ESCROW AGREEMENT
ESCROW AGREEMENT (this "Agreement") made as of this ___ day
of __________, 1996 by and among Advanced MobileComm, Inc., a
Massachusetts corporation ("AMI"), each of the persons listed on
Exhibit A hereto (collectively with AMI, the "Sellers"), and
State Street Bank and Trust Company (the "Escrow Agent");
WHEREAS, the Sellers have entered into a contribution
agreement with Pittencrieff Communications, Inc., a Texas
corporation ("PCI"), and Pittencrieff Communications, Inc., a
Delaware corporation ("New PCI"), dated as of September 5, 1995,
as amended from time to time (the "Pittencrieff Contribution
Agreement"), providing for the sale by the Sellers of the special
mobile radio ("SMR") assets described in the Pittencrieff
Contribution Agreement (or the sale of the stock of corporations
that own such assets); and
WHEREAS, the Pittencrieff Contribution Agreement contains
certain representations and warranties made jointly and severally
by the Sellers and certain rights on the part of New PCI to be
indemnified by the Sellers with respect to the liabilities and
claims arising thereunder; and
WHEREAS, the Sellers have also entered into a contribution
agreement on the date hereof (the "Sellers' Contribution
Agreement") relating, among other things, to the allocation of
responsibility, as among the Sellers, for payment of claims for
indemnification made by New PCI under the Pittencrieff
Contribution Agreement; and
WHEREAS, the Sellers' Contribution Agreement provides that
the Sellers shall place into escrow with the Escrow Agent
2,559,966 shares of common stock (the "Common Stock") of New PCI
(the "Escrow Fund"), to be used as security for and to satisfy
the obligations of the Sellers under Section 1 of the Sellers'
Contribution Agreement during the period from the date hereof
until eighteen months from the date hereof; and
WHEREAS, the parties to this Agreement have agreed upon and
wish to set forth the terms and conditions relating to the Escrow
Fund to be held by the Escrow Agent.
NOW THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties, intending to be legally bound, do hereby agree as
follows:
1. Definitions. Undefined terms used herein, if defined
in the Pittencrieff Contribution Agreement, shall have the
respective meanings herein as set forth therein.
2. Escrow Agent. The Sellers hereby designate and appoint
the Escrow Agent to serve in accordance with the terms,
conditions and provisions of this Agreement, and the Escrow Agent
hereby agrees to act as such, upon the terms, conditions and
provisions provided in this Agreement.
3. Deposit of Escrow Fund. Concurrently with the Closing,
the Sellers shall deliver, or direct New PCI to deliver, the
Common Stock to the Escrow Agent to be held subject to the terms,
conditions and provisions of this Agreement. The Escrow Agent
agrees to hold the Escrow Fund as security for the obligations of
the Sellers to each other pursuant to Section 1 of the Sellers'
Contribution Agreement, and the Escrow Fund shall not be
disbursed except as herein provided.
4. Distributions with Respect to Escrow Fund. Any
dividends or other distributions received by the Escrow Agent on
account of the Escrow Fund shall be distributed to the Sellers in
proportion to the amounts of Common Stock delivered by the
Sellers to the Escrow Agent, as set forth in Schedule 1 hereto.
5. Claims Against Escrow Fund.
(a) From time to time during the term of this Agreement, a
Seller (the "Requesting Seller") may request in writing (the
"Reimbursement Notice") that the Escrow Agent deliver all or part
of the Escrow Fund to the Requesting Seller in order to reimburse
it for any amount that is due to the Requesting Seller under
Section 1 of the Sellers' Contribution Agreement on account of a
payment made to New PCI by the Requesting Seller on account of
Pittencrieff Losses under the Pittencrieff Contribution
Agreement. The Reimbursement Notice shall (i) specify the amount
of the Pittencrieff Losses, and (ii) the Seller or Sellers who
contributed the SMR Assets to New PCI that are the subject of the
Pittencrieff Losses. The Escrow Agent shall have no
responsibility for determining or ascertaining the completeness
or accuracy of any Pittencrief Losses. The Escrow Agent shall,
within five business days of receipt of a Reimbursement Notice,
provide a copy of such Reimbursement Notice to all Sellers, and
fifteen business days after the Sellers are deemed pursuant to
paragraph 13 to have received such Reimbursement Notice from the
Escrow Agent, disburse to Requesting Seller from the Escrow
Account shares of Common Stock (valued as provided in paragraph
5(c) hereof), equal to the amount of the reimbursement requested
by the Requesting Seller in such Reimbursement Notice, unless
prior to the date of disbursement the Escrow Agent receives
written notice from Sellers representing a majority in interest
of the Escrow Fund, as reflected in Exhibit A (but excluding for
this purpose the portion of the Escrow Fund held by the
Requesting Seller) disputing (the "Dispute Notice") the
Requesting Seller's right to the amount of the reimbursement
requested in such Reimbursement Notice (the "Disputed Amount");
provided, however, that if a Dispute Notice states that a portion
of the amount of reimbursement requested in the Reimbursement
Notice is not in dispute, the undisputed amount shall be
disbursed to the Requesting Seller from the Escrow Fund.
(b) If any Seller issues a Dispute Notice pursuant to
paragraph 5(a), then the Escrow Agent shall continue to hold all
amounts remaining in escrow until receipt of written instructions
jointly executed by all Sellers, or receipt of an order of any
court directing the disbursement of the Disputed Amount (or the
portion thereof that is ordered to be disbursed) or a final
judgment entered by a court of competent jurisdiction (after all
appeals have been finally determined or the time for appeal has
expired without an appeal having been made), and shall disburse
the Disputed Amount (or the portion thereof that is instructed or
ordered to be disbursed) in accordance with such joint
instructions or court judgment or order. The Sellers agree to
use good faith efforts to promptly resolve any Disputed Amount.
(c) For all purposes under this Agreement, the Common
Stock shall be valued at fair market value thereof which shall
mean the average of the closing bid and asked prices of the
Common Stock quoted in the over-the-counter market summary or the
closing price quoted or the principal exchange on which the
Common Stock is listed, whichever is applicable, as published in
the Eastern Edition of The Wall Street Journal for the ten
trading days prior to the date of determination of fair market
value.
6. Common Stock.
(a) The Sellers shall have, at any time prior to
disbursement of the Common Stock, the full and unqualified right
and power to exercise any voting, consent and other rights and to
cause the Escrow Agent to sell all or part of the Common Stock
held as part of the Escrow Fund, and the Escrow Agent not shall
have any duty, right or privilege to exercise any such rights.
The Escrow Agent shall exercise all such rights of any Seller
with respect to any Common Stock as directed by written
instructions by such Seller in form satisfactory to the Escrow
Agent. The Escrow Agent shall execute and deliver to any Seller
upon request all such proxies, forms for election or other
instruments as may be required with respect to the Common Stock
held as part of the Escrow Fund in order to give effect to the
foregoing. All property received by the Escrow Agent pursuant to
a sale of the Common Stock held as part of the Escrow Fund shall
become a part of the Escrow Fund.
(b) The parties hereby authorize the Escrow Agent to apply
to the transfer agent for the Common Stock for any division of
certificates evidencing Common Stock held as part of the Escrow
Fund which may be required in connection with the distribution of
Common Stock held as part of the Escrow Account.
7. Accounts. The Escrow Agent shall maintain separate
book accounts with respect to each of the Sellers, which book
accounts shall initially be credited with the amounts of Common
Stock deposited with the Escrow Agent at the Closing, as set
forth on Schedule 1. [Prior to making any disbursement from the
Escrow Fund, the Escrow Agent shall prepare, and distribute to
each of the Sellers, statement of the then-current balances in
each of the separate book accounts.] All other income, interest,
increments and gains of all kinds from the Escrow Fund (or losses
related thereto) shall be allocated among the book accounts pro
rata based upon the total Common Stock balances of each such
account, and weighted (if and to the extent appropriate) to
reflect sales of any shares of the Common Stock during the period
with respect to which the allocation is being calculated. The
Sellers shall be jointly and severally liable for the fees and
expenses of the Escrow Agent pursuant to paragraph 11 hereof. As
among themselves, the Sellers shall be responsible only for their
pro rata portion of the Escrow Agent's fees and expenses. In the
case of amounts of reimbursement in respect of any Pittencrieff
Losses by Seller under Section 1 of the Sellers' Contribution
Agreement, amounts paid or disbursed to any Seller under
paragraph 5 hereof shall be limited to the amount of, and shall
be allocated solely to, such Sellers' book account. Upon
termination of this Agreement, or release of any portion of the
Escrow Fund, each of the Sellers shall receive from the Escrow
Fund an amount equal to its then-current balance in its book
account; and if less than the full amount in the Escrow Fund is
then being distributed, the amount to be distributed shall be
allocated among the book accounts of the Sellers, pro rata in
proportion to the number of shares of common stock of New PCI
held by each Seller at the Closing with appropriate adjustments
to reflect allocations to individual Sellers pursuant to the
preceding sentence.
8. Termination. This Agreement shall terminate with
respect to 1,535,980 shares of Common Stock on the first
anniversary of the date hereof. This Agreement shall terminate
with respect to the balance of the shares of Common Stock held
hereunder on the later of (i) eighteen months from the date
hereof and receipt by the Escrow Agent of written notice from the
Sellers' of such termination, and (ii) the date any remaining
Reimbursement Notice or Dispute Notice has been resolved as
provided herein, the receipt by the Escrow Agent of written
notice thereof from the Sellers. On Termination, the Escrow
Agent will disburse from the Escrow Fund to each Seller the
balance of such Seller's book account maintained pursuant to
paragraph 7 immediately prior to such disbursement, with Common
Stock in such Seller's book account to be valued for the purpose
of determining such amount as provided in paragraph 5(c).
9. Duties of Escrow Agent; Indemnification.
(a) The Escrow Agent shall have no duties or
responsibilities except those expressly set forth herein. The
Escrow Agent shall have no responsibility for the validity of any
agreements referred to in this Agreement, or for the performance
of any such agreements by any party thereto or for interpretation
of any of the provisions of any of such agreements. The
liability of the Escrow Agent hereunder shall be limited solely
to bad faith, willful misconduct or gross negligence on its part.
The Escrow Agent shall be protected in acting upon any
certificate, notice or other instrument whatsoever received by
the Escrow Agent under this Agreement, not only as to its due
execution and the validity and effectiveness of its provisions,
but also as to the truth and accuracy of any information therein
contained, which the Escrow Agent in good faith believes to be
genuine and to have been signed or presented by a proper person
or persons. The Escrow Agent shall not be obligated to take any
legal or other action hereunder which might in its judgment
involve expense or liability unless it shall have been furnished
with indemnity acceptable to it.
(b) In the event that the Escrow Agent shall be uncertain
as to its duties or rights hereunder or shall receive
instructions from any of the undersigned with respect to any
property held by it in escrow pursuant to this Agreement which,
in the opinion of the Escrow Agent, are in conflict with any of
the provisions of this Agreement, the Escrow Agent shall be
entitled to refrain from taking any action until it shall be
directed otherwise in writing by the Sellers or by an order of a
court of competent jurisdiction. The Escrow Agent may consult
counsel satisfactory to it, including house counsel, and the
advice or opinion of such counsel shall be full and complete
authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in
accordance with the advice or opinion of such counsel. The
Escrow Agent shall be deemed to have no notice of, or duties with
respect to, any agreement or agreements with respect to any
property held by it in escrow pursuant to this Agreement other
than this Agreement or except as otherwise provided herein. This
Agreement sets forth the entire agreement between the parties
hereto and the Escrow Agent. Notwithstanding any provision to
the contrary contained in any other agreement (excluding any
amendment to this Agreement) among any of the parties hereto, the
Escrow Agent shall have no interest in the property held by it in
escrow pursuant to this Agreement except as provided in this
Agreement. In the event that any of the terms and provisions of
any other agreement (excluding any amendment to this Agreement)
between any of the parties hereto conflict or are inconsistent
with any of the terms and provisions of this Agreement, the terms
and provisions of this Agreement shall govern and control in all
respects.
(c) Neither the Escrow Agent nor any of its directors,
officers or employees shall be liable to anyone for any action
taken or omitted to be taken by it or any of its directors,
officers or employees hereunder except in the case of gross
negligence, bad faith or willful misconduct. Each of the
Sellers, jointly and severally, covenant and agree to indemnify
the Escrow Agent and hold it harmless without limitation from and
against any loss, liability or expense of any nature incurred by
the Escrow Agent arising out of or in connection with this
Agreement or with the administration of its duties hereunder,
including, but not limited to, legal fees and expenses and other
costs and expenses of defending or preparing to defend against
any claim of liability in the premises, unless such loss,
liability or expense shall be caused by the Escrow Agent's gross
negligence, bad faith or willful misconduct. In no event shall
the Escrow Agent be liable for indirect, punitive, special or
consequential damages.
10. Resignation. The Escrow Agent shall have the right, in
its discretion, to resign as agent at any time, by giving at
thirty (30) days' prior written notice of such resignation to the
Sellers. In such event the Sellers will promptly select another
bank with capital, surplus and undivided profits of not less than
One Hundred Million Dollars ($100,000,000), which will be
appointed as successor Escrow Agent, and will enter into an
agreement with such other bank in substantially the form of this
Agreement. Resignation by the Escrow Agent shall relieve the
Escrow Agent of any responsibility or duty thereafter arising
hereunder but shall not relieve the Escrow Agent of
responsibility to account for the Escrow Fund. If a substitute
for the Escrow Agent hereunder shall not have been selected, as
aforesaid, the Escrow Agent shall be entitled to petition any
court for the appointment of a substitute for it hereunder or, in
the alternative, it may (i) transfer and deliver the funds
deposited in the Escrow Account and all other assets held
hereunder to or upon the order of such court or (ii) keep safely
the Escrow Fund and all other assets held hereunder until it
receives notice from the Sellers of a substitute appointment.
The Escrow Agent shall be discharged from all further duties
hereunder upon acceptance by the substitute of its duties
hereunder or upon transfer and delivery of the Escrow Fund to or
upon the order of any court. The provisions of Section 9(c)
hereof shall survive the resignation or removal of the Escrow
Agent or the termination of this Agreement.
11. Fees. The Sellers agree to pay or reimburse the Escrow
Agent for any legal fees and expenses incurred in connection with
the preparation of this Agreement and to pay the Escrow Agent's
reasonable compensation for its normal services hereunder in
accordance with the fee schedule, attached as Exhibit B, which
may be subject to change on an annual basis. The Escrow Agent
shall be entitled to reimbursement on demand for all expenses
incurred in connection with the administration of the escrow
created hereby which are in excess of its compensation for normal
services hereunder, including, without limitation, payment of any
legal fees and expenses incurred by the Escrow Agent in
connection with the resolution of any claim by any party
hereunder.
12. Payments. At any time the Escrow Agent is required to
distribute or pay any amounts held by or received by it under any
of the provisions of this Agreement to any Seller, such
distribution and payment shall be effected by issuance of
certificates for the appropriate number of shares of Common Stock
to such Seller at the address of such Seller set forth in
Schedule 1 hereto.
13. Notices. All notices, requests or other communications
required or permitted hereunder shall be given in writing and
shall have been deemed to have been duly given if delivered in
hand on the date of receipt (or refusal), and if given by mail or
Federal Express or similar nationally recognized expedited
overnight commercial courier, when deposited in the United States
mail or delivered to Federal Express or similar nationally
recognized expedited overnight commercial courier, addressed to
the recipient of the notice, post-paid and registered or
certified mail (if mailed), or with all freight charges paid (if
by Federal Express or other courier) to the following addresses:
if to the Escrow Agent, to:
State Street Bank and Trust Company
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxxxx
and
if to the Sellers, to the respective addresses set forth on
Schedule 1.
or to such other address as any party may have designated for
itself by written notice to the other in the manner herein
prescribed except that notices of changes of address shall be
effective only upon receipt.
14. Consent to Jurisdiction and Service. The Sellers
hereby absolutely and irrevocably consent and submit to the
jurisdiction of the courts of the Commonwealth of Massachusetts
and of any federal court located in said Commonwealth in
connection with any actions or proceedings brought against the
Sellers by the Escrow Agent arising out of or relating to this
Agreement. In any such action or proceeding, the Sellers hereby
absolutely and irrevocably waive personal service of any summons,
complaint, declaration or other process and hereby absolutely and
irrevocably agree that service thereof may be made by certified
or registered first class mail directed to the Sellers, as the
case may be, at their respective addresses in accordance with
Section 13 hereof.
15. Force Majeure. Neither the Sellers nor Escrow Agent
shall be responsible for delays or failures in performance
resulting from acts beyond its control. Such acts shall include
but not be limited to acts of God, strikes, lockouts, riots, acts
of war, epidemics, governmental regulations superimposed after
the fact, fire, communication line failures, computer viruses,
power failures, earthquakes or other disasters.
16. 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 any photographic,
photostatic, microfilm, optical disk, micro-card, miniature
photographic or other similar process. The parties hereto 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 shall likewise be admissible in evidence.
17. Binding Effect; Assignment. This Agreement shall be
binding upon, and inure to the benefit of and be enforceable by,
the parties hereto and their respective legal representatives,
successors and assigns, provided, however, that this Agreement
shall not be assigned by any party hereto without the prior
written consent of all of the other parties hereto, except that
AMI may assign this Agreement in connection with its liquidation
and dissolution; any assignment made absent such consent shall be
void ab initio.
18. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original but
all of which taken together shall constitute one and the same
instrument.
19. Amendment and Modification; Waivers. This Agreement
may not be amended or modified except by a written agreement
signed by the party against whom enforcement of such amendment or
modification is sought. Any waiver of any term or condition of
this Agreement, or any breach of any covenant, representation or
warranty contained herein, in any one instance shall not operate
as or be deemed to be or construed as a further or continuing
waiver of any other breach of such term, condition, covenant,
representation or warranty or any other term, condition,
covenant, representation or warranty, nor shall any failure at
any time or times to enforce or require performance of any
provision hereof operate as a waiver or affect in any manner such
parties' right at any later time to enforce or require
performance of such provision or any other provisions hereof.
20. Governing Law. This Escrow Agreement shall be governed
by and construed in accordance with the laws of The Commonwealth
of Massachusetts, without giving effect to principles of
conflicts of laws.
IN WITNESS WHEREOF, the parties hereto have executed this
Escrow Agreement as of the day and year first above written.
ADVANCED MOBILECOMM, INC.
By:______________________________
Xxxxxx X. Xxxxx, President
STATE STREET BANK AND TRUST COMPANY
By:________________________________
Name:
Title:
________________________________
Xxxxx Xxxxx, for himself and
as authorized agent for
Trunked Mobile Radio Systems
___________________________________
Xxxx Xxxxxxxxxx
___________________________________
Xxxx Xxxxxxxxxx
___________________________________
Xxxxx Xxxx
___________________________________
Xxxx Xxxx
___________________________________
Xxxx Xxxxxx
By:________________________________
Xxxxx X. Xxxxxxx, for himself
and
as trustee for the Revocable
Trust for
W.A. Xxxxxxx and the Revocable
Trust for Xxxxxxx X. Xxxxxxxx
___________________________________
Xxxx X. Xxxxxx
___________________________________
Xxxxxxx Xxxxx
__________________________________
Xxxx Xxxxx
Exhibit A
LIST OF SELLERS
Original
Number of
ADVANCED MOBILECOMM, INC. Shares Escrowed
Xxxxx Xxxxx, for himself and
as authorized agent for
Trunked Mobile Radio Systems
Xxxx Xxxxxxxxxx
Xxxx Xxxxxxxxxx
Xxxxx Xxxx
Xxxx Xxxx
Xxxx Xxxxxx
Xxxxx X. Xxxxxxx, for himself and
as trustee for the Revocable Trust for
W.A. Xxxxxxx and the Revocable
Trust for Xxxxxxx X. Xxxxxxxx
Xxxx X. Xxxxxx
Xxxxxxx Xxxxx
Xxxx Xxxxx
Exhibit B
FEE SCHEDULE
Annual Escrow Fee
$3,500.00
Investment Transaction Fee (if applicable)
A per transaction charge to cover the purchase and sale
of investments held in account under administration.
(Fee only applies for non-State Street Bank
investments.)
Extraordinary Administrative Expenses
Fees for services not specifically set forth in this
schedule will be determined by appraisal. Such
services may include, but are not limited to,
additional responsibilities and services incurred in
case of default.
Out-of-Pocket Expenses
Out-of-pocket expenses such as counsel fees and
expenses, telephone, postage, insurance, shipping
charges, outside investment charges and supplies will
be charged at cost.
