-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, NQdK5UPVZyck8vFhjmhPLEScZEod82KNgAt8xMfB39Sgl0+rDcIRQK4qZZ7ZXLO4 pAhVfjyoiEKuEpQcL3jLEQ== 0000897069-05-001559.txt : 20050624 0000897069-05-001559.hdr.sgml : 20050624 20050624161756 ACCESSION NUMBER: 0000897069-05-001559 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20050624 DATE AS OF CHANGE: 20050624 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: MEYERCORD F DUFFIELD CENTRAL INDEX KEY: 0001037985 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 1163 SHREWSBURY AVENUE CITY: SHREWSBURY STATE: NJ ZIP: 07702-4321 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: TRAILER BRIDGE INC CENTRAL INDEX KEY: 0001039184 STANDARD INDUSTRIAL CLASSIFICATION: TRUCKING (NO LOCAL) [4213] IRS NUMBER: 133617986 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-52569 FILM NUMBER: 05915331 BUSINESS ADDRESS: STREET 1: 10405 NEW BERLIN ROAD STREET 2: EAST CITY: JACKSONVILLE STATE: FL ZIP: 32226 BUSINESS PHONE: 9047517100 MAIL ADDRESS: STREET 1: 10405 NEW BERLIN ROAD STREET 2: EAST CITY: JACKSONVILLE STATE: FL ZIP: 32226 SC 13D/A 1 dkm636.txt AMENDMENT NO. 1 TO SCHEDULE 13D UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D (Rule 13d-101) INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO RULE 13d-2(a) (Amendment No. 1)* TRAILER BRIDGE, INC. ------------------------------------------------------------------------------- (Name of Issuer) Common Stock, $0.01 par value ------------------------------------------------------------------------------- (Title of Class of Securities) 892782103 ------------------------------------------------------------------------ (CUSIP Number) William G. Gotimer, Jr., General Counsel Trailer Bridge, Inc. 10405 New Berlin Road East Jacksonville, Florida 32226 (904) 751-7100 ------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) June 7, 2005 -------------------------------------------------------------------- (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box [ ]. Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7(b) for other parties to whom copies are to be sent. * The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). Persons who respond to the collection of information contained in this form are not required to respond unless the form displays a currently valid OMB control number. CUSIP No. 892782103 ================================================================================ 1 NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) F. Duffield Meyercord - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [ ] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS* N/A - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION United States - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER NUMBER OF 944,000 SHARES --------------------------------------------------- BENEFICIALLY 8 SHARED VOTING POWER OWNED BY 0 --------------------------------------------------- EACH 9 SOLE DISPOSITIVE POWER REPORTING 944,000 PERSON --------------------------------------------------- WITH 10 SHARED DISPOSITIVE POWER 0 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 944,000 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 8.03% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* IN - -------------------------------------------------------------------------------- *SEE INSTRUCTIONS BEFORE FILLING OUT! INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION. ================================================================================ 2 CUSIP No. 892782103 Item 1. Security and Issuer - ---------------------------- This Amendment No. 1 to Schedule 13D relates to the Common Stock (the "Common Stock") of the following corporation (the "Issuer'): Trailer Bridge, Inc. 10405 New Berlin Road East Jacksonville, FL 32226 Item 2. Identity and Background - -------------------------------- This Amendment No. 1 to Schedule 13D is filed on behalf of F. Duffield Meyercord, whose address is 1163 Shrewsberry Avenue, Shrewsbury, New Jersey 07702-4321. Mr. Meyercord is a Director of Trailer Bridge, Inc., located at 10405 New Berlin Road East, Jacksonville, Florida 32226. During the last five years, Mr. Meyercord has not been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. Mr. Meyercord is a citizen of the United States. Item 3. Source and Amount of Funds or Other Consideration - ---------------------------------------------------------- Not applicable. Item 4. Purpose of Transaction - ------------------------------- Mr. Meyercord acquired beneficial ownership of shares of Common Stock when Mr. Meyercord became qualified under local law to perform his duties as an executor of the estate of Malcom P. McLean, the founder and principal stockholder of the Issuer. Mr. Meyercord has sole voting and investment power over the shares owned by the estate. Since becoming executor, the estate has made distributions of Common Stock to beneficiaries of the estate pursuant to the will or a related testamentary trust, including distributions on June 7, 2005 of an aggregate of 4,316,768 shares. Following such distributions, the estate owns 942,000 shares. The remaining 2,000 shares of the Common Stock beneficially owned by Mr. Meyercord were acquired by Mr. Meyercord for, and are being held for, investment purposes. Mr. Meyercord may, at some future date, decide to make additional investments in shares of the Issuer's Common Stock for the same purpose. Except as set forth above and except as described below, Mr. Meyercord has no present plans or proposals which relate to or would result in: (a) The acquisition by any person of additional Common Stock of the Issuer, or the disposition of Common Stock of the Issuer; (b) An extraordinary corporate transaction, such as a merger, reorganization, or liquidation, involving the Issuer or any of its subsidiaries; (c) A sale or transfer of a material amount of assets of the Issuer or any of its subsidiaries; (d) Any change in the present board of directors or management of the Issuer, including any plans or proposals to change the number or term of directors or to fill any existing vacancies on the board; (e) Any material change in the present capitalization or dividend policy of the Issuer; (f) Any other material change in the Issuer's business or corporate structure; (g) Any changes in the Issuer's charter, bylaws, or instruments corresponding thereto or other actions which may impede the acquisition of control of the Company by any person; 3 CUSIP No. 892782103 (h) Causing a class of Common Stock of the Issuer to be delisted from a national securities exchange or to cease to be authorized to be quoted on an inter-dealer quotation system of a registered national securities association; (i) A class of equity Common Stock of the Issuer becoming eligible for termination of registration pursuant to Section 12(g)(4) of the Securities Exchange Act of 1934; or (j) Any action similar to any of those enumerated above. Item 5. Interest in Common Stock of the Issuer - ----------------------------------------------- (a) and (b). Mr. Meyercord beneficially owns an aggregate 944,000 shares of the Common Stock, constituting approximately 8.03% of the 11,753,691 shares outstanding as of March 31, 2005. Such shares of Common Stock are as follows: (i) 2,000 shares (constituting less than 1% of the total number of shares outstanding) are owned beneficially by Mr. Meyercord. Mr. Meyercord has sole dispositive and voting power over such shares. (ii) 942,000 shares (constituting approximately 8.03% of the total number of shares outstanding) are held by the estate of Malcolm P. McLean and may be deemed beneficially owned by Mr. Meyercord, who is an executor of the estate with sole voting and investment power with respect to such shares. (c) No transactions in the Common Stock were effected by Mr. Meyercord in the last 60 days except for three bequests totaling 4,316,768 shares to beneficiaries of the estate made on June 7, 2005 pursuant to the will of Mr. McLean. (d) Any dividends on the 942,000 shares of the Common Stock (constituting approximately 8.03% of the total number of shares outstanding) owned by the McLean estate or testamentary trust and the proceeds of the sale thereof will be paid to the McLean estate or testamentary trust. No other persons have the right to receive or the power to direct the receipt of dividends on the shares of the Common Stock. However, all 942,000 shares are subject to an option granted by Mr. McLean in May 1997 to Mr. John D. McCown, the Chairman and Chief Executive Officer of the Issuer, which expires in May 2007. The option exercise price is $0.95 per share. (e) Not applicable Item 6. Contracts, Arrangements, Understandings or Relationships With ------------------------------------------------------------- Respect to Common Stock of the Issuer ------------------------------------- There are no contracts, arrangements, understandings or relationships (legal or otherwise) among Mr. Meyercord and any other persons with respect to any Common Stock of the Issuer, including but not limited to transfer or voting of any Common Stock, finder's fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profits or loss, or the giving or withholding of proxies, other than the option granted by Mr. McLean to Mr. McCown describe above, to which the estate succeeded by operation of law upon Mr. McLean's death. Item 7. Material to Be Filed as Exhibits - ----------------------------------------- Exhibit 99.1 Option Agreement dated May 21, 1997 by and between Malcom P. McLean and John D. McCown. Exhibit 99.2 Escrow Agreement dated July 23, 2004 between F. Duffield Meyercord and John D. McCown. 4 CUSIP No. 892782103 SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. June 21, 2005 /s/ F. Duffield Meyercord - ---------------------------------- F. Duffield Meyercord 5 EX-99 2 dkm636a.txt EXHIBIT 99.1 - OPTION AGREEMENT Exhibit 99.1 OPTION AGREEMENT ---------------- AGREEMENT made this 21st day of May, 1997, by and between MALCOM P. McLEAN ("Grantor") and JOHN D. McCOWN ("Grantee"): WHEREAS, the Grantor owns 340 of the 425 issued and outstanding shares (the "Shares") of Common Stock, par value $.01 per share (the "Common Stock"), of TRAILER BRIDGE, INC., a Delaware corporation (the "Corporation"); WHEREAS, the Grantee has provided valuable assistance to the Grantor on business and personal matters since 1980; and WHEREAS, in appreciation of the dedication, valuable assistance and advice provided by the Grantee, the Grantor considers it to be appropriate for the Grantee to have the rights set forth herein with respect to some of the Shares; NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: 1. Option. The Grantor hereby grants to the Grantee an option (the "Option") to purchase from the Grantor from time to time, up to 60 Shares (the "Option Shares"), on or before 5 P.M. New York City time on May 20, 2007 (the "Expiration") for $14,855.50 per Share or an aggregate purchase price of $891,330 for all 60 Shares. 2. Exercise of Option. Grantee shall have the right to exercise the Option at any time by delivering to the Grantor (with a copy to the Corporation) not less than ten nor more than thirty days prior written notice of exercise stating the number of Option Shares to be purchased, the purchase price per Option Share, the aggregate purchase price for all Shares as to which the Option is being exercised and the date of exercise of the Option. Such notice shall constitute a binding agreement of the Grantee to purchase such Shares on such date. If the Option is exercised in part, the Option shall not be exercised on more than three occasions. The Option shall be exercised by tender by the Grantee of the purchase price of the Option Shares as to which the Option is being exercised by certified or bank check payable to the Grantor against delivery of the stock certificates for such Option Shares duly endorsed by the Grantor or with assignments attached thereto duly endorsed by Grantor with signatures guaranteed by a bank or a New York Stock Exchange member firm. In the event the number of Option Shares as to which the Option is exercised is less than the number of shares represented by the certificates tendered by the Grantor, the Grantee shall arrange for the Corporation promptly to return to the Grantor certificates in the name of the Grantor for the excess shares. The Grantee shall, as a condition of exercising the Option, make appropriate arrangements with the Corporation for the payment of all federal, state or local withholding taxes, if any. applicable as a result of the exercise of the Option. 3. Further Agreements. Grantor agrees that prior to Expiration he will retain good and marketable title to the Option Shares (and any other securities issued in respect thereof) free and clear of all liens and encumbrances. Other than in the immediately preceding sentence, Grantor makes no representation, warranty or covenant with respect to the Corporation or the Option Shares and shall be deemed to make no representation, warranty or covenant at the time of exercise of the Option. Grantee acknowledges that the Option Shares have not, and at the time of exercise of the Option will not have been registered with the Commission under the Act or with any state securities commission, and that neither the Grantor nor the Corporation is granting any right to such registration. The Option Shares will be "restricted securities" as defined in Rule 144 under the Act. Grantee covenants that the Option Shares will be acquired by the Grantee for his own account for investment without a view the resale or distribution thereof and that Grantee shall not sell such shares except in compliance with the Act and applicable state securities laws. The Grantee consents to the placement by the Corporation of a legend on the certificates representing the Option Shares to such effect and to the placement of stop transfer instructions by the Corporation with the transfer agent for the shares. Grantee acknowledges that he may be required to hold the Option Shares for an indefinite period and to take the investment risk with respect thereto. Grantee acknowledges that he is an "accredited investor" as such term is defined in Rule 144, that he has full knowledge of business and affairs of the Corporation and that he bas had the opportunity to ask questions of the Grantor and has received complete responses to all inquires concerning the Corporation and the Option Shares. Grantee acknowledges that at the time of exercise of the Option he will be relying entirely upon his own investigation of the Corporation and not upon any information obtained from the Grantor. The Grantee shall furnish a copy of this Agreement to the Corporation within five days of the date of execution hereof. Grantee acknowledges that he shall not have any of the rights of a holder of Option Shares for any purpose unless and until the Option is exercised. 4. Certain Adjustments. If the Option Shares are increased or decreased in number or changed into or exchanged for a different number or kind of securities of the Corporation or any other entity by reason of a recapitalization, reclassification, merger, consolidation, sale of assets, stock split, combination of shares, stock dividend, liquidation or dissolution of the Corporation or other event, the number and kind of securities which respect to which the Option may be exercised, and the purchase price thereof will be adjusted by the Grantor so that the Grantee may receive, for an aggregate purchase price equal to the aggregate purchase price of the Option set forth herein, the type and amount of securities that the Grantor receives in respect of the Option Shares. In no event shall the Grantee be entitled to any cash dividends or distributions with respect to Option Shares for which the record date is before the date the Grantee has exercised the Option. 5. Notices. Any notice or other communication required or permitted hereunder shall be in writing, and shall be deemed to have been given when received by United States mail, postage prepaid, overnight delivery service or by delivery to the last address of the person or entity to which such notice is given which is known to the person or entity giving such notice. Currently, such address is 500 Park Avenue, 5th Floor, New York, New York 10022 for the Grantor, the Grantee and the Corporation. Each of the foregoing shall be entitled to specify a different address by giving notice as aforesaid to the other. 2 6. Miscellaneous. This Agreement constitutes the entire agreement among the parties hereto pertaining the subject matter hereof and supersedes all prior agreements, understandings and negotiations of the parties with respect thereto. No amendment, supplement, modification, or waiver of this Agreement shall be binding unless executed in writing by the party to be bound thereby. All of the terms and conditions of this Agreement shall be binding. upon and shall inure only to the benefit of the parties hereto and their respective. heirs and personal representatives. The Grantee may not assign or transfer this Agreement or any rights hereunder without the consent of the Grantor except by will or the laws of descent and distribution. During the lifetime of the Grantee the Option may be exercised only by the Grantee or, in the event of his disability, by his duly appointed guardian or conservator. The Grantee's rights hereunder shall not be subject to commutation, encumbrance, or the claims of the Grantee's creditors, and any attempt to do any of the foregoing shall be void. This Agreement shall be governed by the laws of the State of New York. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed on the day and year first above mentioned. GRANTOR: GRANTEE: /s/ Malcom P. McLean /s/ John D. McCown - ------------------------------- ----------------------------------- Malcom P. McLean John D. McCown 3 STATE OF NEW YORK ) ) ss: COUNTY OF NEW YORK ) On this 21at day of May, 1997, before me personally appeared MALCOM P. McLEAN, to me known and known to me to be the person described in and who executed the foregoing instrument, and he duly acknowledged to me that be executed the same. /s/ Mary K. McMullen ---------------------------------------- Notary Public Mary E. McMullen Notary Public, State of New York No. 01MC4835071 Qualified in Richmond County Certificate Filed in New York County Commission Expires: June 30, 1999 STATE OF NEW YORK ) ) ss: COUNTY OF NEW YORK ) On this 21st day of May, 1997, before me personally appeared JOHN D. McCOWN, to me known and known to me to be the person described in and who executed the foregoing instrument, and he duly acknowledged to me that be executed the same. /s/ May E. McMullen ---------------------------------------- Notary Public Mary E. McMullen Notary Public, State of New York No. 01MC4835071 Qualified in Richmond County Certificate Filed in New York County Commission Expires: June 30, 1999 4 EX-99 3 dkm636b.txt EXHIBIT 99.2 - ESCROW AGREEMENT Exhibit 99.2 EXECUTION COPY ESCROW AGREEMENT This ESCROW AGREEMENT, dated as of July 23, 2004 (this "Agreement"), is among the Estate of Malcom P. McLean (the "Estate"), John D. McCown ("McCown") and F. Duffield Meyercord, as escrow agent (the "Escrow Agent"). WHEREAS, pursuant to an Option Agreement dated May 21, 1997 (the "Option Agreement"), McCown has the right to purchase, in whole or in part ("Purchase Right"), 942,000 common shares of Trailer Bridge, Inc. (the "Escrow Shares") held in the Estate, for $0.94621 + per share; WHEREAS, McCown may exercise his Purchase Right on or before 5 p.m. New York City time on May 20, 2007 (the "Expiration Date"); and WHEREAS, under that certain Settlement Agreement and Release, dated as of July 23, 2004, F. Duffield Meyercord, McCown, Malcom P. McLean, Jr., Nancy McLean Parker, Patricia McLean Mendenhall, and Artis E. James, Jr., agreed that the parties hereto enter into this Agreement. NOW, THEREFORE, the parties hereto do hereby agree as follows: 1. Appointment of the Escrow Agent; Deposit of Escrow Shares. The Estate and McCown hereby constitute and appoint the Escrow Agent as, and the Escrow Agent hereby agrees to assume and perform the duties of, the escrow agent under and pursuant to this Agreement. On the date hereof, the Estate shall deliver to the Escrow Agent certificates representing the Escrow Shares, together with all transfer documents required to issue the Escrow Shares in the name of McCown or his designee (the "Transfer Documents") upon the exercise of McCown's Purchase Right. 2. Release of Escrow Shares; Termination. (a) If the Escrow Agent receives from McCown at any time or from time to time (but on no more than three occasions) (i) a written notice of exercise of the Purchase Right in accordance with the Option Agreement ("Exercise Notice") specifying (A) the date of exercise of the Purchase Right which shall be not less than ten nor more than thirty days after the date of the Exercise Notice and on or before the Expiration Date, (B) the number of Escrow Shares to be purchased (the "Purchased Shares"), (C) the purchase price per Purchased Share and (D) the aggregate purchase price for all Purchased Shares and (ii) on the exercise date specified in the Exercise Notice, a certified or bank check in the amount of the aggregate exercise price of the Purchased Shares payable to the Estate or its designee, the Escrow Agent shall (X) at the time and place of delivery of such check, deliver or cause to be delivered to McCown the certificates representing the Purchased Shares together with the Transfer Documents and take such further action as may be required to cause the delivery of the Purchased Shares (issued in the name of McCown or his designee) to McCown or his designee and (Y) deliver the certified or bank check in respect of such Purchased Shares to the Estate. This Agreement (other than paragraphs 3 and 4) shall automatically terminate when the Escrow Agent has delivered or caused the delivery of all of the Escrow Shares in accordance with this paragraph 2(a) pursuant to the exercise by McCown of his Purchase Right. (b) The Escrow Agent shall promptly as practicable after the Expiration Date or causing the delivery of the Purchase Shares to McCown or his designee pursuant to a third Exercise Notice, deliver all remaining Escrow Shares and any Transfer Documents to the Estate or its designee and this Agreement (other than paragraphs 3 and 4) shall automatically terminate. 3. Duties and Obligations of the Escrow Agent. The Escrow Agent shall not charge any fees for its services hereunder as Escrow Agent. The duties and obligations of the Escrow Agent shall be limited to and determined solely by the provisions of this Agreement, and the Escrow Agent is not charged with knowledge of or any duties or responsibilities in respect of any other agreement or document. In furtherance and not in limitation of the foregoing: (i) the Escrow Agent shall be fully protected in relying in good faith upon any written certification, notice, direction, request, waiver, consent, receipt or other document that the Escrow Agent reasonably believes to be genuine and duly authorized, executed and delivered; and (ii) the Escrow Agent shall not be liable to any party for any act or omission, except for its willful misconduct or gross negligence, and each of the Estate and McCown jointly and severally agree to indemnify the Escrow Agent and hold the Escrow Agent harmless from any claims, damages, losses or expenses arising in connection herewith, except for claims, losses, damages or expenses arising from the Escrow Agent's willful misconduct or gross negligence. 4. Cooperation. The Estate and McCown shall provide to the Escrow Agent with all instruments and documents within their respective powers to provide that are reasonably requested by the Escrow Agent in connection with the performance of its duties and responsibilities hereunder. 5. Resignation and Removal of the Escrow Agent. (a) The Escrow Agent may resign by giving at least 15 calendar days prior written notice thereof to the Estate and McCown. In addition, the Escrow Agent may be removed and replaced on a date designated in a written instrument signed by the Estate and McCown and delivered to the Escrow Agent. Notwithstanding the foregoing, no such resignation or removal shall be effective until a successor escrow agent has acknowledged its appointment as such as provided in paragraph 5(c) below. In either event, upon the effective date of such resignation or removal, the Escrow Agent shall deliver all of the remaining Escrow Shares and the Transfer Documents to such successor escrow agent, together with such records maintained by the Escrow Agent in connection with its duties hereunder. 2 (b) If a successor escrow agent shall not have acknowledged its appointment as such as provided in paragraph 5(c) below, in the case of a resignation, prior to the expiration of 15 calendar days following the date of a notice of resignation or, in the case of a removal, on the date designated for the Escrow Agent's removal, as the case may be, the Escrow Agent may select a successor escrow agent and any such resulting appointment shall be binding upon all of the parties to this Agreement (c) Upon written acknowledgment by a successor escrow agent appointed in accordance with the foregoing provisions of this paragraph 5 of its agreement to serve as escrow agent hereunder and the receipt of the remaining Escrow Shares and the Transfer Documents, the Escrow Agent shall be fully released and relieved of all duties, responsibilities and obligations under this Agreement, subject to any liability it may have pursuant to paragraph 3(iii), and such successor escrow agent shall for all purposes hereof be the Escrow Agent. 6. Notices. All notices, requests and other communications hereunder must be in writing and will be deemed to have been duly given if delivered personally or by facsimile transmission or mailed (first class postage prepaid) to the parties at the following addresses or facsimile numbers: If to the Estate, to: 336 Main Street Bedminster, New Jersey 07921 Facsimile No.: (908) 781-6210 Attn: F. Duffield Meyercord If to McCown, to: John D. McCown 157 East 5th Street, 19th Floor New York, New York 10022 Facsimile No.: (212) 486-3057 If to the Escrow Agent, to: F. Duffield Meyercord 336 Main Street Bedminster, New Jersey 07921 Facsimile No.: (908) 781-6210 Any notice given in accordance with the provisions of this paragraph 6 shall be deemed to have been given when delivered if delivered personally or by overnight courier, or when a manual confirmation is received if sent by facsimile transmission, or upon receipt if mailed. Any party from time to time may change its address, facsimile number or other information for the purpose of notices to that party by giving notice specifying such change to the other parties hereto. 3 7. Remedies. The Escrow Agent acknowledges that McCown's remedy at law for any breach by the Escrow Agent of paragraph 2(a) will be inadequate. Therefore, McCown shall be entitled to injunctive or other equitable relief requiring specific performance, in addition to any other remedies that may be available to McCown under this Escrow Agreement or applicable law. 8. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York applicable to a contract executed and performed in such State, without giving effect to the conflicts of laws principles thereof. 9. Miscellaneous. This Agreement is binding upon and will inure to the benefit of the parties hereto and their respective successors and permitted assigns. This Agreement may be executed in any number of counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. This Agreement may be amended or modified, and any of the terms hereof may be waived, only by a written instrument duly executed by or on behalf of the Estate and McCown and, with respect to any amendment that could adversely affect the Escrow Agent, the Escrow Agent. [Signature page follows] 4 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first above written. The Estate: THE ESTATE OF MALCOM P. MCLEAN By: /s/ F. Duffield Meyercord ------------------------------------- Name: F. Duffield Meyercord Title: Co-Executor By: /s/ John D. McCown ------------------------------------- Name: John D. McCown Title: Co-Executor McCown: /s/ John D. McCown ---------------------------------------- John D. McCown The Escrow Agent: /s/ F. Duffield Meyercord ---------------------------------------- F. Duffield Meyercord 5 -----END PRIVACY-ENHANCED MESSAGE-----