ESCROW AGREEMENT
Exhibit 10.2
Execution Copy
THIS ESCROW AGREEMENT (the “Agreement”) is entered into as of August 7, 2007, by and among NexCen Asset Acquisition, LLC, a Delaware limited liability company (“Buyer”), NexCen Brands, Inc., a Delaware corporation (“Parent”), Pretzel Time Franchising, LLC, a Delaware limited liability company (“Pretzel Time”), Pretzelmaker Franchising, LLC, a Delaware limited liability company (“Pretzelmaker,” and with Pretzel Time, each individually, a “Seller,” and collectively, the “Sellers”), and Wilmington Trust Company, as escrow agent hereunder (the “Escrow Agent”). Capitalized terms used but not defined herein shall have the respective meanings assigned to them in the Purchase Agreement (as defined herein). The Escrow Agent, Parent, Buyer and Sellers are sometimes collectively referred to herein as the “Parties” and individually as a “Party.”
RECITALS
WHEREAS, Parent, Buyer, Pretzel Time, Pretzelmaker, and Xxx. Xxxxxx Famous Brands, LLC (“MFFB”) have entered into that certain Asset Purchase Agreement, dated as of August 7, 2007 (the “Purchase Agreement”), pursuant to which the Sellers have agreed to sell, and Buyer has agreed to purchase, substantially all of the Sellers’ assets;
WHEREAS, pursuant to Sections 3.3(a) and 3.6 of the Purchase Agreement, a portion of the Purchase Price is required to be held in escrow after the Closing Date to secure certain obligations of the Sellers and MFFB; and
WHEREAS, in order to fully and exclusively secure (a) (i) the obligation, if any, of the Sellers for a Purchase Price Deficit under Section 3.2(f) of the Purchase Agreement (an “Adjustment Claim”) and (ii) the indemnity and payment obligations of the Sellers and MFFB under Article XI of the Purchase Agreement (an “Indemnification Claim”), the parties to the Purchase Agreement have agreed, pursuant to Section 3.6(a) of the Purchase Agreement, that the Buyer shall cause to be deposited with the Escrow Agent 400,366 shares of common stock of the Parent (the “Indemnity Escrow Shares”) issued in the names of the Sellers, and (b) the indemnity and payment obligations of the Sellers and MFFB under Article VI and Section 11.2(f) of the Purchase Agreement (an “Developing Agents Liability”), the parties to the Purchase Agreement have agreed, pursuant to Section 3.6(b) of the Purchase Agreement, that the Buyer shall cause to be deposited with the Escrow Agent 136,054 shares of common stock of the Parent (the “Developing Agent Escrow Shares,” and collectively with the Indemnity Escrow Shares, the “Escrow Shares”) issued in the name of Pretzel Time, to be held in escrow and disbursed therefrom pursuant to the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of these premises and the mutual obligations and covenants set forth herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
1. Appointment of Escrow Agent; Receipt of Escrow Amount.
(a) The Buyer, the Parent, and the Sellers appoint the Escrow Agent as their escrow agent for the purposes set forth herein, and the Escrow Agent hereby accepts such appointment under the terms and conditions set forth herein.
(b) Following the execution of this Agreement, the Buyer shall deposit, or cause to be deposited, with the Escrow Agent the Escrow Shares as set forth in the Purchase Agreement. The Buyer or Parent shall deliver to the Escrow Agent the stock powers necessary to carry forth distributions according to Section 3 of this Agreement.
|
|
(c) Upon receipt by the Escrow Agent of the Escrow Shares, the Escrow Agent shall hold such Escrow Shares including (i) any securities into which the Indemnity Escrow Shares may be reclassified or converted (collectively, with the Indemnity Escrow Shares, the “Aggregate Indemnity Escrow Shares”), (ii) any securities into which the Developing Agents Escrow Shares may be reclassified or converted (collectively, with the Developing Agents Escrow Shares, the “Aggregate Developing Agents Escrow Shares,” and collectively, with the Aggregate Indemnity Escrow Shares, the “Aggregate Escrow Shares”), (iii) any cash dividends paid on the Aggregate Indemnity Escrow Shares, and investment income earned on such dividends (the “Aggregate Indemnity Cash Amount”) and (iv) any cash dividends paid on the Aggregate Developing Agents Escrow Shares, and investment income earned on such dividends (the “Aggregate Developing Agent Cash Amount,” and collectively with the Aggregate Indemnity Cash Amount, the “Aggregate Cash Amount”) in a separate and distinct account (the “Escrow Account”), subject to the terms and conditions of this Agreement. The Aggregate Cash Amount and the Aggregate Escrow Shares shall be referred to here as the “Escrow Amount”
(d) The Escrow Agent shall not distribute or release the Escrow Amount, except in accordance with the express terms and conditions of this Agreement.
2. Treatment of Escrow Property.
(a) Escrow Shares.
(i) Voting. The Aggregate Escrow Shares deposited and held in the Escrow Account are subject to the Registration Rights Agreement and Voting Agreement. The Escrow Agent shall not have any right to vote or consent with respect to the Aggregate Escrow Shares.
(ii) Dividends. If Parent declares and distributes dividends with respect to the Parent Shares during such time as the Aggregate Escrow Shares are held in the Escrow Account, the Parent shall deposit in the Escrow Account the amount of such dividends allocable to such Aggregate Escrow Shares. If the Parent deposits amounts pursuant to such dividends in the Escrow Account in accordance with the provisions of this Section 2(a)(ii), Xxx. Xxxxxx’ Famous Brands, LLC (“MFFB”) shall include such dividends in their income for federal, state and local income tax purposes, provided that the Parent timely provide MFFB with copies of Internal Revenue Service (“IRS”) Forms 1099 on which is reported the amount of such dividend income. In addition, MFFB shall include in income for federal, state and local income tax purposes any interest earned on such dividends while held in the Escrow Account, provided that the Escrow Agent shall timely provide MFFB with IRS Forms 1099, on which is reported such interest income.
(iii) Conversion of Parent Shares. If the Parent Shares are converted by the Parent through a stock split or a reverse stock split, then the Closing Date Reference Price shall be adjusted in direct but inverse relation to the stock split (the “Adjusted Closing Date Reference Price”). For example, for illustration purposes only: (A) if the Parent Shares are split 2 to 1, then the Adjusted Closing Date Reference Price shall be the Closing Date Reference Price divided by 2; or (B) if the Parent Shares undergo a reverse split of 1 to 2, then the Adjusted Closing Date Reference Price shall be the Closing Date Reference Price multiplied by 2.
(iv) Transferability. Other than as provided in Section 18, the Sellers may not sell, transfer, assign, pledge or otherwise dispose of (whether with or without consideration and whether voluntarily or involuntarily or by operation of law) any interest in the Escrow Amount at any time that the Aggregate Escrow Shares are held in escrow pursuant to this Agreement.
2
(v) New Certificates. If fewer than the total number of the Aggregate Escrow Shares represented by any certificate (or certificates) representing the Aggregate Escrow Shares are to be distributed to the Buyer, the Parent, or the Sellers hereunder, the Parent shall deliver a new certificate (or certificates) representing the number of the Aggregate Escrow Shares not so distributed to the Escrow Agent within ten (10) Business Days after the Escrow Agent’s surrender of the certificate (or certificates) representing the distributed Aggregate Escrow Shares.
(vi) Escrow Agent Obligations. Except as otherwise provided in Section 2(a) hereof, the Escrow Agent’s sole obligation with respect to any distribution of the Aggregate Escrow Shares to the Buyer or Parent shall be to (i) deliver the certificate (or certificates) representing such Aggregate Escrow Shares and any related stock powers to the Buyer, the Parent or its designated stock transfer agent with appropriate instructions to the Parent to issue a new certificate in the name of the Party or Parties entitled to such Aggregate Escrow Shares along with proper delivery instructions and (ii) instruct the Parent or its designated stock transfer agent to issue a new certificate to be returned to the Escrow Agent for any undistributed Aggregate Escrow Shares. The Escrow Agent shall not be liable for any error, mistake, delay or failure to act by the Buyer, the Parent or its designated stock transfer agent, including without limitation, any error, mistake, delay or failure in the delivery of the Aggregate Escrow Shares.
(b) Aggregate Cash Amount.
(i) Permitted Investments. The Escrow Agent shall invest and reinvest the Aggregate Cash Amount pursuant to written directions of the Sellers, and in the absence of such directions, in any or all of the following: (i) short-term direct obligations of, or obligations fully guaranteed by, the United States of America or any agency thereof; (ii) certificates of deposit issued by any bank, trust company or national banking association having total capital and surplus in excess of $500,000,000 and rated at least AAA by Standard & Poor’s Rating Group and AAA by Xxxxx’x Investors Services, Inc., to the maximum extent permitted by law; (iii) commercial paper rated in the highest grade by Standard & Poor’s Rating Group and/or Xxxxx’x Investors Service, Inc., in each case having maturities of not more than 30 days; or (iv) the U.S. Government Portfolio of the Wilmington family of mutual funds or any other mutual funds for which Escrow Agent or any affiliate of Escrow Agent may serve as investment advisor or other service provider (such investment described above in (i) through (iv) being collectively referred to herein as the “Permitted Investments”). Investment earnings shall be credited to the Escrow Account until disbursed in accordance with this Agreement. Any loss incurred from an investment or sale thereof other than losses resulting directly or indirectly from the gross negligence or willful misconduct of the Escrow Agent, shall be deducted from the Aggregate Cash Amount of the Escrow Account. The Escrow Agent shall not be responsible for any losses on any uninvested cash remaining in the Escrow Account, which may occur because of bank failure or the Aggregate Cash Amount exceeding the FDIC limits.
(ii) Disposition of Securities. At the time that the Escrow Agent shall be required to make any payment in connection with the Escrow Account under this Agreement, the Escrow Agent shall promptly and timely liquidate the Permitted Investments associated with the Escrow Account hereunder to the extent necessary to make such payment in accordance with the terms hereof.
3. Release of Escrow Amount. The Escrow Amount shall only be distributed and released as follows:
(a) Adjustment Claims. If the Sellers fail to satisfy any amount owed to Buyer in accordance with Section 3.2(f) of the Purchase Agreement within three (3) days following the final determination of the Final Purchase Price in accordance with Section 3.2 of the Purchase Agreement, the
3
Buyer may deliver to the Sellers and the Escrow Agent a notice (the “Adjustment Draw-Down Notice”) setting forth the amounts claimed due to the Buyer from the Sellers pursuant to Section 3.2(f) of the Purchase Agreement, together with either a written confirmation by the Sellers as to such amount or a copy of the Accountant Statement that confirms such amount (such amount herein referred to as the “Cash Shortfall”) on or before the date that is ten (10) Business Days following the final determination of the Final Purchase Price (the “Adjustment Escrow Notice Date”). Within three (3) Business Days following the Adjustment Escrow Notice Date, the Escrow Agent shall transfer an amount equal to the Cash Shortfall to the Buyer in accordance with Section 3(c) of this Agreement.
(b) Indemnification and Developing Agent Claims.
(i) On each occasion on which the Parent determines in good faith that any Buyer Indemnified Party is entitled to payment of a claim for indemnification against the Seller or MFFB in accordance with Article XI of the Purchase Agreement, the Parent or the Buyer may deliver to the Sellers, MFFB, and the Escrow Agent a written request for the payment of such amount (an “Indemnification Draw-Down Request”). The Indemnification Draw-Down Request shall set forth the amount requested and, in reasonable detail, the specific basis (to the extent known) for the determination of the amount of the claim and why such Buyer Indemnified Party is entitled to the payment of such amount.
(ii) On each occasion on which the Parent determines in good faith that any Buyer Indemnified Party is entitled to payment of a claim for a Developing Agent Liability, the Parent or the Buyer may deliver to the Sellers, MFFB, and the Escrow Agent a written request for the payment of such amount (an “Developing Agent Liability Draw-Down Request”, and collectively with the Indemnification Draw-Down Request, a “Draw-Down Request”). The Developing Agents Liability Draw-Down Request shall set forth the amount requested and, in reasonable detail, the specific basis (to the extent known) for the determination of the amount of the claim and why such Buyer Indemnified Party is entitled to the payment of such amount.
(iii) Within five (5) Business Days after receipt by the Sellers and the Escrow Agent of any Draw-Down Request, the Sellers or MFFB may deliver to the Parent, the Buyer and the Escrow Agent a written objection to all or any part of the Draw-Down Request (an “Objection”).
(iv) If, in connection with any Draw-Down Request, the Sellers fail to deliver an Objection by the end of the fifth (5th) Business Day following the receipt by the Sellers of a Draw-Down Request, the Escrow Agent shall pay to the applicable Buyer Indemnified Party out of the Escrow Account an amount equal to the amount requested in the Draw-Down Request, in accordance with Section 3(c) of this Escrow Agreement. Any such payment shall be made on or before the third (3rd) Business Day following the expiration of such five (5) day period.
(v) If the Sellers deliver a timely Objection with respect to all or any portion of a Draw-Down Request, the Escrow Agent shall not disburse, and shall continue to hold in the Escrow Account, the amount requested in the Draw-Down Request or the disputed portion thereof, as the case may be, pending receipt of either (A) written payment instructions signed by the Parent and Sellers specifying the agreement of the parties as to the action to be taken by the Escrow Agent in respect of such Draw-Down Request (the “Payment Instructions”) or (B) a notice from the Parent and Sellers stating that such Draw-Down Request has been submitted to a court of competent jurisdiction for judgment and that a judgment with respect to such matters has been rendered (a “Judgment Notice”) which is accompanied by a copy of a final, non-appealable order of such court (an “Order”), pursuant to which such court has determined whether and to what extent the Buyer Indemnified Party is entitled to the amount requested in
4
the Draw Down Request. Upon receipt of Payment Instructions or a Judgment Notice, the Escrow Agent shall thereafter act in accordance with Section 3(b)(v) or Section 3(b)(vi) below, as applicable.
(vi) If the Escrow Agent receives Payment Instructions indicating that a Buyer Indemnified Party is entitled to payment in respect of all or any portion of the applicable Draw-Down Request, the Escrow Agent shall release from the Escrow Account and deliver to such Buyer Indemnified Party such amount as is indicated by such Payment Instructions in accordance with Section 3(c) of this Agreement. The Escrow Agent shall deliver the amounts due to the Buyer Indemnified Party on or before the fifth (5th) Business Day following the date on which the Escrow Agent receives such Payment Instructions. If the Payment Instructions indicate that a Buyer Indemnified Party is not entitled to all or any portion of the amount claimed in such Draw-Down Request (a “Discharge Notice”), then the Escrow Agent shall (A) deliver to the Buyer Indemnified Party that portion, if any, of the amount claimed in the Draw-Down Request to which such Buyer Indemnified Party is entitled, in accordance with Section 3(c) of this Agreement, and (B) continue to hold the remaining amount of such Aggregate Escrow Shares and Aggregate Cash Amount in the Escrow Account in accordance with the terms of this Agreement.
(vii) If the Escrow Agent receives a Judgment Notice and an Order with respect to any Draw-Down Request, then the Escrow Agent shall release from the Escrow Account and deliver to the applicable Buyer Indemnified Party such amount from the Escrow Account equal to the amount due such Buyer Indemnified Party, as indicated in such Order in accordance with Section 3(c) of this Agreement. The Escrow Agent shall deliver the amounts due to the Buyer Indemnified Party on or before the fifth (5th) Business Day following the date on which the Escrow Agent receives such Order. If such Order indicates that the applicable Buyer Indemnified Party is not entitled to all or any portion of the amount claimed in the Draw-Down Request (a “Determination Discharge”), then the Escrow Agent shall (A) deliver to the Buyer Indemnified Party that portion, if any, of the amount claimed in the Draw-Down Request to which such Buyer Indemnified Party is entitled, in accordance with Section 3(c) of this Agreement, and (B) continue to hold the remaining amount of such Aggregate Escrow Shares and Aggregate Cash Amount in the Escrow Account in accordance with the terms of this Agreement.
(c) Payments from the Escrow Fund. The Escrow Agent shall pay all amounts due under an Adjustment Draw-Down Notice or Draw-Down Request, determined according to the terms of Section 3(a) and Section 3(b) of this Agreement, by releasing to the appropriate Buyer Indemnified Party a number of Aggregate Escrow Shares, rounded to the nearest whole number, equal to the quotient determined by dividing (x) the Adjustment Draw-Down Notice or Draw-Down Request amount by (y) the Adjusted Closing Date Reference Price. If the Escrow Account does not contain sufficient Aggregate Escrow Shares to satisfy an Adjustment Draw-Down Notice or Draw-Down Request, then the Escrow Agent shall release to the appropriate Buyer Indemnified Party all Aggregate Escrow Shares contained in the Escrow Account, and shall pay the remaining balance in cash from the Aggregate Cash Amount.
(d) Release of Remaining Aggregate Escrow Shares.
(i) Aggregate Indemnity Escrow Shares. On the date that is 9 months and one day after the Closing Date (the “Indemnity Release Date”), the Escrow Agent shall promptly deliver to the Sellers, as instructed in writing by the Sellers, the Aggregate Indemnity Escrow Shares and Aggregate Indemnity Cash Amount remaining in the Escrow Account on the Indemnity Release Date (the “Indemnity Disbursement Amount”); provided, however, that if the Escrow Agent shall have received on or before the Indemnity Release Date one or more Indemnity Draw-Down Requests which have not been paid in accordance with Section 3(c) as of the Indemnity Release Date and as to which, on the Indemnity Release Date, the Escrow Agent has not received and fully acted upon Payment Instructions or an Order, nor received a Discharge Notice or a Determination Discharge (any such Indemnity Draw-Down Request being referred to as an “Indemnity Outstanding Claim”) (it being agreed that to the extent that the precise
5
amount of Damages with respect to any Indemnity Outstanding Claim is not known prior to the Indemnity Release Date, the Buyer shall have the right to send Sellers and the Escrow Agent on or before the Indemnity Release Date a (or an updated) Indemnity Draw-Down Request with respect to each Indemnity Outstanding Claim that provides such Parties notice of such Buyer Indemnified Party’s good faith estimate of the maximum amount of Damages resulting from such Indemnity Outstanding Claim) the Escrow Agent shall retain and continue to hold in accordance with the terms of this Agreement an amount of Aggregate Indemnity Escrow Shares and Aggregate Indemnity Cash Amount equal to the maximum amount claimed by Buyer Indemnified Parties under all Indemnity Outstanding Claims (the “Retained Indemnity Amount”). The Escrow Agent shall deliver to the Sellers, as instructed by the Sellers such amount equal to the excess, if any, of the Indemnity Disbursement Amount less the Retained Indemnity Amount; and thereafter the Escrow Agent shall release from the Escrow Account all or portions of the Retained Indemnity Amount as and when it receives Payment Instructions, Orders, Discharge Notices or Determination Discharges, as applicable, related to the Indemnity Outstanding Claims. Following the Indemnity Release Date, in the event that the Retained Indemnity Amount at any time exceeds the maximum amount (based on the most recent Indemnity Draw-Down Request for each Indemnity Outstanding Claim) of all Indemnity Outstanding Claims, the Escrow Agent shall deliver according to the Sellers’ instructions, within five (5) Business Days of the Sellers’ written request for such delivery, such amount equal to such excess.
(ii) Aggregate Developing Agents Escrow Shares. Unless notified by both the Buyer and Sellers to release the Aggregate Developing Agents Escrow Shares earlier, on the 15th month and one day after the Closing Date (the “Developing Agents Release Date”), the Escrow Agent shall promptly deliver to the Sellers, as instructed in writing by the Sellers, the Aggregate Developing Agents Escrow Shares and Aggregate Developing Agents Cash Amount remaining in the Escrow Account on the Developing Agents Release Date (the “Developing Agents Disbursement Amount”); provided, however, that if the Escrow Agent shall have received on or before the Developing Agents Release Date one or more Developing Agents Liability Draw-Down Requests which have not been paid in accordance with Section 3(c) as of the Developing Agents Release Date and as to which, on the Developing Agents Release Date, the Escrow Agent has not received and fully acted upon Payment Instructions or an Order, nor received a Discharge Notice or a Determination Discharge (any such Developing Agents Liability Draw-Down Request being referred to as an “Developing Agents Outstanding Claim”) (it being agreed that to the extent that the precise amount of Developing Agents Liability with respect to any Outstanding Claim is not known prior to the Developing Agents Release Date, the Buyer shall have the right to send Sellers and the Escrow Agent on or before the Developing Agents Release Date a (or an updated) Developing Agents Liability Draw-Down Request with respect to each Developing Agents Outstanding Claim that provides such Parties notice of such Buyer Indemnified Party’s good faith estimate of the maximum amount of the Developing Agents Liability resulting from such Developing Agents Outstanding Claim) the Escrow Agent shall retain and continue to hold in accordance with the terms of this Agreement an amount of Aggregate Developing Agents Escrow Shares and Aggregate Developing Agents Cash Amount equal to the maximum amount claimed by Buyer Indemnified Parties under all Developing Agents Outstanding Claims (the “Retained Developing Agents Liability Amount”). The Escrow Agent shall deliver to the Sellers, as instructed by the Sellers such amount equal to the excess, if any, of the Developing Agents Disbursement Amount less the Retained Developing Agents Liability Amount; and thereafter the Escrow Agent shall release from the Escrow Account all or portions of the Retained Developing Agents Liability Amount as and when it receives Payment Instructions, Orders, Discharge Notices or Determination Discharges, as applicable, related to the Developing Agents Outstanding Claims. Following the Developing Agents Release Date, in the event that the Retained Developing Agents Liability Amount at any time exceeds the maximum amount (based on the most recent Developing Agents Liability Draw-Down Request for each Developing Agents Outstanding Claim) of all Developing Agents Outstanding Claims, the Escrow Agent shall deliver according to the Sellers’
6
instructions, within five (5) Business Days of the Sellers’ written request for such delivery, such amount equal to such excess.
(e) Joint Written Instructions. Notwithstanding the foregoing, if at any time the Escrow Agent shall receive joint written instructions executed by the Sellers and the Buyer (“Joint Written Instructions”) to release all or any portion of the Escrow Amount, then within five (5) Business Days after receipt of such Joint Written Instructions, the Escrow Agent shall release the Aggregate Escrow Shares and the Aggregate Cash Amount in accordance with such Joint Written Instructions. The Sellers and the Buyer will cooperate in good faith in executing such Joint Written Instructions wherever reasonably necessary to ensure distributions of the Escrow Amount to the Party entitled thereto under the terms of the Purchase Agreement.
(f) Written Statements. As promptly as practicable following the delivery of any Escrow Amount from the Escrow Account, the Escrow Agent shall send a written statement to each of the Sellers and the Buyer stating the number of Aggregate Indemnity Escrow Shares, Aggregate Developing Agents Escrow Shares, the amount of Aggregate Indemnity Cash Amount and the amount of Aggregate Developing Agents Cash Amount so delivered and the amounts of the Aggregate Indemnity Escow Shares, Aggregate Developing Agents Escrow Shares, Aggregate Indemnity Cash Amount and Aggregate Developing Agents Cash Amount remaining in the Escrow Account as of such date.
4. Conditions to Escrow. The Escrow Agent agrees to hold the Aggregate Escrow Shares and Aggregate Cash Amount and to perform its responsibilties in accordance with the terms and provisions of this Agreement. The Parties agree that the Escrow Agent shall not assume any responsibility for the failure of any of the Buyer, the Parent, or the Sellers to perform in accordance with the Purchase Agreement or this Agreement. The Escrow Agent’s acceptance of its responsibilities hereunder is subject to the following terms and conditions which shall govern and control with respect to the Escrow Agent’s rights, duties and liabilities hereunder:
(a) Documents. The Escrow Agent shall be fully protected and shall incur no liability (other than as a result of the Escrow Agent’s gross negligence or willful misconduct), in relying upon and acting upon any written certification, notice, instruction, direction, request, waiver, consent, receipt, communication, paper or other document that the Escrow Agent in good faith believes to be genuine and duly executed and delivered, and shall have no duty to inquire into or investigate the validity or accuracy of any thereof.
(b) Liability. The Escrow Agent shall not be liable for anything which it may do or refrain from doing in connection herewith, except for its own gross negligence, bad faith or willful misconduct. In the event that the Escrow Agent shall in any instance, after seeking the advice of legal counsel pursuant to Section 4(c) of this Agreement, in good faith be uncertain as to its duties or rights hereunder or reasonably believe any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Escrow Agent hereunder, it shall be entitled to refrain from taking any action to which such ambiguity or uncertainty relates and shall be fully protected and shall not be liable in any way to the Buyer, the Parent, the Sellers or any other Person for refraining from taking such action, and its sole obligation, in addition to those of its duties hereunder as to which there is no such ambiguity or uncertainty and which are not impacted by such ambiguity or uncertainty, shall be to keep safe all property held in the Escrow Account until it shall be directed otherwise in writing by the Buyer and the Sellers or by a final, nonappealable order of a court of competent jurisdiction; provided, however, in the event that the Escrow Agent has not received such written direction or court order within 180 days after requesting the same, it shall have the right to interplead the Buyer and the Sellers in any court of competent jurisdiction and request that such court determine its rights and duties hereunder.
7
(c) Legal Counsel. The Escrow Agent may seek the advice of legal counsel selected with reasonable care, including in the event of any conflicting or inconsistent claims or demands being made in connection with the subject matter of this Agreement or any dispute or question as to the construction of any of the provisions of this Agreement or its duties hereunder, and it shall incur no liability and shall be fully protected in respect of any action taken, omitted or suffered by it in good faith in accordance with the written advice of such counsel.
(d) Limitation of Duties. The Escrow Agent shall have no duties except those which are expressly set forth herein and it shall not be bound by any agreement of any other Party (whether or not it has any knowledge thereof). IN NO EVENT SHALL THE ESCROW AGENT BE LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL LOSSES OR DAMAGES OF ANY KIND WHATSOEVER (INCLUDING BUT NOT LIMITED TO LOST PROFITS), EVEN IF THE ESCROW AGENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES AND REGARDLESS OF THE FORM OF ACTION.
(e) Resignation or Termination of Escrow Agent. The Escrow Agent is entitled to resign at any time by delivering not less than thirty (30) days’ advance written notice of such resignation to the Buyer, the Parent and the Sellers, which notice shall specify the proposed effective date of resignation. The Buyer and the Sellers are entitled to terminate the services of the Escrow Agent at any time by delivering not less than thirty (30) days’ advance written notice (with such written notice being signed by the Buyer and the Sellers) of such termination to the Escrow Agent, which notice shall specify the effective date of termination. Within thirty (30) days after receiving or delivering the aforesaid notice, as the case may be, the Buyer and the Sellers shall jointly appoint a successor escrow agent. The Escrow Agent’s resignation shall not be effective until (i) such appointment has been made, (ii) the Aggregate Escrow Shares and the Aggregate Cash Amount have been delivered to the successor escrow agent, and (iii) the successor’s acceptance of this Agreement and receipt of the Aggregate Escrow Shares and Aggregate Cash Amount from the successor escrow agent and copies thereof shall have been sent to the Buyer and the Sellers. The Escrow Agent may petition a court of competent jurisdiction to appoint a successor escrow agent if one the Buyer and the Sellers do not designate one within sixty (60) days of receipt of such resignation from the Escrow Agent.
(f) Discharge of Escrow Agent. Upon the delivery of all of the Aggregate Indemnity Shares and Aggregate Cash Amount pursuant to the terms of Section 3 above or to a successor escrow agent, the Escrow Agent shall thereafter be discharged from any further obligations hereunder. The Escrow Agent is hereby authorized, in any and all events, to comply with and obey any and all final judgments, orders and decrees of any court of competent jurisdiction which may be filed, entered or issued, and all final arbitration awards and, if it shall so comply or obey, it shall not be liable to any other Person by reason of such compliance or obedience.
5. Indemnification and Fees of the Escrow Agent. In consideration of its acceptance of the appointment as Escrow Agent, the Buyer and the Sellers shall each indemnify and hold the Escrow Agent harmless as to fifty percent (50%) of any loss, liability, cost or expense incurred without gross negligence, bad faith or willful misconduct by the Escrow Agent to any Person by reason of its having accepted the same or in carrying out any of the terms hereof. The Buyer and the Sellers shall each reimburse the Escrow Agent on request for fifty percent (50%) of its reasonable attorneys’ fees and for other reasonable costs and expenses it incurs in connection with carrying out its duties hereunder, including such amounts as set forth on the Escrow Agent Schedule of Fees. In consideration of the Escrow Agent’s duties hereunder, the Escrow Agent is entitled to a fee in an amount set forth on Schedule I (the “Escrow Fee”), with such fee payable fifty percent (50%) by the Buyer and fifty percent (50%) by the Sellers. Any amounts payable by the Sellers under this Section 5 (including any indemnification
8
obligations, the Escrow Fee and any other fees or expenses) shall be payable directly by MFC, on behalf of the Sellers.
9
6. Notices. All notices and other communications required or permitted pursuant to this Agreement shall be in writing and be deemed duly given when delivered personally (which shall include delivery by Federal Express or other nationally recognized, reputable overnight courier service that issues a receipt or other confirmation of delivery) to the party for whom such communication is intended, or three (3) business after the date mailed by certified mail, return receipt requested, postage prepaid, as follows:
If to the Sellers:
Xxx. Xxxxxx Famous Brands, LLC
0000 Xxxx Xxxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxx,
EVP and General Counsel
Fax: (000) 000-0000
If to the Parent or Buyer:
NexCen Brands, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. X’Xxxxx
Fax: (000) 000-0000
with a copy to:
Xxxxxxxx & Xxxxx LLP
000 Xxxxxxxxx Xxxxxx XX
Xxxxxxxxxx, XX 00000
Attn: Xxxx X. Director, Esq.
Fax: (000) 000-0000
If to the Escrow Agent:
Wilmington Trust Company
Xxxxxx Xxxxxx Xxxxx
0000 X. Xxxxxx Xxxxxx, Mail Code 1625
Xxxxxxxxxx, XX 00000
Attention: Xxxxx Xxxx/Corporate Custody
Fax: (000) 000-0000
or to such other address as such party shall specify by written notice to the other Parties. Any notice sent to the Escrow Agent shall also be sent to the other Parties to this Agreement.
7. Entire Agreement; Amendments. This Agreement, together with the Purchase Agreement, the Registration Rights Agreement and the Voting Agreement, contains the entire understanding of the Parties with respect to the subject matter hereof and supersedes any prior understandings or agreements by or among the Parties, whether written or oral, which may have related to the subject matter hereof in any way. This Agreement may be amended, or any provision of this Agreement may be waived, so long as such amendment or waiver is set forth in a writing executed by the Buyer and the Sellers (a copy of which shall be promptly provided by the Buyer to the Escrow Agent); provided that if any such amendment or waiver would have the effect of increasing or expanding the
10
Escrow Agent’s obligations or duties under this Agreement, the written consent of the Escrow Agent shall be required in addition to the written consent of the Buyer and the Sellers. No course of dealing between or among the parties hereto shall be deemed effective to modify, amend or discharge any part of this Agreement of any rights or obligations of any Party under or by reason of this Agreement.
8. Assigns and Assignment. This Agreement and all actions taken hereunder shall inure to the benefit of and shall be binding upon all of the Parties and upon all of their respective successors and assigns; provided that (a) no assignment of the interest of any other Party shall be binding upon the Escrow Agent unless and until written notice of such assignment shall be filed with and acknowledged by the Escrow Agent and (b) the Escrow Agent shall not be permitted to assign its obligations hereunder except as provided in Section 4(e) above and Section 17 below.
9. No Other Third Party Beneficiaries. Other than as provided in Section 18, nothing herein expressed or implied is intended or shall be construed to confer upon or to give any Person other than the Escrow Agent, the Buyer, the Buyer Indemnified Parties, and the Sellers and their permitted assigns any rights or remedies under or by reason of this Agreement.
10. Interpretation. The headings in this Agreement are inserted for convenience of reference only and shall not be a part of or control or affect the meaning hereof.
11. No Waiver. No failure or delay by a party hereto in exercising any right, power or privilege hereunder shall operate as a waiver thereof, and no single or partial exercise thereof shall preclude any right of further exercise or the exercise of any other right, power or privilege. The right of the Buyer and Sellers to receive all or any portion of the Aggregate Escrow Shares or the Aggregate Cash Amount under the circumstances described in Section 3 above is in addition to, and not in lieu of, any other remedies that any such Party may have against another Party pursuant to the Purchase Agreement or in the event of a breach of the Purchase Agreement.
12. Severability. The Parties agree that (a) the provisions of this Agreement shall be severable in the event that for any reason whatsoever the provisions hereof are invalid, void or otherwise unenforceable, (b) such invalid, void or otherwise unenforceable provisions shall be automatically replaced by other provisions which are as similar as possible in terms to such invalid, void or otherwise unenforceable provisions, but are valid and enforceable, and (c) the remaining provisions shall remain enforceable to the fullest extent permitted by law.
13. No Strict Construction. The language used in this Agreement shall be deemed to be the language chosen by the Parties hereto to express their collective mutual intent, and no rule of strict construction shall be applied against any person. The term “including” as used herein shall be by way of example, and shall not be deemed to constitute a limitation of any term or provision contained herein. Each defined term used in this Agreement has a comparable meaning when used in its plural or singular form.
14. Releases on Non-Business Days. In the event that a release from the Escrow Account hereunder is required to be made on a date that is not a Business Day, such release may be made on the next succeeding Business Day with the same force and effect as if made when required.
15. Governing Law; Jurisdiction. This Agreement, and the rights of the Parties under this Agreement, shall be governed by and construed in accordance with the laws of the State of New York, including Sections 5-1401 and 5-1402 of the New York General Obligations Law.
11
16. Counterparts. This Agreement may be executed by the Parties individually or in any combination, in one or more counterparts (including by means of telecopied signature pages), each of which shall be an original and all of which shall together constitute one and the same agreement.
17. Successor Escrow Agent Entity. Any banking association or corporation into which the Escrow Agent may be merged, converted or with which the Escrow Agent may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Escrow Agent shall be a party, or any banking association or corporation to which all or substantially all of the corporate trust or escrow business of the Escrow Agent shall be sold or otherwise transferred, shall succeed to all the Escrow Agent’s rights, obligations and immunities hereunder without the execution or filing of any paper or any further act on the part of any of the Parties, anything herein to the contrary notwithstanding.
18. Pledge Under the Indenture and Collateral Agreements. Notwitstanding any other provision herein to the contrary, the Parties acknowledge and agree that the Sellers are assigning their rights under this Agreement as collateral under the Indenture and the related Collateral Agreements (as defined in the Indenture).
[SIGNATURE PAGE FOLLOWS]
12
To evidence their agreement, the parties have caused this Agreement to be executed on the date first written above.
|
NEXCEN ASSET ACQUISITION, LLC |
||||
|
|
|
|||
|
|
By: |
NexCen Brands, Inc., its Managing Member |
||
|
|
|
|
||
|
|
By: |
/s/ Xxxxxx X’Xxxxx |
|
|
|
|
|
Name: |
Xxxxxx X’Xxxxx |
|
|
|
|
Title: |
Chief Executive Officer |
|
|
|
|
|
||
|
|
|
|
||
|
|
NEXCEN BRANDS, INC. |
|||
|
|
|
|||
|
|
By: |
/s/ Xxxxxx X’Xxxxx |
|
|
|
|
|
Name: |
Xxxxxx X’Xxxxx |
|
|
|
|
Title: |
Chief Executive Officer |
|
|
PRETZELMAKER FRANCHISING, LLC |
|||||
|
|
|
||||
|
|
By: |
/s/ Xxxxxxx Xxxx |
|
||
|
|
|
Name: |
Xxxxxxx Xxxx |
||
|
|
|
Title: |
EVP, General Counsel & Secretary |
||
|
|
|
|
|
||
|
|
|
|
|
||
|
|
PRETZEL TIME FRANCHISING, LLC |
||||
|
|
|
||||
|
|
|
||||
|
|
By: |
/s/ Xxxxxxx Xxxx |
|
||
|
|
|
Name: |
Xxxxxxx Xxxx |
||
|
|
|
Title: |
EVP, General Counsel & Secretary |
||
|
WILMINGTON TRUST COMPANY |
|||
|
|
|
||
|
|
|
||
|
|
By: |
/s/ Xxxxx X. Xxxx |
|
|
|
|
Name: Xxxxx X. Xxxx |
|
|
|
|
Title: Senior Financial Services Officer |
|
Schedule I
Escrow Agent Schedule of Fees
NOTE:
Subject to a legal and administrative review of the governing documents and acceptable indemnification for our fees and expenses from a creditworthy entity. Out of pocket expenses (including outside counsel’s fees and expenses in connection with the closing and in connection with any post-closing matters) are additional and are billed separately within 30 days from closing. Wilmington Trust requests that whenever possible, the Initial Fee and the first year’s Annual Administration Fee be paid on the closing date by wire transfer per the following wire transfer instructions: Wilmington Trust Company, Wilmington, Delaware; ABA No. 000000000; for credit to the account of Corporate Trust Administration - Income Account; Account No. 082465-000; Attn: Xxxxx Xxxx; Ref: Escrow Agent’s Fees and Expenses (Nexcen & Pretzel Time Escrow). Thereafter, the Annual Administration Fee is due and payable annually in advance on each anniversary of the closing date. Transaction Fees are due and payable annually in arrears. All fees are non-refundable and will not be prorated in the event of an early termination of the Trust. In the event that the transaction does not close, Wilmington Trust reserves the right to be paid its Initial Fee. All fees quoted are guaranteed for a period of 90 days.
|
Annual Administration Fee |
|
$ |
3,500.00 |
|
Covers acceptance of appointment as Escrow Agent including complete study of drafts of Escrow Agreement and all supporting documents in connection therewith, conferences until final Agreement is agreed upon, execution of final Agreement and administrative duties in connection with the security provisions of the Agreement.
Transaction Fees
|
a) |
|
Purchase, sale, withdrawal, maturities calls and puts of domestic securities |
|
$ |
15.00 |
|
|
b) |
|
Physical delivery of domestic securities |
|
$ |
50.00 |
|
|
c) |
|
Purchase of Eurodollar certificate of deposit |
|
$ |
65.00 |
|
|
d) |
|
Principal amortizing securities(per pool/per month) |
|
$ |
10.00 |
|
|
e) |
|
Check Issuance Fee (per check issued and mailed) |
|
$ |
15.00 |
|
|
f) |
|
Wire charge (per transfer) |
|
|
|
|
|
|
|
Outgoing** |
|
$ |
25.00 |
|
|
|
|
Incoming** |
|
$ |
10.00 |
|
|
g) |
|
For each Form 1099 |
|
$ |
1.50 |
|
