EXHIBIT 10.2
ESCROW AGREEMENT
Dated: October 12, 1996
The parties to this agreement ("Agreement") are Traffic Management
Group, Inc., Inc., a Florida corporation and Able Telcom Holding Corp., a
Florida corporation (each a "Buyer" and collectively "Buyers"); Xxxxx X. Xxxx
and J. Xxxxx Xxxx (each a "Seller" and collectively, "Sellers"); and Rock &
Leitz, P.C. (the "Escrow Agent").
Buyers and Sellers have entered into a Stock Purchase Agreement
dated as of October 12, 1996 (the "Stock Purchase Agreement"), a copy of which
is attached hereto as Exhibit A and incorporated herein by reference.
Accordingly, the parties agree as follows:
1. Appointment of Escrow Agent.
Buyers and Sellers appoint Rock & Leitz, P.C. as Escrow Agent, and
Rock & Leitz, P.C. accepts that appointment and agrees to hold and dispose of
the Escrow Shares in accordance with the terms of this Agreement.
2. The Escrow Documents
a. Pursuant to Section 3.3(a)(v) of the Stock Purchase Agreement,
Sellers have delivered to Escrow Agent, and the Escrow Agent
hereby acknowledges receipt of, the following (collectively
"Sellers' Documents") to be held in escrow in accordance with
the terms of this Agreement:
(i) Certificate No. 16 representing 450 shares of
common stock of Georgia Electric Company, a Georgia
corporation ("Georgia Electric"), issued in the
name of Traffic Management Group, Inc. (such
shares, together with all dividends and other
amounts from time to time held by the Escrow Agent
under this Agreement, being referred to below as
the "Escrow Shares");
(ii) The Stock Purchase Agreement, duly executed by Sellers
and Georgia Electric, together with all Schedules and
Exhibits thereto as provided therein;
(iii) An Employment Agreement between Georgia
Electric and Xxxxx X. Xxxx, duly executed by
Xxxxx X. Xxxx;
(iv) An Employment Agreement between Transportation
Safety Contractors, Inc., a Florida corporation
("TSC"), and J. Xxxxx Xxxx, duly executed by J.
Xxxxx Xxxx;
(v) Such other documents, instruments, and certificates as
may Buyer may have requested in accordance with the
Stock Purchase Agreement and listed on Appendix A
hereto.
b. Pursuant to Section 3.3(b)(iii) of the Stock Purchase
Agreement, Buyers have delivered to Escrow Agent, and the
Escrow Agent hereby acknowledges receipt of a "Funding
Deposit" in the amount of $100,000, the following
(collectively, "Buyers' Documents") to be held in escrow in
accordance with the terms of this Agreement:
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(i) The Stock Purchase Agreement, duly executed by Buyers,
together with all Schedules and Exhibits thereto as
provided therein;
(ii) An Employment Agreement between Georgia Electric, a
Florida corporation and Xxxxx X. Xxxx, duly
executed by Georgia Electric;
(iii) An Employment Agreement between TSC and J.
Xxxxx Xxxx, duly executed by TSC;
(iv) Such other documents, instruments, and certificates as
may Sellers may have requested in accordance with the
Stock Purchase Agreement and listed on Appendix B
hereto.
c. Certificates of the respective corporate secretaries of
Buyers shall be delivered to the Escrow Agent on or
before the Funding Date.
3. Release of the Escrow Documents.
a. Funding Date.
(i) For purposes of this Agreement, the "Funding Date"
is October 31, 1996.
(ii) The Funding Date may be amended by Sellers to a later
date that Sellers may determine; provided that they
notify the Escrow Agent of such change prior to 12:00
p.m. on the first business day following the Funding
Date.
b. Delivery of Escrow Documents. The Escrow Agent shall
deliver the Buyers' Documents and the Sellers' Documents
(collectively, the "Escrow Documents") as follows:
(i) If the Escrow Agent receives, on or before 12:00 p.m. on
the Funding Date, confirmation, either oral or written, by a duly
authorized representative of the Buyer's bank ("Buyer's Bank") of a
wire transfer, of the full amount
of the Cash Consideration (less the Funding Deposit) (as such term
is defined in the Stock Purchase Agreement), together with a Fed
Wire confirmation number and ABA routing number, for credit to the
accounts of Sellers, then the Escrow Agent shall promptly deliver to
Buyers the Funding Deposit and the Sellers' Documents listed in
Paragraph 2.a, above and shall promptly deliver to Sellers the
Buyers' Documents listed in Paragraph 2.b, above.
(ii) If the Escrow Agent fails to receive, on or before
12:00 p.m. on the Funding Date, confirmation described in
Paragraph 3.b.(i) then the Escrow Agent shall:
(a) Notify, promptly upon the opening of business on the
first business day following the Funding Date, both Sellers
and Buyers that no notification of the wiring of the Cash
Consideration has been received by the Escrow Agent; and
(b) Promptly after 12:00 p.m. on the date following the
Funding Date, deliver to Sellers the Funding Deposit and the
Sellers' Documents listed in 2.a and deliver to Buyers the
Buyers' Documents listed in 2.b; provided however, if the
Sellers have amended the Funding Date as provided in Paragraph
3.a.(ii) within the time period set forth therein, then the
Escrow Agent shall retain both Buyers' Documents and Sellers'
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Documents and shall consider Paragraph 3.a of this Agreement
to be amended to reflect such change (and in such case all
references herein to "Funding Date" shall refer to the Funding
Date as amended).
c. The Escrow Agent may at any time commence an action in the nature
of interpleader or other legal proceedings and may deposit the Escrow
Documents with the clerk of a court of competent jurisdiction.
d. Upon any delivery or deposit of the Escrow Documents as provided
in Paragraph 3.b, the Escrow Agent shall be released and discharged from
any further obligation under this Agreement. Such delivery is referred to
herein and in the Stock Purchase Agreement as the "Closing of the Escrow."
4. Concerning the Escrow Agent
a. The Escrow Agent shall not have any liability to any of the
parties to this Agreement or to any third party arising out of its
services as Escrow Agent under this Agreement, except for damages directly
resulting from the Escrow Agent's gross negligence or willful misconduct.
b. Buyer and Sellers jointly and severally shall indemnify
the Escrow Agent and hold it harmless against any loss, liability,
damage or expense (including reasonable attorneys' fees) that the
Escrow Agent may incur as a result of acting as escrow agent under this
Agreement, except for any loss, liability, damage or expense arising from
its own gross negligence or willful misconduct. For this purpose, the term
"attorneys' fees" includes fees payable to any counsel retained by the
Escrow Agent in connection with its services under this Agreement and,
with respect to any matter arising under this Agreement as to which the
Escrow Agent performs legal services, its standard hourly rates and
charges then in effect.
c. The Escrow Agent shall be entitled to rely upon any judgment,
notice, instrument or other writing delivered to it under this Agreement
without being required to determine the authenticity of, or the
correctness of any fact stated in, that document and irrespective of any
facts the Escrow Agent may know or be deemed to know in any other
capacity. The Escrow Agent may act in reliance upon any instrument or
signature believed by it to be genuine and may assume that any person
purporting to give any notice or receipt or advice or make any statement
or execute any document in connection with this Agreement has been duly
authorized to do so.
d. The Escrow Agent shall have no duties or responsibilities except
those expressly set forth in this Agreement. The Escrow Agent shall not
have any obligations arising out of or be bound by the provisions of any
other agreement, written or oral, including, but not limited to, the Stock
Purchase Agreement.
e. Buyers each acknowledge that the Escrow Agent has represented
Sellers in connection with the Stock Purchase Agreement and this Agreement
and that it may continue to represent Sellers in that connection and in
connection with the transactions contem plated by those agreements,
including, but not limited to, in connection with any disputes that may
arise under either of those agreements. The Escrow Agent shall not be
precluded from or restricted from representing Buyer or otherwise acting
as attorneys for Sellers in any matter, including, but not limited to, any
court proceeding or other matter related to the Stock Purchase Agreement
or the transactions contemplated by the Stock Purchase Agreement, or this
Agreement or the Escrow Documents, whether or not there is a dispute
between Buyers and Sellers with respect to any such matter. Buyers each
irrevocably consent to any such representation and waives any conflict or
appearance of conflict with respect to any such representation.
f. All of the Escrow Agent's rights of indemnification provided for
in this agreement shall survive the resignation of the Escrow Agent, its
replacement by a successor Escrow Agent, its delivery or deposit of the
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Escrow Documents in accordance with this Agreement, the termination of
this Agreement, and any other event that occurs after this date.
g. The Escrow Agent shall have no responsibility with respect to the
sufficiency of the arrangements contemplated by this Escrow Agreement to
accomplish the intentions of the parties.
h. The Escrow Agent shall have not laibility to any of the parties
hto this Agreement, or to third parties, as a result of any act or omission to
act taken on reliance upon the written advice of its counsel.
5. Representations.
Buyers and Sellers each represent and warrant to the Escrow Agent
that it or he, as the case may be, has full power and authority to enter into
and perform this Agreement; that in the case of Buyer the execution and delivery
of this Agreement was duly authorized by all necessary corporate action; and
that this Agreement is enforceable against each of them in accordance with its
terms.
6. Resignation; Successor Escrow Agent.
The Escrow Agent (and any successor escrow agent) may at any time
resign as such upon 15 days' prior notice to each of the other parties. Upon
receipt of a notice of resignation, each of the other parties shall use their
best efforts to select a successor agent within 30 days, but if within that 30
day period the Escrow Agent has not received a notice signed by both of them
appointing a successor escrow agent and setting forth its name and address, the
Escrow Agent may (but shall not be obligated to) select on their behalf a bank
or trust company to act as successor escrow agent, for such compensation as that
bank or trust company customarily charges and on such terms and conditions not
inconsistent with this Agreement as that bank or trust company reasonably
requires. The fees and charges of any successor escrow agent shall be borne
equally by the parties but, in default of which, shall be payable out of the
Escrow Documents. A successor escrow agent selected by the resigning Escrow
Agent may become the Escrow Agent by confirming in writing its acceptance of the
position. Buyer and Sellers each shall sign such other documents as the
successor escrow agent reasonably requests in connection with its appointment,
and each of them hereby irrevocably appoints the Escrow Agent as its
attorney-in-fact to sign all such documents in its name and place. The Escrow
Agent may deliver the Escrow Documents to the successor escrow agent selected
pursuant to this provision and, upon such delivery, the successor escrow agent
shall become the Escrow Agent for all purposes under this Agreement and shall
have all of the rights and obligations of the Escrow Agent under this Agreement
and the resigning Escrow Agent shall have no further responsibilities or
obligations under this Agreement.
7. Notices.
All notices, instructions, objections or other communications under
this Agreement shall be in writing and shall be deemed given when sent by United
States registered mail, return receipt requested, to the respective parties at
the following addresses (or at such other address as a party may specify by
notice given in accordance with this paragraph):
If to Buyers, to it at:
Able Telcom Holding Corp.
0000 Xxxxx Xxxxx
Xxxxx 0000
Xxxx Xxxx Xxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxx
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with a copy to:
Holland & Knight
Xxx Xxxx Xxxxxxx Xxxxxxxxx
Xxxx Xxxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxx, Esq.
If to Sellers, to them at:
Georgia Electric Company
0000 X. Xxxxxxxx Xxxxx
Xxxxxx, XX 00000
with a copy to:
Xxxxx Xxxxx, Esq.
Rock & Leitz, P.C.
0000 Xxxxxxxx Xxxx, XX
Xxxxxxx, XX 00000
If to the Escrow Agent:
Xxxxx Xxxxx, Esq.
Rock & Leitz, P.C.
0000 Xxxxxxxx Xxxx, XX
Xxxxxxx, XX 00000
8. Miscellaneous.
a. Escrow Agent shall be reumerated by Buyers for its
services hereunder at tis normal hourly rate, not to exceed a total fee
of $750.
b. If any provision of this Agreement is determined by any court of
competent jurisdiction to be invalid or unenforceable in any jurisdiction the
remaining provisions of this Agreement shall not be affected thereby, and the
invalidity or unenforceability in any jurisdiction shall not invalidate or
render unenforceable that provision in any other jurisdiction. It is understood,
however, that the parties intend each provision of this Agreement to be valid
and enforceable and each of them waives all rights to object to any provision of
this Agreement.
c. This Agreement shall be binding upon and inure solely to the
benefit of the parties and their respective successors and permitted assigns,
and shall not be enforceable by or inure to the benefit of any third party. No
party may assign its rights or obligations under this Agreement or any interest
in the Escrow Documents without the written consent of the other parties, and
any other purported assignment shall be void. In no event shall the Escrow Agent
be required to act upon, or be bound by, any notice, instruction, objection or
other communication given by a person other than, nor shall the Escrow Agent be
required to deliver the Escrow Documents to any person other than, Buyer or
Sellers.
d. This Agreement shall be governed by and construed in accordance
with the law of the State of Georgia applicable to agreements made and to be
performed in Georgia (without resort to conflicts of law principles).
e. The courts of Georgia and the United States District Courts for
Georgia shall have exclusive jurisdiction over the parties (and the subject
matter) with respect to any dispute or controversy arising under or in
connection with this Agreement. A summons or complaint or other process in any
such action or proceeding served by mail in accordance with section 6 of this
Agreement or in such other manner as may be permitted by law shall be valid and
sufficient service.
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f. This Agreement contains a complete statement of all of the
arrangements among the parties with respect to its subject matter and cannot be
changed or terminated orally. Any waiver must be in writing.
g. This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original and all of which taken together
shall constitute one and the same instrument.
h. The section headings used herein are for convenience of reference
only and shall not affect the construction or interpretation of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first set forth above.
Buyers:
TRAFFIC MANAGEMENT GROUP, INC.
By: /S/ XXXXXXX X. XXXXXXXX
---------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President
ABLE TELCOM HOLDING CORP.
By: /S/ XXXXXXX X. XXXXXXXX
---------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President
Sellers:
/S/ XXXXX X. XXXX
------------------------------------
Xxxxx X. Xxxx
/S/ J. XXXXX XXXX
------------------------------------
J. Xxxxx Xxxx
Escrow Agent:
Rock & Leitz, P.C.
ROCK & LEITZ, P.C.
------------------------------------
By: Xxxxx Xxxxx
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