Exhibit 2
AGREEMENT, made as of August 14, 1998, among TJS Partners, L.P., a New
York limited partnership ("Seller"), Xxxxxx Xxxxxx ("Buyer") and Xxxxxxx Law
Firm, P.C., a Nebraska professional corporation, having its offices at 000 X.
00xx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx (hereinafter referred to as the
"Escrowee").
W I T N E S S E T H
WHEREAS, the parties hereto other than the Escrowee have entered into
a stock purchase agreement, dated as of August 14, 1998 (hereinafter referred to
as the "Stock Purchase Agreement") (capitalized terms used herein that are
defined in the Stock Purchase Agreement are used herein with such defined
meanings); and
WHEREAS, Buyer and Seller desire that Escrowee hold the Shares in
escrow pending the Closing of the transactions contemplated by the Stock
Purchase Agreement;
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
contained and for other good and valuable consideration, the parties hereto
agree as follows:
1. Concurrently with the execution of this Agreement, Seller has
delivered to the Escrowee: (i) stock certificates representing the Shares
accompanied by stock powers executed in blank with medallion signature
guarantees (collectively, the "Certificates") and (ii) an irrevocable proxy with
respect to the Shares granting Buyer the sole right to vote and give stockholder
consent for the period from the date hereof until the earlier of (y) the Closing
or (z) termination of the Stock Purchase Agreement pursuant to Section 5(c) of
the Stock Purchase Agreement (the "Proxy").
2. Escrowee acknowledges that it holds the Certificates and the Proxy
subject to the terms and conditions of this Agreement and shall release the
Certificates and the Proxy only in accordance with the terms of this Agreement.
3. Subject to Section 4 hereof, Escrowee shall hold the Shares and the
Proxy until Escrowee receives for the account of Buyer by wire transfer in
immediately available funds the sum of $8,244,143.75 (the "Funds"). Upon receipt
of the Funds, Escrowee shall immediately (i) deliver the Certificates and the
Proxy to or at the written direction of Buyer and (ii) transfer the Funds to
Seller by wire transfer in immediately available funds in accordance with the
written instructions of Seller.
4. Notwithstanding the provisions of Section 3 hereunder, if the
Escrowee has not received the Funds prior to 5:30 p.m. New York time on
September 30, 1998, upon written notice of termination of the Stock Purchase
Agreement from either Buyer or Seller, Escrowee shall return the Certificates
and the Proxy to the Seller. The Escrowee shall return to the Seller the
Certificates and the Proxy as soon as practicable after receiving such notice.
5. The duties and responsibilities of the Escrowee shall be limited to
those expressly set forth in this Agreement and the Escrowee shall not be
subject to, nor obliged to recognize, any other agreement between, or direction
or instructions of, any or all of the parties hereto even though reference
thereto may be made herein; provided, however, that with the written consent of
the Escrowee, this Agreement may be amended at any time or times by an
instrument in writing signed by all of the parties hereto.
Upon the completion of delivery by the Escrowee in accordance with the
terms hereof of the Certificates, this Agreement shall terminate and the
Escrowee shall be discharged from all further obligation or responsibility
hereunder.
6. The Escrowee is authorized, in its sole discretion, to disregard
any and all notices or instructions given by any of the parties hereto or by any
other person, firm or corporation, except only such notices or instructions as
are hereinabove provided for and orders or process of any court entered or
issued with or without jurisdiction. If any property subject hereto is at any
time attached, garnished or levied upon under any court order, or in the case
payment, assignment, transfer, conveyance or delivery of any such property shall
be stayed or enjoined by any court order, or in the case an order, judgment or
decree shall be made or entered by any court affecting such property, or any
part thereof, then and in any of such events, the Escrowee is authorized, in its
sole discretion, to rely upon and comply with any such order, writ, judgment or
decree, which it believes to be binding upon it, and if the Escrowee complies
with any such order, writ, judgment or decree it shall not be liable to any of
the parties hereto or to any other person, firm or corporation by reason of such
compliance even though such order, writ, judgment or decree may be subsequently
reversed, modified, annulled, set aside or vacated. Escrowee may, in addition,
elect, in its sole discretion, to commence an interpleader action or seek other
judicial relief or orders as it may deem, in its sole discretion, necessary. The
costs and expenses (including reasonable attorney's fees and expenses) incurred
in connection with such proceeding shall be paid by, and shall be deemed a joint
and several obligation of, Buyer and Seller.
7. The Escrowee, its partners, associates and employees shall not be
liable in any respect on account of the identity, authority, or rights of the
persons executing or delivering or purporting to execute or deliver any
document, security or endorsement under this Agreement.
8. The Escrowee may rely and shall be protected in acting upon any
paper or other document which may be submitted to it in connection with its
duties hereunder and which is believed by it to be genuine and to have been
signed or presented by the proper party or parties and shall have no liability
or responsibility with respect to the form, execution or validity thereof.
9. The Escrowee may consult with legal counsel selected by it and the
opinion of such counsel shall be full and complete authorization and protection
to the Escrowee in respect of any action taken or omitted by the Escrowee
hereunder in accordance with the opinion of such counsel.
10. The Escrowee shall not be required to institute or defend any
action or legal process involving any matter referred to herein which in any
manner affects it or its duties or liabilities hereunder unless and until it has
received full indemnity in an amount, and of such character, as it shall in its
sole discretion require, against any and all claims, liabilities, judgments,
attorneys' fees and other costs and expenses of any and every kind in relation
thereto and for the payment thereof a first lien is hereby imposed in the
Escrowee's favor upon the property deposited or to be deposited hereunder, the
income thereon and/or the proceeds therefrom, in priority to the rights of any
other party hereto or of any other party interested herein.
11. The undersigned parties jointly and severally agree to and hereby
do indemnify and save the Escrowee, its partners, associates and employees,
harmless from any claims, liabilities, judgments, attorneys' fees and other
costs and expenses of any and every kind and nature which may be incurred by any
of them by reason of the Escrowee's acceptance of, and its performance under,
this Agreement, except in the case of its bad faith or gross negligence.
12. The Escrowee shall not be responsible for any act or failure to
act on its part except in the case of its own bad faith or gross negligence.
13. The Escrowee shall have no responsibility whatsoever with respect
to the recitals contained in this Agreement or in any other document or
documents exchanged between any of the parties hereto, and shall have no right,
obligation or responsibility to vote or take any other corporate action with
respect to the Shares deposited hereunder.
14. Unless otherwise provided herein, any notice, request, instruction
or other document to be given hereunder by any party to any other party shall be
in writing and shall be deemed to have been given (a) if mailed, at the time
when mailed in any general or branch office of the United States Postal Service,
enclosed in a registered or certified postage-paid envelope, (b) if sent by
facsimile transmission, when so sent and receipt acknowledged by an appropriate
telephone or facsimile receipt or (c) if sent by other means, when actually
received by the party to which such notice has been directed, in each case at
the respective addresses or numbers set forth below or such other address or
number as such party may have fixed by notice:
If to Sellers, addressed to:
TJS Partners, L.P.
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
If to Buyer, addressed to:
Xxxxxxx Law Firm P.C.
Attn: Xxxx Xxxxxxx
000 X. 00xx Xxxxxx, Xxxxx 000
Post Office Box 81277
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
If to Escrowee, addressed to:
Xxxxxxx Law Firm P.C.
Attn: Xxxx Xxxxxxx
000 X. 00xx Xxxxxx, Xxxxx 000
Post Office Xxx 00000
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
15. This Agreement shall not be assignable by any of the parties
hereto; provided, however, that upon thirty (30) days written notice from the
Escrowee, the other parties hereto agree to enter into an Escrow Agreement with
a bank, trust company or law firm, in which event the Escrowee shall deliver
promptly the property held by it hereunder to such bank, trust company or law
firm and shall thereafter be released from all further duties and obligations
hereunder. In the event the other parties hereto have not, within (30) days
after the giving of such notice by the Escrowee, entered into such agreement,
the Escrowee may, in its sole discretion, deposit the moneys then held by it
pursuant to this Agreement with any bank or trust company selected by it, to be
held by such bank or trust company pursuant to the provisions of this Agreement,
or with any court of competent jurisdiction, in which event the Escrowee shall
be released from all further obligations or responsibility hereunder.
16. Any indemnities in favor of the Escrowee or limitations on the
liability of the Escrowee provided for by this Agreement shall survive the
termination of this Agreement.
17. The Escrowee shall receive no fees for its services hereunder.
18. This Agreement and its validity, construction and performance
shall be governed by the internal laws of the State of New York, without giving
effect to principles of conflict of laws.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have executed this Escrow
Agreement the day and year first above written.
/s/ Xxxxxx Xxxxxx
By Xxxx X. Xxxxxxx his attorney-in-fact
---------------------------------------
Xxxxxx Xxxxxx
TJS PARTNERS, L.P.
By: TJS Management, L.P., as
General Partner
By:/s/ Xxxxxx X. Xxxxxxxxx
------------------------------
Xxxxxx X. Xxxxxxxxx, as General Partner
XXXXXXX LAW FIRM P.C.
By: /s/ Xxxx X. Xxxxxxx
-------------------------
President
