EXHIBIT 2.3
ESCROW AGREEMENT
ESCROW AGREEMENT, dated as of May 30, 2000 (this "Agreement"),
among ONEIDA LTD., a New York corporation (the
"Purchaser"), DELCO INTERNATIONAL LTD (INC.), a New York
corporation (the "Company"), XXXXX XXXXXX, XXXXXX XXXXXX, XXXXX
XXXXXX, XXXXXXX XXXXXXXXX and XXXXXX XXXXXX (each a "Stockholder"
and, collectively, the "Stockholders") and THE CHASE MANHATTAN
BANK N.A., a New York banking corporation (the "Escrow Agent").
All capitalized terms not otherwise defined herein shall have the
meanings ascribed thereto in the Stock Purchase Agreement (as
defined below).
W I T N E S S E T H:
WHEREAS, the Purchaser, the Company and the Stockholders
are entering into a Stock Purchase Agreement, as of the date
hereof (the "Stock Purchase Agreement"), pursuant to which the
Purchaser has agreed to purchase from the Stockholders, and the
Stockholders have agreed to sell to the Purchaser, all of the
issued and outstanding Common Stock of the Company;
WHEREAS, it is contemplated under the Stock Purchase
Agreement that the Purchaser, as a portion of the Purchase Price,
will deposit or cause to be deposited into escrow the sum of
$5,000,000 in cash on the Closing Date (the "Adjustment Escrow
Amount"; the Adjustment Escrow Amount and all interest and income
accrued thereon being referred to herein as the "Adjustment Escrow
Fund") to be held and disbursed by the Escrow Agent in accordance
with Section 4 of this Agreement;
WHEREAS, it is contemplated under the Stock Purchase
Agreement that the Purchaser, as a portion of the Purchase Price,
will deposit or cause to be deposited into escrow the sum of
$5,000,000 in cash on the Closing Date (the "Indemnity Escrow
Amount"; the Indemnity Escrow Amount and all interest and income
accrued thereon being referred to herein as the "Indemnity Escrow
Fund" and, together with the Adjustment Escrow Fund, the "Escrow
Funds") to be held and disbursed by the Escrow Agent in accordance
with Section 5 of this Agreement.
WHEREAS, the Escrow Agent is willing to act as the
Escrow Agent hereunder;
WHEREAS, the parties hereto agree that the Escrow Agent
is not a party to the Stock Purchase Agreement and has no rights
or obligations thereunder, and that the duties and obligations of
the Escrow Agent shall be determined solely by this Agreement; and
WHEREAS, the Escrow Agent will hold the Adjustment
Escrow Fund in Account No. E 14001 at The Chase Manhattan Bank,
N.A., New York (the "Adjustment Escrow Account") and the Indemnity
Escrow Fund in Account No. E 14002 at The Chase Manhattan Bank,
N.A., New York (the "Indemnity Escrow Account" and, together with
the Adjustment Escrow Accounts, the "Escrow Accounts").
NOW, THEREFORE, in consideration of the foregoing and
the mutual agreements contained herein and intending to be legally
bound hereby, the parties hereby agree as follows:
1. Appointment and Agreement of Escrow Agent and
Representative of the Stockholders. (a) The Purchaser, the
Company and the Stockholders hereby appoint the Escrow Agent to
serve as, and the Escrow Agent hereby agrees to act as, escrow
agent upon the terms and conditions of this Agreement.
(b) The Stockholders hereby appoint Xx. Xxxxxx Xxxxxx
as their representative (the "Stockholder Representative").
2. Establishment of the Escrow Funds. (a) The
Purchaser shall notify the Escrow Agent of the date of the Closing
in writing at least three (3) Business Days prior to the Closing
Date. Pursuant to Section 2.05(b) of the Stock Purchase
Agreement, the Purchaser shall deliver to the Escrow Agent on the
Closing Date the Adjustment Escrow Amount and the Indemnity Escrow
Amount. The Escrow Agent shall hold the Adjustment Escrow Fund
and the Indemnity Escrow Fund in escrow pursuant to this Agreement
in the Adjustment Escrow Account and the Indemnity Escrow Account, respectively.
(b) The Purchaser, the Company and the
Stockholders confirm to the Escrow Agent and to each other that
each of the Adjustment Escrow Fund and the Indemnity Escrow Fund
will be free and clear of all Liens except as may be created by
this Agreement and the Stock Purchase Agreement.
3. Purpose of the Escrow Funds. The Escrow Funds
will be deposited with the Escrow Agent and will be held by the
Escrow Agent to secure the obligations of each of the Stockholders
to make payments to the Purchaser (i) in the event payment by the
Stockholders shall be required under Section 2.06(c)(i) of the
Stock Purchase Agreement and (ii) with respect to any
indemnification obligations of each of the Stockholders pursuant
to Section 9.02 of the Stock Purchase Agreement.
4. Payments from the Adjustment Escrow Fund. (a)
Promptly following the final determination of the adjustment to
the Purchase Price as contemplated by Section 2.06 of the Stock
Purchase Agreement, and in any event not later than three (3)
Business Days following such determination, the Purchaser shall
deliver written instructions, executed by an authorized officer of
the Purchaser (the "Purchase Price Adjustment Instructions"), to
the Escrow Agent setting forth the amount to be transferred to the
Purchaser and/or the Stockholder Representative, as applicable,
from the Adjustment Escrow Fund as determined in accordance with
Section 2.06 of the Stock Purchase Agreement.
(b) Within three (3) Business Days after the receipt by
the Escrow Agent of the Purchase Price Adjustment Instructions,
the Escrow Agent shall make payment to the Purchaser and/or the
Stockholder Representative in accordance with the Purchase Price
Adjustment Instructions.
5. Payments from the Indemnity Escrow Fund. (a) At
any time on or prior to twenty four (24) months after the Closing
Date (the "Expiration Date"), the Purchaser may deliver to the
Escrow Agent a certificate of the Purchaser, executed by an
authorized officer of the Purchaser (a "Purchaser's Certificate"),
with copy to the Stockholder Representative. Such Purchaser's
Certificate shall:
(i) state that an Indemnified Party has paid or
incurred a Loss or is entitled to
indemnification under Section 9.02 of the
Stock Purchase Agreement (an "Indemnification
Item");
(ii) state the aggregate amount of such
Indemnification Item; and
(iii) specify in reasonable detail the nature
and amount of each individual Indemnification
Item.
(b) If the Stockholder Representative shall
object to any amount claimed in connection with any
Indemnification Item specified in any Purchaser's Certificate, the
Stockholder Representative shall, within ten (10) Business Days
after delivery by the Purchaser to the Stockholder Representative
of such Purchaser's Certificate, deliver to the
Escrow Agent a certificate executed by the Stockholder
Representative (a "Stockholders' Certificate"), with a copy to the
Purchaser, (i) specifying each such amount to which the
Stockholder Representative objects and (ii) specifying in
reasonable detail the nature and basis for each such objection.
If the Escrow Agent shall not have received a Stockholders'
Certificate objecting to the amount claimed with respect to an
Indemnification Item within ten (10) Business Days after delivery
by the Purchaser to the Stockholder Representative of a
Purchaser's Certificate specifying such Indemnification Item, the
Stockholder Representative shall be deemed to have acknowledged
the correctness of the amount claimed on such Purchaser's
Certificate with respect to such Indemnification Item, and the
Escrow Agent shall promptly transfer to the Purchaser out of the
Indemnity Escrow Account, an amount in cash equal to the lesser of
(1) the amount claimed in the Purchaser's Certificate with respect
to such Indemnification Item and (2) the remaining balance in the
Indemnity Escrow Account.
(c) If the Escrow Agent receives, within ten (10)
Business Days after delivery by the Purchaser to the Stockholder Representative
of a Purchaser's Certificate, a Stockholders'
Certificate objecting to the amount claimed with respect to any Indemnification
Item specified in such Purchaser's Certificate,
the amount so objected to shall be held by the Escrow Agent and
shall not be released from the Indemnity Escrow Account except in
accordance with either:
(i) written instructions executed by the
Stockholder Representative and an authorized
officer of the Purchaser, or
(ii) the final non-appealable judgment of a court
having jurisdiction over the matters relating
to the claim by the Purchaser for
indemnification from each of the Stockholders.
In such an event, the Escrow Agent shall, promptly thereafter,
transfer to the Purchaser out of the Indemnity Escrow Account, an
amount in cash equal to the portion of such amount set forth in
such written instructions or in such judgment, as the case may be.
(d) Distribution of Remaining Indemnity Escrow Amount
to the Stockholder Representative. (i) On the first anniversary
of the Closing Date (the "First Year Anniversary Date"), the
Stockholders are entitled to receive an amount equal to one half
of the funds remaining in the Indemnity Escrow Account as of the
First Anniversary Date not subject to a Purchaser's Certificate
delivered pursuant to Section 5(a) or a Stockholder's Certificate
delivered pursuant to Section 5(c) (the "First Year Anniversary
Amount").
(A) Within three (3) Business Days after the First Year
Anniversary Date, the Escrow Agent shall deliver a
certificate to the Stockholder Representative and the
Purchaser setting forth the First Year Anniversary Amount
(the "Escrow Agent Certificate").
(B) Within ten (10) Business Days after the receipt by
the Stockholder Representative and the Purchaser of the
Escrow Agent Certificate, the Stockholder Representative and
the Purchaser shall deliver to the Escrow Agent a
certificate, executed by the Stockholder Representative and
an authorized officer of the Purchaser (the "First Year
Anniversary Certificate"):
(1) confirming the First Year Anniversary Amount;
and
(2) instructing the Escrow Agent to transfer the
First Year Anniversary Amount to the
Stockholder Representative.
(C) Within three (3) Business Days after receipt
by the Escrow Agent of the First Anniversary Certificate,
the Escrow Agent shall transfer to the Stockholder
Representative out of the Indemnity Escrow Account the First
Year Anniversary Amount.
(ii) At the Expiration Date, the Escrow Agent shall
promptly liquidate all investments of the Indemnity Escrow Amount
not subject to a Purchaser's Certificate delivered pursuant to
Section 5(a) or a Stockholder's Certificate delivered pursuant to
Section 5(c) and transfer such funds to the Stockholder
Representative. If at the Expiration Date the Escrow Agent is
holding Indemnity Escrow Funds subject to a Purchaser's
Certificate delivered pursuant to Section 5(a) or a Stockholder's
Certificate delivered pursuant to Section 5(c), the Escrow Agent
shall continue to hold such Indemnity Escrow Funds until disposed
of in accordance with such Section, after which any remaining
Indemnity Escrow Funds will be distributed as provided in this
Section 5(d)(ii).
6. Liquidation of the Escrow Funds. Whenever the
Escrow Agent shall be required to make payment from the Adjustment
Escrow Fund or the Indemnity Escrow Fund, whichever the case may
be, the Escrow Agent shall pay such amounts by liquidating the
investments of the Adjustment Escrow Fund or the Indemnity Escrow
Fund, whichever the case may be, to the extent necessary to pay
such amounts in full and in cash. Subject to the provisions of
Section 12(g) of this Agreement, the Escrow Agent shall not be
liable for any losses incurred in any such liquidation.
7. Payments. (a) Payments made by the Escrow Agent
pursuant to the provisions of Section 4 and Section 5 shall be
made by wire transfer in immediately available funds to such
account designated in writing by the party to receive such payment
to the Escrow Agent at least three (3) Business Days prior to the
date any such payment is due.
(b) In the event funds transfer instructions are
given (other than in writing at the time of execution of the
Agreement), whether in writing, by telecopier or otherwise, the
Escrow Agent is authorized to seek confirmation of such
instructions by telephone call-back to the person or persons
designated on Schedule B hereto, and the Escrow Agent may rely
upon the confirmations of anyone purporting to be the person or
persons so designated. The persons and telephone numbers for call-
backs may be changed only in a writing actually received and
acknowledged by the Escrow Agent. The parties to this Agreement
acknowledge that such security procedure is commercially
reasonable.
(c) It is understood that the Escrow Agent and the
beneficiary's bank in any funds transfer may rely solely upon any
account numbers or similar identifying number provided by either
of the other parties hereto to identify (i) the beneficiary, (ii)
the beneficiary's bank, or (iii) an intermediary bank. The
Escrow Agent may apply any of the escrowed funds for any payment
order it executes using any such identifying number, even where
its use may result in a person other than the beneficiary being
paid, or the transfer of funds to a bank other than the
beneficiary's bank, or an intermediary bank designated.
8. Maintenance of the Escrow Funds; Termination of the
Escrow Funds. The Escrow Agent shall continue to maintain the
Escrow Funds until the termination of this Agreement as provided
in Section 15.
9. Investment of Escrow Funds. (a) The Escrow Agent
shall invest and reinvest moneys on deposit in the Escrow Funds,
pursuant to a joint written notice from the Stockholder
Representative and the Purchaser, in any combination of the
following: (i) readily marketable direct obligations of the
Government of the United States or any agency or instrumentality
thereof or readily marketable obligations unconditionally
guaranteed by the full faith and credit of the Government of the
United States, in each case with a maturity of one year or less,
(ii) one or more portfolios of the Chase Vista Money Market Mutual
Funds, for which affiliates of The Chase Manhattan Bank provide
investment advisory and shareholder services for a fee as
described in the prospectus for these funds which has been
provided to the parties hereto, in addition to a 25 basis point
fee as compensation for administrative and accounting services
provided to clients, (iii) insured certificates of deposit of, or
time deposits with, any commercial bank that is a member of the
Federal Reserve System and which issues (or the parent of which
issues) commercial paper rated as described in clause (iv), is
organized under the laws of the United States or any State thereof
and has combined capital and surplus of at least $1,000,000,000,
each of which certificate of deposit or time deposit has a
maturity of 180 days or less, or (v) commercial paper in an
aggregate amount of no more than $1,000,000 per issuer outstanding
at any time, with a maturity of 270 days or less, issued by any
corporation organized under the laws of any State of the United
States, rated at least "Prime-1" (or the then equivalent grade) by
Xxxxx'x Investors Services, Inc. or "A-1" (or the then equivalent
grade) by Standard & Poors, Inc. In the absence of timely
investment instructions, the Escrow Funds shall be invested in The
Chase Vista U.S. Government Money Market Fund.
(b) All trust investment orders under Section 9(a)(i),
(iii) and (iv) above shall be executed through Chase Asset
Management ("CAM"), in the investment management division of The
Chase Manhattan Bank. Subject to the principles of best
execution, transactions shall be effected on behalf of the Escrow
Fund through broker-dealers selected by CAM. An agency fee, in
the amount specified in Schedule A hereto, shall be assessed in
connection with each transaction. The Purchaser and the
Stockholder Representative shall be provided with periodic
statements reflecting the transactions executed on behalf of the
Escrow Fund. The Purchaser and the Stockholder Representative
shall also have the right, upon request, to receive a notification
providing transaction details for the Escrow Fund within five (5)
days of any securities transaction in that account. This
notification shall be provided without any additional cost and
shall reflect the amount of the agency fee.
10. Assignment of Rights to the Escrow Amount;
Assignment of Obligations; Successors. (a) Except as provided in
this Section 10, a party hereto may not assign any of its rights
or obligations hereunder without the prior written consent of the
Escrow Agent, the Purchaser and the Stockholder Representative.
The Purchaser may freely assign this Agreement
(i) to any successor in interest to the Purchaser by way of a
merger, consolidation, sale of all or any material portion of its
assets, or otherwise or (ii) to any Affiliate of the Purchaser. In
the event of each such assignment the assignee shall receive the
benefit of this Agreement and shall succeed to all of the rights
of the Purchaser hereunder. This Agreement will be binding upon
and inure to the benefit of the parties hereto and their
respective successors, heirs, legatees and permitted assigns.
(b) Anything in this Agreement to the contrary
notwithstanding, in no event shall the Escrow Agent be liable for
special, indirect or consequential loss or damage of any kind
whatsoever (including but not limited to lost profits), even if
the Escrow Agent has been advised of the likelihood of such loss
or damage and regardless of the form of action. The parties
hereto acknowledge that the foregoing indemnities shall survive
the resignation or removal of the Escrow Agent or termination of
this Agreement.
11. Tax Information. Upon execution of this
Agreement, the Purchaser, the Company and each of the Stockholders
shall provide the Escrow Agent with a fully executed W-8 or W-9
Internal Revenue Service form, which shall include their Tax
Identification Number (TIN) as assigned by the Internal Revenue
Service. All interest or other income earned under the Escrow
Agreement shall be allocated and paid as provided herein and
reported by the recipient to the Internal Revenue Service as
having been so allocated and paid.
12. Escrow Agent. (a) Except as expressly
contemplated by this Agreement or by joint written instructions
from the Purchaser and the Stockholder Representative or pursuant
to an order of a court of a competent jurisdiction, the Escrow
Agent shall not sell, transfer or otherwise dispose of in any
manner all or any portion of the Escrow Funds.
(b) The duties and responsibilities of the Escrow
Agent shall be limited to those expressly set forth in this Escrow
Agreement, and the Escrow Agent shall not be subject to, nor
obligated to interpret, any other agreements to which the
Purchaser, the Company or the Stockholders are parties. Except as
otherwise provided in the Preamble to this Agreement, reference in
this Escrow Agreement to the Stock Purchase Agreement is for
identification purposes only and for reference to the defined
terms therein and its terms and conditions are not thereby
incorporated herein.
(c) In the performance of its duties hereunder,
the Escrow Agent shall be entitled to rely upon any document,
instrument or signature believed by it in good faith to be genuine
and signed by any party hereto or an authorized officer or agent
thereof, and shall not be required to investigate the truth or
accuracy of any statement contained in any such document or
instrument. The Escrow Agent may assume that any Person
purporting to give any notice in accordance with the provisions of
this Agreement has been duly authorized to do so.
(d) The Escrow Agent shall not be liable for any
error of judgment, or any action taken, suffered or omitted to be
taken, hereunder except in the case of its gross negligence, bad
faith or willful misconduct. The Escrow Agent may consult with
counsel of its own choice and shall have full and complete
authorization and protection for any action taken or suffered by
it hereunder in good faith and in accordance with the opinion of
such counsel.
(e) The Escrow Agent shall have no duty as to the
collection or protection of the Escrow Amount or income thereon,
nor as to the preservation of any rights pertaining thereto,
beyond the safe custody of any such funds actually in its
possession.
(f) As compensation for its services to be
rendered under this Agreement, for each year or any portion
thereof, the Escrow Agent shall receive a fee in the amount
specified in Schedule A to this Agreement and shall be reimbursed
upon request for all expenses, disbursements and advances,
including reasonable fees of outside counsel, if any, incurred or
made by it in connection with the preparation of this Agreement
and the carrying out of its duties under this Agreement. All such
fees and expenses shall be shared equally by the Stockholders, on
the one hand, and the Purchaser, on the other. The parties hereby
grant the Escrow Agent a lien, right of setoff and security
interest to the account for the payment of any claim for
compensation, expenses and amounts due hereunder.
(g) The Purchaser and the Stockholders agree to
jointly and severally reimburse and indemnify the Escrow Agent
for, and hold it harmless against, any loss, liability or expense,
including, without limitation, reasonable attorneys' fees,
incurred without gross negligence, bad faith or willful misconduct
on the part of the Escrow Agent arising out of, or in connection
with the acceptance of, or the performance of, its duties and
obligations under this Agreement. The Purchaser, on the one hand,
and the Stockholders, on the other, agree among themselves that
they shall share equally the costs of any such loss, liability or
expense suffered by the Escrow Agent.
(h) The Escrow Agent may at any time resign by
giving twenty (20) Business Days' prior written notice of
resignation to the Stockholder Representative and the Purchaser.
The Stockholder Representative and the Purchaser may at any time
jointly remove the Escrow Agent by giving ten (10) Business Days'
written notice signed by each of them to the Escrow Agent. If the
Escrow Agent shall resign or be removed, a successor Escrow Agent,
which shall be a bank or trust company having its principal
executive offices in New York, New York, and assets in excess of
$10,000,000,000, and which shall be reasonably acceptable to the
Stockholder Representative, shall be appointed by the Purchaser by
written instrument executed by the Stockholder Representative and
the Purchaser and delivered to the Escrow Agent and to such
successor Escrow Agent and, thereupon, the resignation or removal
of the predecessor Escrow Agent shall become effective and such
successor Escrow Agent, without any further act, deed or
conveyance, shall become vested with all right, title and interest
to all cash and property held hereunder of such predecessor Escrow
Agent, net of any outstanding fees due the predecessor Escrow
Agent, and such predecessor Escrow Agent shall, on the written
request of the Stockholder Representative or the Purchaser,
execute and deliver to such successor Escrow Agent all the right,
title and interest hereunder in and to the Escrow Funds of such
predecessor Escrow Agent and all other rights hereunder of such
predecessor Escrow Agent. If no successor Escrow Agent shall have
been appointed within twenty (20) Business Days of a notice of
resignation by the Escrow Agent, the Escrow Agent's sole
responsibility shall thereafter be to hold the Escrow Funds until
the earlier of its receipt of designation of a successor Escrow
Agent, a joint written instruction by the Stockholder
Representative and the Purchaser and termination of this Agreement
in accordance with its terms.
13. Merger. Any corporation into which the Escrow
Agent in its individual capacity may be merged or converted or
with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Escrow
Agent in its individual capacity shall be a party, or any
corporation to which substantially all the corporate trust
business of the Escrow Agent in its individual capacity may be
transferred, shall be the Escrow Agent under this Escrow Agreement
without further act; provided, however, that such corporation into
which the Escrow Agent may be merged or converted, or with which
may be consolidated, or resulting from any such merger, conversion
or consolidation, shall be a bank or trust company having assets
in excess of $10,000,000,000.
14. Conflicting Demands. In the event that the Escrow
Agent shall be uncertain as to its duties or rights hereunder or
shall receive instructions, claims or demands from any party
hereto which, in its opinion, conflict with any of the provisions
of this Agreement, it shall be entitled to refrain from taking any
action and its sole obligation shall be to keep safely all
property held in escrow until it shall be directed otherwise in
writing by all of the other parties hereto or by a final order or
judgment of a court of competent jurisdiction.
15. Termination. Except as provided in the
following sentence, this Escrow Agreement shall terminate on the
earlier of: (a) the date on which there are no funds remaining in
both the Adjustment Escrow Fund and the Indemnity Escrow Fund or
(b) the Expiration Date. If at the Expiration Date the Escrow
Agent is holding Indemnity Escrow Funds pursuant to a
Stockholders' Certificate in accordance with Section 5(c), the
Escrow Agent shall continue to hold such Indemnity Escrow Funds
until disposed of in accordance with such Section, at which time
this Agreement shall also terminate.
16. Notices. All notices and other communications
pursuant to this Agreement shall be in writing and deemed to be
sufficient if contained in a written instrument and shall be
deemed given if delivered personally, sent by nationally
recognized overnight courier or mailed by registered or certified
mail (return receipt requested), postage prepaid, to the parties
at the following address (or at such other address for a party as
shall be specified by like notice):
If to the Company:
Delco International Ltd. (Inc.)
00 Xxxxxx Xxxx Xxxxx
Xxxx Xxxxxxxxxx, Xxx Xxxx 00000
Attention: General Counsel
If to the Stockholder Representative, or the
Stockholders:
Xx. Xxxxxx Xxxxxx
000 Xxxxxxx Xxxx
Xxxxx Xxxx, XX 00000
Telephone: (000) 000-0000
with a copy to:
Salon, Marrow, Xxxxxxx & Xxxxxx,
LLP 000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxx Xxxxxxxx, Esq.
If to the Purchaser:
Oneida Ltd.
000-000 Xxxxxxx Xxxxxx Xxxxxx, Xxx Xxxx
00000
Attention: Xxxxxxxxx X. Xxxxxxxxx, Esq.
with a copy to:
Shearman & Sterling
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxx, Esq.
If to the Escrow Agent:
The Chase Manhattan Bank N.A. 000
Xxxx 00xx Xxxxxx, 00xx Xxxxx Xxx
Xxxx, XX 00000
Attention: Xxxxxx XxXxxxx
All such notices and other communications shall be
deemed to have been received (a) in the case of personal delivery,
on the date of such delivery, (b) in the case of delivery by
nationally recognized overnight courier, next day delivery
requested, on the Business Day following dispatch, and (c) in the
case of mailing, on the fifth Business Day following such mailing.
17. Governing Law. (a) This Agreement shall be
governed by, and construed in accordance with, the laws of the
State of New York, applicable to contracts executed in and to be
performed entirely within that state. All actions and proceedings
arising out of or relating to this Agreement shall be heard and
determined in any New York state or federal court sitting in The
City of New York. The parties hereto expressly consent to the
jurisdiction of any such court and the venue therein. The parties
hereto expressly consent to the jurisdiction of any such court and
to venue therein. Each of Stockholders has appointed Salon,
Marrow, Xxxxxxx & Xxxxxx, LLP as its authorized agent (the
"Authorized Agent") upon whom process may be served in any action
arising out of or based on this Agreement or any of the agreements
or transactions contemplated herein.
(b) Each of the Stockholders represents and warrants
that the Authorized Agent has agreed to act as said agent for
service of process and agrees to take any and all actions that may
be necessary to continue such appointment in full force and effect
as aforesaid. Service of process upon the Authorized Agent and
written notice of such service upon such party at the address set
forth in Section 16 shall be deemed, in every respect, effective
service of process upon such party; provided, however, that
nothing herein shall impair the right of any party to serve
process in any other manner permitted by law.
18. Amendment and Waivers. Any term or provision
of this Agreement may be amended, and the observance of any term
of this Agreement may be waived (either generally or in a
particular instance and either retroactively or prospectively)
only by a writing signed by all parties hereto. The waiver by a
party of any breach hereof or default in the performance hereof
will not be deemed to constitute a waiver of any other default or
any succeeding breach or default.
19. Severability. If any provision of this
Agreement, or the application thereof, will for any reason and to
any extent be invalid or unenforceable, the remainder of this
Agreement and application of such provision to other persons or
circumstances will be interpreted so as reasonably to effect the
intent of the parties hereto so long as the economic or legal
substance of the transactions contemplated hereby is not affected
in any manner materially adverse to any party. The parties
further agree to replace such void or unenforceable provision of
this Agreement with a valid and enforceable provision that will
achieve, to the greatest extent possible, the economic, business
and other purposes of the void or unenforceable provision.
20. Entire Agreement. This Agreement constitutes
the entire agreement of the parties hereto with respect to the
subject matter hereof and supersedes all prior agreements and
undertakings, both written and oral, among the Company, the
Stockholders, the Purchaser and the Escrow Agent with respect to
the subject matter hereof.
21. No Third Party Beneficiaries. This Agreement
is for the sole benefit of the parties hereto and their permitted
assigns and nothing herein, express or implied, is intended to or
shall confer upon any other person or entity any legal or
equitable right, benefit or remedy of any nature whatsoever under
or by reason of this Agreement.
22. Headings. The descriptive headings contained
in this Agreement are included for convenience of reference only
and shall not affect in any way the meaning or interpretation of
this Agreement.
23. Counterparts. This Agreement may be executed
in any number of counterparts, each of which will be an original
as regards any party whose signature appears thereon and all of
which together will constitute one and the same instrument. This
Agreement will become binding when one or more counterparts
hereof, individually or taken together, will bear the signatures
of all the parties reflected hereon as signatories.
24. Force Majeure. In the event that the Escrow Agent
is unable to perform its obligations under the terms of this
Agreement because of acts of God, strikes, equipment or
transmission failure or damage reasonably beyond its control, or
other cause reasonably beyond its control, the Escrow Agent shall
not be liable for damages to the other parties for any
unforeseeable damages resulting from such failure to perform or
otherwise from such causes.
[Remainder of this Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties hereto have caused this
Escrow Agreement to be executed as of the date first written
above, in the case of the Company, the Purchaser and the Escrow
Agent, by their respective officers thereunto duly authorized.
ONEIDA LTD.
By:/s/ XXXXX X. XXXXXXX
Name: Xxxxx X. Xxxxxxx Title:
Executive Vice President
DELCO INTERNATIONAL LTD. (INC.)
By:/s/ XXXXXX XXXXXX
Name: Xxxxxx Xxxxxx
Title: President
/s/ PERRY DELAMN Xxxxx
Xxxxxx
/s/ XXXXXX XXXXXX
Xxxxxx Xxxxxx
/s/ XXXXX XXXXXX Xxxxx
Xxxxxx
/s/ XXXXXXX XXXXXXXXX
Xxxxxxx Xxxxxxxxx
/s/ XXXXXX XXXXXX
Xxxxxx Xxxxxx
THE CHASE MANHATTAN BANK N.A. By:
/s/ XXXXXX XXXXXXX
Name: Xxxxxx XxXxxxx
Title: Assistant Vice President
SCHEDULE A
FEES OF THE ESCROW AGENT
15 basis points of the highest value of collateral held on deposit
per annum or any part thereof without proration for partial years,
subject to a minimum of $7,500 per annum or any part thereof without
proration for partial years, (includes investment in a Chase
Manhattan Bank Money Market Account, Chase Manhattan Bank Deposit
Account or The Chase Manhattan Bank Mutual Fund known as the Vista
Fund).
$75 per investment (excludes Money Market, Deposit Account or Vista
Fund investments).
SCHEDULE B
PERSONS AUTHORIZED TO CONFIRM WIRE TRANSFER INSTRUCTIONS
Authorized representatives of the Purchaser:
1. Xxxxxxxxx X. Xxxxxxxxx, Esq.
General Counsel
Oneida Ltd.
000-000 Xxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000; or
2. Xxxxxx X. Xxxxxxxxx, Esq.
Senior Corporate Attorney and Assistant Secretary
Oneida Ltd.
000-000 Xxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Authorized representatives of the Stockholder Representative:
1. Xxxxxx Xxxxxx
000 Xxxxxxx Xxxx
Xxxxx Xxxx, XX 00000
Telephone: (000) 000-0000; or
2. Xxxxxxx Xxxxxxxx, Esq.
Salon, Marrow, Xxxxxxx & Xxxxxx, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000 Telecopy: (000) 000-0000
