Exhibit 10.8
ESCROW AGREEMENT
ESCROW AGREEMENT ("Agreement") dated [Closing Date] among CEA ACQUISITION
CORPORATION, a Delaware corporation ("CEA"), ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., AS THE ETRIALS
STOCKHOLDERS' REPRESENTATIVE, being the representative of the former
stockholders of etrials Worldwide, Inc., a Delaware corporation (the
"Representative"), and CONTINENTAL STOCK TRANSFER & TRUST COMPANY, as escrow
agent (the "Escrow Agent").
CEA, etrials Worldwide, Inc. ("etrials"), certain stockholders of etrials,
and etrials Acquisition, Inc., a Delaware corporation and wholly-owned
subsidiary of CEA ("Merger Subsidiary"), are the parties to an Agreement and
Plan of Merger and Reorganization dated as of August __, 2005 (the "Merger
Agreement") pursuant to which the Merger Subsidiary has merged with and into
etrials so that etrials has become a wholly-owned subsidiary of CEA. Pursuant to
Article VII of the Merger Agreement, CEA is to be indemnified in certain
respects. The parties desire to establish an escrow fund as collateral security
for the indemnification obligations under Article VII of the Merger Agreement.
The Representative has been designated pursuant to the Merger Agreement to
represent all of the former stockholders of etrials (the "Stockholders") and act
on their behalf for purposes of this Agreement. Capitalized terms used herein
which are not otherwise defined herein shall have the meanings ascribed to them
in the Merger Agreement.
The parties agree as follows:
1. (a) Concurrently with the execution hereof, the Escrow Agent, in its
capacity as Exchange Agent pursuant to the Merger Agreement, has withheld 10% of
the total number of shares of Parent Common Stock issuable to the Stockholders
pursuant to the Merger Agreement, pro rata in accordance with the number of
shares of Parent Common Stock issuable to each Stockholder. Such shares of
Parent Common Stock are herein referred to in the aggregate as the "Escrow
Fund." The Escrow Agent shall maintain separate accounts for each Stockholder's
portion of the Escrow Fund.
(b) The Escrow Agent hereby agrees to act as escrow agent and to hold,
safeguard and disburse the Escrow Fund pursuant to the terms and conditions
hereof. It shall treat the Escrow Fund as a trust fund in accordance with the
terms of this Agreement and not as the property of CEA. Its duties hereunder
shall cease upon its distribution of the entire Escrow Fund in accordance with
this Agreement.
(c) Except as herein provided, the Stockholders shall retain all of
their rights as stockholders of CEA during the period the Escrow Fund is held by
the Escrow Agent (the "Escrow Period"), including, without limitation, the right
to vote their shares of Parent Common Stock included in the Escrow Fund.
(d) During the Escrow Period, all dividends payable in cash with
respect to the shares of Parent Common Stock included in the Escrow Fund shall
be paid to
the Stockholders, but all dividends payable in stock or other non-cash property
("Non-Cash Dividends") shall be delivered to the Escrow Agent to hold in
accordance with the terms hereof. As used herein, the term "Escrow Fund" shall
be deemed to include the Non-Cash Dividends distributed thereon, if any.
(e) During the Escrow Period, no sale, transfer or other disposition
may be made of any or all of the shares of Parent Common Stock in the Escrow
Fund except (i) by gift to a member of a Stockholder's immediate family or to a
trust, the beneficiary of which is a Stockholder or a member of a Stockholder's
immediate family, (ii) by virtue of the laws of descent and distribution upon
death of any Stockholder, or (iii) pursuant to a qualified domestic relations
order; provided, however, that such permissive transfers may be implemented only
upon the respective transferee's written agreement to be bound by the terms and
conditions of this Agreement. During the Escrow Period, the Stockholders shall
not pledge or grant a security interest in the shares of Parent Common Stock
included in the Escrow Fund or grant a security interest in their rights under
this Agreement.
2. (a) CEA, acting through the members of CEA's Board of Directors who
served on such Board prior to the Closing and who continue to serve on such
Board after the Closing (the "Committee"), who have been appointed by the Board
of Directors to take all necessary actions and make all decisions on behalf of
CEA with respect to its rights to indemnification under the Merger Agreement,
may make a claim for indemnification pursuant to Article VII of the Merger
Agreement ("Indemnity Claim") against the Escrow Fund by giving notice (a
"Notice") to the Representative (with a copy to the Escrow Agent) specifying (i)
the covenant, representation, warranty, agreement, undertaking or obligation
contained in the Merger Agreement which it asserts has been breached or
otherwise entitles CEA to indemnification, (ii) in reasonable detail, the nature
and dollar amount of any indemnity claim CEA may have by reason thereof under
the Merger Agreement ("Indemnity Claim"), and (iii) whether the Indemnity Claim
results from a Third Party Claim against CEA. The Committee also shall deliver
to the Escrow Agent (with a copy to the Representative), concurrently with its
delivery to the Escrow Agent of the Notice, a certification as to the date on
which the Notice was delivered to the Representative.
(b) If the Representative shall give a notice to the Committee (with a
copy to the Escrow Agent) (a "Counter Notice"), within 30 days following the
date of receipt (as specified in the Committee's certification) by the
Representative of a copy of the Notice, disputing whether the Indemnity Claim is
indemnifiable under Article VII of the Merger Agreement, the parties shall
attempt to resolve such dispute by voluntary settlement as provided in paragraph
2(c) below. If no Counter Notice with respect to an Indemnity Claim is received
by the Escrow Agent from the Representative within such 30-day period, the
Indemnity Claim shall be deemed to be an Established Claim (as hereinafter
defined) for purposes of this Agreement.
(c) If the Representative delivers a Counter Notice to the Escrow
Agent, the Committee and the Representative shall, during the period of 60 days
following the delivery of such Counter Notice or such greater period of time as
the parties may agree to in writing (with a copy to the Escrow Agent), attempt
to resolve the
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dispute with respect to which the Counter Notice was given. If the Committee and
the Representative shall reach a settlement with respect to any such dispute,
they shall jointly deliver written notice of such settlement to the Escrow Agent
specifying the terms thereof. If the Committee and the Representative shall be
unable to reach a settlement with respect to a dispute, such dispute shall be
resolved by arbitration pursuant to paragraph 2(d) below.
(d) If the Committee and the Representative cannot resolve a dispute
prior to expiration of the 60-day period referred to in paragraph 2(c) above (or
such longer period as the parties may have agreed to in writing), then such
dispute shall be submitted (and either party may submit such dispute) for
arbitration before a single arbitrator in Orlando, Florida, in accordance with
the commercial arbitration rules of the American Arbitration Association then in
effect. The Committee and the Representative shall attempt to agree upon an
arbitrator; if they shall be unable to agree upon an arbitrator within 10 days
after the date on which it may, under this Agreement, be submitted for
arbitration, then either the Committee or the Representative, upon written
notice to the other, may apply for appointment of such arbitrator by the
American Arbitration Association. Each party shall pay the fees and expenses of
counsel used by it and 50% of the fees and expenses of the arbitrator and of
other expenses of the arbitration. The arbitrator shall render his decision
within 90 days after his appointment and may award costs to any of the parties
if, in his sole opinion reasonably exercised, the claims made by any other party
or parties had no reasonable basis and were arbitrary and capricious. Such
decision and award shall be in writing and shall be final and conclusive on the
parties, and counterpart copies thereof shall be delivered to each of the
parties. Judgment may be obtained on the decision of the arbitrator so rendered
in any court having jurisdiction and may be enforced in accordance with the law
of the State of Florida. If the arbitrator shall fail to render his decision or
award within such 90-day period, either the Committee or the Representative may
apply to any Florida or federal court then having jurisdiction by action,
proceeding or otherwise, as may be proper to determine the matter in dispute
consistently with the provisions of this Agreement. The parties consent to the
exclusive jurisdiction of the Florida courts sitting in the Hillsborough County
for this purpose. The prevailing party (or either party, in the case of a
decision or award rendered in part for each party) shall send a copy of the
arbitration decision or of any judgment of the Florida or federal court to the
Escrow Agent.
(e) As used in this Agreement, "Established Claim" means any (i)
Indemnification Claim deemed established pursuant to the last sentence of
paragraph 2(b) above, (ii) Indemnification Claim resolved in favor of CEA by
settlement of the parties pursuant to paragraph 2(c) above, resulting in a
dollar award to CEA, (iii) Indemnification Claim established by the decision of
an arbitrator pursuant to paragraph 2(d) above, resulting in a dollar award to
CEA, (iv) Third Party Claim which has been sustained by a final determination
(after exhaustion of any appeals) of a court of competent jurisdiction, or (v)
Third Party Claim which the Committee and the Representative have jointly
notified the Escrow Agent has been settled in accordance with the provisions of
the Merger Agreement.
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(f) (i) Promptly after an Indemnity Claim becomes an Established Claim,
the Committee shall deliver a notice to the Escrow Agent directing the Escrow
Agent to pay to CEA, and the Escrow Agent shall pay to CEA, an amount equal to
the aggregate dollar amount of the Established Claim (or, if at such time there
remains in the Escrow Fund less than the full amount so payable, the full amount
remaining in the Escrow Fund).
(ii) Payment of an Established Claim shall be made in shares of
Parent Common Stock, pro rata from the account maintained on behalf of each
Stockholder. In such event, such shares shall be valued at the "Fair Market
Value" (as defined below) and the Escrow Agent shall promptly cause the
appropriate number of shares to be transferred from the Escrow Fund to CEA, or
its order, to the extent of the number of shares of Parent Common Stock in the
Escrow Fund. The parties hereto (other than the Escrow Agent) agree that the
foregoing right to make payments of Established Claims in shares of Parent
Common Stock may be made notwithstanding any other agreements restricting or
limiting the ability of any Stockholder to sell any shares of CEA stock or
otherwise. As used herein, "Fair Market Value" means the average reported last
sales price for the Parent Common Stock for the ten trading days ending on the
last trading day prior to the day the Established Claim is paid.
3. On the first Business Day after the eighteen month anniversary of the
Closing Date, upon written instruction from CEA, the Escrow Agent shall
distribute and pay to each Stockholder who has an interest in the Escrow Fund
the Parent Common Stock then in such Stockholder's account in the Escrow Fund,
unless at such time there are any Indemnity Claims with respect to which Notices
have been received but which have not been resolved pursuant to Section 2 hereof
or in respect of which the Escrow Agent has not been notified of, and received a
copy of, a final determination (after exhaustion of any appeals) by a court of
competent jurisdiction, as the case may be (in either case, "Pending Claims"),
and which, if resolved or finally determined in favor of CEA, would result in a
payment to CEA, in which case the Escrow Agent shall retain, and the total
amount of such distributions to such Stockholder shall be reduced by, the
"Pending Claims Reserve" (as hereafter defined). Thereafter, if any Pending
Claim becomes an Established Claim, the Escrow Agent shall promptly pay to CEA
an amount in respect thereof determined in accordance with paragraph 2(f) above,
and to the Stockholder the amount by which the remaining portion of his account
in the Escrow Fund exceeds the then Pending Claims Reserve (determined as set
forth below). If any Pending Claim is resolved against CEA, the Escrow Agent
shall promptly pay to each Stockholder the amount by which the remaining portion
of his account in the Escrow Fund exceeds the then Pending Claims Reserve. Upon
resolution of all Pending Claims, the Escrow Agent shall pay to such Stockholder
the remaining portion of his or her account in the Escrow Fund.
As used herein, the "Pending Claims Reserve" at any time shall mean an
amount equal to the sum of the aggregate dollar amounts claimed to be due with
respect to all Pending Claims (as shown in the Notices of such Claims).
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4. The Escrow Agent shall cooperate in all respects with the Committee and
the Representative in the calculation of any amounts determined to be payable to
CEA in accordance with this Agreement.
5. (a) The Escrow Agent undertakes to perform only such duties as are
expressly set forth herein. It is understood that the Escrow Agent is not a
trustee or fiduciary and is acting hereunder merely in a ministerial capacity.
(b) The Escrow Agent shall not be liable for any action taken or
omitted by it in good faith and in the exercise of its own best judgment, and
may rely conclusively and shall be protected in acting upon any order, notice,
demand, certificate, opinion or advice of counsel (including counsel chosen by
the Escrow Agent), statement, instrument, report or other paper or document (not
only as to its due execution and the validity and effectiveness of its
provisions, but also as to the truth and acceptability of any information
therein contained) which is believed by the Escrow Agent to be genuine and to be
signed or presented by the proper person or persons. The Escrow Agent shall not
be bound by any notice or demand, or any waiver, modification, termination or
rescission of this Agreement unless evidenced by a writing delivered to the
Escrow Agent signed by the proper party or parties and, if the duties or rights
of the Escrow Agent are affected, unless it shall have given its prior written
consent thereto.
(c) The Escrow Agent's sole responsibility upon receipt of any notice
requiring any payment to CEA pursuant to the terms of this Agreement or, if such
notice is disputed by the Committee or the Representative, the settlement with
respect to any such dispute, whether by virtue of joint resolution, arbitration
or determination of a court of competent jurisdiction, is to pay to CEA the
amount specified in such notice, and the Escrow Agent shall have no duty to
determine the validity, authenticity or enforceability of any specification or
certification made in such notice.
(d) The Escrow Agent shall not be liable for any action taken by it in
good faith and believed by it to be authorized or within the rights or powers
conferred upon it by this Agreement, and may consult with counsel of its own
choice and shall have full and complete authorization and protection for any
action taken or suffered by it hereunder in good faith and in accordance with
the opinion of such counsel.
(e) The Escrow Agent may resign at any time and be discharged from its
duties as escrow agent hereunder by its giving the other parties hereto written
notice and such resignation shall become effective as hereinafter provided. Such
resignation shall become effective at such time that the Escrow Agent shall turn
over the Escrow Fund to a successor escrow agent appointed jointly by the
Committee and the Representative. If no new escrow agent is so appointed within
the 60 day period following the giving of such notice of resignation, the Escrow
Agent may deposit the Escrow Fund with any court it reasonably deems
appropriate.
(f) In the event of a dispute between the parties as to the proper
disposition of the Escrow Fund, the Escrow Agent shall be entitled (but not
required) to deliver the Escrow Fund into the United States District Court for
the Southern District of
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New York and, upon giving notice to the Committee and the Representative of such
action, shall thereupon be relieved of all further responsibility and liability.
(g) The Escrow Agent shall be indemnified and held harmless by CEA from
and against any expenses, including counsel fees and disbursements, or loss
suffered by the Escrow Agent in connection with any action, suit or other
proceeding involving any claim which in any way, directly or indirectly, arises
out of or relates to this Agreement, the services of the Escrow Agent hereunder,
or the Escrow Fund held by it hereunder, other than expenses or losses arising
from the gross negligence or willful misconduct of the Escrow Agent. Promptly
after the receipt by the Escrow Agent of notice of any demand or claim or the
commencement of any action, suit or proceeding, the Escrow Agent shall notify
the other parties hereto in writing. In the event of the receipt of such notice,
the Escrow Agent, in its sole discretion, may commence an action in the nature
of interpleader in an appropriate court to determine ownership or disposition of
the Escrow Fund or it may deposit the Escrow Fund with the clerk of any
appropriate court or it may retain the Escrow Fund pending receipt of a final,
non-appealable order of a court having jurisdiction over all of the parties
hereto directing to whom and under what circumstances the Escrow Fund are to be
disbursed and delivered.
(h) The Escrow Agent shall be entitled to reasonable compensation from
CEA for all services rendered by it hereunder. The Escrow Agent shall also be
entitled to reimbursement from CEA for all expenses paid or incurred by it in
the administration of its duties hereunder including, but not limited to, all
counsel, advisors' and agents' fees and disbursements and all taxes or other
governmental charges.
(i) From time to time on and after the date hereof, the Committee and
the Representative shall deliver or cause to be delivered to the Escrow Agent
such further documents and instruments and shall do or cause to be done such
further acts as the Escrow Agent shall reasonably request to carry out more
effectively the provisions and purposes of this Agreement, to evidence
compliance herewith or to assure itself that it is protected in acting
hereunder.
(j) Notwithstanding anything herein to the contrary, the Escrow Agent
shall not be relieved from liability hereunder for its own gross negligence or
its own willful misconduct.
6. This Agreement expressly sets forth all the duties of the Escrow Agent
with respect to any and all matters pertinent hereto. No implied duties or
obligations shall be read into this Agreement against the Escrow Agent. The
Escrow Agent shall not be bound by the provisions of any agreement among the
parties hereto except this Agreement and shall have no duty to inquire into the
terms and conditions of any agreement made or entered into in connection with
this Agreement, including, without limitation, the Merger Agreement.
7. This Agreement shall inure to the benefit of and be binding upon the
parties and their respective heirs, successors, assigns and legal
representatives, shall be governed by and construed in accordance with the law
of Delaware applicable to contracts made and to be performed therein except that
issues relating to the rights and
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obligations of the Escrow Agent shall be governed by and construed in accordance
with the law of New York applicable to contracts made and to be performed
therein. This Agreement cannot be changed or terminated except by a writing
signed by the Committee, the Representative and the Escrow Agent.
8. The Committee and the Representative each hereby consents to the
exclusive jurisdiction of the Florida and federal courts sitting in Hillsborough
County with respect to any claim or controversy arising out of this Agreement.
Service of process in any action or proceeding brought against the Committee or
the Representative in respect of any such claim or controversy may be made upon
it by registered mail, postage prepaid, return receipt requested, at the address
specified in Section 9, with a copy delivered by nationally recognized overnight
carrier to ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, The Chrysler Building, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇.▇. ▇▇▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Esq.
9. All notices and other communications under this Agreement shall be in
writing and shall be deemed given if given by hand or delivered by nationally
recognized overnight carrier, or if given by telecopier and confirmed by mail
(registered or certified mail, postage prepaid, return receipt requested), to
the respective parties as follows:
A. If to the Committee, to it at
c/o CEA Acquisition Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
The Chrysler Building
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Esq.
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
B. If to the Representative, to him at
▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
c/o etrials Worldwide, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, P.A.
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Suite 200, Generation Plaza
1822 N.C. Highway 54 East
P.O. Drawer ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telecopier No.: ▇▇▇ ▇▇▇ ▇▇▇▇
C. If to the Escrow Agent, to it at:
Continental Stock Transfer & Trust Company
▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopier No.: 212-509-5150
or to such other person or address as any of the parties hereto shall specify by
notice in writing to all the other parties hereto.
10. (a) If this Agreement requires a party to deliver any notice or other
document, and such party refuses to do so, the matter shall be submitted to
arbitration pursuant to paragraph 3(d) of this Agreement.
(b) All notices delivered to the Escrow Agent shall refer to the
provision of this Agreement under which such notice is being delivered and, if
applicable, shall clearly specify the aggregate dollar amount due and payable to
CEA.
(c) This Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original instrument and all of which together
shall constitute a single agreement.
IN WITNESS WHEREOF, each of the parties hereto has duly executed this
Agreement on the date first above written.
CEA ACQUISITION CORPORATION
By:
----------------------------------------
Name:
Title:
THE REPRESENTATIVE
-------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
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ESCROW AGENT
CONTINENTAL STOCK TRANSFER & TRUST COMPANY
By:
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chairman
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