ESCROW AGREEMENT
THIS AGREEMENT is made this 1st day of April, 1999 (the "Agreement"),
by and among CADMUS COMMUNICATIONS CORPORATION, a Virginia corporation
("Buyer"), MELHAM U.S. INC., a Delaware corporation, PURICO (IOM) LIMITED, an
Isle of Man company, and XXXX X. XXXX, a United States citizen (collectively,
"Sellers"), as the sole shareholders of Melham Holdings Inc., a Delaware
corporation ("MHI"), and STATE STREET BANK AND TRUST COMPANY, N.A., a national
banking association, as escrow agent (the "Escrow Agent").
WHEREAS, Buyer and Sellers have entered into a Stock Purchase
Agreement, dated April 1, 1999 (the "Purchase Agreement"), pursuant to which the
Shareholders have agreed to sell and Buyer has agreed to purchase all of the
issued and outstanding stock of MHI;
WHEREAS, the Purchase Agreement provides that Buyer shall deposit
849,085 shares of Buyer Common Stock (the "Shares") and $6,414,640 principal
amount of the Buyer Notes (the "Notes," ) on the date hereof with the Escrow
Agent, which Shares and Notes shall be held, invested and disbursed in
accordance with the terms of the Purchase Agreement and this Agreement;
WHEREAS, for purposes of this Agreement, the term "Escrow Shares"
shall mean (i) the Shares, and (ii) the shares of common stock, par value $0.50
per share, of Buyer (the "Buyer Common Stock") or other securities issued as, or
upon the conversion or exercise of other securities issued as, a dividend or
other distribution with respect to or in replacement of other Shares or the
Notes;
WHEREAS, for purposes of this Agreement, the term "Escrow Funds" shall
include the Escrow Shares, the Notes and cash and other investments permitted
pursuant to Section 12 hereof or otherwise deposited in the escrow account (but
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not any interest, cash dividends or earnings thereon); and
WHEREAS, the Escrow Agent has agreed to serve as escrow agent under
this Agreement and to accept delivery of the Escrow Funds and to hold, invest
and disburse the Escrow Funds in accordance with the terms and conditions
specified in this Agreement.
NOW THEREFORE, in consideration of the premises and agreements set
forth below and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Capitalized Terms. All capitalized terms used herein that are not
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otherwise defined shall have the meanings ascribed to such terms in the Purchase
Agreement.
2. Appointment of Escrow Agent. Buyer and Sellers hereby appoint the
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Escrow Agent as escrow agent to receive, hold, invest and disburse the Escrow
Funds and the Escrow Agent hereby accepts its appointment as escrow agent on the
terms described herein.
3. Appointment of Seller Representative. Sellers hereby appoint
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Xxxxx X. Xxxx (the "Seller Representative") to act as agent and representative
on Sellers' behalf with respect to all matters in connection with this Agreement
and authorizes Xxxxx X. Xxxx, as Seller Representative, to take any and all
actions as required hereunder or in connection herewith, whether or not
specifically described herein. Xxxxx X. Xxxx hereby accepts such appointment as
Seller Representative. Any action taken or communication given or received by
the Seller Representative shall be deemed to be taken, given or received by each
Seller.
4. Deposit With Escrow Agent. Concurrently with the execution of
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this Agreement, Buyer has deposited with the Escrow Agent certificates
representing 849,085 shares of Buyer Common Stock and $6,414,640 aggregate
principal amount of its 11.5% subordinated notes. The Shares deposited in escrow
shall be accompanied by appropriate stock powers.
Sellers and Buyer agree that the Escrow Funds will remain in escrow
with the Escrow Agent and neither Sellers, on the one hand, nor Buyer, on the
other, will withdraw or attempt to withdraw the Escrow Funds from the Escrow
Agent, except as provided in this Agreement. The parties agree that Sellers
shall be treated as the owners of the Escrow Funds for tax purposes.
5. Escrow. Upon receipt of the Escrow Funds, the Escrow Agent shall
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deposit the Escrow Funds in a separate escrow account and shall hold the Escrow
Funds in accordance with the terms of this Agreement.
6. Termination of Escrow Account. The release and payment of the
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balance of the Escrow Funds by the Escrow Agent in accordance with this Escrow
Agreement shall terminate the escrow described herein and will act as a complete
discharge of the Escrow Agent from all liability with respect to such funds,
except for a breach of the Escrow Agent's obligations hereunder prior to such
termination.
7. Release of Escrow Funds from Escrow.
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(a) The Escrow Funds will be held in escrow by the Escrow Agent
until required to be released pursuant to this Section 7 or Section 8 below.
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(b) On October 1, 2000 (the "Initial Release Date"), the Escrow
Agent shall release to Seller Representative an amount of Escrow Funds, subject
to the terms described below, equal to $5,000,000 less (A) an amount equal to
all Escrow Funds released to Buyer pursuant to Section 8 hereof on or prior to
the Initial Release Date and (B) an amount equal to any then pending but
unresolved Claims (the "Unresolved Claims") based upon the amount of such Claim,
as set forth in the Notice of Claim, as it may be amended from time to time. Not
less than three (3) business days prior to the Initial Release Date, Buyer shall
provide the Seller
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Representative and Escrow Agent with written notice specifying in reasonable
detail the amount of Escrow Funds to be released and whether such Escrow Funds
to be released shall be in the form of Escrow Shares or other Escrow Funds
(other than the Notes) (it being understood that the form of Escrow Funds to be
released shall be at Seller Representative's discretion, but shall not include
the Notes), which will be valued at Fair Market Value, as defined below. On
April 1, 2004 (the "Final Release Date"), the Escrow Agent shall release to
Seller Representative all of the Escrow Funds then in escrow minus the Escrow
Funds then in escrow that may be subject to delivery to the Buyer in accordance
with Section 8 below with respect to any Unresolved Claims based upon the amount
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of such Claim, as set forth in the Notice of Claim, as it may be amended from
time to time. Not less than three (3) business days prior to the Final Release
Date, Buyer shall provide the Seller Representative and Escrow Agent with
written notice in reasonable detail of the amount of any Escrow Funds to be
retained as a result of Unresolved Claims and whether such Escrow Funds to be
retained shall be Escrow Shares, the Notes or other forms of Escrow Funds (it
being understood that the form of Escrow Funds to be released shall be at Seller
Representative's discretion, but shall not include the Notes unless the amount
of the Unresolved Claims is less than the aggregate face amount of the Notes in
which event the Escrow Agent will surrender the Notes to the Buyer in exchange
for new Notes in the amount of the Unresolved Claims and the Buyer shall issue
to Sellers new Notes for the amount to be released). If no such notice shall
have been delivered to the Seller Representative and the Escrow Agent at least
three (3) business days prior to the Final Release Date, no Escrow Funds shall
thereafter be retained and the Escrow Agent shall release to the Seller
Representative on the Final Release Date all of the remaining Escrow Funds.
Following final resolution of any Unresolved Claims thereafter, the Escrow Agent
shall promptly (but in no event later than one business day thereafter) release
to the Seller Representative all of the Escrow Funds remaining in escrow, if
any, after delivery to the Buyer of the Escrow Funds to which it is entitled
with respect to such Unresolved Claims.
(c) Any delivery of Escrow Shares, Notes or other Escrow Funds to be
made pursuant to this Agreement to the Seller Representative, as the agent and
representative of the beneficial holder of such Escrow Shares, Notes and other
Escrow Funds, will be in the form of (i) with respect to the Escrow Shares and
the Notes, one or more stock certificates of Buyer Common Stock reissued by
Buyer's transfer agent or Notes reissued by Buyer in the names specified in the
original certificates representing the Escrow Shares and Notes and in the
aggregate amount of the aggregate Escrow Funds to be released to the Seller
Representative at such time (it being understood that the portion of the Escrow
Funds that is represented by such stock certificate or Note and that is to be
retained by the Escrow Agent shall be returned to Escrow Agent in the form of
one or more stock certificates of Buyer Common Stock reissued by Buyer's
transfer agent or Notes reissued by Buyer in the names specified in the original
certificates representing the Escrow Shares and Notes in the aggregate amount of
the portion of the Escrow Funds to be retained by the Escrow Agent at such time)
or (ii) with respect to the Escrow Funds other than the Escrow Shares and the
Notes, such Escrow Funds as they exist on the date of such delivery. The Escrow
Agent shall not be responsible for the reissuance of such stock certificates or
Notes or the return of the portion of the Escrow Funds to be retained by the
Escrow Agent to the Escrow Agent.
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(d) The parties hereby authorize the Escrow Agent to apply to the
Buyer's transfer agent, First Union National Bank, or any successor transfer
agent for the Escrow Shares for any division of certificates evidencing Escrow
Shares which may be required in connection with the distribution of Escrow
Shares pursuant to this Agreement.
(e) Notwithstanding anything to the contrary contained herein, (i) the
Escrow Agent shall not be required to make distributions in excess of the amount
of the Escrow Funds from time to time held hereunder; (ii) any delivery of
Escrow Shares to be made to the Buyer shall be made by delivery of the Escrow
Shares representing the Claim amount together with stock powers, if any; and
(iii) if any calculation of Escrow Shares to be distributed would otherwise
result in fractional shares with respect to any party to whom a distribution is
to be made, such fractions shall be rounded down to the nearest whole share.
8. Notice and Resolution of Claims.
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(a) In the event that the Buyer desires to seek recovery against the
Escrow Funds pursuant to Section 8.02 of the Purchase Agreement with respect to
any Loss that may be indemnifiable thereunder (a "Claim"), the Buyer
concurrently will give each of the Escrow Agent and the Seller Representative
written notice of such Claim. Each notice of a Claim made by the Buyer (a
"Notice of Claim") will contain the following information to the extent it is
reasonably available to the Buyer:
(i) the amount of the Claim and the applicable provisions of the
Purchase Agreement upon which such Claim is based (which amount may be
revised by the Buyer at any time prior to the release of Escrow Funds
with respect to such Claim); and
(ii) a reasonably detailed description of the facts, circumstances
or events giving rise to the Claim, including, without limitation,
whether such Claim is a third party Claim or a Claim between Buyer and
any of the Sellers, the identity and address of any third-party
claimant (to the extent reasonably available to the Buyer) and copies
of any formal demand or complaint.
Notwithstanding anything herein to the contrary, the Escrow Agent shall have no
responsibility as to the accuracy of the information set forth in a Notice of
Claim, whether the description of or the nature of the claim is set forth in
reasonable detail or whether the Notice of Claim describes a Claim for which
the Buyer is entitled to be paid pursuant to any agreement between the Buyer and
the Sellers, including the Purchase Agreement.
(b) The Escrow Agent will not transfer any of the Escrow Funds held in
escrow and subject to a Notice of Claim until such Notice of Claim has been
resolved in accordance with the following provisions (the "Determination Date"):
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(i) If within thirty (30) calendar days after a Notice of Claim
is received by the Escrow Agent and the Seller Representative (it
being understood the Escrow Agent is under no duty to confirm that the
Seller Representative has received such notice), the Seller
Representative does not contest the Notice of Claim in writing to the
Buyer and the Escrow Agent, then the Escrow Agent will promptly
deliver to the Buyer , subject to Section 7(c) of this Agreement, that
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amount of Escrow Funds (it being understood the Seller Representative
shall have the discretion to determine, by notice to the Escrow Agent,
whether to satisfy any claim with Escrow Shares, with Notes or with
Escrow Funds other than Escrow Shares or Notes) having an aggregate
Fair Market Value determined as of the date of transfer equal to the
amount of damages specified in the Notice of Claim and will notify the
Seller Representative of such transfer. As used herein, the term "Fair
Market Value" means, (i) with respect to each Escrow Share that is a
share of Buyer Common Stock, $16.00, (ii) with respect to the Notes,
the aggregate principal amount plus accrued and unpaid interest
outstanding on such Notes and (iii) with respect to Escrow Funds other
than Escrow Shares or Notes, the value determined in accordance with
Section 12 hereof.
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(ii) In the event that the Seller Representative gives written
notice (a "Notice of a Contested Claim") contesting all or a portion
of a Notice of Claim to the Escrow Agent and the Buyer (which Claim is
thereafter a "Contested Claim") within the 30-day period provided for
above, the following procedures shall apply: (A) for matters that are
subject to third party claims asserted against the Buyer or other
Indemnified Party under the Purchase Agreement, the Seller
Representative will await the final decision, award or settlement of
such claim and any related litigation, arbitration or other
proceeding; provided that any such asserted claim will be deemed
resolved (and no action shall be required by the Escrow Agent) if,
within six (6) months following the Notice of Contested Claim, such
asserted claim does not result in the actual commencement of, or
written correspondence threatening the commencement of, any
litigation, arbitration or other such proceedings; and/or (B)
Contested Claims asserted by the Buyer for Claims that are wholly
between any of the Buyer or other Indemnified Party under the Purchase
Agreement and any of the Sellers (i.e., Claims that do not include
claims asserted by third parties), will be settled by mutual agreement
of the Seller Representative and the Buyer or by a final, binding and
non-appealable order by a court having competent jurisdiction. Either
the Buyer or the Seller Representative may provide the Escrow Agent
with a copy of any such final decision, accompanied by a certificate
from such representative to the Escrow Agent certifying that such
decision is a final decision and that the Escrow Agent may
conclusively rely on such certificate. The Escrow Agent shall have no
duty to determine if the procedures described below were followed in
connection with such decision.
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(iii) Any amount owed to the Buyer or other Indemnified Party
under the Purchase Agreement hereunder, determined pursuant to Section
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8(b)(i) or (ii) above, will be immediately payable to the Buyer out of
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the Escrow Funds at a value equal to the applicable Fair Market Value
(it being understood the Seller Representative shall have the
discretion to determine, by notice from the Seller Representative to
the Escrow Agent, whether to satisfy any claim with Escrow Shares,
with Notes or with Escrow Funds other than Escrow Shares or Notes)
provided that if such notice is not provided, the Buyer will notify
the Escrow Agent as to the type of Escrow Funds to be used to satisfy
the Claim.
(c) Notwithstanding the foregoing, at any time after the Seller
Representative receives the Notice of Claim prior to the Determination Date, the
Seller Representative may deposit with the Escrow Agent cash (by wire transfer
of immediately available funds) in an amount equal to the Claim and the Escrow
Agent will deliver to the Seller Representative the number of Escrow Shares
equal to the cash amount so deposited divided by $16.00, rounding down to the
nearest whole share; provided, that the Sellers shall then hold such shares
subject to the provisions of Section 8.11 of the Purchase Agreement.
9. Voting and Rights of Ownership.
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(a) Except for any stock splits, stock dividends paid in shares of
capital stock of Buyer or reclassifications declared with respect to the Buyer
Common Stock and except for any payments of principal on the Notes, any cash
dividends, dividends payable in securities other than Buyer Common Stock,
interest or other distributions of any kind made with respect to the Escrow
Funds will be distributed by Buyer to the Seller Representative, and in the
event the Escrow Agent receives any such dividends, interest or distributions,
it shall deliver them to the Seller Representative. Any shares of capital stock
of Buyer to be issued on the Escrow Shares as a consequence of any stock split,
stock dividend paid in shares of capital stock of Buyer or reclassification and
any payments of principal on the Notes shall be deemed to be included with the
Escrow Funds previously placed in escrow under this Agreement and shall be
deposited by the Seller Representative into escrow. All interest, cash dividends
and earnings of the Escrow Funds will be paid quarterly to the Seller
Representative.
(b) So long as any Escrow Funds are held in escrow pursuant to this
Agreement, the Sellers shall be the record and beneficial owners of such Escrow
Funds, and the Sellers will have the right to vote, or not vote, the Escrow
Shares, or any portion thereof. While any Escrow Funds remain in escrow pursuant
to this Agreement, the Sellers will retain and will be able to exercise all
other incidents of ownership of such Escrow Funds that are not inconsistent with
the terms and conditions hereof.
(c) Except as provided in the Purchase Agreement, no Escrow Funds or
any beneficial interest therein may be pledged, sold, hedged, assigned or
otherwise transferred (including by operation of law) by the Sellers to any
Person, and each of the Sellers covenants to take all action reasonably
necessary so that no Escrow Funds may be taken or reached by any
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legal or equitable process in satisfaction of any debt or other liability of the
Sellers (other than as expressly contemplated by this Agreement and the Purchase
Agreement) prior to the release from escrow of such Escrow Funds to such party
pursuant to this Agreement; provided, however, that in the event of a tender
offer, merger or other reorganization of Buyer in which the holders of the
outstanding capital stock of Buyer are to receive (either directly or upon
subsequent liquidation) stock or securities of another entity or cash in
connection with such reorganization, the Buyer and the Seller Representative
shall take all actions necessary to cause the Escrow Agent to release the Escrow
Funds in exchange for a portion of such stock, securities or cash having a
market value equal to the Fair Market Value of such Escrow Funds and which shall
become "Escrow Funds" for all purposes of, and subject to, this Agreement.
(d) Notwithstanding paragraph (c) above, Melham U.S., Inc. and
Purico (IOM) Limited may transfer the Notes held of record by such entity to a
direct or indirect wholly owned Subsidiary of such entity if (i) such transferee
delivers to Buyer a written agreement consenting to the provisions of this
Escrow Agreement and such Notes remain in escrow subject to Sections 7 and 8 of
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this Agreement.
(e) Escrow Funds represented by certificate(s) or note(s) shall
bear the following legend:
THE SECURITIES REPRESENTED BY THIS [CERTIFICATE]
[NOTE] ARE SUBJECT TO AN ESCROW AGREEMENT DATED
APRIL 1, 1999 BY AND AMONG CADMUS COMMUNICATIONS
CORPORATION, MELHAM U.S. INC., PURICO (IOM)
LIMITED, XXXX X. XXXX, AND STATE STREET BANK AND
TRUST COMPANY, N.A., AS THE SAME MAY BE AMENDED
FROM TIME TO TIME, PURSUANT TO THE TERMS OF WHICH
THE TRANSFER OF SUCH AGREEMENT ALSO PROVIDES FOR
VARIOUS OTHER LIMITATIONS AND OBLIGATIONS.
10. Replacement of Escrow Funds With Cash. At any time following
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April 1, 2000, the Seller Representative may deposit with the Escrow Agent cash
(by wire transfer of immediately available funds) and the Escrow Agent will
deliver to the Seller Representative the number of Escrow Shares equal to the
cash amount so deposited divided by $16.00. The Escrow Agent shall not release
any Escrow Funds represented by the Notes to the Seller Representative in the
event Seller Representative deposits cash as provided in the preceding sentence.
It is agreed that in the event of a registration of securities of Buyer for
offer and sale under the Securities Act of 1933, as amended, with respect to
which Sellers have registration rights under the Registration Rights Agreement,
dated April 1, 1999, among the Sellers and the Buyer, the Escrow Agent and the
Buyer will cooperate to permit Escrow Shares to be included in such registration
and released from escrow upon receipt by the Escrow Agent of the proceeds from
the sale of such Escrow Shares as replacement Escrow Funds in accordance with
this Agreement.
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11. Disagreement. In the event (a) of any disagreement between Buyer
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and Sellers or the Seller Representative with respect to this Agreement or the
Escrow Funds or (b) the Escrow Agent is in doubt as to what action should be
taken hereunder, the Escrow Agent shall have the absolute right at its election
to do either or both of the following: (a) withhold or stop all performance of
this Agreement, save and accept safekeeping of the Escrow Funds (and all notices
or instructions received in connection herewith) until the Escrow Agent is
satisfied that such disagreement has been resolved in accordance with Section 8
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hereof; or (b) file a suit in interpleader and obtain an order of the court of
appropriate jurisdiction requiring all persons involved to litigate in such
court their respective claims arising out of or in connection with the Escrow
Funds. In the event that the Escrow Agent files a suit in interpleader, the
Escrow Agent's reasonable attorneys' fees and expenses in filing and prosecuting
such lawsuit shall be paid half by Buyer and half by Sellers.
12. Investment of Escrow. The Escrow Agent shall hold the Escrow
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Funds delivered to it under the terms of this Agreement and shall invest and
reinvest any cash included in the Escrow Funds held by it hereunder in Permitted
Investments (as defined below) as directed in writing by the Seller
Representative, or in the case of clause (iv) below as directed in writing by
Buyer and Seller Representative. "Permitted Investments" means any of the
---------------------
following: (i) any investment in direct obligations of the United States of
America or any state, commonwealth or territory thereof or any agency of the
foregoing or obligations guaranteed by the United States of America or any
state, commonwealth or territory thereof or any agency of the foregoing, (ii)
investments in time deposit accounts, certificates of deposit having a maturity
of 6 months or less and money market deposits issued by a bank or trust company
which is organized under the laws of the United States of America having capital
and surplus in excess of $250,000,000, (iii) any money market deposit accounts
issued or offered by a domestic commercial bank having capital and surplus in
excess of $250,000,000, or investments in money market funds complying with the
risk limiting conditions of Rule 2a-7 (or any successor rule) of the Securities
Exchange Commission under the Investment Company Act of 1940, as amended, and
(iv) corporate obligations or equity securities to the extent approved in
advance of any investment in writing by both Buyer and Seller Representative.
For purposes of determining the Fair Market Value of any particular Permitted
Investment for purposes of this Agreement: (a) the Fair Market Value of any
investment of the type described in clause (i) or (iv) above shall be determined
by reference to the valuation of such investment set forth in the Wall Street
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Journal, Eastern Edition, for the date immediately prior to the date of
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valuation, or if not reported therein, then the determination shall be made by
reference to the Telerate Service, and if not reported therein then Bloomberg
News Service, and if not reported therein then such other reporting service as
agreed to in writing by Buyer and the Seller Representative; and (b) the Fair
Market Value of any investment of the type described in clause (ii) or (iii)
above shall be the face amount of such investment as of the date of valuation.
The Escrow Agent shall not be responsible for any losses direct or indirect
relating to the investment of the Escrow Funds, except where the Escrow Agent
breached its obligations to invest such Escrow Funds in accordance with this
Agreement.
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13. Periodic Reporting. Within five (5) business days after the last
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day of each calendar month, the Escrow Agent shall provide to Buyer and Seller
Representative the following information (a "Portfolio Report"): (i) the
respective amounts of Escrow Shares, Notes and Escrow Funds held in Permitted
Investments (together with a description of any amounts attributable to the
Permitted Investments), and (ii) the aggregate Fair Market Value of the Escrow
Funds as of the last day of the preceding calendar month.
14. Agreement of Escrow Agent. The Escrow Agent hereby agrees to
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receive the Escrow Funds and hold the same intact, and to invest the Escrow
Funds in accordance with the terms of this Agreement, and shall not permit any
withdrawal thereof except under the terms of this Agreement. The Escrow Agent
shall be responsible only for the safekeeping and the investment of any funds
included in the Escrow Funds and the disbursements or delivery thereof in
accordance with the terms of this Agreement. Notwithstanding anything in this
Agreement to the contrary, the Escrow Agent shall have no responsibility for the
performance by Buyer, Sellers and Seller Representative of any of their
obligations under this Agreement or be bound in any way by any agreement
(including, but not limited to the Purchase Agreement) for, between or among
Buyer, Sellers and Seller Representative or any of them and any other person or
party (whether or not Escrow Agent has knowledge of any such agreement), other
than this Agreement.
15. Performance of Escrow Agent. The Escrow Agent shall perform such
---------------------------
duties and only such duties as are expressly set forth herein and there are no
implied duties. In performing any of its duties under this Agreement or upon the
claimed failure to perform its duties hereunder, the Escrow Agent shall not be
liable to anyone for any damages, losses or expenses that they may incur as a
result of the Escrow Agent so acting or failing to act; provided, however, the
Escrow Agent shall be liable for damages arising out of its willful misconduct
or negligence under this Agreement or any breach of this Agreement. Accordingly,
the Escrow Agent shall not incur any such liability with respect to (a) any
action taken or omitted to be taken in good faith upon advice of its counsel
given with respect to any questions relating to the duties and responsibilities
of the Escrow Agent hereunder or (b) any action taken or omitted to be taken in
reliance upon any document, including any written notice or instructions
provided for in this Agreement, not only as to its due execution and to the
validity and effectiveness of its provisions but also as to the truth and
accuracy of any information contained therein, that the Escrow Agent shall in
good faith believe to be genuine, to have been signed or presented by proper
person or persons and to conform with the provisions of this Agreement.
16. Indemnification and Hold Harmless. Buyer and Sellers hereby
---------------------------------
jointly and severally agree to indemnify and hold the Escrow Agent and its
directors, employees, officers, agents, successors and assigns harmless from and
against any and all losses, claims, damages, liabilities and expenses, including
without limitation, reasonable costs of investigation and reasonable counsel
fees and expenses which may be imposed on the Escrow Agent or incurred by it in
connection with its acceptance of this appointment as the Escrow Agent hereunder
or the performance of its duties hereunder, except in the case of breach,
negligence or willful misconduct. Such indemnity includes, without limitation,
all losses, damages, liabilities and
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expenses (including counsel fees and expenses) incurred in connection with any
litigation (whether at the trial or appellate levels) arising from this
Agreement or involving the subject matter hereof. The indemnification provisions
contained in this Section are in addition to any other rights any of the
indemnified parties may have at law or otherwise and shall survive the
termination of this Agreement or the resignation or removal of the Escrow Agent.
17. Fees of Escrow Agent. Buyer and Sellers shall be equally
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responsible for payment of the fee to the Escrow Agent for its ordinary services
hereunder (which shall include receipt, investment and disbursement of the
Escrow Funds in the manner described herein).
18. Instructions and Notices. All notices, requests, claims, demands
------------------------
and other communications hereunder shall be in writing and shall be deemed to
have been duly given if personally delivered or, if mailed, ten (10) business
days after being mailed by United States first-class, certified or registered
mail, postage prepaid, or, if sent by overnight delivery by a nationally
recognized courier such as DHL, Federal Express or United Parcel Service, two
(2) business days after deposit with such courier, or, if sent by telecopy, upon
confirmation of receipt, to the other party at the following address (or at such
other address as shall be given in writing by any party to the other):
If to Buyer:
Cadmus Communications Corporation
0000 Xxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Attention: General Counsel
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Employer Identification No.: 00-0000000
If to Sellers:
Sellers:
Purico (IOM) Limited
X.X. Xxx 00
Analyst House
00-00 Xxxx Xxxx
Xxxxxxx
Xxxx xx Xxx
XX00 IAP
Facsimile No.: 44-1624-629-983
Attention: President
00
Xxxxxx X.X. Inc.
c/x Xxxx Printing Group
0000 Xxxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Attention: President
Facsimile No.: (000) 000-0000
Xxxx X. Xxxx
0000 Xxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxx 00000
With a required copy to:
Dechert Price & Xxxxxx
4000 Xxxx Atlantic Tower
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxxxxxxx X. Xxxxxx, Esq.
Facsimile No.: (000) 000-0000
If to Seller Representative:
Xxxxx X. Xxxx
Xxxxxx Xxxxx Limited
Xxxxxxxxxxx Xxxxx
0 Xxxxx Xxxx
Xxxxxxxxxx XX0 XXX Xxxxxxx
Facsimile No: 011-44-115-901-3100
With a required copy to:
Dechert Price & Xxxxxx
4000 Xxxx Atlantic Tower
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxxxxxxx X. Xxxxxx, Esq.
Facsimile No: (000) 000-0000
and to:
Xxxx X. Xxxx
0000 Xxxxxxxx Xxxxx
00
Xxxxxx, Xxxxxxxxxxxx 00000
If to Escrow Agent:
State Street Bank and Trust Company, N.A.
00 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxx Xxxxxx
Corporate Trust Division
Facsimile No.: (000) 000-0000
19. Governing Law. This Agreement shall be governed by and construed
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accordance with the laws of the State of New York. Each of the parties hereto
and the Seller Representative irrevocably submits to the exclusive jurisdiction
of the (a) the state courts of the State of New York and (b) the United States
District Court for the Southern District of New York, for the purposes of any
suit, action or other proceeding arising out of this Agreement or any
transactions contemplated hereby. Each of Sellers and Seller Representative
agrees that process may be served in connection with any matter in New York in
accordance with the provisions of Section 18 hereof.
20. Headings. The headings in this Agreement are inserted for
--------
convenience and identification only and are in no way intended to interpret,
define or limit the scope, extent or intent of this Agreement or any provision
hereof.
21. Severability. Each provision of this Agreement is intended to be
------------
severable. If any term or provision hereof is illegal or invalid for any reason
whatsoever, such illegality or invalidity shall not affect the validity or
enforcement of the remainder of this Agreement.
22. Counterparts. This Agreement and any amendment hereto may be
------------
executed in one or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same instrument.
23. Amendment. No modification or amendment to this Agreement shall
---------
be valid unless produced in writing and signed by all of the parties hereto.
24. Successors. This Agreement shall be binding upon and inure to
----------
the benefit of the parties hereto and their respective successors and assigns.
The Escrow Agent shall not be bound by or incur any liability with respect to
the Agreement or any other agreement or understanding between Buyer and Sellers,
except as herein expressly provided. The Escrow Agent shall not have any duties
hereunder except those specifically set forth herein.
12
25. Resignation/Removal of Escrow Agent. The Escrow Agent may resign
-----------------------------------
at any time by giving Buyer and Seller Representative 30 days' written notice of
such intention. Buyer and Seller Representative may remove the Escrow Agent, as
such, by giving Escrow Agent 30 days' written notice of such removal signed by
Buyer and Seller Representative. Upon the effective date of its resignation or
removal, the Escrow Agent will deliver the Escrow Funds held hereunder to such
successor escrow agent directed by the joint written instructions of Buyer and
Seller Representative. After the effective date of its resignation or removal,
the Escrow Agent shall have no duty with respect to the Escrow Funds except to
hold such property in safekeeping and to deliver same to its successor or as is
directed in writing by Buyer and Seller Representative. If no successor escrow
agent has been appointed by Buyer and Seller Representative within 30 days from
the date such notice of resignation or removal has been given, the Escrow Agent
shall be entitled to tender into the registry or custody of any court of
competent jurisdiction all or part of the escrowed funds.
13
IN WITNESS WHEREOF, the parties have signed this Escrow Agreement as
of the date first above written.
CADMUS COMMUNICATION CORPORATION
By: /s/ Xxxxx X. Xxxxxx
-------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President,
Finance and Administration
MELHAM U.S. INC.
By: /s/ Xxxxx X. X. XxXxxxx
-----------------------
Name: Xxxxx X.X. XxXxxxx
Title: Secretary
PURICO (IOM) LIMITED
By: /s/ Xxxxxx X. Xxxxx
--------------------
Name: Xxxxxx X. Xxxxx
Title: Attorney-in-Fact
___________________________
XXXX X. XXXX
13
IN WITNESS WHEREOF, the parties have signed this Escrow Agreement as
of the date first above written.
CADMUS COMMUNICATION CORPORATION
By:
___________________________
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President,
Finance and Administration
MELHAM U.S. INC.
By:
_________________________
Name: Xxxxx X.X. XxXxxxx
Title: Secretary
PURICO (IOM) LIMITED
By:
______________________
Name: Xxxxxx X. Xxxxx
Title: Attorney-in-Fact
/s/ Xxxx X. Xxxx
----------------
XXXX X. XXXX
STATE STREET BANK AND TRUST
COMPANY, N.A.
By: /s/ Xxxx Xxxxxx
---------------
Name: Xxxx Xxxxxx
Title: Assistant Secretary
Acknowledged and Agreed:
______________________________
XXXXX X. XXXX
00
XXXXX XXXXXX BANK AND TRUST
COMPANY, N.A.
By:
______________________
Name:
Title:
ACKNOWLEDGED AND AGREED:
/s/ N. R. Puri
--------------
XXXXX X. XXXX
