EXHIBIT 1.4.5
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this "Agreement") is made as of September 23,
2004, by and among SSAC, LLC, a Florida limited liability company (the "Buyer"),
Xxxxx Xxxxxx ("Xxxxxx") and Xxxx Xxxxxxx ("Xxxxxxx"), and Xxxx, Xxxxxxx and
Xxxxx, PLC (the "Escrow Agent").
R E C I T A L S
A. The Buyer, Xxxxxx and Xxxxxxx (who, along with Xxx Xxxxxxxx and Xxxx
Xxxxxxx constitute the "Sellers"), and Trinity Healthcare of Winston-Salem, Inc.
(the "Company") are parties to a certain Stock Purchase Agreement dated as of
September __, 2004 (the "Stock Purchase Agreement");
B. Pursuant to the Stock Purchase Agreement, Xxxxxxx and Xxxxxx are to
receive, among other consideration, Three Hundred Forty Seven Thousand Five
Hundred ($347,500) Dollars worth of shares of common stock of Critical Home
Care, Inc. ("CHC"), a Nevada corporation (the "Purchase Consideration"),
calculated and paid in accordance with Section 1.4.5 of the Stock Purchase
Agreement in exchange for all of their common stock in the Company.
C. Pursuant to Section 1.4.5 of the Stock Purchase Agreement, a copy of
which Section is attached hereto as Exhibit "A", Xxxxxxx and Xxxxxx have agreed
that the Purchase Consideration received by Xxxxxxx and Xxxxxx would be subject
to offset/recoupment in the event that certain indemnification claims are
asserted by the Buyer within a one-year period from the date of the Stock
Purchase Agreement; and
D. The Escrow Agent is willing to hold, administer and distribute the
Escrowed Shares in accordance with the terms of this Agreement.
A G R E E M E N T
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the receipt and sufficiency of which are hereby acknowledged,
and with the intent to be legally bound hereby, the parties hereby agree as
follows:
1. APPOINTMENT OF THE ESCROW AGENT. The Buyer, Xxxxxxx and Xxxxxx hereby
appoint the Escrow Agent to serve as escrow agent and to hold, administer and
distribute the Escrowed Shares as provided hereunder, and the Escrow Agent
agrees to act as the Escrow Agent and to perform the services required
hereunder.
2. DEPOSIT OF ESCROWED SHARES. Upon receipt of the Purchase
Consideration, Xxxxxxx and Xxxxxx shall deliver to the Escrow Agent the number
of Escrowed Shares in the Stock Purchase Agreement, together with a Stock Power
executed in blank. The Escrow Agent agrees to hold, administer and distribute
the Escrowed Shares in the manner set forth in this Agreement including Exhibit
A attached hereto and incorporated herein.
3. RELEASE OF ESCROWED SHARES. The Escrow Agent shall release the
Escrowed Shares to Xxxxxxx and Xxxxxx, respectively, only upon the delivery of
any of the following written directions to the Escrow Agent:
(a) A joint written instruction executed by Xxxxxxx, Xxxxxx and
the Buyer directing the Escrow Agent to deliver to Xxxxxxx and Xxxxxx or
the Buyer all or such part of the Escrowed Shares specified in the
written instruction, which written instruction shall be delivered to the
Escrow Agent.
(b) A written instruction executed by Xxxxxxx and Xxxxxx or the
Buyer attaching a final and nonappealable order from a court of
competent jurisdiction directing the Escrow Agent to deliver to Xxxxxxx
and/or Xxxxxx all or such part of the Escrowed Shares as is specified in
the order.
4. SHAREHOLDER RIGHTS. Notwithstanding anything contained in this
Agreement to the contrary, (i) all of the Escrowed Shares shall constitute
issued and outstanding shares of CHC stock, (ii) Xxxxxxx and Xxxxxx shall be
entitled to receive immediately (and not paid into escrow) any dividends payable
with respect to such Escrowed Shares in the same manner as if such Escrowed
Shares were not subject to this Agreement, and (iii) Xxxxxxx and Xxxxxx (or
their authorized agent) shall have the right to vote the Escrowed Shares on all
matters required by law to be submitted or are otherwise submitted to the vote
of the shareholders of CHC in the same manner as if such Escrowed Shares were
not subject to this Agreement. If any dividends on the Escrowed Shares are paid
over to the Escrow Agent, then the Escrow Agent shall promptly distribute such
dividends to Xxxxxxx and Xxxxxx on a pro rata basis according to the number of
shares of each held in escrow.
5. TRANSFER OF ESCROWED SHARES. Xxxxxxx and Xxxxxx shall not have the
right to sell, assign, transfer, or convey any part of the Escrowed Shares as
long as such shares remain subject to this Agreement.
6. COMPENSATION. The Company shall pay the Escrow Agent the sum of Ten
and No/100 Dollars ($10.00) in consideration of the Escrow Agent's services
hereunder. In addition, the Company shall pay or reimburse the Escrow Agent for
all reasonable expenses, disbursements and advances, including reasonable
attorneys' fees, incurred by the Escrow Agent in connection with carrying out
its duties under this Agreement.
7. LEGAL COUNSEL. The Escrow Agent may employ such legal counsel and
other experts as it reasonably may deem necessary to retain for advice in
connection with its obligations hereunder, may rely upon the advice of such
counsel or experts and may pay such counsel or experts reasonable compensation
therefor.
8. RESIGNATION. The Escrow Agent may resign from its duties hereunder at
any time by giving written notice of such resignation to all the parties hereto.
The resignation shall be effective on the date specified by the Escrow Agent in
the written notice, but in no event less than forty five (45) days after the
giving of such notice. Promptly after such notice, a successor escrow agent
shall be appointed by mutual agreement of the Buyer, Xxxxxxx and Xxxxxx. The
Escrow Agent agrees to continue to serve until its successor accepts the escrow
and receives the
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Escrowed Shares. If a successor Escrow Agent has not been appointed, or has been
appointed but has not accepted such appointment by the end of the 45-day period,
Escrow Agent may apply to a court of competent jurisdiction for the appointment
of a successor Escrow Agent, and the costs, expenses and reasonable attorneys'
fees that are incurred in connection with such proceeding shall be paid equally
by the Company, Xxxxxx and Xxxxxxx.
9. LIABILITY. The Escrow Agent undertakes to perform only such duties as
are specifically set forth herein. The duties of the Escrow Agent are intended
to be purely ministerial in nature, and it shall not incur any liability
whatsoever, except for the Escrow Agent's willful misconduct or gross
negligence. The Escrow Agent shall not have any responsibility for the
genuineness or validity of any document or other item deposited with it or of
any signature thereon and shall not have any liability for acting in accordance
with any written instructions or certificates given to it hereunder and believed
by it to be signed by the proper parties. The Escrow Agent shall be entitled to
rely conclusively upon (i) any written notice, instrument or signature believed
by it to be genuine and to have been signed or presented by the proper party or
parties duly authorized to do so hereunder, and (ii) the advice of legal counsel
retained by it. The Buyer and Xxxxxxx and Xxxxxx jointly and severally agree to
hold the Escrow Agent (and each of its officers, directors, members, employees
and agents) harmless from, and indemnify the Escrow Agent (and each of its
officers, directors, members, employees and agents) against, any loss,
liability, expense (including, without limitation, reasonable attorneys' fees
and expenses), claim, suit, action, or demand arising out of or in connection
with the Escrow Agent's execution of this Agreement and the performance of the
Escrow Agent's obligations under this Agreement, except for any of the foregoing
arising out of the gross negligence or willful misconduct of the Escrow Agent.
The foregoing indemnification obligations in this Section shall survive the
resignation and substitution of the Escrow Agent and the termination of this
Agreement. The costs, expenses and reasonable attorney fees incurred in
enforcing these rights of indemnification shall also be paid equally by the
Company, Xxxxxx and Xxxxxxx.
10. CONTROVERSIES. If any controversy arises involving the Company,
Xxxxxxx and Xxxxxx, the Buyer or any third person with respect to the subject
matter of this Agreement, or if any situation not addressed under this Agreement
arises or the Escrow Agent is not directed how to act hereunder, the Escrow
Agent shall not determine the same or take any action with respect thereto, but
shall await the final resolution of any such controversy, and in such event the
Escrow Agent shall not be liable for any damage incurred as a result of, or in
connection with, such controversy. Furthermore, if in its sole, good faith
judgment the Escrow Agent determines that it is confronted with conflicting
demands with respect to the Escrowed Shares such that it risks incurring
liability regardless of the action it takes or refrains from taking in
connection with such demands, the Escrow Agent may, at its option, file an
action of interpleader requiring the parties to answer and litigate any claims
and rights among themselves. The Company, Xxxxxx and Xxxxxxx shall equally pay
all legal fees incurred by the Escrow Agent in connection any such interpleader
action.
11. DISCHARGE OF THE ESCROW AGENT. The Escrow Agent agrees that the
Buyer and Xxxxxxx and Xxxxxx may, by mutual written agreement at any time,
remove the Escrow Agent, and substitute therefor a bank or trust company, in
which event, upon receipt of written notice
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thereof, payment by the Company of any accrued but unpaid fees due the Escrow
Agent and reimbursement of the Escrow Agent's other fees and expenses, the
Escrow Agent shall deliver the Escrowed Shares to such substituted escrow agent,
and the Escrow Agent shall thereafter be discharged from all liability hereunder
except for any liability resulting from the Escrow Agent's willful misconduct or
gross negligence.
12. NOTICES. Any notice required or permitted to be given by any party
under this Agreement shall be given in writing and shall be deemed effectively
given (i) upon personal delivery to the party to be notified, (ii) on the next
business day after delivery to a nationally recognized overnight courier
service, (iii) when sent by confirmed facsimile if sent during normal business
hours of the recipient, if not, then on the next business day, or (iv) five days
after deposit with the United States Post Office, by registered or certified
mail, postage prepaid and addressed to the party to be notified at the address
or facsimile number indicated below for such party or at such other address as
such party may designate upon written notice to the other parties (except that
notice of change of address shall be deemed given upon receipt)
(a) if to the Buyer, addressed to:
SSAC, LLC
00000 Xxxxxxx Xxxx Xxxx., Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxx X. Xxxxxxx, XX
Fax: (000) 000-0000
with a copy to:
Xxxx, Xxxxxxx and Xxxxx, PLC
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
Attention: Xxxx X. Xxxx, Esq.
Fax: (000) 000-0000
(b) if to Xxxxxx, then to :
Xxxxx Xxxxxx
__________________________
__________________________
with a copy to:
J. Rene' Xxxxxxx, Jr.
000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxx, XX 00000
Fax: (000) 000-0000
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(c) if to Xxxxxxx, then to :
Xxxx Xxxxxxx
__________________________
__________________________
with a copy to:
J. Rene' Xxxxxxx, Jr.
000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxx, XX 00000
Fax: (000) 000-0000
(d) if to the Escrow Agent, then to:
Xxxx, Xxxxxxx and Xxxxx, PLC
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxxxx
00. TERMINATION OF AGREEMENT. This agreement shall continue in force
until all of the Escrowed Shares have been properly delivered to Xxxxxxx and
Xxxxxx or the Buyer, as applicable.
14. HEADINGS. The section headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. All pronouns shall be deemed to refer to the
masculine, feminine, neuter, singular or plural, as the identity of the persons,
firm or corporation may require in the context thereof.
15. GOVERNING LAW. This Agreement, including the validity hereof and the
rights and obligations of the parties hereunder and all amendments and
supplements hereof and all waivers and consents hereunder, shall be construed in
accordance with and governed by the domestic substantive laws of the State of
Michigan without giving effect to any choice of law or conflicts of law
provision or rule that would cause the application of the domestic substantive
laws of any other jurisdiction.
16. COUNTERPARTS/FACSIMILE SIGNAGURES. This Agreement may be executed in
any number of counterparts and facsimile signatures, each of which shall be
deemed an original but all of which together shall constitute but one and the
same instrument.
17. AMENDMENTS AND WAIVERS. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns. No amendment, supplement, modification or waiver of this Agreement
shall be binding unless executed in writing by the Buyer, Xxxxxxx, Xxxxxx and
the Escrow Agent. No waiver of any of the provisions of this Agreement shall be
deemed or shall constitute a waiver of any other provision
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hereof (whether or not similar), nor shall such waiver constitute a continuing
waiver unless otherwise expressly provided.
IN WITNESS WHEREOF, the parties hereto have signed this Escrow
Agreement as of the date first above written.
"BUYER":
SSAC, LLC, a Florida limited liability
company
By RKDA, Inc., a Michigan corporation
Its: Sole Member
Xxxxx X. Xxx By: /s/ Xxxxxxxx Xxxxxxx
------------------------- --------------------------
Xxxxxxxx Xxxxxxx
Its: Vice President
"XXXXXX"
/s/ Xxxxx Xxxxxx
------------------------------------------
Xxxxx Xxxxxx, individually
"XXXXXXX"
/s/ Xxxx Xxxxxxx
-------------------------------------------
Xxxx Xxxxxxx, individually
"ESCROW AGENT"
XXXX, XXXXXXX AND XXXXX, PLC
By: /s/ Xxxx X. Xxxx
------------------------- --------------------------------
Xxxx X. Xxxx, Esq.
Its: MEMBER
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EXHIBIT "A"
SECTION 1.4.5 OF PURCHASE AGREEMENT
1.4.5 CHC common stock, with a total value of Three Hundred Forty Seven
Thousand Five Hundred Dollars ($347,500) shall, on January 15, 2005, be
provided to Xxxxx Xxxxxx and Xxxx Xxxxxxx, provided, however, that of
such amount CHC common stock with a total value of Two Hundred Sixty
Thousand Six Hundred and Twenty Five Dollars ($260,625) shall placed in
escrow with counsel for Buyer for a period of one (1) year from the
date thereof pursuant to the Escrow Agreement attached as Exhibit 1.4.5
and such escrowed stock shall be subject to Buyer's rights of
recoupment/offset hereunder. To the extent not subject to
recoupment/offset, all such CHC shares placed in escrow shall be
provided to Xxxxx Xxxxxx and Xxxx Xxxxxxx on or before January 15,
2006. By no later than January 8, 2005, Messrs. Xxxxxx and Xxxxxxx will
jointly provide written notice to Buyer of the allocation among them of
the CHC common stock. Failing said notice, Buyer shall have all of such
stock jointly titled in the names of Messrs. Xxxxxx and Xxxxxxx. The
value of such shares of such CHC common stock on a per share basis
shall be determined by calculating the average daily closing price of
said stock for the ten (10) business day period immediately prior to
the Closing Date.
