EXHIBIT 2.4
ESCROW AGREEMENT
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ESCROW AGREEMENT dated as of December 12, 1996 among SystemSoft
Corporation, a Delaware corporation ("SystemSoft"), Xxxxx X. Xxxxx (the
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"Stockholder Representative"), as representative of the Major Stockholders (as
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such term is defined in the Merger Agreement), and State Street Bank and Trust
Company as escrow agent only (the "Escrow Agent").
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RECITALS
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1. SystemSoft and its wholly-owned subsidiary, Black Acquisition
Corp., a Delaware corporation ("Merger Sub"), have executed a definitive
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Agreement and Plan of Merger and Reorganization dated as of December 12, 1996
(the "Merger Agreement") with Radish Communications Systems, Inc. ("Radish")
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pursuant to which Merger Sub will merge with and into Radish. The Major
Stockholders have selected the Stockholder Representative to act on their behalf
in connection with the Merger. Capitalized terms defined in the Merger
Agreement shall be used herein with the meanings so defined.
2. Pursuant to the Merger Agreement, 10% of the shares of Common
Stock of SystemSoft, $.01 par value per share, otherwise issuable to the Major
Stockholders of Radish under the Merger Agreement (the "Escrow Shares"), will be
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deposited by SystemSoft into the escrow fund created hereby.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt of which is hereby acknowledged, the parties
agree as follows:
Section 1. Establishment of Escrow.
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(a) Pursuant to Section 1.8 of the Merger Agreement, simultaneously
with the Closing, SystemSoft will deposit with the Escrow Agent a stock
certificate in the name of the Escrow Agent (or its nominee) representing the
Escrow Shares, to be held in an account designated as "SystemSoft Corporation
Escrow Account" or having a similar designation and disbursed in accordance with
the terms hereof. The Escrow Agent agrees to accept the Escrow Shares and to
hold and distribute them in the manner provided herein.
(b) All dividends and distributions (other than cash dividends and
distributions) made by SystemSoft with respect to the Escrow Shares will be paid
or made to the Escrow Agent to be held in escrow with the other Escrow Shares as
provided herein as additional assets of the escrow to satisfy indemnification
claims in accordance with Article IX of the Merger Agreement. Such dividends
and distributions shall be deemed to be a part of the Escrow Shares to which
they relate. Cash dividends and distributions, if any, with respect to the
Escrow Shares will be made by SystemSoft directly to the Major Stockholders of
Radish for whose account such shares are being held hereunder. If a meeting or
written action of stockholders of SystemSoft occurs while this Escrow Agreement
is still in effect, the Escrow Agent shall promptly send to the Stockholder
Representative copies of any notices, proxies and proxy materials in connection
with such meeting or written action. The Escrow Agent shall vote the Escrow
Shares in accordance with the instructions set forth in any proxies returned to
the Escrow Agent by the Stockholder Representative. If no proxy is received,
the Escrow Agent shall not vote such shares.
Escrow Agreement -- Page 2
(c) Exhibit A hereto contains a list of all of the Major Stockholders,
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their addresses and the number of Escrow Shares held for their account hereunder
at the Effective Time (as defined below) of the Merger. The number of Escrow
Shares held for the account of a particular Major Stockholder as of the date of
this Agreement relative to the Escrow Shares held for the account of all Major
Stockholders as of the date of this Agreement is referred to herein as such
Major Stockholder's "Proportionate Percentage." In the event that any loss set
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forth in a Notice of Claim (as defined below) becomes due in accordance with the
provisions of Section 2 hereof and exceeds any Major Stockholder's remaining
number of Escrow Shares (a "Deficiency"), then the other Major Stockholders
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shall be obligated to cover such a Deficiency according to each Major
Stockholders' relative Proportionate Percentage. The Merger shall become
effective as of the time of filing of the executed certificate of merger with
the Secretary of State of Delaware (the "Effective Time").
Section 2. Payment by Escrow Agent with Respect to the Escrow Shares.
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(a) Notices of Claims and Dispute Notices.
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(i) If SystemSoft reasonably believes that it, or any other
Indemnitee entitled to indemnification under Section 9.2 of the Merger Agreement
(the "SystemSoft Indemnitees") has or may suffer a loss that entitles or may
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entitle it to indemnification under the Merger Agreement, SystemSoft may deliver
to the Escrow Agent a written notice (a "Notice of Claim") setting forth in
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reasonable the nature of the claim, an estimate of the aggregate amount at that
time to which SystemSoft believes such SystemSoft Indemnitee is, or may be,
entitled to be paid pursuant to the Merger Agreement. SystemSoft shall send a
copy of each Notice of Claim to the Stockholder Representative no later than the
date on which such Notice of Claim was sent to the Escrow Agent. Each Notice of
Claim delivered to the Escrow Agent shall include a certification that
SystemSoft has sent a copy of such Notice of Claim to the Stockholder
Representative.
(ii) The Escrow Agent shall deliver to SystemSoft's transfer agent
(the "Transfer Agent") Escrow Shares in exchange for a new stock certificate
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representing a number of shares of SystemSoft Common Stock (which will remain
Escrow Shares) equal to the number of Escrow Shares previously held by the
Escrow Agent, less the number of Escrow Shares having a value (such value to be
determined pursuant to Section 2(e) hereof) equal to the amount set forth in a
Notice of Claim as soon as practicable, but no earlier than 20 business days
following receipt by the Escrow Agent of such Notice of Claim; provided,
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however, that if within the period of 20 business days following receipt by the
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Escrow Agent of such Notice of Claim the Escrow Agent shall have received from
the Stockholder Representative a written notice (a "Dispute Notice") stating
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that he or it disputes the validity or the amount specified in such Notice of
Claim or any portion thereof (a "Disputed Amount"), the Escrow Agent shall not
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deliver the Escrow Shares as provided above for any such disputed amount other
than pursuant to Section 2(b). Upon any distribution of Escrow Shares to
SystemSoft in satisfaction of a Notice of Claim by the Escrow Agent the number
of Escrow Shares held for the account of each Major Stockholder will be reduced
by its Proportionate Percentage of the Escrow Shares distributed to satisfy the
Notice of Claim, provided, however, that in the event of a distribution in
satisfaction of a Notice of Claim for indemnification pursuant to the provisos
to Section 9.2(i) and 9.2(ii) of the Merger Agreement, any reduction in the
number of escrow shares shall only be for shares of such individual Majority
Stockholder who was liable for any such
Escrow Agreement -- Page 3
indemnification. Any fractional interests will be carried forward until the
distribution of Escrow Shares to the Major Stockholders, at which time
fractional interests will be rounded in the discretion of SystemSoft. Within 10
business days after any payment of a SystemSoft Indemnitee claim, including a
payment made at the direction of an arbitration panel pursuant to Section 2(c),
SystemSoft will deliver to the Escrow Agent and the Stockholder Representative a
revised Exhibit A, which will be attached hereto in lieu of the then existing
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Exhibit A. The Escrow Agent may rely upon such revised Exhibit A unless and
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until the Stockholder Representative delivers an objection thereto in writing.
Any disputes regarding Exhibit A will be resolved in the manner provided in
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Section 2(c) hereof. Without altering the Escrow Agent's obligations set forth
herein, the Stockholder Representative shall include in each Dispute Notice,
reasonable detail of the nature of the Stockholder Representative's dispute. The
Stockholder Representative shall send a copy of each Dispute Notice to
SystemSoft no later than the date on which such Dispute Notice was sent to the
Escrow Agent. Each Dispute Notice delivered to the Escrow Agent shall include a
certification that the Stockholder Representative has sent a copy of such
Dispute Notice to SystemSoft.
(iii) If the Escrow Agent shall not have received a Dispute
Notice with respect to the validity or amount specified in a Notice of Claim, or
a portion thereof, within the period of 20 business days following its receipt
of such Notice of Claim, the Stockholder Representative shall be forever barred
and precluded from contesting in any manner or forum whatsoever the distribution
of Escrow Shares on account of such amount not so disputed.
(b) Disputed Amounts. Upon receipt by the Escrow Agent of a notice (a
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"Resolution Notice") from SystemSoft and/or the Stockholder Representative with
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respect to a Disputed Amount specifying the amount of such Disputed Amount to
which any SystemSoft Indemnitee is entitled, accompanied by (A) a written
agreement between SystemSoft and the Stockholder Representative with respect to
such Disputed Amount, or (B) a final order from an arbitrator pursuant to
Section 2(c) of this Agreement determining that SystemSoft is entitled to
indemnification, the Escrow Agent shall cause to be delivered to such SystemSoft
Indemnitee the Escrow Shares having a value equal to the amount to which such
SystemSoft Indemnitee, or any other SystemSoft Indemnitee is entitled, if any.
SystemSoft and the Stockholder Representative agree that the only methods for
resolving a Disputed Amount will be through negotiations between themselves or
through use of an arbitrator pursuant to Section 2(c).
(c) In the event of a Disputed Amount, a dispute regarding Exhibit A,
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or any other dispute regarding this Escrow Agreement, SystemSoft and the
Stockholder Representative shall in good faith negotiate to settle such Disputed
Amount. If no resolution is reached within 30 days after delivery of the
Dispute Notice or Exhibit A to the Escrow Agent, either party may commence an
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arbitration proceeding (a "Proceeding") by submitting the Disputed Amount to
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arbitration within 60 days after the date of delivery of the Dispute Notice to
the Escrow Agent. Any such arbitration shall be before an arbitral tribunal
composed of three arbitrators; one selected by SystemSoft, one selected by the
Stockholder Representative and one selected by mutual agreement of the parties
(the "Panel"). If the parties are unable to agree on such third arbitrator, the
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arbitrator shall be selected by the American Arbitration Association (the "AAA")
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in accordance with its Commercial Arbitration Rules. The Panel will resolve the
Disputed Amount in accordance with the rules of the AAA. The venue for the
arbitration shall be Boston, Massachusetts or such other venue mutually agreed
to by SystemSoft and the Stockholder Representative. The Panel's award or order
shall be final and binding on SystemSoft, the Stockholder Representative and the
Major Stockholders and all costs of such proceeding shall be
Escrow Agreement -- Page 4
borne as specified in the award or order. The provisions of this Section may be
enforced in any court having jurisdiction over the award or any of the Major
Stockholders and SystemSoft and or any of their respective assets, and judgment
on the award (including without limitation equitable remedies) granted in any
arbitration hereunder may be entered in any such court. Nothing contained in
this Section shall prevent any party from seeking interim measures of protection
in the form of pre-award attachment of assets or preliminary or temporary
equitable relief.
(d) Distribution of Escrow Shares to the Stockholder Representative.
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(i) Within 20 business days after the Termination Date (as defined
below), the Escrow Agent shall deliver the stock certificate representing the
Escrow Shares to the Transfer Agent in exchange for:
(A) stock certificates for and in the name of each Major
Stockholder with respect to which Escrow Shares are then attributable in
accordance with Exhibit A; provided, however, that the Escrow Agent shall
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exclude from such number of Escrow Shares a number of Escrow Shares equal
to the number of Escrow Shares subject to any outstanding and unresolved
Notices of Claim in accordance with the Proportionate Percentages (based on
the amounts set forth in the Notice of Claim, whether or not a Dispute
Notice has been delivered with respect thereto, unless such dispute has
been subsequently resolved);
(B) if applicable, a new stock certificate in the name of the
Escrow Agent representing the aggregate number of Escrow Shares as to which
Notices of Claim are outstanding and not resolved.
In the event that on the Termination Date (as defined below) all the
matters set forth in any previously delivered Notice of Claim have not been
finally resolved, then a number of Escrow Shares shall be withheld from the
distribution described above in order to provide for the remaining
indemnification obligations of the Major Stockholders of Radish. The
"Termination Date" shall mean the earlier of (i) the date SystemSoft releases
its audited financial statements for the year ended January 31, 1998 or (ii) May
2, 1998.
Upon receipt of such stock certificates from the Transfer Agent, the Escrow
Agent will promptly deliver such stock certificates for and in the name of the
Major Stockholders to them at such addresses as the Stockholder Representative
shall direct, and the Escrow Agent will retain the new stock certificate in its
name pending resolution of all outstanding and unresolved claims.
(ii) If at any time after the Termination Date there are Escrow Shares
in excess of outstanding Notices of Claim due to the resolution of such
outstanding claims, either SystemSoft or the Stockholder Representative may
deliver a certificate to that effect to the Escrow Agent with a copy to the
other party, and if no written objection has been delivered within 10 business
days by the other party, a distribution will be effected, as provided in clause
(i). If a written objection has been delivered within such time period, the
controversy will be resolved pursuant to Section 2(c) hereof.
Escrow Agreement -- Page 5
(e) Valuation of Escrow Shares. For purposes of this Section 2, Escrow
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Shares shall be valued at the Final SystemSoft Stock Price, as defined in the
Merger Agreement. The Escrow Agent shall be under no duty or responsibility
with regard to the valuation of the Escrow Shares.
(f) General Provisions
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(i) No Major Stockholder will offer, sell, assign, pledge,
hypothecate, transfer or otherwise dispose of any Escrow Shares until released
from the Escrow Account.
(ii) SystemSoft and the Stockholder Representative shall have the
right to inspect and obtain copies of the records of the Escrow Agent upon
reasonable notice and during reasonable business hours and to receive monthly
reports of the status of the Escrow Shares.
Section 3. Concerning the Escrow Agent.
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(a) The Escrow Agent will have no duties or obligations other than those
specifically set forth in or contemplated by this Escrow Agreement and the
Escrow Agent will not be responsible for any of the agreements referred to
herein, including the Merger Agreement.
(b) The Escrow Agent will be fully protected in acting on and relying upon
any written notice, direction, request, waiver, consent, receipt or other paper
or document which the Escrow Agent in good faith believes to have been signed or
presented by the proper party or parties, but will not act on oral instructions
alone of any party.
(c) The Escrow Agent will not be obligated to take any legal action
hereunder which might in its judgment involve any expense or liability, unless
it will have been furnished with reasonable indemnity.
(d) The Escrow Agent and its directors, officers or employees will not be
liable for any error of judgment, or for any act done or step taken or omitted
by it in good faith or for any mistake in fact or law, or for anything which it
may do or refrain from doing in connection with this Escrow Agreement, except
for its own gross negligence, willful misconduct or act of bad faith.
(e) The Escrow Agent may seek the advice of legal counsel, including in-
house counsel, in the event of any dispute or question as to the construction of
any of the provisions of this Escrow Agreement or its duties hereunder, and it
will incur no liability and will be fully protected in respect of any action
taken, omitted or suffered by it in good faith in accordance with the opinion of
such counsel.
(f) The Escrow Agent will be compensated on the basis of its regular fees
as set forth on Exhibit 1, which may be subject to change hereafter on an annual
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basis, plus reasonable out-of-pocket expenses, including the reasonable fees and
costs of attorneys or agents which it may find necessary to engage in the
preparation of this Escrow Agreement and in performing its duties under this
Escrow Agreement (the "Escrow Fees") which will be invoiced to SystemSoft.
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SystemSoft will be responsible for all of such Escrow Fees.
(g) The Escrow Agent will be, and hereby is, indemnified and saved harmless
by SystemSoft and the Stockholder Representative, jointly and severally, from
all liabilities, losses,
Escrow Agreement -- Page 6
costs and expenses (including reasonable attorneys' fees and expenses) which may
be incurred by it as a result of or arising out of this Escrow Agreement,
including its involvement in any arbitration or litigation arising from
performance of its duties under this Escrow Agreement, other than litigation or
arbitration resulting from or with respect to any action taken or omitted by the
Escrow Agent for which it will have been adjudged grossly negligent or guilty of
willful misconduct or bad faith. Such indemnification will survive termination
of this Escrow Agreement.
(h) The Escrow Agent may at any time resign as Escrow Agent hereunder by
giving thirty (30) days prior written notice of resignation to SystemSoft and
the Stockholder Representative. Prior to the effective date of the resignation
as specified in such notice, SystemSoft will issue to the Escrow Agent a written
instruction authorizing redelivery of the Escrow Shares to a bank or trust
company that it selects. Such bank or trust company shall have capital, surplus
and undivided profits in excess of $100,000,000. If, however, SystemSoft shall
fail to name a successor escrow agent within twenty (20) days after the notice
of resignation from the Escrow Agent, the Stockholder Representative shall be
entitled to name such successor escrow agent. If no successor escrow agent is
named by SystemSoft or the Stockholder Representative, the Escrow Agent may
apply to a court of competent jurisdiction for appointment of a successor escrow
agent.
(i) If a controversy arises between one or more of the parties to this
Escrow Agreement, as to whether or not the Escrow Agent will distribute any of
the Escrow Shares, or as to any other matter arising out of or relating to this
Escrow Agreement or the Escrow Shares, the Escrow Agent will not be required to
determine the controversy and need not make any distribution of the Escrow
Shares but may retain the same until the rights of the parties to the dispute
will have finally been determined by an arbitration panel as provided for in
Section 2(c) of this Escrow Agreement or until it receives joint written
instructions with respect thereto from the Stockholder Representative and
SystemSoft. If a controversy of the type referred to in this Section 3 arises,
the Escrow Agent may, but shall be under no duty whatsoever to, request that the
parties commence arbitration proceedings as provided in Section 2(c) of this
Escrow Agreement for determination of the controversy, and the parties will
promptly comply with such request.
Section 4. Miscellaneous Provisions.
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(a) All notices, consents and other communications under this Escrow
Agreement shall be in writing and shall, except as otherwise provided herein, be
deemed to have been duly given when (i) delivered by hand, (ii) sent by telex or
telecopier (with receipt confirmed), provided that a copy is mailed by certified
mail, return receipt requested, or (iii) when received by the addressee, if sent
by Express Mail, Federal Express or other express delivery service (receipt
requested), in each case, at the appropriate addresses, telex numbers and
telecopier numbers as set forth below:
Escrow Agreement -- Page 7
Escrow Agent:
State Street Bank and Trust Company
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxx Xxxxxxxx, Corporate Trust Department, Fourth Floor
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Transfer Agent:
Boston EquiServe
000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
SystemSoft:
SystemSoft Corporation
0 Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: President
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
with a copy to:
Xxxxx Xxxxxxx & Xxxxxxxxx, LLP
000 Xxxx Xxxxxx
Xxxx Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Attention: Xxxx X. Xxxxxxx, Esq.
If to the Stockholder Representative, to:
Xxxxx X. Xxxxx
Frontenac Company
000 Xxxxx XxXxxxx Xxxxxx
Xxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Telephone:
Telecopier:
Escrow Agreement -- Page 8
with a copy to:
Ireland, Xxxxxxxxx, Xxxxx & Xxxxxx. P.C.
0000 Xxxxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Attention: Xxxx X. Xxxxx, Esq.
(or to such other addresses, telex numbers and telecopier numbers as a party may
designate as to itself by notice to the other parties). Notwithstanding any of
the foregoing, no notice or instructions to the Escrow Agent shall be deemed to
have been received by it prior to actual receipt, no notice to the Escrow Agent
shall be deemed effective until such receipt by it, and any computation of a
time period which is to begin after receipt of a notice by the Escrow Agent
shall run from the date of such receipt by it.
(b) Nothing in this Agreement shall be construed to limit the right of
SystemSoft or any other SystemSoft Indemnitee under any provision of the Merger
Agreement.
(c) This Escrow Agreement shall be governed by, and construed in accordance
with, the laws (other than the choice or conflicts of laws rules and provisions)
of the Commonwealth of Massachusetts.
(d) This Escrow 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.
(e) Neither SystemSoft nor the Stockholders Representative nor the 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.
(f) This Agreement shall be binding upon the respective parties hereto and
their heirs, executors, successors and assigns.
(g) This Agreement may not be altered or modified without the express
written consent of the parties hereto. No course or 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.
Section 5. The Stockholder Representative.
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(a) As long as there are Escrow Shares held in escrow pursuant to this
Escrow Agreement, the Major Stockholders, and each of them, will be represented
by the Stockholder
Escrow Agreement -- Page 9
Representative, who is empowered to receive any notice under this Escrow
Agreement for the Major Stockholders, and each of them, and to give any and all
notices and instructions and take any and all action for and on behalf of the
Major Stockholders, and each of them, under this Escrow Agreement. The Major
Stockholders will have the right to remove the Stockholder Representative and,
upon such removal or, in the event of the Stockholder Representative's death or
resignation, to appoint as the new Stockholder Representative any former
stockholder at any time and from time to time during the period when any shares
are held in escrow, by a vote of Major Stockholders holding majority interest in
the Escrow Shares held in escrow at such time evidenced by a writing executed by
such Major Stockholders. The appointment of a new Stockholder Representative
will be of no force or effect whatsoever upon SystemSoft or the Escrow Agent or
otherwise under this Escrow Agreement until three days after the later of the
dates when SystemSoft or the Escrow Agent is deemed to have received written
notice of such appointment, which notice must include at least: (i) the identity
and address of the new Stockholder Representative and a statement that such
Stockholder Representative has been appointed by a vote of Major Stockholders
holding a majority interest in the Escrow Shares then held in escrow; (ii) the
duly acknowledged signatures of each of the Major Stockholders voting for the
new Stockholder Representative; and (iii) a statement that any non-signing Major
Stockholder has been notified in writing of the appointment of the new
Stockholder Representative. SystemSoft and the Escrow Agent will be entitled to
rely on any notice received in such form without conducting an investigation of
the contents thereof. Any notice given to the Stockholder Representative will
constitute notice to each and all of the Major Stockholders at the time notice
is given to the Stockholder Representative. Any action taken by, or notice or
instruction received from, the Stockholder Representative will be deemed to be
action by, or notice or instruction from, each and all of the Major
Stockholders. SystemSoft may and the Escrow Agent will disregard any notice or
instruction received from any Major Stockholder other than the then acting
Stockholder Representative with regard to this Agreement prior to the
Termination Date.
(b) The Stockholder Representative shall not suffer any liability or loss
for any act performed or omitted to be performed by him under this Agreement in
the absence of gross negligence or willful misconduct. The Stockholder
Representative may consult with counsel in connection with his duties hereunder
and shall be fully protected by any act taken, suffered, permitted, or omitted
in good faith in accordance with the advice of counsel. The Stockholder
Representative shall not be responsible for the sufficiency or accuracy of the
form, execution, validity or genuineness of documents or securities now or
hereafter deposited hereunder, or of any endorsement thereof or for any lack of
endorsement thereof or for any description therein, nor shall he be responsible
or liable in any respect on account of the identity, authority or rights of the
persons executing or delivering or purporting to execute or deliver any such
document, security or endorsement, and the Stockholder Representative shall be
fully protected in relying upon any written notice demand, certificate or
document which he in good faith believes to be genuine.
(c) The Stockholder Representative shall be entitled to employ such legal
counsel and other experts as he may deem necessary to advise him properly with
respect to his rights and obligations hereunder and to evaluate claims and to
pursue challenges to claims or to defend third party claims. The expenses and
fees of such counsel and experts, and any out of pocket expenses which the
Stockholder Representative incurs under Sections 2 or 3 hereunder in relation to
evaluating, challenging or contesting claims, shall be reimbursed by the Major
Stockholders, on a pro rata basis.
Escrow Agreement -- Page 10
(d) The Stockholder Representative hereby agrees to do such acts, and
execute further documents, as shall be necessary to carry out the provisions of
this Escrow Agreement or to transfer any Escrow Shares pursuant to the terms
hereof.
Escrow Agreement -- Page 11
IN WITNESS WHEREOF, the undersigned have executed this Escrow Agreement as
of the date first written above.
STATE STREET BANK AND TRUST
COMPANY
as Escrow Agent only
By /s/ Xxxxx X. Seemore
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Name: Xxxxx X. Seemore
Title: Ass. V.P.
SYSTEMSOFT CORPORATION
By /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: V.P. Finance & CEO
/s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx, as Stockholder
Representative
