January 1, 2000
Xxxxxx X. Xxxxx, Esq.
Xxxxxxxxx Xxxxxxx, P.A.
777 X. Xxxxxxx Drive, Suite 000 Xxxx
Xxxx Xxxx Xxxxx. XX 00000
Re: Escrow Agreement
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Dear Xx. Xxxxx:
In connection with those certain Stock Purchase Agreements
(collectively, the "Agreements") by and between the parties listed as buyers on
Schedule "A" to this Escrow Agreement (collectively, the "Buyers"), and the
parties listed as sellers on Schedule "A" to this Escrow Agreement,
(collectively, the "Sellers"), copies of which are attached to this Escrow
Agreement as Composite Exhibit "A" and made a part hereof by reference, the
undersigned appoint you as their Escrow Agent with respect to the stock purchase
transactions contemplated by the Agreements. Unless otherwise defined herein,
all capitalized terms used in this Escrow Agreement shall have the same meaning
as set forth in the Agreements.
Subject to the terms of this Escrow Agreement:
1. You shall receive (a) from each of the Buyers and Sellers fully
executed Agreements; (b) from each of the Buyers and hold in escrow all monies
representing the respective Purchase Prices by check or otherwise in immediately
available funds in the amounts set forth on Schedule "A" to this Escrow
Agreement (individually, the "Purchase Price"); and (c) from each of the Sellers
and hold in escrow the stock certificates and/or duly executed lost stock
certificate affidavit representing the respective Purchased Shares (as defined
in the Agreements) endorsed in blank, until the earlier of (i) receipt by you of
satisfactory evidence of the removal of Xxxxxxxx Xxxxxxx, Xxxxxx Xxxxxx and
Xxxxxx Xxxxxx from the Board of Directors of IMX and the revocation IMX of the
lock up letters dated September 2, 1998, copies of which are attached hereto as
Exhibit "B" and made a part hereof by reference (the "Documentation"); or (ii)
the close of business on January 31, 2000 unless delayed by (A) any state or
federal law in which case such date will be extended for up to an additional
ninety (90) days or (B) the need for a special shareholders' meeting in which
case such date will be extended through the date of such shareholders' meeting
or such other date as the parties may specify in writing (the "Expiration
Date").
Xxxxxxx X. Xxxxxxx, Xx., Esq.
January 5, 2000
Page 2
2. In the event that all of the Agreements. Purchase Price and
Purchased Shares are not received by you as of the close of business on January
31, 2000, you shall: (i) void the Agreements and return same to the undersigned
parties; and (ii) return any monies representing the Purchase Price held in
escrow to the Buyers and stock certificates representing the Purchased Shares
held in escrow to the Sellers. In the event that you receive each of the
Agreements, Purchase Price and Purchased Shares in a timely manner but the
Documentation is not received by you prior to the close of business on the
Expiration Date, you shall: (i) void the Agreements and return same to the
undersigned parties; and (ii) return any monies representing the Purchase Price
held in escrow to the Buyers and stock certificates representing the Purchased
Shares held in escrow to the Sellers.
3. Upon receipt of the Documentation, you shall deliver (a) all monies
representing the respective Purchase Prices held in escrow to each of the
Sellers as full payment for the Purchased Shares as provided for in the
Agreements and (b) the stock certificates held in escrow to each of the Buyers
as provided for in the Agreements all such events to constitute the closing
under the Stock Purchase Agreement.
4. The undersigned severally (but not jointly) represent and warrant to
you that the execution, delivery and performance of this Escrow Agreement has
been duly authorized, and does not violate or conflict with any statute,
regulation, order, judgment or writ that is binding upon the representing party
or any of its assets.
5. Unless sooner terminated pursuant to the terms of this Escrow
Agreement, this Escrow Agreement shall terminate and your responsibilities under
this Escrow Agreement shall cease upon the return of the parties respective
property received by you pursuant to this Agreement.
6. To induce you to act as Escrow Agent hereunder, the undersigned
agree as follows:
(a) Except as otherwise provided in this letter, you shall not
in any way be bound or affected by any notice or modification or
cancellation of this Escrow Agreement unless in writing, signed by the
parties indicated herein, nor shall you be bound by any modification
hereof unless the same shall be satisfactory to you. You shall be
entitled to rely upon any judgment, certification, demand or other
writing without being required to determine the authenticity or the
correctness of any fact stated therein, the propriety or validity of
the service thereof, or the justification of the court issuing such
judgment or order in the premises.
(b) You shall not be under any duty to give the property held
by you hereunder any greater degree of care than you give your own
similar property.
Xxxxxxx X. Xxxxxxx, Xx., Esq.
January 5, 2000
Page 3
(c) You may act in reliance upon any document, instrument or
signature believed by you to be genuine, and you may assume that any
person purporting to give any notice or instructions in accordance with
the provisions hereof has been duly authorized to do so.
(d) You may act relative hereto in reliance upon advice of
counsel in reference to any matter(s) in connection herewith, and you
shall not be liable for any mistake of fact or error of judgment, or
for any acts or omissions of any kind, unless caused by your willful
misconduct or gross negligence. You shall be entitled to consult with
counsel of your choosing which shall include any attorney employed by
you, and you shall not be liable for any action taken, suffered or
omitted by you in accordance with the advice of counsel.
(e) This letter sets forth exclusively your duties with
respect to any and all matters pertinent hereto. You shall not refer
to, and shall not be bound by, the provisions of any other agreement
other than the terms of this Escrow Agreement.
(f) You may at any time resign hereunder by giving written
notice of your resignation to all parties hereto at least ten (10)
business days prior to the date specified for such resignation to take
effect, and upon the effective date of such resignation, or termination
of this Escrow Agreement, all documents, monies and all other property
then held by you as Escrow Agent hereunder shall be delivered by you to
such persons as may be designated in writing by all parties hereto,
whereupon all your obligations as Escrow Agent hereunder shall cease
and terminate. Your sole responsibility thereafter shall be to keep
safely all property then held by you and to deliver same to a person
designated by all parties hereto or in accordance with the directions
of a final order or judgment of a court of competent jurisdiction. In
addition, you shall be discharged of your duties and obligations
hereunder upon your interpleading in a court of competent jurisdiction
in Florida all of the documents, monies and any other property then
held by you hereunder. All parties hereto hereby submit to the personal
jurisdiction of said court (but solely for the purpose of implementing
this Agreement) and waive all rights to contest said jurisdiction.
(g) The parties to this Escrow Agreement shall be jointly and
severally obligated to reimburse you for all your fees, costs and
expenses in connection herewith, including reasonable counsel fees, and
to indemnify you and hold you harmless against any claim asserted
against you or any liability, loss or damage incurred by you in
connection herewith.
Xxxxxxx X. Xxxxxxx, Xx., Esq.
January 5, 2000
Page 3
(h) Nothing herein contained shall be deemed to obligate you
to deliver any documents, monies or any other property referred to
herein, unless the same shall have first been received by you pursuant
to this Escrow Agreement.
(i) In the event that you shall be uncertain as to your duties
or rights hereunder, or should you receive instructions, claims or
demands from any of the parties hereto or from third persons with
respect to the property held hereunder which in your opinion are in
conflict with any provisions of this Escrow Agreement, you shall be
entitled to refrain from taking any action (other than to keep safely
said property) until you shall be directed otherwise in writing by all
the parties hereto, and said third persons, if any, or by a final order
or judgment of a court of competent jurisdiction.
7. All notices or other communications required or permitted under the
terms of this Agreement shall be made in writing and shall be deemed given upon
(i) hand delivery or (ii) three days after deposit of same in the Certified
Mail. Return Receipt Requested, first class postage and registration fees
prepaid and correctly addressed to the parties at the following addresses:
Escrow Agent: Xxxxxx X. Xxxxx, Esq.
Xxxxxxxxx Xxxxxxx, P.A.
000 X. Xxxxxxx Xxxxx, Xxxxx 000 Xxxx
Xxxx Palm Beach. FL 33401
Other Parties: As provided for in the Agreements
or such other address as may be specified by the Addressee in written notice
given to each of the other parties.
8. This Escrow Agreement shall be governed by and construed in
accordance with the laws of the State of Florida.
9. This Escrow Agreement may be executed simultaneously 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.
Xxxxxxx X. Xxxxxxx, Xx., Esq.
January 5, 2000
Page 5
Please signify your agreement to the foregoing by signing and returning
a copy of this Escrow Agreement to all parties hereto which may be accomplished
by telecopy and in counterparts, and each such counterpart shall be deemed to be
an original instrument and all such counterparts together shall constitute but
one fully executed Escrow Agreement.
SELLERS: BUYER:
By: By:
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By:
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By:
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By:
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By:
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AGREED TO BY:
XXXXXXXXX TRAURIG, P.A.
By: /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx Esq.
