ESCROW AGREEMENT by and among TAILWIND FINANCIAL INC., TWF ACQUISITION CORPORATION, BRUCE H. LIPNICK, and AMERICAN STOCK TRANSFER & TRUST COMPANY Dated as of _______________________, 200_
Exhibit
10.24
Exhibit
E
by
and
among
TWF
ACQUISITION CORPORATION,
XXXXX
X. XXXXXXX,
and
AMERICAN
STOCK TRANSFER & TRUST COMPANY
Dated
as
of _______________________, 200_
This
ESCROW
AGREEMENT,
dated
as of ________ __, 200_ (this “Escrow
Agreement”),
is by
and among (i)
American Stock Transfer & Trust Company (the “Escrow
Agent”),
(ii)
Tailwind Financial Inc., a Delaware corporation (“Parent”),
(iii)
TWF Acquisition Corporation, a Delaware corporation and a wholly owned
subsidiary of Parent (“Merger
Sub”)
and
(iv) Xxxxx X. Xxxxxxx, acting as the Company Representative referenced herein
and in the Merger Agreement referred to below (the “Company
Representative”).
Capitalized terms used herein without definition shall have the meanings
assigned to such terms in the Merger Agreement.
WHEREAS,
Parent, Merger Sub and Asset Alliance Corporation, a Delaware corporation (the
“Company”)
have
entered into that certain Agreement and Plan of Merger dated as of January
8,
2008 (the “Merger
Agreement”),
pursuant to which Merger Sub shall merge with the Company, subject to the terms
and conditions set forth in the Merger Agreement; and
WHEREAS,
pursuant to the Merger Agreement, certain of the shares of Parent Common Stock
issued pursuant to the Merger shall be deposited into escrow hereunder, to
be
held and distributed to the applicable holders of the Company Common Stock
(the
“Participating
Rights Holders”)
by the
Escrow Agent on the terms and conditions set forth herein.
NOW,
THEREFORE, in consideration of the mutual promises and agreements set forth
in
this Escrow Agreement, the parties hereto hereby agree as follows:
I.
GENERAL:
The
Escrow Agent shall hold in escrow and shall distribute the Escrowed Shares
(as
defined below) in accordance with and subject to the following Instructions
and
Terms and Conditions.
II.
INSTRUCTIONS:
| 1. |
Deposit
of Escrowed Shares
|
At
the
Effective Time, pursuant to the Merger Agreement, Parent shall deposit with
the
Escrow Agent, on behalf of the Participating Rights Holders (i) ten (10%)
percent of the Initial Parent Shares (the “Indemnity
Escrowed Shares”)
and
(ii) five (5%) percent of the Initial Parent Shares (the “Adjustment
Escrowed Shares,”
and
together with the Indemnity Escrow Shares, the “Escrowed
Shares”).
The
Company Representative shall deliver to the Escrow Agent and Parent a schedule
setting forth the name of each Participating Rights Holder and the portion
of
such Escrowed Shares to which each such Participating Rights Holder will be
entitled upon release of the Escrowed Shares to the Participating Rights Holders
in accordance with this Escrow Agreement. The Escrow Agent shall keep a ledger
of the amount of Escrowed Shares held on behalf of each Participating Rights
Holder as amounts are added to the Escrowed Shares or amounts of the Escrowed
Shares are distributed from time to time in accordance with Sections 3 and
4 of
this Article II. Such ledger shall be made available to Parent and the Company
Representative for inspection and copying from time to time during any period
that the Escrow Agent is in possession of Escrowed Shares
hereunder.
|
2.
|
Holding
of Escrowed Shares
|
Until
the
termination of this Escrow Agreement and the release of the Escrowed Shares,
the
Escrow Agent shall hold all the Escrowed Shares in trust, and solely for the
benefit of the Indemnified Parties and the Participating Rights Holders. The
Escrow Agent shall not be permitted or authorized to sell or otherwise transfer
any Escrowed Shares except as provided in Sections 3 and 4 of this Article
II.
|
3.
|
Distribution
of Indemnity Escrowed
Shares
|
|
The
Escrow Agent is directed to hold and distribute the Indemnity Escrowed
Shares in the following manner:
|
|
(a)
|
Subject
to the provisions of paragraphs (b), (c), (d), (e), (f) and (g) below,
the
Escrow Agent shall release all of the Indemnity Escrowed Shares to
the
Exchange Agent, for distribution by the Exchange Agent to the
Participating Rights Holders, on the earlier of (i) the third Business
Day
following the date of receipt by the Escrow Agent of non-conflicting
written instructions from the Company Representative and Parent directing
the Escrow Agent to release such Indemnity Escrowed Shares, and (ii)
the
date that is eighteen (18) months after the Closing Date, or if such
date
is not a Business Day, then on the next Business Day therafter (the
earlier of (i) or (ii), the “Release
Date”);
provided,
that the Escrow Agent shall not release to the Exchange Agent any
Indemnity Escrowed Shares that are the subject of a pending
Indemnification Claim (as defined below). Parent and the Company
Representative will provide the Escrow Agent with at least 5 Business
Days
but not more than 20 calendar days written notice of the Release
Date.
|
|
(b)
|
From
time to time prior to the Release Date and subject to the provisions
of
paragraphs (c) and (d) below, an Indemnified Party, concurrently
with or
at any time after the delivery of a Claim Certificate to the Company
Representative pursuant to Section 8.4 of the Merger Agreement, may
deliver to the Escrow Agent a written notice (an “Indemnification
Notice”)
requesting that the Escrow Agent count toward the $1,000,000 deductible
provided for in the Merger Agreement (the “Deductible
Amount”)
or release to Parent all or a portion of the Indemnity Escrowed Shares
equal to the amount of the Losses that such Indemnified Party has
suffered
or incurred (or reasonably estimates in good faith that such Indemnified
Party is likely to suffer or incur) in connection with a pending
claim
specified in such Claim Certificate for which the Indemnified Party
is
seeking indemnification under Article VII of the Merger Agreement
(an
“Indemnification
Claim”),
along with a delivery receipt or other proof of delivery of a copy
of such
notice to the Company Representative in accordance with Section 5 of
this Article II. Such Indemnification Notice shall attach a copy
of the
Claim Certificate and shall indicate which obligations under Article
VIII
of the Merger Agreement are the subject of such Indemnification
Claim.
|
2
|
(c)
|
If
the Escrow Agent is not in actual receipt of a written objection
from the
Company Representative to any such Indemnification Claim within thirty
(30) days following the date of the Escrow Agent’s actual receipt of such
Indemnification Notice, the Escrow Agent shall treat such Indemnification
Claim as an Agreed Claim in the amount specified in such Indemnification
Claim and on the third Business Day after the thirtieth (30th)
day following such actual receipt, the Escrow Agent shall release
to
Parent all or a portion of the Indemnity Escrowed Shares as specified
in
the Indemnification Notice with a value, as determined pursuant to
Section
3(g) of this Article II, equal to the Losses specified in the
Indemnification Notice.
|
|
(d)
|
If
the Escrow Agent is in actual receipt of a written objection from
the
Company Representative to an Indemnification Claim within thirty
(30) days
following the date of the Escrow Agent’s actual receipt of such
Indemnification Claim, the Escrow Agent shall make no release pursuant
to
this Section 3 of any Indemnity Escrowed Shares in respect of the
amount of Loss specified in the Indemnification Claim to Parent until
(i)
it has received joint written instructions from the Company Representative
and the Indemnified Party as to the number of Indemnity Escrowed
Shares,
if any, to be released with respect to the Indemnification Claim,
and the
party or parties to whom such Indemnity Escrowed Shares should be
released; (ii) it has received joint written instructions from the
Company
Representative and the Indemnified Party as to the value of an
Indemnification Claim together with a statement that the Deductible
Amount
has not been exceeded and a statement as to the cumulative amount
of
Indemnification Claims to date that have been resolved pursuant to
paragraph (c) above and this paragraph (d) (the “Cumulative
Amount”);
or (iii) it has received a copy of the determination of the independent
mediator pursuant to Section 8.4(b) of the Merger Agreement and such
determination states that the Cumulative Amount has exceeded the
Deductible Amount or that the Deductible Amount is not applicable
because
the Indemnification Claim is for a loss covered by Section 8.2(b)
or (c)
of the Merger Agreement. Within 10 Business Days after the satisfaction
of
clause (i) or (iii) above, the Escrow Agent shall release the portion
of
the Indemnity Escrowed Shares, valued in accordance with paragraph (g)
below, equal to (A) the number of Indemnity Escrowed Shares set forth
in
the joint written instructions or (B), in the cause of clause (iii)
above
the amount determined by the
mediator.
|
|
(e)
|
Unless
otherwise specified in an Indemnification Notice, or as otherwise
directed
by the joint written instructions of Parent and the Company Representative
or the mediator ordering such release, the amount of any release
of
Escrowed Shares to Parent pursuant to this Section 3 in connection
with an
Indemnification Claim made by the Indemnified Party shall be deducted
from
each Participating Rights Holder’s share of such Escrowed Shares on a pro
rata basis, based on each Participating Rights Holder’s proportional share
of such Escrowed Shares originally deposited pursuant to Section
1 of this
Article II. The Escrow Agent shall send a written confirmation of
such
release to the Company Representative within three (3) days after
the
consummation of such release.
|
3
|
(f)
|
Any
distribution of all or a portion of any Escrowed Shares shall be
made by
delivery of the stock certificate held by the Escrow Agent representing
such Escrowed Shares to the Exchange Agent, endorsed for transfer,
with
instructions to the Exchange Agent to transfer the aggregate number
of
Escrowed Shares being distributed, and, if less than all the then
remaining Escrowed Shares are to be so distributed and transferred,
the
Escrow Agent shall instruct the Exchange Agent to issue and return
to the
Escrow Agent (or its nominee, if the Escrow Agent shall so instruct)
a
stock certificate representing the remaining Escrowed Shares. The
Escrow
Agent shall have no liability for the actions or omissions of, or
any
delay on the part of, Parent or the Exchange Agent in connection
with the
foregoing. Nor shall the Escrow Agent have any liability for the
actions
of the Company Representative in connection with any distribution
to the
Participating Rights Holders.
|
|
(g)
|
For
purposes of determining the amount of Indemnity Escrowed Shares to
be
distributed to Parent, the value of the Indemnity Escrowed Shares
shall be
determined based on the average closing price of Parent Common Stock
on
the American Stock Exchange for the ten (10) trading day period ending
on
the day prior to the release of such Indemnity Escrowed
Shares.
|
| 4. |
Distribution
of Adjustment Escrowed
Shares
|
|
(a)
|
The
Escrow Agent shall release the Adjustment Escrowed Shares upon receipt
by
the Escrow Agent of written authorization from Parent authorizing
the
Escrow Agent to (i) deliver to Parent all or a portion of the Adjustment
Escrowed Shares and (ii) to deliver to the Exchange Agent for distribution
to the Participating Rights Holders the remaining portion, if any,
of the
Adjustment Escrowed Shares.
|
|
(b)
|
The
value of any Adjustment Escrowed Shares to be distributed to pursuant
to
this Section 4 shall be based on the Parent Stock
Price.
|
| 5. |
Addresses
|
|
Notices,
instructions and other communications shall be sent in the manner
provided
in Section 8 of Article III (Terms and Conditions) and addressed
to the
following addresses (or at such other address for a party as shall
be
specified by like notice):
|
4
|
if
to the Escrow Agent:
|
American
Stock Transfer & Trust Company
00
Xxxxxx
Xxxx, Xxxxx Xxxxx
Xxx
Xxxx,
XX 00000
Attention:
Xxxxxxx X. Xxxxxx
|
if
to Parent or Merger Sub:
|
BCE
Place, 000 Xxx Xxxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxxxx, Xxxxxx X0X 0X0
Attention:
Gord X. XxXxxxxx
|
with
a copy to (which shall not be necessary for such notice, instruction
or
communication to be effective):
|
Xxxxxxx
XxXxxxxxx LLP
000
Xxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxx X. Xxxxxxx
|
if
to the Company Representative:
|
Xxxxx
X.
Xxxxxxx
|
000
Xxxxx Xxxxxx, Xxxxx 0000
|
Xxx
Xxxx,
XX 00000
6. Compensation
|
(a)
|
At
the time of execution of this Escrow Agreement, Parent shall bear
the
Escrow Agent fee of $7,500.
|
|
(b)
|
Parent
shall be responsible for and shall reimburse the Escrow Agent upon
demand
for all expenses, disbursements and advances incurred or made by
the
Escrow Agent in connection with this Escrow
Agreement.
|
7. Concerning
the Escrowed Shares
|
(a)
|
All
of the Escrowed Shares shall be issued in the name of the Escrow
Agent as
Escrow Agent hereunder.
|
|
(b)
|
All
voting rights of the Escrowed Shares held by the Escrow Agent shall
be
exercised by the Escrow Agent in accordance with instructions from
the
Participating Rights Holders to whom such shares would be released
if all
Escrowed Shares were to be released to the Participating Rights Holders
at
that time, as set forth on Exhibit
1,
as amended from time to time, unless and until such Escrowed Shares
are
released pursuant to Sections 3 or 4 of this Article II. Such voting
rights shall be exercised in accordance with this Section 7 and with
the
Escrow Agent’s other standard procedures adopted from time to
time.
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5
|
(c)
|
The
Participating Rights Holders shall not be permitted to transfer any
of the
Escrowed Shares; provided,
that the Participating Rights Holders may transfer their beneficial
interests in the Escrowed Shares at any time. Any such transfer of
a
Participating Rights Holder’s beneficial interest in his, her or its
Escrowed Shares shall not affect any Indemnified Parties’ rights hereunder
to make an Indemnification Claim with respect to such Escrowed Shares
or
the Escrow Agent’s record ownership of such Escrowed
Shares.
|
|
(d)
|
The
Escrow Agent does not and will not own or have any interest in the
Escrowed Shares, but is serving as escrow holder, having only possession
thereof and agreeing to hold and distribute the Escrowed Shares in
accordance with the terms and conditions set forth herein. Neither
the
Escrow Agent nor its nominee, if applicable, shall be under any duty
to
take any action to preserve, protect, exercise or enforce any rights or
remedies under or with respect to the Escrowed Shares (including
without
limitation with respect to the exercise of any voting or consent
rights,
conversion or exchange rights, defense of title, preservation of
rights
against prior matters or otherwise). The Escrow Agent shall not be
under
any duty or responsibility to notify the Company Representative with
respect to, or to take any action with respect to, any notice,
solicitation or other document or information, written or otherwise,
received from an issuer or other person with respect to the Escrowed
Shares, including but not limited to, proxy material, tenders, options,
the pendency of calls and maturities and expiration of rights.
|
III.
TERMS AND CONDITIONS:
|
1.
|
The
duties, responsibilities and obligations of the Escrow Agent shall
be
limited to those expressly set forth herein and no duties,
responsibilities or obligations shall be inferred or implied. The
Escrow
Agent shall not be subject to, nor required to comply with, any other
agreement between or among Parent, Merger Sub, the Company or the
Company
Representative or to which any of them is a party, even though reference
thereto may be made herein, or to comply with any direction or instruction
(other than those contained herein or delivered in accordance with
this
Escrow Agreement) from Parent or the Company Representative or any
entity
acting on its or his behalf. The Escrow Agent shall not be required
to,
and shall not, expend or risk any of its own funds or otherwise incur
any
financial liability in the performance of any of its duties
hereunder.
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2.
|
This
Escrow Agreement is for the exclusive benefit of the parties hereto
and
their respective successors hereunder, and shall not be deemed to
give,
either express or implied, any legal or equitable right, remedy,
or claim
to any other entity or person
whatsoever.
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6
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3.
|
At
any time the Escrow Agent is served with any judicial or administrative
order, judgment, decree, writ or other form of judicial or administrative
process which in any way affects Escrowed Shares (including but not
limited to orders of attachment or garnishment or other forms of
levies or
injunctions or stays relating to the transfer of Escrowed Shares),
the
Escrow Agent is authorized to comply therewith in any manner as it
or its
legal counsel of its own choosing reasonably deems appropriate; and
if the
Escrow Agent complies with any such judicial or administrative order,
judgment, decree, writ or other form of judicial or administrative
process, the Escrow Agent shall not be liable to any of the parties
hereto
or to any other person or entity even though such order, judgment,
decree,
writ or process may be subsequently modified or vacated or otherwise
determined to have been without legal force or effect.
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4.
|
(a)
|
The
Escrow Agent shall not be liable for any action taken or omitted
or for
any loss or injury resulting from its actions or its performance
or lack
of performance of its duties hereunder in the absence of gross negligence
or willful misconduct on its part. In no event shall the Escrow Agent
be
liable (i) for acting in accordance with or relying upon any instruction,
notice, demand, certificate or document from Parent or the Company
Representative or any entity acting on behalf of Parent or the Company
Representative; provided,
that Parent or the Company Representative was acting in accordance
with
the terms of this Escrow Agreement and did not exceed its specific
authority hereunder when it delivered such instruction, notice, demand,
certificate or document to the Escrow Agent; (ii) for any consequential,
punitive or special damages; or (iii) for an amount in excess of
the value
of the Escrowed Shares, valued as of the date of
deposit.
|
|
(b)
|
If
any fees, expenses or costs incurred by, or any obligations owed
to, the
Escrow Agent hereunder are not promptly paid when due, the Escrow
Agent
may reimburse itself therefor from the Escrowed Shares and may sell,
convey or otherwise dispose of any Escrowed Shares for such purpose;
provided,
that any such reimbursement shall not prejudice the right of the
Company
Representative to payment by Parent to the extent of its liability
therefor or the right of Parent to payment by the Company Representative
to the extent of its liability therefor.
|
|
(c)
|
As
security for the due and punctual performance of Parent’s obligations to
the Escrow Agent hereunder, now or hereafter arising, Parent hereby
pledges, assigns and grants to the Escrow Agent a continuing security
interest in, and a lien on, the Escrowed Shares. The security interest
of
the Escrow Agent shall at all times be valid, perfected and enforceable
by
the Escrow Agent against Parent and all third parties in accordance
with
the terms of this Escrow Agreement; provided,
that the Escrow Agent’s exercise of such security interest shall not
prejudice the right of the Company Representative to reimbursement
or
other payment by Parent to the extent of its liability therefor or
the
right of Parent to payment by the Company Representative to the extent
of
its liability therefor.
|
|
(d)
|
The
Escrow Agent may consult with legal counsel at the reasonable expense
of
Parent as to any matter relating to this Escrow Agreement, and the
Escrow
Agent shall not incur any liability in acting in good faith in accordance
with any advice from such counsel, except as set forth herein.
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7
|
(e)
|
The
Escrow Agent shall not incur any liability for not performing any
act or
fulfilling any duty, obligation or responsibility hereunder, if prevented
from doing so by reason of any occurrence beyond the control of the
Escrow
Agent (including but not limited to any act or provision of any present
or
future law or regulation or governmental authority, any act of God
or war,
or the unavailability of the Federal Reserve Bank wire or telex or
other
wire or communication facility).
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|
5.
|
Unless
otherwise specifically set forth herein, the Escrow Agent shall proceed
as
soon as practicable to collect any checks or other collection items
at any
time deposited hereunder. All such collections shall be subject to
the
Escrow Agent’s usual collection practices or terms regarding items
received by the Escrow Agent for deposit or collection. The Escrow
Agent
shall not be required, or have any duty, to notify anyone of any
payment
or maturity under the terms of any instrument deposited hereunder,
nor to
take any legal action to enforce payment of any check, note or security
deposited hereunder or to exercise any right or privilege which may
be
afforded to the holder of any such
security.
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6.
|
The
Escrow Agent shall provide to Parent and the Company Representative
monthly statements identifying transactions, transfers or holdings
of
Escrowed Shares and each such statement shall be deemed to be correct
and
final upon receipt thereof by the Parent and the Company Representative
unless the Escrow Agent is notified in writing to the contrary by
either
Parent or the Company Representative within thirty (30) Business
Days of
the date of such statement. Nothing contained herein shall in any
way
limit the Escrow Agent’s duties under Article II
hereof.
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|
7.
|
The
Escrow Agent shall not be responsible in any respect for the form,
execution, validity, value or genuineness of documents or securities
deposited hereunder, if any, or for any description therein, or for
the
identity, authority or rights of persons executing or delivering
or
purporting to execute or deliver any such document, security or
endorsement.
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8.
|
Notices,
instructions or other communications shall be in writing and shall
be
given to the address set forth in the “Addresses” provision herein.
Notices to the Escrow Agent shall be deemed to be given when actually
received by the Escrow Agent’s Corporate Trust Department. The Escrow
Agent is authorized to comply with and rely upon any notices, instructions
or other communications reasonably believed by it to have been sent
or
given by any other party hereto or by a person or persons authorized
by
such party; provided,
that such party or person was acting in accordance with the terms
of this
Escrow Agreement and did not exceed its specific authority hereunder
when
it delivered such notice, instructions or other communication. Whenever
under the terms hereof the time for giving a notice or performing
an act
falls upon a Saturday, Sunday, or banking holiday, such time shall
be
extended to the next day on which the Escrow Agent is open for
business.
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8
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9.
|
Parent
shall be liable for and shall reimburse and indemnify the Escrow
Agent and
hold the Escrow Agent harmless from and against any and all Losses,
including defense costs, arising from or in connection with or related
to
this Escrow Agreement or being the Escrow Agent hereunder (including
but
not limited to Losses incurred by the Escrow Agent in connection
with its
successful defense, in whole or in part, of any claim of gross negligence
or willful misconduct on its part); provided,
however,
that nothing contained herein shall require the Escrow Agent to be
indemnified for Losses caused by its gross negligence or willful
misconduct.
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10.
|
(a)
|
Parent
may remove the Escrow Agent at any time by giving to the Escrow Agent
thirty (30) calendar-days’ prior notice in writing signed by Parent. The
Escrow Agent may resign at any time by giving to Parent thirty (30)
calendar-days’ prior written notice thereof.
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(b)
|
Within
10 calendar days after giving the foregoing notice of removal to
the
Escrow Agent or receiving the foregoing notice of resignation from
the
Escrow Agent, Parent shall appoint a successor to the Escrow Agent.
If a
successor to the Escrow Agent has not accepted such appointment by
the end
of such 10-day period, the Escrow Agent shall apply to a court of
competent jurisdiction for the appointment of a successor to the
Escrow
Agent or for other appropriate relief. The costs and expenses (including
reasonable attorneys’ fees and expenses) incurred by the Escrow Agent in
connection with such proceeding shall be paid by Parent.
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(c)
|
Upon
receipt of the identity of the successor to the Escrow Agent, the
Escrow
Agent shall either deliver the Escrowed Shares then held hereunder
to the
successor to the Escrow Agent, less the Escrow Agent’s fees, costs and
expenses or other obligations owed to the Escrow Agent, or hold such
Escrowed Shares (or any portion thereof), pending distribution, until
all
such fees, costs and expenses or other obligations are paid.
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(d)
|
Upon
delivery of the Escrowed Shares to successor to the Escrow Agent,
the
Escrow Agent shall have no further duties, responsibilities or obligations
hereunder.
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11.
|
(a)
|
In
the event of any ambiguity or uncertainty hereunder or in any notice,
instruction or other communication received by the Escrow Agent hereunder,
the Escrow Agent may, in its sole discretion, refrain from taking
any
action other than retain possession of the Escrowed Shares, unless
the
Escrow Agent receives written instructions, signed by Parent and
the
Company Representative, which eliminates such ambiguity or uncertainty.
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9
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(b)
|
In
the event of any dispute between or conflicting claims by or among
Parent
and the Company Representative or any other person or entity with
respect
to any Escrowed Shares, the Escrow Agent shall be obligated to act
in
accordance with Sections 3 and 4 of Article II hereof. The costs
and
expenses (including reasonable attorneys’ fees and expenses) incurred in
connection with such proceeding shall be paid by
Parent.
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12.
|
This
Escrow Agreement shall be interpreted, construed, enforced and
administered in accordance with the internal substantive laws (and
not the
choice of law rules) of the State of Delaware. Each of the parties
hereto
hereby submits to the personal jurisdiction of and each agrees that
all
proceedings relating hereto shall be brought in courts located within
the
State of Delaware. Each of the parties hereto hereby waives the right
to
trial by jury. To the extent that in any jurisdiction any party hereto
may
be entitled to claim, for itself or its assets, immunity from suit,
execution, attachment (whether before or after judgment) or other
legal
process, each hereby irrevocably agrees not to claim, and hereby
waives,
such immunity. Each party hereto waives personal service of process
and
consents to service of process by certified or registered mail, return
receipt requested, directed to it at the address last specified for
notices hereunder, and such service shall be deemed completed ten
(10)
calendar days after the same is so
mailed.
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13.
|
Except
as otherwise permitted herein, this Escrow Agreement may be modified
only
by a written amendment signed by all the parties hereto, and no waiver
of
any provision hereof shall be effective unless expressed in a writing
signed by the party to be charged.
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14.
|
The
rights and remedies conferred upon the parties hereto shall be cumulative,
and the exercise or waiver of any such right or remedy shall not
preclude
or inhibit the exercise of any additional rights or remedies. The
waiver
of any right or remedy hereunder shall not preclude the subsequent
exercise of such right or remedy.
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15.
|
Each
of Parent, Merger Sub and the Company Representative hereby represents
and
warrants (a) that this Escrow Agreement has been duly authorized,
executed
and delivered on its behalf and constitutes its legal, valid and
binding
obligation and (b) that the execution, delivery and performance of
this
Escrow Agreement by Parent, Merger Sub and the Company Representative
do
not and will not violate any applicable law or regulation. The Escrow
Agent hereby represents and warrants (a) that this Escrow Agreement
has
been duly authorized, executed and delivered on its behalf and constitutes
its legal, valid and binding obligation and (b) that the execution,
delivery and performance of this Escrow Agreement by the Escrow Agent
do
not and will not violate any applicable law or
regulation.
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16.
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The
invalidity, illegality or unenforceability of any provision of this
Escrow
Agreement shall in no way affect the validity, legality or enforceability
of any other provision; and if any provision is held to be unenforceable
as a matter of law, the other provisions shall not be affected thereby
and
shall remain in full force and
effect.
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10
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17.
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This
Escrow Agreement shall constitute the entire agreement of the parties
with
respect to the subject matter and supersedes all prior oral or written
agreements in regard thereto.
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18.
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This
Escrow Agreement shall terminate upon the distribution of all Escrowed
Shares. The provisions of Sections 9 and 22 of this Article III shall
survive termination of this Escrow Agreement or the resignation or
removal
of the Escrow Agent.
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19.
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Except
as necessary or desirable for securing stockholder consents in connection
with the Merger Agreement, or the transactions contemplated thereby,
no
printed or other material in any language, including prospectuses,
notices, reports, and promotional material which mentions the Escrow
Agent
by name or the rights, powers, or duties of the Escrow Agent under
this
Escrow Agreement, shall be issued by any other parties hereto, or
on such
party’s behalf, without the prior written consent of the Escrow
Agent.
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20.
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The
headings contained in this Escrow Agreement are for convenience of
reference only and shall have no effect on the interpretation or
operation
hereof.
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21.
|
This
Escrow Agreement may be executed by each of the parties hereto in
any
number of counterparts, each of which counterpart, when so executed
and
delivered, shall be deemed to be an original and all such counterparts
shall together constitute one and the same
agreement.
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22.
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The
Escrow Agent does not have any interest in the Escrowed Shares deposited
hereunder but is serving as escrow holder only and having only possession
thereof. Parent shall pay or reimburse the Escrow Agent upon request
for
any transfer taxes or other taxes relating to the Escrowed Shares
incurred
in connection herewith and shall indemnify and hold harmless the
Escrow
Agent for any amounts that it is obligated to pay in the way of such
taxes. The parties hereto will provide the Escrow Agent with appropriate
W-9 forms for tax I.D., number certifications, or W-8 forms for
non-resident alien certifications. It is understood that the Escrow
Agent
shall be responsible for income reporting only with respect to income
earned on investment of funds which are a part of the Escrowed Shares
and
is not responsible for any other reporting. For tax reporting purposes,
all income earned from the investment of the Escrowed Shares in any
tax
year shall be allocated to the Participating Rights
Holders.
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[Signature
page follows]
11
IN
WITNESS WHEREOF, each of the parties has caused this Escrow Agreement to be
executed by a duly authorized officer as of the day and year first written
above.
TWF
ACQUISITION CORPORATION
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By:
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Name:
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Title:
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COMPANY
REPRESENATIVE
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Xxxxx
X. Xxxxxxx
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AMERICAN
STOCK TRANSFER & TRUST COMPANY, as Escrow Agent
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By:
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Name:
Xxxxxxx X. Xxxxxx
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12
