Shareholders reasonably
informed of his decisions of a material nature.
7.5 The reasonable expenses (including the reasonable fees and
disbursements of counsel, accountants and advisors in connection with the
arbitration of a disputed claim or otherwise) incurred by the SAC Representative
in connection with his duties hereunder shall be paid for out of the Escrow
Shares/Escrow Funds by the Escrow Agent as provided in SECTION 7.8 below and in
an amount not to exceed $100,000. The SAC Representative shall keep adequate and
reasonable books and records of his expenses. Such payment shall not affect the
rights of either SM&A or the Shareholders under the Merger Agreement or SECTION
11 of this Agreement.
7.6 The SAC Representative shall diligently discharge his duties and
responsibilities under this Agreement. The SAC Representative shall not be
liable to the parties hereto or any Stockholder for any action taken or omitted
by the SAC Representative in good faith, or for any mistake of fact or law,
unless caused by his own gross negligence or willful misconduct. In no event
shall the SAC Representative be responsible or liable for special, indirect or
consequential loss or damages of any kind, regardless of the form of the action.
7.7 The SAC Representative shall be entitled to treat as genuine any
letter or other document furnished to him by SM&A or the Escrow Agent and
reasonably believed by it to be genuine and have been signed and presented by
the proper party or parties.
7.8 The SAC Representative shall not be entitled to any compensation
for services hereunder. To the extent the SAC Representative shall incur
out-of-pocket costs (including the reasonable fees and disbursements of counsel,
accountants and advisors in connection with the arbitration of a disputed claim
or otherwise) in the performance of his duties hereunder, the SAC Representative
shall be authorized to direct the Escrow Agent to reimburse the SAC
Representative for such reasonable expenses out of the Escrow Shares/Escrow
Funds in an amount not to exceed $100,000. The combination of Escrow Shares and
Escrow Funds paid to the SAC Representative hereunder shall be determined in
accordance with SECTION 3.1 hereof.
7.9 SM&A shall be entitled to treat as genuine any letter or other
document furnished to it by the SAC Representative or the Escrow Agent and
reasonably believed by it to be genuine and have been signed and presented by
the proper party or parties.
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8. Governing Law.
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This Agreement is governed by the laws of the State of California
without regard to its conflict of law provisions, and shall inure to the benefit
of and be binding upon the successors, assigns, heirs and personal
representatives of the parties hereto. Service of process in any proceeding
arising under this Agreement (including service of process for the institution
of such proceeding) may be made by certified mail, return receipt requested,
directed to the respective party in accordance with SECTION 10 below.
9. Counterparts.
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This Agreement may be executed in one or more counterparts, all of
which documents shall be considered one and the same document.
10. Notices.
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Any notice or other communication required or permitted hereunder shall
be in writing and shall be deemed given when so delivered in person, by
overnight courier, by facsimile transmission (with receipt confirmed by
telephone or by automatic transmission report) or two business days after being
sent by registered or certified mail (postage prepaid, return receipt
requested), as follows:
To SM&A: Steven Myers & Associates, Inc.
4695 MacArthur Boulevard,
Eighth Floor
Newport Beach, California 92660
Attention: Chief Operating Officer
Telephone: 714-975-1550
Fax: 714-975-1624
With a copy to: Rutan & Tucker, LLP
611 Anton Boulevard, 14th Floor
Costa Mesa, California 92626
Attn: Thomas J. Crane, Esq.
Telephone: 714-641-5100
Fax: 714-546-9035
To SAC Representative: Stanley Y.H. Hee
25774 Piuma
Calabasas, California 91302
Telephone: 818-222-8771
Fax: 818-222-8771
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With a copy to: Rosenfeld, Meyer & Susman, LLP
9601 Wilshire Blvd, 4th Floor
Beverly Hills, CA 90210
Attn: David D. Wexler, Esq.
Telephone: 310-858-7700
Fax: 310-271-6430
To Escrow Agent: First American Trust Company
2161 San Joaquin Hills Road
Newport Beach, California 92660
Attn: Elizabeth A. Markworth
Telephone: (949) 719-4532
Fax: (714) 667-1613
Addresses may be changed by written notice given pursuant to this section. Any
notice given hereunder may be given on behalf of any party by his counsel or
other authorized representative.
11. Attorney's Fees.
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In the event of any litigation among the parties hereto (including,
without limitation, any arbitration proceeding described in SECTION 4.2 above),
the prevailing party in such litigation or proceeding shall be entitled to
recover all costs incurred in connection therewith, including, without
limitation, reasonable attorneys fees, provided that the costs of any
arbitration proceeding shall be allocated in the manner set forth in SECTION
4.2.
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IN WITNESS WHEREOF, the parties hereto have executed this Escrow
Agreement as of the date first stated above.
SM&A: STEVEN MYERS & ASSOCIATES, INC.,
a California corporation
By: /s/ Ken Colbaugh
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Kenneth Colbaugh,
Chief Operating Officer
SAC: SPACE APPLICATIONS CORPORATION,
a California corporation
By: /s/ Roger H. Skinner
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Roger H. Skinner, President
ESCROW AGENT: FIRST AMERICAN TRUST COMPANY
By: /s/ illegible signature
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Its: Trust Officer
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By: /s/ Forrest West
------------------------------------
Its: Vice President
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SAC REPRESENTATIVE: /s/ Stanley Y. H. Hee
---------------------------------------
STANLEY Y. H. HEE
SHAREHOLDERS: /s/ Stanley Y. H. Hee
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STANLEY Y. H. HEE, as attorney-in-
fact for the Shareholders identified
on Schedule 4 hereto
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SCHEDULE 1
Shareholders
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(attached hereto)
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SCHEDULE 2
Escrow Interests
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Interest In
Stockholder Escrow Shares
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Allman, Betty B. 73
Bergen, Jodine L. 243
Berry, Debra D. 243
Boeshaar, Glenn V. 4,379
Bruce, Phillip 608
Dai, Dr. Kai K. 49
Dukellis, Peter John 182
Harms, John W. 730
Hee, Stanley 19,500
Hesprich, Glen V. 487
Kaun, Carl F. 730
Kelly, Anne S. 3,041
Knight, Wayne G. 24
Krueger, Dr. Robert W. 1,179
Kuseski, Richard A. 243
Livingston, William A. 487
Love, Glenn E. 243
Lu, Dr. Amos 1,217
Dr. Amos Lu, Trustee of the Amos
Lu Small Fund Living Trust 1,217
Lyle, Alred E. 1,946
Mast, Steven R. 243
Miller, Dr. Robert C. 2,555
Morrell, Robert 122
Murphy, Irene S. 24
Nelson, Patricia D. 243
Newell, John W. 973
Space Applications Corporation 3,768
Employer Stock Trust
Skinner, Roger H. 32,724
Smith, Clarence E. 2,043
Stringfellow, Janice G. 24
Welter, Thelma G. 2,433
Total 81,974
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SCHEDULE 3
Escrow Agent Fees
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(attached hereto)
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SCHEDULE 4
Shareholders For Whom Stanley Y. H. Hee is Attorney-In-Fact
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(attached hereto)
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