EXHIBIT 10.3
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (the "Escrow Agreement") is made and entered into as
of this 23rd day of March 2005, by and between Chartwell International, Inc., a
Nevada corporation ("Chartwell") and Xx. Xxxxxx X. Xxxxx ("Xxxxx") and Xxxxxxx
X. Xxxxxxx (the "Escrow Agent");
WITNESSETH
Whereas Xxxx Xxxxxxx and Xx. Xxxxxx X. Xxxxx, and certain other controlling
shareholders of Chartwell International, Inc. ("Chartwell"), have entered into a
Share Purchase Agreement dated as of the same date hereof pursuant to which Xx.
Xxxxxxx will purchase such controlling shareholders' shares of common stock in
Chartwell;
WHEREAS, its is a condition of the Share Purchase Agreement that Xx. Xxxxx
deposit 1,302,322 shares of common stock, along with corresponding stock powers,
("Escrow Shares") in order protect Chartwell and Xxxx Xxxxxxx in the event they
are damaged by any misrepresentation made by Chartwell or the Selling
Shareholders contained in the Share Purchase Agreement or in the event Chartwell
is damaged or incurs expenses related to any claim made against Chartwell for
assets owned or liabilities incurred prior to the closing date of the Share
Purchase Agreement.
WHEREAS, the Escrow Shares will be delivered to Escrow Agent, to be held in
escrow for a period of 180 days ("Termination") provided that there are no
claims made by Chartwell;
WHEREAS, upon Termination, Escrow Agent will release and distribute the
Escrow Shares to Xx. Xxxxx; and
WHEREAS, Escrow Agent is willing to act as such hereunder; and
NOW THEREFORE, in consideration of the premises of this Escrow Agreement,
the mutual covenants and agreements contained herein, and the other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Appointment of Escrow Agent. Chartwell and Xx. Xxxxx hereby appoint the
Escrow Agent as their joint agent for the purpose of holding and disbursing the
shares to be delivered by Xx. Xxxxx hereunder in accordance with the terms of
this Escrow Agreement.
2. Delivery of Escrow Shares. Concurrent with the closing of the Share
Purchase Agreement, Xx. Xxxxx will deliver to Escrow Agent the Escrow Shares,
and stock powers, and Escrow Agent will acknowledge to Chartwell and Xx. Xxxxx
of the Escrow Shares. The Escrow Shares shall be held by the Escrow Agent in
accordance with the terms and conditions hereinafter set forth.
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3. Escrow and Cancellation of Shares The Escrow Agent shall hold the Escrow
Shares. In the event Chartwell incurs damages or expenses related to the Share
Purchase Agreement due to misrepresentations made in such Agreement or incur
expenses related to assets or liabilities of Chartwell owned or incurred prior
to the Share Purchase Agreement, Chartwell will have the right to claim the
Escrow Shares. The amount of escrow Shares to be claimed by Chartwell be
determined by dividing the amount of the claim by the average closing price for
a share of Chartwell common stock for the five days prior to the claim being
incurred by or paid by Chartwell. Chartwell will present its claim of the number
of Escrow Shares to the Escrow Agent and Escrow Agent will send the number of
certificates to Chartwell. Signatures on behalf of Chartwell shall serve as
sufficient authority directing any actions of Escrow Agent without further
investigation by Escrow Agent regarding such authorizations or authorities of
such signatories.
4. Term. This Escrow Agreement shall terminate at the end of 180 day from
the date of this Escrow Agreement in which any Escrow Shares will be returned to
Xx. Xxxxx.
5. Escrow Agent. (a) Escrow Agent shall be reimbursed for all reasonable
expenses it incurs in fulfilling its obligations under this Escrow Agreement.
Such reimbursement for expenses shall be paid equally by Xx. Xxxxx and
Chartwell.
(b) In taking any action hereunder, the Escrow Agent shall be
protected in relying upon any notice, paper or other document believed by it to
be genuine or upon any evidence deemed by it to be sufficient, and in no event
shall be liable for any act performed or omitted to be performed by it
thereunder in the absence of gross negligence or willful misconduct. The Escrow
Agent may consult with counsel in connection with its duties thereunder and
shall be fully protected by any act taken, suffered or permitted by it in good
faith, The Escrow Agent shall not be bound in any way by any agreement or
contract (other than this Escrow Agreement) between any of the parties hereto or
thereto (whether or not it has knowledge thereof) and its only duties or
responsibilities shall be to hold the Escrow Shares and to dispose of it in
accordance with the terms of this Escrow Agreement.
(c) Xx. Xxxxx and Chartwell hereby jointly and severally agree to
indemnify and hold harmless Escrow Agent to the fullest extent permitted by law
from and against any and all losses, claims, damages, expenses (including
reasonable fees and disbursements of counsel), actions, proceedings, or
investigations (whether formal or informal), or threats thereof (all of the
foregoing being hereinafter referred to as "Liabilities"), based upon, relating
to, or arising out of, the provision of services hereunder; provided, however,
that no party hereunder shall be liable under this Section 5(c) for any amount
paid in settlement of claims without their consent, which consent shall not be
unreasonably withheld, or to the extent that a court of competent jurisdiction
finally judicially determines that such Liabilities resulted from the willful
misconduct or gross negligence of Escrow Agent.
(d) The Escrow Agent hereby accepts its appointment and agrees to act
as Escrow Agent under the terms and conditions of this Escrow Agreement.
6. Binding. This Escrow Agreement shall be binding upon and inure to the
benefit of the parties hereto and their successors and assigns. Escrow Agent
shall not have any duties hereunder except those specifically set forth herein.
7. Applicable Law. This Escrow Agreement shall be governed and construed by
and under the laws of the State of Colorado without regard to conflicts of laws
principles.
8. Notices. All notices, demands or other communications to be given or
delivered under or by reason of any provision of this Escrow Agreement shall be
in writing and shall be deemed to have been given (a) on the date delivered in
person or by facsimile, (b) on the date indicated on the return receipt if
mailed postage prepaid, by certified or registered U.S. Mail, with return
receipt requested or (c) if sent by Federal Express or other nationally
recognized overnight courier service or overnight express U.S. Mail, with
service charges or postage prepaid, then on the next business day after delivery
to the courier service or U.S. Mail (in time for and specifying next day
delivery). The addresses and facsimile numbers of the parties for purposes of
this Escrow Agreement are set forth on the signature page hereto below their
respective signatures.
9. Counterparts. This Escrow Agreement may be executed in multiple
counterparts, each of which shall be deemed an original and all of which
together shall constitute one agreement, and the signature of any party to any
counterpart shall be deemed to be a signature to, and may be appended to, any
other counterpart.
10. Entire Agreement: Severability. This Escrow Agreement supersedes all
prior discussions and agreements between the parties hereto with respect to the
subject matter hereof, and this Escrow Agreement contains the sole and entire
agreement between the parties with respect to the matters covered hereby. All
rights and restrictions contained herein may be exercised and shall be
applicable and binding only to the extent that they do not violate any
applicable laws and are intended to be limited to the extent necessary to render
this Escrow Agreement legal, valid and enforceable. If any terms of this Escrow
Agreement shall be held to be illegal, invalid or unenforceable by a court of
competent jurisdiction, it is the intention of the parties that the remaining
terms hereof shall constitute their agreement with respect to the subject matter
hereof and all such remaining terms shall remain in full force and effect.
11. Waiver; Modification. This Escrow Agreement may not be modified,
revoked, rescinded, changed, amended or terminated except upon the mutual
consent of the parties hereto, No waivers shall be binding unless in writing and
signed by the party against whom such waiver is to be enforced.
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IN WITNESS WHEREOF, the parties have caused this Escrow Agreement to be
executed by their duly authorized agents effective as of the date first written
above.
Xx. Xxxxxx X. Xxxxx
---------------------------------
Xx. Xxxxxx X.
Xxxxx 000 X.
Xxxxxxx Xxxxxxx,
Xxxxx 000
Xxxxxxxx, XX 00000
Chartwell International, Inc
---------------------------------
000 X. Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Escrow Agent
---------------------------------
M.A. Xxxxxxx, Esq.
0000 Xxxxxxx Xxxx
Xxxxxx, XX 00000
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