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EXHIBIT 10.24
TERMINATION AGREEMENT AND RELEASE
This Termination Agreement and Release (this "Agreement") is made and
entered into as of the date set forth on the signature page, but is effective as
of March 26, 2001, by and between CrossPoint Foods Corporation, f/k/a Glacier
Corporation, a Delaware corporation (the "Company"), Glacier Distribution
Company, a Colorado corporation ("Glacier Distribution") and all subsidiaries of
the Company and Glacier Distribution (collectively, Glacier Distribution and all
subsidiaries of the Company and Glacier Distribution are referred to herein as
the "Subsidiaries") and Xxxxxx X. Xxxxx ("Xxxxx").
1. Cessation of Employment. Oblas and the Company agree that, effective
as of March 26, 2001, the Company's (and any of its Subsidiaries') employment of
Oblas is ceased and Oblas resigns from any and all positions as an officer of
the Company and any of its Subsidiaries. Furthermore, Oblas confirms that he has
resigned as a member of the Board of Directors of the Company and the Board of
Directors of all of the Subsidiaries effective March 26, 2001.
2. Full Payment. Oblas acknowledges and agrees that on or before the
date of his execution hereof, the Company provided Oblas a final paycheck for
any and all wages, salary, bonuses of any type orvariety , reimbursable
expenses, accrued vacation and sick pay and any other similar payments due to
Oblas from the Company and its Subsidiaries as of the date of this Agreement. By
signing below, Oblas acknowledges that neither the Company nor the Subsidiaries
owes Oblas any other amounts except as provided in Section 3 below.
3. Severance Package. As a full and complete severance package (the
"Severance Package") and in order to induce Oblas to enter into the Release (as
defined below):
a. The Company shall pay to Oblas twelve (12) severance payments
of $11,250 per month payable on or before the 15th of each month
commencing April 15, 2001 and running through March 15, 2002
(inclusive); and;
x. Xxxxx and his family shall continue to be covered under the
Company's medical insurance up to July 1, 2001. The Company has given
Oblas written notice of his rights to continuation of insurance
coverage after July 1, 2001 under the provisions of the Consolidated
Omnibus Budget Reconciliation Act of 1986 ("COBRA"). Oblas shall be
responsible for the full cost of continued coverage after July 1, 2001
in accordance with the provisions of COBRA.
4. Options/Warrants Extinguished. Oblas acknowledges and agrees that
any and all options or warrants to purchase the Company's or its Subsidiaries'
securities issued by the Company or its Subsidiaries to Oblas at any time during
his employment are extinguished and shall be null and void from and after the
date hereof.
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5. Donation to Capital.
x. Xxxxx agrees that on the execution of this Agreement he shall
convey, transfer and assign to the Company 800,000 shares of the
Company's common stock, determined on a pre-split basis as if such
donation to capital had occurred on March 26, 2001. Such conveyance
shall be a donation to the capital of the Company at no cost to the
Company and shall be made by Oblas in partial consideration of the
Company making payments pursuant to the Severance Package and entering
into this Agreement.
x. Xxxxx further agrees that if, as a result of a requirement of
any regulatory agency or self-regulatory organization, the number of
shares of the Company's common stock beneficially owned by Oblas must
be reduced below 5% of the Company's outstanding common stock, Oblas
agrees to sell to the Company at a price of $1.00 per post-split share
that number of shares of the Company's common stock owned by Oblas that
will reduce Oblas' holdings of the Company's common stock to a level
(but not less than 4.99%) required by such regulatory agency or
self-regulatory organization. The Company agrees to provide Oblas
and/or his counsel with copies of any correspondence from any
regulatory agencies or self-regulatory organizations requesting that
Oblas' holdings of the Company's common stock be reduced.
Subject to the provisions of Paragraph 5(d) below, Oblas
agrees that all the shares of Common Stock owned by him, after taking
into account the donation to capital described in Paragraph 5(a) above
and any reduction necessitated pursuant to Paragraph 5(b) above, shall
be placed in an escrow account with Xxxxx Fargo Bank West, National
Association, and shall be held in such escrow account pursuant to the
terms of an escrow agreement among the Company, Oblas and the Escrow
Agent, a copy of which is attached hereto as Exhibit A. The terms and
provisions of the Escrow Agreement are incorporated herein by
reference.
d. Upon the execution of this Agreement, Oblas shall also
execute and deliver to the Company the lock-up agreement attached
hereto as Exhibit B, the terms and provisions of which are incorporated
herein by reference. Oblas hereby authorizes the Company to instruct
the Company's transfer agent on his behalf to place a restrictive
legend on all of the certificates representing common stock of the
Company beneficially owned by Oblas that describes the lock-up
agreement entered into with the Company's underwriter and the Company.
6. Release of Lien. The Company agrees that at such time as it
completes its proposed initial public offering or a private financing with gross
proceeds of at least $7 million, the Company shall repay the bridge loan from
Regatta Capital as soon as practicable after such offering and take such steps
as may be reasonably necessary to obtain a release of the lien on Oblas'
residence securing the Regatta Capital loan.
7. No Dissenters' Rights. Oblas acknowledges and agrees that in the
event he is legally entitled to exercise dissenters' or appraisal rights under
applicable law in connection with the Company undertaking a reverse stock split
and/or reincorporating in the State of Delaware, Oblas will not, and hereby
waives the right to, exercise such dissenters' appraisal or other rights
substantially equivalent thereto.
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8. Release of Claims.
x. Xxxxx, on his own behalf and on behalf of any present and
future spouse, heirs, estate, successors and assigns, hereby
irrevocably, fully, finally and forever releases and discharges the
Company and any parent, Subsidiary, affiliated or related companies and
their respective officers, directors, employees, agents, attorneys,
insurers and representatives (the "Released Parties") from and against
any and all claims, demands, obligations, responsibilities and causes
of actions of any kind or nature whatsoever, whether statutory, tort,
contract or any other theory of recovery, in law or equity, and whether
now known or unknown, which Oblas now has, ever had or in the future
may have accruing on or at any time prior to the date hereof, based on
or in any way relating to Oblas' employment with the Company or the
termination of that employment (the "Release").
b. Specifically, the Release includes, but is not limited to, any
and all claims of Oblas:
i. arising under any contact, expressed or implied,
written or oral;
ii. for wrongful dismissal or termination of employment;
iii. relating to back wages, salary, overtime, bonuses,
commission, reinstatement, insurance coverage, benefits, premiums,
medical expenses, business expenses, or other employee compensation
or benefits;
iv. arising under any applicable federal, state, local or
foreign statute, law, order, ordinance, regulation or the like, or
case law, that relate to employment or employment practices,
including those that prohibit discrimination based upon age, race,
color, religion, sex, national origin, handicap, disability or any
other protected characteristic or unlawful basis, including, but not
limited to, any claim under the Age Discrimination in Employment Act
of 1967 (as amended by the Older Worker's Benefit Protection Act of
1990), the Civil Rights Act of 1964, the Civil Rights Act of 1991,
the Equal Pay Act of 1963, the Fair Labor Standards Act, the
National Labor Relations Act, the Post-Civil War Reconstruction
Acts, Section 1981 of the Civil Rights Acts of 1866 and 1871, the
Vietnam Era Veterans Readjustment Assistance Act, the Family Medical
Leave Act of 1993, Employee Retirement Income Security Act of 1990,
the Americans with Disabilities Act of 1992 (each of such Acts, as
amended), and any similar statutes, laws, orders, ordinances,
regulations or the like, or case law, of the State of Colorado, or
any political subdivision thereof, including, but not limited to the
Colorado Anti-Discrimination Act of 1957, as amended, C.R.S.
Sections 00-00-000 et seq.;
v. arising under or based upon any other federal, state,
local or foreign statute, law, order, rule, regulation, ordinance on
the like, or case law;
vi. relating to wrongful or retaliatory discharge,
breach of contract, harassment, tortuous or harassing conduct,
breach of public policy, infliction of emotional or mental injury or
distress, physical or mental injury, pain and suffering,
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negligent and intentional torts fraud, misrepresentation,
defamation, libel, slander, interference with contract, breach of
fiduciary duty or any other theory of recovery by Oblas as an
employee or concerning compensation, wages, hours or terms or
conditions; and
vii. any and all claims for damages, including without
limitation, exemplary, punitive or compensatory damages, or for
attorney's fees, expenses, costs, wages, and injunctive or equitable
relief.
c. This Release shall not apply to and shall not release or waive
any rights or claims that Oblas (or the Company) may have relating to
the following: (i) this Agreement; (ii) any confidentiality,
non-competition or proprietary rights agreement or the like between
Oblas and the Company; (iii) any claims for accrued or vested benefits
under the provisions of any pension or employee welfare plan maintained
by the Company; (iv) any rights that Oblas may have as a stockholder of
the Company, subject to the proviso that any such rights shall be
limited to those which Oblas has relating to the Common Stock owned by
him after giving effect to all the terms and conditions of this
Agreement, or (v) indemnification (whether pursuant to applicable
provisions in the Articles of Incorporation or Bylaws of the Company,
or otherwise) in any actions in which Oblas is made a party or held
liable as a result of services he performed for the Company that was
within the scope of his duties and responsibilities and covered by such
indemnification requirements; and
x. Xxxxx understands that this Release covers claims which Oblas
knows about and those Oblas may not know about. Oblas expressly waives
all rights under applicable law to such unknown claims even if, had
such claims been known to Oblas at the time of this Agreement, would
have materially affected the terms of this settlement and release with
the Company.
9. Covenant Not to Xxx. Xxxxx represents, warrants and covenants to the
Company that Oblas has not and will not, directly or indirectly, file or
commence any complaint, claim, action, suit, proceeding or arbitration of any
kind against any Released Party except as to the express exclusions described in
Section 8(c) above with any federal, state, local or foreign, court, arbitrator
or administrative, regulatory governmental agency, body or authority, and that
he has not assigned or otherwise transferred, and will not assign or otherwise
transfer, by way of subrogation or otherwise, any right to any other person to
assert any claims of any kind against the Company or any other Released Party.
10. Non-Admission. This Agreement and/or any payments made hereunder
are not intended to be, shall not be construed as, and are not an admission or
confession by any Released Party or Oblas of any wrongdoing or illegal or
actionable acts or omissions. This Agreement shall not be admissible evidence in
any judicial, administrative or any other legal proceeding, except solely in
connection with construction of the terms of the Agreement and its enforcement.
Oblas hereby represents and agrees that he shall not directly or indirectly
make, and shall not authorize any person to make (i) any written or oral
statements, suggestions, or representation of any Released Party has made or
implied any such admission or confession; or (ii) any written or oral negative,
disparaging or adverse statements, suggestions and representation of or
concerning any Released Party.
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11. Confidential Information.
x. Xxxxx hereby acknowledges that during his employment he had
access to trade secrets and proprietary, private and/or otherwise
confidential information concerning or relating to the Company and its
Subsidiaries, including its assets, properties, business, affairs,
condition (financial or otherwise), operations, prospects, projections,
market studies, marketing materials, intellectual property, customers,
suppliers, lenders, proposals, strategic partners, employees,
consultants, representation, business plans, strategies, methods,
processes and the like ("Confidential Information").
x. Xxxxx hereby represents, warrants and agrees that he (i)
has returned to the Company and its Subsidiaries all corporate property
and equipment, and has returned to the Company, and has not retained
any copies of, all documents, records or materials of any kind, whether
written or electronically created or stored, in his possession which
contain, relate to or refer to any Confidential Information; and (ii)
Oblas shall keep strictly confidential and shall not directly or
indirectly disclose, communicate or otherwise reveal any Confidential
Information in any manner to any person except as required by law.
c. In the event that Oblas receives a subpoena or any other
written or oral request by any court or governmental authority
requesting the disclosure of any Confidential Information, or any other
information concerning the Company or any Released Party, Oblas shall,
within five (5) business days from his actual notice of the service of
such subpoena or other request, notify the Company in writing, and
provide a copy to the Company of such subpoena or other request if in
writing, and/or disclose the nature of the request for information if
oral.
12. Reasonable Cooperation. Oblas will comply with all reasonable
requests from the Company and/or its Subsidiaries for assistance and/or
information in connection with any matters and/or issues relating to or
encompassed within the duties and responsibilities of Oblas' employment with the
Company including, without limitation, consulting with the Company's employees
and attorneys with respect to, and/or appearing as a witness in, any dispute,
controversy, action or proceeding involving the Company. The Company agrees to
promptly reimburse Oblas for all expenses incurred in connection with compliance
with his obligations under this paragraph except attorney's fees incurred by
Oblas (unless such attorney's fees are subject to indemnification by the
Company).
13. The Company acknowledges and agrees that this Agreement shall
constitute a waiver and relinquishment of any right, power or claim of any kind
or nature that the Company has against Oblas; provided, however, that if the
Company receives or is the subject of any third party claim by any stockholder,
customer, supplier, governmental agency, self regulatory organization or other
non-officer or non-director of the Company, the Company shall have the right to
seek recovery against Oblas for any claims, damages, fines, expenses, penalties,
assessments, or similar charges that arise out of or are related to any activity
of Oblas during the course and scope of his employment.
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14. Voluntary Counsel and Act. Oblas acknowledges and agrees that he
has had an adequate opportunity and reasonable time to review this Agreement and
its terms. Oblas understands all of the terms of this Agreement, and agrees that
such terms are fair, reasonable and not the result of any fraud, duress,
coercion, pressure or undue influence exercised by or on behalf of any Released
Parties. Oblas has agreed to enter into this Agreement and all the terms hereof
knowingly, freely and voluntarily. Oblas has been encouraged to and has been
represented and advised by independent counsel representing his independent
interests. Oblas understands and acknowledges that he has not been represented
by counsel to the Company and that such counsel cannot advise him with respect
to any matter addressed herein.
15. Consideration and Revocation Periods. By executing this Release,
Oblas acknowledges: (i) Oblas was offered a minimum of 21 days to review this
Release and to consider whether to sign this Release and has waived such period;
(ii) Oblas has been advised that he has seven (7) days following execution of
this Agreement to revoke this Agreement (the "Revocation Period") and which
revocation must be in writing and delivered to the Company at its principal
executive offices (attention: the President) either in person or by mail within
such 7 day period. Notwithstanding anything to the contrary contained herein,
this Agreement shall not be effective or enforceable, and the Severance Package
shall not be payable and shall not be delivered or paid by the Company, until
the Revocation Period has expired without Oblas revoking this Agreement.
16. General Provisions.
a. Governing Law and Consent to Jurisdiction. This Agreement
shall be governed by, and construed and interpreted in accordance with,
the laws of the State of Colorado. Any action or proceeding in
connection with this Agreement may be brought in any state or federal
court in the State of Colorado. Oblas hereby irrevocably submits to the
non-exclusive jurisdiction of such courts and waives any objections he
may now or hereafter have as to the venue of any such action or
proceeding brought in any such court, or that any such court is an
inconvenient forum.
b. Severability. In the event that any provision of this Agreement
is adjudicated to be illegal, invalid or unenforceable, such provision
shall be construed so as to give it the maximum effect permitted under
applicable law, or, in the event such provision would otherwise render
this Agreement illegal, invalid or unenforceable, such provision shall
be considered stricken from this Agreement as if it had never been
included herein and the remainder of this Agreement shall remain in
full force and effect.
c. Entire Agreement; Amendment. This Agreement constitutes the
entire Agreement and understanding among the parties hereto with
respect to the subject matter hereof, and supersedes all prior and
contemporaneous negotiations, discussions, understandings,
arrangements, representations, warranties, agreements and
understandings whether written or oral. This Agreement may not be
amended or modified except in a writing signed by all parties hereto.
d. Successors and Assigns. This Agreement shall be binding
upon each party hereto and, as applicable, his or its respective
spouse, heirs, executors, administrators, representatives, successors
and permitted assigns. No party hereto shall have the right to
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assign this Agreement or any of his or its obligations or rights
hereunder without the prior written consent of all other parties
hereto.
e. Counterpart. This Agreement may be executed in one or more
counterparts, including counterparts executed by less than all parties
hereto, each of which shall be deemed to be original, but all of which
shall together constitute one in the same instruments.
f. Pronouns. The number and gender of each pronoun used in this
Agreement and the term "person" or "persons" or the like shall be
construed to mean both the number and gender of the individual,
corporation, limited liability, partnership, firm, trust, agency,
government authority and other entity as the context, circumstance or
its antecedent may require.
g. Headings. The headings used in this Agreement are solely for
convenience of reference and shall be given no effect in the
construction or in the interpretation of this Agreement.
h. Specific Performance. The parties hereto acknowledge and agree
that the transactions contemplated by this agreement are unique in that
remedies of law for any breach or threatened breach of this Agreement
would be an inadequate remedy for any loss, and that any defense in any
action for specific performance that a remedy at law would be adequate
is hereby specifically waived. Accordingly, in the event of any actual
or threatened breach of any of the terms of this Agreement, the
non-breaching party shall have the right of specific performance and
injunctive relief given affect to its right under this Agreement, in
addition to any and all of the rights and remedies, at law or in
equity, and also its rights and remedies are cumulative.
i. Dispute. In the event of any dispute to enforce this Agreement,
the prevailing party will be entitled to receive from the
non-prevailing party its reasonable costs (including, without
limitation, attorneys' fees, costs, expert costs, etc.) in connection
with such dispute.
x. Xxxxx acknowledges that the Company will be filing a copy of
this Agreement with the United States Securities and Exchange
Commission as an exhibit to its registration statement on Form S-1, as
amended.
THIS TERMINATION AGREEMENT AND RELEASE IS A LEALLY BINDING DOCUMENT
WITH IMPORTANT LEGAL CONSEQUENCES, INCLUDING A RELEASE OF ALL CLAIMS, KNOWING
AND UNKNOWING. YOU ARE ENTITLED TO A PERIOD OF AT LEAST TWENTY-ONE CALENDAR DAYS
IN WHICH TO REVIEW AND CONSIDER THIS DOCUMENT BEFORE SIGNING IT. YOU ALSO HAVE
THE RIGHT TO REVOKE THIS AGREEMENT WITHIN SEVEN (7) CALENDAR DAYS AFTER SIGNING
IT, BY DELIVERING A WRITTEN NOTICE OF REVOCATION TO CROSSPOINT FOODS CORPORATION
AT ITS OFFICES LOCATED AT 0000 XXXXXXXXXXX XXXXXX, XXXXX 000, XXXXXX, XXXXXXXX
00000, ATTENTION: PRESIDENT, WITHIN SUCH SEVEN (7) DAY PERIOD. YOU ARE STRONGLY
ENCOURAGED TO CONSULT WITH YOUR OWN ATTORNEY BEFORE SIGNING THIS DOCUMENT. BY
SIGNING BELOW, YOU ACKNOWLEDGE THAT YOU HAVE READ, FULLY UNDERSTAND AND AGREE TO
ALL OF THE PROVISIONS CONTAINED IN THIS TERMINATION AGREEMENT AND RELEASE.
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[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Termination Agreement and Release as of the date set forth below.
CROSSPOINT FOODS CORPORATION
f/k/a GLACIER CORPORATION, on
behalf of itself and on behalf of each of its
Subsidiaries:
Dated: ______________________ By: _____________________________
Its: _____________________________
GLACIER DISTRIBUTION COMPANY
on behalf of itself and each of its
Subsidiaries:
Dated: ______________________ By: _____________________________
Its: _____________________________
OBLAS:
Dated: ______________________ ___________________________________
Xxxxxx X. Xxxxx
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EXHIBIT A
ESCROW AGREEMENT
ESCROW AGREEMENT, dated and entered into as of the 14th day of May,
2001, by and among CrossPoint Foods Corporation, formerly known as Glacier
Corporation ("CrossPoint Foods") a Delaware corporation with its principal place
of business in Denver, Colorado, XXXXXX X. XXXXX ("Oblas"), an individual whose
address is 0000 X. Xxxxxxxxxxx Xxxxxxx, Xxxxxx, Xxxxxxxx 00000, and Xxxxx Fargo
Bank West, National Association ("Escrow Agent"), with a principal place of
business in Denver Colorado.
WHEREAS, Oblas holds approximately 755,556 shares of common stock of
CrossPoint Foods; and
WHEREAS, a Termination Agreement and Release (the "Termination
Agreement") dated March 26, 2001 between CrossPoint Foods and Oblas provides for
execution and delivery of this Escrow Agreement; and
WHEREAS, CrossPoint Foods has informed Oblas that CrossPoint Foods will
not enter into the Termination Agreement unless Oblas agrees to place all shares
of CrossPoint Foods owned by him into escrow and to enter into an escrow
agreement on the terms provided herein, the execution, delivery and fulfillment
of this Escrow Agreement being a material inducement to CrossPoint Foods to
enter into the Termination Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
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1. General. This Escrow Agreement is being executed and delivered
pursuant to Section 5(c) of the Termination Agreement and is the Escrow
Agreement referred to therein and attached as Exhibit A to the Termination
Agreement. The provisions of this Escrow Agreement shall not be construed so as
to diminish or increase the obligations of the parties under the Termination
Agreement, and the other agreements, certificates and instruments provided for
or contemplated therein, except to the extent expressly provided herein.
2. Amount Escrowed. Pursuant to the Termination Agreement, Oblas agrees
that all the shares of common stock of CrossPoint Foods owned by Oblas, after
taking into account the donation to capital described in Paragraph 5(a) of the
Termination Agreement and any reduction necessitated pursuant to Paragraph 5(b)
of the Termination Agreement ("Common Stock"), shall be deposited with the
Escrow Agent.
3. Release of Escrow. The escrow period ("Escrow Period") shall begin
on the effective date of this Agreement and shall terminate on the earlier of
(i) 12 months from the effective date of CrossPoint Food's initial public
offering or (ii) July 31, 2002, unless prior to such date there shall be
delivered to the Escrow Agent a certificate signed by the President of
CrossPoint Foods or its successors or assigns stating that there exists a claim
against CrossPoint Foods or its successor in connection with Oblas' activity as
an employee of Crosspoint Foods, its predecessor, or any subsidiaries of
Crosspoint Foods, initiated by a third party, including not limited to, a
stockholder, customer, or supplier of CrossPoint or its successor; a government
agency; or any other non-officer or non-director of CrossPoint Foods ("Claim
Certificate"). CrossPoint Foods shall concurrently deliver to Oblas a copy of
the Claim Certificate. The Escrow Period shall continue until the claim set
forth in the Claim Certificate is settled to the
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satisfaction of CrossPoint Foods. The Escrow Agent shall upon receipt of written
instructions from CrossPoint Foods, release all Common Stock as therein
directed.
If no agreement between CrossPoint Foods and Oblas regarding the
release of the Escrow after the delivery of a Claim Notice can be reached after
good faith negotiation, either CrossPoint Foods or Oblas may demand arbitration
of the matter unless the amount of the damage or loss is at issue in pending
litigation with a third party, in which event arbitration shall not be commenced
until such amount is ascertained or both parties agree to arbitration; and, in
either such event, the matter shall be settled by arbitration conducted by a
single, mutually agreed upon arbitrator. If the parties fail to agree upon an
arbitrator within 10 days after arbitration is demanded, the arbitrator(s) shall
be chosen in accordance with the Commercial Arbitration Rules of the American
Arbitration Association. The decision of the arbitrator so selected as to the
validity and amount of any damages from a claim set forth in a Claim Notice may
be appealed by either party within forty-five (45) days from the date of the
arbitrator's decision. In such case, the appealing party shall provide written
notice of the appeal to the other parties hereto in accordance with Section 4 of
this Escrow Agreement. The decision of the arbitrator, if no appeal has been
duly filed, or the court, in the case of an appeal, shall be binding and
conclusive upon the CrossPoint Foods and Oblas, and notwithstanding anything in
Section 3 of this Escrow Agreement, the Escrow Agent shall be entitled to act in
accordance with such decision or court order, as applicable, and make or
withhold delivery of Common Stock out of the Escrow Fund in accordance
therewith. Such arbitration shall be conducted in the Denver, Colorado
metropolitan area.
For purposes of this Agreement, any recovery against the Escrow Fund
shall be for all costs, expenses, awards, penalties or damages that are incurred
by CrossPoint Foods for the reasons described in this paragraph 3. The parties
agree that the Common Stock in the Escrow Fund shall be valued at the average of
the closing bid price of CrossPoint Foods' common stock during the ten trading
days immediately preceding the parties agreement on the amount of a claim set
forth in a Claim Notice or upon entry of an award by the arbitrator in an
arbitration proceeding.
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CrossPoint Foods and Oblas shall each pay half of the fees of the
arbitrator and the administrative fee of the American Arbitration Association
and shall pay its own expenses, including attorneys' fees and costs.
4. Notices. Unless written notice of a different address has been given
to each of the other parties hereto in the following manner, any and all notices
and other documents required or permitted to be given under this Escrow
Agreement shall be deemed to have been properly delivered if in writing and
delivered in hand or mailed by registered or certified mail, postage prepaid and
addressed as follows:
To CrossPoint Foods: CrossPoint Foods Corporation
0000 Xxxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
With a copy to: Xxxxxx X. Xxxxxx, Esq.
Berliner Xxxxxx Xxxxxx & Xxxxxxxx, P.C.
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
To Oblas: Xxxxxx X. Xxxxx
0000 X. Xxxxxxxxxxx Xxxxxxx
Xxxxxx, Xxxxxxxx 00000
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To Escrow Agent: Xxxxx Fargo Bank West, National Association
Corporate Trust and Escrow Services
0000 Xxxxxxxx, XXX X0000-000
Xxxxxx, Xxxxxxxx 00000
Copies of all notices given to any party hereto shall be given to each other
party hereto and to their respective legal counsel (as set forth above).
5. Escrow Agent.
A. Authorization. CrossPoint shall execute and deliver to the
Escrow Agent a certificate of incumbency substantially in the form of Exhibit A
hereto for the purpose of establishing the identity of the representatives of
CrossPoint Foods entitled to issue instructions or directions to the Escrow
Agent on behalf of CrossPoint Foods. In the event of any change in the identity
of such representatives, a new certificate of incumbency shall be executed and
delivered to the Escrow Agent by CrossPoint. Until such time as the Escrow Agent
shall receive a new incumbency certificate, the Escrow Agent shall be fully
protected in relying without inquiry on CrossPoint's then current incumbency
certificate on file with the Escrow Agent. Oblas, or Oblas's personal
representative following receipt of evidence reasonably satisfactory to Escrow
Agent of such person representative's due appointment, shall be the only persons
entitled to issue instructions or directions to the Escrow Agent on behalf of
Oblas.
CrossPoint and Oblas shall each furnish the Escrow Agent with
a completed Form W-9, as applicable.
B. Concerning the Escrow Agent.
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(1) Compensation of the Escrow Agent. CrossPoint
and Oblas agree, jointly and severally, to pay the Escrow
Agent:
(a) Its fee for all services rendered by
it under this Agreement set forth in Exhibit B
incorporated herein by reference; and
(b) Reasonable compensation for services
rendered in connection with this Agreement but not
expressly provided for herein and reimbursement for
those expenses incurred by the Escrow Agent in
rendering such services, including, but not limited
to court costs and attorney's fees incurred as a
result of any dispute arising out of the Agreement,
unless such expenses shall have been finally
adjudicated to have resulted from the bad faith or
gross negligence of the Escrow Agent.
The Escrow Agent shall have a first and prior lien
upon the Escrow Fund to secure the payments described under
paragraphs (a) and (b) of this Section 5.B(1). If any such
payment is not timely received by the Escrow Agent, CrossPoint
Foods and Oblas authorize the Escrow Agent to deduct such
payment from the Escrow Fund. All such payments due but not
paid within 30 days shall accrue interest at a rate of 19
percent per annum.
(2) Other Provisions Concerning Escrow Agent.
(a) Authority of Parties. The Escrow
Agent shall be under no duty or obligation to
ascertain the identity, authority, and/or rights of
the parties or their agents, except as set forth in
Section 5.A hereof
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(b) Other Agreements. The Escrow Agent shall
not be a party to, or be bound by, any agreement
between the parties other than this Escrow Agreement
whether or not a copy and/or original of such
agreement is held as escrowed property; and the
Escrow Agent shall have no duty to know or inquire as
to the performance or nonperformance of any provision
of any such agreement between the parties thereto.
(c) Deposited Instruments and/or Funds. The
Escrow Agent assumes no responsibility for the
validity or sufficiency of any instrument held as
escrowed property, except as expressly and
specifically set forth in this Escrow Agreement.
(d) Late Payments or Performance. The Escrow
Agent may accept any payment or performance required
under this Agreement after the date such payment or
performance is due, unless subsequent to such date,
but prior to the actual date of payment or
performance, the Escrow Agent is instructed in
writing by CrossPoint Foods and Oblas not to accept
such payment or performance.
(e) Escheat. CrossPoint Foods and Oblas are
aware that under Colorado law, escrowed property
which is presumed abandoned may escheat to the State.
The Escrow Agent shall have no liability to
CrossPoint Foods, Oblas, their respective heirs,
legal representatives, successors and assigns, should
any or all of the Escrow Fund become escheatable or
escheat by operation of law.
7
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(f) Non-Liability. The Escrow Agent shall
not be liable for any act or omission while acting in
good faith and in the exercise of its own best
judgment. Any act or omission by the Escrow Agent
pursuant to the advice of its attorneys shall be
conclusive evidence of such good faith. The Escrow
Agent shall have the right to consult with counsel at
the expense of CrossPoint Foods and Oblas whenever
any question arises concerning the Agreement and
shall incur no liability for any delay reasonably
required to obtain such advice of counsel. The Escrow
Agent shall not be liable for the alteration,
modification or elimination of any right permitted or
given under the instructions set forth in this
Agreement and/or in any document deposited under this
Escrow Agreement pursuant to any Statute of
Limitations or by reason of laches. The Escrow Agent
shall have no further responsibility or liability
whatsoever to either CrossPoint Foods or Oblas
following a complete distribution of the Escrow Fund
pursuant to this Escrow Agreement. The Escrow Agent
shall not incur any liability with respect to any act
or omission in reliance upon any document, including
any written notice or instruction provided for in the
Escrow Agreement. In performing its obligations
hereunder, the Escrow Agent shall be entitled to
presume, without inquiry, the due execution, validity
and effectiveness of all documents it receives, and
also the truth and accuracy of any information
contained therein. The Escrow
8
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Agent shall not be responsible or liable for any
diminution of principal of the Escrow Fund or any
interest penalty, whatsoever, for any reason.
(g) Indemnification. CrossPoint Foods and
Oblas agree, jointly and severally, to indemnify and
hold harmless the Escrow Agent from any liability,
cost or expense whatsoever, including, but not
limited to, attorney's fees incurred by reason of
accepting this Escrow Agreement and/or the Escrow
Fund, unless any such liability, cost or expense
shall have been finally adjudicated to have resulted
from the bad faith or gross negligence of the Escrow
Agent.
(h) Disagreements. If any disagreement or
dispute arises between the parties to this Agreement
concerning the meaning or validity of any provision
hereunder or concerning any other matter relating to
this Agreement, the Escrow Agent:
(x) Shall be under no obligation to
act, except under process or order of
court, or until it has been adequately
indemnified to its full satisfaction,
and shall sustain no liability for its
failure to act pending such process,
court order or indemnification; and
(y) May, in its sole and absolute
discretion, interplead the Escrow Fund
or that portion of the Escrow Fund it
then holds with the District Court of
the City and County of Denver, State of
Colorado, and name the Parties
9
19
in such interpleader action. Upon filing
the interpleader action, the Escrow
Agent shall be relieved of all liability
as to the Escrow Fund and shall be
entitled to recover from the parties its
reasonable attorneys' fees and other
costs incurred in commencing and
maintaining such action. The parties by
signing this Agreement submit themselves
to the jurisdiction of such court and do
appoint the Clerk of such Court as their
agent for the service of all process in
connection with such proceedings. In no
event shall the institution of such
interpleader action impair the rights of
the Escrow Agent described in
Section 5(C) of this Agreement.
(i) Attachment of Escrow Fund; Compliance
with Legal Orders. In the event that the Escrow Fund
shall be attached, garnished or levied upon by any
court order, or the delivery thereof shall be stayed
or enjoined by an order of a court, or any order,
judgment or decree shall be made or entered by any
court order affecting the property deposited under
this Escrow Agreement, the Escrow Agent is hereby
expressly authorized, in its sole discretion, to obey
and comply with all writs, orders or decrees so
entered or issued, which it is advised by legal
counsel of its own choosing is binding upon it,
whether with or without jurisdiction, and in the
event that the Escrow Agent obeys or complies with
any such writ,
10
20
order or decree it shall not be liable to CrossPoint
Foods or Oblas or to any other person, firm or
corporation, by reason of such compliance
notwithstanding such writ, order or decree be
subsequently reversed, modified, annulled, set aside
or vacated.
(j) Tax Matters.
(x) Reporting of Income. The Escrow
Agent shall report to the Internal Revenue
Service, as of each calendar year-end, and
to Oblas, all income earned from any sum
held in the Escrow Fund against Oblas, as
and to the extent required under the
provisions of the Internal Revenue Code of
1986,as amended, and the regulations
promulgated thereunder (the "Code").
(y) Preparation and Filing of Tax
Returns. Oblas is required to prepare and
file any and all income or other tax returns
applicable to the Escrow Fund with the
Internal Revenue Service and all required
state and local departments of revenue in
all years income is earned in any particular
tax year as and to the extent required under
the provisions of the Code.
(z) Unrelated Transactions. The
Escrow Agent shall have no responsibility
for the preparation and/or filing of any tax
or information return with respect to any
transaction, whether or not related to this
Agreement, which occurs outside the Escrow
Fund.
11
21
(k) Resignation or Removal of Escrow Agent. The
Escrow Agent may resign as such following the giving of thirty
(30) days prior written notice to the other parties hereto.
Similarly, the Escrow Agent may be removed and replaced
following the giving of thirty (30) days prior written notice
to the Escrow Agent by the other parties hereto. In either
event, the duties of the Escrow Agent shall terminate (30)
days after receipt of such notice (or as of such earlier date
as may be mutually agreeable); and the Escrow Agent shall then
deliver the balance of the moneys or assets then in its
possession to a successor escrow agent as shall be appointed
by the other parties hereto as evidenced by a written notice
filed with the Escrow Agent. CrossPoint Foods and Oblas agree
that [a] a successor escrow agent shall be appointed by
CrossPoint Foods with Oblas's consent, which consent shall not
be unreasonably withheld or delayed, and [b] any successor
escrow agent shall be a national banking association having a
combined capital and surplus of not less than $100 million.
If the other parties hereto have failed to appoint a
successor escrow agent as provided herein prior to the
expiration of thirty (30) days following receipt of the notice
of resignation or removal, the Escrow Agent may appoint a
successor or petition any court of competent jurisdiction for
the appointment of a successor escrow agent or for other
appropriate relief, and any such resulting appointment shall
be binding upon all of the parties hereto.
6. Governing Law. This Escrow Agreement shall be governed by and
construed in accordance with the laws of the State of Colorado applicable to
agreements made therein
12
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7. Assignment. This Escrow Agreement and all actions taken
hereunder in accordance with its terms shall be binding upon and inure to the
benefit of the parties hereto, and their respective successors and assigns
except that this Escrow Agreement may not be assigned by Escrow Agent.
8. Appointment. Xxxxx Fargo Bank West, National Association
accepts appointment as Escrow Agent and agrees to be bound by the provisions
hereof.
9. Captions. Captions herein have been inserted solely for
convenience or reference and in no way define, limit or describe the scope or
substance of any provision of this Escrow Agreement.
13
23
IN WITNESS WHEREOF, the parties hereto have signed or caused this
Escrow Agreement to be signed as of the day and year first above written.
XXXXX FARGO BANK WEST, CROSSPOINT FOODS CORPORATION:
NATIONAL ASSOCIATION:
By:____________________________ By:______________________________
Title: ________________________ Title: __________________________
OBLAS:
-------------------------------
Xxxxxx X. Xxxxx
14
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EXHIBIT A
CERTIFICATE OF INCUMBENCY
The undersigned, ____________________, of ______________, hereby
certifies that the following named officers are duly appointed, qualified and
acting in the capacity set forth opposite his/her name, and the following
signature is the true and genuine signature of said officer.
Name Title Signature
------------------ ------------- -----------------------
------------------ ------------- -----------------------
Such officers are hereby authorized to furnish the Escrow Agent with
directions relating to any matter concerning this Escrow Agreement and the funds
and/or property held pursuant thereto.
IN WITNESS WHEREOF, ____________________ has caused this Certificate of
Incumbency to be executed by its officer duly authorized this _____ day of
_______,200__.
[Name of Party]
By _________________________
Name________________________
Title_______________________
15
25
EXHIBIT B
Escrow Agent's Compensation
For its services under this Agreement, Escrow Agent shall receive a fee
of $____ payable upon execution of this Agreement. The Escrow Agent's fees shall
be equally split between CrossPoint and Oblas.
16
26
EXHIBIT B
LOCK-UP AGREEMENT
May 14, 2001
CrossPoint Foods Corporation
0000 Xxxxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Xxxxxxxxx Securities, Inc.
Xxxxx 000
0000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
Xxxxxx X. Xxxxx ("Oblas") understands that Xxxxxxxxx Securities, Inc.
(the "Representative") proposes to enter into an Underwriting Agreement with
CrossPoint Foods Corporation, formerly known as Glacier Corporation (the
"Company") providing for the public offering of shares of common stock of the
Company pursuant to a Registration Statement on Form S-1 (the "Registration
Statement") filed with the Securities and Exchange Commission. All common stock
of the Company registered by the Registration Statement shall be referred to
herein as "Common Stock."
In consideration of the agreement by the Representative to offer and
sell the Common Stock pursuant to the Registration Statement, and of other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and in consideration of the Company entering into the Termination
Agreement and Release to which this Agreement is an exhibit, Oblas agrees that
he will not, directly or indirectly, for a period of 12 months following the
date of the definitive prospectus filed as a part of the Registration Statement,
sell, offer to sell, contract to sell, grant any option for the sale of, grant
any security interest in, pledge, hypothecate, or otherwise sell or dispose of
any of the Company's common stock, or any options or warrants to purchase any
Company's common stock, or any securities exercisable, convertible into or
exchangeable for the Company's common stock, or any interest in such securities
or rights (collectively with all of the foregoing, the "Securities"), owned
directly by Oblas as of the effective date of the Registration Statement
("Effective Date") or with respect to which Oblas has the power of disposition
as of the Effective Date, other than with the prior written consent of the
Representative and the Company. Oblas also agrees and consents to the entry of
stop transfer instructions with the Company's transfer agent and registrar
against the transfer of any of the Securities held by Oblas except in compliance
with the foregoing restrictions. With the Company's consent, the Representative
may in its sole discretion, without notice, release all or any portion of the
Securities subject to this Lock-Up Agreement or any similar agreement executed
by any other security holder and, if the Representative releases any Securities
of any other security holder, the Securities owned by Oblas shall not be
entitled to be
27
CrossPoint Foods Corporation
Xxxxxxxxx Securities, Inc.
Page 2
released from this Lock-Up Agreement, provided, however, that in the event the
Representative agrees to release from lock-up agreements 10% or more of the
shares of common stock of the Company held by the all of the officers of the
Company then, in such event, the Representative agrees to release the same
percentage of the Securities owned by Oblas as is equal to the percentage of the
shares released for all of the officers of the Company. Furthermore, the
Representative may in its sole discretion, without notice, agree with any state
administrator that it will not, for a period of up to 12 months from the
Effective Date, give prior written consent to any release of Securities subject
to this Lock-Up Agreement.
In addition, Oblas agrees that he will not sell, pledge, hypothecate or
otherwise dispose of such Securities pursuant to the exemption afforded by Rule
701 under the Securities Act of 1933, as amended, for a period of 12 months
after the Effective Date without the prior written consent of the
Representative.
Oblas further agrees that he shall not enter into any swap or other
arrangement that transfers all or a portion of the economic consequences
associated with the ownership of any Securities owned by Oblas on the Effective
Date (regardless of whether any of the transactions are to be settled by the
delivery of Securities, other securities, cash or otherwise), for a period of 12
months after the Effective Date without the prior written consent of the
Representative.
Oblas further agrees that he shall not enter sell, transfer,
hypothecate or convey any Securities described above through a "Regulation S"
transaction for a minimum period of five years from the Effective Date without
the prior written consent of the Representative.
Oblas further agrees that all of the rights, authority and preemptive
provisions granted to the Representative pursuant to this Lock-Up Agreement may
be transferred by the Representative to any other NASD member firm that
participates in the proposed public offering of the Common Stock. The Company
shall not transfer or assign its rights hereunder except by operation of law.
In addition to the foregoing, Oblas agrees that all of the Securities
described above shall be held in a designated escrow account under an escrow
agreement that is dated contemporaneously herewith for a period of 12 months
from the Effective Date. After conclusion of such 12 month period, Oblas agrees
that the escrow agent shall deposit the certificates representing all of the
escrowed Common Stock owned by him in an account that will be established for
Oblas by the Representative at its principal office. Oblas further agrees that
he shall not sell, transfer, hypothecate or convey any of the Securities
described above in an amount greater than 1/2% of the total publicly registered
shares of the Company in any fiscal quarter for a period commencing 12 months
from the Effective Date and ending 24 months after the Effective Date without
the prior written consent of the Representative and the Company.
28
CrossPoint Foods Corporation
Xxxxxxxxx Securities, Inc.
Page 3
Oblas understands that the Company and the Representative will
undertake the public offering in reliance upon this Lock-Up Agreement.
IN WITNESS WHEREOF, the parties have executed this Lock-Up Agreement on
the date set forth above.
CROSSPOINT FOODS COMPANY
f/k/a Glacier Corporation:
By: __________________________________
Print Name: _________________________
XXXXXXXXX SECURITIES, INC.:
By: __________________________________
Print Name: _________________________
OBLAS:
---------------------------
Xxxxxx X. Xxxxx
