ESCROW AGREEMENT
THIS AGREEMENT, made as of the 29th day of March 1999, between Xxxx
Enterprises, Inc. (hereinafter "Xxxx"), Fox Group Enterprises, Inc. ("Fox")and
the Stockholders of Fox ("Stockholders") and Xxxx X. Xxxx, P.C., Attorney at
Law, 000 Xxxxx Xxxxxx, Xxxxx 000, Xxx Xxxx, XX 00000 (hereinafter "Escrow
Agent").
ESCROW
1. Appointment and acknowlegdement of escrow Agent. Xxxx and Fox
and Stockholders hereby appoint Escrow Agent, and Escrow Agent
hereby agrees to serve as Escrow Agent pursuant to the terms
of this Escrow Agreement (hereinafter "Agreement"). Escrow
Agent shall acknowledge receipt from the stockholders of seven
hundred fifty thousand (750,000) shares of the post-reverse
split restricted common stock, par value $.001, of I-ROCK
Industries, Inc. ("I-ROCK", formerly Atlantic Medical
Corporation or the "Company") a Delaware corporation, into the
escrow (the "Escrowed Shares").
2. Performance Obligations. The parties to this Agreement
acknowledge the importance of the Company attaining an audited
tangible net worth of at lease $4 million in order for the
Company to satisfy the net worth requirements for listing on
the small Cap market of NASDAQ. The parties hereby agree that
(750,000) shares of the restricted common stock issued to
Stockholders (pursuant to paragraph 1.2 of the Agreement and
Plan of Reorganization as executed between the Company, Fox
and the Stockholders dated March 18, 1999 (the "Reorganization
Agreement"), on a pro-rata basis, shall be placed escrow
subject to the following terms and conditions:
(a) If at, or prior to, the period ending 180 days following
the Closing Date of the acquisition of Fox by the Company
(the "Performance date"), Fox has acquired all of the assets
and technology related to the I-ROCK process as delineated in
the Reorganization Agreement and the combined public Company
has achieved a minimum tangible net worth of $4 million as
reported on (i) unaudited financial statements Compiled by an
independent Certified Public Accountant, published within 45
days after the end of the period reported, prepared in
accordance with generally accepted accounting principles, or
(ii)audited financial statements prepared by a Certified
Public Accountant published within 120 days after the end of
the period reported, then the Escrowed Shares shall be
returned to Stockholders. In the event the condition set forth
in this subparagraph (a) is not timely satisfied, then
(b) If, as of the end of the month following the Performance
date, the combined public Company has a tangible net worth
below $4 million as reported
on (i) unaudited financial statements Compiled by an
independent Certified Public Accountant, published within 45
days after the end of the period reported, prepared in
accordance with generally accepted accounting principles, or
(ii) audited financial statements prepared by a certified
Public Accountant published within 120 days after the end of
the period reported, then one of the following events shall
occur:
(i) Fox and/or Stockholders shall have 30 days from
the date the financial statements are published to
remedy the deficiency and the Stockholders shall then
be entitled to receive back the 750,000 shares from
Escrow
(ii) If Fox and Stockholders elect not to cure the
deficiency, all of the Escrowed Shares shall be
distributed to Xxxx Enterprises, Inc.
(c) By mutual agreement, the parties hereto may waive the
requirement for unaudited financial statements to be Compiled
by an independent certified Public accountant and accept the
unaudited financial statements as prepared by the company for
purposes of determining the tangible net worth as required
herein.
3. Discretion of escrow Agent in Distributing Escrowed Shares. The
Escrow Agent, upon written notice from Xxxx and Fox as to whether or not the
Performance Obligation has been satisfied shall promptly release and deliver the
Escrowed Share accordingly. In the event of any disagreement between the parties
as to whether or not the Performance Obligation has been satisfied, then the
Company will obtain an audit from a certified Public Accountant agreed to by the
parties and such audit shall be the sole basis for determining if the
Performance Obligations has been satisfied.
4. Indemnification by Xxxx. In the event that any other shareholder of
the Company who was a shareholder on or before March 22, 19999, ("Claimant"0,
makes a claim that any of the Escrowed Shares to be distributed to Xxxx in
accordance with Section 3(b)(ii) herein should instead be distributed in part or
in whole to such Claimant or other shareholder(s) of the Company who were
shareholders of the Company on or before March 22, 1999, then and in such event
Xxxx hereby agrees to indemnify and hold harmless the Company, Fox and
Stockholders from and against any claims (including reasonable attorney's fees)
of claimant (including other t Company shareholders as of March 22, 1999), to
any of the Escrowed Shares; provided that the parties acknowledge that Xxxx had
previously returned to the Company's Treasury 253,392 post reverse split shares
of the Company as provided by 1.5 (D) of the agreement and Plan of
Reorganization among Xxxx, Fox and Stockholders upon receipt by the parties of
evidence of same at closing..
5. Operation of escrow. The parties hereto agree that the Escrow
created by this Agreement shall operate as follows:
(a) Distribution of the Escrowed Shares by escrow Agent shall
operate to divest all right, title, interest, claim and
demand, either at law or in equity, of any party to
this agreement (other than the distributee) in and to the
Escrowed Shares distributed and shall be a perpetual bar, both
in law and in equity, against the parties to this Agreement
and against any person claiming or attempting to claim such
distributed Escrowed Shares from, through or under such party.
(b) Xxxx, Xxx and Stockholders agree to indemnify and hold
harmless Escrow Agent against and i respect of any and all
claims, suits, actions, proceedings (formal and informal),
investigations, judgments, deficiencies, damages, settlements,
liabilities and legal and other expenses (including legal fees
and expenses of attorneys chosen by Escrow Agent) as and when
incurred and arising out of or based upon any act, omission,
alleged act, or alleged omission by Escrow Agent or any other
cause, in any case in connection, with the acceptance of or
the performance or non-performance by Escrow Agent of any
Escrow Agent's duties under this Agreement, except as a result
of escrow Agent's bad faith or gross negligence. Escrow Agent
shall be full protected by acting in reliance upon any notice,
advice, direction, or other document in accordance with the
provisions hereof, in connection with this a agreement, has
been duly authorized so to do, or by acting or failing to act
in good faith on the advice of any counsel retained by escrow
Agent. Escrow Agent shall not be liable for any mistake of
fact or of law or any error of judgment, or for any act or any
omission, except as a result of Escrow Agent's bad faith or
gross negligence.
(c) Escrow Agent makes no representation as to the validity,
value or genuineness of any security or other documents or
instruments held by or delivered to Escrow Agent.
(d) Escrow Agent shall have no duties or responsibilities
except those expressly set forth herein. Escrow Agent shall
not be bound by any notice of ca claim or demand with respect
thereto, or any waiver, modification, amendment, termination,
cancellation or revision of this Agreement, unless in writing
and signed by the other parties hereto, and if Escrow Agent's
duties as Escrow Agent hereunder are affected, unless escrow
Agent shall have given his prior written consent thereto,
Escrow Agent shall not be bound by any assignments hereunder
unless Escrow Agent shall have received written notice thereof
from the assignor. Escrow Agent shall perform any acts ordered
by a court of competent jurisdiction.
(e) IF Escrow Agent shall be uncertain as to Escrow Agent
duties or rights hereunder, shall receive any notice, advice,
direction or other document form any other party with respect
to the Escrowed Shares which, in Escrow Agent's opinion is in
conflict with any of the provisions of the Agreement, or
should be advised that a dispute has arisen with respect to
the ownership or right or possession of the Escrowed Shares or
any part hereto (of as to the delivery, non-delivery or
content of any notice, advice direction or other document),
Escrow agent shall be entitled, without liability to anyone to
refrain from taking any action other than to use Escrow
Agent's best efforts to keep safely the Escrowed Shares until
Escrow Agent shall be directed otherwise in writing by all
other parties hereto or by an
order, decree or judgment of a court of competent jurisdiction
which has been finally affirmed on appeal or which by lapse of
time or otherwise is no longer subject to appeal, but Escrow
Agent shall be under no duty to institute or to defend any
proceeding, although escrow Agent may, in Escrow Agent's
desecration institute or d34fend such proceedings.
(f) Xxxx, Xxx and Stockholders authorize Escrow Agent, if
Escrow Agent is threatened with litigation or is sued, to
interplead all interested parties in any court of competent
jurisdiction and to deposit the Escrowed Shares with the clerk
of that court.
(g) Escrow Agent's responsibilities and liabilities hereunder,
except as a result of Escrow Agent's own bad faith or gross
negligence, will terminate upon the delivery by Escrow Agent
of all the Escrowed Shares under any provision of this
Agreement.
GENERAL TERMS
6. Good Faith. Each party agrees to act in good faith in carrying out
the provisions of this Agreement and to sign documents appropriate to carrying
out its terms.
7. Binding Effect; Assignment. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their heirs, successors
and assigns.
8. Severability. If any terms hereof or the application thereof, to any
person or circumstance shall be determined to be null and void, ineffectual,
invalid or unenforceable by any competent tribunal, the remaining terms hereof
or the application of such term to persons or circumstances other than to those
which were determined to be invalid or unenforceable shall not be affected
thereby and shall continue in full force and effect.
9. Waivers. The waiver by any party of a breach by another party of any
provision of this Agreement shall not operate or be construed as a waiver of any
subsequent breach.
10. Notices. Any notice required to be given or made to a party
hereunder must be in writing and delivered in person or sent by certified first
class mail, return receipt requested to each of the parties whose signature
appears below.
11. Amendment. No waiver, modification or amendment of any terms of
this agreement shall be effective unless made in writing and signed by all the
parties.
12. Entire Agreement. This Agreement contains the entire understanding
between and among the parties concerning the matters herein and supersedes any
prior understandings or agreements between and among them respecting the subject
matter of this agreement.
13. Headings. The section and subsection headings in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
14. Multiple Copies. This Agreement is made in multiple copies, each of
which shall constitute an original.
15. Governing Law. This Agreement shall be deemed to be made under and
shall be construed in accordance with the laws of the state of New York without
regard to its principles of conflicts of laws.
IN WITNESS WHEREOF, the under signed have duly executed this Agreement
the day and year first above written.
WITNESS: Escrow Agent
/s/ Xxxx X. Xxxx
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Xxxx X. Xxxx, Attorney at Law
ATTEST:: RIVA ENTERPRISES, INC.
/s/ Riva Enterprises, Inc.
By:
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ATTEST: FOX GROUP ENTERPRISES, INC.
/s/ Xxxxxx Xxx
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WITNESSES: STOCKHOLDERS OF FOX:
/s/ Xxxxxxx Xxxxx
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/s/ Xxxxx X. Xxxx
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/s/ Xxxx Xxxxxxxxxx
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/s/ Xxxxxxx Xxxxxxx
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/s/ Xxxxxx Xxxxx
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/s/ Xxxxxx Xxx
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/s/ Jeager and Associates, LLC
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