EXHIBIT 10.2
ESCROW AGREEMENT
THIS ESCROW AGREEMENT is made and entered into this 8th day of October,
1997 by and between QPQ Corporation., a Florida corporation ("QPQ"), and Xxxxxx
Xxxx ("Xxxx") and Xx. Xxx Xxxxxx ("Xxxxxx") and Xxxxx Xxxxxxx ("Xxxxxxx") and
Atlas, Xxxxxxxx, Trop & Borkson, P.A. (the "Escrow Agent"). Xxxx, Xxxxxx and
Xxxxxxx are sometimes hereinafter referred to as the "Shareholders."
WHEREAS, Zanette is a party to that certain Agreement (the "Torland
Agreement") between Lator International, Inc. ("Lator") and the shareholders of
0000-0000 Xxxxxx Inc. d/b/a Torland ("Torland"), whereby Zanette has agreed,
upon the satisfaction of certain conditions, to exchange 100 shares of Torland
common stock (the "Torland Stock") for 12,000 shares of Lator common stock, as
more fully described in such agreement, a copy of which is attached hereto as
Exhibit A and incorporated herein by such reference, the result of which will be
that upon closing Lator shall become the owner of 100% of the issued and
outstanding capital stock of Torland.
WHEREAS, QPQ, Xxxx, Xxxxxx and Xxxxxxx are parties to that certain
Agreement and Plan of Reorganization of even date herewith (the "Reorganization
Plan") whereby they have each agreed to exchange shares of stock of Lator
beneficially owned, or in the case of Zanette to be beneficially owned, by them
for shares of QPQ Series A Preferred Stock (the "QPQ Preferred Stock") as more
fully described in the agreement which is attached hereto as Exhibit B and
incorporated herein by such reference, the result of which will be that upon
closing QPQ shall become the owner of 100% of the issued and outstanding capital
stock of Lator.
WHEREAS, pursuant to Section 6 of the Reorganization Plan, QPQ and the
Shareholders propose to establish an escrow account with the Escrow Agent in
which the Torland Stock to be exchanged by Zanette pursuant to the terms of the
Torland Agreement, as well as the QPQ Preferred Stock to be issued to Zanette
pursuant to the terms of the Reorganization Plan (the "QPQ Zanette Stock") ,
shall be deposited pending the closing of such transactions.
WHEREAS, the Escrow Agent is willing to establish an escrow for such
shares upon the terms and subject to the conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual convents and promises
herein contained and other good and valuable consideration, it is agreed as
follows:
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1. RECITALS. The foregoing recitals are true and correct.
2. ESTABLISHMENT OF ESCROW. By execution of this Agreement, the parties
hereto agree to establish an escrow account (the "Escrow Account") at the
principal office of the Escrow Agent.
3. ESCROW PERIOD. The period of the escrow (the "Escrow Period") shall
commence upon the execution of this Agreement and shall terminate (the
"Termination") upon the earlier to occur of the following dates:
a. The closing of the Torland Agreement pursuant to its terms; or
b. December 31, 1997.
During the Escrow Period, Zanette shall remain the record and beneficial owner
of the Torland Stock, but shall have no ownership rights in or to the QPQ
Zanette Stock, including any rights as a shareholder of QPQ or Lator.
4. DEPOSIT OF TORLAND STOCK AND XXXXXXX XXXXX STOCK INTO ESCROW. Upon
execution of this Agreement Zanette shall deliver a certificate to the Escrow
Agent representing the Torland Stock, duly endorsed for transfer to Lator, and
QPQ shall deliver to the Escrow Agent a certificate representing the QPQ Zanette
Stock.
5. DISBURSEMENTS FROM THE ESCROW ACCOUNT.
a. In the event that the Escrow Agent receives written confirmation
signed by QPQ and all of the Shareholders of the occurrence of Section 3(a)
prior to the Termination of the Escrow Period (the "Closing Confirmation"), the
Escrow Agent shall disburse in a timely manner to each of Zanette and QPQ his or
its respective certificates being held in Escrow, specifically the certificate
representing the Torland Stock shall be delivered to QPQ and the certificate
representing the QPQ Zanette Stock shall be delivered to Zanette.
b. In the event that the Escrow Agent has not received written
confirmation from QPQ and all of the Shareholders that Section 3(a) has occurred
prior to the Termination of the Escrow Period, the Escrow Agent shall advise QPQ
and the Shareholders in writing of such fact and QPQ's Board of Directors shall,
immediately upon receipt of such notice from the Escrow Agent, by resolution,
instruct QPQ's transfer agent to immediately cancel the QPQ Zanette Stock. The
Escrow Agent shall thereafter return the canceled QPQ Zanette Stock certificate
to QPQ and the Torland Stock certificate to Zanette.
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c. Upon the disbursement of all certificates in accordance with either
(a) or (b) above, the Escrow Agent will have no further responsibility with
respect to the certificates so disbursed, and upon disbursement in accordance
with said paragraphs, will have no further responsibility under this Agreement.
6. RIGHTS, DUTIES AND RESPONSIBILITIES OF THE ESCROW AGENT. It is
understood and agreed that the duties of the Escrow Agent are purely ministerial
in nature. It is further agreed that:
a. The Escrow Agent shall not be responsible for the performance of QPQ
and/or the Shareholders of their obligations under this Agreement.
b. The Escrow Agent shall have the right to act in reliance upon the
Closing Confirmation believed by it in good faith to be genuine. The Escrow
Agent shall not be obligated to make any inquiry as to the authority, capacity,
existence or identity of any person purporting to execute the Closing
Confirmation.
c. In the event the Escrow Agent shall be uncertain as to its duties or
rights hereunder or shall receive instruction with respect to the Escrow which,
in its sole opinion, are in conflict with any provision of this Agreement, it
shall be entitled to hold the certificates n the Escrow Account pending the
resolution of such uncertainty to the Escrow Agent's sole satisfaction, by final
judgment of a court of competent jurisdiction or otherwise; or the Escrow Agent,
at its sole option, may deposit the certificates in the registry of a court of
competent jurisdiction in a proceeding to which all parties in interest are
joined. Upon so depositing the certificates and filing the complaint and
interpleader, the Escrow Agent shall be completely discharged and released from
further liability. The parties hereto do hereby submit themselves to the
jurisdiction of said court.
d. The Escrow Agent shall not be liable for any action taken or omitted
hereunder except in the case of its bad faith, gross negligence or willful
misconduct. The Escrow Agent shall be entitled to consult with counsel of its
own choosing and shall not be liable for any action taken, suffered or omitted
by it in reasonable reliance upon the advice of such counsel. Any reasonable
expenses incurred by Escrow Agent in connection with such consultation shall be
reimbursed by QPQ.
e. The Escrow Agent shall have no responsibility at any time to
ascertain whether or not any security interest exists in the certificates or to
file any financing statement under the Uniform Commercial Code with respect to
such certificates.
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7. AMENDMENT; RESIGNATION. This Agreement may be altered or amended
only with the written consent of QPQ, the Shareholders and the Escrow Agent. The
Escrow Agent may resign as escrow agent at any time upon ten (10) days prior
written notice to QPQ and the Shareholders. In the case of the Escrow Agent's
resignation its only duty shall be to hold and dispose of the certificates in
accordance with the original provisions of this Agreement until a successor
escrow agent shall be appointed and written notice of the name and address of
such successor escrow agent shall be given to the Escrow Agent by QPQ and the
Shareholders, whereupon the Escrow Agent's only duty shall be to deliver to the
successor escrow agent the certificates.
8. FEES AND EXPENSES. The Escrow Agent shall be entitled to its
customary hourly fee as charged to QPQ when rendering legal services to QPQ for
its services hereunder. All fees relating to this Agreement are payable by QPQ.
9. INDEMNIFICATION. QPQ and the Shareholders (herein, jointly and
severally, the "Indemnitors") agree to indemnify the Escrow Agent and its
officers, directors, agent, employees and stockholders (herein, jointly and
severally, the "Indemnitiees") against and hold them harmless of and from, any
and all loss, liability, costs, damage and expense, including without
limitation, reasonable counsel fees, which the Indemnitees may suffer or incur
by reason of any action, claim or proceeding brought by any third party against
the Indemnitees, arising out of or relating in any way to this Agreement or any
transactions to which this Agreement relates. The expenses of one separate
counsel for the Indemnitiees shall be borne by the Indemnitors, jointly and
severally.
10. GOVERNING LAW AND ASSIGNMENT. Nothing is this Agreement is intended
to or shall confirm upon anyone other than the parties hereto any legal or
equitable right, remedy or claim. This Agreement shall be construed in
accordance with and governed by the laws of the State of Florida and shall be
binding upon the parties hereto and their respective successors and assigns;
provided, however, that no assignment or transfer may be made by any part of its
rights under this Agreement or with respect to the certificates unless the other
parties shall have consented in writing to such assignment or transfer.
11. MISCELLANEOUS.
(a) Each of the parties hereto will bear its own legal fees and
other expenses in connection with the transactions contemplated by this
Agreement.
(b) If any term or provision of this Agreement or any exhibits
thereto or the application thereof to any person, property or circumstances
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shall to any extent be invalid or unenforceable, the remainder of this Agreement
or the exhibits thereto or the application or such term or provision to person,
property or circumstances other than those as to which it is invalid and
unenforceable shall not be affected thereby, and each term and provision of this
Agreement or the exhibits thereto shall be valid and enforced to the fullest
extent permitted by law.
(c) Any notices, requests or consents hereunder shall be deemed
given, and any instruments delivered, two days after they have been mailed by
first class mail, postage prepaid, or upon receipt if delivered personally or by
facsimile transmission, as follows:
If to QPQ: 0000 Xxxxxx Xxxx
Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attention: C. Xxxxxxxx Xxxxxxxx, President
If to the Shareholders: 0000 Xxx Xxxx
Xxxx Xxxxx, Xxxxxxx 00000
With a copy to: Xxxxxx X. Xxxxxx, Esq.
Xxxxxx & Claire, P.A.
0000 X. Xxxxxxxx Xxxx Xxxx
Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
and Xxxxxxx X. Xxxx, Esq.
Xxxxx Xxxxx Xxxx
00 Xxxxxx Xxxxxx Xxxxx
Xxxxx, Xxxxxxx XXX0X0
If to Escrow Agent: Atlas, Xxxxxxxx, Trop & Borkson, P.A.
000 Xxxx Xxx Xxxx Xxxxxxxxx
Xxxxx 0000
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
except that any of the foregoing may from time to time by written notice to the
other designate another address which shall thereupon become its effective
address for the purposes of this paragraph.
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(d) This Agreement, including the exhibits and documents referred
to herein which are a part hereof, contain the entire understanding of the
parties hereto with respect to the subject matter and may be amended only by a
written instrument executed by the parties hereto or their successors or
assigns. Any paragraph headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
(e) This Agreement may be executed simultaneously 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.
(f) This Agreement shall inure to the benefit of and be binding
upon the parties hereto and their respective successors but shall not inure to
the benefit of anyone other than the parties signing this Agreement and their
respective successors.
(g) The parties have either (i) been represented by independent
legal counsel in connection with the negotiations and execution of this
Agreement, or (ii) each has had the opportunity to obtain independent legal
counsel, has been advised that it is in their best interests to do so and by
execution of this Agreement has waive the right.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
QPQ Corporation
By:
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C. Xxxxxxxx Xxxxxxxx, President
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Xxxxxx Xxxx
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Xx. Xxx Xxxxxx
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Xxxxx Xxxxxxx
Atlas, Xxxxxxxx, Trop & Borkson, P.A.
By:
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Xxxxxxx X. Xxxxxxxx, Esq.
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