Exhibit 99.2
ESCROW AGREEMENT
ESCROW AGREEMENT (this "Escrow Agreement") made as of the date set forth on the
signature page below, by and among, ▇▇▇▇▇▇ Distributors Ltd. ("▇▇▇▇▇▇"), each of
the vendor purchaser signatories hereto (each a "Purchaser" and collectively,
the "Purchasers") and the law firm of Wuersch & ▇▇▇▇▇▇ LLP, a New York limited
liability partnership, as escrow agent (the "Escrow Agent").
W I T N E S S E T H:
WHEREAS, ▇▇▇▇▇▇ and the Purchasers are exchanging the securities (the
"Securities" and also referred to herein as the "Escrow Assets") described in
the attached Stock Purchase Agreement dated as of even date herewith (the "Stock
Purchase Agreement" and also referred to herein as the "Transaction");
WHEREAS, the Agreement contemplates that the Transaction will close into
escrow of the Escrow Agent and that ▇▇▇▇▇▇ shall retain a right of rescission in
respect of the Transaction until certain post closing due diligence is completed
to the satisfaction of ▇▇▇▇▇▇ and the Escrow Agent has agreed to receive, hold,
pay and deliver such Securities, and take such actions thereof, upon the terms
and subject to the conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
and for other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties to this Escrow Agreement hereby agree
as follows:
1. Defined Terms. Capitalized terms used and not otherwise defined
herein shall have the meanings respectively assigned to them in the Agreement.
2. Escrow. On or prior to the Closing Date, the following shall
occur: (a) Purchasers shall deliver the Purchased Shares to the Escrow Agent;
and (b) ▇▇▇▇▇▇ shall deliver or cause to be delivered to Escrow Agent the WACI
Securities. The Escrow Agent shall hold the Securities at and after Closing
pursuant to the conditions of Section 2.8 of the Stock Purchase Agreement.
3. Interest on Assets. During the period of effectiveness of this
Escrow Agreement, none of the Securities shall accrue any interest to the
benefit of, or be payable to, ▇▇▇▇▇▇ or the Purchaser.
4. Release of Securities.
(a) The Escrow Agent shall release the Securities to the respective
party as set forth in accordance with the provisions of Section 2.8 of the Stock
Purchase Agreement.
(b) If no Closing occurs prior to 11:59 p.m. eastern time at or
prior to the end of the Rescission Right Period and the Escrow Agent does not
receive mutually consistent
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written instructions of ▇▇▇▇▇▇ and Purchasers regarding an extension of such
date, the Escrow Agent shall promptly take actions consistent with Section 2.8
of the Stock Purchase Agreement.
5. Further Assurances; Anti-Money Laundering Compliance. ▇▇▇▇▇▇ and
the Purchaser agree to do such further acts and to execute and deliver such
statements, assignments, agreements, instruments and other documents as the
Escrow Agent from time to time reasonably may request in connection with the
administration, maintenance, enforcement or adjudication of this Escrow
Agreement in order (a) to give the Escrow Agent confirmation and assurance of
the Escrow Agent's rights, powers, privileges, remedies and interests under this
Escrow Agreement and applicable law, (b) to better enable the Escrow Agent to
exercise any such right, power, privilege, remedy or interest, or (c) to
otherwise effectuate the purpose and the terms and provisions of this Escrow
Agreement, each in such form and substance as may be reasonably acceptable to
the Escrow Agent. Without limiting the foregoing, the Purchaser shall promptly
deliver to the Escrow Agent any and all information and due diligence materials
relating to anti-money laundering due diligence as may be requested by the
Escrow Agent, the extent and sufficiency of which shall be determined by the
Escrow Agent in its sole discretion.
6. Conflicting Demands. If conflicting or adverse claims or demands
are made or notices served upon the Escrow Agent with respect to the escrow
provided for herein, ▇▇▇▇▇▇ and the Purchaser agree that the Escrow Agent shall
refuse to comply with any such claim or demand and withhold and stop all further
performance of this escrow so long as such disagreement shall continue. In so
doing, the Escrow Agent shall not be or become liable for damages, losses,
costs, expenses or interest to any or any other person for its failure to comply
with such conflicting or adverse demands. The Escrow Agent shall be entitled to
continue to so refrain and refuse to so act until such conflicting claims or
demands shall have been finally determined by a court or arbitrator of competent
jurisdiction or shall have been settled by agreement of the parties to such
controversy, in which case the Escrow Agent shall be notified thereof in a
notice signed by such parties. The Escrow Agent may also elect to commence an
interpleader or other action for declaratory judgment for the purpose of having
the respective rights of the claimants adjudicated, and may deposit with the
court all funds held hereunder pursuant to this Escrow Agreement; and if it so
commences and deposits, the Escrow Agent shall be relieved and discharged from
any further duties and obligations under this Escrow Agreement.
7. Disputes. Each of the parties hereto hereby covenants and agrees
that the Federal or state courts located in the Borough of Manhattan, State of
New York shall have jurisdiction over any dispute with the Escrow Agent or
relating to this Escrow Agreement.
8. Expenses of the Escrow Agent. ▇▇▇▇▇▇ agrees to pay any and all
fees, costs, expenses and disbursements charged, accrued and/or incurred by the
Escrow Agent in connection with performance of all duties, conditions and rights
under this Agreement, in addition to all waivers, releases, discharges,
satisfactions, modifications and amendments of this Escrow Agreement, the
administration and holding of the Escrow Assets, the deposit of funds, and the
enforcement, protection and adjudication of the Escrow Agent's rights hereunder
by the Escrow Agent, including, without limitation, the out-of-pocket
disbursements of the Escrow Agent with respect to any fees, costs, expenses or
disbursements of its own legal counsel that Escrow Agent may retain in the event
of any controversy in connection with this Escrow
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Agreement. ▇▇▇▇▇▇ shall indemnify and hold harmless the Escrow Agent for any and
all such fees, costs expenses and disbursements paid or accrued by the Escrow
Agent.
9. Reliance on Documents and Experts. The Escrow Agent shall be
entitled to rely upon any notice, consent, certificate, affidavit, statement,
paper, document, writing or communication (which to the extent permitted
hereunder may be by telegram, cable, telex, telecopier, or telephone) reasonably
believed by it to be genuine and to have been signed, sent or made by the proper
person or persons, and upon opinions and advice of legal counsel (including
itself or counsel for any party hereto), independent public accountants and
other experts selected by the Escrow Agent and mutually acceptable to each of
▇▇▇▇▇▇ and the Purchaser. The Escrow Agent shall not be responsible to review
any certificates other than to confirm that it has been signed.
10. Status of the Escrow Agent, Etc. The Escrow Agent is acting
under this Escrow Agreement solely in an agency capacity. No term or provision
of this Escrow Agreement is intended to create, nor shall any such term or
provision be deemed to have created, any joint venture, partnership or
attorney-client relationship between or among the Escrow Agent and ▇▇▇▇▇▇ or the
Purchaser. This Escrow Agreement shall not be deemed to prohibit or in any way
restrict the Escrow Agent's representation of ▇▇▇▇▇▇, who may be advised by the
Escrow Agent on any and all matters pertaining to this Escrow Agreement. To the
extent ▇▇▇▇▇▇ has been represented by the Escrow Agent, the Purchaser hereby
duly acknowledges and waives any conflict of interest and irrevocably authorizes
and directs the Escrow Agent to carry out the terms and provisions of this
Escrow Agreement fairly as to all parties, without regard to any such
representation and irrespective of the impact upon the. The Escrow Agent's only
duties are those expressly set forth in this Escrow Agreement, and each of
▇▇▇▇▇▇ and the Purchaser authorizes the Escrow Agent to perform those duties in
accordance with its usual practices in holding funds of its own or those of
other escrows. The Escrow Agent may exercise or otherwise enforce any of its
rights, powers, privileges, remedies and interests under this Escrow Agreement
and applicable law or perform any of its duties under this Escrow Agreement by
or through its partners, employees, attorneys, agents or designees.
11. Exculpation. The Escrow Agent and its designees, and their
respective partners, employees, attorneys and agents, shall not incur any
liability whatsoever for the investment or disposition of funds or the taking of
any other action in accordance with the terms and provisions of this Escrow
Agreement, for any mistake or error in judgment, for compliance with any
applicable law or any attachment, order or other directive of any court or other
authority (irrespective of any conflicting term or provision of this Escrow
Agreement), or for any act or omission of any other person selected with
reasonable care and engaged by the Escrow Agent in connection with this Escrow
Agreement (other than for such Escrow Agent's or such person's own acts or
omissions breaching a duty owed to the claimant under this Escrow Agreement and
amounting to gross negligence or willful misconduct as finally determined
pursuant to applicable law by a governmental authority having jurisdiction); and
each of ▇▇▇▇▇▇ and the Purchaser hereby waives any and all claims and actions
whatsoever against the Escrow Agent and its designees, and their respective
partners, employees, attorneys and agents, arising out of or related directly or
indirectly to any and all of the foregoing acts, omissions and circumstances.
Furthermore, the Escrow Agent and its designees, and their respective partners,
employees, attorneys and agents, shall not incur any liability (other than for a
person's own acts
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or omissions breaching a duty owed to the claimant under this Escrow Agreement
and amounting to gross negligence or willful misconduct as finally determined
pursuant to applicable law by a governmental authority having jurisdiction) For
other acts and omissions arising out of or related directly or indirectly to
this Escrow Agreement or the Escrow Assets; and each of ▇▇▇▇▇▇ and the Purchaser
hereby expressly waives any and all claims and actions (other than those
attributable to a person's own acts or omissions breaching a duty owed to the
claimant and amounting to gross negligence or willful misconduct as finally
determined pursuant to applicable law by a governmental authority having
jurisdiction) against the Escrow Agent and its designees, and their respective
partners, employees, attorneys and agents, arising out of or related directly or
indirectly to any and all of the foregoing acts, omissions and circumstances.
12. Indemnification. The Escrow Agent and its designees, and their
respective partners, employees, attorneys and agents, shall be indemnified,
reimbursed, held harmless and, at the request of the Escrow Agent, defended, by
▇▇▇▇▇▇ from and against any and all claims, liabilities, losses and expenses
(including, without limitation, the reasonable disbursements, expenses and fees
of their respective attorneys) that may be imposed upon, incurred by, or
asserted against any of them, arising out of or related directly or indirectly
to this Escrow Agreement or the Escrow Assets, except such as are occasioned by
the indemnified person's own acts and omissions breaching a duty owed to the
claimant under this Escrow Agreement and amounting to willful misconduct as
finally determined pursuant to applicable law by a governmental authority having
jurisdiction.
13. Notices. Any notice, request, demand or other communication
permitted or required to be given hereunder shall be in writing, shall be sent
by one of the following means to the addressee at the address set forth below
(or at such other address as shall be designated hereunder by notice to the
other parties and persons receiving copies, effective upon actual receipt) and
shall be deemed conclusively to have been given: (a) on the first business day
following the day timely deposited with Federal Express (or other equivalent
national overnight courier) or United States Express Mail, with the cost of
delivery prepaid; (b) on the fifth business day following the day duly sent by
certified or registered United States mail, postage prepaid and return receipt
requested; or (c) when otherwise actually delivered to the addressee.
If to ▇▇▇▇▇▇: At the address of ▇▇▇▇▇▇ set forth on the
signature page hereto
If to Escrow Agent: Wuersch & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to Purchaser: At the address of such Purchaser set forth on
the signature page hereto
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14. Section and Other Headings. The section and other headings
contained in this Escrow Agreement are for convenience only, shall not be deemed
a part of this Escrow Agreement and shall not affect the meaning or
interpretation of this Escrow Agreement.
15. Governing Law. This Escrow Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of New York,
without regard to principles of conflicts of law. Each of ▇▇▇▇▇▇ and the
Purchasers (i) hereby irrevocably submits to the jurisdiction of the United
States District Court sitting in the Southern District of New York for the
purposes of any suit, action or proceeding arising out of or relating to this
Agreement or the Agreement and (ii) hereby waives, and agrees not to assert in
any such suit, action or proceeding, any claim that it is not personally subject
to the jurisdiction of such court, that the suit, action or proceeding is
brought in an inconvenient forum or that the venue of the suit, action or
proceeding is improper. Each of ▇▇▇▇▇▇ and the Purchasers consents to process
being served in any such suit, action or proceeding by mailing a copy thereof to
such party at the address in effect for notices to it under this Agreement and
agrees that such service shall constitute good and sufficient service of process
and notice thereof. Nothing in this Section 15 shall affect or limit any right
to serve process in any other manner permitted by law.
16. Counterparts. This Escrow Agreement may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original but all such counterparts shall together
constitute one and the same agreement.
17. Resignation of Escrow Agent. The Escrow Agent may, at any time,
at its option, elect to resign its duties as Escrow Agent under this Escrow
Agreement by providing notice thereof to each of ▇▇▇▇▇▇ and the Purchaser. In
such event, the Escrow Agent shall deposit the Escrow Assets with a successor
independent escrow agent to be appointed by (a) ▇▇▇▇▇▇ and the Purchaser within
thirty (30) days following the receipt of notice of resignation from the Escrow
Agent, or (b) the Escrow Agent if ▇▇▇▇▇▇ and the Purchaser shall have not agreed
on a successor escrow agent within the aforesaid 30-day period, upon which
appointment and delivery of the Escrow Assets the Escrow Agent shall be released
of and from all liability under this Escrow Agreement.
18. Successors and Assigns; Assignment. Whenever in this Escrow
Agreement reference is made to any party, such reference shall be deemed to
include the successors, assigns and legal representatives of such party, and,
without limiting the generality of the foregoing, all representations,
warranties, covenants and other agreements made by or on behalf of each of
▇▇▇▇▇▇ and the Purchaser in this Escrow Agreement shall inure to the benefit of
any successor escrow agent hereunder; provided, however, that nothing herein
shall be deemed to authorize or permit ▇▇▇▇▇▇ or the Purchaser to assign any of
its rights or obligations hereunder to any other person (whether or not an
affiliate of ▇▇▇▇▇▇ or the Purchaser) without the written consent of each of the
other parties nor to authorize or permit the Escrow Agent to assign any of its
duties or obligations hereunder except as provided in Section 17 hereof.
19. No Third Party Rights. The representations, warranties and other
terms and provisions of this Escrow Agreement are for the exclusive benefit of
the parties hereto, and no other person, including the creditors of ▇▇▇▇▇▇ or
the Purchaser, shall have any right or claim
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against any party by reason of any of those terms and provisions or be entitled
to enforce any of those terms and provisions against any party.
20. No Waiver by Action, Etc. Any waiver or consent respecting any
representation, warranty, covenant or other term or provision of this Escrow
Agreement shall be effective only in the specific instance and for the specific
purpose for which given and shall not be deemed, regardless of frequency given,
to be a further or continuing waiver or consent. The failure or delay of a party
at any time or times to require performance of, or to exercise its rights with
respect to, any representation, warranty, covenant or other term or provision of
this Escrow Agreement in no manner (except as otherwise expressly provided
herein) shall affect its right at a later time to enforce any such term or
provision. No notice to or demand on either ▇▇▇▇▇▇ or the Purchaser in any case
shall entitle such party to any other or further notice or demand in the same,
similar or other circumstances. All rights, powers, privileges, remedies and
interests of the parties under this Escrow Agreement are cumulative and not
alternatives, and they are in addition to and shall not limit (except as
otherwise expressly provided herein) any other right, power, privilege, remedy
or interest of the parties under this Escrow Agreement or applicable law.
21. Modification, Amendment, Etc. Each and every modification and
amendment of this Escrow Agreement shall be in writing and signed by all of the
parties hereto, and each and every waiver of, or consent to any departure from,
any covenant, representation, warranty or other provision of this Escrow
Agreement shall be in writing and signed by the party granting such waiver or
consent.
22. Entire Agreement. This Escrow Agreement contains the entire
agreement of the parties with respect to the matters contained herein and
supersedes all prior representations, agreements and understandings, oral or
otherwise, among the parties with respect to the matters contained herein.
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IN WITNESS WHEREOF, the parties hereto have executed this Escrow
Agreement as of the 29th day of July, 2005.
▇▇▇▇▇▇ DISTRIBUTORS LTD.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
ESCROW AGENT: WUERSCH & ▇▇▇▇▇▇ LLP
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Partner
PURCHASER: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Managing Director
Address For Notice:
Telephone:
Fax:
PURCHASER: ▇▇▇▇▇ ▇▇▇▇▇
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By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇
Title:
Address For Notice:
Telephone:
Fax:
PURCHASER: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title:
Address For Notice:
Telephone:
Fax:
PURCHASER: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
Address For Notice:
Telephone:
Fax:
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