ESCROW AGREEMENT
Exhibit
10.08
ESCROW
AGREEMENT dated as of December 29, 2009, by and between NUTRITION 21,
INC., a New York corporation and ICELAND HEALTH, LLC, a New York limited
liability company (collectively referred to herein as the “Seller”), ICELAND
HEALTH, INC., a Florida corporation, and NATURE’S PRODUCTS, INC., a Florida
corporation (collectively “Buyer”) and, AMERICAN STOCK TRANSFER &
TRUST COMPANY, LLC, a financial institution chartered under the laws of the
State of New York (the “Agent”). The Seller and Buyer are collectively referred
to herein as the "Parties."
WITNESSETH:
1.
Appointment of
Agent. The Parties hereby appoint the Agent as escrow agent in
accordance with the terms and conditions set forth herein, and the Agent hereby
accepts such appointment, and are depositing $100,000.00 (the “Funds”) in escrow
with the Agent
2.
Utilization of Funds;
Instructions to the Agent.
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(a)
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Agent
is herby instructed to release to Seller on December 28, 2011, all amounts
then remaining in escrow upon receipt of written request from the Seller
unless Agent has prior thereto received notice from Buyer that a claim has
been asserted by Buyer against the Funds or any portion
thereof.
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(b)
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Agent
shall prior to December 28, 2011 release amounts from escrow only as
directed in writing by (i) joint written instructions of Buyer and Seller
or (ii) the final and non-appealable order of a
court.
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3.
Agent to Hold and Disburse
Funds. The Agent will hold in a segregated account established for
the benefit of the Parties and disburse all funds received by it pursuant to the
terms of this Escrow Agreement.
4.
Compensation of Agent.
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(a)
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For
services rendered, the Agent shall receive as compensation $2,500, which
fee shall be equally shared and paid by the Parties ($1,250 by each party)
to the Agent promptly following the signing of this
Agreement.
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(b)
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The
Agent shall also be entitled to retain any income earned on the funds in
the escrow account as part of the Agent’s
compensation.
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(c)
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The
Agent shall also be entitled to reimbursement from the Parties for all
expenses paid or incurred by it in the administration of its duties
hereunder, including, but not limited to, all counsel, advisors’ and
Agents’ fees and disbursements and all reasonable taxes or other
governmental charges. It is anticipated that such disbursement
shall not exceed $500.00 barring any unforeseen circumstances. The Parties
shall share equally in all costs and expenses payable to the
Agent.
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(d)
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All
amounts referred to herein are expressed in United States Dollars and all
payments by the Agent shall be made in such
dollars.
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5.
Exculpation and Indemnification of
Agent.
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(a)
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The
Agent shall have no duties or responsibilities other than those expressly
set forth herein. The Agent shall have no duty to enforce any
obligation of any person to make any payment or delivery, or to direct or
cause any payment or delivery to be made, or to enforce any obligation of
any person to perform any other act. The Agent shall be under
no liability to the other parties hereto or to anyone else by reason of
any failure on the part of any party hereto or any maker, guarantor,
endorser or other signatory of any document or any other person to perform
such person’s obligations under any such document. Except for
amendments to this Agreement referred to below, the Agent shall
not be obligated to recognize any agreement between any and all of the
persons referred to herein, notwithstanding that references thereto may be
made herein and whether or not it has knowledge
thereof.
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(b)
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The
Agent shall not be liable to the Parties or to anyone else for any action
taken or omitted by it, or any action suffered by it to be taken or
omitted, in good faith and in the exercise of its own best
judgment. The Agent may rely conclusively and shall be
protected in acting upon any order, notice, demand, certificate, opinion
or advice of counsel (including counsel chosen by the Agent), statement,
instrument, report or other paper or document (not only as to its due
execution and the validity and effectiveness of its provisions, but also
as to the truth and acceptability of any information therein contained),
which is believed by the Agent to be genuine and to be signed or presented
by the proper person or persons. The Agent shall not be bound
by any notice or demand, or any waiver, modification, termination or
rescission of this Agreement or any of the terms thereof, unless evidenced
by a writing delivered to the Agent signed by the proper party or parties
and, if the duties or rights of the Agent are affected, unless it shall
give its prior written consent
thereto.
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(c)
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The
Agent shall not be responsible for the sufficiency or accuracy of the form
of, or the execution, validity, value or genuineness of, any document or
property received, held or delivered by it hereunder, or of any signature
or endorsement thereon, or for any lack of endorsement thereon, or for any
description therein; nor shall the Agent be responsible or liable to the
other parties hereto or to anyone else 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 or property or this
Agreement. The Agent shall have no responsibility with respect
to the use or application of any funds or other property paid or delivered
by the Agent pursuant to the provisions
hereof.
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(d)
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The
Agent shall have the right to assume in the absence of written notice to
the contrary from the proper person or persons that a fact or an event by
reason of which an action would or might be taken by the Agent does not
exist or has not occurred, without incurring liability to the other
parties hereto or to anyone else for any action taken or omitted, or any
action suffered by it to be taken or omitted, in good faith and in the
exercise of its own best judgment, in reliance upon such
assumption.
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(e)
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To
the extent that the Agent becomes liable for the payment of taxes,
including withholding taxes, in respect of income derived from the
investment of funds held hereunder or any payment made hereunder, the
Agent may pay such taxes. The Agent shall be indemnified and
held harmless against any liability for taxes and for any penalties or
interest in respect of taxes, on such investment income or payments in the
manner provided in Section 4 (c).
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(f)
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The
Agent will be indemnified and held harmless by the Parties, joint and
several, from and against any and all expenses, including reasonable
counsel fees and disbursements, or loss suffered by the Agent in
connection with any action, suit or other proceeding involving any claim,
or in connection with any claim or demand, which in any way, directly or
indirectly, arises out of or relates to this Agreement, the services of
the Agent hereunder, the monies or other property held by it hereunder or
any income earned from investment of such monies, except for the Escrow
Agent’s gross negligence or misconduct. Promptly after the
receipt by the Agent or notice of any demand or claim or the commencement
of any action, suit or proceeding, the Agent shall, if a claim in respect
thereof is to be made against any of the Parties Company, notify all of
the Parties in writing, but the failure by the Agent to give such notice
shall not relieve the Parties from any liability which the Parties may
have to the Agent hereunder.
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(g)
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For
the purposes hereof, the term “expense or loss” shall include all amounts
paid or payable to satisfy any claim, demand or liability, or in
settlement of any claim, demand, action, suit or proceeding settled with
the express written consent of the Agent, and all costs and expenses,
including, but not limited to, reasonable counsel fees and disbursements,
paid or incurred in investigating or defending against any such claim,
demand, action, suit or
proceeding..
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6.
Termination of Agreement and Resignation of
Agent.
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(a)
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This
Escrow Agreement shall terminate on the final disposition of the monies
and property held in escrow hereunder, provided that the rights of the
Agent and the obligations of the other parties hereto under Section 5
shall survive the termination
hereof.
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(b)
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The
Agent may resign at any time and be discharged from its duties as Agent
hereunder by giving the Parties at least 30 days notice
thereof. As soon as practicable after its resignation, the
Agent shall turn over to a successor escrow agent appointed by the mutual
consent of the Parties all monies and property held hereunder upon
presentation of the document appointing the new escrow agent and its
acceptance thereof. If no new Agent is so appointed within the
60-day period following such notice of resignation, the Agent may deposit
the aforesaid monies and property with any court it deems
appropriate..
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7.
Notices. All
notices and other communications required to be given hereunder, or which may be
given pursuant or relative to the provisions hereof, shall be in writing and
shall be deemed to have been given when delivered by hand or by an overnight
courier service, or mailed, postage prepaid, by first class United States mail,
certified return receipt requested, or transmitted by facsimile (with
transmission acknowledgment received, provided written notice delivered by any
of the other means of delivery specified in this Section follows such
facsimile), as follows:
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If
to Buyer:
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c/o
Nature’s Products, Inc.
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0000
Xxxxxxxx Xxxxxxxxx Xxxxxxx
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Xxxxxxx,
Xxxxxxx 00000-0000
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Facsimile:
(000) 000-0000
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Attention: Xxxx
Xxxxxx, President
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With
a copy to:
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Xxxx
X. Xxxxxxx
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Xxxxxxxx
Joblove & Xxxxxxxx, P.A.
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000
X. Xxxxxxx Xxxxxxxxx, Xxxxx 0000
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Xxxx
Xxxxxxxxxx, XX 00000
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Facsimile:
(000) 000-0000
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If
to Seller:
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Xxxxxxx
Xxxxx
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Nutrition
21, Inc.
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0
Xxxxxxxxxxxxxx Xxxx
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Xxxxxxxx,
XX 00000
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With
a copy to Xxx Xxxxx at the same address
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If
to Agent:
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American
Stock Transfer & Trust Company, LLC
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00
Xxxxxx Xxxx—Xxxxx Xxxxx
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Xxx
Xxxx, Xxx Xxxx 00000
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Attention: Xxxx
Xxxxxx
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8.
Further Assurances: From time to time on and after the date
hereof, the Parties shall deliver or cause to be delivered to the Agent such
further documents and instruments and shall do and cause to be done such further
acts as the Agent shall reasonably request (it being understood that the Agent
shall have no obligation to make any such request) to carry out more effectively
the provisions and purposes of this Agreement, to evidence compliance herewith
or to assure itself that it is protected in acting hereunder.
9.
Consent to Service of Process. Each of the Parties and the
Agent hereby irrevocably consents to the jurisdiction of the courts of the State
of New York and of any federal court located in such State in connection with
any action, suit or other proceeding arising out of or relating to this Escrow
Agreement or any action taken or omitted hereunder, and waives personal service
of any summons, complaint or other process and agrees that the service thereof
may be made by certified or registered mail directed to each of the Parties and
the Agent at its address for purposes of notices hereunder.
10.
Miscellaneous.
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(a)
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This
Escrow Agreement shall be construed without regard to any presumption or
other rule requiring construction against the party causing such
instrument to be drafted. The terms “hereby”, “hereof”,
“hereto”, “hereunder” and any similar terms, as used in this Escrow
Agreement, refer to the Escrow Agreement in its entirety and not only to
the particular portion of this Escrow Agreement where the term is
used. The word “person” shall mean any natural person,
partnership, company, government and any other form of business or legal
entity. All words or terms used in this Escrow Agreement,
regardless of the number or gender, in which they are used, shall be
deemed to include any other number and any other gender as the context may
require. This Escrow Agreement shall not be admissible in
evidence to construe the provisions of any prior
agreement.
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(b)
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Succession
and Assignment. This Escrow Agreement and the rights and
obligations hereunder of each Party may be assigned by such Party only to
a successor to such Party's entire business. This Escrow
Agreement and the rights and obligations hereunder of the Agent may be
assigned by the Agent only to a successor to its entire
business. This Escrow Agreement shall be binding upon and inure
to the benefit of each party’s respective successors, heirs and permitted
assigns. No other person shall acquire or have any rights under
or by virtue of this Escrow Agreement. This Escrow
Agreement is intended to be for the sole benefit of the parties hereto,
and (subject to the provisions of this Section) their
respective successors, heirs and assigns, and none of the provisions of
this Escrow Agreement are intended to be, nor shall they be construed to
be, for the benefit of any third
person.
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(c)
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Amendments
and Waivers. This Escrow Agreement may not be changed orally or
modified, amended or supplemented without an express written agreement
executed by the Agent and each of the Parties. No waiver of any
right or remedy hereunder shall be valid unless the same shall be in
writing and signed by the party giving such waiver. No waiver
by any party with respect to any condition, default or breach of covenant
hereunder shall be deemed to extend to any prior or subsequent condition,
default or breach of covenant hereunder or affect in any way any rights
arising by virtue of any prior or subsequent such
occurrence.
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(d)
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Governing
Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York. The
representations and warranties contained in this Agreement shall survive
the execution and delivery hereof and any investigations made by any
party. The headings in this Escrow Agreement are for purposes
of reference only and shall not limit or otherwise affect any of the terms
hereof.
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(e)
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Execution
in Counterparts. This Escrow Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original as
against any party whose signature appears thereon, and all of which shall
together constitute one and the same instrument. This Escrow
Agreement shall become binding when one or more counterparts hereof,
individually or taken together, shall bear the signature of all of the
parties reflected hereon as the
signatures.
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IN
WITNESS WHEREOF, the parties have executed and delivered this Agreement on the
day and year first above written.
AMERICAN
STOCK TRANSFER & TRUST COMPANY, LLC (AGENT)
By:
Name:
Title:
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Nutrition
21, Inc.
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Iceland
Health, LLC
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By:
________________
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By:
________________
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Name:
Xxxx X. Xxxxxxxxxx
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Name:
Xxxx X. Xxxxxxxxxx
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Title:
Chief Financial Officer
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Title:
Chief Financial Officer
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Iceland
Health, Inc.
By:
______________________
Name:
__________________
Title:
Chief Financial Officer
Nature’s
Products, Inc.
By:
______________________
Name:
____________
Title:
_____________
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