Exhibit 10.5
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this "Agreement") is made as of February 28, 2007,
by and among Sibling Theatricals, Inc., a Delaware corporation (a wholly owned
subsidiary of Sibling Entertainment Group, Inc., a New York corporation)
("Buyer"), Xxxx Xxxxxx Productions, Inc., a Nevada corporation (the "Company")
and, Xxxx Xxxxxx, an individual resident in Nevada ("DF") and Xxxxx Xxxxxx, an
individual resident in Nevada ("LF") collectively, DF and LF are sometimes
herein referred to as the "Sellers," and the Law firm of Xxxx Doechung Xxx,
Chtd., a Nevada Professional corporation, and Xxxxxx & Xxxxxx, LLP (each
individually as the "Escrow Agent").
WHEREAS, Sellers desire to sell, and Buyer desires to purchase 10,000
Shares from each of the Sellers, or an aggregate of twenty thousand (20,000)
Shares (the "Shares"), representing eighty (80%) percent of the Shares, for the
consideration and on the terms set forth in the Stock Purchase and Shareholders'
Agreement ("Purchase Agreement") executed among the parties on the date hereof;
WHEREAS, the Seller has deposited the Shares and medallion guaranteed
stock powers for the Shares, to be held in escrow by the Escrow Agent to be
distributed in accordance with the terms of this Agreement;
NOW, THEREFORE, in consideration of the covenants and mutual promises
contained herein and other good and valuable consideration, the receipt and
legal sufficiency of which are hereby acknowledged and intending to be legally
bound hereby, the parties agree as follows:
ARTICLE I
TERMS OF ESCROW
1.1 The parties hereby agree to establish an escrow account with the
Escrow Agent whereby the Escrow Agent shall hold the Shares subject to this
Agreement.
1.2 Upon confirmation by the Sellers of receipt of the Second Installment
(as defined in the Purchase Agreement), the Shares shall be transferred to the
Buyer's counsel, Xxxxxx & Xxxxxx, LLP, who shall then serve as the Escrow Agent
and be subject to the terms and provisions herein in such capacity.
1.3 Upon confirmation by the Sellers of receipt of the Third Installment
(as defined in the Purchase Agreement), the Shares shall be released by the
Escrow Agent to the Buyers.
1.4 In the Event that any of the Installment Payments (as defined in the
Purchase Agreement) are not made to the Sellers in accordance with Section 2.2
of the Purchase Agreement, the Shares shall be released to the Sellers in
accordance with Section 11.17 of the Purchase Agreement, and the Escrow Agent
shall be discharged of all of its obligations under this Agreement and shall
have no liability to any other party to this Agreement.
1.5 The Escrow Agent shall not incur any liability whatsoever for acting
upon any notice, direction, waiver, receipt, consent, certificate,
authorization, power of attorney or other paper or document purporting and
believed by the Escrow Agent to be genuine and to be signed and presented by the
proper person or persons.
1.6 The parties acknowledge that, although the Escrow Agent is holding the
Shares, Escrow Agent is acting solely as a stakeholder at their request and for
their convenience and that Escrow Agent shall not be liable to either party for
any act or omission on its part unless taken or suffered in bad faith or in
willful disregard of this contract or involving gross negligence on the part of
Escrow Agent.
ARTICLE II
MISCELLANEOUS
2.1 No waiver of any breach of any covenant or provision herein contained
shall be deemed a waiver of any preceding or succeeding breach thereof, or of
any other covenant or provision herein contained. No extension of time for
performance of any obligation or act shall be deemed an extension of the time
for performance of any other obligation or act.
2.2 All notices or other communications required or permitted hereunder
shall be in writing, and shall be sent by fax, overnight courier, registered or
certified mail, postage prepaid, return receipt requested, and shall be deemed
received upon receipt thereof, at the addresses provided by the parties from
time to time.
2.3 This Escrow Agreement shall be binding upon and shall inure to the
benefit of the permitted successors and permitted assigns of the parties hereto.
2.4 This Escrow Agreement is the final expression of, and contains the
entire agreement between, the parties with respect to the subject matter hereof
and supersedes all prior understandings with respect thereto. This Escrow
Agreement may not be modified, changed, supplemented or terminated, nor may any
obligations hereunder be waived, except by written instrument signed by the
parties to be charged or by their respective agents duly authorized in writing
or as otherwise expressly permitted herein.
2.5 Whenever required by the context of this Escrow Agreement, the
singular shall include the plural and masculine shall include the feminine. This
Escrow Agreement shall not be construed as if it had been prepared by one of the
parties, but rather as if both parties had prepared the same. Unless otherwise
indicated, all references to Articles are to this Escrow Agreement.
2.6 The corporate laws of the State of Nevada shall govern all issues
concerning the relative rights of the Company and its shareholders. All other
questions concerning the construction, validity, enforcement and interpretation
of this Agreement and the other Transaction Documents shall be governed by the
internal laws of the State of New York, without giving effect to any choice of
law or conflict of law provision or rule (whether of the State of New York or
any other jurisdictions) that would cause the application of the laws of any
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jurisdictions other than the State of New York. Each party hereby irrevocably
submits to the exclusive jurisdiction of the state and federal courts sitting in
the City of New York, for the adjudication of any dispute hereunder or under the
other Transaction Documents or in connection herewith or therewith, or with any
transaction contemplated hereby or discussed herein, and hereby irrevocably
waives, and agrees not to assert in any suit, action or proceeding, any claim
that it is not personally subject to the jurisdiction of any such court, that
such suit, action or proceeding is brought in an inconvenient forum or that the
venue of such suit, action or proceeding is improper.
2.7 The Escrow Agent's duties hereunder may be altered, amended, modified
or revoked only by a writing signed by the Buyer, Seller and the Escrow Agent.
2.8 The Escrow Agent shall be obligated only for the performance of such
duties as are specifically set forth herein and may rely and shall be protected
in relying or refraining from acting on any instrument reasonably believed by
the Escrow Agent to be genuine and to have been signed or presented by the
proper party or parties. The Escrow Agent shall not be personally liable for any
act the Escrow Agent may do or omit to do hereunder as the Escrow Agent while
acting in good faith, excepting only its own willful misconduct, and any act
done or omitted by the Escrow Agent pursuant to the advice of the Escrow Agent's
attorneys-at-law (other than Escrow Agent itself) shall be conclusive evidence
of such good faith.
2.9 The Escrow Agent is hereby expressly authorized to disregard any and
all warnings given by any of the parties hereto or by any other person or
corporation, excepting only orders or process of courts of law and is hereby
expressly authorized to comply with and obey orders, judgments or decrees of any
court. In case the Escrow Agent obeys or complies with any such order, judgment
or decree, the Escrow Agent shall not be liable to any of the parties hereto or
to any other person, firm or corporation by reason of such decree being
subsequently reversed, modified, annulled, set aside, vacated or found to have
been entered without jurisdiction.
2.10 The Escrow Agent shall not be liable in any respect on account of the
identity, authorization or rights of the parties executing or delivering or
purporting to execute or deliver the Purchase Agreement or any documents or
papers deposited or called for thereunder or hereunder.
2.11 The Escrow Agent shall be entitled to employ such legal counsel, and
other experts as the Escrow Agent may deem necessary properly to advise the
Escrow Agent in connection with the Escrow Agent's duties hereunder, may rely
upon the advice of such counsel, and may pay such counsel reasonable
compensation therefore. The Escrow Agent has acted as legal counsel for the
Sellers, and may continue to act as legal counsel for the Sellers from time to
time, notwithstanding its duties as the Escrow Agent hereunder. Each Buyer
consents to the Escrow Agent in such capacity as legal counsel for the Sellers
and waives any claim that such representation represents a conflict of interest
on the part of the Escrow Agent. Buyer understands and acknowledges that the
Escrow Agent and the Sellers are relying explicitly on the foregoing provision
in entering into this Escrow Agreement.
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2.12 The Escrow Agent's responsibilities as escrow agent hereunder shall
terminate if the Escrow Agent shall resign by written notice to all parties to
this Agreement. In the event of any such resignation, Buyers shall appoint a
successor Escrow Agent.
2.13 If the Escrow Agent reasonably requires other or further instruments
in connection with this Escrow Agreement or obligations in respect hereto, the
necessary parties hereto shall join in furnishing such instruments.
2.14 It is understood and agreed that should any dispute arise with
respect to the delivery and/or ownership or right of possession of the Shares
held by the Escrow Agent hereunder, the Escrow Agent is authorized and directed
in the Escrow Agent's sole discretion (i) to retain in the Escrow Agent's
possession without liability to anyone all or any part of the Shares until such
disputes shall have been settled either by mutual written agreement of the
parties concerned by a final order, decree or judgment of a board of arbitration
or a court of competent jurisdiction after the time for appeal has expired and
no appeal has been perfected, but the Escrow Agent shall be under no duty
whatsoever to institute or defend any such proceedings, or (ii) to deliver the
Shares and any other property and documents held by the Escrow Agent hereunder
to a state or Federal court having competent subject matter jurisdiction and
located in the City and State of New York in accordance with the applicable
procedure therefore.
2.15 The parties agree jointly and severally to indemnify and hold
harmless the Escrow Agent and its partners, employees, agents and
representatives from any and all claims, liabilities, costs or expenses
(including reasonable attorneys' fees) in any way arising from or relating to
the duties or performance of the Escrow Agent hereunder or the transactions
contemplated hereby, other than any such claim, liability, cost or expense to
the extent the same shall have been determined by final, nonappealable judgment
of a court of competent jurisdiction to have resulted from the gross negligence
or willful misconduct of the Escrow Agent.
2.17 Time is of the essence of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Escrow Agreement
as of this 28th day of February, 2007.
ESCROW AGENT:
THE LAW FIRM OF XXXX DOECHUNG XXX, CHTD.
By: /s/ Xxxx X. Xxx
-------------------------------------
XXXXXX & JACLIN, LLP
By: /s/ Xxxxxxxx Xxxxxxx
-------------------------------------
SELLERS:
/s/ Xxxx Xxxxxx /s/ Xxxxx Xxxxxx
----------------------------------------- ----------------------------
Xxxx Xxxxxx Xxxxx Xxxxxx
BUYER:
Sibling Theatricals, Inc.
By: /s/ Xxxxxxxx Xxxxxxx
-------------------------------------
Name: Xxxxxxxx Xxxxxxx
Title: President
THE COMPANY:
Xxxx Xxxxxx Productions, Inc.
By: /s/ Xxxx Xxxxxx
-------------------------------------
Name: Xxxx Xxxxxx
Title: President
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