EXECUTION VERSION
INDEMNIFICATION ESCROW AGREEMENT
This INDEMNIFICATION ESCROW AGREEMENT (this "Escrow Agreement") is
made and entered into as of November ___, 2005, by and among National Investment
Managers Inc., a Florida corporation ("Buyer"), American Benefit Resources,
Inc., a Connecticut corporation ("Seller"), and JPMorgan Chase Bank, N.A., a
federal bank, as escrow agent (the "Escrow Agent"). Capitalized terms used but
not defined herein will have the meanings ascribed to such terms in the Asset
Purchase Agreement (as defined below).
RECITALS
Buyer and Seller have entered into that certain Asset Purchase
Agreement dated as of November 1, 2005 (the "Asset Purchase Agreement"), whereby
Buyer proposes to acquire substantially all of the assets of Seller.
In connection with the Asset Purchase Agreement, the Escrow Funds
(as defined below) are to be held in escrow from which reimbursement is
available to Buyer upon the terms and conditions of this Escrow Agreement and
the Asset Purchase Agreement.
NOW, THEREFORE, in consideration of the covenants set forth in this
Escrow Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Buyer, Seller and the Escrow Agent
hereby agree as follows:
ARTICLE I
ESCROW ACCOUNT
Section 1.1 Escrow Funds. Simultaneously with the execution and delivery
of this Escrow Agreement, Buyer shall deposit, or cause to be deposited, with
the Escrow Agent Eight Hundred Thousand Dollars ($800,000.00) (the "Escrow
Funds"), via wire transfer of immediately available funds to a separate account
maintained by the Escrow Agent (the "Indemnity Account"). The Escrow Agent
agrees to hold the Escrow Funds in the separate Indemnity Account as described
above and to administer the Indemnity Account and the Escrow Funds in accordance
with this Escrow Agreement.
Section 1.2 Investment; Periodic Statements. During the term of this
Escrow Agreement, the Escrow Agent shall invest and reinvest the Escrow Funds in
one of the following investments: (a) the JPMorgan 100% U.S. Treasuries
Securities Money Market Fund - Premier Share Class, (b) JPMorgan Chase Bank,
N.A. Money Market Account, (c) certificates of deposit of the Escrow Agent or
(d) treasury bills or other investments backed by the full faith and credit of
the United States of America ("Treasuries"), in any such case with a remaining
maturity at the time of investment not exceeding 30 days, or such other
instruments as are mutually acceptable to Buyer, Seller and the Escrow Agent. In
the absence of written instructions from Buyer and Seller, the Escrow Funds will
be invested in a JPMorgan Chase Bank, N.A. Money Market Account.
All investment orders involving Treasuries, commercial paper and
other direct obligations will be executed through JPMorgan Xxxxxxx Asset
Management ("JPMFAM"), in the investment management division of JPMorgan Chase
Bank. Subject to the principles of best execution, transactions shall be
effected on behalf of the Indemnity Account through broker-dealers selected by
JPMFAM. In this regard, JPMFAM seeks to attain the best overall result for the
Indemnity Account, taking into consideration quality of service and reliability.
An agency fee will be assessed in connection with each transaction, which fee
will be a basis point charge in the interest rate paid on the respective
investment, which will be net of such charge. The Escrow Agent shall provide
Buyer and Seller with a notification providing transaction details for the
Indemnity Account within five days of any securities transaction in that
account. This notification shall be provided without any additional cost to
Buyer and Seller.
The Escrow Agent shall have the right to liquidate any investments
held, in order to provide funds necessary to make required payments under this
Escrow Agreement. The Escrow Agent in its capacity as escrow agent hereunder
shall not have any liability for any loss sustained as a result of any
investment made pursuant to the instructions of the parties hereto or as a
result of any liquidation of any investment prior to its maturity or for the
failure of Buyer and Seller to provide the Escrow Agent with investment
instructions.
Within 15 Business Days after the end of each calendar quarter
during which the Escrow Agent is holding the Escrow Funds pursuant to this
Escrow Agreement, commencing with the quarter ending December 31, 2005, the
Escrow Agent shall provide to Buyer and Seller a statement detailing the total
amount of the Escrow Funds, all transactions and investments involving the
Escrow Funds, all earnings, interest and gains on the investment of the Escrow
Funds (collectively "Earnings") and all disbursements made pursuant to Article
II hereof, in each case during such calendar quarter. This statement shall be
provided without any additional cost to Buyer or Seller.
ARTICLE II
CLAIMS AGAINST AND RELEASE OF THE ESCROW FUNDS
Section 2.1 Claims Against the Indemnity Account. The Escrow Agent shall
release from the Indemnity Account and disburse the Escrow Funds (and any
Earnings on the portion of Escrow Funds disbursed) to Buyer or Seller, as
applicable, only as follows:
(a) If the Final Net Liabilities (as finally determined pursuant to
Section 2.7 of the Asset Purchase Agreement) are greater than $3,660,000, but
less than or equal to $3,760,000, the Escrow Agent shall disburse to Buyer the
amount by which the Final Net Liabilities exceed $3,660,000 (and any Earnings
thereon) (the "Adjustment Amount") upon receipt by the Escrow Agent of a
certificate signed by Buyer and Seller (a "Joint Certificate") instructing the
Escrow Agent to disburse the Adjustment Amount (and any Earnings thereon) to
Buyer;
(b) If, prior to the first anniversary of the date of the closing of
the transactions contemplated by the Asset Purchase Agreement (the "Closing
Date"), any Buyer Indemnitee believes it is entitled to indemnification pursuant
to Article VIII of the Asset Purchase Agreement for which it elects, or is
required, under the Asset Purchase Agreement to make a claim against the
Indemnity Account, Buyer shall deliver an Escrow Claim Notice pursuant to
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Section 8.7(b)(i) of the Asset Purchase Agreement to the Escrow Agent and
Seller. If, by 5:00 p.m., New York time, on the 30th day following receipt by
Seller of an Escrow Claim Notice (the "Dispute Period"), neither Buyer nor the
Escrow Agent has received a written statement from Seller (a "Dispute Notice")
that Seller objects to the Escrow Claim (or the amount of Damages set forth in
such Escrow Claim Notice) described in such Escrow Claim Notice, the Escrow
Agent shall disburse to Buyer, a portion of the Escrow Funds (and any Earnings
thereon) equal to the Damages specified in the Escrow Claim Notice. If, before
the expiration of the Dispute Period, the Escrow Agent receives a Dispute
Notice, the Escrow Agent shall (1) promptly forward a copy of the Dispute Notice
to Buyer, (2) if applicable, disburse to the applicable Buyer Indemnitee a
portion of the Escrow Funds (and any Earnings thereon) equal to the amount of
Damages that are specifically set forth in such Dispute Notice not to be in
dispute, if any and (3) continue to hold in the Indemnity Account an amount
equal to any amounts that are being disputed, and the Escrow Agent shall not
disburse any such amounts unless, until and only to the extent that the Escrow
Agent (i) receives a Joint Certificate regarding the disbursement of funds from
the Escrow Funds or (ii) is directed to make a disbursement by a court
adjudicating such dispute (each, a "Payment Authorization") and any such
disbursements shall be made in accordance with Sections 2.1(c) and (d). To the
extent any party wishes to submit any dispute to adjudication, it shall do so in
accordance with Section 4.7;
(c) On the first anniversary of the Closing Date (the "Termination
Date"), the amount of the Escrow Funds (and any Earnings thereon), to the extent
not paid to Buyer or subject to a Dispute Notice, shall be paid to Seller.
Notwithstanding the foregoing, if the Escrow Agent shall have received a Dispute
Notice prior to the Termination Date with respect to a claim (an "Unresolved
Claim") for which the Escrow Agent has not received a subsequent Payment
Authorization (a "Claim Resolution Notice"), then on the Termination Date (i)
the Escrow Agent shall retain a portion of the Escrow Funds sufficient for the
payment of all Unresolved Claims, and (ii) the Escrow Agent shall release to
Seller the portion of the Escrow Funds (and any Earnings thereon) not otherwise
required to be retained in accordance with this Section 2.1(c);
(d) Upon the receipt of a Claim Resolution Notice following the
Termination Date, the Escrow Agent shall (i) release any portion of the Escrow
Funds retained in respect of such Unresolved Claims (A) to Buyer in the amount,
if any, set forth in the Claim Resolution Notice as payable to Buyer in respect
of such Unresolved Claims, and (B) to Seller in the amount equal to the
difference of the amount retained in respect of the Unresolved Claim less the
amount payable to Buyer pursuant to clause (A) and (ii) if no other Unresolved
Claims remain outstanding, release the remainder of the Escrow Funds (and any
Earnings thereon) to Seller.
Section 2.2 Distributions by the Escrow Agent. The Escrow Agent shall make
all disbursements of the Escrow Funds and Earnings pursuant to Section 2.1
hereof within three Business Days following (a) the Escrow Agent's receipt of
the requisite documentation specified in the applicable subsection of Section
2.1 hereof or (b) the expiration of the Dispute Period in the event the Escrow
Agent has not received a Dispute Notice, respectively. The Escrow Agent shall
make all disbursements via wire transfer of immediately available funds to
accounts specified in writing by the party entitled to such disbursement. In all
cases, any Joint Certificate, Payment Authorization or Claim Resolution Notice
furnished to the Escrow Agent will provide the Escrow Agent with the specific
dollar amounts to be disbursed to the entitled parties and the Escrow Agent will
not have any responsibility for determining or calculating the amounts to be
disbursed from the Escrow Funds.
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Section 2.3 Taxes. Upon execution of this Escrow Agreement, Buyer shall
deliver to the Escrow Agent a fully executed Form W-8 or W-9 which shall include
Buyer's certified tax identification number and Seller shall deliver to the
Escrow Agent a fully executed Form W-8 or W-9 which shall include Seller's
certified tax identification number. The Escrow Agent shall report any Earnings
on Internal Revenue Service Form 1099 (or any other required Internal Revenue
Service forms or tax returns) and the Escrow Agent shall withhold income tax
from any such Earnings to the extent required by Law (and file any required Tax
Returns) and deposit such amounts with the appropriate Governmental Authority as
required by Law.
ARTICLE III
MATTERS CONCERNING THE ESCROW AGENT
Section 3.1 Fees and Expenses. The Buyer and Seller agree jointly and
severally to (i) pay the Escrow Agent upon execution of this Escrow Agreement
and from time to time thereafter reasonable compensation for the services to be
rendered hereunder, which unless otherwise agreed in writing shall be as
described in Schedule 1 attached hereto, and (ii) pay or reimburse the Escrow
Agent upon request for all expenses, disbursements and advances, including
reasonable attorney's fees and expenses, incurred or made by it in connection
with the preparation, execution, performance, delivery, modification and
termination of this Escrow Agreement. Buyer, on the one hand, and Seller, on the
other hand, shall each pay 50% of the fees of the Escrow Agent.
Section 3.2 Limitation of the Escrow Agent's Liability. The Escrow Agent
undertakes to perform such duties as are specifically set forth in this Escrow
Agreement only and shall have no duty under any other agreement or document, and
no implied covenants or obligations shall be read into this Escrow Agreement
against the Escrow Agent. The Escrow Agent may rely upon and shall not be liable
for acting or refraining from acting upon any written notice, instruction or
request furnished to it hereunder and believed by it to be genuine and to have
been signed or presented by the proper party or parties. The Escrow Agent shall
be under no duty to inquire into or investigate the validity, accuracy or
content of any such document. In all questions arising under this Escrow
Agreement, the Escrow Agent may rely on the advice of counsel, and for anything
done, omitted or suffered in good faith by the Escrow Agent based upon such
advice the Escrow Agent shall not be liable to anyone. Anything in this Escrow
Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be
liable for special, indirect or consequential losses or damages 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.
3.2.1 The Buyer and the Seller (collectively referred to as the
"Indemnitors") shall jointly and severally indemnify, defend and save harmless
the Escrow Agent and its directors, officers, agents and employees (the
"Indemnitees") from all loss, liability or expense (including the fees and
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expenses of in house or outside counsel) arising out of or in connection with
(i) the Escrow Agent's execution and performance of this Escrow Agreement,
except in the case of any indemnitee to the extent that such loss, liability or
expense is due to the gross negligence or willful misconduct of such indemnitee,
or (ii) its following any instructions or other directions from the Buyer or the
Seller, except to the extent that its following any such instruction or
direction is expressly forbidden by the terms hereof. The parties hereto
acknowledge that the foregoing indemnities shall survive the resignation or
removal of the Escrow Agent or the termination of this Escrow Agreement. The
parties hereby grant the Escrow Agent a lien on, right of set-off against and
security interest in the Escrow Fund for the payment of any claim for
indemnification, compensation, expenses and amounts due hereunder
Section 3.3 Account Opening Information/TINs.
3.3.1 IMPORTANT INFORMATION ABOUT PROCEDURES FOR OPENING A NEW
ACCOUNT
For accounts opened in the US:
To help the government fight the funding of terrorism and money laundering
activities, Federal law requires all financial institutions to obtain, verify,
and record information that identifies each person who opens an account. When an
account is opened, Escrow Agent will ask for information that will allow it to
identify relevant parties.
For non-US accounts:
To help in the fight against the funding of terrorism and money laundering
activities, Escrow Agent is required along with all financial institutions to
obtain, verify, and record information that identifies each person who opens an
account. When an account is opened, Escrow Agent will ask for information that
will allow it to identify relevant parties.
3.3.2 TINs. The Buyer and the Seller each represent that its correct
Taxpayer Identification Number ("TIN") assigned by the Internal Revenue Service
("IRS")or any other taxing authority is set forth in Schedule 1. Upon execution
of this Agreement, the Buyer and Seller shall provide the Escrow Agent with a
fully executed W-8 or W-9 IRS form, which shall include the Buyer's and Seller's
TIN. In addition, all interest or other income earned under the Escrow Agreement
shall be allocated and/or paid as directed in a joint written direction of the
Buyer and the Seller and reported by the recipient to the Internal Revenue
Service or any other taxing authority. Notwithstanding such written directions,
Escrow Agent shall report and, as required withhold any taxes as it determines
may be required by any law or regulation in effect at the time of the
distribution. In the absence of timely direction, all proceeds of the Escrow
Fund shall be retained in the Escrow Fund and reinvested from time to time by
the Escrow Agent as provided in Section 2.2 hereof. In the event that any
earnings remain undistributed at the end of any calendar year, Escrow Agent
shall report to the Internal Revenue Service or such other authority such
earnings as it deems appropriate or as required by any applicable law or
regulation or, to the extent consistent therewith, as directed in writing by the
Buyer and the Seller. In addition, Escrow Agent shall withhold any taxes it
deems appropriate and shall remit such taxes to the appropriate authorities.
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Section 3.4 Successor Escrow Agent. In the event the Escrow Agent becomes
unavailable or unwilling to continue as escrow agent under this Escrow
Agreement, the Escrow Agent may resign and be discharged from its duties and
obligations hereunder by giving its written resignation to the parties to this
Escrow Agreement. Such resignation shall take effect on the earlier of (i) a
successor escrow agent being in place and (ii) thirty (30) days after such
resignation is given to all parties hereto. In such event, Buyer and Seller may
appoint a successor escrow agent. If Buyer and Seller fail to appoint a
successor escrow agent within fifteen (15) days after receiving the Escrow
Agent's written resignation, the Escrow Agent shall have the right to apply to a
court of competent jurisdiction for the appointment of a successor escrow agent.
The successor escrow agent shall execute and deliver to the Escrow Agent an
instrument accepting such appointment, and the successor escrow agent shall,
without further acts, be vested with all the estates, property rights, powers
and duties of the predecessor Escrow Agent as if originally named as Escrow
Agent herein. The Escrow Agent shall act in accordance with joint written
instructions from Buyer and Seller as to the transfer of the Indemnity Account
to a successor escrow agent.
Section 3.5 Security Procedures. In the event funds transfer instructions
are given (other than in writing at the time of execution of this Escrow
Agreement, as indicated in Schedule 1 attached hereto), 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 2 hereto, and the Escrow Agent may rely upon the confirmation 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. If the Escrow Agent is unable to contact any
of the authorized representatives identified in Schedule 2, the Escrow Agent is
hereby authorized to seek confirmation of such instructions by telephone
call-back to any one or more of the Buyer's or Seller's executive officers,
("Executive Officers"), as applicable, which shall include the titles of Chief
Executive Officer, Vice President, Secretary and Treasurer, as the Escrow Agent
may select. Such "Executive Officer" shall deliver to the Escrow Agent a fully
executed Incumbency Certificate, and the Escrow Agent may rely upon the
confirmation of anyone purporting to be any such officer. The Escrow Agent and
the beneficiary's bank in any funds transfer may rely solely upon any account
numbers or similar identifying numbers provided by the Buyer or the Seller 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 when 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. The parties to this Escrow Agreement acknowledge that these security
procedures are commercially reasonable.
ARTICLE IV
MISCELLANEOUS
Section 4.1 Termination. This Escrow Agreement shall terminate on the
later of (i) the date on which the Escrow Agent disburses all of the Escrow
Funds and Earnings as provided herein and (ii) the first anniversary of the
Closing Date.
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Section 4.2 Attorneys' Fees. In any action at law or suit in equity to
enforce or interpret this Escrow Agreement or the rights of either the Buyer or
the Seller hereunder, the prevailing party in such action or suit shall be
entitled to receive a reasonable sum for its attorneys' fees and all other
reasonable costs and expenses incurred from either the Buyer or Seller, as
applicable, in such action or suit. In all cases, Escrow Agent's attorney fees
will be paid by the Buyer or Seller regardless.
Section 4.3 Notices. All notices, consents, waivers, requests and other
communications hereunder shall be in writing and shall be delivered by courier
or other means of personal service (including by means of a nationally
recognized courier service or a professional messenger service), or sent by
facsimile or mailed first class, postage prepaid, by certified mail, return
receipt requested, in all cases, addressed as follows:
if to Buyer: National Investment Managers Inc.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X Xxxxxxxxx
Fax: (000) 000-0000
with copies to: Xxxxx Xxxxxx Xxxxxxxx & Xxxxxx LLP
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxx, Esq.
Facsimile: (000) 000-0000
if to Seller: American Benefit Resources, Inc.
00 Xxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxxxx, Xxx Xxxx 00000
Attention: Chief Executive Officer
Facsimile: (000) 000-0000
with copies to: IBF Fund Liquidating, LLC
c/o Xxxx Xxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxx,
Esq., Manager
Facsimile: (000) 000-0000
and
Xxxx Xxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
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if to the Escrow Agent: JPMorgan Chase Bank, N.A.
0 Xxx Xxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, III.
Facsimile: (000) 000-0000
All communications hereunder shall be in writing and shall be deemed to be duly
given and received:
(i) upon delivery if delivered personally or upon confirmed transmittal if
by facsimile;
(ii) on the next Business Day (as hereinafter defined) if sent by
overnight courier; or
(iii) four (4) Business Days after mailing if mailed by prepaid registered
mail, return receipt requested, to the appropriate notice address set
forth on Schedule 1 or at such other address as any party hereto may have
furnished to the other parties in writing by registered mail, return
receipt requested.
Notwithstanding the above, in the case of communications delivered to the Escrow
Agent pursuant to clauses (ii) and (iii) of this Section 4.3, such
communications shall be deemed to have been given on the date received by the
Escrow Agent. In the event that the Escrow Agent, in its sole discretion, shall
determine that an emergency exists, the Escrow Agent may use such other means of
communication as the Escrow Agent deems appropriate. "Business Day" shall mean
any day other than a Saturday, Sunday or any other day on which the Escrow Agent
located at the notice address set forth on Schedule 1 is authorized or required
by law or executive order to remain closed.
Section 4.4 Headings. The bold-faced headings contained in this Escrow
Agreement are for convenience of reference only, shall not be deemed to be a
part of this Escrow Agreement and shall not be referred to in connection with
the construction or interpretation of this Escrow Agreement.
Section 4.5 Counterparts. This Escrow Agreement may be executed in several
counterparts, each of which shall constitute an original and all of which, when
taken together, shall constitute one agreement. Fax copies may be deemed as
originals for the purpose of this Escrow Agreement.
Section 4.6 Applicable Law; Jurisdiction. This Escrow Agreement shall be
governed by and construed in accordance with the laws of New York that might
otherwise govern under applicable principles of conflicts of law. Each of the
parties hereto irrevocably consents to the exclusive jurisdiction of (a) the
Supreme Court of the State of New York, New York County, and (b) the United
States District Court for the Southern District of New York, for the purposes of
any Action arising out of this Escrow Agreement, any related document or
certificate or any transaction contemplated hereby or thereby. Each of the
parties hereto agrees to commence any Action relating hereto either in the
United States District Court for the Southern District of New York or if such
Action may not be brought in such court for jurisdictional reasons, in the
Supreme Court of the State of New York, New York County. Each of the parties
hereto further agrees that service of any process, summons, notice or document
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by U.S. registered mail to such party's respective address set forth in Section
4.3 shall be effective service of process for any Action in New York with
respect to any matters to which it has submitted to jurisdiction in this Section
4.6. Each of the parties hereto irrevocably and unconditionally waives any
objection to the laying of venue of any Action arising out of this Escrow
Agreement, or any transaction contemplated hereby in (i) the Supreme Court of
the State of New York, New York County, or (ii) the United States District Court
for the Southern District of New York, and hereby further irrevocably and
unconditionally waives and agrees not to plead or claim in any such court that
any such Action brought in any such court has been brought in an inconvenient
forum.
Section 4.7 Successors and Assigns. The provisions of this Escrow
Agreement are binding upon and inure to the benefit of the parties to this
Escrow Agreement and their respective successors and assigns, but except as
contemplated herein, neither this Escrow Agreement nor any rights, interests or
obligations hereunder shall be assigned, directly or indirectly, by any party
hereto without the prior written consent of the other parties hereto, except
that Buyer may assign all or any portion of its rights hereunder to one or more
of its affiliates and Seller may assign all or any portion of its rights
hereunder to IBF; provided that no such assignment shall relieve Buyer or Seller
of its obligations hereunder. Notwithstanding anything to the contrary contained
in this Escrow Agreement, nothing in this Escrow Agreement, expressed or
implied, is intended to confer on any person other than the parties to this
Escrow Agreement or their respective successors and permitted assigns, any
rights, remedies, obligations or liabilities under or by reason of this Escrow
Agreement.
Section 4.8 Waiver. No failure on the part of any Person to exercise any
power, right, privilege or remedy under this Escrow Agreement, and no delay on
the part of any Person in exercising any power, right, privilege or remedy under
this Escrow Agreement, shall operate as a waiver of such power, right, privilege
or remedy; and no single or partial exercise of any such power, right, privilege
or remedy shall preclude any other or further exercise thereof or of any other
power, right, privilege or remedy. No Person shall be deemed to have waived any
claim arising out of this Escrow Agreement, or any power, right, privilege or
remedy under this Escrow Agreement, unless the waiver of such claim, power,
right, privilege or remedy is expressly set forth in a written instrument duly
executed and delivered on behalf of such Person; and any such waiver shall not
be applicable or have any effect except in the specific instance in which it is
given.
Section 4.9 Amendment. This Escrow Agreement may not be amended, modified,
altered or supplemented other than by means of a written instrument duly
executed and delivered on behalf of all of the parties hereto.
Section 4.10 Severability. In the event that any provision of this Escrow
Agreement, or the application of any such provision to any person or set of
circumstances, shall be determined to be invalid, unlawful, void or
unenforceable to any extent, the remainder of this Escrow Agreement, and the
application of such provision to persons or circumstances other than those as to
which it is determined to be invalid, unlawful, void or unenforceable, shall not
be impaired or otherwise affected and shall continue to be valid and enforceable
to the fullest extent permitted by law.
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Section 4.11 Parties in Interest. Except as expressly provided herein,
none of the provisions of this Escrow Agreement, express or implied, is intended
to provide any rights or remedies to any Person other than the parties hereto
and their respective successors and assigns, if any.
Section 4.12 Entire Agreement. This Escrow Agreement sets forth the entire
agreement among the parties hereto with respect to the subject matter hereof and
thereof and supersedes all prior agreements and understandings, both written and
oral, among or between any of the parties with respect to the subject matter
hereof and thereof.
Section 4.13 Waiver of Jury Trial. Each of the parties hereto hereby
irrevocably waives any and all right to trial by jury in any action arising out
of or related to this Escrow Agreement or the transactions contemplated hereby.
Section 4.14 Cooperation. Each of the parties hereto agrees to cooperate
fully with the other parties to this Escrow Agreement and to execute and deliver
such further documents, certificates, agreements and instruments and to take
such other actions as may be reasonably requested by the other parties hereto in
order to evidence or reflect the transactions contemplated by this Escrow
Agreement and to carry out the intent and purposes of this Escrow Agreement.
Section 4.15 Force Majeure. No party to this Escrow Agreement is liable to
any other party for losses due to, or if it is unable to perform its obligations
under the terms of this Escrow Agreement because of, acts of God, fire, floods,
strikes, equipment or transmission failure, or other causes reasonably beyond
its control.
Section 4.16 Construction.
4.16.1 For purposes of this Escrow Agreement, whenever the context
requires: the singular number shall include the plural, and vice versa; the
masculine gender shall include the feminine and neuter genders; the feminine
gender shall include the masculine and neuter genders; and the neuter gender
shall include masculine and feminine genders.
4.16.2 The parties hereto agree that any rule of construction to the
effect that ambiguities are to be resolved against the drafting party shall not
be applied in the construction or interpretation of this Escrow Agreement.
4.16.3 As used in this Escrow Agreement, the words "include" and
"including," and variations thereof, shall not be deemed to be terms of
limitation, but rather shall be deemed to be followed by the words "without
limitation."
4.16.4 Except as otherwise indicated, all references in this Escrow
Agreement to "Sections" and "Exhibits" are intended to refer to Sections of this
Escrow Agreement and Exhibits to this Escrow Agreement.
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IN WITNESS WHEREOF, the parties to this Escrow Agreement have caused this
Escrow Agreement to be duly executed by their respective authorized officers as
of the day and year first above written.
BUYER:
NATIONAL INVESTMENT MANAGERS INC.
By:
------------------------------------
Name:
Title:
SELLER:
AMERICAN BENEFIT RESOURCES, INC.
By:
------------------------------------
Name:
Title:
ESCROW AGENT:
JPMORGAN CHASE BANK, N.A.
By: ____________________________________
Name:
Title:
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SCHEDULE 1
Effective Date: November ___, 2005
Name of Buyer: National Investment Managers Inc.
Buyer Notice Address: 000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Buyer TIN:
Wiring Instructions: [To be provided.]
Name of Seller: American Benefit Resources, Inc.
Seller Notice Address: 00 Xxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxxxx, Xxx Xxxx 00000
Seller TIN: 00-0000000
Wiring Instructions: [To be provided.]
Escrow Deposit: $800,000.00
Investment: [specify]
|_| JPMorgan Chase Bank Money Market Account;
|_| A trust account with JPMorgan Chase Bank;
|_| A money market mutual fund, including without limitation the JPMorgan
Fund or any other mutual fund for which the Escrow Agent or any affiliate of the
Escrow Agent serves as investment manager, administrator, shareholder servicing
agent and/or custodian or subcustodian, notwithstanding that (i) the Escrow
Agent or an affiliate of the Escrow Agent receives fees from such funds for
services rendered, (ii) the Escrow Agent charges and collects fees for services
rendered pursuant to this Escrow Agreement, which fees are separate from the
fees received from such funds, and (iii) services performed for such funds and
pursuant to this Escrow Agreement may at times duplicate those provided to such
funds by the Escrow Agent or its affiliates.
Fund
|_| Such other investments as Buyer, Seller and Escrow Agent may from
time to time mutually agree upon in a writing executed and delivered
by the Buyer and the Seller and accepted by the Escrow Agent.
Escrow Agent notice address: JPMorgan Chase Bank
Worldwide Security Services
0 Xxx Xxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, III.
Fax No.: 000-000-0000
Escrow Agent's compensation: $2,500 (the "Escrow Fee"). The Escrow Fee will
be payable upon execution of this Agreement with no pro-ration for partial
years.
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SCHEDULE 2
Telephone Number(s) for Call-Backs and
Person(s) Designated to Confirm Funds Transfer Instructions [2 names
are required for each company, one person to authorize a funds
transfer, and another person to call back and to confirm the transfer
instructions]
If to Buyer:
Name Telephone Number Signatures
1. Xxxxxxx X. Xxxxxxx (000) 000-0000
--------------------- -------------------- ------------------
2. Xxxxxxx X. Xxxxxxxxx (000) 000-0000
--------------------- -------------------- ------------------
3.
--------------------- -------------------- ------------------
If to Seller:
Name Telephone Number Signatures
1. Xxxxxx Xxxxxxxxx (000) 000-0000
--------------------- -------------------- ------------------
2. Xxxxxxx X. Xxxxxxx (000) 000-0000
--------------------- -------------------- ------------------
3.
--------------------- -------------------- ------------------
Telephone call-backs shall be made to each Buyer and Seller if joint
instructions are required pursuant to this Escrow Agreement.
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