EXHIBIT 2.3
ESCROW AGREEMENT
ESCROW AGREEMENT, dated as of May 30, 2000 (this "Agreement"), among
ONEIDA LTD., a New York corporation (the "Purchaser"), DELCO INTERNATIONAL
LTD (INC.), a New York corporation (the "Company"), XXXXX XXXXXX, XXXXXX
XXXXXX, XXXXX XXXXXX, XXXXXXX XXXXXXXXX and XXXXXX XXXXXX (each a "Stockholder"
and, collectively, the "Stockholders") and THE CHASE MANHATTAN BANK N.A., a
New York banking corporation (the "Escrow Agent"). All capitalized terms not
otherwise defined herein shall have the meanings ascribed thereto in the Stock
Purchase Agreement (as defined below).
W I T N E S S E T H:
WHEREAS, the Purchaser, the Company and the Stockholders are entering
into a Stock Purchase Agreement, as of the date hereof (the "Stock Purchase
Agreement"), pursuant to which the Purchaser has agreed to purchase from the
Stockholders, and the Stockholders have agreed to sell to the Purchaser, all of
the issued and outstanding Common Stock of the Company;
WHEREAS, it is contemplated under the Stock Purchase Agreement that the
Purchaser, as a portion of the Purchase Price, will deposit or cause to be
deposited into escrow the sum of $5,000,000 in cash on the Closing Date (the
"Adjustment Escrow Amount"; the Adjustment Escrow Amount and all interest and
income accrued thereon being referred to herein as the "Adjustment Escrow Fund")
to be held and disbursed by the Escrow Agent in accordance with Section 4 of
this Agreement;
WHEREAS, it is contemplated under the Stock Purchase Agreement that the
Purchaser, as a portion of the Purchase Price, will deposit or cause to be
deposited into escrow the sum of $5,000,000 in cash on the Closing Date (the
"Indemnity Escrow Amount"; the Indemnity Escrow Amount and all interest and
income accrued thereon being referred to herein as the "Indemnity Escrow Fund"
and, together with the Adjustment Escrow Fund, the "Escrow Funds") to be held
and disbursed by the Escrow Agent in accordance with Section 5 of this
Agreement.
WHEREAS, the Escrow Agent is willing to act as the Escrow Agent hereunder;
WHEREAS, the parties hereto agree that the Escrow Agent is not a party to
the Stock Purchase Agreement and has no rights or obligations thereunder, and
that the duties and obligations of the Escrow Agent shall be determined solely
by this Agreement; and
WHEREAS, the Escrow Agent will hold the Adjustment Escrow Fund in Account
No. E 14001 at The Chase Manhattan Bank, N.A., New York (the "Adjustment Escrow
Account") and the Indemnity Escrow Fund in Account No. E 14002 at The Chase
Manhattan Bank, N.A., New York (the "Indemnity Escrow Account" and, together
with the Adjustment Escrow Accounts, the "Escrow Accounts").
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements
contained herein and intending to be legally bound hereby, the parties hereby
agree as follows:
1. Appointment and Agreement of Escrow Agent and Representative of the
Stockholders. (a) The Purchaser, the Company and the Stockholders hereby
appoint the Escrow Agent to serve as, and the Escrow Agent hereby agrees to act
as, escrow agent upon the terms and conditions of this Agreement.
(b) The Stockholders hereby appoint Xx. Xxxxxx Xxxxxx as their
representative (the "Stockholder Representative").
2. Establishment of the Escrow Funds. (a) The Purchaser shall notify the
Escrow Agent of the date of the Closing in writing at least three (3) Business
Days prior to the Closing Date. Pursuant to Section 2.05(b) of the Stock
Purchase Agreement, the Purchaser shall deliver to the Escrow Agent on the
Closing Date the Adjustment Escrow Amount and the Indemnity Escrow Amount. The
Escrow Agent shall hold the Adjustment Escrow Fund and the Indemnity Escrow Fund
in escrow pursuant to this Agreement in the Adjustment Escrow Account and the
Indemnity Escrow Account, respectively.
(b) The Purchaser, the Company and the Stockholders confirm to the
Escrow Agent and to each other that each of the Adjustment Escrow Fund and the
Indemnity Escrow Fund will be free and clear of all Liens except as may be
created by this Agreement and the Stock Purchase Agreement.
3. Purpose of the Escrow Funds. The Escrow Funds will be deposited with
the Escrow Agent and will be held by the Escrow Agent to secure the obligations
of each of the Stockholders to make payments to the Purchaser (i) in the event
payment by the Stockholders shall be required under Section 2.06(c)(i) of the
Stock Purchase Agreement and (ii) with respect to any indemnification
obligations of each of the Stockholders pursuant to Section 9.02 of the Stock
Purchase Agreement.
4. Payments from the Adjustment Escrow Fund. (a) Promptly following the
final determination of the adjustment to the Purchase Price as contemplated by
Section 2.06 of the Stock Purchase Agreement, and in any event not later than
three (3) Business Days following such determination, the Purchaser shall
deliver written instructions, executed by an authorized officer of the Purchaser
(the "Purchase Price Adjustment Instructions"), to the Escrow Agent setting
forth the amount to be transferred to the Purchaser and/or the Stockholder
Representative, as applicable, from the Adjustment Escrow Fund as determined in
accordance with Section 2.06 of the Stock Purchase Agreement.
(b) Within three (3) Business Days after the receipt by the Escrow
Agent of the Purchase Price Adjustment Instructions, the Escrow Agent shall make
payment to the Purchaser and/or the Stockholder Representative in accordance
with the Purchase Price Adjustment Instructions.
5. Payments from the Indemnity Escrow Fund. (a) At any time on or prior
to twenty four (24) months after the Closing Date (the "Expiration Date"), the
Purchaser may deliver to the Escrow Agent a certificate of the Purchaser,
executed by an authorized officer of the Purchaser (a "Purchaser's
Certificate"), with copy to the Stockholder Representative. Such Purchaser's
Certificate shall:
(i) state that an Indemnified Party has paid or incurred a Loss
or is entitled to indemnification under Section 9.02 of the Stock Purchase
Agreement (an "Indemnification Item");
(ii) state the aggregate amount of such Indemnification Item; and
(iii)specify in reasonable detail the nature and amount of each
individual Indemnification Item.
(b) If the Stockholder Representative shall object to any amount
claimed in connection with any Indemnification Item specified in any Purchaser's
Certificate, the Stockholder Representative shall, within ten (10) Business
Days after delivery by the Purchaser to the Stockholder Representative of such
Purchaser's Certificate, deliver to the Escrow Agent a certificate executed by
the Stockholder Representative (a "Stockholders' Certificate"), with a copy to
the Purchaser, (i) specifying each such amount to which the Stockholder
Representative objects and (ii) specifying in reasonable detail the nature and
basis for each such objection.
If the Escrow Agent shall not have received a Stockholders' Certificate
objecting to the amount claimed with respect to an Indemnification Item within
ten (10) Business Days after delivery by the Purchaser to the Stockholder
Representative of a Purchaser's Certificate specifying such Indemnification
Item, the Stockholder Representative shall be deemed to have acknowledged
the correctness of the amount claimed on such Purchaser's Certificate with
respect to such Indemnification Item, and the Escrow Agent shall promptly
transfer to the Purchaser out of the Indemnity Escrow Account, an amount in cash
equal to the lesser of (1) the amount claimed in the Purchaser's Certificate
with respect to such Indemnification Item and (2) the remaining
balance in the Indemnity Escrow Account.
(c) If the Escrow Agent receives, within ten (10) Business Days after
delivery by the Purchaser to the Stockholder Representative of a Purchaser's
Certificate, a Stockholders' Certificate objecting to the amount claimed with
respect to any Indemnification Item specified in such Purchaser's Certificate,
the amount so objected to shall be held by the Escrow Agent and shall not be
released from the Indemnity Escrow Account except in accordance with either:
(i) written instructions executed by the Stockholder
Representative and an authorized officer of the Purchaser, or
(ii) the final non-appealable judgment of a court having
jurisdiction over the matters relating to the claim by the Purchaser for
indemnification from each of the Stockholders.
In such an event, the Escrow Agent shall, promptly thereafter, transfer to the
Purchaser out of the Indemnity Escrow Account, an amount in cash equal to the
portion of such amount set forth in such written instructions or in such
judgment, as the case may be.
(d) Distribution of Remaining Indemnity Escrow Amount to the
Stockholder Representative. (i) On the first anniversary of the Closing Date
(the "First Year Anniversary Date"), the Stockholders are entitled to receive an
amount equal to one half of the funds remaining in the Indemnity Escrow Account
as of the First Anniversary Date not subject to a Purchaser's Certificate
delivered pursuant to Section 5(a) or a Stockholder's Certificate delivered
pursuant to Section 5(c) (the "First Year Anniversary Amount").
(A) Within three (3) Business Days after the First Year
Anniversary Date, the Escrow Agent shall deliver a certificate to the
Stockholder Representative and the Purchaser setting forth the First Year
Anniversary Amount (the "Escrow Agent Certificate").
(B) Within ten (10) Business Days after the receipt by the
Stockholder Representative and the Purchaser of the Escrow Agent Certificate,
the Stockholder Representative and the Purchaser shall deliver to the Escrow
Agent a certificate, executed by the Stockholder Representative and an
authorized officer of the Purchaser (the "First Year Anniversary Certificate"):
(1) confirming the First Year Anniversary Amount, and
(2) instructing the Escrow Agent to transfer the First Year
Anniversary Amount to the Stockholder Representative.
(C) Within three (3) Business Days after receipt by the Escrow
Agent of the First Anniversary Certificate, the Escrow Agent shall transfer to
the Stockholder Representative out of the Indemnity Escrow Account the First
Year Anniversary Amount.
(ii) At the Expiration Date, the Escrow Agent shall promptly liquidate
all investments of the Indemnity Escrow Amount not subject to a Purchaser's
Certificate delivered pursuant to Section 5(a) or a Stockholder's Certificate
delivered pursuant to Section 5(c) and transfer such funds to the Stockholder
Representative. If at the Expiration Date the Escrow Agent is holding Indemnity
Escrow Funds subject to a Purchaser's Certificate delivered pursuant to Section
5(a) or a Stockholder's Certificate delivered pursuant to Section 5(c), the
Escrow Agent shall continue to hold such Indemnity Escrow Funds until disposed
of in accordance with such Section, after which any remaining Indemnity Escrow
Funds will be distributed as provided in this Section 5(d)(ii).
6. Liquidation of the Escrow Funds. Whenever the Escrow Agent shall be
required to make payment from the Adjustment Escrow Fund or the Indemnity Escrow
Fund, whichever the case may be, the Escrow Agent shall pay such amounts by
liquidating the investments of the Adjustment Escrow Fund or the Indemnity
Escrow Fund, whichever the case may be, to the extent necessary to pay such
amounts in full and in cash. Subject to the provisions of Section 12(g) of this
Agreement, the Escrow Agent shall not be liable for any losses incurred in any
such liquidation.
7. Payments. (a) Payments made by the Escrow Agent pursuant to the
provisions of Section 4 and Section 5 shall be made by wire transfer in
immediately available funds to such account designated in writing by the party
to receive such payment to the Escrow Agent at least three (3) Business Days
prior to the date any such payment is due.
(b) In the event funds transfer instructions are given (other than in
writing at the time of execution of the Agreement), 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 B hereto, and the Escrow Agent may rely upon the confirmations 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. The parties to this Agreement
acknowledge that such security procedure is commercially reasonable.
(c) It is understood that the Escrow Agent and the beneficiary's bank
in any funds transfer may rely solely upon any account numbers or similar
identifying number provided by either of the other parties hereto 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 where 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.
8. Maintenance of the Escrow Funds; Termination of the Escrow Funds. The
Escrow Agent shall continue to maintain the Escrow Funds until the termination
of this Agreement as provided in Section 15.
9. Investment of Escrow Funds. (a) The Escrow Agent shall invest and
reinvest moneys on deposit in the Escrow Funds, pursuant to a joint written
notice from the Stockholder Representative and the Purchaser, in any combination
of the following: (i) readily marketable direct obligations of the Government of
the United States or any agency or instrumentality thereof or readily marketable
obligations unconditionally guaranteed by the full faith and credit of the
Government of the United States, in each case with a maturity of one year or
less, (ii) one or more portfolios of the Chase Vista Money Market Mutual Funds,
for which affiliates of The Chase Manhattan Bank provide investment advisory and
shareholder services for a fee as described in the prospectus for these funds
which has been provided to the parties hereto, in addition to a 25 basis point
fee as compensation for administrative and accounting services provided to
clients, (iii) insured certificates of deposit of, or time deposits with, any
commercial bank that is a member of the Federal Reserve System and which issues
(or the parent of which issues) commercial paper rated as described in clause
(iv), is organized under the laws of the United States or any State thereof and
has combined capital and surplus of at least $1,000,000,000, each of which
certificate of deposit or time deposit has a maturity of 180 days or less, or
(v) commercial paper in an aggregate amount of no more than $1,000,000 per
issuer outstanding at any time, with a maturity of 270 days or less, issued by
any corporation organized under the laws of any State of the United States,
rated at least "Prime-1" (or the then equivalent grade) by Xxxxx'x Investors
Services, Inc. or "A-1" (or the then equivalent grade) by Standard & Poors, Inc.
In the absence of timely investment instructions, the Escrow Funds shall be
invested in The Chase Vista U.S. Government Money Market Fund.
(b) All trust investment orders under Section 9(a)(i), (iii) and (iv)
above shall be executed through Chase Asset Management ("CAM"), in the
investment management division of The Chase Manhattan Bank. Subject to the
principles of best execution, transactions shall be effected on behalf of the
Escrow Fund through broker-dealers selected by CAM. An agency fee, in the
amount specified in Schedule A hereto, shall be assessed in connection with each
transaction. The Purchaser and the Stockholder Representative shall be provided
with periodic statements reflecting the transactions executed on behalf of the
Escrow Fund. The Purchaser and the Stockholder Representative shall also have
the right, upon request, to receive a notification providing transaction details
for the Escrow Fund within five (5) days of any securities transaction in that
account. This notification shall be provided without any additional cost and
shall reflect the amount of the agency fee.
10. Assignment of Rights to the Escrow Amount; Assignment of Obligations;
Successors. (a) Except as provided in this Section 10, a party hereto may not
assign any of its rights or obligations hereunder without the prior written
consent of the Escrow Agent, the Purchaser and the Stockholder Representative.
The Purchaser may freely assign this Agreement (i) to any successor in interest
to the Purchaser by way of a merger, consolidation, sale of all or any material
portion of its assets, or otherwise or (ii) to any Affiliate of the Purchaser.
In the event of each such assignment the assignee shall receive the benefit of
this Agreement and shall succeed to all of the rights of the Purchaser
hereunder. This Agreement will be binding upon and inure to the benefit of the
parties hereto and their respective successors, heirs, legatees and permitted
assigns.
(b) Anything in this Agreement to the contrary notwithstanding, in no
event shall the Escrow Agent be liable for special, indirect or consequential
loss or damage 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. The parties hereto
acknowledge that the foregoing indemnities shall survive the resignation or
removal of the Escrow Agent or termination of this Agreement.
11. Tax Information. Upon execution of this Agreement, the Purchaser, the
Company and each of the Stockholders shall provide the Escrow Agent with a fully
executed W-8 or W-9 Internal Revenue Service form, which shall include their Tax
Identification Number (TIN) as assigned by the Internal Revenue Service. All
interest or other income earned under the Escrow Agreement shall be allocated
and paid as provided herein and reported by the recipient to the Internal
Revenue Service as having been so allocated and paid.
12. Escrow Agent. (a) Except as expressly contemplated by this Agreement
or by joint written instructions from the Purchaser and the Stockholder
Representative or pursuant to an order of a court of a competent jurisdiction,
the Escrow Agent shall not sell, transfer or otherwise dispose of in any
manner all or any portion of the Escrow Funds.
(b) The duties and responsibilities of the Escrow Agent shall be
limited to those expressly set forth in this Escrow Agreement, and the Escrow
Agent shall not be subject to, nor obligated to interpret, any other agreements
to which the Purchaser, the Company or the Stockholders are parties. Except as
otherwise provided in the Preamble to this Agreement, reference in this Escrow
Agreement to the Stock Purchase Agreement is for identification purposes only
and for reference to the defined terms therein and its terms and conditions are
not thereby incorporated herein.
(c) In the performance of its duties hereunder, the Escrow Agent shall
be entitled to rely upon any document, instrument or signature believed by it in
good faith to be genuine and signed by any party hereto or an authorized officer
or agent thereof, and shall not be required to investigate the truth or accuracy
of any statement contained in any such document or instrument. The Escrow Agent
may assume that any Person purporting to give any notice in accordance with the
provisions of this Agreement has been duly authorized to do so.
(d) The Escrow Agent shall not be liable for any error of judgment, or
any action taken, suffered or omitted to be taken, hereunder except in the case
of its gross negligence, bad faith or willful misconduct. The Escrow Agent may
consult with counsel of its own choice and shall have full and complete
authorization and protection for any action taken or suffered by it hereunder in
good faith and in accordance with the opinion of such counsel.
(e) The Escrow Agent shall have no duty as to the collection or
protection of the Escrow Amount or income thereon, nor as to the preservation of
any rights pertaining thereto, beyond the safe custody of any such funds
actually in its possession.
(f) As compensation for its services to be rendered under this
Agreement, for each year or any portion thereof, the Escrow Agent shall receive
a fee in the amount specified in Schedule A to this Agreement and shall be
reimbursed upon request for all expenses, disbursements and advances, including
reasonable fees of outside counsel, if any, incurred or made by it in connection
with the preparation of this Agreement and the carrying out of its duties under
this Agreement. All such fees and expenses shall be shared equally by the
Stockholders, on the one hand, and the Purchaser, on the other. The parties
hereby grant the Escrow Agent a lien, right of set-off and security interest to
the account for the payment of any claim for compensation, expenses and amounts
due hereunder.
(g) The Purchaser and the Stockholders agree to jointly and severally
reimburse and indemnify the Escrow Agent for, and hold it harmless against, any
loss, liability or expense, including, without limitation, reasonable attorneys'
fees, incurred without gross negligence, bad faith or willful misconduct on the
part of the Escrow Agent arising out of, or in connection with the acceptance
of, or the performance of, its duties and obligations under this Agreement. The
Purchaser, on the one hand, and the Stockholders, on the other, agree among
themselves that they shall share equally the costs of any such loss, liability
or expense suffered by the Escrow Agent.
(h) The Escrow Agent may at any time resign by giving twenty (20)
Business Days' prior written notice of resignation to the Stockholder
Representative and the Purchaser. The Stockholder Representative and the
Purchaser may at any time jointly remove the Escrow Agent by giving ten (10)
Business Days' written notice signed by each of them to the Escrow Agent. If
the Escrow Agent shall resign or be removed, a successor Escrow Agent, which
shall be a bank or trust company having its principal executive offices in New
York, New York, and assets in excess of $10,000,000,000, and which shall be
reasonably acceptable to the Stockholder Representative, shall be appointed by
the Purchaser by written instrument executed by the Stockholder Representative
and the Purchaser and delivered to the Escrow Agent and to such successor Escrow
Agent and, thereupon, the resignation or removal of the predecessor Escrow Agent
shall become effective and such successor Escrow Agent, without any further act,
deed or conveyance, shall become vested with all right, title and interest to
all cash and property held hereunder of such predecessor Escrow Agent, net of
any outstanding fees due the predecessor Escrow Agent, and such predecessor
Escrow Agent shall, on the written request of the Stockholder Representative or
the Purchaser, execute and deliver to such successor Escrow Agent all the right,
title and interest hereunder in and to the Escrow Funds of such predecessor
Escrow Agent and all other rights hereunder of such predecessor Escrow Agent.
If no successor Escrow Agent shall have been appointed within twenty (20)
Business Days of a notice of resignation by the Escrow Agent, the Escrow Agent's
sole responsibility shall thereafter be to hold the Escrow Funds until the
earlier of its receipt of designation of a successor Escrow Agent, a joint
written instruction by the Stockholder Representative and the Purchaser
and termination of this Agreement in accordance with its terms.
13. Merger. Any corporation into which the Escrow Agent in its individual
capacity may be merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the
Escrow Agent in its individual capacity shall be a party, or any corporation to
which substantially all the corporate trust business of the Escrow Agent in its
individual capacity may be transferred, shall be the Escrow Agent under this
Escrow Agreement without further act; provided, however, that such corporation
into which the Escrow Agent may be merged or converted, or with which may be
consolidated, or resulting from any such merger, conversion or consolidation,
shall be a bank or trust company having assets in excess of $10,000,000,000.
14. Conflicting Demands. In the event that the Escrow Agent shall be
uncertain as to its duties or rights hereunder or shall receive instructions,
claims or demands from any party hereto which, in its opinion, conflict with any
of the provisions of this Agreement, it shall be entitled to refrain from taking
any action and its sole obligation shall be to keep safely all property held in
escrow until it shall be directed otherwise in writing by all of the other
parties hereto or by a final order or judgment of a court of competent
jurisdiction.
15. Termination. Except as provided in the following sentence, this Escrow
Agreement shall terminate on the earlier of: (a) the date on which there are no
funds remaining in both the Adjustment Escrow Fund and the Indemnity Escrow Fund
or (b) the Expiration Date. If at the Expiration Date the Escrow Agent is
holding Indemnity Escrow Funds pursuant to a Stockholders' Certificate in
accordance with Section 5(c), the Escrow Agent shall continue to hold such
Indemnity Escrow Funds until disposed of in accordance with such Section, at
which time this Agreement shall also terminate.
16. Notices. All notices and other communications pursuant to this
Agreement shall be in writing and deemed to be sufficient if contained in a
written instrument and shall be deemed given if delivered personally, sent by
nationally recognized overnight courier or mailed by registered or certified
mail (return receipt requested), postage prepaid, to the parties at the
following address (or at such other address for a party as shall be specified by
like notice):
If to the Company:
Delco International Ltd. (Inc.)
00 Xxxxxx Xxxx Xxxxx
Xxxx Xxxxxxxxxx, Xxx Xxxx 00000
Attention: General Counsel
If to the Stockholder Representative, or the Stockholders:
Xx. Xxxxxx Xxxxxx
000 Xxxxxxx Xxxx
Xxxxx Xxxx, XX 00000
Telephone: (000) 000-0000
with a copy to:
Salon, Marrow, Xxxxxxx & Xxxxxx, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxx Xxxxxxxx, Esq.
If to the Purchaser:
Oneida Ltd.
000-000 Xxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxx X. Xxxxxxxxx, Esq.
with a copy to:
Shearman & Sterling
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxx, Esq.
If to the Escrow Agent:
The Chase Manhattan Bank N.A.
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx XxXxxxx
All such notices and other communications shall be deemed to have been
received (a) in the case of personal delivery, on the date of such delivery, (b)
in the case of delivery by nationally recognized overnight courier, next day
delivery requested, on the Business Day following dispatch, and (c) in the case
of mailing, on the fifth Business Day following such mailing.
17. Governing Law. (a) This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York, applicable to contracts
executed in and to be performed entirely within that state. All actions and
proceedings arising out of or relating to this Agreement shall be heard and
determined in any New York state or federal court sitting in The City of New
York. The parties hereto expressly consent to the jurisdiction of any such
court and the venue therein. The parties hereto expressly consent to the
jurisdiction of any such court and to venue therein. Each of Stockholders has
appointed Salon, Marrow, Xxxxxxx & Xxxxxx, LLP as its authorized agent (the
"Authorized Agent") upon whom process may be served in any action arising out of
or based on this Agreement or any of the agreements or transactions
contemplated herein.
(b) Each of the Stockholders represents and warrants that the
Authorized Agent has agreed to act as said agent for service of process and
agrees to take any and all actions that may be necessary to continue such
appointment in full force and effect as aforesaid. Service of process upon the
Authorized Agent and written notice of such service upon such party at the
address set forth in Section 16 shall be deemed, in every respect, effective
service of process upon such party; provided, however, that nothing herein shall
impair the right of any party to serve process in any other manner permitted by
law.
18. Amendment and Waivers. Any term or provision of this Agreement may be
amended, and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or prospectively)
only by a writing signed by all parties hereto. The waiver by a party of any
breach hereof or default in the performance hereof will not be deemed to
constitute a waiver of any other default or any succeeding breach or default.
19. Severability. If any provision of this Agreement, or the application
thereof, will for any reason and to any extent be invalid or unenforceable, the
remainder of this Agreement and application of such provision to other persons
or circumstances will be interpreted so as reasonably to effect the intent of
the parties hereto so long as the economic or legal substance of the
transactions contemplated hereby is not affected in any manner materially
adverse to any party. The parties further agree to replace such void or
unenforceable provision of this Agreement with a valid and enforceable provision
that will achieve, to the greatest extent possible, the economic, business and
other purposes of the void or unenforceable provision.
20. Entire Agreement. This Agreement constitutes the entire agreement of
the parties hereto with respect to the subject matter hereof and supersedes all
prior agreements and undertakings, both written and oral, among the Company, the
Stockholders, the Purchaser and the Escrow Agent with respect to the subject
matter hereof.
21. No Third Party Beneficiaries. This Agreement is for the sole benefit
of the parties hereto and their permitted assigns and nothing herein, express or
implied, is intended to or shall confer upon any other person or entity any
legal or equitable right, benefit or remedy of any nature whatsoever under
or by reason of this Agreement.
22. Headings. The descriptive headings contained in this Agreement are
included for convenience of reference only and shall not affect in any way the
meaning or interpretation of this Agreement.
23. Counterparts. This Agreement may be executed in any number of
counterparts, each of which will be an original as regards any party whose
signature appears thereon and all of which together will constitute one and the
same instrument. This Agreement will become binding when one or more
counterparts hereof, individually or taken together, will bear the signatures of
all the parties reflected hereon as signatories.
24. Force Majeure. In the event that the Escrow Agent is unable to perform
its obligations under the terms of this Agreement because of acts of God,
strikes, equipment or transmission failure or damage reasonably beyond its
control, or other cause reasonably beyond its control, the Escrow Agent shall
not be liable for damages to the other parties for any unforeseeable damages
resulting from such failure to perform or otherwise from such causes.
[Remainder of this Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties hereto have caused this Escrow Agreement to
be executed as of the date first written above, in the case of the Company, the
Purchaser and the Escrow Agent, by their respective officers thereunto duly
authorized.
ONEIDA LTD.
By:/s/ XXXXX X. XXXXXXX
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice
President
DELCO INTERNATIONAL LTD. (INC.)
By:/s/ XXXXXX XXXXXX
Name: Xxxxxx Xxxxxx
Title: President
/s/ PERRY DELAMN
Xxxxx Xxxxxx
/s/ XXXXXX XXXXXX
Xxxxxx Xxxxxx
/s/ XXXXX XXXXXX
Xxxxx Xxxxxx
/s/ XXXXXXX XXXXXXXXX
Xxxxxxx Xxxxxxxxx
/s/ XXXXXX XXXXXX
Xxxxxx Xxxxxx
THE CHASE MANHATTAN BANK N.A.
By: /s/ XXXXXX XXXXXXX
Name: Xxxxxx XxXxxxx
Title: Assistant Vice President
SCHEDULE A
FEES OF THE ESCROW AGENT
15 basis points of the highest value of collateral held on deposit per annum or
any part thereof without proration for partial years, subject to a minimum of
$7,500 per annum or any part thereof without proration for partial years,
(includes investment in a Chase Manhattan Bank Money Market Account, Chase
Manhattan Bank Deposit Account or The Chase Manhattan Bank Mutual Fund known as
the Vista Fund).
$75 per investment (excludes Money Market, Deposit Account or Vista Fund
investments).
SCHEDULE B
PERSONS AUTHORIZED TO CONFIRM WIRE TRANSFER INSTRUCTIONS
Authorized representatives of the Purchaser:
1. Xxxxxxxxx X. Xxxxxxxxx, Esq.
General Counsel
Oneida Ltd.
000-000 Xxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000; or
2. Xxxxxx X. Xxxxxxxxx, Esq.
Senior Corporate Attorney and Assistant Secretary
Oneida Ltd.
000-000 Xxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Authorized representatives of the Stockholder Representative:
1. Xxxxxx Xxxxxx
000 Xxxxxxx Xxxx
Xxxxx Xxxx, XX 00000
Telephone: (000) 000-0000; or
2. Xxxxxxx Xxxxxxxx, Esq.
Salon, Marrow, Xxxxxxx & Xxxxxx, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
