Exhibit 3
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this "Agreement"), is made as of July , 2003, by
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and among All American Companies, Inc., a Delaware corporation (the
"Purchaser"), First Chesapeake Financial Corporation, a Virginia corporation
(the "Company"), Xxxx Xxxxxxxxx, Xxxx Xxxxx (Messrs. Xxxxxxxxx and Xxxxx are
collectively referred to as the "Selling Shareholders"), Xxxx Xxxxxxxxx, Xxxx
Xxxxxxxx, Xxxx Xxxxxxx (Messrs. Glatz, Dandridge, Papandon and Xxxxxxx are
collectively referred to as the "Option Holders"), and Klehr, Harrison, Xxxxxx,
Xxxxxxxxx & Xxxxxx LLP, as escrow agent ("Escrow Agent").
Recitals
A. The Company and the Purchaser are parties to that certain Securities
Purchase Agreement, dated the date hereof (the "Securities Purchase Agreement"),
pursuant to which the Company has agreed to sell to the Purchaser an aggregate
of 10,000,000 shares (the "New Shares") of the Company's common stock, no par
value per share (the "Common Stock").
B. The Selling Shareholders, the Option Holders and the Purchaser are
parties to that certain Stock Purchase Agreement, dated the date hereof (the
"Stock Purchase Agreement"), pursuant to which (i) the Selling Shareholders have
agreed to sell to the Purchaser an aggregate of 3,674,709 shares of Common Stock
(the "Existing Shares"), and (ii) the Option Holders have agreed to cancel an
aggregate of 423,000 options to purchase shares of Common Stock (the "Canceled
Options").
C. In accordance with the terms of the Stock Purchase Agreement, (i) the
Option Holders are entering into certain Option Cancellation Agreements with the
Company to effect the cancellation of the Canceled Options (the "Option
Cancellation Agreements"), (ii) the Selling Shareholders and the Option Holders
are entering into certain Lock-up Agreements with the Company pursuant to which
they have agreed to certain limitations on the transfer of their shares of
Common Stock (the "Lock-up Agreements"), and (iii) the Selling Shareholders are
entering into certain proxies pursuant to which they will give the Purchaser the
right to vote their shares of Common Stock (the "Proxies").
D. The Company and Collateral One Mortgage Corporation, a Virginia
corporation and a wholly-owned subsidiary of the Company (collectively with the
Company, the "Borrowers"), are parties to that certain Business Loan Agreement,
dated as of February 5, 1999 (the "Loan Agreement") with Crusader Bank
("Crusader"), pursuant to which Crusader agreed to lend the Borrowers the sum of
$1,500,000 (the "Loan"). The principal sum of the Loan was subsequently
increased pursuant to a certain amendment of Mortgage and other Loan Documents
dated November 10, 1999 (the "Amendment"). In addition to the Loan Agreement and
the Amendment, the Loan is evidenced, secured by and entitled to all the
benefits of the following: (i) a Promissory Note executed by Borrowers in favor
of Crusader dated February 5, 1999 in the stated principal sum of One Million
Five Hundred Thousand Dollars ($1,500,000.00), the principal sum of which was
subsequently increased by the Amendment (the "Note"), (ii) a Commercial Guaranty
executed by Xxxx Xxxxx (the "Xxxxx Guaranty"), (iii) a Commercial Guaranty
executed by Xxxx Xxxxxxxx (the "Papandon Guaranty"), (iv) a Commercial Guaranty
executed by Xxxx Xxxxxxxxx (the "Xxxxxxxxx Guaranty"), (v) a certain Open-End
Mortgage
executed by Xxxx Xxxxxxxxx encumbering certain real property known as 0000
Xxxxxx Xxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxxx, which mortgage is recorded in
Xxxxxxxxxx County at Mortgage Book 8621, page 0876 (the "Xxxxxxxxx Mortgage"),
(vi) a Pledge Agreement dated February 2, 2001 executed by Xxxx Xxxxxxxxx
encumbering the shares of stock of Delaware Avenue Development Corporation owned
by Xxxx Xxxxxxxxx (the "Xxxxxxxxx Delaware Pledge"), (vii) a Subordinate Pledge
Agreement dated February 1, 2001 from Xxxx Xxxxxxxxx to Crusader pledging and
encumbering 3,564,333 shares of Common Stock (the "Xxxxxxxxx First Chesapeake
Pledge"), (viii) a certain Assignment of Partnership Income and Security
Agreement dated February 2, 2001 from Delaware Avenue Development Corporation
(the "Assignment of Partnership Income and Security Agreement"), and (ix)
various other documents and instruments executed and/or delivered in connection
with the Loan and the subsequent modifications thereof not specifically
enumerated herein including but not limited to UCC-1 financing statements
(collectively, the "Personal Guaranty Documents").
E. On or about February 2, 2001, Crusader, Borrowers and certain guarantors
of the Loan entered into a certain Forbearance Agreement as amended by an
Amendment thereto dated June 13, 2001, pursuant to which, among other things (i)
the Xxxxxxxxx'x Guaranty was amended, and (ii) the Note was amended to provide
for certain mandatory payments of principal and to provide that the Note would
be payable on demand, but that unless an event of default had occurred, Crusader
would not demand payment before January 15, 2003.
F. Crusader has assigned all of its right, title and interest in and to the
Loan, the Note and the Loan Documents to Royal Bank of Pennsylvania ("Bank"),
and Bank is the holder thereof.
G. In connection with the transactions contemplated by the Securities
Purchase Agreement and Stock Purchase Agreement, the Bank, the Borrowers and the
Selling Shareholders have entered into a Forbearance and Consent Agreement of
even date herewith (the "Forbearance and Consent Agreement" and collectively
with the Loan Agreement, the Amendment and the Personal Guaranty Documents, the
"Loan Documents"), pursuant to which the Bank has agreed, upon satisfaction of
certain conditions, to (i) extend the maturity date of the Loan and (ii) consent
to the transactions contemplated by the Securities Purchase Agreement.
H. Escrow Agent currently holds the stock certificates set forth on
Schedule A attached hereto, representing an aggregate of 1,751,403 shares of the
Existing Shares (the "Klehr Escrowed Shares"). Bank currently holds the stock
certificates representing the balance of the Existing Shares (the "Bank Escrowed
Shares").
I. Pursuant to the Securities Purchase Agreement, at the closing
thereunder, the Company and the Purchaser have placed into escrow with Escrow
Agent to be held pursuant to the terms of this Agreement the New Shares (to the
extent that they have been issued) and the Purchaser Resignations (both as
defined in the Securities Purchase Agreement). Pursuant to the terms of the
Stock Purchase Agreement, at the closing thereunder, (i) the Purchaser and the
Selling Shareholders have placed into escrow with the Escrow Agent to be held
pursuant to the terms of this Agreement their respective Proxies, the Klehr
Escrowed Shares and stock powers relating to the Existing Shares, duly endorsed
by the Selling Shareholders (the "Stock Powers"), and (ii) the Purchaser, the
Selling Shareholders and the Option Holders have placed into escrow
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with Escrow Agent to be held pursuant to the terms of this Agreement their
respective Lock-up Agreements and, with respect to the Option Holders, their
respective Option Cancellation Agreements. Bank shall retain the Bank Escrowed
Shares during the term of this Agreement. The documents and instruments held in
Escrow pursuant to the terms of this Agreement are hereinafter collectively
referred to as the "Escrow."
NOW, THEREFORE, in consideration of the mutual agreements contained herein
and in the Securities Purchase Agreement and Stock Purchase Agreement, and
intending to be legally bound, the parties hereto hereby agree as follows:
1. Escrow Agent.
(a) Appointment. The parties hereto hereby appoint Escrow Agent to
serve as escrow agent under this Agreement, and Escrow Agent hereby accepts such
appointment and agrees to perform all duties which are expressly set forth in
this Agreement.
(b) Compensation. Escrow Agent shall be entitled to reimbursement of
all costs and expenses incurred by Escrow Agent arising out of this Agreement
and shall not otherwise be compensated for its services as Escrow Agent. Such
expenses shall be borne by the Company and shall be payable as they are incurred
by Escrow Agent.
(c) Resignation. Escrow Agent may resign at any time upon giving the
Purchaser, the Company and the Selling Shareholders thirty (30) days prior
written notice. In such event, Escrow Agent shall deliver the Escrow and any and
all documents relating thereto then in its possession to such successor escrow
agent as shall be mutually agreed upon by the Purchaser, the Company and the
Selling Shareholders. Such resignation shall not be effective until a successor
escrow agent agrees to act hereunder; provided, however, that if no successor is
appointed and acting under this Agreement within thirty (30) days after such
notice is given, Escrow Agent may deliver the Escrow to a court of competent
jurisdiction and, after Escrow Agent's delivery of the Escrow to such court,
Escrow Agent shall have no further responsibility hereunder.
2. Release of Escrow.
(a) Escrow Agent shall release the Escrow to the Purchaser in
accordance with this Section 2(a) upon (i) Escrow Agent's receipt of (i) a
written notice from an authorized representative of the Bank (the "Bank Release
Notice") (A) acknowledging that the Loan, all accrued and unpaid interest
thereon, and all other sums then due and owing under the Loan Documents have
been paid in full (the "Indebtedness") or (B) waiving the Company's obligation
to repay the Indebtedness as a condition to Bank's delivery of the Release
Documents (as defined below) and (ii) the unconditional and irrevocable
cancellation of, and release by Bank of all liens or security interests
evidenced by, the Personal Guaranty Documents on or before October 15, 2003 in
compliance with this Section 2(a) (together, the "Release Conditions"). Within
five (5) days of payment in full of the Indebtedness, the Purchaser shall cause
Bank to (i) deliver the Bank Release Notice to the Selling Shareholders and
Escrow Agent and (ii) return to the respective guarantors, the Xxxxx Guaranty,
the Papandon Guaranty and the Xxxxxxxxx Guaranty all marked "cancelled" and
return to Xx. Xxxxxxxxx the Xxxxxxxxx Delaware Pledge, the
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Xxxxxxxxx First Chesapeake Pledge and the Assignment of Partnership Income and
Security Agreement marked "cancelled" together with all share certificates
pledged thereby (to the extent in Bank's possession). The documents evidencing
the release of the liens and security interests evidenced by the Personal
Guaranty Documents (the "Release Documents") shall be in such forms as are
reasonably satisfactory to the Selling Shareholders, which shall include,
without limitation, the original or certified copy of either a release or a
satisfaction of the mortgage relating to the Xxxxxxxxx Mortgage and either UCC-3
Termination Statements terminating all UCC financing statements relating to the
Personal Guaranty Documents or written authorization from Bank to terminate all
UCC financing statements relating to the Personal Guaranty Documents. The
Company shall pay any and all recording costs and expenses relating to the
Release Documents, including the recording costs for the satisfaction of
mortgage for the Xxxxxxxxx Mortgage. Whether the Release Conditions have been
satisfied shall in all events be determined as of October 15, 2003. To effect
the release of the Escrow pursuant to this Section 2(a), the Purchaser shall
deliver a written notice, in the form attached hereto as Exhibit A (the
"Purchaser Release Notice"), to Escrow Agent and the Selling Shareholders
certifying that the Release Conditions have been satisfied. The Purchaser
Release Notice shall include copies of the Release Documents required by this
Section 2(a). In the event that the Selling Shareholders dispute the Purchaser's
right to receive the Escrow pursuant to this Section 2(a), they shall notify
Escrow Agent and Purchaser of the nature of such dispute in writing (a "Selling
Shareholders Dispute Notice") within ten (10) days after delivery of the
Purchaser Release Notice. The Purchaser and the Selling Shareholders shall work
in good faith to resolve any dispute raised in a Selling Shareholders Dispute
Notice. Unless the Selling Shareholders timely deliver a Selling Shareholders
Dispute Notice, Escrow Agent shall release the Escrow to the Purchaser promptly
after the expiration of the ten (10) day period in which the Selling
Shareholders may deliver a Selling Shareholders Dispute Notice. In the event
that the Selling Shareholders timely deliver a Selling Shareholders Dispute
Notice, Escrow Agent shall only release the Escrow upon receipt of (i) joint
written instructions by the Purchaser, the Company and the Selling Shareholders
("Joint Instructions") or (ii) a non-appealable order from a court of competent
jurisdiction directing the disposition of the Escrow, or any portion thereof.
Notwithstanding this Section 2(a), the provisions contained herein shall not be
construed in any way to limit Bank's rights under the Personal Guaranty
Documents to effect reinstatement of the Personal Guaranty Documents in
accordance with their terms or as provided by law in the event that any payment
with respect to the Indebtedness is subject to avoidance or is required to be
returned by Bank under any bankruptcy or insolvency law as a result of the
bankruptcy of any party to the Loan Documents, which right of reinstatement
shall in all events be deemed to be preserved.
(b) If the Purchaser fails to satisfy the Release Conditions, the
Selling Shareholders may effect the release of the Escrow pursuant to this
Section 2(b) by delivering a written notice in the form attached hereto as
Exhibit B (the "Selling Shareholders Release Notice") to Escrow Agent and the
Purchaser at any time after October 15, 2003. In the event that the Purchaser
disputes the Selling Shareholders' right to have the Escrow released pursuant to
this Section 2(b), it shall notify Escrow Agent and the Selling Shareholders of
the nature of such dispute in writing (a "Purchaser Dispute Notice") within ten
(10) days after delivery of a Selling Shareholders Release Notice. The Selling
Shareholders and the Purchaser shall work in good faith to resolve any dispute
raised in a Purchaser Dispute Notice. Unless the Purchaser timely delivers a
Purchaser Dispute Notice, the New Shares (to the extent that they have been
issued and any and all rights to receive any such shares that have not yet been
issued pursuant to
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the terms of the Securities Purchase Agreement) shall be canceled as of the date
immediately following the expiration of the ten (10) day period in which the
Purchaser may deliver a Purchaser Dispute Notice and Escrow Agent shall promptly
deliver the Lock-Up Agreements, the Klehr Escrowed Shares, the Stock Powers, the
Proxies, the Option Abandonment Agreements and the Purchaser Resignations to the
Selling Shareholders at such time. In the event of such cancellation of the New
Shares and release of the Escrow to the Selling Shareholders pursuant to this
Section 2(b), the Purchaser shall have no right to recover any of the
consideration paid pursuant to the Securities Purchase Agreement or the Stock
Purchase Agreement and shall otherwise have no further claim against the
Company, the Selling Shareholders or the Option Holders with respect to the
Escrow or the Bank Escrowed Shares. In the event that the Purchaser timely
delivers a Purchaser Dispute Notice, the Escrow Agent shall only release the
Escrow pursuant to this Section 2(b) upon receipt of (i) Joint Instructions or
(ii) a non-appealable order from a court of competent jurisdiction directing the
disposition of the Escrow or any portion thereof.
3. Dividends; Voting Rights.
(a) During the period in which the New Shares are being held by Escrow
Agent pursuant to this Agreement, all dividends or other property distributed in
respect of the New Shares and the Existing Shares, including, without
limitation, any shares issued as a result of stock splits, stock dividends or
other recapitalizations, shall be retained by Escrow Agent upon issuance or
payment, as the case may be, and shall be distributed with the New Shares and
the Existing Shares pursuant to the terms of this Agreement.
(b) During the period in which the New Shares (to the extent that they
have been issued) and the Existing Shares are being held by Escrow Agent
pursuant to this Agreement, the Purchaser shall be entitled to vote such shares
on all matters submitted to the shareholders of the Company.
4. Effectiveness of Escrow Documents.
(a) Subject to the terms thereof, the Lock-up Agreements and the
Proxies shall be in full force and effect while they are held by Escrow Agent in
escrow pursuant to this Agreement and, during such time, the Purchaser shall be
entitled to all of the terms, rights and benefits thereof. Subject to the terms
thereof, the Lock-up Agreements and Proxies shall remain in full force and
effect in the event that they are released to the Purchaser pursuant to Section
2(a) hereof. In the event that the Lock-up Agreements and Proxies are released
to the Selling Shareholders pursuant to Section 2(b) hereof, such agreements
shall terminate and be of no further force and effect as of the date on which
they are released to the Selling Shareholders.
(b) The terms, conditions and obligations of the Option Cancellation
Agreements, the Purchaser Resignations and the Stock Powers shall not be
enforceable by any party while such documents are held by Escrow Agent in escrow
pursuant to this Agreement. Upon the release of the Escrow to the Purchaser
pursuant to Section 2(a) hereof, (i) the Option Cancellation Agreements shall
become effective and fully enforceable as of the date on which they are released
and (ii) the Purchaser Resignations and the Stock Powers shall be void and of no
force or effect. Upon the release of the Escrow to the Selling Shareholders
pursuant to
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Section 2(b) hereof (i) the Option Cancellation Agreements shall be void and of
no force or effect and (ii) the Purchaser Resignations and the Stock Powers
shall become effective and fully enforceable as of the date on which they are
released.
5. Uncertainty. In the event that Escrow Agent, in good faith, shall be in
doubt as to what action it should take hereunder with respect to the Escrow, or
any portion thereof, Escrow Agent may, at its option, refuse to comply with any
claims or demands on it or refuse to take any other action hereunder, so long as
such disagreement continues or such doubt exists; and in any such event, Escrow
Agent shall not be or become liable in any way or to any person for its failure
or refusal to act, and Escrow Agent shall be entitled to continue to so refrain
from acting until it has received (i) Joint Instructions, or (ii) a
nonappealable order from a court of competent jurisdiction directing the
disposition of the Escrow, or any portion thereof.
6. Limitation on Liability. Escrow Agent shall not be liable for any
damages, or have any obligations other than the duties prescribed herein in
carrying out or executing the purposes and intent of this Agreement except for
liability arising out of its own willful misconduct. Escrow Agent's duties and
obligations under this Agreement shall be entirely administrative and not
discretionary. Escrow Agent shall not be liable to any party hereto or to any
third party as a result of any such action or omission taken or made by Escrow
Agent in good faith. Escrow Agent shall be protected in acting upon any written
notice, request, waiver, consent, authorization, or other paper or document
which Escrow Agent, in good faith, reasonably believes to be genuine and what it
purports be.
7. Indemnification. Except with respect to acts of willful misconduct on
the part of Escrow Agent, the Purchaser, the Company and each Selling
Shareholder and Option Holder, jointly and severally, agree to indemnify and
hold harmless Escrow Agent against any and all losses, claims, damages,
liabilities, and expenses (including reasonable attorneys' fees), which may be
imposed upon Escrow Agent or incurred by Escrow Agent in connection with its
duties under this Agreement and including, without limitation, any costs related
to litigation arising from this Agreement or involving the subject matter
hereof.
8. Limitation of Damages. IN NO EVENT SHALL ESCROW AGENT BE LIABLE,
DIRECTLY OR INDIRECTLY, FOR ANY (A) DAMAGES OR EXPENSES ARISING OUT OF THE
SERVICES PROVIDED UNDER THIS AGREEMENT, OTHER THAN DAMAGES WHICH DIRECTLY RESULT
FROM ESCROW AGENT'S WILLFUL MISCONDUCT; OR (B) SPECIAL OR CONSEQUENTIAL DAMAGES,
EVEN IF ESCROW AGENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9. Survival. The provisions of Sections 6, 7, 8 and 9 shall survive the
termination of this Agreement and the resignation or removal of Escrow Agent
hereunder.
10. Termination. This Agreement shall be terminated by mutual written
consent of the Purchaser, the Company and the Selling Shareholders or upon the
disbursement or release of the entire Escrow by Escrow Agent.
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11. Miscellaneous.
(a) Notices. All notices, claims, certificates, requests, demands and
other communications hereunder shall be in writing and shall be deemed to have
been duly given if delivered personally, mailed (registered or certified mail,
postage prepaid, return receipt requested or by nationally recognized overnight
courier) or by facsimile transmission with written confirmation (if a copy of
such facsimile transmission is contemporaneous sent by first class mail) as
follows:
If to Purchaser: All American Companies, Inc.
000 Xxxxxx Xxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxx Xxxxxx
Telephone No.:
Facsimile No.: 000-000-0000
with a copy to: Xxx X. Xxxxx, Esquire
Hatch & Xxxx, PA
0000 Xxxxxxx X0X, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Telephone No.: 000-000-0000
Facsimile No.: 772-234-8299
If to the Company:
First Chesapeake Financial Corporation
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Chief Executive Officer
Telephone No.:
Facsimile No.:
with a copy to: Klehr, Harrison, Xxxxxx, Xxxxxxxxx & Xxxxxx LLP
000 X. Xxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxx, Esquire
Telephone No.: 000-000-0000
Facsimile No.: 215-568-6603
If to a Selling Shareholder or an Option Holder, to the address set forth below
such party's signature on the signature pages hereto.
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If to Escrow Agent: Klehr, Harrison, Xxxxxx, Xxxxxxxxx & Xxxxxx LLP
000 X. Xxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxx, Esquire
Telephone No.: 000-000-0000
Facsimile No.: 215-568-6603
or to such other address as the person to whom notice is to be given may have
previously furnished to the others in writing in the manner set forth above,
provided that notice of a change of address shall be deemed given only upon
receipt; provided, however, that notices, claims, certificates, requests,
demands, and other communications to Escrow Agent shall be effective only upon
receipt.
(b) Amendments. The terms, provisions and conditions of this Agreement
may not be changed, modified or amended in any manner except by an instrument in
writing duly executed by the Purchaser, the Company, the Selling Shareholders
and Escrow Agent.
(c) Assignment. This Agreement is binding upon and inures to the
benefit of the successors and assigns of each party to this Agreement.
(d) Entire Agreement. This Agreement constitute the entire agreement
among the parties hereto with respect to the subject matter hereof and
supersedes and is in full substitution for any and all prior agreements and
understandings among them relating to such subject matter.
(e) Descriptive Heading. The descriptive headings of the several
sections of this Agreement are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions hereof.
(f) Counterparts. For the convenience of the parties, any number of
counterparts (including facsimile transmitted execution copies) of this
Agreement may be executed by any one or more parties hereto, and each such
executed counterpart shall be, and shall be deemed to be, an original, but all
of which together shall constitute one and the same instrument.
(g) Governing Law. This Agreement shall be governed by the laws of the
Commonwealth of Pennsylvania without regard to its conflicts of laws principles.
(h) Mandatory Arbitration. Any dispute, controversy or claim among the
Company, Selling Shareholders and the Purchaser that cannot be resolved by such
parties arising out of or relating to this Agreement shall be settled by
arbitration in accordance with the Commercial Arbitration Rules of the American
Arbitration Association ("AAA"), and judgment upon the award rendered by the
arbitrators may be entered in any court having jurisdiction thereof. The
arbitration shall be held in Philadelphia, Pennsylvania, or in such other
location as the parties, including the Escrow Agent, may mutually agree upon.
The arbitration will be conducted before a panel of three arbitrators chosen in
accordance with the Commercial Arbitration Rules of the AAA. The arbitrators
shall have no power to award punitive damages or
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any other damages not measured by the prevailing party's actual damages. Escrow
Agent shall be entitled to reimbursement for all of its costs and expenses
incurred in connection with any such arbitration, including reasonable attorneys
fees. Such fees and expenses shall be borne equally by the Purchaser and the
Selling Shareholders, or, in the discretion of the arbitrators, shall be borne
on the non-prevailing party. All aspects of the arbitration shall be treated as
confidential. None of the parties or the arbitrators may disclose the existence,
content or results of the arbitration, except as necessary to comply with legal
or regulatory requirements. Before making any such disclosure, a party shall
give written notice to all other parties and shall afford such parties a
reasonable opportunity to protect their interests. Notwithstanding the
provisions of this Section 11(h), Escrow Agent may exercise its rights to resign
and deliver the Escrow to a court of competent jurisdiction pursuant to Section
1(c) hereof at any time.
(i) Construction. The language used in this Agreement will be deemed
to be the language chosen by the parties to express their mutual intent, and no
rule of strict construction will be applied against either party.
(j) Severability. In the event that any one or more of the provisions
contained in this Agreement or in any other instrument referred to herein shall,
for any reason, be held to be invalid, illegal or unenforceable in any respect,
then to the maximum extent permitted by law, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Agreement or any
such other instrument.
(k) Waiver of Conflict. The Purchaser acknowledges that Escrow Agent
has represented and continues to represent the Company in various matters,
including, without limitation, the negotiation of this Agreement, the Securities
Purchase Agreement, the Stock Purchase Agreement and related matters. The
Purchaser, the Company, the Selling Shareholders and the Option Holders waive
any conflict arising from such representation and Escrow Agent's services
hereunder and consent to Escrow Agent's continued representation of the Company
and possible future representation of one or more of the Selling Shareholders
and Option Holders, including, without limitation, in connection with any action
to enforce their rights under this Agreement, the Securities Purchase Agreement,
the Stock Purchase Agreement or related matters.
[Signature Page Follows]
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IN WITNESS WHEREOF, this Escrow Agreement has been duly executed and
delivered by the undersigned as of the date first written above.
ALL AMERICAN COMPANIES, INC..
By:
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Name:
Title:
FIRST CHESAPEAKE FINANCIAL CORPORATION
By:
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Name:
Title:
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Xxxx Xxxxxxxxx
Address for Notices:
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Fax:
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Telephone:
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Xxxx Xxxxx
Xxxxxxx for Notices:
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Fax:
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Telephone:
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Xxxx Xxxxxxxxx
Address for Notices:
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Fax:
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Telephone:
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Xxxx Xxxxxxxx
Address for Notices:
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Fax:
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Telephone:
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Xxxx Xxxxxxx
Address for Notices:
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Fax:
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Telephone:
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Escrow Agent:
KLEHR, HARRISON, XXXXXX, XXXXXXXXX &
XXXXXX LLP
By:
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Name: Xxxxxxx X. Xxxxxx
Title: Managing Partner
[Signature Page to Escrow Agreement]
Exhibit A
Purchaser Release Notice
, 2003
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Via Facsimile (000) 000-0000
Klehr, Harrison, Xxxxxx, Branzburg & Xxxxxx LLP
Attn: Xxxxxxx X. Xxxxxx, Esquire
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Dear Xx. Xxxxxx:
Reference is hereby made to that certain Escrow Agreement, dated as of
, 2003, by and among All American Companies, Inc., First Chesapeake
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Financial Corporation, Xxxx Xxxxxxxxx, Xxxx Xxxxx, Xxxx Xxxxxxxxx, Xxxx
Xxxxxxxx, Xxxx Xxxxxxx and Klehr, Harrison, Xxxxxx, Branzburg & Xxxxxx LLP (the
"Escrow Agreement"). Capitalized terms used and not otherwise defined herein
shall have the meanings ascribed to them in the Escrow Agreement.
Pursuant to Section 2(a) of the Escrow Agreement, the undersigned hereby
certifies that it has satisfied the Release Conditions. Attached hereto are
copies of all of the Release Documents.
Please release the Escrow to the undersigned in accordance with Section
2(a) of the Escrow Agreement.
Very truly yours,
ALL AMERICAN COMPANIES, INC.
By:
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Name:
Its:
cc: Xxxx Xxxxxxxxx
Xxxx Xxxxx
Exhibit B
Selling Shareholders Release Notice
, 2003
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Via Facsimile (000) 000-0000
Klehr, Harrison, Xxxxxx, Branzburg & Xxxxxx LLP
Attn: Xxxxxxx X. Xxxxxx, Esquire
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Dear Xx. Xxxxxx:
Reference is hereby made to that certain Escrow Agreement, dated as of
, 2003, by and among All American Companies, Inc., First Chesapeake
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Financial Corporation, Xxxx Xxxxxxxxx, Xxxx Xxxxx, Xxxx Xxxxxxxxx, Xxxx
Xxxxxxxx, Xxxx Xxxxxxx and Klehr, Harrison, Xxxxxx, Branzburg & Xxxxxx LLP (the
"Escrow Agreement"). Capitalized terms used and not otherwise defined herein
shall have the meanings ascribed to them in the Escrow Agreement.
The undersigned hereby requests that you, as Escrow Agent, release the
Escrow in accordance with Section 2(b) of the Escrow Agreement.
Very truly yours,
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Xxxx Xxxxx
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Xxxx Xxxxxxxxx
cc: All American Companies, Inc.
Schedule A
Capital Stock of Selling Shareholders and Option Holders
1. Certificate FC-1096 registered to Xxxx Xxxxx representing 20,000 shares
of common stock of the Company.
2. Certificate FC-3039 registered to Xxxx Xxxxx representing 33,333 shares
of common stock of the Company.
3. Certificate FC-3081 registered to Xxxx Xxxxx representing 3,333 shares
of common stock of the Company.
4. Certificate FC-3102 registered to Xxxx Xxxxx representing 394,737 shares
of common stock of the Company.
5. Certificate FC-0970 registered to Xxxx Xxxxxxxxx representing 250,000
shares of common stock of the Company.
6. Certificate FC-0971 registered to Xxxx Xxxxxxxxx representing 500,000
shares of common stock of the Company.
7. Certificate FC-0531 registered to Hampton Financial Services Inc.
representing 550,000 shares of common stock of the Company.
