Exhibit 10.2
ESCROW AGREEMENT
This ESCROW AGREEMENT is made as of this 15th day of October, 2002 (this
"Agreement") by and among Golfsmith International Holdings, Inc., a Delaware
corporation ("Parent"), and ▇▇▇▇ ▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇, in their capacity as the
stockholder representatives (and each successor representative designated
pursuant to the Merger Agreement, the "Stockholder Representatives") of the
equity and other rights holders of Golfsmith International, Inc., a Delaware
corporation (the "Company"), identified on Schedule I hereto (the
"Stockholders"), and JPMorgan Chase Bank, a New York State bank with an office
in Houston, Texas , as escrow agent (the "Escrow Agent"). Parent, the
Stockholder Representatives and the Escrow Agent are each referred to herein as
a "Party" and collectively as the "Parties." Capitalized terms used herein but
not otherwise defined shall have the respective meanings ascribed to such terms
in the Merger Agreement (as defined below). Escrow Agent has not received a copy
and is not responsible for the Merger Agreement.
W I T N E S S E T H:
WHEREAS, Parent, BGA Acquisition Corporation, a Delaware corporation
("Sub") and the Company have entered into an Agreement and Plan of Merger (the
"Merger Agreement"), dated as of September 23, 2002, pursuant to which Sub has
agreed to merge with and into the Company in accordance with the General
Corporation Law of the State of Delaware;
WHEREAS, pursuant to and subject to the limitations set forth in Article
10 of the Merger Agreement, the Stockholders have agreed to indemnify Parent for
certain liabilities;
WHEREAS, pursuant to Section 2.12(f) of the Merger Agreement, the
Stockholders may be obligated to Parent with respect to certain post-closing
payments relating to Closing Working Capital adjustments upon determination of
the Final Working Capital Statement;
WHEREAS, the Merger Agreement provides for Parent to withhold from the
Merger Consideration and deliver to the Escrow Agent $6,250,000 in the aggregate
(the "Escrow Fund" and, together with any income, interest or other amounts
received thereon in accordance with the terms of this Agreement, the "Escrow
Amount") (each Stockholder's portion of the Escrow Fund is identified on
Schedule I hereto); and
WHEREAS, Parent, the Stockholder Representatives and the Stockholders
desire that the Escrow Agent act as escrow agent in accordance with the terms
hereof, and the Escrow Agent is willing to act in such capacity.
NOW THEREFORE, in consideration of the premises and covenants and
agreements stated herein the Parties intending to be legally bound, hereby agree
as follows:
1. Escrow Agent Appointment. Parent and the Stockholder Representatives
hereby appoint and designate the Escrow Agent as escrow agent to receive the
Escrow Fund and to hold and distribute the Escrow Amount in accordance with the
terms of this Agreement. The Escrow Agent hereby accepts its appointment as the
escrow agent and agrees to hold, administer, invest
and disburse the Escrow Amount in accordance with the terms of this Agreement.
Upon receipt of the Escrow Funds, the Escrow Agent will acknowledge in writing
to the Parties.
2. Establishment of Escrow. Concurrently with the execution of this
Agreement, the Escrow Fund will be delivered by Parent or its designees to the
Escrow Agent by wire transfer of immediately available funds. The Escrow Agent
hereby agrees, upon receipt of the Escrow Fund, to act as escrow agent and to
hold, safeguard and disburse the Escrow Amount pursuant to the terms and
conditions hereof. The Escrow Amount will be held for the benefit of the
Stockholders.
3. Stockholder Representatives. Escrow Agent shall be able to rely
conclusively, without inquiry or liability, on the instructions, agreements and
decisions of the Stockholder Representatives, acting individually or jointly,
with respect to all actions or matters permitted to be taken by the Stockholder
Representatives hereunder, and no party shall have any cause of action against
Escrow Agent for any action taken by Escrow Agent in reliance upon the
agreements, instructions or decisions of the Stockholder Representatives acting
individually or jointly. All actions, agreements, decisions and instructions of
the Stockholder Representatives shall be conclusive and binding upon each
Stockholder.
4. Investment of Funds; Tax Treatment. Investment. The Escrow Agent shall
invest the Escrow Amount in the JPMorgan Prime Money Market Fund #830, unless
otherwise instructed in writing from time to time by a joint written instruction
of Parent and the Stockholder Representatives. Any net investment income
realized on the Escrow Amount shall be distributed to an account designated by
the Stockholder Representatives, on behalf of the Stockholders, on a quarterly
basis beginning December 31, 2002. All investment income not previously
distributed to the Stockholder Representatives shall be distributed to the
Stockholder Representatives, on behalf of the Stockholders, upon the termination
of this Agreement pursuant to Section 6 hereof. Such written instructions, if
any, referred to in the foregoing sentence shall specify the type and identity
of the investments to be purchased and/or sold and shall also include the name
of the broker-dealer, if any, which Parent and Stockholder Representative direct
the Escrow Agent to use in respect of such investment, any particular settlement
procedures required, if any (which settlement procedures shall be consistent
with industry standards and practices), and such other information as Escrow
Agent may require. Escrow Agent shall not be liable for failure to invest or
reinvest funds absent sufficient written direction. Unless Escrow Agent is
otherwise directed in such written instructions, Escrow Agent may use a
broker-dealer of its own selection, including a broker-dealer owned by or
affiliated with Escrow Agent or any of its affiliates. The Escrow Agent or any
of its affiliates may receive compensation with respect to any investment
directed hereunder. It is expressly agreed and understood by the parties hereto
that Escrow Agent shall not in any way whatsoever be liable for losses on any
investments, including, but not limited to, losses from market risks due to
premature liquidation or resulting from other actions taken pursuant to this
Escrow Agreement. Parent and Stockholders shall provide Escrow Agent with its
taxpayer identification number documented by an appropriate Form W 8 or Form W 9
upon execution of this Escrow Agreement. Failure so to provide such forms may
prevent or delay disbursements from the Escrow Amount and may also result in the
assessment of a penalty and Escrow Agent's being required to withhold tax on any
interest or other income earned on the Escrow Amount. Any payments of income
shall be subject to applicable withholding regulations then in force in the
United States or any other jurisdiction, as applicable. For tax purposes, the
Escrow Amount shall
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be deemed to be the property of the Stockholders and all investment income
earned thereon shall be the income of the Stockholders. The Stockholders and
Parent shall file tax returns and the Escrow Agent shall file Form 1099s
consistent with such treatment. The Escrow Agent shall deliver to Parent and the
Stockholder Representatives promptly following the conclusion of each fiscal
quarter (i.e. March 31, June 30, September 30 and December 31), and in any event
no later than the tenth calendar day thereafter, a written statement of account
with respect to the investment of the Escrow Amount.
5. Disbursements of Escrow Fund.
(a) Purpose. The Escrow Fund shall be held as a reserve against
indemnification claims against the Stockholders pursuant to Section 10.2
of the Merger Agreement and to secure the post-Closing payment obligations
of the Stockholders pursuant to Section 2.12(f) of the Merger Agreement.
(b) Indemnity Claims. The Escrow Fund shall secure the Stockholders'
obligations with respect to a claim by Parent or the Surviving Corporation
for indemnification (an "Indemnity Claim") pursuant to Section 10.2 of the
Merger Agreement. The Escrow Agent shall disburse to Parent an amount
equal to Parent's or the Surviving Corporation's Indemnity Claim promptly
following receipt of (i) the written consent or agreement of Parent and
the Stockholder Representatives to the payment of such Indemnity Claim,
specifying the amount thereof, or (ii) a final decision, order, judgment
or decree of an arbitrator or court having jurisdiction which is not
subject to appeal and as to which notice of appeal has not been timely
filed or served (a "Final Decision") with respect to such Indemnity Claim,
specifying the amount recoverable with respect thereto. All disbursements
to Parent shall be made by the Escrow Agent by wire transfer of
immediately available funds to an account or accounts designated in
writing by Parent to the Escrow Agent.
(c) Cash Enterprise Value Adjustments. Within five (5) Business Days
of the date on which the Final Working Capital Schedule is determined in
accordance with the terms of Section 2.12 of the Merger Agreement, Parent
and the Stockholder Representatives shall jointly execute written
instructions to the Escrow Agent to transfer immediately to Parent from
the Escrow Fund the amount, if any (but in no event greater than
$1,250,000), owed to Parent in accordance with the terms of Section
2.12(f) of the Merger Agreement. All disbursements to Parent shall be made
by the Escrow Agent by wire transfer of immediately available funds to an
account or accounts designated in writing by Parent to the Escrow Agent.
(d) Final Disbursement. On April 15, 2004, the Escrow Agent shall
disburse to the Stockholder Representatives, by wire transfer of
immediately available funds to an account or accounts designated in
writing by the Stockholder Representatives to the Escrow Agent, the
remaining balance of the Escrow Fund, less the aggregate dollar amount of
any unresolved Indemnity Claims of which the Escrow Agent has received
written notice from Parent. Any amounts not disbursed on April 15, 2004
shall be disbursed by the Escrow Agent as soon as possible after any
unresolved Indemnification Claims are finally resolved in accordance with
this Section 5.
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6. Termination of Escrow. The escrow provided for hereunder shall
terminate upon the earlier to occur of the following:
(a) Upon the mutual written consent of Parent and the Stockholder
Representatives (written notice of which shall be given to the Escrow
Agent); or
(b) Upon the disbursement of all of the Escrow Amount pursuant
to Section 5 of this Agreement.
7. Duties of the Escrow Agent. In performing its duties under this
Agreement or upon the claimed failure to perform its duties hereunder, the
Escrow Agent shall have no liability except for the Escrow Agent's willful
misconduct or gross negligence. The Escrow Agent's sole responsibility shall be
for the safekeeping and disbursement of the Escrow Amount in accordance with the
terms of this Agreement. The Escrow Agent shall have no implied duties or
obligations and shall not be charged with knowledge or notice of any fact or
circumstance not specifically set forth herein or in any notice given to it
under this Agreement in accordance with Section 12 hereof. The Escrow Agent
shall be entitled to rely upon and shall be protected in acting upon any
request, instructions, statement or other instrument, not only as to its due
execution, validity and effectiveness, but also as to the truth and accuracy of
any information contained therein, which the Escrow Agent shall in good faith
believe to be genuine, to have been signed or presented by the person or Parties
purporting to sign the same and to conform to the provisions of this Agreement.
In no event shall the Escrow Agent be liable for incidental, indirect, special,
consequential or punitive damages. The Escrow Agent shall not be obligated to
take any legal action or to commence any proceeding in connection with the
Escrow Amount, any account in which the Escrow Amount is deposited or this
Agreement, or to appear in, prosecute or defend any such legal action or
proceedings. The Escrow Agent may consult legal counsel selected by it in the
event of any dispute or question as to the construction of any of the provisions
hereof or of any other agreement or of its duties hereunder, and shall incur no
liability and shall be fully protected from any liability whatsoever in acting
in accordance with the opinion or instruction of such counsel. The Escrow Agent
shall have no obligations or responsibilities in connection with the Merger
Agreement, or any other agreement between the Parties, other than this
Agreement.
8. Indemnification. From and at all times after the date of this
Agreement, Parent and the Stockholder Representatives, jointly and severally,
shall, to the fullest extent permitted by law and to the extent provided herein,
indemnify and hold harmless the Escrow Agent and each director, officer,
employee, attorney, agent and affiliate of the Escrow Agent (collectively, the
"Indemnified Parties") against any and all actions, claims (whether or not
valid), losses, damages, liabilities, costs, penalties, fines, judgments and
expenses of any kind or nature whatsoever (including without limitation,
reasonable attorneys' fees, costs and expenses) incurred by or asserted against
any of the Indemnified Parties from and after the date hereof, whether direct,
indirect or consequential, as a result of or arising from or in any way relating
to any claim, demand, suit, action or proceeding (including any inquiry or
investigation) by any Person, whether threatened or initiated, asserting a claim
for any legal or equitable remedy against any person under any statute or
regulation, including without limitation, any federal or state securities laws,
or under any common law or equitable cause or otherwise, arising from or in
connection with the negotiation, preparation, execution, performance or failure
of performance
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of this Agreement or any transactions contemplated herein, whether or not any
such Indemnified Party is a party to any such action, proceeding, suit or the
target of any such inquiry or investigation; provided, however, that no
Indemnified Party shall have the right to be indemnified hereunder for any
liability finally determined by a court of competent jurisdiction, subject to no
further appeal, to have resulted from the gross negligence or willful misconduct
of such Indemnified Party. If any such action or claim shall be brought or
asserted against any Indemnified Party, such Indemnified Party shall promptly
notify Parent and the Stockholder Representatives in writing, and such
Indemnified Party shall assume the defense thereof, including the employment of
counsel; provided, however, that such counsel shall be reasonably acceptable to
Parent and the Stockholder Representatives and Parent and the Stockholder
Representatives shall be responsible for the fees and expenses of such counsel
referred to in the foregoing sentence. All such fees and expenses payable by
Parent or the Stockholder Representatives pursuant to the foregoing sentence
shall be paid from time to time as incurred, both in advance of and after the
final disposition of such action or claim. All of the foregoing losses, damages,
costs and expenses of the Indemnified Parties shall be payable by Parent and the
Stockholder Representatives jointly and severally, upon demand by such
Indemnified Party. The obligations of Parent and the Stockholder Representatives
under this Section 8 shall survive any termination of this Agreement and the
resignation or removal of the Escrow Agent.
The Parties agree that neither the payment by Parent or the Stockholder
Representatives of any claim by the Escrow Agent for indemnification hereunder
nor the disbursement of any amounts to the Escrow Agent from the Escrow Amount
in respect of a claim by the Escrow Agent for indemnification shall impair,
limit, modify or affect, as between Parent and the Stockholder Representatives,
the respective rights and obligations of the Stockholder Representatives and
Parent under this Agreement. Parent and the Stockholder Representatives agree
among themselves that any obligation for indemnification under this Section 8
shall be borne by the Stockholder Representatives and Parent in proportion to
the Stockholders Representatives' and Parent's respective responsibility, if
any, of such loss, damage, liability, cost or expense for which the Escrow Agent
is entitled to indemnification, the causation to be determined by mutual
agreement, arbitration (if both Parent and the Stockholder Representatives agree
in writing to submit the dispute to arbitration) or litigation; provided,
however, that if no such Party is determined to be responsible for such loss,
damage, liability, cost or expense, any obligation for indemnification under
this Section 8 shall be borne equally between Parent, on the one hand, and the
Stockholder Representatives, on the other.
9. Disputes. If, at any time, there shall exist any dispute between Parent
or the Stockholder Representatives with respect to the holding or disposition of
any portion of the Escrow Amount or any other obligations of the Escrow Agent
hereunder, or if at any time the Escrow Agent is unable to determine, to the
Escrow Agent's sole satisfaction, the proper disposition of any portion of the
Escrow Amount or the Escrow Agent's proper actions with respect to its
obligations hereunder, or if Parent and the Stockholder Representatives have
not, within thirty (30) calendar days of the furnishing by the Escrow Agent of a
notice of resignation pursuant to Section 10 below, appointed a successor escrow
agent to act hereunder, then the Escrow Agent may, in its sole discretion, take
either or both of the following actions:
(a) suspend the performance of any of its obligations under this
Agreement until such dispute or uncertainty shall be resolved to the sole
satisfaction of the Escrow Agent
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or until a successor escrow agent shall have been appointed (as the case
may be) as evidenced by written instructions executed by Parent and the
Stockholder Representatives;
(b) petition (by means of an interpleader action or any other
appropriate method) any court of competent jurisdiction in Delaware, for
instructions with respect to such dispute or uncertainty, and pay into or
deposit with such court all disputed escrow amounts held by it pursuant to
this Agreement for holding and disposition in accordance with the
instructions of such court.
The Escrow Agent shall have no liability to Parent or the
Stockholder Representatives or any other person with respect to any such
suspension of performance or disbursement into court, specifically including any
liability that may arise, or be alleged to have arisen, out of or as a result of
any delay in the disbursement of funds held in the Escrow Amount or any delay in
or with respect to any other action required or requested of the Escrow Agent.
10. Resignation or Removal of Escrow Agent. The Escrow Agent may resign
from the performance of its duties hereunder at any time by giving thirty (30)
Business Days' prior written notice to Parent and the Stockholder
Representatives or may be removed, with or without cause, by Parent and the
Stockholder Representatives, acting jointly, at any time by the giving of thirty
(30) Business Days' prior written notice to the Escrow Agent. Such resignation
or removal shall take effect upon the appointment of a successor escrow agent as
provided herein. Upon any such notice of resignation or removal, Parent and the
Stockholder Representatives, acting jointly, shall appoint a successor escrow
agent hereunder, which shall be a commercial bank, trust company or other
financial institution with a combined capital and surplus in excess of
$500,000,000, unless otherwise agreed by Parent and the Stockholder
Representatives as evidenced by written instructions executed by Parent and the
Stockholder Representatives. Upon the acceptance in writing of any appointment
as the Escrow Agent hereunder by a successor escrow agent, such successor escrow
agent shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Escrow Agent, and the retiring Escrow
Agent shall be discharged from its duties and obligations under this Agreement,
but shall not be discharged from any liability for actions taken as the Escrow
Agent hereunder prior to such succession. After any retiring Escrow Agent's
resignation or removal, the provisions of this Agreement shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was the
Escrow Agent under this Agreement.
11. Fees. Parent shall compensate the Escrow Agent for its services
hereunder in accordance with Schedule II attached hereto and, in addition, shall
reimburse the Escrow Agent for all of its reasonable out-of-pocket expenses,
including attorneys' fees, travel expenses, telephone and facsimile transmission
costs, postage, copying charges and the like (collectively, the "Fees"). All of
the compensation and reimbursement obligations set forth in this Section 11
shall be paid upon demand by the Escrow Agent. The obligations of Parent under
this Section 11 shall survive any termination of this Agreement and the
resignation or removal of the Escrow Agent. In the event Parent for any reason
fail to pay any such fees and expenses as and when the same are due, such unpaid
fees and expenses shall be charged to and set-off and paid from the Escrow Fund
by Escrow Agent without any further notice.
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12. Notices. All notices, communications and deliveries under this
Agreement will be made in writing and shall be deemed given or made (i) on the
date delivered if delivered by facsimile or in person, (ii) on the third
Business Day after it is mailed by registered or certified mail (return receipt
required with postage and other fees prepaid), or (iii) on the day it is
delivered if it is sent by a national overnight carrier service as follows (or
to such other address as a Party may designate by notice to the other Parties):
To the Escrow Agent:
JPMorgan Chase Bank
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
To the Parent: c/o First Atlantic Capital, Ltd.
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇; ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: King & Spalding
1185 Avenue of the Americas
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
To the Stockholder
Representatives: ▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
and: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
with a copy to: ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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13. Schedules and Exhibits. The Schedules and Exhibits to this
Agreement are hereby incorporated into this Agreement and are hereby made a
part of this Agreement as if set out in full in this Agreement.
14. Assignment; Successors in Interest. Neither this Agreement nor any of
the rights, interests or obligations hereunder shall be assigned by any of the
Parties hereto, whether by operation of law or otherwise, without the prior
written consent of the other Parties to this Agreement; provided, Parent may
transfer its rights under this Agreement to a third party after the date hereof
if such third party purchases substantially all of the business of the Surviving
Corporation; provided, further, that Parent may be permitted to transfer its
rights under this Agreement to an affiliate of Parent; and, provided, further,
Parent may transfer or collaterally assign its rights under this Agreement to
its lenders. Any assignment in violation of the foregoing shall be null and
void.
15. Number; Gender. Whenever the context so requires, the singular number
will include the plural and the plural will include the singular, and the gender
of any pronoun will include the other genders.
16. Captions. The titles, captions and table of contents contained in this
Agreement are inserted in this Agreement only as a matter of convenience and for
reference and in no way define, limit, extend or describe the scope of this
Agreement or the intent of any provision of this Agreement. Unless otherwise
specified to the contrary, all references to Articles and Sections are
references to Articles and Sections of this Agreement and all references to
Schedules or Exhibits are references to Schedules and Exhibits, respectively, to
this Agreement.
17. Controlling Law; Amendment. This Agreement will be governed by and
construed and enforced in accordance with the internal laws of the State of
Delaware without reference to its choice of law rules. This Agreement may not be
amended, modified or supplemented except by written agreement of the Parties.
18. Severability. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions of this Agreement, and any such prohibition or
unenforceability in any jurisdiction will not invalidate or render unenforceable
such provision in any other jurisdiction. To the extent permitted by law, the
Parties waive any provision of law which renders any such provision prohibited
or unenforceable in any respect.
19. Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which will be deemed an original, and it will not be
necessary in making proof of this Agreement or the terms of this Agreement to
produce or account for more than one (1) of such counterparts. All signatures of
the parties to this Agreement may be transmitted by facsimile, and such
facsimile will, for all purposes, be deemed to be the original signature of such
party whose signature it reproduces, and will be binding upon such party.
20. Waiver. Any agreement on the part of a Party to any extension or
waiver of any provision of this Agreement will be valid only if set forth in an
instrument in writing signed on behalf of such Party. A waiver by a Party of the
performance of any covenant, agreement,
8
obligation, condition, representation or warranty will not be construed as a
waiver of any other covenant, agreement, obligation, condition, representation
or warranty. A waiver by any Party of the performance of any act will not
constitute a waiver of the performance of any other act or an identical act
required to be performed at a later time.
21. Integration. This Agreement shall supersede all negotiations,
agreements and understandings among the Parties with respect to the subject
matter of this Agreement.
22. Funds Transfer. In the event funds transfer instructions are given
(other than in writing at the time of execution of the Agreement), whether in
writing, by telefax, or otherwise, the Escrow Agent is authorized to seek
confirmation of such instructions by telephone call-back to the person or person
designated on Schedule III hereto, and the Escrow Agent may rely upon the
confirmations of anyone purporting to be the person or persons so designated. If
the Escrow Agent is unable to contact any of the authorized representatives
identified in Schedule II, the Escrow Agent is hereby authorized to seek
confirmation of such instructions by telephone call-back to any one or more of
your executive officers, ("Executive Officers"), which shall include the titles
of President and Chief Financial Officer, as the Escrow Agent may select. Such
"Executive Officer" shall deliver to the Escrow Agent a fully executed
Incumbency Certificate, and the Escrow Agent may rely upon the confirmation of
anyone purporting to be any such officer. The persons and telephone numbers for
call-backs may be changed only in writing actually received and acknowledged by
the Escrow Agent. The parties to this Escrow Agreement acknowledge that such
security procedure is commercially reasonable.
It is understood that the Escrow Agent and the beneficiary's bank in any
funds transfer may rely solely upon any account numbers or similar identifying
number provided by either of the other parties hereto to identify (i) the
beneficiary, (ii) the beneficiary's bank, or (iii) an intermediary bank. The
Escrow Agent may apply any of the escrowed funds for any payment order it
executes using any such identifying number, even where its use may result in a
person other than the beneficiary being paid, or the transfer of funds to a bank
other than the beneficiary's bank or an intermediary bank, designated.
* * * * *
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, the Parties have executed and delivered this Agreement
as of the date first written above.
JPMORGAN CHASE BANK
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title: Vice President and Trust Officer
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GOLFSMITH INTERNATIONAL HOLDINGS, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Vice President
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STOCKHOLDER REPRESENTATIVE
/s/ ▇▇▇▇ ▇▇▇▇
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▇▇▇▇ ▇▇▇▇
STOCKHOLDER REPRESENTATIVE
/s/ ▇▇▇▇▇ ▇▇▇▇
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SCHEDULE I
STOCKHOLDER PORTION OF ESCROW FUND TAX ID NO.
----------- ---------------------- ----------
▇▇▇▇ ▇. ▇▇▇▇ 32.38% ###-##-####
▇▇▇▇▇▇▇ ▇. ▇▇▇▇ 27.59% ###-##-####
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ 30.32% ###-##-####
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ 1.24% ###-##-####
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 0.68% ###-##-####
▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇▇ 0.18% ###-##-####
Franklin ▇▇▇▇▇▇▇▇ ▇▇▇▇ 0.01% ###-##-####
▇▇▇▇▇▇ ▇▇▇▇ as custodian for
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ 0.01% ###-##-####
▇▇▇▇▇▇ ▇. ▇▇▇▇ Trust 2.95% ▇▇-▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ Trust 2.14% ▇▇-▇▇▇▇▇▇▇
Franklin ▇▇▇▇▇▇▇▇ ▇▇▇▇ Trust 2.14% ▇▇-▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇ Trust 0.37% ▇▇-▇▇▇▇▇▇▇
TOTAL: $6,250,000.00
SCHEDULE II
[▇▇ ▇▇▇▇▇▇ LOGO]
SCHEDULE OF FEES
FOR
ESCROW AGENT SERVICES
NOTE: WE REQUIRE UNDER THE FOLLOWING FEE SCHEDULE THAT THE DEPOSIT PROCEEDS WILL
BE CONTINUALLY INVESTED IN JPMORGAN PRIME #830 MONEY MARKET FUND.
NEW ACCOUNT ACCEPTANCE FEE . . . . . . . . . . . . . . . . . . . $750
Payable upon Account Opening
MINIMUM ADMINISTRATIVE FEE . . . . . . . . . . . . . . . . . . . $3,500
Payable Upon Account Opening and in Advance
for each year in which we act as Escrow Agent
ACTIVITY FEES:
DISBURSEMENTS
Per Check $ 35
Per Wire U.S. $ 35
International $ 100
RECEIPTS
Per Check $ 10
Per Wire $ 10
PREPARATION OF 1099
Per 1099 $ 15
INVESTMENTS
Per directed buy/sell) $ 50
LEGAL EXPENSES: AT COST
There will be no legal expense for Chase if Chase's standard form escrow
agreement is employed without substantive amendments.
A New Account Acceptance Fee will be charged for the Bank's review of the Escrow
Agreement along with any related account documentation. A one (1) year Minimum
Administrative Fee will be assessed for any account which is funded. The account
will be invoiced in the month in which the account is opened and annually
thereafter. Payment of the invoice is due 30 days following receipt.
The Administrative Fee will cover a maximum of fifteen (15) annual
administrative hours for the Bank's standard Escrow services including account
setup, safekeeping of assets, investment of funds, collection of income and
other receipts, preparation of statements comprising account activity and asset
listing, and distribution of assets in accordance with the specific terms of the
Escrow Agreement.
EXTRAORDINARY SERVICES AND OUT-OF POCKET EXPENSES:
Any additional services beyond our standard services as specified above, such as
annual administrative activities in excess of fifteen (15) hours and all
reasonable out-of-pocket expenses including attorney's fees will be considered
extraordinary services for which related costs, transaction charges, and
additional fees will be billed at the Bank's standard rate.
MODIFICATION OF FEES:
Circumstances may arise necessitating a change in the foregoing fee schedule.
The Bank will attempt at all times, however, to maintain the fees at a level
which is fair and reasonable in relation to the responsibilities assumed and the
duties performed.
ASSUMPTIONS:
- The escrow deposit shall be continuously invested in JPMorgan Prime #830
Money Market Fund. The Minimum Administrative Fee would include A
SUPPLEMENTAL CHARGE OF 50 BASIS POINTS on the escrow deposit amount if
another investment option is chosen.
- The account will be invoiced in the month in which the account is opened and
annually thereafter.
- Payment of the invoice is due 30 days following receipt.
All fees quoted are subject to our review and acceptance, and that of our legal
counsel, of the documents governing the escrow. As a condition for acceptance of
an appointment, it is expected that all legal fees and out-of-pocket expenses
incurred by JPMorgan Chase Bank and our counsel in connection with our review of
the transaction will be paid by the client regardless of whether or not the
transaction closes.
SCHEDULE III
TELEPHONE NUMBER(S) FOR CALL-BACKS AND PERSON(S)
DESIGNATED TO CONFIRM FUNDS TRANSFER INSTRUCTIONS
If to Parent:
Name Telephone Number
1. ___________________________ _______________________________
2. ___________________________ _______________________________
If to Stockholder Representatives:
Name Telephone Number
1. ___________________________ _______________________________
2. ___________________________ _______________________________
Telephone call-backs shall be made to either Party A or Party B if joint
instructions are required pursuant to the Escrow Agreement.