Exhibit 2.11D
ESCROW AGREEMENT
Escrow Agreement dated as of January 23, 1998, by and among Xxxxxx
Xxxxxxxx (the "Representative") acting on behalf of the stockholders of Radio
Movil Digital Americas, Inc., a Delaware corporation ("RMD"), International
Wireless Communications Holdings, Inc., a Delaware corporation ("Parent"), and
Toronto Dominion [Texas], Inc. ("Escrow Agent").
WHEREAS, on November 22, 1997, RMD and Parent entered into an Agreement and
Plan of Merger ("Merger Agreement") pursuant to which a direct or indirect
wholly owned subsidiary of Parent will merge with and into RMD, with RMD being
the surviving corporation. Pursuant to Section 2.06(a) of the Merger Agreement,
728,438 Parent Preferred Shares (the "Escrow Closing Amount") are being
deposited by Parent with Escrow Agent to be held in an escrow fund ("Escrow
Account"), subject to the terms of this Escrow Agreement. The Escrow Closing
Amount, together with all accretions thereto, dividends and/or interest accrued
or earned thereon, and any property substituted therefor, shall hereafter be
referred to collectively as the "Funds." Escrow Agent acknowledges receipt of
the Escrow Closing Amount; and
WHEREAS, Escrow Agent is willing to hold the Escrow Closing Amount in
escrow in accordance with the terms of this Escrow Agreement and to act as
Escrow Agent hereunder.
NOW, THEREFORE, in consideration of the mutual terms, conditions and
covenants contained herein, and intending to be legally bound hereby, the
parties hereto agree as follows:
1. DEFINITIONS. Unless otherwise set forth herein, all capitalized terms
in this Agreement shall have the respective meanings ascribed to them in the
Merger Agreement.
2. APPOINTMENT OF ESCROW AGENT. Representative and Parent hereby appoint
Escrow Agent to serve as Escrow Agent hereunder, subject to and in accordance
with the provisions of this Escrow Agreement, and Escrow Agent hereby accepts
such appointment.
3. FORMATION OF ESCROW. Simultaneously with the execution of this
Agreement, Parent has delivered to Escrow Agent the Escrow Closing Amount to be
held in the Escrow Account, and Escrow Agent acknowledges receipt of the Escrow
Closing Amount. Escrow Agent will hold, keep custody of and dispose of the
Funds, in accordance with the terms and conditions of this Escrow Agreement.
4. RELEASE OF ESCROW. Promptly, and in any event within three business
days after the determination, in accordance with the Merger Agreement, that
amounts are to be released from the Escrow Fund pursuant to Sections 2.06(c)-(f)
of the Merger Agreement, Parent and Representative will provide written notice
to Escrow Agent of the amounts to be
so released and Escrow Agent shall release to Parent or Representative, as
the case may be, from the Escrow Account, within three business days
following receipt by Escrow Agent of such notice, Parent Preferred Shares (or
other assets or securities, if applicable) in the amount to be released.
For purposes of any such release, Parent Preferred Shares shall be valued at
the $13.728 per share. Parent and the Representative agree to provide such
notice upon the final and binding determination that amounts are to be
released pursuant to such Sections of the Merger Agreement. In lieu of such
notice, the Escrow Agent shall act on notice from (1) the Reviewing
Accountant certifying that it has made a final determination pursuant to the
provisions of the Merger Agreement as provided in Section 2.05 of the Merger
Agreement or (2) the parties or entities specified in Section 5.3(1) or (2)
hereof.
5. INDEMNIFICATION CLAIMS OF PARENT.
5.1 If Parent shall determine to make a claim for indemnification
under Section 8.01 of the Merger Agreement ("Indemnification Claim"), Parent
shall give written notice to Representative and Escrow Agent simultaneously in
the form of a certificate signed by Parent ("Indemnification Claim Notice") (i)
stating that Parent is asserting an Indemnification Claim against the Escrow
Account based upon the Stockholders' indemnification obligations, (ii)
specifying in reasonable detail the basis for and the amount of its
Indemnification Claim and (iii) stating that if Representative does not respond
within 30 days following its receipt of the Indemnification Claim Notice with a
written objection, that Escrow Agent will pay the amount specified in the
Indemnification Claim Notice to Parent. If the Representative objects to or
disputes Parent's Indemnification Claim (the "Objection"), Representative shall,
within 30 days following its receipt of the Indemnification Claim Notice
("Objection Period") notify Parent and Escrow Agent simultaneously in writing in
the form of a certificate signed by the Representative ("Objection Notice")
stating that Representative is disputing the Indemnification Claim and further
setting forth the nature and grounds for such Objection.
5.2 If by the termination of the Objection Period with respect to an
Indemnification Claim, the Escrow Agent does not receive an Objection Notice
from Representative, then, in such event, Escrow Agent shall promptly (and in
any event within three business days) pay the amount specified in the
Indemnification Claim Notice to Parent by delivering stock certificates
representing shares of capital stock of Parent held in the Escrow Account whose
Offer Price is equal to the amount of the Indemnification Claim.
5.3 If Representative shall deliver an Objection Notice to Parent and
Escrow Agent within the Objection Period, Escrow Agent shall forward a copy of
the same to Parent, and Escrow Agent shall refrain from disbursing any shares of
capital stock of Parent held in the Escrow Account until resolution of such
dispute in the form of (1) a final arbitration award following arbitration
conducted in accordance with the rules of the American Arbitration Association
then obtaining, in accordance with Section 16 hereof which there is no right of
appeal or (2) joint directions of Parent and Representative as communicated to
Escrow Agent in writing and signed by both Parent and Representative. Any
Parent Preferred Shares released from the Escrow Account shall be valued at the
Offer Price. Escrow Agent shall be fully protected in paying from the Escrow
Account any
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amount as may be specified in a certified copy of any judgment, decree, award
or original written instruction as provided in the immediately preceding
sentence unless, in connection with making such payment, Escrow Agent shall
have acted with willful neglect, gross negligence or bad faith.
6. CLOSING OF ESCROW; DISTRIBUTION TO THE STOCKHOLDERS. Subject to the
following sentence, the closing of this escrow shall be on the first anniversary
of the Effective Time ("Termination Date"). On the Termination Date, all
remaining Funds shall be distributed by Escrow Agent to Representative (to be
distributed as provided in Exhibit B of the Merger Agreement), unless, on that
date, there are any Claims pending against the Escrow Account the validity and
aggregate amount of which have not been finally determined as of the Termination
Date ("Unresolved Claims"). If there are Unresolved Claims as of the
Termination Date, assuming that there are Funds in the Escrow Account at that
time, Escrow Agent shall distribute to Representative the amount of Funds held
in the Escrow Account whose Offer Price is in excess of the Unresolved Claims,
and the Escrow Account shall remain open pending the resolution of the
Unresolved Claims.
7. RIGHTS WITH RESPECT TO SHARES OF CAPITAL STOCK OF PARENT; INVESTMENT
OF FUNDS. All shares of capital stock of Parent held in the Escrow Account will
be voted in the same proportion as all other outstanding Parent Preferred Shares
held by the holders of Parent Preferred Shares received pursuant to the Merger
Agreement. All dividends and distributions in respect of shares of capital
stock of Parent held in the Escrow Account shall be deposited into the Escrow
Account. To the extent any portion of the Funds is in the form of cash or cash
equivalents and the amounts of such Funds is in excess of $5,000, Escrow Agent
is authorized and instructed to invest such Funds in obligations issued or
guaranteed by the United States of America or any agency or instrumentality
thereof whose terms and remaining maturities are no greater than 60 days.
8. DUTIES AND LIABILITY OF ESCROW AGENT LIMITED.
8.1 DUTIES LIMITED. The duties of Escrow Agent hereunder are that of
a custodian, shall be entirely administrative and not discretionary, and,
accordingly, Escrow Agent does not and will not have any interest in the Funds
(other than as contemplated by Section 10 hereof). Escrow Agent's duties shall
be limited to those expressly set forth herein.
8.2 INDEMNIFICATION; RELIANCE. Parent and the Representative agree
to indemnify and hold harmless Escrow Agent from and against any losses, claims,
damages and liabilities, including costs of investigation and reasonable
attorney's fees and disbursements ("Losses"), which may be asserted against or
imposed upon Escrow Agent or to which Escrow Agent may be exposed or which it
may incur by reason hereunder, including, without limitation, any litigation or
arbitration arising or resulting from this Agreement or involving the subject
matter hereof, unless such Losses arise from or are based upon a claim of the
willful neglect, gross negligence or bad faith of Escrow Agent. Subject to the
foregoing, Escrow Agent (i) may rely upon, and shall be protected in acting or
refraining from acting upon, any written notice, instruction, certificate,
request, consent
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or other instrument ("Writing") furnished to it in connection with its duties
as Escrow Agent and reasonably believed by Escrow Agent to be genuine, (ii)
may reasonably rely on Writings not only as to the due execution, validity
and effectiveness thereof but also as to the truth and accuracy of the
information contained therein, (iii) may rely on the contents of any Writing
of any court, arbitrator or party without any liability therefor, and (iv)
shall have no liability to any third party as a result of any acts taken or
omissions made by Escrow Agent in the performance of its duties hereunder and
no person shall have any rights as a third party beneficiary with respect to
this Agreement, except with respect to voting rights as contemplated by the
first sentence of Section 7 hereof. As to any legal questions arising in
connection with Escrow Agent's performance of its duties and responsibilities
hereunder, Escrow Agent may consult or obtain opinions from legal counsel
selected by it and reasonably satisfactory to Parent and Representative, and
Escrow Agent shall be free from any liability for acting in reliance on such
advice of counsel so long as in doing so Escrow Agent shall not have acted
with willful neglect, gross negligence or bad faith. Escrow Agent shall not
be bound by any notice of, or demand with respect to, any waiver,
modification, amendment, termination, or rescission of the provisions of this
Agreement uness such notice or demand is received by Escrow Agent in writing
and has been signed by both Parent and Representative.
8.3 RESIGNATION OR TERMINATION OF ESCROW AGENT; APPOINTMENT OF A
SUCCESSOR.
8.3.1 Escrow Agent may resign and be discharged from its duties
and obligations hereunder for any reason. Such resignation shall be made by
giving written notice of such resignation to Parent and Representative but shall
not become effective until a successor Escrow Agent shall have been appointed by
mutual agreement of Parent and Representative and shall have accepted such
appointment in writing. Parent and Representative shall use reasonable best
efforts to appoint any such successor Escrow Agent as promptly as practicable
following receipt of the notice of resignation as contemplated by the
immediately preceding sentence. Parent and Representative shall also have the
right, by mutual agreement, to terminate the appointment of Escrow Agent
hereunder by giving to it notice of such termination, specifying the date on
which such termination shall take effect and designating a successor Escrow
Agent. In any such event, Parent and Representative shall, by mutual agreement,
reasonably approve and designate a successor Escrow Agent to such resigning or
terminated Escrow Agent.
8.3.2 Any successor Escrow Agent shall execute and deliver to the
then serving Escrow Agent a written instrument accepting the appointment and
agreeing to the terms of this Agreement. Upon receipt thereof from such
successor Escrow Agent, all property in the Escrow Account shall be turned over
and delivered to such successor Escrow Agent who shall thereupon be bound by all
of the provisions hereof as if an original signatory hereto. No resignation or
removal of Escrow Agent shall be effective until the acceptance of appointment
by the successor Escrow Agent in the manner provided above.
9. NOTICE. Notices to Parent and Representative shall be sent to such
addresses as are set forth in the Merger Agreement. Notices to Escrow Agent
shall be sent to Toronto
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Dominion Bank, 000 Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000, Attn: Xxxxxx
Xxxxxx, Phone # (000) 000-0000, Fax # (000) 000-0000.
10. FEES AND EXPENSES OF ESCROW AGENT. For its services hereunder, Escrow
Agent shall be entitled to a fee of $1,000 and reimbursement of reasonable and
documented out-of-pocket expenses incurred by Escrow Agent in connection with
the performance of such services. All amounts due to Escrow Agent pursuant to
this Section 10 shall be paid from the Funds. To the extent there are
Unresolved Claims at the Termination Date as contemplated by Section 6 hereof,
Escrow Agent shall be entitled to an additional fee of $100 per month for each
month following the Termination Date that the Fund remains unsettled.
11. TERM. This Agreement shall terminate upon the final distribution of
all Funds.
12. ENTIRE UNDERSTANDING; NO ORAL AGREEMENTS. This Agreement and the
referenced provisions of the Merger Agreement set forth the entire understanding
among the parties with respect to the subject matter hereof and thereof, and
supersedes all prior and contemporaneous oral and written, express or implied,
communications, agreements and understandings with respect to the subject matter
thereof (PROVIDED, HOWEVER, that nothing herein shall in any way modify or limit
the provisions of the Merger Agreement). No amendment, modification,
supplement, or termination of this Agreement shall bind or be enforceable
against any party unless set forth in a written document signed by all of the
parties hereto.
13. BINDING AGREEMENT. This Agreement and all of the terms and provisions
therein shall be binding upon, inure to the benefit of, and be enforceable by
all of the parties hereto and their respective heirs, legal and personal
representatives (similar or dissimilar), estates, executors, successors and
assigns. No party hereto shall assign any of such party's rights or delegate
any of its obligations under this Agreement without the express written consent
of the other parties hereto, except as may be expressly provided herein;
PROVIDED, THAT, Parent may assign, in whole or in part its rights (but not its
obligations) under this Agreement, to lenders of Parent solely as collateral
security for such lenders.
14. GENDER; SECTIONS AND HEADINGS. All words used in this Agreement shall
be construed to be of such number and gender as the context requires or permits.
The structure and headings of all sections and subsections in this Agreement are
inserted for convenience of reference only, and shall neither constitute a part
of this Agreement nor affect its construction, interpretation, meaning or
effect.
15. GOVERNING LAW. This Agreement shall be governed by the laws of New
York applicable to contracts executed and to be performed therein, without
regard to principles of conflicts of laws.
16. ARBITRATION. All disputes hereunder, including disputes with respect
to the disposition of the Funds and Section 8.01 of the Merger Agreement, shall
be resolved by
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arbitration in New York City under the rules of the American Arbitration
Association, unless this Agreement or the Merger Agreement provides for
another dispute resolution mechanism, such as a determination by the
Reviewing Accountant. Parent and the Representative shall cooperate in
respect of any such arbitration, including by furnishing any information
reasonably requested by the other or by the arbitrator in connection with any
dispute. The fees and expenses of the arbitrator shall be borne equally by
Parent and the Representative. Decisions of the arbitrator shall be final
and binding.
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WITNESS THE DUE EXECUTION AND DELIVERY HEREOF as of the date first set
forth above.
REPRESENTATIVE:
_____________________________
Xxxxxx Xxxxxxxx
INTERNATIONAL WIRELESS
COMMUNICATIONS HOLDINGS, INC.
By: ___________________________
Name:
Title:
TORONTO DOMINION [TEXAS], INC.
By: ___________________________
Name:
Title:
