ESCROW AGREEMENT
This ESCROW AGREEMENT ("Agreement") is made as of November 12,
1996, by and among Xxxxx X. Xxxxxx ("Xxxxxx"), Old Dominion Growth
Fund Limited, a British Virgin Islands corporation ("Old Dominion")
and Kramer, Levin, Naftalis & Xxxxxxx, as Escrow Agent hereunder
(the "Escrow Agent"). Each of Xxxxxx and Old Dominion are referred
to herein individually as a "Party" and collectively as the
"Parties".
NOW, THEREFORE, in consideration of the foregoing Recitals and
the mutual covenants and agreements herein contained and intending
to be legally bound hereby, the parties hereto hereby agree as
follows:
1. Appointment of the Escrow Agent; Holding and Disbursing
of Escrowed Shares.
(a) Each of the Parties hereby appoints the Escrow Agent
to serve as escrow agent solely for the purposes set forth in this
Agreement, and the Escrow Agent hereby accepts such appointment,
on the terms and subject to the conditions hereof.
(b) Pursuant to the terms of a certain Promissory Note
(the "Note") executed by Alfa International Corp.("Alfa"), in favor
of Old Dominion, and an Investment Banking Agreement between Alfa
and Old Dominion, Xxxxxx has delivered to the Escrow Agent, to hold
pursuant to the terms and conditions hereof, Six Hundred Five
Thousand Two Hundred and One (605,201) shares of common stock of
Alfa, together with blank executed stock powers (collectively, the
"Escrowed Shares"), the receipt of which Escrow Agent hereby
acknowledges. In the event that there shall be made any dividends
or distributions in respect of the Escrowed Shares, or there shall
be realized any other proceeds in respect of the Escrowed Shares,
Xxxxxx shall deliver such dividends, distributions or other
proceeds to the Escrow Agent promptly upon receipt thereof, and the
term "Escrowed Shares" shall be deemed to include such dividends,
distributions or other proceeds.
2. Claims, Procedures and disbursement. The Escrowed Shares
shall be held and disbursed by the Escrow Agent as follows:
(a) Xxxxxx shall be entitled to delivery of the Escrowed
Shares if (I) on or before one hundred twenty (120) days from the
date hereof, there shall have been consummated under applicable law
the merger (the "Merger") of Ty-Breakers (NY Corp., a New York
corporation ("Ty-Breakers"), with Alfa or a subsidiary of Alfa,
such that Ty-Breakers shall become part of or a wholly-owned
subsidiary of Alfa and (II) the Note shall have been paid in full
from the proceeds of the initial sale or sales of securities of
Alfa for cash next following the consummation of the Merger, whose
net proceeds to Alfa are in at least the amount then due and owing
under the Note, such payment to be made within ten (10) business
days of the consummation of such sale or sales, but in no event
later than one year from the date hereof (the conditions in clauses
(I) and (II) are referred to as the "Release Conditions"). If at
any time either of the Release Conditions shall be violated, Old
dominion shall be entitled to delivery of the Escrowed Shares.
(b) If the Release Conditions shall have been satisfied,
Xxxxxx shall be entitled to deliver a notice (a "Xxxxxx Delivery
Notice") to the Escrow Agent stating that the Release Conditions
have been satisfied and requesting delivery of the Escrowed Shares.
Within five (5) business days of its receipt of the Xxxxxx Delivery
Notice, the Escrow Agent shall furnish a copy thereof to Old
dominion. If, within ten (10) business days of Old dominion's
receipt of the Xxxxxx Delivery Notice, the Escrow Agent shall not
have received a notice from Old Dominion (and "Old Dominion
Objection Notice") objecting to the delivery of the Escrowed Shares
to Xxxxxx, the Escrow Agent, as promptly as practicable thereafter,
shall deliver the Escrowed Shares to Xxxxxx. thereafter, the
Escrow Agent shall cease to have any obligations under this
Agreement. If the Escrow Agent shall receive an Old dominion
Objection Notice within the aforesaid ten (10) day period, the
Escrow Agent shall continue to hold or shall dispose of the
Escrowed Shares, as provided in subsection (d) below.
(c) If at any time either of the Release Conditions
shall be violated, Old Dominion shall be entitled to deliver a
notice (and "Old dominion Delivery Notice") to the Escrow Agent
stating that the Release Conditions have been violated and
requesting delivery of the Escrowed Shares. Within five (5)
business days of its receipt of the Old dominion Delivery Notice,
the Escrow Agent shall furnish a copy thereof to Xxxxxx. If within
ten (10) business days of Xxxxxx'x receipt of the Old dominion
Delivery Notice, the Escrow Agent shall not have received a notice
from Xxxxxx (a "Xxxxxx Objection Notice") objecting to the delivery
of the Escrowed Shares to Old Dominion, the Escrow Agent, as
promptly as practicable thereafter, shall deliver the Escrowed
Shares to Old Dominion. Thereafter, the Escrow Agent shall cease
to have any obligations under this Agreement. If the Escrow Agent
shall receive a Xxxxxx Objection Notice within the aforesaid ten
(10) day period, the Escrow Agent shall continue to hold or shall
dispose of the Escrowed Shares, as provided in subsection (d)
below.
(d) If (x) the Escrow Agent shall receive a Xxxxxx
Delivery Notice and Old Dominion Objection Notice or (y) The Escrow
Agent shall receive an Old dominion Delivery Notice and a Xxxxxx
Objection Notice or (z) the Escrow Agent shall receive neither a
Xxxxxx Delivery Notice nor and Old dominion Delivery Notice prior
to one (1) year from the date of this Agreement, then the Escrow
Agent, in its sole discretion shall either (i) continue to hold the
Escrowed Shares pending the joint instruction of the Parties or a
direction of a court of competent jurisdiction on the disposition
of the Escrowed Shares or (ii) shall deliver and deposit the
Escrowed Shares to the custody of a court of competent
jurisdiction. Upon the disposition of the Escrowed Shares as
directed by a joint instruction of the Parties or by a court of
competent jurisdiction or upon the delivery and deposit of the
Escrowed Shares to the custody of a court of competent jurisdiction
as aforesaid, the Escrow Agent shall cease to have any obligations
under this Agreement.
3. Termination of this Agreement. This Agreement shall
terminate upon the delivery or disposition of the Escrowed Shares
in accordance with Section 2 hereof; provided that the provisions
of Sections 4 hereof shall survive such termination.
4. Terms and Conditions to Escrow Agent's Acceptance. In
order to induce Escrow Agent to serve as such under this Agreement,
each of Xxxxxx and Old dominion hereby covenants to and agrees with
the other and with Escrow Agent to the following provisions, which
the Parties agree shall govern and control the rights, duties and
immunities of the Escrow Agent:
(a) The duties and obligations of the Escrow Agent shall
be determined solely by the express provisions of this Agreement
and the Escrow Agent shall not be bound by the provisions of any
other agreement between Xxxxxx and Old Dominion.
(b) The Escrow Agent shall not be responsible for any
failure or inability of the parties to this Agreement, or of anyone
else, to deliver the Escrowed Shares or other property to the
Escrow Agent or otherwise to honor any of the provisions of this
Agreement.
(c) The fees and expenses of the Escrow Agent in
administering this Escrow Agreement shall be the joint
responsibility of the Parties. The Parties shall jointly and
severally hold Escrow Agent harmless against, any loss, liability
or expense, including but not limited to reasonable attorneys' fees
and expenses, incurred without bad faith or willful misconduct on
the part of the Escrow Agent arising out of or in connection with
its acceptance of, or the performance of its duties and obligations
under, this Agreement.
(d) The Escrow Agent shall be fully protected in acting
on and in relying upon any written notice, direction, request,
waiver, consent, receipt or other paper or document which the
Escrow Agent in good faith believes to be genuine and to have been
signed or presented by the proper party or parties.
(e) The Escrow Agent shall not be liable for any error
of judgement, or for any act done or step taken or omitted by it
in good faith or for any mistake in fact or law, or for anything
which it may do or refrain from doing in connection herewith,
except its own bad faith or willful misconduct.
(f) The Escrow Agent may seek the advice of legal
counsel in the event of any dispute or question as to the
construction of any of the provisions of this Agreement or its
duties hereunder, and it shall incur no liability and shall be
fully protected in respect of any action taken, omitted or suffered
by it in good faith in accordance with the opinion of such counsel.
(g) In the event of ambiguity in the provisions
governing the Escrowed Shares or uncertainty on the part of the
Escrow Agent as how to proceed, such that the Escrow Agent, in its
sole and absolute judgement, deems it necessary for its protection
so to do, the Escrow Agent may refrain from taking any action other
than to retain custody of the Escrowed Shares deposited hereunder
until it shall have a written order from a court of competent
jurisdiction, or may deliver and deposit the Escrowed Shares to the
custody of a court of competent jurisdiction and thereupon have no
further obligations under this Agreement.
(h) The Escrow Agent may resign at any time by giving
not less than five (5) days' written notice thereof to Old dominion
and Xxxxxx. Within ten (10) days after receiving such notice, Old
Dominion and Xxxxxx shall agree on and appoint a successor escrow
agent (the "Successor Escrow Agent") at which time the Escrow Agent
shall deliver the Escrowed Shares to the Successor Escrow Agent.
After appointment of the Successor Escrow Agent and delivery of the
Escrowed Shares to the Successor Escrow Agent by the Escrow Agent,
the Escrow Agent shall have no further obligations under this
Agreement.
(i) Old Dominion and Xxxxxx may remove the Escrow Agent
upon written notice to the Escrow Agent signed by Old dominion and
Xxxxxx stating such removal and designating a Successor Escrow
Agent, and, upon delivery of the Escrowed Shares to the Successor
Escrow Agent, the Escrow Agent shall have no further obligations
under this Agreement.
(j) If after twenty (20) days from the date of delivery
of its written notice of intent to resign, the Escrow Agent has not
received a written designation of a Successor Escrow Agent, the
Escrow Agent's sole responsibility shall be in its sole discretion
either to retain custody of the Escrowed Shares until it receives
such designation, or to apply to a court of competent jurisdiction
for appointment of a Successor Escrow Agent and after such
appointment to have no further obligations under this Agreement.
5. Governing Law; Jurisdiction; Venue. This Agreement shall
be governed by, and construed and enforced in accordance with, the
laws of the State of New York applicable to contracts made and to
be entirely performed therein and without regard to principles of
conflict of laws. Any litigation based hereon, or arising out of,
under or in connection with this Agreement shall be brought and
maintained exclusively in the courts of the State of New York or
in the United States District Court for the Southern District of
New York. Each of Xxxxxx, Old Dominion and the Escrow Agent hereby
expressly and irrevocably submit to the jurisdiction of the courts
of the State of New York and of the United States District Court
for the Southern District of New York for the purpose of any such
litigation set forth above. Each of Xxxxxx, Old Dominion and the
Escrow Agent hereby expressly and irrevocably waives, to the
fullest extent permitted by law, any objection which they have or
hereafter may have to the laying of venue of any such litigation
brought in any such court referred to above and any claim that any
such litigation has been brought in an inconvenient forum.
6. Assignment; Binding Nature; No Beneficiaries. This
Agreement may not be assigned by any party hereto (other than by
the Escrow Agent as provided in Section 4 hereof) without the
written consent of the other parties. This Agreement shall be
binding upon, inure to the benefit of, and be enforceable by the
parties hereto and their respective heirs, personal
representatives, legatees, successors and permitted assigns. This
Agreement shall not confer any rights or remedies upon any person
other than to the parties hereto and their respective heirs,
personal representatives, legatees, successors and permitted
assigns.
7. Counterparts. For the convenience of the parties, any
number of counterparts hereof may be executed, each such executed
counterpart shall be deemed an original and all such counterparts
together shall constitute one and the same instrument.
8. Amendment. This Agreement may be modified or amended
only by an instrument in writing, duly executed by Old dominion and
Xxxxxx; provided, that no such modification or amendment shall be
binding on the Escrow Agent unless the Escrow Agent consents
thereto in writing.
9. Nonwaiver. No waiver by any party of any term,
provision, covenant, representation or warranty contained in this
Agreement (or any breach thereof) shall be effective unless it is
in writing executed by the party against which such waiver is to
be enforced; no waiver shall be deemed or construed as a further
or continuing waiver of any such term, provision, covenant,
representation or warranty (or breach) on any other occasion or as
a waiver of any other term, provision, covenant, representation or
warranty (or the breach of any other provision) contained in this
Agreement on the same or any other occasion.
10. Headings. The headings in this Agreement are inserted
for convenience only and shall not constitute a part thereof.
11. Construction. In this Agreement (i) words denoting the
singular include the plural and vice versa, (ii) "it" or "its" or
words denoting any gender include all genders, (iii) the word
"including" shall mean "including without limitation," whether or
not expressed, (iv) any reference herein to a Section refers to a
Section of this Agreement, unless otherwise stated, (v) when
calculating a period of time within or following which any act is
to be done or steps taken, the date which is the reference day in
calculating such period shall be excluded and if the last day of
such period is not a business day, then the period shall end on the
next day which is a business day, and (vi) except as otherwise
expressly provided herein, all dollar amounts are expressed in
United States funds.
12. Entire Agreement. This Agreement constitutes the entire
agreement among the parties with respect to the subject matter
hereof and supersedes all other prior representations, agreements
and understandings, both written and oral, among the parties with
respect to such subject matter.
13. Notices. Unless otherwise specifically provided in this
Agreement, all notices, requests, consents, approvals, agreements
or other communications required or permitted to be given under
this Agreement shall be in writing and shall be delivered in of
the following means: (a) by hand; (b) by facsimile transmission to
those parties with fax numbers indicated below (with subsequent
written confirmation by another means in compliance with this
Section 13); (c) by registered or certified mail, first class
postage prepaid, return receipt requested; or (d) by nationally
recognized overnight courier, addressed to the respective addresses
of the parties as follows:
If to Xxxxx Xxxxxx: With a Copy To:
Xxxxx Xxxxxx Kramer, Levin, Naftalis &
Xxxxxxx
c/o Ty-Breakers (NY) Corp. 000 Xxxxx Xxxxxx
00 Xxxxx Xxxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxxxx-xx-Xxxxxx, XX 00000 Attn: Xxxxx X. Xxxxxxx, Esq.
Fax: (000) 000-0000 Fax: (000) 000-0000
Conf: (000) 000-0000 Conf: (000) 000-0000
If to Old Dominion Growth
Fund Limited: With a Copy To:
Old Dominion Growth Fund Limited Xxxxxxx & Prager, Esqs.
X.X. Xxx 000 319 Fifth Avenue
Main Street New York, New York 10016
Charleston Attn: Xxxxxx Xxxxxxx, Esq.
Isle of Nevis Fax: (000) 000-0000
British West Indies Conf: (000) 000-0000
If to the Escrow Agent:
Kramer, Levin, Naftalis & Xxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxxxx, Esq.
Fax: (000) 000-0000
Conf: (000) 000-0000
or to such other address as any party shall designate for himself
or itself by notice to the other parties given in accordance
herewith. Any such notice or other communication shall be deemed
to have been given or made (i) upon delivery, if delivered
personally, (ii) one (1) business day after transmission, if
delivered by facsimile transmission during normal business hours,
(iii) three (3) business days after mailing, if mailed, or (iv) one
(1) business day after delivery to the courier, if delivered by
overnight courier service.
14. Further Assurances. If at any time the Escrow Agent shall
consider or be advised that any further agreements, assurances or
other
documents are reasonably necessary or desirable to carry out the
provisions hereof and the transactions contemplated hereby, the
Parties
shall execute and deliver any and all such agreements or other
documents, and do all things necessary or appropriate to carry out
fully the provisions hereof.
15. Escrow Agent as Counsel. Old Dominion hereby acknowledges
that
the firm of Kramer, Levin, Naftalis & Xxxxxxx, the Escrow Agent
hereunder, has acted as counsel to Xxxxxx in connection with this
Agreement and the transactions contemplated hereby and expressly
consents to such representation.
IN WITNESS WHEREOF, the parties hereto have caused this Escrow
Agreement to be duly executed as of the day and year first above
written.
OLD DOMINION GROWTH FUND LIMITED
By: ________________________
Authorized Signature
XXXXX X. XXXXXX
____________________________
KRAMER, LEVIN, NAFTALIS &
XXXXXXX, as ESCROW AGENT:
____________________________
