Exhibit 10(e)
ESCROW AGREEMENT
ESCROW AGREEMENT ("Agreement") dated March 9, 1998 among Gator Telecom,
Inc. ("Seller"), Xxx Xxxxxxxx and Xxxxx Xxxxxxxx (collectively, the
"Shareholders"), Guardian International, Inc. (the "Buyer") and Steel Xxxxxx &
Xxxxx LLP, as Escrow Agent.
RECITALS
A. Seller, the Shareholders and Buyer have entered into an Asset
Purchase Agreement (the "Asset Agreement") effective as of March 9, 1998 which
provides for the purchase by Buyer of substantially all of the assets of Seller.
B. Section 2.5 of the Asset Agreement provides that the Escrow Shares
are to be held in escrow in accordance with the terms of this Agreement.
C. Seller, the Shareholders and the Buyer desire that the Escrow Agent
hold and dispose of the Escrow Shares in accordance with the terms and
conditions of this Agreement, and the Escrow Agent is willing to do so.
D. All terms not otherwise defined in this Agreement shall have the
meanings given them in the Asset Agreement.
AGREEMENT
1. APPOINTMENT OF ESCROW AGENT. The Escrow Agent is hereby constituted
and appointed as escrow agent, and hereby accepts its appointment and agrees to
act as escrow agent pursuant to the terms and conditions of this Agreement.
2. ESCROW DEPOSIT. Buyer hereby delivers the Escrow Shares to the
Escrow Agent pursuant to Section 2.5 of the Asset Agreement. The Escrow Shares
will be held by the Escrow Agent until disbursed to Seller pursuant to the terms
of this Agreement. The Escrow Agent acknowledges receipt of the Escrow Shares
and agrees to hold them in escrow pursuant to the terms of this Agreement.
3. RELEASE OF ESCROW SHARES.
3.1. RELEASE OF ESCROW SHARES TO SELLER. Upon a determination
by Seller and Buyer that Seller is entitled to receive all of the Escrow Shares
pursuant to Section 2.6(a)(i) of the Asset Agreement or a portion of the Escrow
Shares pursuant to Section 2.6(a)(iii) of the Asset Agreement, Buyer and Seller
shall jointly submit to the Escrow Agent a notice stating the number of Escrow
Shares to be released to Seller and requesting release of the Escrow Shares.
3.2. RELEASE OF ESCROW SHARES TO BUYER. Upon a determination
by Seller and Buyer that Buyer is entitled to receive all of the Escrow Shares
pursuant to Section 2.6(a)(ii) of the Asset Agreement or a portion of the Escrow
Shares pursuant to Section 2.6(a)(iii) of the Asset Agreement, Buyer and Seller
shall jointly submit to the Escrow Agent a notice stating the number of Escrow
Shares to be released to Seller and requesting release of the Escrow Shares.
4. DUTIES OF ESCROW AGENT.
4.1. IN GENERAL. It is agreed that the duties of the Escrow
Agent are only those that are specifically provided in this Agreement, and are
purely ministerial in nature. The Escrow Agent shall incur no liability, except
for liability arising from the Escrow Agent's willful misconduct or gross
negligence, provided the Escrow Agent acts in good faith. The Escrow Agent has
no responsibility in respect of the Escrow Shares deposited with it, other than
to use due care in holding the Escrow Shares and faithfully to follow the
instructions relating to it contained in this Agreement. The Escrow Agent may
consult with counsel and shall be fully protected from liability arising from
actions taken in good faith in accordance with the advice of counsel.
4.2. LEGAL PROCEEDINGS; INDEMNIFICATION. The Escrow Agent
shall not be required to institute legal proceedings of any kind. If any action
is threatened or instituted against the Escrow Agent, it may interplead the
parties to this Escrow Agreement and may deposit the Escrow Shares with the
court. In this event, the Escrow Agent shall be relieved of and discharged from
all further obligations and liabilities under this Escrow Agreement. The parties
jointly and severally agree to indemnify the Escrow Agent from and against all
claims, actions, losses, liabilities, damages, deficiencies, costs and expenses
(including interest, penalties and reasonable attorneys' fees and disbursements)
in acting in accordance with any written instruction from them, individually or
collectively.
5. VOTING OF SHARES; DIVIDENDS. During the period in which the Escrow
Shares are held in escrow under this Agreement, the Seller is entitled with
respect to the Escrow Shares:
(a) to vote the Escrow Shares at meetings of
shareholders of the Buyer and to execute consents in respect thereof, and to
consent to, ratify or waive notice of meetings of the shareholders of the Buyer;
and
(b) to receive and collect or to have paid over to
it all dividends or other distributions declared or paid on the Escrow Shares,
except (i) dividends or redistributions constituting stock dividends, (ii)
dividends or distributions in property other than cash or stock of the Buyer,
and (iii) liquidation dividends (either partial or complete) (collectively,
"Excepted Dividends"). All Excepted Dividends shall be paid over and pledged and
deposited with the Escrow Agent. Seller shall have all of the powers and rights
to all Excepted Dividends as it has with respect of the Escrow Shares.
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6. EXPENSES. The Escrow Agent shall be entitled to be reimbursed for
all reasonable expenses, disbursements and advances, including reasonable
attorneys' fees, incurred or made by the Escrow Agent in connection with the
carrying out of its duties under this Agreement. The Escrow Agent's expenses,
disbursements and advances shall be paid directly to the Escrow Agent and shall
be borne equally by the Seller and the Buyer.
7. COOPERATION. The parties agree to execute, acknowledge, deliver and
file, or cause to be executed, acknowledged, delivered and filed, all further
instruments, agreements or documents as may be necessary to consummate the
transactions provided for in this Agreement and to do all further acts necessary
to carry out the purpose and intent of this Agreement.
8. WAIVER. No term or condition of this Agreement shall be deemed to
have been waived, nor shall there be any estoppel against the enforcement of any
provision of this Agreement, except by written instrument of the party charged
with the waiver or estoppel. No written waiver shall be deemed a continuing
waiver unless specifically stated therein, and each waiver shall operate only as
to the specific term or condition waived and shall not constitute a waiver of
the term or condition for the future or as to any act other than that
specifically waived. The waiver by any party of any other party's breach of any
provision of this Agreement shall not operate or be construed as a waiver of any
subsequent breach, and the failure of any party to exercise any right or remedy
shall not operate or be construed as a waiver or bar to the exercise of such
right or remedy upon the occurrence of any subsequent breach. No delay on the
part of a party in exercising a right, power or privilege hereunder shall
operate as a waiver thereof. No waiver on the part of a party of a right, power
or privilege, or a single or partial exercise of a right, power or privilege,
shall preclude further exercise thereof or the exercise of any other right,
power or privilege. The rights and remedies of this Agreement are cumulative and
are not exclusive of the rights or remedies that a party may otherwise have at
law or in equity.
9. GOVERNING LAW; VENUE AND JURISDICTION. This Agreement shall be
governed by and construed in accordance with the laws of the State of Florida
without reference to conflicts of law principles. Venue and jurisdiction of all
actions relating to the performance or interpretation of this Agreement may be
brought only in the courts of the State of Florida located in Broward County or
in the United States District Court for the Southern District of Florida. The
parties consent to personal jurisdiction in the courts described in this Section
for the purpose of all actions, and waive all objections to venue and the right
to assert that a court chosen under this Section is improper based on the
doctrine of forum non conveniens.
10. ATTORNEYS' FEES. If litigation is brought concerning this
Agreement, the prevailing party shall be entitled to receive from the
non-prevailing party, and the non-prevailing party shall upon final judgment and
expiration of all appeals immediately pay upon demand all reasonable attorneys'
fees and expenses of the prevailing party.
11. NOTICES. Notices required or permitted to be given under this
Agreement shall be in writing and effective upon delivery (i) in person, (ii) by
facsimile with written confirmation of receipt, (iii) by certified mail, return
receipt requested or (iv) by overnight courier (such as
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Federal Express) to the parties at the addresses appearing on the signature page
or to another address as a party shall direct by notice to the other parties as
provided in this Section.
12. ENTIRE AGREEMENT. This Agreement and the Asset Agreement constitute
the entire understanding of the parties with respect to the Escrow Shares and
supersede all prior discussions, negotiations, agreements and understandings,
whether oral or written, with respect to their subject matter. This Agreement
may be modified only by a written instrument properly executed by all of the
parties.
13. SEVERABILITY. If any one or more of the provisions of this
Agreement is held invalid, illegal or unenforceable, the remaining provisions of
this Agreement shall be unimpaired, and the invalid, illegal or unenforceable
provision shall be replaced by a mutually acceptable valid, legal and
enforceable provision which comes closest to the intent of the parties.
14. SUCCESSORS AND ASSIGNS. This Agreement shall be for the benefit of,
and shall be binding upon, the parties and their respective heirs, personal
representatives, executors, legal representatives, successors and permitted
assigns.
15. PAYMENT OF EXPENSES. Except as otherwise provided in this
Agreement, each party shall pay its own legal fees and disbursements and other
expenses incurred in connection with this Agreement.
16. COUNTERPARTS. This Agreement may be executed by the parties 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
instrument.
The parties have executed this Agreement effective as of the
day and year first written above.
GUARDIAN INTERNATIONAL, INC.
By:/s/ XXXXXXX XXXXXXXX
-----------------------------------------
Xxxxxxx Xxxxxxxx, President and
Chief Executive Officer
Address: 0000 Xxxxx 00xx Xxxxxxx
Xxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
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GATOR TELECOM, INC.
By:/s/ XXX XXXXXXXX
-----------------------------------------
Xxx Xxxxxxxx, President
Address: 0000 Xxxx Xxxxxxx Xxxxxx
Xxxxx, XX 00000
Facsimile: (000) 000-0000
Shareholders:
/s/ XXX XXXXXXXX
--------------------------------------------
Xxx Xxxxxxxx
Address: 0000 Xxxx Xxxxxxx Xxxxxx
Xxxxx, XX 00000
Facsimile: (000) 000-0000
/s/ XXXXX XXXXXXXX
--------------------------------------------
Xxxxx Xxxxxxxx
Address: 0000 Xxxx Xxxxxxx Xxxxxx
Xxxxx, XX 00000
Facsimile: (000) 000-0000
STEEL XXXXXX & XXXXX LLP
By:/s/ XXX X. XXXXX
-----------------------------------------
Xxx X. Xxxxx
Address: 0000 Xxxxxxxx Xxxxx Xxxx
000 Xxxxx Xxxxxxx Xxxxx
Xxxx Xxxx Xxxxx, XX 00000
Facsimile: (000) 000-0000
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