AMENDED AND RESTATED ESCROW AGREEMENT
ESCROW AGREEMENT, dated as of July 30, 1999, by and among VACATION
EMPORIUM CORPORATION, a Nevada corporation (the "Company") with its address at
00 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx 00000, Xxxxx X. Xxxxxxx (the "Subscriber"),
an individual with his address listed opposite his signature below, and XXXXX
XXXX LLP (the "Escrow Agent"), with its address at 000 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000-0000. The parties entered into an Escrow Agreement, dated July
30, 1999, which, among other things, provided for the escrow of shares purchased
by Subscriber from the Company. The parties wish to correct certain errors
contained in the Escrow Agreement and, as so corrected, to restate in its
entirety the Escrow Agreement. Accordingly, the Subscriber, the Company and the
Escrow Agent hereby do amend and restate in its entirety the Escrow Agreement as
follows:
W I T N E S S E T H:
WHEREAS, the Company and the Subscriber are parties to a certain Amended
and Restated Subscription and Rights Agreement of even date herewith (the
"Subscription Agreement") pursuant to which the Subscriber is subscribing for
and purchasing from the Company 351,282 shares of the Company's common stock,
par value $.001 per share (the "Shares"), as more particularly set forth
therein;
WHEREAS, the Company has entered into a non-binding letter of intent with
Xxxxxxx X. Xxxxx ("Xxxxx") describing the intent of the parties that the Company
acquire from Xxxxx all of the issued and outstanding shares of capital stock of
Wall Street Strategies, Inc., a Delaware corporation ("WSS"; such acquisition
(or proposed acquisition) referred to herein as the "WSS Acquisition");
WHEREAS, the Subscriber and the Company are entering into an employment
agreement of even date herewith (the "Employment Agreement"), pursuant to which
Employment Agreement the Subscriber is to be employed by the Company on the
terms and conditions set forth therein; and
WHEREAS, the Subscription Agreement provides, among other things, that,
simultaneously herewith, the Company, the Subscriber and the Escrow Agent shall
execute this Escrow Agreement and, simultaneously herewith or as soon hereafter
as practicable, the Company shall deposit into escrow with the Escrow Agent, to
be held in accordance with the terms hereof, stock certificates representing
263,461 of the Shares (the "Escrow Shares"), registered in the name of the
Subscriber on the books and records of the Company, duly endorsed in blank or
accompanied by stock powers or other instruments of transfer duly endorsed in
blank, in either case with signature guaranteed.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. DEPOSIT. (a) Simultaneously with the execution hereof, or as soon
hereafter as practicable, the Company, on behalf of the Subscriber, is
delivering or will deliver to the Escrow
Agent stock certificates evidencing the Escrow Shares registered in the name of
the Subscriber on the books and records of the Company (which stock certificates
are, or at the time of deposit will be more fully described on the annexed
Schedule I), duly endorsed in blank by the Subscriber with signature guaranteed
or accompanied by stock powers duly endorsed in blank by the subscriber (such
stock certificates, as so endorsed or accompanied by stock powers, are referred
to herein, individually, as a "Stock Certificate" and collectively, as the
"Stock Certificates").
(b) The Escrow Agent, upon receipt of the Stock Certificates, will
execute the receipt therefor attached as Exhibit A and deliver copies of such
receipt to the Company and the Subscriber.
(c) The Escrow Agent agrees to hold the Stock Certificates in escrow
and to act with respect thereto and otherwise as hereinafter set forth.
2. DISPOSITION OF THE ESCROW.
(a) On October 28, 1999, the Escrow Agent will release from escrow
and deliver to the Subscriber 87,820 Shares in accordance with the terms of the
Escrow Agreement.
(b) On April 7, 2000, the Escrow Agent will release from escrow and
deliver to the Subscriber 175,641 of the Escrow Shares in accordance with the
terms of the Escrow Agreement.
(c) If the Subscriber's employment by the Company is terminated
during the Escrow Period by reason of the Subscriber's death or Disability (as
defined in the Employment Agreement), the Company will deliver written notice of
such termination (a "Death/Disability Notice") to the Escrow Agent, with a copy
of the Death/Disability Notice to be delivered simultaneously to the Subscriber
or his estate or legal representative (as the case may be) and evidence of
delivery of such copy to be delivered simultaneously to the Escrow Agent. If, at
any time following such termination by reason of death or disability, the
Company has not delivered a Death/Disability Notice, the Subscriber, the
administrator of his estate or his legal representative (as the case may be) may
deliver a Death/Disability Notice to the Escrow Agent (together with evidence of
the administrator's or legal representative's legal authority ("Authority
Evidence"), as applicable). A copy of such Death/Disability Notice and Authority
Evidence shall be delivered simultaneously to the Company and evidence of
delivery of such copy shall be delivered to the Escrow Agent. Provided the
Escrow Agent has not received from the Company or the Subscriber or his estate
or legal representative, within twenty (20) days after receipt of the
Death/Disability Notice (the "Contest Period"), written notice contesting the
Death/Disability Notice (a "Contest Notice"), the Escrow Agent will release from
escrow and deliver to the Subscriber or his estate or legal representative, as
the case may be, all of the Stock Certificates (and the Shares represented
thereby) then held in escrow by the Escrow Agent.
(d) If the Escrow Agent receives a Contest Notice during the Contest
Period, the Escrow Agent shall continue to hold all Stock Certificates (and
Shares represented thereby) then held by it in escrow pursuant to the terms
hereof, and shall make no further releases of Stock Certificates hereunder
unless and until it receives written instructions specifying
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disposition of the Stock Certificates executed by the Company and the
Subscriber, the administrator of his estate or his legal representative, as the
case may be. If the Escrow Agent receives no such written instructions during
the ninety (90) day period following receipt of the Contest Notice, the Escrow
Agent shall deposit all Stock Certificates then held by it with a court of
competent jurisdiction to be held pending resolution of the dispute between the
Company and the Subscriber or his estate or legal representative, and
thereafter, the Escrow Agent shall have no further duties or obligations
hereunder.
(e) If the Subscriber's employment by the Company is terminated
during the Escrow Period other than by reason of the Subscriber's death or
Disability and without Cause (as defined in the Employment Agreement), either
the Subscriber or the Company may deliver written notice of such termination (a
"Non-Cause Notice") to the Escrow Agent, with a copy of the Non-Cause Notice to
be delivered simultaneously to the other party (the "Non-Cause Notice
Recipient") and evidence of delivery of such copy to be delivered simultaneously
to the Escrow Agent. Provided the Escrow Agent has not received from the
Non-Cause Notice Recipient, within twenty (20) days after receipt of the
Non-Cause Notice (the "Non-Cause Contest Period"), written notice contesting the
Non-Cause Notice (a "Non-Cause Contest Notice"), the Escrow Agent will release
from escrow and deliver to the Subscriber all of the Stock Certificates (and the
Shares represented thereby) then held in escrow by the Escrow Agent.
(f) If the Escrow Agent receives a Non-Cause Contest Notice during
the Non-Cause Contest Period, the Escrow Agent shall continue to hold all Stock
Certificates (and Shares represented thereby) then held by it in escrow pursuant
to the terms hereof, and shall make no further releases of Stock Certificates
hereunder unless and until it receives written instructions specifying
disposition of the Stock Certificates executed by the Company and the
Subscriber. If the Escrow Agent receives no such written instructions during the
ninety (90) day period following receipt of the Non-Cause Contest Notice, the
Escrow Agent shall deposit all Stock Certificates then held by it with a court
of competent jurisdiction to be held pending resolution of the dispute between
the Company and the Subscriber and thereafter, the Escrow Agent shall have no
further duties or obligations hereunder.
(g) The Company and the Subscriber acknowledge that, pursuant to the
terms of the Subscription Agreement, if the Subscriber's employment with the
Company is terminated during the Escrow Period for Cause, the Company has agreed
to repurchase the Shares then held in escrow pursuant hereto from the Subscriber
on the terms specified in the Subscription Agreement. In such event, the Company
will, on the date of such repurchase, provide the Escrow Agent with written
notice of such repurchase (a "Termination Repurchase Notice"), and the Escrow
Agent will, promptly upon receipt of such notice, release from escrow and
deliver to the Company all of the Stock Certificates (and the Shares represented
thereby) then held by the Escrow Agent.
(h) Notwithstanding the provisions of Section 2(g) above, upon
termination of the Subscriber's employment with the Company during the Escrow
Period for Cause, either the Company or the Subscriber may, prior to the
delivery to the Escrow Agent of a Termination Repurchase Notice, deliver to the
Escrow Agent written notice (a "Termination Contest Notice") contesting the
termination of employment and/or the obligation under the Subscription
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Agreement to sell and purchase the Shares then held in escrow. The party
delivering the Termination Contest Notice to the Escrow Agent shall
simultaneously deliver a copy of such notice to the other party hereto and
evidence of delivery of such copy shall be delivered simultaneously to the
Escrow Agent. Upon receipt of a Termination Contest Notice, the Escrow Agent
shall thereafter continue to hold all Stock Certificates (and Shares represented
thereby) then held by it in escrow pursuant to the terms hereof, and shall make
no further releases of Stock Certificates hereunder unless and until it receives
a Termination Repurchase Notice or other written instructions specifying
disposition of the Stock Certificates then held by it executed by the Company
and the Subscriber. If the Escrow Agent receives no Termination Repurchase
Notice or other such written instructions during the ninety (90) day period
following receipt of the Termination Contest Notice, the Escrow Agent shall
deposit all Stock Certificates then held by it with a court of competent
jurisdiction to be held pending resolution of the dispute between the Company
and the Subscriber, and thereafter, the Escrow Agent shall have no further
duties or obligations hereunder.
3. TERMINATION UPON FINAL DISPOSITION. This Escrow Agreement shall
terminate upon the final disposition of the Stock Certificates and may be
terminated at any time prior thereto by and upon receipt by the Escrow Agent of
written notice of termination signed by the Company and the Subscriber directing
the disposition of the Stock Certificates.
4. RIGHTS IN RESPECT OF SHARES HELD IN ESCROW. All rights in connection
with or incident to the ownership of the Shares, including without limitation,
the right to exercise any and all voting rights associated with the Shares and
the right to receive and retain any and all dividends or other distributions in
respect of the Shares, during the period such Shares are held in escrow pursuant
hereto, shall be vested solely in the Subscriber.
5. ESCROW PROVISIONS. (a) The obligations and duties of the Escrow Agent
in connection herewith are confined to those specifically enumerated herein and
the Escrow Agent shall not be liable or responsible for any act or failure to
act on its part except for its own willful misconduct or gross negligence.
(b) The duties of the Escrow Agent hereunder shall be limited to the
safekeeping of the Stock Certificates and the disposition of the same solely in
accordance with the terms and conditions hereof and no implied duties or
obligations shall be read herein against the Escrow Agent.
(c) The Escrow Agent may act or refrain from acting with respect to
any matter referred to herein in full reliance upon the advice of counsel of its
choice, and shall be fully protected and released as to any matter with respect
to which it shall have acted or refrained from acting upon the advice of such
counsel.
(d) The Escrow Agent may rely or act upon orders or directions,
instruments or signatures believed by it to be genuine and may assume that any
person purporting to give any written notice, advice or instruction in
connection therewith has been fully authorized to do so.
(e) The Escrow Agent shall not be bound by any modification,
amendment, termination, cancellation, rescission or supercedence of the terms
and conditions contained
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herein unless the same shall be in writing and signed by the other parties
hereto. However, the Escrow Agent's duties as Escrow Agent hereunder shall not
be affected, unless the Escrow Agent shall have given its prior written consent
thereto.
(f) If the Escrow Agent shall be uncertain as to its duties or
rights hereunder, then Escrow Agent shall refrain from taking any action other
than to keep safely the Stock Certificates, until it shall be directed otherwise
in writing jointly by the Company and the Subscriber or by a final judgment or
order of a court of competent jurisdiction. Any such judgment shall be delivered
to the Escrow Agent with a written opinion of counsel setting forth that such
judgment is final and that such court is a court of competent jurisdiction and
that Escrow Agent shall be fully protected in relying thereon.
(g) The Escrow Agent shall not be required to institute or defend
any action or legal proceeding involving the terms and conditions contained
herein. For all payments and deliveries made by the Escrow Agent in accordance
with the provisions hereof, the Escrow Agent shall have full release, discharge
and acquittance and shall not be subject to any claim on the part of any persons
beneficially interested hereunder. It is expressly understood by the Company and
the Subscriber agree, jointly and severally, to indemnify and hold harmless the
Escrow Agent and its successors and assigns from and against any and all claims,
disputes or defenses which may arise between the Company and the Subscriber.
(h) The Company and the Subscriber shall reimburse and indemnify the
Escrow Agent for, and hold it harmless against, any and all loss, liability,
costs or expenses in connection herewith including reasonable attorneys' fees,
incurred on the part of the Escrow Agent or arising out of or in connection with
its acceptance of, or the performance of its duties and obligations under, this
Escrow Agreement, as well as the reasonable costs and expenses of defending
against any claim or liability arising out of or relating to this Escrow
Agreement, except for such loss, liability, costs or expenses resulting from
Escrow Agent's own gross negligence or willful misconduct. Such obligations
shall be borne by the Company.
(i) The Escrow Agent may at any time resign hereunder by giving written
notice of resignation to the other parties hereto at least ten days prior to the
date specified for such resignation to take effect, and upon the effective date
of such resignation, the Stock Certificates then held by the Escrow Agent
hereunder shall be turned over to a new escrow agent designated in writing by
the Escrow Agent who shall be reasonably acceptable to the Company and the
Subscriber and who shall have accepted all of the terms hereof, whereupon all of
the Escrow Agent's obligations hereunder shall cease and terminate. If no such
person shall have been approved by the Company and the Subscriber by such date,
the Escrow Agent shall be entitled to deposit the Stock Certificates with a
court of competent jurisdiction whereupon all of the Escrow Agent's obligations
hereunder shall cease and terminate.
6. NOTICES. Any notice or other communication required or permitted to be
given hereunder shall be in writing and shall be deemed to have been received
(a) upon hand delivery (receipt acknowledged) or delivery by telex (with correct
answer back received), telecopy or facsimile (with transmission confirmation
report) at the address or number designated below (if delivered on a business
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day during normal business hours where such notice is to be received), or the
first business day following such delivery (if delivered other than on a
business day during normal business hours where such notice is to be received)
or (b) on the second business day following the date of mailing by express
courier service, fully prepaid, addressed to such address, or upon actual
receipt of such mailing, whichever shall first occur. The addresses for such
communications shall be:
If to the Company:
Vacation Emporium Corporation
00 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
If to the Subscriber:
To the address listed opposite the Subscriber's signature below
If to the Escrow Agent to:
Xxxxx Xxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telecopier: (000) 000-0000
Attn.: Xxxxxx X. Xxxxx, Esq.
A copy of all notices and communications hereunder shall be sent to:
Xxxxx Xxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telecopier: (000) 000-0000
Attn.: Xxxxxx X. Xxxxx, Esq.
or such other address as may be designated in writing hereafter, in the
same manner, by such person.
7. WAIVER. No waiver by any party of any breach of any term contained in
this Escrow Agreement, in any one or more instances, shall be deemed to be or
construed as a further continuing waiver of any such breach or a waiver of any
breach of any other term contained in this Escrow Agreement.
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8. COUNTERPARTS. This Escrow Agreement may be executed in counterparts,
each of which shall be deemed as original and which counterparts together shall
constitute one and the same instrument.
9. APPLICABLE LAW. This Agreement is intended to be construed solely in
accordance with and governed solely by the laws of the State of New York
pertaining to contracts made and fully performed therein (without giving effect
to choice of law principles).
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first above written.
ESCROW AGENT:
XXXXX XXXX LLP
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Partner
THE COMPANY:
VACATION EMPORIUM CORPORATION
By: /s/ Xxx Xxxx
-------------------------------------
Name: Xxx Xxxx
Title: Chairman
THE SUBSCRIBER:
/s/ Xxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxx
Address: 000 Xxxxx Xxxx Xxxxx Xxxxx
Xxx. 000
Xxxxxxx, Xxxxxxxx 00000
No. of Shares: 351,282
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Schedule I
Subscriber and Address Stock Certificate #(s) Number of Shares
---------------------- ---------------------- ----------------
Xxxxx X. Xxxxxxx 2008 87,821
000 Xxxxx Xxxx Xxxxx Xxxxx 2009 87,820
Apt. 407 2010 175,641
Xxxxxxx, Xxxxxxxx 00000
Exhibit A
Receipt
Reference is made to the Escrow Agreement (the "Escrow Agreement")
dated July 30, 1999 among Vacation Emporium Corporation (the "Company"), the
individual listed on Schedule I to the Escrow Agreement, a copy of which
Schedule is annexed hereto, and Xxxxx Xxxx LLP as escrow agent (the "Escrow
Agent"). Capitalized terms used herein and not otherwise defined have the
meanings set forth in the Escrow Agreement. By its signature below, the Escrow
Agent acknowledges receipt of the Stock Certificates listed on Schedule I to the
Escrow Agreement.
/s/ Xxxxx Xxxx LLP
---------------------------------------
XXXXX XXXX LLP
