EXHIBIT 10.15
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (the "AGREEMENT"), dated March 24, 1998, by and
between EUROPEAN MICRO HOLDINGS, INC., a Nevada corporation ("EMCC"), TARPON
XXXXXX INVESTMENTS, INC., a Illinois corporation ("TARPON XXXXXX"), and THE
CHASE MANHATTAN BANK, having a place of business at 000 Xxxx 00xx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 (the "ESCROW AGENT").
WITNESSETH
WHEREAS, the parties hereto desire to enter into this Agreement on the
terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises herein contained, the
parties hereto agree as follows:
1. ESCROW AGENT'S DUTIES. The Escrow Agent shall hold all of the
property (the "PROPERTY") held by it in accordance with the terms of this
Agreement.
2. PROPERTY TO BE UNINVESTED. All Property delivered to the Escrow
Agent by either EMCC or Tarpon Xxxxxx pursuant to the terms of this Agreement
shall be held in a separate account called the "EMCC ESCROW ACCOUNT."
3. DISBURSEMENTS. If, prior to sixty (60) days after the date of the
Prospectus (which date shall be established by a written notice from EMCC and
Tarpon Xxxxxx to the Escrow Agent promptly after the Prospectus is deemed
effective by the Securities and Exchange Commission) (the "OFFERING TERMINATION
DATE"), there is $7,000,000 or more in the EMCC Escrow Account, the Escrow Agent
shall notify EMCC and Tarpon Xxxxxx of such event. In such case, the Escrow
Agent shall hold the Property until directed in writing by EMCC (the "NOTICE")
to disburse any or all of the Property. The Notice shall set forth the account
where the Property is to be disbursed and in what amount; provided, however,
that all disbursements shall only be made to either SunTrust Bank Miami, N.A.,
A.B.A. No. 066000604, Account Name: European Micro Holdings, Inc., and Account
No. 0189001191513, ("EMCC ACCOUNT") or NationsBank, St. Petersberg, Florida, ABA
No. 000000000, Account Name: Tarpon Xxxxxx Investments, Inc. and Account No.
3660505324 ("TARPON XXXXXX ACCOUNT"). Upon receipt of the Notice, the Escrow
Agent shall promptly disburse such Property in the manner described in the
Notice subject to the terms of this Section 3(a). Notwithstanding the foregoing,
the Notice may specify disbursements to other accounts but only if the Notice
contains a signature guaranty of either Xxxx X. Xxxxxxxxx or Xxxxx X. Xxxxxxx.
In the event that on the Offering Termination Date less than $7,000,000 is
received in the EMCC Escrow Account, then the Escrow Agent shall as soon as
practicable return all funds then remaining in the EMCC Escrow Account directly
to the sources of such funds in the amount received from such sources.
4. RIGHTS, DUTIES AND RESPONSIBILITIES OF ESCROW AGENT.
(a) Subject to Section 3(a) hereof, the Escrow Agent shall have the
right to act in reliance upon any document, instrument, or signature believed by
it to be genuine and to assume that any person purporting to give any notice in
accordance with this Agreement or in connection with any transaction to which
this Agreement relates has been duly authorized to do so. The Escrow Agent shall
not be obligated to make any inquiry as to the authority, capacity, existence or
identity of any person purporting to give any such notice;
(b) If the Escrow Agent is uncertain as to its duties or rights
hereunder or shall receive a notice from any of the other parties hereto with
respect to the Property that, in the Escrow Agent's sole opinion, is in conflict
with any of the terms hereof, it may refrain from taking any action until
otherwise directed by either (a) all of the other parties hereto or (b) an order
of a court of competent jurisdiction;
5. INDEMNIFICATION. Each of EMCC and Tarpon Xxxxxx hereby indemnifies,
defends, and holds harmless the Escrow Agent from any and all liability of any
kind, including costs and expenses of litigation and reasonable attorneys' fees
incurred by the Escrow Agent in connection with this Agreement or in enforcing
this indemnification, arising from its activities pursuant to this Agreement,
unless such liability arises from gross negligence or willful misconduct by the
Escrow Agent.
6. COMPENSATION. For serving hereunder, the Escrow Agent shall be paid
pursuant to the terms of the fee schedule attached hereto as Schedule A. EMCC
and Tarpon Xxxxxx hereby agree to jointly and severally pay the Escrow Agent
upon execution of this Agreement reasonable compensation for the services to be
rendered hereunder, as described in Schedule A attached hereto.
7. LIMITATION OF LIABILITY. Disbursements of any of the Property in
accordance with Section 3(a) hereof shall relieve the Escrow Agent of any
liability or responsibility whatsoever in connection with serving as Escrow
Agent with respect to the Property so disbursed. In the administration of the
Escrow Account hereunder, the Escrow Agent may execute any of its powers and
perform its duties hereunder directly or through agents or attorneys and may
consult with counsel, accountants and other skilled persons to be selected and
retained by it. The Escrow Agent shall not be liable for anything done, suffered
or omitted in good faith by it in accordance with the advice or opinion of any
such counsel, accountants or other skilled persons. Notwithstanding anything to
the contrary in this Agreement, in no event shall the Escrow Agent be liable for
special, indirect or consequential loss or damage of any kind whatsoever,
(including but not limited to lost profits), even if the Escrow Agent has been
advised of the likelihood of such loss or damage and regardless of the form of
action.
8. NOTICES. Any notice pursuant hereto shall be deemed effectively
given only if it is in writing and is delivered. Any delivery hereunder is
effective only if made by (a) hand, or (b) certified mail, return receipt
requested, addressed to the other parties hereto at the addresses set forth in
Section 9, or at such other address as any party hereto may hereafter specify to
the other
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parties hereto pursuant to this Section. Delivery shall be deemed complete on
the date of receipt of the notice.
9. ADDRESSES. All notices required to be given in connection with this
Agreement shall be addressed as follows:
EMCC: European Micro Holdings, Inc.
0000 X.X. 000xx Xxxxxx, Xxxx X-00
Xxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxxxxxx, Co-Chairman
(000) 000-0000 (telephone)
(000) 000-0000 (telecopier)
with a copy to: Xxxxxxx X. Xxxxxx, Esq.
Xxxxxxxxxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx Xxxxxx - 00xx Xxxxx
Xxxxx, Xxxxxxx 00000
(000) 000-0000 (telephone)
(000) 000-0000 (telecopier)
Tarpon Xxxxxx: Tarpon Xxxxxx Investments, Inc.
000 Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
Attn: Xx. Xxxxxx Xxxxxxxxx
(000) 000-0000 (telephone)
(000) 000-0000 (telecopier)
with a copy to: D. Xxxxxx Xxxxxx, Esq.
Holland & Knight LLP
Xxx Xxxx Xxxxxxx Xxxxxxxxx
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
(000) 000-0000 (telephone)
(000) 000-0000 (telecopier)
Escrow Agent: The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Escrow Adm., 15th Floor
(000) 000-0000 (telecopier)
10. RESIGNATION. The Escrow Agent may resign on thirty (30) days'
notice, in which event EMCC shall give the Escrow Agent notice of the entity to
whom the Property shall be transferred. If during such thirty-day period the
Escrow Agent receives no such notice, the Escrow Agent may, after notice to EMCC
and Tarpon Xxxxxx, transfer the Property to a court of competent jurisdiction.
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11. SUCCESSORS. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and to their respective heirs, successors, and
assigns.
12. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
among the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements and understandings, written and oral, of the
parties in connection herewith.
13. GOVERNING LAW. This Agreement shall be governed by, construed, and
enforced in accordance with the laws of the State of New York.
14. AMENDMENT. The provisions of this Escrow Agreement may be waived,
altered, amended or supplemented, in whole or in part, only by a writing signed
by all of the parties hereto.
15. ASSIGNMENT. Neither this Escrow Agreement nor any right or interest
hereunder may be assigned in whole or in part by any party without the prior
consent of the other parties.
16. COUNTERPARTS. This Escrow Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
EURPOEAN MICRO HOLDINGS, INC.
By: /S/ XXXX X. XXXXXXXXX
Name: Xxxx X. Xxxxxxxxx
Title: Co-Chairman
TARPON XXXXXX INVESTMENTS, INC.
By: /S/ XXXXXXX X. XXXXXX
Name: Xxxxxxx X. Xxxxxx
Title: President
THE CHASE MANHATTAN BANK
By: /S/ XXXX XXXXXXXXXXXX
Name: Xxxx Xxxxxxxxxxxx
Title: Vice President
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SCHEDULE A
FEE SCHEDULE
For services to be rendered by The Chase Manhattan Bank, as Escrow
Agent, European Micro Holdings, Inc. and Tarpon Xxxxxx Investments, Inc. agree
to pay $5,000 to The Chase Manhattan Bank.
EURPOEAN MICRO HOLDINGS, INC.
By: /S/ XXXX X. XXXXXXXXX
Name: Xxxx X. Xxxxxxxxx
Title: Co-Chairman
TARPON XXXXXX INVESTMENTS, INC.
By: /S/ XXXXXXX X. XXXXXX
Name: Xxxxxxx X. Xxxxxx
Title: President
THE CHASE MANHATTAN BANK
By: /S/ XXXX XXXXXXXXXXXX
Name: Xxxx Xxxxxxxxxxxx
Title: Vice President
