Exhibit 10.7
ESCROW AGREEMENT
This ESCROW AGREEMENT (this "AGREEMENT") is made and entered into as of
this 19th day of July, 2004 by and among PHOENIX FOOTWEAR GROUP, INC., a
Delaware corporation ("BUYER"), W. ▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "STOCKHOLDER") and
Manufacturers and Traders Trust Company ("ESCROW AGENT") under that certain
Stock Purchase Agreement dated as of June 15, 2004 (the "STOCK PURCHASE
AGREEMENT") by and among Buyer and Stockholder and Altama Delta Corporation
("ALTAMA DELTA"), a Georgia corporation.
R E C I T A L S :
Pursuant to the Stock Purchase Agreement, Buyer is acquiring all of the
outstanding capital stock of Altama Delta and in consideration for the purchase
of such shares, Buyer has agreed to issue 196,967 shares of Buyer common stock
together with a payment of $36,500,000 in immediately available funds and under
Section 2(c) of the Stock Purchase Agreement (subject to adjustment for any
Overpaid Amounts or Underpaid Amounts (as defined therein)) and a $2,000,000
contingent earn-out payment under Section 2(d) of the Stock Purchase Agreement.
The Buyer and the Stockholder have further agreed that all such shares of Buyer
common stock shall be paid by deposit thereof by Buyer with the Escrow Agent to
be held, invested and distributed as provided herein;
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
obligations herein, the parties agree as follows:
1. DEFINITIONS. All capitalized terms used herein without definitions
shall have the meanings specified in the Stock Purchase Agreement. Except as
otherwise expressly set forth herein, all matters pertaining to the Escrow
Amount shall be governed by the provisions of this Agreement.
2. APPOINTMENT OF ESCROW AGENT. The Buyer and the Stockholder hereby
appoint and designate the Escrow Agent as the escrow agent hereunder upon the
terms and conditions and for the purposes set forth herein. The Escrow Agent
hereby acknowledges receipt of the Escrow Amount (as hereafter defined) and
hereby accepts its appointment and agrees to act as Escrow Agent and to hold,
invest and disburse the Escrow Amount upon the terms and conditions and for the
purposes set forth in this Agreement. The Escrow Agent undertakes to perform
only such duties as are expressly set forth herein.
3. ESTABLISHMENT OF ESCROW ACCOUNT.
(a) At or prior to the Closing, Escrow Agent shall establish an
Escrow Account in which the Escrow Amount shall be held, invested and
distributed. At the Closing, Buyer shall instruct its transfer agent to deliver
to the Escrow Agent for deposit into the Escrow Account, a certificate issued in
the name of the Escrow Agent for the number of shares of Buyer common stock
issued for the benefit of the Stockholder pursuant to the Stock Purchase
Agreement (the "ESCROW SHARES" and, together with the Distributions referred to
below, the "ESCROW AMOUNT") as required by Section 2(c) of the Stock Purchase
Agreement.
(b) In the event the Escrow Shares are reclassified or otherwise
changed into or exchanged for other securities, property or cash pursuant to any
merger, consolidation, sale of all or substantially all of the assets of Altama
Delta or Buyer and liquidation or other transaction, the securities, cash or
other property received by the Escrow Agent in respect of the Escrow Shares
shall all be retained by it as part of the Escrow Amount. All such cash,
property, Buyer capital stock and other securities received and retained by the
Escrow Agent pursuant to the foregoing sentence are referred to herein as
"DISTRIBUTIONS." Notwithstanding the foregoing, any non-liquidating cash
dividends in respect of the Escrow Shares shall not be retained by the Escrow
Agent and shall not become part of the Escrow Amount, and instead shall be
promptly remitted to Stockholder.
(c) The Escrow Agent shall file information returns with the United
States Internal Revenue Service and payee statements with Stockholder,
documenting all Distributions and gains earned or realized on the Escrow Amount
for the account of Stockholder (collectively, "EARNINGS"). Stockholder shall
provide to the Escrow Agent all forms and information necessary to complete such
information returns and payee statements. In the event the Escrow Agent becomes
liable for the payment of taxes, including withholding taxes, relating to
Earnings or any payment made hereunder, the Escrow Agent may deduct such taxes
from the Escrow Amount.
4. MAINTENANCE OF THE ESCROW ACCOUNT.
(a) All Escrow Shares or other securities which become part of the
Escrow Amount (collectively, the "ESCROW SECURITIES") shall be registered in the
name of the Escrow Agent or its nominee. The Escrow Agent is hereby granted the
power to effect any transfer of the Escrow Securities required by this
Agreement. Buyer shall cooperate with the Escrow Agent in issuing, or causing
its transfer agent to issue, such stock certificates as shall be required to
effect such transfers which involve Buyer capital stock.
(b) Pending disbursement of any funds held by the Escrow Agent
hereunder, such funds shall be invested and reinvested by the Escrow Agent in
(a) FDIC insured certificates of deposit, (b) shares of money market mutual
funds selected by Escrow Agent or, (c) direct obligations of, or obligations
guaranteed as to principal and interest by, the United States, in either case
maturing in three (3) months or less. Unless and until otherwise directed by
Stockholder, Escrow Agent shall invest any such funds in direct obligations of,
or obligations guaranteed as to principal and interest by, the United States.
(c) The Escrow Agent shall vote all Escrow Securities other than
Disputed Securities as directed by the Stockholder in his sole and absolute
discretion. The Buyer shall vote all Disputed Securities in such manner as it
determines in its sole and absolute discretion.
5. CLAIMS AND DISBURSEMENTS.
(a) For purposes of this Agreement: (i) the term "ESCROW CLAIM
TERMINATION DATE" shall mean that date which is eighteen (18) months from the
date hereof; (ii) the term
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"BUSINESS DAY" shall mean any day other than a Saturday, Sunday or other day on
which banks in the State of New York are authorized to close; and (iii) the term
"ESCROW SECURITIES VALUE" as it applies to the Escrow Shares shall mean the
average closing price of one share of Buyer common stock on the American Stock
Exchange for the twenty (20) consecutive trading days preceding the second (2nd)
trading day prior to the date of any delivery or set aside of Escrow Securities
by the Escrow Agent, and as it applies to all other Escrow Securities shall mean
the average closing price of such securities in the primary market where they
trade for the twenty (20) consecutive trading days preceding the second (2nd)
trading day prior to the date of any delivery or set aside of Escrow Securities
by the Escrow Agent or in the absence of a trading market, the fair market value
thereof determined by the Escrow Agent.
(b) If, at any time prior to the Escrow Claim Termination Date, the
Buyer seeks to have any portion of the Escrow Amount distributed to it as
payment of a claim ("CLAIM") for an Overpayment Amount under Section 2(b)(iii)
of the Stock Purchase Agreement or indemnification or other payments due under
Section 8 of the Stock Purchase Agreement, it shall file with the Escrow Agent,
with a copy to the Stockholder, a written demand (a "BUYER DEMAND") for such
distribution to be made to it from the Escrow Amount. The Buyer Demand shall
include a statement that the Buyer has contemporaneously delivered a copy of the
Buyer Demand to the Stockholder. The Escrow Agent shall disburse to the Buyer
Escrow Securities with an aggregate Escrow Securities Value as of the date of
distribution equal to the amount of the Claim set forth in the Buyer Demand,
unless the Stockholder delivers an objection in writing (the "STOCKHOLDER
OBJECTION") to the Escrow Agent (with a copy to the Buyer) prior to the
fifteenth (15th) business day following the date of delivery of the Buyer Demand
to the Escrow Agent (the "OBJECTION PERIOD") to the effect that the Buyer is not
so entitled and setting forth the reasons therefor. If no Stockholder Objection
is so delivered, then the Escrow Agent shall make such distribution to Buyer on
the first day following the end of the Objection Period. If a Stockholder
Objection is delivered to the Escrow Agent prior to the end of the Objection
Period, then no disbursement shall be made by the Escrow Agent pursuant to the
Buyer Demand except in accordance with the terms and conditions hereof.
(c) If the Stockholder timely objects to a Buyer Demand pursuant to
a Stockholder Objection delivered to the Escrow Agent prior to the end of the
Objection Period, the Escrow Agent shall promptly (i) set aside Escrow
Securities with an aggregate Escrow Securities Value in the amount of the Claim
or portion thereof to which the Stockholder has objected (such funds being the
"DISPUTED SECURITIES"), (ii) promptly distribute to the Buyer the Escrow
Securities with an Escrow Securities Value in an amount equal to the undisputed
Claim.
(d) The Escrow Agent shall hold a certificate or certificates
representing any Disputed Securities until the Escrow Agent shall have received
(i) a Joint Instruction in accordance with Section 5(e) below, or (ii) a final
and non-appealable order of a court of competent jurisdiction, in either case
directing the disbursement of the Disputed Securities.
(e) At any time after the date of the Closing, the Escrow Agent may
be advised in writing by the Buyer and the Stockholder to disburse all or a
portion of the Escrow Amount pursuant to a joint written instruction (the "JOINT
INSTRUCTION"), in which case the
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Escrow Agent shall disburse the Escrow Amount, or portion thereof, in accordance
with the terms and in the manner set forth in such Joint Instruction.
(f) Upon the Escrow Claim Termination Date, the Escrow Agent shall
distribute all Escrow Amounts other than Disputed Securities to the Stockholder.
The Escrow Agent shall continue to hold, invest and disburse the Disputed
Securities in accordance with the terms hereof.
(g) The Stockholder and the Buyer each agree that they will give to
each other copies of any Buyer Demand or Stockholder Objection, as the case may
be, concurrently with the delivery thereof to the Escrow Agent.
6. TERM OF ESCROW AGREEMENT. This Agreement shall terminate upon the
complete distribution of the Escrow Amount in accordance with Section 5 above.
7. FEES OF THE ESCROW AGENT. The fees of the Escrow Agent, including (a)
the normal costs of administering the Escrow Account as set forth on the Fee
Schedule attached hereto as ANNEX A, and (b) all fees and costs associated with
the Escrow Agent's administration of the Escrow Account, shall be paid by Buyer.
In the event that the Escrow Agent renders any service hereunder not provided
for herein or there is any assignment of any interest in the subject matter of
the Escrow Account or modification hereof, the Escrow Agent shall be reasonably
compensated for such extraordinary services by the party that is responsible for
or requests such services.
8. LIABILITY OF THE ESCROW AGENT. In performing any of its duties under
this Agreement, the Escrow Agent shall not be liable to any party for damages,
losses or expenses, except in the event of gross negligence or willful
misconduct on the part of the Escrow Agent. The Escrow Agent shall not incur any
such liability for (a) any act or failure to act made or omitted in good faith,
or (b) any action taken or omitted in reliance upon any instrument, including
any written statement or affidavit provided for in this Agreement that the
Escrow Agent shall in good faith believe to be genuine; nor will the Escrow
Agent be liable or responsible for forgeries, fraud or determining the scope of
any agent's authority. In addition, the Escrow Agent, at the expense of Buyer
and Stockholder, may consult with legal counsel in connection with its duties
under this Agreement and shall be fully protected in any act taken, suffered or
permitted by it in good faith in accordance with the advice of counsel. The
Escrow Agent shall not be responsible for mistakes with respect to determining
and verifying the authority of any person acting or purporting to act on behalf
of any party to this Agreement to the extent the Escrow Agent is not grossly
negligent.
9. CONTROVERSIES. If any controversy arises between the parties to this
Agreement, or with any other party, concerning the subject matter of the Escrow
Amount, its terms or conditions, the Escrow Agent will not be required to
determine the controversy or to take any action regarding it. The Escrow Agent
may hold all documents and funds and may wait for settlement of any such
controversy by final appropriate legal proceedings or other means as, in the
Escrow Agent's discretion, it may require, despite what may be set forth
elsewhere in this Agreement. In such event, the Escrow Agent will not be liable
for interest or damage.
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Furthermore, the Escrow Agent may at its option, file an action of interpleader
requiring the parties to answer and litigate any claims and rights among
themselves. The Escrow Agent is authorized to deposit with the clerk of the
court the Escrow Amount and all documents and certificates related thereto,
except all costs, expenses, charges and reasonable attorneys' fees incurred by
it due to the interpleader action and which the parties jointly and severally
agree to pay. Upon initiating such action, the Escrow Agent shall be fully
released and discharged of and from all obligations and liability imposed by the
terms of the escrow, and the action will be deemed to be solely a dispute
between the parties subject to the Stock Purchase Agreement.
10. INDEMNIFICATION OF ESCROW AGENT. Buyer and Stockholder agree to
jointly and severally indemnify and hold the Escrow Agent harmless against any
and all losses, claims, damages, liabilities and expenses, including reasonable
costs of investigation, outside counsel fees, and disbursements that may be
imposed on the Escrow Agent, or incurred by it in connection with the
performance of its duties under this Agreement, including, but not limited to,
any litigation arising from this Agreement or involving its subject matter,
unless such loss, claim, damage, liability or expense shall be caused by the
gross negligence or willful misconduct on the part of the Escrow Agent. Nothing
contained in this Section 10 shall impair the rights of Buyer and Stockholder,
as between themselves.
11. RESIGNATION OF ESCROW AGENT. The Escrow Agent may resign at any time
upon giving at least thirty (30) days written notice to the other parties;
provided, however, that no such resignation shall become effective until the
appointment of a successor Escrow Agent which shall be accomplished as follows:
Buyer and Stockholder shall use their best efforts to agree on a successor
Escrow Agent within thirty (30) days after receiving such notice. If the parties
fail to agree on a successor Escrow Agent within such time, then the Escrow
Agent shall have the right to appoint a successor Escrow Agent, provided that
the successor so chosen shall have capital, surplus and undivided profits of at
least $200,000,000. The successor Escrow Agent shall execute and deliver to the
Escrow Agent an instrument accepting such appointment, and the successor Escrow
Agent shall, without further acts, be vested with all the estates, property
rights, powers and duties of the predecessor Escrow Agent as if originally named
as Escrow Agent herein. The predecessor Escrow Agent then shall deliver the
Escrow Amount then held by it to the successor Escrow Agent and shall thereafter
be discharged from any further duties and liability under this Agreement.
12. MISCELLANEOUS.
(a) Assignment; Binding Upon Successors and Assigns. None of the
parties hereto may assign any of its rights or obligations hereunder without the
prior written consent of the other parties. This Agreement will be binding upon
Stockholder and Stockholder's representatives, executors, administrators,
estate, heirs, successors and assigns, and will inure to the benefit of Buyer
and Escrow Agent and their successors and assigns.
(b) Severability. If any provision of this Agreement, or the
application thereof, shall for any reason and to any extent be held to be
invalid or unenforceable, the remainder of this Agreement and the application of
such provision to other persons or circumstances shall be interpreted so as best
to reasonably effect the intent of the parties hereto.
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The parties further agree to replace such invalid or unenforceable provision of
this Agreement with a valid and enforceable provision which will achieve, to the
extent possible, the economic, business and other purposes of the invalid or
unenforceable provision.
(c) Entire Agreement. This Agreement, and the Annexes
heretoconstitute the entire understanding and agreement of the parties hereto
with respect to the subject matter hereof and thereof and supersede all prior
and contemporaneous agreements or understandings, inducements or conditions,
express or implied, written or oral, between the parties with respect hereto and
thereto. The express terms hereof control and supersede any course of
performance or usage of the trade inconsistent with any of the terms hereof.
(d) Notices. All notices and other communications hereunder shall be
in writing and shall be deemed duly delivered if delivered personally (upon
receipt), or three business days after being mailed by registered or certified
mail, postage prepaid (return receipt requested), or one business day after it
is sent by reputable nationwide overnight courier service, or upon transmission,
if sent via facsimile (with confirmation of receipt) to the parties at the
following address (or at such other address for a party as shall be specified by
like notice):
(i) If to the Stockholder:
W. ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
Copy to:
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P.
1600 Atlanta Financial Center
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇.▇. ▇▇▇▇▇ ▇▇▇▇▇, Esq.
Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
(ii) If to Buyer:
Phoenix Footwear Group, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇, Chairman
Copy to:
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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Attention: ▇▇▇▇▇▇ ▇. Forth, Esq.
(iii) If to Escrow Agent:
Manufacturers and Traders Trust Company
▇▇▇ ▇&▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
(e) Other Remedies. Except as otherwise provided herein, any and all
remedies herein expressly conferred upon a party shall be deemed cumulative with
and not exclusive of any other remedy conferred hereby or by law on such party,
and the exercise of any one remedy shall not preclude the exercise of any other.
(f) Amendment and Waivers. Any term or provision of this Agreement
may be amended, and the observance of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively) only by a writing signed by the party to be bound thereby. The
waiver by a party of any breach hereof for default in payment of any amount due
hereunder or default in the performance hereof shall not be deemed to constitute
a waiver of any other default or any succeeding breach or default.
(g) Further Assurances. Each party agrees to cooperate fully with
the other parties and to execute such further instruments, documents and
agreements and to give such further written assurances, as may be reasonably
requested by any other party to better evidence and reflect the transactions
described herein and contemplated hereby and to carry into effect the intents
and purposes of this Agreement.
(h) Absence of Third Party Beneficiary Rights. No provisions of this
Agreement are intended, nor shall be interpreted, to provide or create any third
party beneficiary rights or any other rights of any kind in any client,
customer, affiliate, shareholder, partner of any party hereto or any other
person or entity unless specifically provided otherwise herein, and, except as
so provided, all provisions hereof shall be solely between the parties to this
Agreement.
(i) Governing Law. It is the intention of the parties hereto that
the internal laws of the State of New York (irrespective of its choice of law
principles) shall govern the validity of this agreement, the construction of its
terms, and the interpretation and enforcement of the rights and duties of the
parties hereto.
(j) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same instrument.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties have executed this Escrow Agreement as of
the date first set forth above.
ESCROW AGENT:
Manufacturers and Traders Trust Company
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Its: Assistant Vice President
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BUYER:
PHOENIX FOOTWEAR GROUP, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Executive Officer
STOCKHOLDER:
/s/ W. ▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------------
W. ▇▇▇▇▇▇▇ ▇▇▇▇▇, as Stockholder
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ANNEX A
ESCROW AGENT FEE SCHEDULE
INSTITUTIONAL TRUST SERVICES
ESCROW AGENT
- ACCEPTANCE FEE $250
- The annual fee is:
- .05% on the Total Market Value
- Minimum Annual Fee $1,000
- $10.00 per Check
- $15.00 per Wire Transfer
- $15.00 per Security Transaction
- BILLING CYCLE
- Acceptance Fee is billed in advance. Market Value Fees are assessed
quarterly. The full Minimum Annual Fee will apply for any part of the
first year of account servicing.
The above quoted prices and pricing levels are provided by M&T Bank to
reflect fees charged for U.S. domestically traded financial
instruments only. If there is a need to trade securities or currency
not domiciled in the U.S., a separate fee schedule will be provided.
CHARGE ACCOUNT / / ▇▇▇▇ COMPANY/SPONSOR / /
APPROVED BY: ______________________________________ DATE:_____________________
Any fees that remain outstanding after forty-five days from the billing date
will be deducted from the account.
[M&T INVESTMENT GROUP LOGO]
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