Exhibit 99.2
EXECUTION COPY
ESCROW AGREEMENT
This ESCROW AGREEMENT, dated as of July 23, 2004 (this "Agreement"), is among
the Estate of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (the "Estate"), ▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇▇▇▇▇") and ▇.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, as escrow agent (the "Escrow Agent").
WHEREAS, pursuant to an Option Agreement dated May 21, 1997 (the "Option
Agreement"), ▇▇▇▇▇▇ 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, ▇▇▇▇▇▇ 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, ▇. ▇▇▇▇▇▇▇▇ Meyercord, McCown, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, and ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., 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 ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ or his designee (the "Transfer Documents") upon the exercise of
▇▇▇▇▇▇'▇ Purchase Right.
2. Release of Escrow Shares; Termination.
(a) If the Escrow Agent receives from ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ or his designee) to ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇
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
▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇. In addition, the Escrow Agent may be removed and replaced
on a date designated in a written instrument signed by the Estate and ▇▇▇▇▇▇ 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.
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(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:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
If to ▇▇▇▇▇▇, to:
▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Escrow Agent, to:
▇. ▇▇▇▇▇▇▇▇ Meyercord
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
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.
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7. Remedies. The Escrow Agent acknowledges that ▇▇▇▇▇▇'▇ remedy at law
for any breach by the Escrow Agent of paragraph 2(a) will be inadequate.
Therefore, ▇▇▇▇▇▇ shall be entitled to injunctive or other equitable relief
requiring specific performance, in addition to any other remedies that may be
available to ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ and, with respect to any amendment that could
adversely affect the Escrow Agent, the Escrow Agent.
[Signature page follows]
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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 ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
By: /s/ ▇. ▇▇▇▇▇▇▇▇ Meyercord
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Name: ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Co-Executor
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Co-Executor
▇▇▇▇▇▇:
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇
The Escrow Agent:
/s/ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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▇. ▇▇▇▇▇▇▇▇ Meyercord
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