EXHIBIT 10.6
ESCROW AGREEMENT
AGREEMENT dated as of August , 1996 by and among Institute of
Laboratory Medicine, Inc. n/k/a Specialty Retail Group, Inc., a Delaware
corporation ("SRG"), Xxxxx Xxxxx, an individual having an address at c/o Xxxxxx
Xxxxx & Associates, 000 Xxxxx Xxxxxxxx Xxxxx, Xxxxx, XX 00000, Attn.: Xxxxxx X.
Xxxxx, Esq. ("Sayet"), Xxxxxx Xxxxx, Esq., an individual having an address at
c/o Xxxxxx Xxxxx & Associates, 000 Xxxxx Xxxxxxxx Xxxxx, Xxxxx, XX 00000
("Sayet" and "Green" are referred to herein as the "Holders") and Xxxxxxx Krooks
& Xxxx, P.C., a New York professional corporation (the "Escrow Agent") (SRG, the
Holders and the Escrow Agent are collectively referred to herein as the
"Parties").
W I T N E S S E T H
WHEREAS, SRG, the Holders and certain other parties have entered into an
Agreement of Settlement and Compromise dated as of August , 1996 (the
"Settlement Agreement") in order to provide for certain payments in full
settlement and discharge of any and all claims arising from a matter entitled
XXXXX XXXXX V. INSTITUTE FOR LABORATORY MEDICINE, INC., ILM ACQUISITION L.P.,
M.P. PARTNERS L.P., ILM ACQUISITION CORPORATION, LSJM PARTNERS, L.P., ILM N
CORPORATION, HEALTHCARE VENTURE MANAGEMENT CORPORATION, XXXXX XXXXX, XXXXX
XXXXXX AND XXXXXXXX XXXXX, Case Number 92-03746(10) pending before the Circuit
Court of the Eleventh Judicial District in and for Dade County, Florida (the
"Litigation").
WHEREAS, pursuant to the Settlement Agreement, SRG has agreed to deliver
certain stock certificates representing a certain number of shares of restricted
common stock of SRG (the "Escrow Shares") to the Escrow Agent in order to secure
its obligation under Paragraph 7 of the Settlement Agreement (the "Obligation").
NOW, THEREFORE, in consideration of the mutual agreements hereinafter
set forth, the Parties hereto, intending to be legally bound, hereby agree as
follows:
1. APPOINTMENT OF ESCROW AGENT. SRG and Sayet hereby appoint the
Escrow Agent as their agent to hold and to release the Escrow Shares on the
terms and conditions hereinafter set forth, and the Escrow Agent hereby accepts
such appointment. The Parties hereto acknowledge that the Escrow Agent has
acted as, and is, legal counsel to SRG in connection with the Litigation.
2. DELIVERY OF THE ESCROW SHARES. Pursuant to the Settlement
Agreement, SRG hereby delivers to the Escrow Agent, and the Escrow Agent hereby
acknowledges receipt of, the Escrow Shares. The Escrow Agent shall hold and
release the Escrow Shares in accordance with the terms and conditions of this
Agreement.
3. RELEASE AND TERMINATION.
(a) Upon failure by SRG to meet its Obligation, Sayet may give written
notice ("Claim") to the Escrow Agent, with a copy to SRG, of demand that the
amount then due ("Requested Amount") be released from escrow hereby created and
delivered to Sayet in full satisfaction of the Obligation. Such Claim shall
include (i) the date of breach of the Obligation and (ii) an explanation of the
manner in which the Requested Amount was determined. Unless the Escrow Agent
receives a notice of objection from SRG (the "Objection") to such release within
twenty business days from the date of receipt of a copy of the Claim by SRG and
the Escrow Agent, the Escrow Agent shall release such number of the Escrow
Shares, as determined by the Fair Market Value of the Escrow Shares,
representing the Requested Amount to Sayet, and shall release and deliver the
balance of the Escrow Shares, if any, to SRG. In the event the Escrow Agent
receives the Objection within the time specified, the Escrow Agent shall
continue to hold, in escrow, the Requested Amount, until receiving joint
instruction executed by each of SRG and Sayet or until otherwise directed by a
court of competent jurisdiction. For purposes hereof, the Fair Market Value of
the Escrow Share shall be determined by the closing sale price of SRG's common
shares on the date of Sayet's final sale transaction.
(b) When the Escrow Shares have been released in accordance with this
Section 3, this Agreement shall terminate and the Escrow Agent shall be relieved
and discharged of all further obligations and responsibilities hereunder,
PROVIDED, HOWEVER, that the indemnification obligations contained in Section 6
hereof shall survive any such termination.
4. DUTIES AND OBLIGATIONS. It is agreed that the duties and
obligations of Escrow Agent are those herein specifically provided and no other.
Escrow Agent shall not have any liability under, or duty to inquire into, the
terms and provisions of any agreement, other than this Agreement. The duties of
the Escrow Agent are ministerial in nature and Escrow Agent shall not incur any
liability whatsoever so long as it has acted in good faith except for willful
misconduct or gross negligence.
Escrow Agent may consult with counsel of its choice and shall not be
liable for any action taken, suffered or omitted by it in accordance with the
advice of such counsel. Escrow Agent shall not be bound by any modification,
amendment, termination, cancellation, rescission or supersession of this
Agreement unless the same shall be in writing and signed by all of the other
Parties hereto and, if its duties as Escrow Agent hereunder are affected
thereby, unless it shall have given its prior written consent thereto.
In the event that the Escrow Agent shall be uncertain as to its duties
or rights hereunder or shall receive instructions, claims or demands from any
party hereto which, in its opinion, conflict with any of the provisions of this
Agreement, it shall be entitled to refrain from taking any action and its sole
obligation shall be to keep safely all property held in escrow until it shall be
directed otherwise in writing by the Parties hereto or by a final judgment or
order of a court of competent jurisdiction.
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Escrow Agent shall not incur any liability for following the
instructions herein contained or expressly provided for, or written instructions
given by the Parties hereto.
Escrow Agent shall not have any responsibility for the genuineness or
validity of any document or other item deposited with it or any liability for
action in accordance with any written instructions or certificates given to it
hereunder and believed by it to be signed by the proper parties.
Escrow Agent shall not be required to institute legal proceedings of
any kind and shall not be required to initiate or defend any legal proceedings
which may be instituted against it in respect of the subject matter of these
instructions. If it does elect to act, it will do so only if it is indemnified
to its satisfaction against the cost and expense of such defense or initiation.
5. RESIGNATION. Escrow Agent may at any time resign hereunder by
giving written notice of its resignation to the Parties hereto at their address
set forth below, at least 10 days prior to the date specified for such
resignation to take effect, and, upon the effective date of such resignation,
all property then held by Escrow Agent hereunder shall be delivered by it to
such person as may be designated in writing by the Parties hereto, whereupon all
of Escrow Agent's obligations hereunder shall cease and terminate. If no such
person shall have been designated by such date, all obligations of Escrow Agent
hereunder shall nevertheless cease and terminate. Escrow Agent's sole
responsibility thereafter shall be to keep safely all property then held by it
and to deliver the same to a person designated by the Parties hereto or in
accordance with the directions of a final order or judgment of a court of
competent jurisdiction.
6. INDEMNIFICATION. SRG and Sayet agree (jointly and severally) to
indemnify, defend and hold Escrow Agent harmless from and against any and all
loss, damage, tax, liability and expense that may be incurred by Escrow Agent
arising out of or in connection with the acceptance of its appointment as Escrow
Agent hereunder, except as caused by its gross negligence or willful misconduct,
including the legal costs and expenses of defending itself against any claim or
liability in connection with its performance hereunder.
7. NOTICES. Any notice or communication in connection with this
Agreement shall be in writing and shall be deemed given to any party under this
agreement on the earlier of the date (i) actually received or (ii) sent by a
facility which provides for next day delivery:
IF TO SRG TO:
c/o Building Blocks Inc.
0000 Xxxx Xxxx Xxxx
Xxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxx
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with a copy to:
Xxxxxxx Krooks & Xxxx, P.C.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxx, Esq.
IF TO XXXXX XXXXX:
c/o Xxxxxx Xxxxx & Associates
000 Xxxxx Xxxxxxxx Xxxxx
Xxxxx, XX 00000
Attn.: Xxxxxx X. Xxxxx, Esq.
with a copy to:
Xxxxxx Xxxxx & Associates
000 Xxxxx Xxxxxxxx Xxxxx
Xxxxx, XX 00000
Attn.: Xxxxxx X. Xxxxx, Esq.
IF TO THE ESCROW AGENT:
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxx, Esq.
or to such other address as any party shall have specified by notice in writing
to the other in compliance with this Section 7.
8. BINDING NATURE. This Agreement shall be binding upon and inure to
the benefit of the Parties hereto and their respective successors, heirs,
executors, administrators and assigns.
9. GOVERNING LAW. This Agreement shall be governed by and
interpreted under the laws of the State of Florida applicable to contracts made
and performed therein without giving effect to the principles of conflict of
laws thereof.
10. AMENDMENT. Any amendment or waiver of the provisions hereof
shall be in writing and shall be signed by the parties against whom such
amendment or waiver is sought to be enforced.
11. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but collectively
all of such counterparts shall constitute one and the same agreement.
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IN WITNESS WHEREOF, the Parties hereto have executed this Escrow
Agreement on the date first above written.
INSTITUTE OF LABORATORY MEDICINE, INC.
(n/k/a Specialty Retail Group, Inc.)
By: /s/ XXXXX X. XXXXXX
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Authorized Officer
/s/ XXXXX XXXXX
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Xxxxx Xxxxx
/s/ XXXXXX XXXXX
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Xxxxxx Xxxxx, Esq.
XXXXXXX KROOKS & XXXX, P.C., Escrow Agent
By: /s/ XXXXXXX X. XXXX
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Xxxxxxx X. Xxxx, Esq.
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