STOCK PURCHASE AGREEMENT
EXHIBIT
99.1
STOCK
PURCHASE AGREEMENT, dated as of August 18, 2008 (the “Agreement”),
by
and between Xxxxx Xxxxxx (“Haris”),
residing at 00000 Xxxxxxxxxx Xxxxx, Xxxxxx, XX 00000, Xxxx Xxxxxx (“Omar”),
residing at 00000 Xxx Xxxxxxx, Xxxxxx Xxxxx, XX 00000, and Xxxx Xxxxxxxxxx
(“Miki”),
residing at 0000 Xxxxxxxxx Xxxxxx, Xxx Xxxxxxx, XX 00000, and Vision Opportunity
Master Fund, Ltd. (“Vision”),
a
Cayman Islands company with its principal office located at c/o Citi Hedge
Fund
Services (Cayman) Limited, Cayman Corporate Centre, 00 Xxxxxxxx Xxxx,
0xx
Xxxxx,
Xxxxx Xxxxxx XX0-0000, Cayman Islands. For the purposes of this Agreement,
Xxxxx, Xxxx and Miki shall be referred to collectively as the “Sellers.”
W
I T N E S S E T H:
WHEREAS,
the Sellers are the owners of 1,001,000 shares of common stock, par value $.0001
per share (the “Shares”),
of
Harry’s Trucking, Inc. (“HARY”),
a
Delaware corporation with its principal executive office located at 00000
Xxxxxxx Xxxxxx, #000, Xxxxxx, XX 00000;
and
WHEREAS,
Sellers desire to sell, and Vision desires to purchase, all of the Shares on
the
terms and conditions set forth herein;
NOW,
THEREFORE, in consideration of the mutual representations, warranties,
agreements and indemnities herein contained and other good and valuable
consideration, the receipt and sufficiency of which is hereby mutually
acknowledged, the parties agree as follows:
| 1. |
Purchased
Shares
|
Subject
to the terms and conditions herein stated, Sellers hereby agree to sell, assign,
transfer and deliver to Vision on the Closing Date, and Vision hereby agrees
to
purchase from Sellers on the Closing Date, all right, title and interest of
Sellers in and to the Shares for a total purchase price of $253,333 (inclusive
of $20,000 in expenses, disbursements and legal fees incurred in connection
herewith).
| 2. |
Payment
of Consideration
|
In
furtherance of the consummation of the transactions contemplated hereby, Vision
shall (a) pay the purchase price by delivering to Xxxxxxxxx Traurig, LLP, with
offices at The MetLife Building, 000 Xxxx Xxxxxx, 00xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, as escrow agent (the “Escrow
Agent”),
(i)
Vision’s check in the amount of $120,000 payable to the order of Sellers, or by
wire transferring such amount in immediately available funds to the Escrow
Agent’s designated account, as an initial deposit, simultaneously with the
execution and delivery of this Agreement, and (ii) the balance of the purchase
price in the amount of $133,333 by check or wire transfer, on the Closing Date,
and (b) Sellers shall deliver to the Escrow Agent (i) the stock certificates
representing the Shares, properly endorsed and/or accompanied by instruments
of
transfer duly executed in blank, medallion guaranteed, simultaneously with
the
execution and delivery of this Agreement, and (ii) the opinion of counsel for
Sellers, dated on the Closing Date, in substantially the form provided in
Exhibit
A
hereto.
| 3. |
Closing
Date
|
The
consummation of the transactions contemplated by this Agreement (the
“Closing”)
shall
take place on or before August 19, 2008 (the “Closing
Date”),
at
the offices of the Escrow Agent in New York, New York.
| 4. |
Representations
and Warranties
|
4.1 By
Sellers.
Sellers
represent and warrant as follows and acknowledge that Vision is relying upon
such representations and warranties in connection with the purchase by Vision
of
the Shares:
|
(a)
|
HARY
is a corporation duly incorporated, validly existing and in good
standing
under the laws of the State of
Delaware;
|
|
(b)
|
The
authorized capital stock of HARY consists of 20,000,000 shares of
common
stock and 1,000,000 shares of preferred stock; and of such authorized
capital, only 1,048,000 shares of common stock have been duly issued
and
are outstanding and are fully paid and
non-assessable;
|
|
(c)
|
No
person, corporation or other entity has any agreement, option or
warrant,
or any right or privilege (whether by law, pre-emptive or contractual,
or
whether by means of any exercise, conversion or other right or action)
which has the effect of or is capable of becoming an agreement, option
or
warrant, for the purchase from HARY of any securities (including
convertible securities) of HARY;
|
|
(d)
|
All
of the Shares are owned by Sellers as the respective registered and
beneficial owner of record, with good and marketable title thereto,
free
and clear of all mortgages, liens, charges, security interests, adverse
claims, pledges, encumbrances, restrictions and demands whatsoever
(other
than restrictions imposed by federal or state securities
laws);
|
|
(e)
|
No
person, corporation or other entity (other than Vision pursuant to
this
Agreement) has any agreement, option or warrant, or any right or
privilege
(whether by law, pre-emptive or contractual, or whether by means
of any
exercise, conversion or other right or action) which has the effect
of or
is capable of becoming an agreement, option or warrant, for the purchase
of any of the Shares;
|
|
(f)
|
Neither
Sellers nor HARY is party to, bound or affected by or subject to
any
indenture, mortgage, lease, agreement, instrument, charter or by-law
provision, statute, regulation, order, judgment, decree or law which
would
be violated, contravened or breached by, or under which any default
would
occur as a result of, the consummation of the transactions provided
for
herein;
|
|
(g)
|
Sellers
have all requisite power and authority to execute, deliver and perform
their obligations under this Agreement; the execution, delivery and
performance of this Agreement by Sellers has been duly authorized
by all
necessary action on the part of Sellers; and this Agreement constitutes
the legal, valid and binding obligation of Sellers, enforceable against
them in accordance with its terms;
|
2
|
(h)
|
None
of the reports, notices, statements and other filings made by HARY
with
the SEC (the “SEC
Documents”)
since January 1, 2007, as of their respective dates, contained any
untrue
statement of a material fact or omitted to state a material fact
necessary
in order to make the statements contained therein not misleading.
Nothing
has occurred with respect to which the Company would be required
to file
any current report on Form 8-K since January 14, 2008. The balance
sheets
and statements of income, changes in financial position and stockholders’
equity contained in any of the SEC Documents have been prepared in
accordance with generally accepted accounting principles applied
on a
basis consistent with prior periods (and, in the case of unaudited
financial information, on a basis consistent with year-end audits);
and
without limitation of the foregoing, HARY has no material liabilities,
fixed or contingent, known or unknown, except to the extent reflected
in
such financial statements or thereafter incurred in the ordinary
course of
business.
|
|
(i)
|
HARY
has not been informed that its shares of common stock fail to qualify
or
will be delisted from the OTC Bulletin
Board.
|
|
(j)
|
Since
January 1, 2008, (i) the business of HARY has been operated in the
ordinary course, (ii) there has been no material adverse change in
the
financial condition, operations or business of HARY from that reflected
in
the aforesaid financial statements, and HARY has not incurred any
material
obligation or liability except in the ordinary course of business,
and
(iii) there has not been any (A) declaration, setting aside the payment
of
any dividend or other distribution with respect to the capital stock
of
HARY, (B) direct or indirect redemption, purchase or other acquisition
by
HARY of any of its capital stock, or (C) increase in the rate of
salary or
compensation paid or payable by HARY to Sellers or any other officer,
director or employee of HARY;
|
|
(k)
|
HARY
is not in material default of any of its obligations (including,
but not
limited to, all leases to which HARY is a party or by which HARY
is bound,
whether for realty or personalty);
|
|
(l)
|
HARY
has, to the date hereof, filed all tax returns and paid or made adequate
reserve on its books for all taxes, assessments and other impositions
as
and to the extent required by law;
|
|
(m)
|
HARY
is in compliance in all material respects with all laws, statutes,
regulations, rules and ordinances applicable to the conduct of its
business, and has in full force and effect all licenses, permits
and other
authorizations required for the conduct of its business as presently
constituted;
|
3
|
(n)
|
HARY
does not own any real estate or any interest therein, and Sellers
have
previously delivered to Vision true and complete copies of all leases
respecting real estate to which HARY is a party or by which HARY
may be
bound;
|
|
(o)
|
HARY
maintains, has in full force and effect, and has paid all premiums
in
respect of insurance covering its business and assets against such
hazards
and in such amounts as are normal and customary for similar businesses
of
similar size in the locality;
|
|
(p)
|
HARY
is not a party to or bound by any collective bargaining agreement,
employment agreement, consulting agreement or other commitment for
the
employment or retention of any
person;
|
|
(q)
|
HARY
does not maintain and is not required to make any contributions to
any
pension, profit-sharing, retirement, deferred compensation or other
such
plan or arrangement for the benefit of any employee, former employee
or
other person;
|
|
(r)
|
there
is no pending or, to Sellers’ knowledge, threatened litigation,
arbitration, administrative proceeding or other legal action or proceeding
against or relating to HARY’s
business;
|
|
(s)
|
HARY
has the valid right to utilize all trade names and other intellectual
property utilized in its business, and has not received notice of
any
claimed infringement of such intellectual property with the rights
or
property of any other person;
|
|
(t)
|
neither
Sellers nor HARY has any knowledge of any fact, event, circumstance
or
condition that would materially impair HARY’s ability to continue its
normal operations as heretofore conducted (other than general,
industry-wide conditions); and
|
|
(u)
|
HARY
is not a shell company, as defined in Rule 12b-2 of the Securities
Exchange Act of 1934, as amended, and has been in continuous operation
since April 2004.
|
4.2 By
Vision.
Vision
represents and warrants as follows and acknowledges that Sellers are relying
upon such representations and warranties in connection with the sale by Sellers
of the Shares:
|
(a)
|
Vision
is a company validly existing and in good standing under the laws
of the
Cayman Islands;
|
|
(b)
|
Vision
has all requisite power and authority to execute, deliver and perform
its
obligations under this Agreement; the execution, delivery and performance
of this Agreement by Vision has been duly authorized by all necessary
action on the part of Vision; and this Agreement constitutes the
legal,
valid and binding obligation of Vision, enforceable against Vision
in
accordance with its terms;
|
4
|
(c)
|
Vision
is not a party to, bound or affected by or subject to any indenture,
mortgage, lease, agreement, instrument or charter provision, statute,
regulation, order, judgment, decree or law which would be violated,
contravened or breached by, or under which any default would occur
as a
result of, the consummation of the transactions provided for herein;
and
|
|
(d)
|
Vision
is purchasing the Shares for its own account for investment purposes,
and
not with a view to the distribution thereof in violation of any applicable
securities laws.
|
| 5. |
Survival
of Representations and
Warranties
|
5.1 Sellers.
The
representations and warranties of Sellers contained in this Agreement, or any
agreement, certificate or other document delivered or given pursuant to this
Agreement, shall survive the consummation of the transactions contemplated
by
this Agreement and, notwithstanding such completion or any investigation made
by
or on behalf of Vision, shall continue in full force and effect for the benefit
of Vision and any claim in respect thereof shall be made in
writing:
|
(a)
|
with
respect to representations and warranties of Sellers, relating to
matters
other than tax matters, for a period of 18 months after the Closing
Date;
and
|
|
(b)
|
with
respect to representations and warranties of Sellers, relating to
tax
liability or other tax matters, within the period commencing on the
Closing Date and expiring on the date on which the last applicable
limitation period (without giving effect to any voluntary extension(s)
hereafter granted by or on behalf of HARY) under any applicable taxation
legislation expires with respect to any fiscal year of HARY which
is
relevant in determining any relevant tax liability of
HARY.
|
5.2 Vision.
The
representations and warranties of Vision contained in this Agreement, or any
agreement, certificate or other document delivered or given pursuant to this
Agreement, shall survive the completion of the transactions contemplated by
this
Agreement and, notwithstanding such completion or any investigation made by
or
on behalf of Sellers, shall continue in full force and effect for the benefit
of
Sellers and any claim in respect thereof shall be made in writing for a period
of 18 months after the Closing Date.
5.3 General.
The
provisions of this Section 5 respecting the expiration of claims periods is
expressly subject to Section 10.3 hereof.
5
| 6. |
Transfer
and Escrow
|
6.1 Transfer.
This
Agreement shall operate as an immediate and effective transfer and assignment
of
the Shares by Sellers to Vision as at the Closing Date. The parties agree to
do
all such other acts and things as may be necessary to give effect to the
provisions hereof, and without limiting the generality of the foregoing, to
validly and effectively transfer the Shares from Sellers to Vision as at the
Closing Date, and to disclose the resulting change in control of HARY in a
current report on Form 8-K to be filed with the U.S. Securities and Exchange
Commission (“SEC”)
following the Closing. This Agreement will constitute, and may be presented
to
HARY and its transfer agent and registrar as, Sellers’ irrevocable authorization
to transfer the record ownership of the Shares to Vision on the stock transfer
ledger of HARY.
6.2 Escrow.
The
Escrow Agent shall not be obligated to see to the proper application of the
escrow funds and stock certificate(s), but shall merely be obligated to disburse
and deliver same to Sellers and Vision at their request, as more fully set
forth
in the Escrow Agreement attached as Exhibit
B
hereto.
The Escrow Agent shall not be liable for its actions as such except for gross
negligence or willful misconduct.
| 7. |
Additional
Agreements
|
7.1 Sellers
shall remain the Chief Executive Officer, Principal Financial Officer, Principal
Accounting Officer and members of the Board of Directors of HARY following
the
Closing. As such, Sellers shall cause HARY to prepare and file any quarterly
reports on Form 10-Q for the quarters ended thereafter, and any current reports
on Form 8-K, as required, so long as they remain executive officers and/or
directors of HARY.
7.2 Each
of
Sellers and Vision shall take or cause to be taken all necessary or desirable
actions, steps and corporate proceedings to approve or authorize the
transactions contemplated by this Agreement and the execution and delivery
of
this Agreement and other agreements, understandings and documents contemplated
hereby, and shall cause all necessary meetings of directors and stockholders
to
be held for such purpose.
| 8. |
Conditions
|
8.1 Conditions
to the Obligation of Vision.
The
obligation of Vision to complete the transactions contemplated herein is subject
to the satisfaction of, or compliance with, on or before the Closing Date,
each
of the following conditions (each of which is acknowledged to be for the
exclusive benefit of Vision and may be waived by it in whole or in
part):
|
(a)
|
the
representations and warranties of Sellers contained herein shall
be true
and correct as at the Closing Date;
|
|
(b)
|
Sellers
shall have performed all of their obligations under this Agreement
to be
performed by them on or prior to the Closing Date and Sellers shall
not be
in breach of any agreement on their part contained in this Agreement;
and
|
6
|
(c)
|
all
documents relating to the due authorization and completion of the
transactions contemplated hereby and all actions and proceedings
taken on
or prior to the Closing Date in connection with the performance by
Sellers
of their obligations under this Agreement shall be satisfactory to
Vision
and its counsel and Vision shall have received copies of all such
documents or other evidence as it may reasonably request in form
and
substance satisfactory to Vision and its
counsel.
|
If
any of
the conditions contained in Section 8.1 hereof shall not be fulfilled or
performed at or before the Closing Date to the reasonable satisfaction of
Vision, Vision may, by written notice to Sellers, terminate all its obligations
hereunder.
8.2 Conditions
to the Obligation of Sellers.
The
obligation of Sellers to complete the transactions contemplated hereunder is
subject to the satisfaction of, or compliance with, on or before the Closing
Date, each of the following conditions (each of which is acknowledged to be
for
the exclusive benefit of Sellers and may be waived by them in whole or in
part):
|
(a)
|
the
representations and warranties of Vision contained herein shall be
true
and correct as at the Closing Date;
|
|
(b)
|
Vision
shall have performed all its obligations under this Agreement to
be
performed by it on or prior to the Closing Date and Vision shall
not be in
breach of any agreement on its part contained in this Agreement;
and
|
|
(c)
|
all
documents relating to the due authorization and completion of the
transactions contemplated hereby and all actions and proceedings
taken on
or prior to the Closing Date in connection with the performance by
Vision
of its obligations under this Agreement shall be satisfactory to
Sellers
and their counsel and Sellers shall have received copies of all such
documents or other evidence as they may reasonably request in form
and
substance satisfactory to Sellers and their
counsel.
|
If
any of
the conditions contained in Section 8.2 hereof shall not be fulfilled or
performed on or before the Closing Date to the reasonable satisfaction of
Sellers, Sellers may, by written notice to Vision, terminate all their
obligations hereunder.
| 9. |
Termination
|
This
Agreement may be terminated at any time prior to the Closing Date referred
to in
Section 3 hereof by Vision. In the event of such termination, neither party
shall have any liability of any kind to the other party.
| 10. |
Indemnification
|
10.1 Each
party hereto agrees to indemnify and hold harmless the other party from and
in
respect of any cost, claim, loss, damage, liability or expense which such other
party may suffer or incur, whether at law or in equity, arising out, resulting
from or in connection with the inaccuracy of any representation or warranty
contained herein, for the time periods provided in Section 5.1
hereof.
7
10.2 No
claim
for indemnification will arise until written notice thereof is given to the
party from whom indemnification is sought or claimed (the “Indemnitor”).
Such
notice shall be sent within a reasonable time following the determination by
the
party seeking indemnification (the “Indemnitee”)
that a
claim for indemnity may exist. In the event that any legal proceedings shall
be
instituted or any claim or demand is asserted by any third person in respect
of
which either party may seek any indemnification from the other party, the
Indemnitee shall give or cause to be given to the Indemnitor written notice
thereof and the Indemnitor shall have the right, at its option and expense,
to
be present at the defense of such proceedings, claim or demand, but not to
control the defense, negotiation or settlement thereof, which control shall
at
all times remain with the Indemnitee, unless the Indemnitor irrevocably
acknowledges full and complete responsibility for indemnification of the
Indemnitee in respect of the subject claim, in which case the Indemnitor may
assume such control through counsel of its choice; provided,
however,
that no
settlement shall be entered into without the Indemnitee’s prior written consent
(which shall not be unreasonably withheld). The parties agree to cooperate
fully
with each other in connection with the defense, negotiation or settlement of
any
such third party legal proceeding, claim or demand.
10.3 Notwithstanding
anything in this Agreement to the contrary, the indemnity provided for in this
Section 10 shall apply to any loss, claim, cost, damage, expense or liability,
whether or not the actual amount thereof shall have been ascertained prior
to
the final day upon which a claim for indemnity with respect thereto may be
made
hereunder in accordance with Section 5 hereof, so long as written notice thereof
shall have been given to the party from whom indemnification is sought prior
to
said date, setting forth specifically and in reasonable detail, so far as is
known, the matter as to which indemnification is being sought, but nothing
herein shall be construed to require payment of any claim for indemnity until
the actual amount payable shall have been finally ascertained.
| 11. |
Notices
|
Notices
required or permitted to be given under this Agreement shall be in writing
and
shall be deemed to be sufficiently given when sent by certified or registered
mail or by hand, addressed to the addresses set forth on the first page of
this
Agreement or to such other address furnished by notice given in accordance
with
this Section 11. A copy of any notice sent to Vision shall also be sent to
Vision Capital Advisors LLC, 00 Xxxx 00xx
Xxxxxx,
0xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxx Xxxxxxx, Esq., Legal and
Operations.
| 12. |
Governing
Law
|
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York. In the event there is any dispute between the parties as
to
their rights and obligations under this Agreement, the parties submit to the
jurisdiction of any state or federal court sitting in the State and City of
New
York, and waive any defense of inconvenient forum to the maintenance of any
action so brought.
8
| 13. |
Entire
Agreement
|
This
Agreement constitutes the entire agreement between the parties relating to
the
subject matter hereof. There are no verbal statements, representations,
warranties, undertakings or agreements between the parties. This agreement
may
be amended only by an instrument in writing signed by both parties.
| 14. |
Time
of the Essence
|
Time
shall be of the essence of this Agreement.
| 15. |
Assignment
|
Neither
this Agreement nor any rights or obligations hereunder may be assigned by either
party without the prior written consent of the other party, which consent may
be
withheld in either party’s sole and absolute discretion, except that Vision may
assign its rights hereunder to HARY without Sellers’ consent.
| 16. |
Binding
Effect
|
This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns. This Agreement may be
executed in counterparts.
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
above written.
________________________________
Xxxxx
Xxxxxx
________________________________
Xxxx
Xxxxxx
________________________________
Xxxx
Xxxxxxxxxx
VISION
OPPORTUNITY MASTER FUND, LTD.
By:_____________________________
Name:
Title:
9
EXHIBIT
A
FORM
OF LEGAL OPINION OF COUNSEL
1. HARY
is a
corporation duly incorporated, validly existing and in good standing under
the
laws of the State of Delaware.
2. The
authorized capital stock of HARY consists of 20,000,000 shares of Common Stock,
par value $.0001 per share, of which 1,048,000 shares are issued and outstanding
and are fully paid and non-assessable, and 1,000,000 shares of Preferred Stock,
of which none are issued or outstanding.
3. There
are
no outstanding options, warrants or other rights, preemptive or contractual,
to
purchase any shares of capital stock of HARY.
4. There
are
no legal proceedings or investigations pending, or threatened, against or
affecting HARY.
5. HARY
has
no employment or other agreements, oral or written, presently in force, to
the
best of our knowledge.
X-0
XXXXXXX
X
| Xxxxxx 00, 0000 |
Xxxxxxxxx
Xxxxxxx, LLP
MetLife
Building
000
Xxxx
Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxxxx X. Xxxxxxx, Esq.
|
Re:
|
Escrow
Agreement
|
Dear
Sirs:
Reference
is made to the Stock Purchase Agreement, dated August 18, 2008 (the
“Agreement”),
by
and between Xxxxx Xxxxxx, Xxxx Xxxxxx and Xxxx Xxxxxxxxxx (collectively, the
“Sellers”),
and
Vision Opportunity Master Fund, Ltd. (“Buyer”).
All
capitalized terms used herein without definition have the respective meanings
ascribed to them in the Agreement. This is the Escrow Agreement referred to
in
the Agreement.
Pursuant
to the Agreement, the Buyer will direct the wire transfer to Xxxxxxxxx Traurig,
LLP (the “Escrow
Agent”)
of a
total of $253,333 (the “Purchase
Price”)
in
immediately available funds in respect of the Buyer’s obligations under the
Agreement. Additionally, pursuant to the Agreement, the Sellers will direct
the
delivery to the Escrow Agent of stock certificates (the “Shares”)
representing 1,001,000 shares of Common Stock of Harry’s Trucking, Inc. (the
“Company”)
in
respect of the Sellers’ obligations under the Agreement. The Purchase Price,
together with any and all interest thereon from time to time, and the Shares,
together with any and all dividends or distributions thereon from time to time,
while held in escrow hereunder, are collectively referred to herein as the
“Escrow
Funds.”
In
furtherance of the purposes of this agreement, it is hereby understood and
agreed as follows:
1. The
Escrow Agent shall, at all times prior to the disbursement thereof in accordance
with this agreement, maintain the Escrow Funds deposited in the form of cash
in
an interest-bearing demand deposit account at the Escrow Agent’s regular
commercial bank, or another bank selected by the Escrow Agent and reasonably
satisfactory to the Buyer and the Sellers, and maintain the Escrow Funds
deposited in the form of stock in the Escrow Agent’s secure files. In no event
and under no circumstances will the Escrow Agent commingle any of the Escrow
Funds with any funds or property of the Escrow Agent or any other person.
2. The
Escrow Funds shall be disbursed by the Escrow Agent in accordance with the
provisions set forth in the Agreement or joint written
instructions from the Buyer and the Sellers, provided that, in the event of
any
conflict between the Agreement and any such written instructions, the Escrow
Agent may consider the joint written instructions to be controlling. Unless
otherwise directed by any such order or instructions, all interest earned on
the
Purchase Price shall be paid to the person entitled to receive the Purchase
Price upon disbursement thereof by the Escrow Agreement hereunder.
B-1
3. The
Escrow Agent shall have no authority to disburse Escrow Funds for any purpose
or
reason or in any manner other than as expressly provided in this agreement.
The
Escrow Agent shall not be required, at any time or under any circumstances,
to
disburse any funds other than Escrow Funds, and upon the disbursement of all
of
the Escrow Funds in accordance with this agreement, or otherwise upon the
written agreement of the Buyer and the Sellers, the Escrow Agent shall be deemed
to have completed and discharged all of its duties hereunder.
4. The
Escrow Agent’s
sole
responsibility shall be for the safekeeping, investment and disbursement of
the
Escrow Funds in accordance with the terms of this agreement. The Escrow
Agent
shall
have no duties or obligations hereunder other than as expressly set forth in
this agreement, and no other duties or obligations shall be inferred upon the
Escrow Agent at any time. The Escrow Agent shall not incur any liability for
any
action taken by it, except to the extent that same constitutes gross negligence
or willful misconduct by the Escrow Agent or its agents. In
no
event shall the Escrow Agent be liable for incidental, indirect, special,
consequential or punitive damages. The
Escrow Agent shall be entitled to rely upon and assume to be accurate all
notices and advice given to the Escrow Agent hereunder (absent specific actual
knowledge to the contrary), and to rely upon any document and/or signature
believed by it in good faith to be genuine and rendered by an authorized
representative of the subject person.
If the
Escrow Agent shall at any time or from time to time, in good faith, be in doubt
as to the entitlement of the Buyer or the Sellers to any of the Escrow Funds,
or
if any claim(s) is made against the Escrow Agent or there is any other dispute
in respect of Escrow Funds, the Escrow Agent shall have the power and authority,
in its sole discretion, to hold such Escrow Funds until such claim(s) is
resolved by written agreement of the Buyer and the Sellers, or by a judgment
or
order of a court of competent jurisdiction) evidenced by a certified judgment
or
order; and in addition, the Escrow Agent may file an interpleader action with
respect to any such claim(s) in any court of competent jurisdiction, and may
deposit the Escrow Funds with such court and thereby be relieved of all duties
and obligations hereunder. The Escrow Agent shall
not
be obligated to take any legal action or commence any proceeding in connection
with the Escrow Funds, any account in which the Escrow Funds are deposited,
this
agreement or the Agreement, or to appear in, prosecute or defend any such legal
action or proceeding. The Escrow Agent may consult legal counsel selected by
it
in the event of any dispute or question as to the construction of any of the
provisions hereof or of any other agreement or of its duties hereunder, and
shall incur no liability and shall be fully indemnified from any liability
whatsoever in acting in accordance with the opinion or instruction of such
counsel. Buyer and Sellers, through their respective representatives, jointly
and severally, shall promptly pay, upon demand, the reasonable fees and expenses
of any such counsel. The Escrow Agent may
resign at any time, provided that such resignation shall not become effective
until a substitute escrow agent is appointed by mutual agreement of the Buyer
and the Sellers, and the Escrow Agent has delivered to its successor all Escrow
Funds then held hereunder.
5. The
Buyer
and the Sellers acknowledge that the Escrow Agent has rendered and will continue
to render legal advice to the Buyer and its affiliates in connection with the
transactions contemplated by the Agreement, and the Buyer and Sellers hereby
consent to such legal representation and waive any claims of conflict of
interest by reason of such legal representation. The Buyer and Sellers further
agree that the Escrow Agent’s status as a law firm does not create any duties
beyond those set forth in this agreement.
B-2
6. Each
of
the Buyer and Sellers and their respective successors and assigns, hereby
jointly and severely agree to indemnify and hold harmless the Escrow Agent
and
all
related, affiliated or subsidiary corporations, and their respective directors,
Sellers, employees, shareholders, agents, representatives, attorneys,
successors, insurers, executors and assigns (collectively, the “Indemnified
Parties”) from
and
against the full amount of any and all claims, damages, losses, judgments,
obligations, taxes, assessments, liabilities, actions, suits, charges, costs
and
expenses (including reasonable attorneys’ fees and expenses) made against or
incurred by the Indemnified
Parties
by
reason of any act or omission in the
capacity as Escrow Agent hereunder or in connection with any of the transactions
referred to herein or contemplated hereby or its holding of Escrow Funds or
filing of any interpleader action, except to the extent resulting from the
Escrow Agent’s gross negligence or willful misconduct. The Escrow Agent may
recover for any and all such indemnifiable matters by effecting set-off, with
or
without notice, against any and all amounts held by the Escrow Agent hereunder,
which set-off amounts may be retained by the Escrow Agent for its own
account.
7. To
the
extent that any interest is earned on the Escrow Funds from time to time, such
earned interest shall, for tax purposes, be credited to the party receiving
such
interest pursuant to paragraph 2 above, and the Escrow Agent shall, as and
when
required by law, issue a Form 1099 to such party reflecting all such earned
interest on the Escrow Funds. Pending the determination of the party entitled
to
such interest, interest earned in the Escrow Funds may be credited, for tax
purposes, to either the Buyer or the Sellers, in the Escrow Agent’s discretion,
subject to any required change upon determination that the other such party
is
entitled to the earned interest. Each of the Buyer and the Sellers represents
and warrants that its federal tax identification number is the number set forth
immediately below its signature herein, and each of the Buyer’ Representative
and the Sellers shall, promptly upon request by the Escrow Agent, execute and
deliver to the Escrow Agent a Form W-9
and/or
any other tax forms required by the Escrow Agent in connection
herewith.
8. All
notices and communications under this agreement shall be given in the manner
provided in the Agreement. All notices and communications to the Escrow Agent
shall be rendered to the Escrow Agent at its address first set forth above,
with
a copy to all other parties hereto.
9. Neither
this agreement nor any provision hereof may be amended or waived except by
written agreement signed by all parties hereto (including the Escrow Agent).
This agreement may
be
executed in any number of counterparts, each of which shall be deemed to be
an
original, but all of which together shall constitute one and the same
instrument.
10. This
agreement shall be governed by and construed in accordance with the laws of
the
State of New York (without giving effect to principles of conflicts of laws),
and shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and assigns.
B-3
If
the
foregoing accurately reflects our entire agreement as to the subject matter
hereof, and you are ready, willing and able to act as Escrow Agent hereunder,
kindly confirm same by countersigning a counterpart copy hereof in the space
provided below, whereupon this agreement shall become effective.
Very
truly yours,
________________________________
Xxxxx
Xxxxxx
________________________________
Xxxx
Xxxxxx
________________________________
Xxxx
Xxxxxxxxxx
VISION
OPPORTUNITY MASTER FUND, LTD.
By:________________________________
Name:
Title:
Acknowledged,
Confirmed and Agreed to
this
18th
day of
August 2008:
XXXXXXXXX
TRAURIG, LLP
By:
______________________________
Xxxxxxx
X. Xxxxxxx, Xxxxxxxxxxx
X-0
