Exhibit 2
ESCROW AGREEMENT
ESCROW AGREEMENT, dated as of January 10, 1997, among TW CABLE, L.L.C., a
New York limited liability company, with offices located at ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ (the "Purchaser"), the Owners of
Preferred Stock ("Preferred Shareholders") and Secured Subordinated Debentures
and Warrants issued in connection therewith ("Debentureholders" and together
with the Preferred Shareholders hereafter collectively referred to as the
"Sellers") of VTX Electronics Corp., a Delaware Corporation ("VTX"), whose names
and addresses are set forth in the schedule, annexed hereto, made part hereof
and referred to as Exhibit "1," and Todtman, Young, Tunick, Nachamie, ▇▇▇▇▇▇▇ &
Spizz, P.C., with offices as ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as
escrow agent (the "Escrow Agent").
Purchaser desires to purchase from the Sellers all, but not less than
ninety (90%) percent, of the outstanding VTX (a) Senior Redeemable Cumulative
Convertible Preferred Stock ("Preferred Shares"), and (b) Secured Subordinated
Debentures in the principal unpaid amount of Two Million Six Hundred Fifty
Thousand ($2,615,000) Dollars and Seventy Million Three Hundred Fifty Thousand
(70,350,000) warrants (the "Warrants") issued in connection therewith
(collectively, the "Debentures," and, together with the Preferred Shares, the
"Securities") for a maximum aggregate purchase price of One Million One Hundred
Thousand ($1,100,000) Dollars (the "Purchase Price" and, together with the
Preferred Shares and Debentures, collectively referred to as the "Escrow
Property"), pursuant to the Securities Purchase Agreement between the Purchaser
and the Sellers, dated as of the date hereof (the "Purchase Agreement") a copy
of which is annexed hereto, made a part hereof and referred to as Exhibit "2".
This Escrow Agreement is being entered into for the purpose of assuring
Purchaser of the fulfillment
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of those conditions described in Article 1 hereof. Capitalized terms
hereunder shall have the same meaning as in the Purchase Agreement unless the
context clearly indicates the contrary.
In consideration of the execution of the Purchase Agreement and the mutual
covenants herein contained, the parties hereto agree as follows:
ARTICLE 1
ESCROW PROPERTY
1.1. Simultaneously with the execution and delivery hereof by Purchaser and
the Escrow Agent, there has been delivered to the Escrow Agent a copy of the
Purchase Agreement executed by Purchaser, accompanied by Purchaser's wire
transfer for the Purchase Price payable to the order of the Escrow Agent in the
sum of One Million One Hundred Thousand ($1,100,000) Dollars and conditional
letters of resignation of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇▇▇.
1.2. Escrow Agent agrees to deposit the Purchase Price into escrow in an
interest bearing segregated bank account at Republic National Bank and to
promptly notify Purchaser and ▇▇▇▇▇▇ ▇▇▇▇ (the "Sellers' Representative") of the
address of said bank where the funds are on deposit and the account number.
1.3. Escrow Agent agrees to give notice to Purchaser and Sellers'
Representative of due receipt from the Sellers of delivery into escrow of the
Agreements and Securities described in Section 1.5 hereof.
1.4. If by February 14, 1997, Purchaser fails to receive the notice from
the Escrow Agent, as described in Section 1.5 hereof, then Purchaser shall
thereafter have the right (until such notice is received by Purchaser) to cancel
this Escrow Agreement (and the Purchase Agreement) upon notice to the Escrow
Agent and Sellers' Representative and the Escrow Agent agrees thereafter to
forthwith deliver the Purchase Price (and all interest earned thereon) to the
Purchaser.
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1.5. The Escrow Agent shall deliver notice to Purchaser by midnight on
February 14, 1997 that there has been delivered to the Escrow Agent the
following:
(i) Certificates for an aggregate of at least Eleven Thousand Three Hundred
Seventy-Five (11,375) VTX Preferred Shares which is equal to at least ninety
(90%) percent of VTX's outstanding Preferred Shares, accompanied by stock
powers, endorsed by the registered owners thereof with signatures guaranteed by
a bank, trust company or New York Stock Exchange member firm.
(ii) Secured Subordinated Debentures (and Warrants issued in connection
therewith) in the aggregate face amount of Two Million Three Hundred Fifty-Three
Thousand Five Hundred ($2,353,500) Dollars which is equal to at least ninety
(90%) percent of Two Million Six Hundred Fifteen Thousand ($2,615,000) Dollars
of VTX's outstanding Debentures, such Debentures being duly endorsed by the
registered owners thereof or accompanied by bond powers and such Warrants being
accompanied by stock powers, endorsed by the registered owners thereof, with
signatures guaranteed by a bank, trust company or New York Stock Exchange member
firm.
(iii) Purchase Agreements and Escrow Agreements duly executed by the
Preferred Shareholders and Debentureholders owning a minimum of the Securities
described in Sections 1.5(i) and 1.5(ii) hereof.
1.6. Escrow Agent covenants and agrees promptly to deliver to Purchaser and
Sellers' Representative originals of the Agreements and photostatic copies of
certificates for the Preferred Shares, Debentures and Warrants delivered to the
Escrow Agent as described in Section 1.5 hereof.
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1.7. Following delivery to the Escrow Agent of the Agreements and
Securities described in Section 1.5 hereof and Purchaser delivering notice to
the Escrow Agent requesting release of the Escrow Property, the Escrow Agent
shall forthwith deliver (a) the Preferred Shares and Debentures to the
Purchaser, (b) the pro rata portion of the Purchase Price, together with
interest thereon, representing payment for the Preferred Shares and Debentures
actually purchased to the Sellers, and (c) the balance of the Purchase Price
with interest thereon to the Purchaser.
1.8. Following delivery to the Escrow Agent of the Agreements and
Securities described in Section 1.5 hereof and the Sellers' Representative or
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ LLP delivering notice (the "Sellers' Notice") to the Escrow
Agent that the conditions set forth in Section 9.1 of the Purchase Agreement
have been fulfilled and requesting that the Escrow Property be released from
escrow, Escrow Agent shall deliver a copy of the Seller's Notice to the
Purchaser. If, within ten (10) days thereafter, Purchaser fails to deliver
notice to the Escrow Agent objecting thereto ("Purchaser's Notice"), Escrow
Agent shall deliver the Escrow Property to the Purchaser and Sellers in the
manner described in Section 1.7 hereof.
1.9. If within ten (10) days after delivery of Sellers' Notice to the
Purchaser, the Purchaser delivers Purchaser's Notice to the Escrow Agent and
Seller's Representative, the Escrow Agent shall thereafter continue to hold and
thereafter release the Escrow Property solely in accordance with any of the
following:
(a) instruction signed jointly by Purchaser and Sellers' Representative;
(b) separate instructions of written like tenor from Purchaser and Sellers'
Representative; or
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(c) a certified copy of a judgment of a Court of competent jurisdiction as
to which the Escrow Agent shall have received an opinion of Purchaser's counsel
or ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ LLP satisfactory to the Escrow Agent that such judgment is
final and beyond appeal.
1.10. Anything in the foregoing to the contrary notwithstanding, at the
sole discretion of the Escrow Agent, the Escrow Agent may at any time upon
notice to Purchaser and Sellers' Representative deposit the Escrow Property and
letters of resignation with a Court located in New York State selected by the
Escrow Agent and, in such event, all liability and responsibility of the Escrow
Agent shall terminate upon such deposit having been made.
1.11. So long as the Escrow Property is held by the Escrow Agent, and until
such time as the Escrow Agent receives written notice from Purchaser directing
the Escrow Agent to deliver the Escrow Property to Purchaser, Purchaser shall
have the right to vote the Shares for all purposes. If requested by Purchaser,
Sellers' Representative and the Escrow Agent shall execute and deliver to
Purchaser such proxies and authorizations as are reasonably required to confirm
the voting rights of Purchaser during this period.
1.12. So long as the Escrow Property is held by the Escrow Agent, and until
such time as the Escrow Agent receives written notice from Purchaser directing
the Escrow Agent to deliver the Escrow Property to Purchaser, all dividends upon
the Escrow Property shall be paid to and held by the Escrow Agent. Upon
termination of this escrow, any dividends, interest or other distributions of
the Escrow Property, shall be delivered to the Party to whom the Securities are
delivered.
ARTICLE 2
CONCERNING THE ESCROW AGENT
2.1. The Escrow Agent shall not be entitled to a fee for its services
hereunder.
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2.2. The Escrow Agent may resign and be discharged from its duties
hereunder at any time by giving notice of such resignation to the Purchaser and
the Sellers' Representative specifying a date (not less than 30 days after the
giving of such notice) when such resignation shall take effect. Promptly after
such notice, a successor escrow agent shall be appointed by mutual agreement of
the Purchaser and the Sellers' Representative, such successor escrow agent to
become Escrow Agent hereunder upon the resignation date specified in such
notice. If the Purchaser and the Sellers's Nominee are unable to agree upon a
successor escrow agent within 30 days after such notice, the Escrow Agent shall
continued to serve until a successor accepts the escrow and receives the Escrow
Property. The Purchaser and the Seller's Nominee may agree at any time to
substitute a new escrow agent by giving notice thereof to the Escrow Agent then
acting.
2.3. The Escrow Agent undertakes to perform only such duties as are
specifically set forth herein. The Escrow Agent, acting or refraining from
acting in good faith, shall not be liable for any mistake of fact or error of
judgment by it or for any acts or omissions by it of any kind, unless caused by
willful misconduct or gross negligence, and shall be entitled to rely, and shall
be protected in doing so, upon (a) any written notice, instrument, or signature
believed by it be genuine and to have been signed or presented by the proper
party or parties duly authorized to do so, or (b) the advice of counsel (which
may be of the Escrow Agent's own choosing). The Escrow Agent shall have no
responsibility for the contents of any writing submitted to it hereunder and
shall be entitled in good faith to rely without any liability upon the contents
thereof.
2.4. Each party (in the case of the Sellers, only to the extent of their
Purchase Price, except to ▇▇▇▇ and Rind, to whom no such limitation applies),
agrees to indemnify the Escrow Agent and hold it harmless against any and all
liabilities incurred by it hereunder as a consequence of such party's actions
(including reasonable
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legal fees and expenses), and the parties further agree, subject to the
above limitation, to indemnify the Escrow Agent and hold it harmless against any
and all liabilities incurred by it hereunder that are not a consequence of their
respective action, except in either case for liabilities incurred by the Escrow
Agent resulting from its own willful misconduct or gross negligence.
2.5. The Escrow Agent shall not be prevented from acting as counsel to the
Sellers as a result of serving as Escrow Agent hereunder.
2.6. Anything in the foregoing to the contrary notwithstanding, at the sole
discretion of the Escrow Agent, said Escrow Agent may, at any time, deposit the
Escrow Property with a court selected by the Escrow Agent and upon such event,
all liability and responsibility of the Escrow Agent shall terminate upon such
deposit.
ARTICLE 3
MISCELLANEOUS
3.1. This Escrow Agreement will be binding upon, inure to the benefit of,
and be enforceable by the respective heirs, beneficiaries, representatives,
successors and assigns of the parties hereto.
3.2. This Escrow Agreement contains the entire understanding of the parties
with respect to its subject matter, and may be amended only by a written
instrument duly executed by all the parties hereto.
3.3. Notices. All notices permitted or required under this Agreement shall
be in writing and shall be either (a) delivered by personal service, (b)
delivered by courier service, (c) telecopied and confirmed immediately in
writing by a copy mailed by registered or certified mail, postage prepaid,
return receipt requested, or (d) sent by certified or registered mail, postage
prepaid, return receipt requested, to the parties hereto at their addresses set
forth below or at such other addresses which may be designated in writing by the
parties:
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If to Escrow Agent to: Todtman, Young, Tunick, Nachamie, ▇▇▇▇▇▇▇ & Spizz, P.C.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇. Esq./▇▇▇▇ ▇▇▇▇▇, Esq.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to Sellers'
Representative: ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
Apartment ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
With a copy to: ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ LLP
▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇, Esq.
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to Purchaser to: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
TW Cable, L.L.C.
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
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With a copy to: Ruskin, Moscou, ▇▇▇▇▇ & Faltischek, P.C.
▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇, Esq.
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Such notices shall be effective upon receipt in the case of personal or
courier service or telecopier delivery and on the third (3rd) day after posting
in the U.S. mail.
3.4. This Escrow Agreement shall be governed by, and construed and enforced
in accordance with, the laws of the State of New York without regard to its
conflict-of-laws rules.
3.5. This Escrow Agreement may be executed simultaneously 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.
3.6. This Escrow Agreement shall remain in full force and effect until the
Escrow Agent has delivered all the Escrow Property in its possession in
accordance with the terms thereof.
3.7. Article headings contained herein are for reference purposes only and
shall not in any way affect the meaning or interpretation of this Escrow
Agreement.
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IN WITNESS WHEREOF, this Escrow Agreement has been duly executed and
delivered by the duly authorized officer of the Purchaser, Sellers and the
Escrow Agent as of the date first above written.
THE PURCHASER:
TW CABLE, L.L.C.
By:
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, President
Employer ID No.
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THE ESCROW AGENT:
TODTMAN, YOUNG, TUNICK, NACHAMIE,
▇▇▇▇▇▇▇ & SPIZZ, P.C.
By:
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Employer ID No.
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Steel Partners II, L.P.
c/o ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Employer ID No.
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Quota Fund NV
c/o ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Employer ID No.
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▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
SSN
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▇▇▇▇▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇. ▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
SSN
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Hiro Hiranandani
c/o Computer Power, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
SSN
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇
c/o PolyVentures
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
SSN
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▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
Apartment ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
SSN
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Long Island Venture Fund, L.P.
▇▇▇▇ ▇▇▇▇▇▇, Partner
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Employer ID No.
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▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Ernst & Co.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
SSN
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LEG Partners SBIC, L.P.
c/o Golub Associates
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Employer ID No.
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▇▇▇▇▇▇▇▇▇▇ Family 1986 Trust
c/o Odyssey Partners
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Employer ID No.
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▇▇▇▇▇▇▇▇▇▇ Family 1991 Trust
c/o Odyssey Partners
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Employer ID No.
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
SSN
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SSN
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Trust
c/o ▇▇▇▇▇▇ Group
1370 Avenue of the ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Employer ID No.
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▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SSN
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▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SSN
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Fundex Capital Corp.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇-▇▇▇
▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Employer ID No.
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
SSN
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Tradewind Fund L.P. I
c/o ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Employer ID No.
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▇.▇. ▇▇▇▇▇▇▇▇ & Co., Inc.
Pension Profit Plan
c/o ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Employer ID No.
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Stourbridge Investments, Ltd.
c/▇ ▇▇▇▇▇ Shvarbir
Private Trust Limited
P.O. Box N-75
Nassau, Bahamas
Employer ID No.
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▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
SSN
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TW Communications Corp. hereby
guarantees the performance of
Purchaser under this Agreement
By:
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45120-1 2/24/97
14
