EXHIBIT 10.18
INDEMNIFYING ESCROW AGREEMENT
This Escrow Agreement is entered into as of October 12, 2005, by and among
Oxford Ventures, Inc., a Nevada corporation (the "Buyer"), Xxxxx Xxxx (the
"Indemnification Representative") and Gottbetter & Partners, LLP (the "Escrow
Agent").
WHEREAS, the Buyer has entered into an Agreement and Plan of Merger and
Reorganization (the "Agreement") with the shareholders of Uluru, Inc., a
Delaware corporation (the "Company"), (i) pursuant to which the Buyer will
acquire all of the issued and outstanding share capital of the Company and (ii)
as a result of which the Company will become a wholly-owned subsidiary of the
Buyer;
WHEREAS, the Agreement provides that an escrow account will be established
to secure the indemnification obligations of the Indemnifying Shareholders, as
such term is defined in the Agreement to the Buyer; and
WHEREAS, the parties hereto desire to establish the terms and conditions
pursuant to which such escrow account will be established and maintained;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Consent of Company Stockholders. The Indemnifying Shareholders have,
either by virtue of their entry into the Agreement or through the execution of
an instrument to such effect, consented to: (a) the establishment of this escrow
to secure the Indemnifying Shareholders indemnification obligations under the
Agreement in the manner set forth herein, (b) the appointment of the
Indemnification Representative as their representatives for purposes of this
Indemnifying Escrow Agreement and as attorneys-in-fact and agents for and on
behalf of each Indemnifying Shareholders, and the taking by the Indemnification
Representative of any and all actions and the making of any decisions required
or permitted to be taken or made by them under this Indemnifying Escrow
Agreement and (c) all of the other terms, conditions and limitations in this
Indemnifying Escrow Agreement.
2. Escrow and Indemnification.
(a) Escrow of Shares. Simultaneously with the execution of this
Indemnifying Escrow Agreement, the Buyer shall deposit with the Escrow Agent a
certificate for 550,000 shares of common stock of the Buyer, as determined
pursuant to Section 1.5 of the Agreement, issued in the name of the Escrow Agent
or its nominee. The Escrow Agent hereby acknowledges receipt of such stock
certificate. The shares deposited with the Escrow Agent pursuant to the first
sentence of this Section 2(a) are referred to herein as the "Escrow Shares." The
Escrow Shares shall be held as a trust fund and shall not be subject to any
lien, attachment, trustee process or any other judicial process of any creditor
of any party hereto. The Escrow Agent agrees to hold the Escrow Shares in an
escrow account (the "Escrow Account"), subject to the terms and conditions of
this Indemnifying Escrow Agreement.
(b) Indemnification. The Indemnifying Shareholders have agreed in
Article VI of the Agreement to indemnify and hold harmless the Buyer from and
against specified Damages (as defined in Section 6.1 of the Agreement). The
Escrow Shares shall be security for such indemnity obligation of the
Indemnifying Shareholders, subject to the limitations, and in the manner
provided, in this Indemnifying Escrow Agreement.
(c) Dividends, Etc. Any securities distributed in respect of or in
exchange for any of the Escrow Shares, whether by way of stock dividends, stock
splits or otherwise, shall be issued in the name of the Escrow Agent or its
nominee, and shall be delivered to the Escrow Agent, who shall hold such
securities in the Escrow Account. Such securities shall be considered Escrow
Shares for purposes hereof. Any cash dividends or property (other than
securities) distributed in respect of the Escrow Shares shall promptly be
distributed by the Escrow Agent to the Indemnifying Shareholders in accordance
with Section 3(c).
(d) Voting of Shares. The Indemnification Representative shall
have the right, in its sole discretion, on behalf of the Indemnifying
Shareholders, to direct the Escrow Agent in writing as to the exercise of any
voting rights pertaining to the Escrow Shares, and the Escrow Agent shall comply
with any such written instructions. In the absence of such instructions, the
Escrow Agent shall not vote any of the Escrow Shares. The Indemnification
Representative shall have no obligation to solicit consents or proxies from the
Indemnifying Shareholders for purposes of any such vote.
(e) Transferability. The respective interests of the Indemnifying
Shareholders in the Escrow Shares shall not be assignable or transferable, other
than by operation of law. Notice of any such assignment or transfer by operation
of law shall be given to the Escrow Agent and the Buyer, and no such assignment
or transfer shall be valid until such notice is given.
3. Distribution of Escrow Shares.
(a) The Escrow Agent shall distribute the Escrow Shares only in
accordance with (i) a written instrument delivered to the Escrow Agent that is
executed by both the Buyer and the Indemnification Representative and that
instructs the Escrow Agent as to the distribution of some or all of the Escrow
Shares, (ii) an order of a court of competent jurisdiction, a copy of which is
delivered to the Escrow Agent by either the Buyer or the Indemnification
Representative, that instructs the Escrow Agent as to the distribution of some
or all of the Escrow Shares, or (iii) the provisions of Section 3(b) hereof.
(b) Within five business days after October [--], 2007 (the
"Termination Date"), the Escrow Agent shall distribute to the Indemnifying
Shareholders all of the Escrow Shares then held in escrow, registered in the
name of the Indemnifying Shareholders. Notwithstanding the foregoing, if the
Buyer has previously delivered to the Escrow Agent a copy of a Claim Notice and
the Escrow Agent has not received written notice of the resolution of the claim
covered thereby, or if the Buyer has previously delivered to the Escrow Agent a
copy of an Expected Claim Notice and the Escrow Agent has not received written
notice of the resolution of the anticipated claim covered thereby, the Escrow
Agent shall retain in escrow after the Termination Date such number of Escrow
Shares as have a Value (as defined in Section 4 below) equal to the Claimed
Amount covered by such Claim Notice or equal to the estimated amount of Damages
set forth in such Expected Claim Notice, as the case may be. Any Escrow Shares
so retained in escrow shall be distributed only in accordance with the terms of
clauses (i) or (ii) of Section 3(a) hereof. For purposes of this Indemnifying
Escrow Agreement, a Claim Notice means a written notification under the
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Agreement given by the Buyer to the Indemnifying Shareholders which contains (i)
a description and the amount (the "Claimed Amount") of any Damages incurred or
reasonably expected to be incurred by the Buyer, (ii) a statement that the Buyer
is entitled to indemnification under Article VI of the Agreement for such
Damages and a reasonable explanation of the basis therefor, and (iii) a demand
for payment (in the manner provided in Article VI of the Agreement below) in the
amount of such Damages. For purposes of this Indemnifying Escrow Agreement, an
Expected Claims Notice means a notice delivered pursuant to the Agreement by the
Buyer to an Indemnifying Shareholders, before expiration of a representation or
warranty, to the effect that, as a result a legal proceeding instituted by or
written claim made by a third party, the Buyer reasonably expects to incur
Damages as a result of a breach of such representation or warranty .
(c) Any distribution of all or a portion of the Escrow Shares (or
cash or other property pursuant to Section 2(c)) to the Indemnifying
Shareholders shall be made by delivery of stock certificates issued in the name
of the Indemnifying Shareholders covering such percentage of the Escrow Shares
being distributed as is calculated in accordance with the percentages set forth
opposite such holders' respective names on Attachment A attached hereto;
provided, however, that the Escrow Agent shall withhold the distribution of the
portion of the Escrow Shares otherwise distributable to an Indemnifying
Shareholders who has not, according to a written notice provided by the Buyer to
the Escrow Agent, prior to such distribution, surrendered pursuant to the terms
of the Agreement his, her or its stock certificates formerly representing shares
of stock of the Company. Any such withheld shares shall be delivered to the
Buyer promptly after the Termination Date, and shall be delivered by the Buyer
to the Indemnifying Shareholders to whom such shares would have otherwise been
distributed upon surrender of their Company stock certificates. Distributions to
the Indemnifying Shareholders shall be made by mailing stock certificates to
such holders at their respective addresses provided by the Purchaser's transfer
agent (or such other address as may be provided in writing to the Escrow Agent
by any such holder). No fractional Escrow Shares shall be distributed to
Indemnifying Shareholders pursuant to this Indemnifying Escrow Agreement.
Instead, the number of shares that each Indemnifying Shareholders Stockholder
shall receive shall be rounded up or down to the nearest whole number (provided
that the Indemnification Representative shall have the authority to effect such
rounding in such a manner that the total number of whole Escrow Shares to be
distributed equals the number of Escrow Shares then held in the Escrow Account).
4. Valuation of Escrow Shares. For purposes of this Indemnifying Escrow
Agreement, the "Value" of any Escrow Shares shall be $1.50 per share, multiplied
by the number of such Escrow Shares.
5. Fees and Expenses of Escrow Agent. The Buyer, on the one hand, and
the Indemnifying Shareholders, on the other hand, shall each pay one-half of the
fees of the Escrow Agent for the services to be rendered by the Escrow Agent
hereunder.
6. Limitation of Escrow Agent's Liability.
(a) The Escrow Agent shall incur no liability with respect to any
action taken or suffered by it in reliance upon any notice, direction,
instruction, consent, statement or other documents believed by it to be genuine
and duly authorized, nor for other action or inaction except its own willful
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misconduct or gross negligence. The Escrow Agent shall not be responsible for
the validity or sufficiency of this Indemnifying Escrow Agreement. In all
questions arising under the Escrow Agreement, the Escrow Agent may rely on the
advice of counsel, and the Escrow Agent shall not be liable to anyone for
anything done, omitted or suffered in good faith by the Escrow Agent based on
such advice. The Escrow Agent shall not be required to take any action hereunder
involving any expense unless the payment of such expense is made or provided for
in a manner reasonably satisfactory to it. In no event shall the Escrow Agent be
liable for indirect, punitive, special or consequential damages.
(b) The Buyer and the Indemnifying Shareholders agree to indemnify
the Escrow Agent for, and hold it harmless against, any loss, liability or
expense incurred without gross negligence or willful misconduct on the part of
Escrow Agent, arising out of or in connection with its carrying out of its
duties hereunder. The Buyer, on the one hand, and the Indemnifying Shareholders,
on the other hand, shall each be liable for one-half of such amounts.
7. Liability and Authority of Indemnification Representative;
Successors and Assignees.
(a) The Indemnification Representative shall incur no liability to
the Indemnifying Shareholders with respect to any action taken or suffered by
him in reliance upon any note, direction, instruction, consent, statement or
other documents believed by him to be genuinely and duly authorized, nor for
other action or inaction except his own willful misconduct or gross negligence.
The Indemnification Representative may, in all questions arising under the
Escrow Agreement, rely on the advice of counsel and the Indemnification
Representative shall not be liable to the Indemnifying Shareholders for anything
done, omitted or suffered in good faith by the Indemnification Representative
based on such advice.
(b) In the event of the death or permanent disability of the
Indemnification Representative, or his or her resignation as an Indemnification
Representative, a successor Indemnification Representative shall be appointed by
the other Indemnification Representative or, absent its appointment, a successor
Indemnification Representative shall be elected by a majority vote of the
Indemnifying Shareholders, with each such Indemnifying Shareholder (or his, her
or its successors or assigns) to be given a vote equal to the number of votes
represented by the shares of stock of the Company held by such Indemnifying
Shareholder immediately prior to the effective time of the share purchase under
the Agreement. Each successor Indemnification Representative shall have all of
the power, authority, rights and privileges conferred by this Indemnifying
Escrow Agreement upon the original Indemnification Representative, and the term
"Indemnification Representative" as used herein shall be deemed to include
successor Indemnification Representative.
(c) The Indemnification Representative shall have full power and
authority to represent the Indemnifying Shareholders, and their successors, with
respect to all matters arising under this Indemnifying Escrow Agreement and all
actions taken by the Indemnification Representative hereunder shall be binding
upon the Indemnifying Shareholders, and their successors, as if expressly
confirmed and ratified in writing by each of them. Without limiting the
generality of the foregoing, the Indemnification Representative shall have full
power and authority to interpret all of the terms and provisions of this
Indemnifying Escrow Agreement, to compromise any claims asserted hereunder and
to authorize any release of the Escrow Shares to be made with respect thereto,
on behalf of the Indemnifying Shareholders and their successors.
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(d) The Escrow Agent may rely on the Indemnification
Representative as the exclusive agent of the Indemnifying Shareholders under
this Indemnifying Escrow Agreement and shall incur no liability to any party
with respect to any action taken or suffered by it in reliance thereon.
8. Amounts Payable by Indemnifying Shareholders. The amounts payable by
the Indemnifying Shareholders under this Indemnifying Escrow Agreement (i.e.,
the fees of the Escrow Agent payable pursuant to Section 5 and the
indemnification obligations pursuant to Section 6(b)) shall be payable solely as
follows. The Escrow Agent shall notify the Indemnification Representative of any
such amount payable by the Indemnifying Shareholders as soon as it becomes aware
that any such amount is payable, with a copy of such notice to the Buyer. On the
sixth business day after the delivery of such notice, the Escrow Agent shall
sell such number of Escrow Shares (up to the number of Escrow Shares then
available in the Escrow Account), subject to compliance with all applicable
securities laws, as is necessary to raise such amount, and shall be entitled to
apply the proceeds of such sale in satisfaction of such indemnification
obligations of the Indemnifying Shareholders; provided that if the Buyer
delivers to the Escrow Agent (with a copy to the Indemnification
Representative), within five business days after delivery of such notice by the
Indemnification Representative, a written notice contesting the legitimacy or
reasonableness of such amount, then the Escrow Agent shall not sell Escrow
Shares to raise the disputed portion of such claimed amount except in accordance
with the terms of clauses (i) or (ii) of Section 3(a).
9. Termination. This Indemnifying Escrow Agreement shall terminate upon
the distribution by the Escrow Agent of all of the Escrow Shares in accordance
with this Indemnifying Escrow Agreement; provided that the provisions of
Sections 6 and 7 shall survive such termination.
10. Notices. All notices, instructions and other communications given
hereunder or in connection herewith shall be in writing. Any such notice,
instruction or communication shall be sent either (i) by registered or certified
mail, return receipt requested, postage prepaid, or (ii) via a reputable
nationwide overnight courier service, in each case to the address set forth
below. Any such notice, instruction or communication shall be deemed to have
been delivered two business days after it is sent by registered or certified
mail, return receipt requested, postage prepaid, or one business day after it is
sent via a reputable nationwide overnight courier service.
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If to the Indemnification Representative, to:
Xxxxx X. Xxxx
[o]
[o]
Telephone: [o]
Facsimile: [o]
With a copy to: McGuireWoods LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Purchaser, to: Oxford Ventures, Inc.
0000 Xxxx Xxx Xxxxxx, Xxxxx 000
Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to:
Gottbetter & Partners, LLP
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx X. Xxxxxxxxxx, Esq.
If to the Escrow Agent:
Gottbetter & Partners, LLP
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx X. Xxxxxxxxxx, Esq.
Any party may give any notice, instruction or communication in connection
with this Indemnifying Escrow Agreement using any other means (including
personal delivery, telecopy or ordinary mail), but no such notice, instruction
or communication shall be deemed to have been delivered unless and until it is
actually received by the party to whom it was sent. Any party may change the
address to which notices, instructions or communications are to be delivered by
giving the other parties to this Indemnifying Escrow Agreement notice thereof in
the manner set forth in this Section 10.
11. Successor Escrow Agent. In the event the Escrow Agent becomes
unavailable or unwilling to continue in its capacity herewith, the Escrow Agent
may resign and be discharged from its duties or obligations hereunder by
delivering a resignation to the parties to this Escrow Agreement, not less than
60 days prior to the date when such resignation shall take effect. The Buyer may
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appoint a successor Escrow Agent without the consent of the Indemnification
Representative so long as such successor is a bank with assets of at least $500
million, and may appoint any other successor Escrow Agent with the consent of
the Indemnification Representative, which shall not be unreasonably withheld.
If, within such notice period, the Buyer provides to the Escrow Agent written
instructions with respect to the appointment of a successor Escrow Agent and
directions for the transfer of any Escrow Shares then held by the Escrow Agent
to such successor, the Escrow Agent shall act in accordance with such
instructions and promptly transfer such Escrow Shares to such designated
successor. If no successor Escrow Agent is named as provided in this Section 11
prior to the date on which the resignation of the Escrow Agent is to properly
take effect, the Escrow Agent may apply to a court of competent jurisdiction for
appointment of a successor Escrow Agent.
12. General.
(a) Governing Law; Assigns. This Indemnifying Escrow Agreement
shall be governed by and construed in accordance with the internal laws of the
State of New York without regard to conflict-of-law principles and shall be
binding upon, and inure to the benefit of, the parties hereto and their
respective successors and assigns.
(b) Counterparts. This Indemnifying Escrow Agreement may be
executed in two or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same instrument.
(c) Entire Agreement. Except for those provisions of the Agreement
referenced herein, this Indemnifying Escrow Agreement constitutes the entire
understanding and agreement of the parties with respect to the subject matter of
this Indemnifying Escrow Agreement and supersedes all prior agreements or
understandings, written or oral, between the parties with respect to the subject
matter hereof.
(d) Waivers. No waiver by any party hereto of any condition or of
any breach of any provision of this Escrow Agreement shall be effective unless
in writing. No waiver by any party of any such condition or breach, in any one
instance, shall be deemed to be a further or continuing waiver of any such
condition or breach or a waiver of any other condition or breach of any other
provision contained herein.
(e) Amendment. This Indemnifying Escrow Agreement may be amended
only with the written consent of the Buyer, the Escrow Agent and the
Indemnification Representative.
(f) Consent to Jurisdiction and Service. The parties hereby
absolutely and irrevocably consent and submit to the jurisdiction of the courts
in the State of New York and of any Federal court located in said State in
connection with any actions or proceedings brought against any party hereto by
the Escrow Agent arising out of or relating to this Escrow Agreement. In any
such action or proceeding, the parties hereby absolutely and irrevocably waive
personal service of any summons, complaint, declaration or other process and
hereby absolutely and irrevocably agree that the service thereof may be made by
certified or registered first-class mail directed to such party, at their
respective addresses in accordance with Section 10 hereof.
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IN WITNESS WHEREOF, the parties have duly executed this Indemnifying
Escrow Agreement as of the day and year first above written.
OXFORD VENTURES, INC.
By: /s/ Xxxxxx Xxxxxxx
-----------------------------------------------
Name: Xxxxxx Xxxxxxx
Title: President and Chief Executive Officer
/s/ Xxxxx X. Xxxx
--------------------------------------------------
Xxxxx X. Xxxx, Individually and as Indemnification
Representative
GOTTBETTER & PARTNERS, LLP
By: /s/ Xxxx X. Xxxxxxxxxx
------------------------------------------------
Name: Xxxx X. Xxxxxxxxxx, Esq.
Title: Partner
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