EXHIBIT 1
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this "Escrow Agreement") is made as of February
10, 2003 by and among BTSL TECHNOLOGIES LIMITED, an Irish limited liability
company ("BTSL"), CONSOLIDATED RESOURCES GROUP, INC., a Florida corporation
("CSRG"), and AKERMAN SENTERFITT (the "Escrow Agent"). Each of BTSL, CSRG and
the Escrow Agent is referred to sometimes herein, individually, as a "Party"
and, collectively, as the "Parties." Capitalized terms used herein but not
defined herein shall have the meanings ascribed to such terms in the Agreement
(as defined below).
RECITALS
A. BTSL and CSRG are parties to that certain Agreement dated as
of the date hereof (the " Agreement").
B. Pursuant to the terms of the Agreement, certificates
representing an aggregate of 6,467,161 shares of common stock, par value $.001
per share (the "CSRG Common Stock"), of CSRG, along with executed blank stock
powers, shall be held in escrow pursuant to the terms hereof (the "Escrow
Property"). The Escrow Property shall be made up of two parts. Certificates
representing an aggregate of 2,467,161 shares of CSRG Common Stock, along with
executed blank stock powers, shall constitute the "Initial Escrow Property" and
certificates representing an aggregate of 4,000,000 shares of CSRG Common Stock,
along with executed blank stock powers, shall constitute the "Second Escrow
Property."
NOW, THEREFORE, in consideration of the foregoing Recitals and the
covenants and conditions set forth below, the Parties hereto agree as follows:
1. Certain Defined Terms. As used in this Escrow Agreement, the
following terms shall have the following meanings:
"Escrow Parties" means the Parties other than the Escrow
Agent.
"Escrow Property" has the meaning set forth in the Recitals.
"Initial Escrow Property" has the meaning set forth in the
Recitals.
"Party" or "Parties" has the meaning set forth in the
introduction.
"Person" means any natural person or entity of any kind,
including, but not limited to, a corporation, a limited
liability company, a partnership or an association.
"Second Escrow Property" has the meaning set forth in the
Recitals.
2. Recitals. The Recitals are incorporated herein by reference
and made a part of this Escrow Agreement.
3. Escrow Agent. BTSL and CSRG hereby designate and appoint
Escrow Agent to act as escrow agent in accordance with the terms and conditions
of this Escrow Agreement, and Escrow Agent hereby accepts such designation and
appointment.
4. Escrow Property.
(a) Deposit of Escrow Property. Concurrently with the
execution and delivery of this Agreement, BTSL shall deliver or cause to be
delivered to the Escrow Agent, in accordance with the terms of the Agreement,
the Escrow Property to be held and disbursed in accordance with the terms
hereof. The Escrow Agent will not distribute any of the Escrow Property except
as and in the manner expressly provided for in this Escrow Agreement.
(b) Rights to Escrow Property. Except as expressly
provided herein, none of the Escrow Parties shall have any right, title or
interest in or possession of any of the Escrow Property, until released pursuant
to the terms hereof. Therefore, none of the Escrow Parties shall have the
ability to pledge, convey, hypothecate or grant a security interest in any
portion of the Escrow Property until disbursed pursuant to the terms hereof, and
until such disbursement, the Escrow Agent shall be in sole possession of the
Escrow Property and will not act or be deemed to act as custodian for any party
for purposes of perfecting a security interest therein. Accordingly, no Person
shall have any right to have or to hold any of the Escrow Property as collateral
for any obligation and no Person shall be able to obtain a security interest in
any assets (tangible or intangible) contained in or relating to any of the
Escrow Property.
(c) Security Interests in Escrow Property. It is the
intent of BTSL and CSRG that each of their respective interests in the Escrow
Property is merely a contingent right to payment and that neither a voluntary
nor involuntary case under any applicable bankruptcy, insolvency or similar law
nor the appointment of a receiver, trustee, custodian or similar official in
respect of BTSL or CSRG shall increase its respective interest in the Escrow
Property or affect, modify, convert or otherwise change the contingent nature of
its respective right to receipt of the Escrow Property in accordance with the
terms of this Escrow Agreement.
5. Claims; Release of Escrow Property. The Escrow Property shall
be held and disposed of by the Escrow Agent for the benefit of BTSL and CSRG,
as the case may be, as follows:
(a) Receipt of Cash Payment. CSRG shall pay the Cash
Payment as provided in the Agreement by wire transfer of immediately available
funds to an account designated by the Escrow Agent. Promptly upon receipt of any
funds constituting a portion of the Cash Payment, the Escrow Agent shall
distribute such funds by wire transfer of immediately available funds to an
account designated by BTSL. None of the Cash Payment shall constitute Escrow
Property under this Escrow Agreement.
(b) Release of Initial Escrow Property. There shall be
no release at any time of only a portion of the Initial Escrow Property. The
Escrow Agent shall not be required to seek to change the registration of the
shares of CSRG Common Stock included in the Escrow Property and at all times
while held by the Escrow Agent such shares shall be registered in the same name
as that in which they were registered upon delivery to the Escrow Agent. The
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Escrow Agent shall be required, subject to this Section 5(b), to release the
Initial Escrow Property (i) if each part of the Cash Payment has been received
within five days of the respective date provided in the Agreement, as directed
by a letter in writing executed by CSRG, or (ii) if each part of the Cash
Payment has not been received within five days of the respective date provided
in the Agreement, as directed by a letter in writing executed by BTSL; provided,
however, that, notwithstanding anything in this Escrow Agreement to the
contrary, if the Escrow Agent has not received a letter from either CSRG or
BTSL, as the case may be, on or before 5:00 p.m. on May 10, 2003, then, at any
time thereafter, Escrow Agent may deposit the Initial Escrow Property with a
court of competent jurisdiction and request a final determination by such court
as to how the Initial Escrow Property shall be released, which determination
shall be binding upon BTSL and CSRG; further, provided, that any costs and
expenses borne by Escrow Agent as a result of such proceedings shall be
reimbursed by the Escrow Parties. Each of BTSL and CSRG, simultaneous with their
delivery of letters to the Escrow Agent under this Section 5(b), shall send
copies of such letters to the other Escrow Party. Notwithstanding anything to
the contrary in this Section 5(b), the Escrow Agent shall not release any of the
Initial Escrow Property if it receives an objection in writing executed by the
other Escrow Party objecting to such release within five business days of the
Escrow Agent's receipt of the letter executed by BTSL or CSRG, as the case may
be, requesting such release. If the Escrow Agent does receive such an objection,
the Escrow Agent shall resign as Escrow Agent pursuant to Section 6(h) hereof.
(c) Second Escrow Property. If the Initial Escrow
Property is released pursuant to Section 5(b)(ii), then the Second Escrow
Property shall at the same time also be released as directed by a letter in
writing executed by BTSL. If the Initial Escrow Property is released pursuant to
Section 5(b)(i), then (i) upon receipt of a letter in writing executed by BTSL
and certifying that some or all of the BTSL Options (as defined in the
Agreement) have been exercised, such number of shares of CSRG Common Stock,
along with executed blank stock powers for such shares, as may be deliverable by
BTSL pursuant to such exercised BTSL Options, shall be released as directed in
such letter executed by BTSL; and (ii) to the extent any of the Second Escrow
Property continues to be held by the Escrow Agent as of 5:00 p.m. on December
31, 2004, all such remaining Second Escrow Property shall be released as
directed by a letter in writing executed by CSRG. There is no limitation as to
how many times portions of the Second Escrow Property may be released under
Section 5(c)(i).
(d) Court Order. Notwithstanding anything in this Escrow
Agreement to the contrary, the Escrow Agent may release at any time any or all
of the Escrow Property pursuant to an order from a court of competent
jurisdiction.
(e) No Further Obligations. Upon the release by Escrow
Agent of all of the Escrow Property in accordance with the terms of Sections
5(b), 5(c) and 5(d) all of Escrow Agent's obligations under this Escrow
Agreement shall terminate and Escrow Agent shall not have any further
liabilities or obligations to any of the Escrow Parties.
6. Escrow Agent's Duties. The Escrow Parties understand and agree
that:
(a) All Duties. This Escrow Agreement expressly sets
forth all the duties of the Escrow Agent with respect to any and all matters
pertinent hereto. No implied duties or obligations shall be read into this
Escrow Agreement against the Escrow Agent.
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(b) No Liability; Indemnification. The Escrow Agent shall
not be liable in connection herewith except to the extent of its proven willful
misconduct or gross negligence. The Escrow Parties shall jointly and severally
indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent)
from and against any and all losses, liabilities, claims, actions, damages and
expenses, including reasonable attorneys fees and disbursements, arising out of
and in connection with this Escrow Agreement; provided, however, that in the
event of a dispute between the Escrow Parties, the non-prevailing party shall
indemnify and hold the prevailing party harmless against any and all costs and
expenses (including reasonable attorneys fees) incurred by the prevailing party
pursuant to the provisions hereof.
(c) Reliance by Escrow Agent. The Escrow Agent shall be
entitled to rely upon any order, judgment, certification, demand, notice,
instrument or other writing delivered to it hereunder without being required to
determine the authenticity or the correctness of any fact stated therein or the
propriety or validity of the service thereof. 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 receipt or advice or make any
statement or execute any document in connection with the provisions hereof has
been duly authorized to do so.
(d) Advice of Counsel. The Escrow Agent may act pursuant
to the advice of counsel with respect to any matter relating to this Escrow
Agreement and shall not be liable for any action taken or omitted in accordance
with such advice. The Escrow Agent shall be under no duty to monitor performance
by any party of its or his obligations under any agreement.
(e) Interest in Property. The Escrow Agent does not have
any interest in the Escrow Property deposited hereunder but is serving as escrow
holder only and having only possession thereof. Escrow Agent shall have no tax
reporting duties with respect to the Escrow Property or interest thereon, such
duties being the responsibility of the party or parties which receive, or have
the right to receive, any taxable income hereunder. Notwithstanding the
foregoing, Escrow Agent has the authority to comply with the provisions of
Section 468B(g) of the Internal Revenue Code of 1986, as amended, and any
regulations promulgated thereunder. Such authority shall include, without
limitation, (i) the filing of tax returns (including information returns) with
respect to the Escrow Property, (ii) the payment of any tax, interest or
penalties imposed thereon, (iii) the withholding of any amounts which are
required to be withheld and (iv) the payment over of such withheld amounts to
the appropriate taxing authority. The Escrow Parties shall provide the Escrow
Agent with all information necessary to enable Escrow Agent to comply with the
foregoing. The Escrow Parties shall equally pay or reimburse the Escrow Agent
upon request for any transfer taxes or other taxes relating to the Escrow
Property incurred in connection herewith and shall indemnify and hold harmless
the Escrow Agent from any amounts that it is obligated to pay in the way of such
taxes. This Section 6 shall survive notwithstanding any termination of this
Escrow Agreement or the resignation of the Escrow Agent.
(f) No Representations. The Escrow Agent makes no
representation as to the validity, value or genuineness of any security or other
document or instrument held by or delivered to it. The Escrow Agent shall have
no liability for the loss of value of any Escrow Property.
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(g) No Advice Required. The Escrow Agent, in its role as
such, shall not be called upon to advise any party as to the wisdom in selling
or retaining or taking or refraining from any action with respect to any
securities or other property deposited hereunder.
(h) Resignation of Escrow Agent. The Escrow Agent (and
any successor Escrow Agent) may at any time resign as such by delivering the
Escrow Property to any successor Escrow Agent jointly designated by BTSL and
CSRG in writing, or to any court of competent jurisdiction, whereupon the Escrow
Agent shall be discharged of and from any and all further obligations arising in
connection with this Escrow Agreement. The resignation of the Escrow Agent will
take effect on the earlier of (1) the appointment of a successor (including a
court of competent jurisdiction) or (2) the day which is 10 days after the date
of delivery of its written notice of resignation to the other parties hereto. If
at that time the Escrow Agent has not received a designation of a successor
Escrow Agent, the Escrow Agent's sole responsibility after that time shall be
(i) to safe keep the Escrow Property until receipt of a designation of successor
Escrow Agent or a joint written disposition instruction by the other Parties
hereto or a final order of a court of competent jurisdiction or (ii) to deliver
the Escrow Property to a court of competent jurisdiction.
(i) Reimbursement. The Escrow Parties jointly and
severally agree to equally reimburse the Escrow Agent for all reasonable
expenses, disbursements and advances incurred or made by the Escrow Agent in
performance of its duties hereunder (including reasonable fees, expenses and
disbursements to its counsel which may include lawyers from its own firm at
their standard rates).
(j) No Agreements. The Escrow Agent is not a party to,
and is not bound by, any agreement referred to herein or by any other agreement
among or between the other parties hereto or their respective heirs,
administrators, successors or assigns.
(k) No Assignment Binding. Subject to Section 16 hereof,
no assignment of the interest of any of the Escrow Parties or their successors
shall be binding upon the Escrow Agent unless and until written evidence of such
assignment in form satisfactory to the Escrow Agent shall be filed with and
accepted by the Escrow Agent.
(l) Duty of Care. The Escrow Agent shall exercise the
same degree of care toward the Escrow Property as it exercises towards its own
similar property or similar property held in escrow for the account of others
(whichever degree of care is higher), and shall not be held to any higher
standard of care under this Escrow Agreement.
(m) Refraining from Actions; etc. If the Escrow Agent
shall be uncertain as to its duties or rights hereunder or shall receive
instructions from any Escrow Party which, in the opinion of the Escrow Agent,
are in conflict with any of the provisions of this Escrow Agreement, the Escrow
Agent shall be entitled to refrain from taking any action until it shall be
directed otherwise by a letter in writing executed by both BTSL and CSRG and may
at any time in its sole discretion, deposit the Escrow Property with a court for
determination by such court of the proper disposition of the Escrow Property, in
accordance with Section 9 below.
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7. Notices. Any notices, demands or other communication given in
connection herewith shall be in writing and be deemed given (i) when personally
delivered, or (ii) three days after being deposited for delivery with a
recognized international courier, such as FedEx or DHL, with directions to
deliver within three days, and addressed or sent, as the case may be, to the
address set forth below or to such other address as such Party may designate in
accordance herewith:
When BTSL is the intended recipient:
BTSL Technologies Limited
Suite 2127, Lagan House
Custom Xxxxx Xxxxxx
XXXX
Xxxxxx 0
Xxxxxxx
Attn: Xxxxxxx Xxxxxxx
with a copy to:
J. Xxxxxx Xxxxxxx, Esq.
Akerman Senterfitt
One X.X. 0xx Xxxxxx
00xx Xxxxx
Xxxxx, XX 00000-0000
When CSRG is the intended recipient:
Consolidated Resources Group, Inc.
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx Xxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxx
With a copy to:
Xxxx X. Xxxxxxxx, Esq.
0000 X.X. 000xx Xxxxxx
Xxxxx Xxxxxxx, Xxxxxxx 00000
When the Escrow Agent is the intended recipient:
J. Xxxxxx Xxxxxxx, Esq.
Akerman Senterfitt
One X.X. 0xx Xxxxxx
00xx Xxxxx
Xxxxx, XX 00000-0000
8. Governing Law; Venue. THIS ESCROW AGREEMENT WILL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE DOMESTIC LAWS
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OF THE STATE OF FLORIDA, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR
CONFLICTING PROVISION OR RULE (WHETHER OF THE STATE OF FLORIDA OR ANY OTHER
JURISDICTION) THAT WOULD CAUSE THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE
OF FLORIDA TO BE APPLIED.
9. Jurisdiction and Venue. The Parties to this Escrow Agreement
agree that any and all actions arising under or in respect of this Escrow
Agreement shall be litigated exclusively in any federal or state court of
competent jurisdiction located in the County of Miami-Dade, State of Florida. By
execution and delivery of this Escrow Agreement, each party to this Escrow
Agreement irrevocably submits to the personal and exclusive jurisdiction of such
courts for itself and in respect of its property with respect to such action.
Each party to this Escrow Agreement agrees that venue would be proper in any of
such courts, and hereby waives any objection that any such court is an improper
or inconvenient forum for the resolution of any such action. The Parties further
agree that the mailing by certified or registered mail, return receipt
requested, to the addresses specified for notice in this Escrow Agreement, of
any process or summons required by any such court shall constitute valid and
lawful service of process against them, without the necessity for service by any
other means provided by statute or rule of court.
10. Entire Agreement. This Escrow Agreement and the agreements
referred to herein constitute the entire agreement among the Parties pertaining
to the subject matter hereof and supersede all prior agreements, understandings,
negotiations and discussions, whether oral or written, of the Parties.
11. Amendments and Waivers. No supplement, modification or
amendment of this Escrow Agreement, or of any covenant, condition or limitation
herein contained, shall be valid unless made in writing and executed by the
Parties hereto. No waiver of any covenant, condition, or limitation herein
contained shall be valid unless made in writing and executed by the party making
the waiver. Any such waiver shall be effective only to the extent specifically
set forth in such written instrument. Neither the exercise (from time to time
and at any time) by a Party of, nor the delay or failure (at any time or for any
period of time) to exercise, any right, power or remedy shall constitute a
waiver of the right to exercise, or impair, limit or restrict the exercise of,
such right, power or remedy or any other right, power or remedy at any time and
from time to time thereafter. No waiver of any right, power or remedy of a Party
shall be deemed to be a waiver of any other right, power or remedy of such Party
or shall, except to the extent so waived, impair, limit or restrict the exercise
of such right, power or remedy.
12. Multiple Counterparts. This Escrow Agreement may be executed
in one or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
13. Severability. If any one or more of the provisions contained
in this Escrow 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 provision of this Escrow Agreement
or any other such instrument.
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14. No Conflict. Notwithstanding anything in this Escrow Agreement
to the contrary, the Parties hereto hereby agree that the fact that Akerman
Senterfitt has acted as Escrow Agent hereunder shall not preclude the Escrow
Agent or any member or employee of such firm from providing legal representation
to BTSL in connection with any matter, including any matter arising from, or in
any way connected with, the transactions contemplated by this Escrow Agreement,
the Agreement or any transactions contemplated hereby or thereby. CSRG
acknowledges that Akerman Senterfitt has acted as counsel to BTSL in connection
with the Agreement and the transactions contemplated thereby.
15. Waiver of Jury Trial. To the full extent permitted by law,
each of the Parties hereto hereby knowingly, voluntarily and intentionally
waives any right it may have to a trial by jury in respect to any litigation
based hereon, or arising out of, under or in connection with this Escrow
Agreement, or any course of conduct, course of dealing, statements (whether oral
or written) or actions of any party hereto. This provision is a material
inducement for the Escrow Agent to enter into this Escrow Agreement.
16. Successors and Assigns. None of the Escrow Parties shall
assign or agree to assign or grant to any other party any rights under this
Escrow Agreement, including without limitation any rights in or to the Escrow
Property, without the prior written consent of the other Parties hereto, and
this Escrow Agreement shall be binding upon, and inure to the benefit of, the
Parties hereto and their respective heirs, personal representatives, successors
and permitted assigns.
17. Specific Performance. The obligations of the Escrow Parties
are unique in that time is of the essence, and any delay in performance
hereunder by any party will result in irreparable harm to the other Parties
hereto. Accordingly, any party may seek specific performance and/or injunctive
relief before any court of competent jurisdiction, subject to the limitation in
Section 9 hereof, in order to enforce this Escrow Agreement or to prevent
violations of the provisions hereof, and no party shall object to specific
performance or injunctive relief as an appropriate remedy. The Escrow Agent
acknowledges that its obligations, as well as the obligations of the Escrow
Parties hereunder, are subject to the equitable remedy of specific performance
and/or injunctive relief.
18. Headings. The headings set forth in this Escrow Agreement have
been inserted for convenience of reference only, shall not be considered a part
of this Escrow Agreement and shall not limit, modify or affect in any way the
meaning or interpretation of this Escrow Agreement.
19. Rights and Remedies. All rights, powers and remedies afforded
to a Party under this Escrow Agreement, by law or otherwise, shall be cumulative
(and not alternative) and shall not preclude the assertion, or the seeking by a
Party of any other rights or remedies.
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IN WITNESS WHEREOF, the parties hereto have caused this Escrow
Agreement to be duly executed as of the date first above written.
BTSL TECHNOLOGIES LIMITED, an Irish
limited liability company
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Director
CONSOLIDATED RESOURCES GROUP, INC.,
a Florida corporation
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: President
AKERMAN SENTERFITT
By: /s/ Xxxxxx X. Xxxx
-----------------------------------
Name: Xxxxxx X. Xxxx
Title: Shareholder
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