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EXHIBIT NO. 10.5
ESCROW AGREEMENT
This Escrow Agreement (the "Agreement") is entered into as of January
5, 1998 by and among SGM Consulting, L.L.C., a Delaware limited liability
company ("Buyer"), Nextera Enterprises, L.L.C., a Delaware limited liability
company and the controlling member of Buyer ("Nextera"), Nextera Enterprises
Holdings, L.L.C., a Delaware limited liability company and the controlling
member of Nextera ("Holdings"), SiGMA Consulting, LLC, a New York limited
liability company (the "Company"), the holders of the Company's membership
interests listed on Exhibit A attached hereto (herein collectively referred to
as the "Members" and individually as a "Member") and Chase Manhattan Trust
Company, National Association, as escrow agent (the "Escrow Agent").
WHEREAS, pursuant to a Purchase Agreement (the "Purchase Agreement")
dated as of January 5, 1998 by and among Buyer, Nextera, Holdings, the Company
and the Members, Buyer is purchasing certain assets from the Company and
acquiring all of the issued and outstanding membership interests of the Company
from the Members; and
WHEREAS, the Members have agreed to indemnify Buyer and Nextera
against certain breaches of the representations, warranties and covenants made
by the Company and the Members in the Purchase Agreement and against certain
other matters as specified in Section 10 of the Purchase Agreement; and
WHEREAS, to secure payment of the Members' indemnification
obligations, EIGHT HUNDRED FIFTY THOUSAND DOLLARS ($850,000) in cash (the
"Escrowed Cash") and 200,000 Nextera Class A Units (the "Escrowed Units")
(together, the Escrowed Cash and the Escrowed Units and additions to or earnings
on the same, the "Escrow Deposit") are being deposited, pursuant to Section 1.2
of the Purchase Agreement, in escrow to be held as hereinafter provided.
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises of the parties herein contained, and other good and valuable
consideration, receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
1. Establishment of Escrow: Investment. Buyer has herewith deposited
the Escrow Deposit with the Escrow Agent on the date of the Closing. The
Escrowed Units have been issued in the names of the Members who, subject to the
provisions herein, have the right to receive such shares, as set forth on
Exhibit A attached hereto, and shall be accompanied by stock powers or similar
instruments duly signed in blank by the appropriate Member. The Escrow Deposit
shall be held in escrow in an account designated as the SiGMA Consulting, LLC
Escrow Account or an account having such other similar designation, subject to
the terms and conditions set forth herein. Xxxxx X. Xxxxxx shall serve as the
exclusive representative of the Members with respect to the Escrow Deposit and
this Agreement (the "Escrow Representative"). If, for any reason, the Escrow
Representative shall be either unable or unwilling to serve, a successor Escrow
Representative shall be appointed by written consent of all Members and all
references to the Escrow Representative shall be deemed to include such
successor. The Escrow Agent shall
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invest all cash held as part of the Escrow Deposit only in such specific
investments as Buyer and the Escrow Representative shall from time to time
jointly direct in writing to the Escrow Agent; provided, however, that such
investments shall be limited to:
(a) time deposits, certificates of deposit and acceptances,
maturing within ninety (90) days from the date of
acquisition thereof, issued by national banks located in
the United States of America, including the Escrow Agent
or any of its affiliates, and having capital, surplus and
profits aggregating at least one hundred million dollars
($100,000,000);
(b) securities or other obligations of, or guarantee by, the
United States of America or any agency thereof having
maturities of not greater than one (1) year;
(c) commercial paper rated A-1 or P-1 by Standard & Poor's or
Xxxxx'x Investors Service;
(d) repurchase agreements fully collateralized by obligations
described in clauses 1(a), 1(b) or 1(c) hereof;
(e) shares of investment companies registered under the
Investment Company Act of 1940 which invest in any
obligation described herein, or shares of the Dreyfus Cash
Management Plus Money Market Fund, including those for
which the Escrow Agent or any of its affiliates provide
services for a fee, whether as an investment advisor,
custodian, transfer agent, registrar, sponsor,
distributor, manage or otherwise.
Until further written notice, cash in the Escrow Deposit shall be
invested in Dreyfus Cash Management Plus. Unless otherwise directed in writing
by the Escrow Representative and Buyer, the Escrow Agent shall not invest all or
any portion of the Escrow Deposit in any investment if the maturity date of such
investment is later than the Termination Date (as defined below).
2. Amounts Earned on Escrow Deposit: Tax Matters. All amounts earned,
paid or distributed with respect to the Escrow Deposit (whether interest,
dividends, distributions from Nextera with respect to the Escrowed Units or
otherwise) shall become a part of the Escrow Deposit, shall be held hereunder
upon the same terms as the original Escrow Deposit and shall be distributed
together with the underlying portion of the original Escrow Deposit pursuant to
the terms of this Agreement. The parties agree that to the extent permitted by
applicable law, including Section 468B(g) of the Internal Revenue Code of 1986,
as amended, the Members will include all amounts earned on the Escrow Deposit in
their gross income for federal, state and local income tax (collectively,
"income tax") purposes and pay any income tax resulting therefrom.
3. Claims Against Escrow Deposit.
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(a) At any time or times prior to the expiration of this
Agreement, Buyer may make claims against the Escrow Deposit for indemnification
pursuant to and in accordance with Section 10 of the Purchase Agreement. Buyer
shall notify the Escrow Representative and the Escrow Agent in writing prior to
the expiration of this Agreement of each such claim, including a summary of the
amount of and bases for such claim. If the Escrow Representative shall dispute
such claim, the Escrow Representative shall give written notice thereof to Buyer
and to the Escrow Agent within twenty (20) days after receipt of notice of
Buyer's claim, in which case the Escrow Agent shall continue to hold the Escrow
Deposit in accordance with the terms of this Agreement; otherwise, such claim
shall be deemed to have been acknowledged to be payable out of the Escrow
Deposit in the full amount thereof and the Escrow Agent shall use its best
efforts to pay such claim to Holdings within three (3) business days after
expiration of said twenty day period or as soon thereafter as possible. If the
amount of the claim exceeds the value of the Escrow Deposit, the Escrow Agent
shall have no liability or responsibility for any deficiency.
(b) The Escrow Agent shall follow the procedure below in making
any payment in satisfaction of a claim against the Escrow Deposit:
(i) The Escrow Agent shall make such payment first from the
Escrowed Cash and any additions to or earnings on the Escrowed Cash until all
cash in the Escrow Deposit has been exhausted.
(ii) To the extent that any claim exceeds the amount of
Escrowed Cash or other cash in the Escrow Deposit, the Escrow Agent shall make
payment from the Escrowed Units in such number of Escrowed Units (computed to
the nearest whole unit) having a value equal to the value of the claim not
satisfied by cash payment. Any payment of Escrowed Units by the Escrow Agent to
Holdings shall be treated as a sale by the Members of such Escrowed Units for
the value described herein. The value of an Escrowed Unit for purposes of the
Section shall be the fair market value of such unit on the date of the claim as
determined by the Board of Directors of Nextera (the "Board"). The fair market
value shall be determined in good faith by the Board and the Board shall notify
the Escrow Representative and Escrow Agent in writing of its determination (the
"Valuation Notice"). If the Escrow Representative disputes the fair market value
of the Escrowed Units as determined by the Board, then the Escrow Representative
shall so notify the Board and Escrow Agent in writing (the "Appraisal Notice")
within five (5) business days of receipt of the Valuation Notice. Within fifteen
(15) business days of the receipt of the Appraisal Notice, the Board and the
Escrow Representative shall each appoint a professional appraiser to determine
the fair market value of the Escrowed Units. Each appraiser shall have at least
five (5) years experience in appraising companies similar to Nextera. The two
appraisers shall within the succeeding twenty (20) day period after their
selection, attempt to reach agreement on the fair market value. If the
appraisers reach such agreement they shall so notify the Escrow Agent and their
agreement shall be final and binding on Buyer, Nextera, Holdings, the Board, the
Company, the Escrow Representative, the Members,
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and their affiliates. If the appraisers fail to agree, they shall within ten
(10) days thereafter select a third appraiser with the same qualification
requirements, and the three (3) appraisers shall establish the fair market value
by majority vote within the succeeding twenty (20) day period and shall notify
the Escrow Agent of their determination. Such determination of the fair market
value shall be final and binding on Buyer, Nextera, Holdings, the Board, the
Company, the Escrow Representative, the Members, and their affiliates. In all
events, the appraisers selected shall be unaffiliated with and otherwise
independent of Buyer, Nextera, Holdings, the Board, the Company, the Escrow
Representative, the Members, and their affiliates. If the fair market value of
the Escrowed Units, as determined by the appraisers, is less than or no more
than five percent (5%) greater than the value as determined by the Board, then
the Members shall pay all costs associated with the appraisers. If the fair
market value as determined by the appraisers is more than five percent (5%)
greater than the value as determined by the Board, then Buyer shall pay for all
costs associated with the appraisers. The Escrowed Units delivered to Holdings
in satisfaction of a claim shall be allocated among the Members so as to reduce
each Member's interest in the remaining Escrowed Units by an equal proportion.
In the event that the Escrow Agent must make payment with a number of units less
than or different from the number of units represented by a certificate in the
Escrow Deposit, the Escrow Agent shall surrender such certificate to Nextera and
Nextera shall issue to the Escrow Agent certificates of Nextera Class A Units
identical in form but for the number of units as necessary to allow for proper
payment of the claim so long as the number of units of the new certificates plus
the amount of units used to satisfy such claim shall be equivalent to the total
number of units covered by the surrendered certificate.
4. Disputed Claims.
(a) If the Escrow Representative shall dispute an indemnification
claim of Buyer as above provided, the Escrow Agent shall set aside a portion of
the Escrow Deposit sufficient to pay said claim in full (the "Set Aside
Amount"). If Buyer notifies the Escrow Agent in writing that it has made
out-of-pocket expenditures in connection with any such disputed claim, and
provides paid receipts for such expenditures, in addition to expenditures
included in the Set Aside Amount, an amount equal to such additional
expenditures shall be added to the Set Aside Amount.
(b) If the disputed indemnification claim has not been resolved
or compromised within sixty (60) days after the Escrow Representative sends
notice of dispute of the same, or in the event of a third-party claim or suit,
within fifteen (15) days after its resolution or compromise, said
indemnification claim shall be referred to the American Arbitration Association,
to be settled by binding arbitration in Boston, Massachusetts, in accordance
with the commercial arbitration rules of the Association. The fees and expenses
of the arbitrator shall be borne equally by the Members and Buyer. In no event
shall the Escrow Agent be responsible for any fee or expense of any party to any
arbitration proceeding. The determination of the arbitrator as to the amount, if
any, of the indemnification claim which 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 Commonwealth of Massachusetts. The arbitrator shall
have the authority to award to the prevailing party reasonable costs and
expenses including attorney's fees and the cost of arbitration. The Escrow Agent
shall use its best efforts to make payment of such claim, as and to the extent
allowed, to Buyer out of the Set Aside Amount (or if insufficient, out of the
Escrow Deposit) within three (3) business days following said determination or
as soon thereafter as possible.
(c) Notwithstanding Section 4(b), if a disputed indemnification
claim has not been resolved or compromised as of the Termination Date (as
hereinafter defined), and such claim
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does not involve a third-party claim or suit, Buyer and the Escrow
Representative shall continue to negotiate in good faith a settlement of such
claims for a period of ten (10) days. If, after the expiration of such ten-day
period, such indemnification claim still has not been resolved or compromised,
such claim shall be settled in accordance with the arbitration provisions set
forth in Section 4(b).
(d) It is understood and agreed that should any dispute arise
under this Section 4, the Escrow Agent, upon receipt of written notice of such
dispute or claim by the Escrow Representative, is authorized and directed to
retain in its possession without liability to anyone, the Set Aside Amount
relating to such dispute plus any expenditures of Buyer made pursuant to Section
4(a) until such dispute shall have been settled pursuant to this Section 4. The
Escrow Agent may, but shall be under no duty whatsoever to, institute or defend
any legal proceedings which relate to the Escrow Deposit.
5. Termination.
(a) If the Escrowed Cash has not been reduced to zero as of the
date that is eighteen (18) months following the date of this Agreement and there
are no outstanding indemnification claims as of such date, the Escrow Agent
shall distribute the Escrowed Cash to the Members in accordance with their pro
rata interest therein as set forth on Exhibit A attached hereto; otherwise, the
Escrow Agent shall distribute the Escrowed Cash to the Members when all
indemnification claims made by Buyer or Nextera before the date that is eighteen
(18) months following the date of this Agreement pending as of such date have
been resolved.
(b) This Agreement shall terminate on the date that the Escrow
Deposit is reduced to zero as the result of payments by the Escrow Agent to
Holdings in accordance with the provisions of Section 3 or Section 4. If,
however, the Escrow Deposit has not been reduced to zero as of the date that is
three (3) years following the date of this Agreement (the "Termination Date")
and there are no outstanding indemnification claims on the Termination Date,
this Agreement shall terminate and the Escrow Agent shall distribute the amount
remaining in the Escrow Deposit to the Members in accordance with their pro rata
interest in the Escrow Deposit as set forth in Exhibit A attached hereto;
otherwise this Agreement shall continue in effect until all indemnification
claims Buyer has made pursuant to Section 3 hereof on or prior to the
Termination Date shall have been disposed of. As of the Termination Date, an
amount of the Escrow Deposit adequate to cover all disputed and undisputed
claims made by Buyer pursuant to Section 3 hereof, plus an additional twenty
percent (20%) of any such amount to cover expenses of Buyer associated with such
claims, will be held by the Escrow Agent, and the Escrow Agent shall distribute
on the Termination Date the balance, if any, of the Escrow Deposit to the
Members in accordance with their pro rata interest in the Escrow Deposit as set
forth in Exhibit A attached hereto. At such time as all remaining
indemnification claims hereunder have been resolved and the Escrow Agent has
received a written notice executed by Buyer and the Escrow Representative, or
notification of a determination of an arbitrator pursuant to Section 4(b), to
that effect and any amounts to be distributed to Holdings in connection
therewith have been so distributed, the Escrow Agent shall distribute the
remaining Escrow Deposit, if any, to the Members in accordance with their pro
rata interest in the Escrow Deposit as set forth in Exhibit A attached hereto.
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6. The Escrow Agent.
(a) Direction from Buyer and Escrow Representative.
Notwithstanding anything herein to the contrary, the Escrow Agent shall promptly
dispose of all or any part of the Escrow Deposit as directed by a writing signed
by Buyer and Escrow Representative.
(b) Reliance by Escrow Agent; Liability of Escrow Agent. The
Escrow Agent shall be protected in acting upon any written notice, request,
waiver, consent, certificate, receipt, authorization or other paper or document
that the Escrow Agent believes to be genuine and what it purports to be. The
Escrow Agent may confer with its own corporate or outside legal counsel in the
event of any dispute or question as to the construction of any of the provisions
hereof, or its duties hereunder, and shall incur no liability and shall be fully
protected in acting in accordance with the written opinions of such counsel. The
duties of the Escrow Agent hereunder will be limited to the observance of the
express provisions of this Agreement. Except with respect to capitalized terms
used herein and defined in the Purchase Agreement, the Escrow Agent will not be
subject to, or be obliged to recognize, any other agreement between the parties
hereto or directions or instructions not specifically set forth as provided for
herein. The Escrow Agent will not make any payment or disbursement from or out
of the Escrow Deposit that is not expressly authorized pursuant to this
Agreement. The Escrow Agent may rely upon and act upon any instrument received
by it pursuant to the provisions of this Agreement that it reasonably believes
to be genuine and in conformity with the requirement of this Agreement. The
Escrow Agent undertakes to use the same degree of care and skill in performing
its services hereunder as an ordinary prudent person would do or use under the
circumstances in the conduct of his or her own affairs. The Escrow Agent will
not be liable for any action taken or not taken by it under the terms hereof in
the absence of breach of its obligations hereunder or gross negligence or
willful misconduct on its part.
(c) Indemnification of Escrow Agent. Buyer and the Members will
jointly and severally indemnify and hold the Escrow Agent harmless from and
against any and all losses, costs, damages or expenses (including, but not
limited to, reasonable attorneys' fees) it may sustain by reason of its service
as Escrow Agent hereunder, except such losses, costs, damages or expenses
(including, but not limited to, reasonably attorneys' fees) incurred by reason
of acts or omissions for which the Escrow Agent is liable or responsible under
the last sentence of Section 6(b) hereof.
(d) Fees and Expenses of the Escrow Agent. All fees of the Escrow
Agent for its services hereunder, together with any expenses reasonably incurred
by the Escrow Agent in connection with this Agreement, shall be shared equally
by Buyer on the one hand and the Members on the other. The fees to be paid by
the Members shall be reduced pro rata from the Members' individual interest in
the Escrow Deposit.
(e) Resignation and Removal of Escrow Agent. Successor Escrow
Agent.
(i) The Escrow Agent may resign from its duties hereunder by
giving each of the parties hereto not less than thirty (30) days prior written
notice of the effective date of such resignation (which effective date shall be
at least thirty (30) days after the date such notice is
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given). In addition, the Escrow Agent may be removed and replaced on a date
designated in a written instrument signed by Buyer and the Members and delivered
to the Escrow Agent. The parties hereto intend that a successor escrow agent
mutually acceptable to the Escrow Representative and Buyer will be appointed to
fulfill the duties of the Escrow Agent hereunder for the remaining term of this
Agreement in the event of the Escrow Agent's resignation or removal. Upon the
effective date of such resignation or removal, the Escrow Agent shall deliver
the property comprising the Escrow Deposit to such successor escrow agent,
together with an accounting of the investments held by it and all transactions
related to this Agreement, including any distributions made and such records
maintained by the Escrow Agent in connection with its duties hereunder and other
information with respect to the Escrow Deposit as such successor may reasonably
request. If on or before the effective date of such resignation or removal, a
successor escrow agent has not been appointed, the Escrow Agent will thereupon
deposit the Escrow Deposit into the registry of a court of competent
jurisdiction.
Upon written acknowledgment by a successor escrow
agent appointed in accordance with this Section 6(e)(i) of its agreement to
serve as escrow agent hereunder and the receipt of the property then comprising
the Escrow Deposit, the Escrow Agent shall be fully released and relieved of all
duties, responsibilities and obligations under this Agreement, except for those
arising under the last sentence of Section 6(b) of this Agreement, and such
successor escrow agent shall for all purposes hereof be the Escrow Agent.
(ii) Any corporation, association or other entity into which
the Escrow Agent may be converted or merged, or with which it may be
consolidated, or to which it may sell or otherwise transfer all or substantially
all of its corporate trust business, or any corporation, association or other
entity resulting from any such merger, conversion, consolidation, sale or other
transfer, shall, ipso facto, be and become successor Escrow Agent hereunder,
vested with all of the powers, discretions, immunities, privileges and all other
matters as was its predecessor, without the execution or filing of any
instrument or any further act on the part or any of the parties hereto, anything
herein to the contrary notwithstanding.
7. Voting of Escrowed Units. So long as any Escrowed Units are
retained by the Escrow Agent, each Member shall be entitled to exercise the
voting power, if any, with respect to that Member's proportional ownership of
the Escrowed Units.
8. Governing Law. IT IS THE PARTIES' INTENT THAT THIS AGREEMENT SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE
COMMONWEALTH OF MASSACHUSETTS (WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAW).
9. Counterparts. This Escrow Agreement may be executed in one or more
counterparts, all of which documents shall be considered one and the same
document.
10. Notices. Any notice or other communication required or permitted
hereunder shall be in writing and shall be deemed to have been given when
received, if personally delivered or sent by facsimile transmission, or three
(3) days after deposited in the U.S. mails for
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delivery by registered or certified mail, return receipt requested, postage
prepaid, addressed as follows:
TO BUYER: SGM Consulting, L.L.C.
Xxx Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx, Xx.
Fax: (000) 000-0000
With a copy to: Xxxxxx & Xxxxxxx
000 X Xxxxxx, Xxxxx 0000
Xxx Xxxxx, XX 00000
Attention: Xxxxx X. Xxxx, Esq.
Fax: (000) 000-0000
With an additional copy to: Maron & Sandler
000 Xxxxxx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Fax: (000) 000-0000
TO NEXTERA: Nextera Enterprises, L.L.C.
Xxx Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx, Xx.
Fax: (000) 000-0000
With a copy to: Xxxxxx & Xxxxxxx
000 X Xxxxxx, Xxxxx 0000
Xxx Xxxxx, XX 00000
Attention: Xxxxx X. Xxxx, Esq.
Fax: (000) 000-0000
With an additional copy to: Maron & Sandler
000 Xxxxxx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Fax: (000) 000-0000
TO HOLDINGS: Nextera Enterprises Holdings, L.L.C.
Xxx Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx, Xx.
Fax: (000) 000-0000
With a copy to: Xxxxxx & Xxxxxxx
000 X Xxxxxx, Xxxxx 0000
Xxx Xxxxx, XX 00000
Attention: Xxxxx X. Xxxx, Esq.
Fax: (000) 000-0000
With an additional copy to: Maron & Sandler
000 Xxxxxx Xxxxx
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0
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Fax: (000) 000-0000
TO THE COMPANY: SiGMA Consulting, LLC
000 XxxxxxXxxxx Xxxxxx Xxxx
Xxxxxxxx, XX 00000-0000
Attention: Xxxxx X. Xxxxxx
Fax: (000) 000-0000
With a copy to: Mintz, Levin, Cohn, Ferris, Glovsky &
Popeo, P.C.
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxx
Fax: (000) 000-0000
TO ANY MEMBER: To the address last provided by such
Member to the Company.
With a copy to: Mintz, Levin, Cohn, Ferris, Glovsky &
Popeo, P.C.
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxx
Fax: (000) 000-0000
TO ESCROW AGENT: Chase Manhattan Trust Company, National
Association
Union Trust Building
000 Xxxxx Xxxxxx, Xxxx 000
Xxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx
Fax: (000) 000-0000
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 representatives.
11. Certification of Tax Identification Number. The parties hereto
agree to provide the Escrow Agent with a certified tax identification number by
signing and returning a Form W-9 (or Form W-8, in the case of non-U.S. persons)
to the Escrow Agent prior to the date on which any income earned on the
investment of the Escrow Deposits is credited to such Escrow Deposits. The
parties hereto understand that, in the event their tax identification numbers
are not certified to the Escrow Agent, the Internal Revenue Code, as amended
from time to time, may require withholding of a portion of any interest or other
income earned on the investment of the Escrow Deposit.
12. Force Majeure. Neither Buyer, Nextera, the Company, the Members
nor the Escrow Agent shall be responsible for delays or failures in performance
under this Agreement resulting from acts beyond its control. Such acts shall
include but not be limited to acts of God,
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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.
13. Modifications. This Agreement may not be altered or modified
without the express written consent of the parties hereto. No course of conduct
shall constitute a waiver of any of the terms and conditions of this Escrow
Agreement, unless such waiver is specified in writing, and then only to the
extent so specified. A waiver of any of the terms and conditions of this Escrow
Agreement on one occasion shall not constitute a waiver of the other terms of
this Escrow Agreement, or of such terms and conditions on any other occasion.
14. Reproduction of Documents. This Agreement and all documents
relating thereto, including, without limitation, (a) consents, waivers and
modifications which may hereafter be executed, and (b) certificates and other
information previously or hereafter furnished, may be reproduced by a
photographic, photostatic, microfilm, optical disk, micro-card, miniature
photographic or other similar process. The parties agree that any such
reproduction shall be admissible in evidence as the original itself in any
judicial or administrative proceeding, whether or not the original is in
existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
IN WITNESS WHEREOF, the parties have caused this Escrow Agreement to
be executed by their duly authorized representatives, as of the date first
written above.
BUYER:
SGM CONSULTING, L.L.C.
By: /s/ XXXXXXX X. XXXXXXXXX
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
NEXTERA:
NEXTERA ENTERPRISES, L.L.C.
By: /s/ XXXXXXX X. XXXXXXXXX
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Treasurer
HOLDINGS:
NEXTERA ENTERPRISES HOLDINGS, L.L.C.
By: /s/ XXXXXXX X. XXXXXXXXX
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Treasurer
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THE COMPANY:
SiGMA CONSULTING, LLC
By: /s/ XXXXXXX XXXXXXXXXX
---------------------------------------
Name: Xxxxxxx Xxxxxxxxxx
Title: Chief Operating Officer
ESCROW AGENT:
CHASE MANHATTAN TRUST COMPANY, NATIONAL
ASSOCIATION, as Escrow Agent
By: /s/ XXXXX X. XXXXX
---------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
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MEMBERS:
/s/ XXXXX X. XXXXXX
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Xxxxx X. Xxxxxx
/s/ XXXXXX X. XXXXXX
-------------------------------------------
Xxxxxx X. Xxxxxx
/s/ XXXXXXX X. XXXX
-------------------------------------------
Xxxxxxx X. Xxxx
/s/ XXXXXXX XXXXXXXXXX
-------------------------------------------
Xxxxxxx Xxxxxxxxxx
/s/ XXXX XXXXXXXX
-------------------------------------------
Xxxx Xxxxxxxx
/s/ XXXX X. XXXXX
-------------------------------------------
Xxxx X. Xxxxx
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