ESCROW AGREEMENT
Exhibit
99.4
EXECUTION
VERSION
This
Escrow Agreement (this “Agreement”)
dated
as of July 31, 2007, is made by and among, WAKO LOGISTICS GROUP, INC. (the
“WAKO”),
XXXX
XXXXXXXXXX (“Remo”)
and
XXXX XXXXXXXXXX (“Xxxx”,
each
of Remo and Xxxx shall be referred to herein individually as a “Seller”
and
collectively as the “Sellers”)
and
LaSalle Bank, as Escrow Agent (the “Escrow
Agent”).
RECITALS
WHEREAS,
pursuant to a Membership Interest Purchase Agreement (the
“Purchase
Agreement”)
by and
among World Commerce Services, LLC (the “World
Commerce”),
WAKO
and the Sellers, whereby the WAKO shall purchase from the Sellers all right,
title and interests of the Sellers in and to the World Commerce membership
interests (the “Membership
Interests”),
and
in consideration for the Membership Interests, WAKO shall transfer to the
Sellers the Purchase Price in accordance with the terms of the Purchase
Agreement.
WHEREAS,
pursuant to Section
3.2
of the
Purchase Agreement WAKO shall issue the Escrow Shares in the name of the Sellers
and deposit the Escrow Shares directly into an Escrow Account and held by the
Escrow Agent;
WHEREAS,
pursuant to Section
9.5
of the
Purchase Agreement, WAKO shall have a claim against the Escrow Shares held
in
the Escrow Account with respect to any Losses for which the Sellers are
obligated to indemnify WAKO;
WHEREAS,
a
material condition to the consummation of the transactions contemplated by
the
Purchase Agreement is that the parties hereto enter into this
Agreement.
AGREEMENT
NOW
THEREFORE,
for
good and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the parties hereby agree as follows:
SECTION
1. DEFINED TERMS
Capitalized
terms used herein without definition shall have the meanings ascribed to them
in
the Purchase Agreement, a copy of which has been delivered to Escrow Agent
solely for the purpose of allowing it to reference such
meanings.
SECTION
2. ESCROW
Pursuant
to Section
3.2
of the
Purchase Agreement the Escrow Shares shall be issued in the name of the Sellers
but shall be deposited directly by WAKO into the Escrow Account which is hereby
established, along with stock powers executed in blank by each of the Sellers,
and held by the Escrow Agent. The Escrow Shares shall be held by the Escrow
Agent in the Escrow Account in accordance with the provisions of this Agreement
and shall not be subject to any lien, attachment, trustee process or any other
judicial process of any creditor of any party hereto. Notwithstanding the
foregoing, if the Escrow Account shall be attached, garnished, or levied upon
pursuant to judicial process, or the delivery of amounts held in the Escrow
Account shall be stayed or enjoined by any court order, or any court order
shall
be made or entered into affecting the Escrow Account, or any part thereof,
the
Escrow Agent is hereby expressly authorized to obey and comply with such
judicial process or court order. In the event the Escrow Agent obeys or complies
with any judicial process or court order, it shall not be liable to any person,
firm or corporation by reason of such compliance, notwithstanding the subsequent
reversal, modification, annulment, or setting aside of such court
order.
SECTION
3.
SHAREHOLDER RIGHTS
3.1. VOTING
OF ESCROW SHARES. The Sellers shall be entitled to vote the Escrow Shares.
WAKO
shall give the Sellers at least as much notice of meetings of shareholders
or
actions by written consent in lieu of a meeting as it gives its shareholders
generally.
3.2. DIVIDENDS.
Any cash, securities (including WAKO common stock (“WAKO
Common Stock”))
or
other property distributed as a dividend in respect of any Escrow Shares shall
be paid by WAKO directly to the Sellers.
3.3. CHANGE
IN ESCROW SHARES. If, after the date of this Agreement, the Escrow Shares shall
have been changed into a different number of shares or a different type or
class
of securities, by reason of any stock dividend, subdivision, reclassification,
recapitalization, split, combination, purchase or exchange of shares, such
different number of shares or type or class of securities shall be held in
the
Escrow Account subject to the provisions of this Agreement to the same extent
as
the Escrow Shares, and the provisions of this Agreement shall be correspondingly
adjusted pursuant to joint notice from WAKO and Sellers to the extent
appropriate to reflect equitably such stock dividend, subdivision,
reclassification, recapitalization, split, combination, Purchase or exchange
of
shares.
3.4. TRANSFERABILITY.
The interests of the Sellers in the Escrow Account and in the Escrow Shares
shall not be assignable or transferable, other than by operation of law. No
transfer of any of such interests by operation of law shall be recognized or
given effect until WAKO and Escrow Agent shall have received written notice
of
such transfer.
3.5. FRACTIONAL
SHARES. No fractional shares of WAKO Common Stock shall be retained in or
released from the Escrow Account pursuant to this Agreement. In the event that
the retention or release of Escrow Shares pursuant to this Agreement results
in
fractional shares of WAKO Common Stock, such number of shares of WAKO Common
Stock to be retained or released, as the case may be, shall be rounded down
to
the nearest whole number of shares.
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SECTION
4. INDEMNIFICATION; CLAIM
PROCEDURES
4.1. INDEMNIFICATION.
Pursuant to Section
9
of the
Purchase Agreement, from and after the Closing Date, the Escrow Shares shall
be
available to compensate WAKO for Losses incurred by WAKO as an Indemnified
Party. WAKO, and the Sellers, as among themselves, expressly agree that the
Escrow Shares (i) shall be security for such indemnity obligation, subject
to
the limitations and in the manner provided for herein and in the Purchase
Agreement and (ii) are subject to release to WAKO as an Indemnified Party upon
the terms set forth in the Purchase Agreement.
4.2. CLAIM
PROCEDURE.
(a)
If WAKO as an Indemnified Party determines in good faith that there
is or has been a Claim giving rise to an indemnification obligation under
Section
9
of the
Purchase Agreement, and such WAKO wishes to make a claim against the Escrow
Shares with respect to such possible Claim, then WAKO shall deliver to the
Sellers and to the Escrow Agent a written notice of such Claim (a "Claim
Notice")
setting forth (i) a brief description of the circumstances supporting WAKO's
belief that such possible Claim exists or has occurred, and (ii) a non-binding,
preliminary estimate of the aggregate dollar amount of all Losses that have
arisen and may arise as a direct or indirect result of such possible Claims
and
the corresponding number of Escrow Shares equivalent to such Claims (such
aggregate amount being referred to as the "Claim
Amount").
(b)
If the Sellers shall object in good faith to any portion of any Claim
Amount specified in any Claim Notice, the Sellers shall, within thirty (30)
calendar days after the deemed delivery by WAKO to the Sellers of such Claim
Notice, deliver to the Escrow Agent (with a copy to WAKO) a certificate,
executed by the Sellers (a "Certificate
of Objections"):
(i)
specifying each such amount to which the Sellers
object in good faith; and
(ii) specifying
in reasonable detail the nature and basis for each such good faith
objection.
(c)
If the Escrow Agent shall not have received a Certificate of Objections
objecting to a Claim Amount within thirty (30) calendar days after delivery
to
the Sellers of a Claim Notice specifying such Claim Amount, the Sellers shall
be
deemed to have acknowledged that the Claim Amount claimed on such Claim Notice
is correct and final and the Escrow Agent shall, transfer to WAKO from the
Escrow Shares (such transfer to be applied and deducted from the Escrow Shares
pro rata in accordance with each Indemnity Seller's pro rata share of the Escrow
Shares that number
of
Escrow Shares having a value equal to the quotient of (i) the aggregate Losses
set forth in the Claim Notice divided by (ii) the Fair Market Value of one
share
of WAKO Common Stock determined in accordance with and pursuant to Section
9.5
of the
Purchase Agreement (the “Escrow
Share Value”).
For
purposes of establishing the expiration of the 30 day period set forth above,
Escrow Agent shall conclusively presume that any Claim Notice delivered to
it
was simultaneously delivered to Sellers.
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(d)
If a Certificate of Objections delivered by the Sellers in
response to a Claim Notice contains instructions to the effect that Escrow
Shares having an Escrow Share Value equal to a specified portion (but not the
entire amount) of the Claim Amount set forth in such Claim Notice are to be
transferred to WAKO, then (i) the Escrow Agent shall be authorized to release
from the Escrow Account to WAKO that number of Escrow Shares having an Escrow
Share Value equal to such specified portion of such Claim Amount, and (ii)
the
procedures set forth in Section
5.2(e)
below
shall be followed with respect to the remaining portion of such Claim
Amount.
(e)
If the Escrow Agent shall have received a Certificate of Objections
within thirty (30) calendar days after delivery to the Sellers of a Claim
Notice, disputing all or a portion of the Claim Amount set forth in such Claim
Notice (such Claim Amount or the disputed portion thereof being referred to
as
the "Disputed
Amount"),
then,
notwithstanding anything contained in Section
5
hereof,
the Escrow Agent shall continue to hold in the Escrow Account (in addition
to
any other Escrow Shares permitted to be retained in the Escrow, whether in
connection with any other dispute or otherwise), Escrow Shares having an Escrow
Share Value equal to 100% of the Disputed Amount. Such Escrow Shares shall
continue to be held in the Escrow Account until such time as either (i) the
Escrow Agent receives a settlement agreement executed by each of WAKO and the
Sellers (a “Settlement
Agreement”)
containing instructions regarding the release of such shares, or (ii) the Escrow
Agent receives a copy of a court order containing instructions to the Escrow
Agent regarding the release of such Escrow Shares accompanied by an opinion
of
counsel to the presenting party to the effect that such court order is final
and
non-appealable and is dispositive for purposes of this Agreement, upon which
opinion Escrow Agent shall conclusively rely. The Escrow Agent shall thereupon
release such Escrow Shares from the Escrow Account in accordance with the
instructions set forth in such settlement agreement or court order.
(f)
Escrow Agent is not the stock transfer agent for the Escrow
Shares. Accordingly, whenever a distribution of a number of shares of the Escrow
Shares is to be made, the Escrow Agent must requisition the appropriate number
of shares from such stock transfer agent, delivering to it the appropriate
stock
certificates. For purposes of this Agreement, the Escrow Agent shall be deemed
to have delivered the Escrow Shares to the Person entitled to it when the Escrow
Agent has delivered such certificates to such stock transfer agent with
instructions to deliver it to the appropriate person.
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SECTION
5. RELEASE OF SHARES TO
SHAREHOLDERS
5.1. RELEASE
OF ESCROW SHARES TO SHAREHOLDERS. The Escrow Agent shall release any Escrow
Shares remaining in the Escrow Account to the Sellers upon the earlier to occur
of (i) receipt of written instructions from WAKO directing Escrow Agent to
release the remaining Escrow Shares to the Sellers; or (ii) the termination
of
this Agreement pursuant to Section
7.1.
5.2. PROCEDURES
FOR RELEASING SHARES.
(a) In
the event that the Escrow Agent is required to release Escrow Shares to the
Sellers, the Escrow Agent shall be authorized to transfer to each Seller, and
shall so transfer and release to each Seller, that number of Escrow Shares
as
adjusted to the date of such release as provided herein.
(b) Any
release of Escrow Shares to the Sellers pursuant to the Purchase Agreement
hereof may be effected by mailing a stock certificate (in the appropriate name
designated by the Sellers) to the Sellers certified mail, return receipt
requested.
SECTION
6. FEES AND EXPENSES
ESCROW
AGENT FEES AND EXPENSES. The Escrow Agent's fees, as set forth on Exhibit
A
hereto,
shall be payable 50% by WAKO and 50% by the Sellers. It is understood that
the
fees and usual charges agreed upon for services of the Escrow Agent shall be
considered compensation for ordinary services as contemplated by this Agreement.
In the event that the conditions of this Agreement are not promptly fulfilled,
or if the Escrow Agent renders any service not provided for in this Agreement,
or if the parties request a substantial modification of its terms, or if any
controversy arises, or if the Escrow Agent is made a party to, or intervenes
in,
any litigation pertaining to this Agreement or its subject matter, the Escrow
Agent shall be reasonably compensated for such extraordinary services and
reimbursed for all reasonable costs, attorneys' fees, including allocated costs
of in-house counsel, and expenses occasioned by such default, delay, controversy
or litigation, and the Escrow Agent shall have the right to retain all documents
and/or other things of value at any time held by the Escrow Agent in the Escrow
Account until such compensation, fees, costs and expenses are paid. Any such
extraordinary fees, costs and expenses shall be payable 50% by WAKO and 50%
by
the Sellers pro rata by cash payment
SECTION
7. TERMINATION
This
Agreement shall terminate on the later to occur of (i) the date there are no
Escrow Shares or other property remaining in the Escrow Account or (ii) the
date
upon which WAKO’s rights to indemnification for Losses pursuant to the Purchase
Agreement terminate.
SECTION
8. ESCROW AGENT; LIMITATION OF ESCROW AGENT'S
LIABILITY
8.1. DUTIES
OF THE ESCROW AGENT. The Escrow Agent shall have no duties or responsibilities
other than those expressly set forth in this Agreement, and no implied duties
or
obligations shall be read into this Agreement against the Escrow Agent. Without
limitation, the Escrow Agent shall carry out its responsibilities hereunder
without regard to the terms of the Purchase Agreement except insofar as it
may
consult said agreement for the purpose of referencing definitions. The Escrow
Agent shall have no duty to enforce any obligation of any person, other than
as
provided herein. The Escrow Agent shall be under no liability to anyone by
reason of any failure on the part of any party hereto or any maker, endorser
or
other signatory of any document or any other person to perform such person's
obligations under any such document.
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8.2. LIABILITY
OF THE ESCROW AGENT.
(a)
In performing any duties under this Agreement, the Escrow Agent shall not
be liable to any party for consequential damages, (including, without limitation
lost profits) losses, or expenses, except for gross negligence or willful
misconduct on the part of the Escrow Agent. The Escrow Agent shall not incur
any
such liability for any act or failure to act made or omitted in good faith
or
for 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, impersonations, or determining
the
scope of any representative authority. In addition, the Escrow Agent may consult
with legal counsel in connection with the Escrow Agent's duties under this
Agreement and shall be fully protected in any act taken, suffered, or permitted
by him/her in good faith in accordance with the advice of counsel. The Escrow
Agent is not responsible for determining and verifying the authority of any
person acting or purporting to act on behalf of any party to this Agreement.
The
Escrow Agent shall not be responsible for the authenticity of any instructions,
or be in any way liable for any unauthorized instruction or for acting on such
an instruction, whether or not the person giving the instruction was, in fact,
an authorized representative of WAKO and the Sellers.
(b)
In no event shall the Escrow Agent be liable to the parties for any
consequential, special, or exemplary damages, including but not limited to
lost
profits, from any cause whatsoever arising out of, or in any way connected
with
acting upon instructions believed by the Escrow Agent to be
genuine.
(c)
WAKO and the Sellers 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, counsel fees,
including allocated costs of in-house counsel and disbursements that may be
imposed on the Escrow Agent or incurred by the Escrow Agent in connection with
the performance of its/his/her duties under this Agreement, including but not
limited to any litigation arising from this Agreement or involving its subject
matter, except in the case of the Escrow Agent's gross negligence or willful
misconduct. Notwithstanding the foregoing, between WAKO and the Sellers, if
either WAKO or the Sellers pay more than their 50% share of the indemnification
obligations to the Escrow Agent under this Section
8.1(c),
then
such other party shall contribute to WAKO or the Sellers, as the case may be,
up
to their 50% share. The foregoing indemnities shall survive the termination
of
Agreement and the resignation or removal of the Escrow Agent.
6
(d)
If any controversy arises between the parties to this Agreement, or with
any other party, concerning the subject matter of this Agreement, 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
may wait for settlement of any such controversy by final appropriate legal
proceedings or other means as, in the Escrow Agent's discretion, the Escrow
Agent 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.
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. In such event, the Escrow Agent is authorized to deposit with the
clerk of the court all documents and funds held in the Escrow Account. 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 this
Agreement.
8.3. SUCCESSOR
ESCROW AGENT. In the event the Escrow Agent becomes unavailable or unwilling
to
continue in its capacity herewith, the Escrow Agent may resign and be discharged
from its duties or obligations hereunder by giving the parties to this Agreement
written notice sixty (60) days' prior to the date when such resignation shall
take effect. WAKO may appoint a successor Escrow Agent without the consent
of
the Sellers so long as such successor is a bank with assets of at least $100
million, and may appoint any other successor Escrow Agent with the consent
of
the Sellers, which consent shall not be unreasonably withheld. If, within such
notice period, WAKO provides to the Escrow Agent written instructions with
respect to the appointment of a successor Escrow Agent and directions for the
transfer of any Escrow Shares then held by the Escrow Agent to such successor,
the Escrow Agent shall act in accordance with such instructions and promptly
transfer such Escrow Shares to such designated successor. In the event that
after said 60 day period no successor escrow agent has been appointed as
provided above, Escrow Agent, at the expense of the other parties hereto, may
petition any court of general jurisdiction sitting in Xxxx County, Illinois
for
the appointment thereof.
8.4. CHANGE
OF CONTROL OF ESCROW AGENT. Any company into which the Escrow Agent may be
merged or with which it may be consolidated, or any company to whom the Escrow
Agent may transfer a substantial amount of its business, shall be the successor
to the Escrow Agent without the execution or filing of any paper or any further
act on the part of any of the parties, anything herein to the contrary
notwithstanding.
7
SECTION
9.
RESOLUTION OF CONFLICTS
9.1. In
case the Sellers shall timely object in writing to any claim or claims by a
WAKO
as an Indemnified Party made in any Claim Notice, as provided in Section
4
hereof,
the Sellers and WAKO shall attempt in good faith for thirty (30) calendar days
following delivery of the Certificate of Objections to agree upon the rights
of
the respective parties with respect to each of such claims. If the Sellers
and
WAKO should so agree, a Settlement Agreement setting forth such agreement shall
be prepared and signed by both parties and shall be furnished to the Escrow
Agent. The Escrow Agent shall be entitled to rely on any such Settlement
Agreement and shall distribute amounts from the Escrow Account in accordance
with the terms thereof and Section
4.2(e)
of this
Agreement.
9.2. If
no such agreement can be reached after good faith negotiation, either WAKO
or
the Sellers may, by written notice to the other, demand arbitration of the
matter unless the amount of the damage or loss is at issue in pending litigation
with a third party, in which event arbitration shall not be commenced until
such
amount is ascertained or both parties agree to arbitration; and in either such
event the matter shall be settled by arbitration conducted by a single
arbitrator. The arbitrator shall be jointly selected by WAKO and the Sellers
within fifteen (15) calendar days after such written notice is sent, or absent
such agreement, such arbitrator shall be appointed pursuant to the Commercial
Arbitration Rules then in effect of the American Arbitration Association. The
decision of the arbitrator as to the validity and amount of any claim in such
Indemnification Notice shall be binding and conclusive upon the parties to
this
Agreement and the Escrow Agent shall be entitled to act in accordance with
such
decision and make or withhold payments out of the Escrow Account in accordance
therewith.
9.3. Any
such arbitration shall be held in New York, New York under the Commercial
Arbitration Rules then in effect of the American Arbitration Association. For
purposes of this Section
9,
in any
arbitration hereunder in which any claim or the amount thereof stated in the
Claim Notice is at issue, WAKO shall be deemed to be the "Non-Prevailing Party"
unless the arbitrator awards WAKO more than sixty-five percent (65%) of the
amount in dispute; otherwise, the Sellers shall be deemed to be the
Non-Prevailing Party. The Non-Prevailing Party to an arbitration shall pay
its
own expenses, the fees of the arbitrator, the administrative fee of the American
Arbitration Association, and the expenses, including without limitation,
attorneys' fees and costs, reasonably incurred by the other party to the
arbitration. Judgment upon any award rendered by the arbitrators may be entered
in any court having jurisdiction.
8
SECTION
10. TAX
MATTERS
10.1. The
parties agree to treat the Escrow Shares in the Escrow Account as owned by
the
applicable Sellers in all cases, and to file all tax returns on a basis
consistent with such treatment.
10.2. All
earnings on the Escrow Shares, if any, shall be treated as having been received
by the applicable Sellers for United States federal income tax purposes whether
or not such amounts are currently distributed to the applicable Sellers. Unless
otherwise required by law, the parties agree that, for United States federal
income tax purposes, the applicable Sellers shall report their pro rata shares
of any earnings as their income.
10.3 Escrow
Agent shall have no responsibility to file informational returns (i.e. IRS
form
1099) with respect to the transactions hereby contemplated.
SECTION
11. GENERAL
11.1. INSPECTION.
The Escrow Shares shall at all times be clearly identified as being held by
the
Escrow Agent hereunder. Any party hereto may at any time during the Escrow
Agent's business hours (with reasonable notice) inspect any records or reports
relating to the Escrow Shares.
11.2. CONTROLLING
DOCUMENT. To the extent provisions of the Purchase Agreement are inconsistent
with the provisions contained herewith, as between WAKO and Sellers the Purchase
Agreement shall supersede this Agreement, provided, however, that the provisions
of this Agreement shall control for all purposes with regard to the Escrow
Agent's duties.
11.3. OTHER
AGREEMENTS. Subject to Section11.2, nothing in this Agreement is intended to
limit any of WAKO's or any other Indemnified Party’s rights, or any obligation
of WAKO or any Seller, under the Purchase Agreement or under any other agreement
entered into in connection with the transactions contemplated by the Purchase
Agreement.
11.4. NOTICES.
Any notice or other communication required or permitted to be delivered to
any
party under this Agreement shall be in writing and shall be deemed properly
delivered, given and received when delivered (by hand, by registered mail,
by
courier or express delivery service or by facsimile) to the address or facsimile
telephone number set forth beneath the name of such party below (or to such
other address or facsimile telephone number as such party shall have specified
in a written notice given to the other parties hereto). Such notices shall
be
deemed delivered hereunder: (a) if delivered by hand or facsimile, when
delivered; (b) if delivered by registered mail, three (3) business days after
deposit in the United States Mail; or (c) if delivered by courier or express
delivery service, one (1) business day following deposit with the courier or
delivery service:
9
if
to the
Escrow Agent:
LaSalle
Bank National Association
Global
Escrow Services
000
Xxxxx
XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx,
XX 00000
Attention: Xxx
Xxxxxx
Telephone: (000)
000-0000
Fax: (000)
000-0000
if
to
WAKO:
Wako
Logistics Group, Inc.
000
Xxxx
Xxxxxx Xxxxxx
Xxx
Xxxxxxx, Xxxxxxxx 00000
Attention:
Xxxxx Xxxxxx
with
a
copy to:
Gusrae,
Xxxxxx, Xxxxx & Xxxxxxx PLLC
000
Xxxx
Xxxxxx
Xxx
Xxxx,
XX 00000
Attention:
Xxxxxxxx Xxxxxxx
if
to the
Sellers:
Xxxx
Xxxxxxxxxx
000
Xxxxxxxxxxx Xxxx
Xxxx
Xxxxxx, XX 00000
with
a
copy to:
Xxxx,
Xxxx & Xxxxx LLP
00
X.
Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxxxxx 00000-0000
Attention:
Xxxxx X. Xxxxxxxxx
Telephone: (000)
000-0000
Fax: (000)
000-0000
11.5. COUNTERPARTS.
This Agreement may be executed in two or more counterparts, each of which shall
be deemed an original, and all of which together shall constitute one and the
same instrument.
11.6. HEADINGS.
The underlined headings contained in this Agreement are for convenience of
reference only, shall not be deemed to be a part of this Agreement and shall
not
be referred to in connection with the construction or interpretation of this
Agreement.
10
11.7. GOVERNING
LAW; VENUE. This Agreement shall be governed by and construed in accordance
with
the internal laws of the State of New York without regard to the conflicts
of
laws principles thereof. Subject to Section
11
hereof,
the parties hereto hereby irrevocably agree that any suit or proceeding arising
directly and/or indirectly pursuant to or under this Agreement, shall be brought
solely in a federal or state court located in the City, County and State of
New
York. By its execution hereof, the parties hereby covenant and irrevocably
submit to the in personam
jurisdiction of the federal and state courts located in the City, County and
State of New York and agree that any process in any such action may be served
upon any of them personally, or by certified mail or registered mail upon them
or their agent, return receipt requested, with the same full force and effect
as
if personally served upon them in New York City. The parties hereto expressly
and irrevocably waive any claim that any such jurisdiction is not a convenient
forum for any such suit or proceeding and any defense or lack of in
personam
jurisdiction with respect thereto. In the event of any such action or
proceeding, the party prevailing therein shall be entitled to payment from
the
other party hereto of its reasonable counsel fees and disbursements.
11.8. AMENDMENTS.
This Agreement may not be amended, modified, altered or supplemented other
than
by means of a written instrument duly executed and delivered on behalf of WAKO,
the Seller and the Escrow Agent.
11.9. SEVERABILITY.
In the event that any provision of this Agreement, or the application of any
such provision to any Person or set of circumstances, shall be determined to
be
invalid, unlawful, void or unenforceable to any extent, the remainder of this
Agreement, and the application of such provision to Persons or circumstances
other than those as to which it is determined to be invalid, unlawful, void
or
unenforceable, shall not be impaired or otherwise affected and shall continue
to
be valid and enforceable to the fullest extent permitted by law.
11.10. ENTIRE
AGREEMENT. Subject to Sections 11.2 and 11.3 this Agreement and the Purchase
Agreement and the other agreements contemplated in the Purchase Agreement set
forth the entire understanding of the parties relating to the subject matter
hereof and thereof and supersede all prior agreements and understandings among
or between any of the parties relating to the subject matter hereof and
thereof.
11.11. CONSTRUCTION.
(a)
For purposes of this Agreement, whenever the context requires: the
singular number shall include the plural, and vice versa; the masculine gender
shall include the feminine and neuter genders; the feminine gender shall include
the masculine and neuter genders; and the neuter gender shall include the
masculine and feminine genders.
11
(b)
The parties hereto agree that any rule of construction to the effect
that ambiguities are to be resolved against the drafting party shall not be
applied in the construction or interpretation of this Agreement.
(c)
As used in this Agreement, the words “include” and “including,” and
variations thereof, shall not be deemed to be terms of limitation, but rather
shall be deemed to be followed by the words “without limitation.”
(d) Except
as otherwise indicated, all references in this Agreement to "Sections" are
intended to refer to Sections of this Agreement.
12
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
above written.
|
WAKO
LOGISTICS GROUP, INC.
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| By: | /s/ Xxxxxxxxxxx Xxxx | |
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Name:
Xxxxxxxxxxx Xxxx
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| Title: Chief Executive Officer | ||
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XXXX
XXXXXXXXXX
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| By: | /s/ Xxxx Xxxxxxxxxx | |
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XXXX
XXXXXXXXXX
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| By: | /s/ Xxxx Xxxxxxxxxx | |
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ESCROW
AGENT LaSalle Bank N.A.
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| By: | /s/ Xxxx X. Xxxxxx | |
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Name: Xxxx X. Xxxxxx |
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| Title: Vice President | ||
13
EXHIBIT
A
ESCROW
AGENT FEE
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Acceptance
Fee:
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$
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500.00*
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Annual
Administration Fee:
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$
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3,500.00*
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Wire
Transfers
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$
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20.00
each
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Check
Preparation and Mailing
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$
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25.00
each
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1099
Preparation and Reporting
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$
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5.00
each
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($250
annual minimum if any 1099 reports required for
account)
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THE
ACCEPTANCE AND FIRST YEAR’S ANNUAL ADMINISTRATION FEES ARE DUE UPON EXECUTION OF
THE ESCROW AGREEMENT.
*Should
the Escrow Account remain open for less than a full year after an initial twelve
month period, the Annual Administration Fee will be prorated on a six-month
basis.
Any
investment transaction not in a money market fund or a LaSalle Enhanced
Liquidity Management account will incur a $150.00 per transaction fee. The
parties to the agreement understand and agree that the Escrow Agent may receive
certain revenue on certain mutual fund investments. These revenues take one
of
two forms:
Shareholder
Servicing Payments: Escrow Agent may receive Shareholder Servicing Payments
as
compensation for providing certain services for the benefit of the Money Market
Fund Company. Shareholder Services typically provided by LaSalle include the
maintenance of shareholder ownership records, distributing prospectuses and
other shareholder information materials to investors and handling proxy-voting
materials. Typically Shareholder Servicing payments
are paid under a Money Market Fund’s 12b-1 distribution plan and impact the
investment performance of the Fund by the amount of the fee. The shareholder
servicing fee payable from any money market fund is detailed in the Fund’s
prospectus that will be provided to you.
Revenue
Sharing Payments: Escrow Agent may receive revenue sharing payments from a
Money
Market Fund Company. These payments represent a reallocation to Escrow Agent
of
a portion of the compensation payable to the fund company in connection with
your account’s money market fund investment. Revenue Sharing payments constitute
a form of fee sharing between the fund company and Escrow Agent and do not,
as a
general rule, result in any additional charge or expense in connection with
a
money market fund investment, are not paid under a 12b-1 plan, and do not impact
the investment performance of the Fund. The amount of any revenue share, if
any,
payable to Escrow Agent with respect to your account’s investments is available
upon request.
All
out-of-pocket expenses will be billed at the Escrow Agent’s cost. Out-of-pocket
expenses include, but are not limited to, professional services (e.g. legal
or
accounting), travel expenses, telephone and facsimile transmission costs,
postage (including express mail and overnight delivery charges), and copying
charges.
14
