EXHIBIT 2.2
FORM OF
ESCROW AGREEMENT
This Escrow Agreement (the "Agreement") is entered into as of
August___, 2003, by and among "VITAL LIVING, INC., a Nevada corporation
("Acquiror"), E-NUTRICEUTICALS, INC., a Delaware corporation ("ENI"), MERCANTILE
NATIONAL BANK-CALIFORNIA, ("Mercantile National Bank") a California banking
corporation, in its capacity as escrow agent hereunder (the "Escrow Agent") and
XXXXXXX XXXXXX, in his capacity as the representative (the "Shareholders'
Representative") of all the ENI Shareholders which beneficially own Escrow
Shares (the "Escrow Shareholders") in connection with the transaction set forth
in that certain Agreement and Plan of Merger (the "Merger Agreement"), dated
August __, 2003, by and among VLEN ACQUISITION CORP., INC., a Delaware
corporation ("Merger Sub") and wholly owned subsidiary of Acquiror, Acquiror and
ENI.
RECITALS
This Agreement is being entered into in reference to the following facts:
A. ENI and Acquiror have entered into the Merger Agreement
pursuant to which Acquiror, through the Merger Sub, is acquiring all of the
outstanding equity of ENI (the "Transaction"), all as further specified in the
Merger Agreement. Capitalized terms used in this Agreement and not otherwise
defined, shall have the meanings given them in the Merger Agreement.
B. Pursuant to the Merger Agreement, a portion of the Merger
Consideration payable to certain of the shareholders of ENI is to be deposited
into an escrow fund that will secure certain of the indemnification obligations
of ENI to Acquiror under the Merger Agreement, on the terms and conditions set
forth therein and herein.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, the parties hereto hereby agree as follows:
AGREEMENT
1. APPOINTMENT; ESCROW ACCOUNT.
(a) Acquiror and ENI each hereby appoint the Escrow Agent
to act as escrow holder for the Escrow Fund (as hereinafter defined) under the
terms hereof. Escrow Agent hereby accepts such appointment and agrees to act as
escrow holder for the Escrow Fund in accordance with the terms hereof.
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(b) Immediately following Escrow Agent's execution of
this Agreement, Escrow Agent shall establish an account at Mercantile National
Bank (the "Escrow Account") for the purpose of receiving and holding the Escrow
Fund.
(c) ENI hereby appoints Xxxxxxx Xxxxxx to act as
representative for the Escrow Shareholders under the terms hereof and Xxxxxxx
Xxxxxx hereby accepts such appointment.
2. ESCROW FUND; ADMINISTRATION
(a) At the Effective Time, Acquiror shall deposit with
the Escrow Agent 17,044,036 shares of the Acquiror Common Stock, which for the
avoidance of doubt shall not include the Skye Merger consideration (the "Escrow
Fund"), subject to downward adjustment with respect to the shares of common
stock held by Escrow Shareholders who have demanded appraisal in accordance with
Section 262 of the Delaware General Corporation Law ("DGCL"). The Escrow Fund
shall be held at all time in the Escrow Account as an escrow fund during the
Escrow Period as defined in Section 5 below and shall not be subject to any
lien, attachment, trustee process or any other judicial process of any creditor
of any party hereto. Escrow Agent agrees to accept delivery of the Escrow Fund
and to hold such Escrow Fund in the Escrow Account subject to the terms and
conditions of this Agreement. Upon request from time to time, Escrow Agent shall
notify Acquiror and ENI of the amount of the Escrow Fund then held in the Escrow
Account.
(b) Escrow Agent shall hold and safeguard the Escrow Fund
during the Escrow Period, shall treat such fund as an escrow fund in accordance
with the terms of this Agreement and not as the property of Acquiror and shall
hold and dispose of the Escrow Fund only in accordance with the terms hereof.
3. INITIAL DISBURSEMENT FROM ESCROW FUND. Escrow Agent shall
administer the Escrow Fund as follows:
(a) The initial disbursement of the Escrow Fund shall
occur upon written notification by the Acquiror that it has received ENI's (i)
audited financial statements for the fiscal years ended March 31, 2002 and March
31, 2003 and (ii) unaudited financial statements for the three months ended June
30, 2003. Unless the June 30, 2003 balance sheet reveals liabilities in excess
of $4,000,000, as soon as possible after the receipt of such financial
statements, the Acquiror shall instruct the Escrow Agent to release, on a
pro-rata basis, fifty percent (50%) of all shares of Acquiror Common Stock
beneficially owned by Escrow Shareholders other than Fifth Avenue Capital, Inc.
("Fifth Avenue Capital") from the Escrow Fund; provided, however, that if
liabilities in excess of $4,000,000 are revealed in the June 30, 2003 financial
statements, such shares shall not be released from the Escrow Fund until the
completion of the calculation of Effective Time Assumed Liabilities (as defined
in Section 3(b) below).
(b) As soon as practicable after the Effective Time, but
in no event later than December 31, 2003, the Acquiror shall calculate the
liabilities assumed by it at the Effective
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Time in accordance with Section 1.14 of the Merger Agreement (the "Effective
Time Assumed Liabilities"). Prior to any further disbursement to the Escrow
Shareholders of any of the shares of Acquiror Common Stock in the Escrow Account
(i.e., a disbursement other than as contemplated by (a) above), the Escrow Agent
shall return to Acquiror three shares of Acquiror Common Stock for each dollar
of Effective Time Assumed Liabilities in excess of $100,000 or, if the terms of
the engagement letter of even date herewith between Acquiror and Xxxxxxx Xxxxxx
have been met, $175,000 (as set forth by Acquiror in a written notification
delivered to the Escrow Agent pursuant to this Section 3(b). The calculation of
any excess Effective Time Assumed Liabilities shall be in writing ("Deficit
Notice") and shall be delivered to the Shareholders' Representative and Escrow
Agent. Notification of such deficit shall be binding upon the Escrow Agent
absent manifest bad faith in the information contained in the Deficit Notice. In
the event that the Shareholders' Representative disputes the calculation of
excess Effective Time Assumed Liabilities set forth in the Deficit Notice, he
shall have 10 business days to so notify Acquiror and Escrow Agent in writing.
In such event, the Shareholders' Representative and Acquiror shall agree upon an
accounting firm of national reputation, who will conduct an independent review
(the "Reconciliation Procedure") and deliver, within thirty days of its
appointment, a binding analysis of the excess Effective Time Assumed Liabilities
set forth in the Deficit Notice. The cost of such review shall be borne by
Acquiror.
(c) Any return of shares of Acquiror Common Stock to the
Acquiror in respect of excess Effective Time Assumed Liabilities pursuant to
Section 3(b) shall be taken on a pro rata basis from Escrow Shares beneficially
owned by all Escrow Shareholders.
(d) After calculation of the Effective Time Assumed
Liabilities and the return of shares of Acquiror Common Stock in respect
thereof, if any, to the Acquiror, any Escrow Shares which would have been
released pursuant to Section 3(a) but for there having been liabilities in
excess of $4,000,000 shall be released.
4. INDEMNIFICATION; RESOLUTION OF CONFLICTS; ARBITRATION.
(a) Upon receipt by Escrow Agent at any time during the
Escrow Period of a written notice from Acquiror (a "Claims Notice") stating that
Acquiror or any of its officers, directors, employees, representative, agents
and affiliates (each of the foregoing persons and entities is referred to
hereinafter as an "Indemnified Person" and collectively as "Indemnified
Persons") has paid or reasonably anticipates that it will have to pay or incur
an amount in respect of any damages, claims, causes of action or other awards
(collectively "Damages") and stating the individual items of Damages included in
the amount so stated, the date each such item was paid or incurred, or the basis
for such anticipated liability, and the nature of the misrepresentation, breach
of warranty or claim to which such item is related, Escrow Agent shall deliver
to Acquiror out of the Escrow Fund, unless an objection is received from the
Shareholders' Representative within ten days of receipt of the Claims Notice as
provided in this Section, three shares of the Acquiror Common Stock held in the
Escrow Fund for each $1.00 of
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Damages.
(b) If the Shareholders' Representative objects in
writing to any claim or claims made in any Claims Notice, which objection shall
be made to Escrow Agent and Acquiror within 10 days after receipt of a Claims
Notice by the Shareholders' Representative from Acquiror, then the Shareholders'
Representative and Acquiror shall attempt in good faith to agree upon the rights
of the respective parties with respect to each of such claims within 30 days
after Escrow Agent's receipt of the Shareholders' Representative's written
objection to the claim (the "Negotiation Period"). If the Shareholders'
Representative and Acquiror should so agree during the Negotiation Period, a
memorandum setting forth such agreement shall be prepared and signed by both
parties and shall be furnished to Escrow Agent. Escrow Agent shall be entitled
to rely on any such memorandum and distribute the agreed upon amount from the
Escrow Fund in accordance with the terms thereof.
(c) If no such agreement has been reached by the end of
the Negotiation Period, then either Acquiror or the Shareholders' Representative
may demand arbitration of the matter unless the amount of the Damages is at
issue in pending litigation with a third party, in which event arbitration shall
not be commenced until such amount is ascertained by settlement or a
non-appealable decision of a court of competent jurisdiction or both parties
agree to arbitration; and, in either such event, the matter shall be settled by
arbitration by three arbitrators, as follows. Within 15 days after the
Shareholders' Representative or Acquiror delivers a written demand for
arbitration to the other party, Acquiror and Shareholders' Representative shall
each select one arbitrator. The third arbitrator shall be selected as soon as
practicable by agreement of the first two arbitrators or, failing such
agreement, by JAMS-Endispute (or a recognized arbitral organization comparable
thereto). The arbitration shall be conducted in New York, New York in accordance
with the commercial arbitration rules (the "Rules") used by JAMS-Endispute (or a
recognized arbitral organization comparable thereto). The written decision of a
majority of the three arbitrators as to the validity and amount of any claim in
such Claims Notice shall be binding and conclusive upon the parties to this
Agreement, and Escrow Agent shall be entitled to act in accordance with such
decision and make or withhold payments out of the Escrow Fund in accordance
therewith. The arbitrators shall award reimbursement to the prevailing party in
the arbitration of its reasonable expenses of the arbitration (including costs
and reasonable attorneys' fees). The award of the arbitrators shall be the sole
and exclusive monetary remedy of the parties with respect to the matter
submitted and shall be enforceable in any court of competent jurisdiction. Each
of the parties hereto submits to the non-exclusive personal jurisdiction of the
courts of the State of New York as an appropriate place for compelling
arbitration or giving legal confirmation of any arbitration award, and
irrevocably waives any objection which it may now or hereafter have to the venue
of any such enforcement proceeding brought in any of said courts and any claim
of inconvenient forum. Each of the parties agrees that service of process for
all arbitration proceedings may be made in accordance with the Rules and shall
be deemed effective as provided therein. Any claim or action of any kind
(including, but not limited to, any claims for breach of contract), against
Escrow Agent arising out of or connected with this Agreement
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shall be barred and waived unless asserted by the commencement of an arbitration
proceeding within 180 days after the accrual of the action or claim, or 180 days
after the termination of this Agreement, whichever occurs first. This limitation
shall also apply to claims which might otherwise be asserted against as a
"set-off," credit, cross-complaint, or defense. This section and the forgoing
limitation shall survive termination of this Agreement.
(d) Copies of all notices and other communications
including Claims Notices among the parties pursuant to this Section 4 shall be
delivered to each party hereto concurrently with delivery to any other party
hereto.
(e) Any indemnification for Damages under Section 4(a)
shall be provided on a pro rata basis, determined by reference to the actual
number of shares in the Escrow Account, from Escrow Shares beneficially owned by
all Escrow Shareholders,
5. FINAL RELEASE OF ESCROW FUND. Subject to the following
requirements, the Escrow Fund shall remain in existence from the Effective Time
until the first anniversary of the date of the Effective Time (the "Escrow
Period"). Upon the expiration of the Escrow Period, the Escrow Fund shall
terminate with respect to all amounts then remaining in the Escrow Fund, and all
such remaining Escrow Shares shall be delivered to the relevant Escrow
Shareholders, according to the number of shares of Acquiror Common Stock
beneficially owned by each such shareholder at the time of the creation of the
Escrow Fund as reduced by any such shares returned to the Acquiror pursuant to
Section 3(b) or Section 4(a), provided however, that an amount of the Escrow
Fund, which is necessary to satisfy any unsatisfied claims specified in any
Claims Notice delivered to Escrow Agent and not objected to in accordance with
the provisions of Section 4 above prior to the expiration of such Escrow Period
shall remain in the Escrow Fund (and the Escrow Fund shall remain in existence)
until such claims have been resolved. As soon as all such claims have been
resolved, Escrow Agent shall deliver to the relevant Escrow Shareholders the
remaining Escrow Fund not required to satisfy such claims.
6. ENI SHAREHOLDERS' REPRESENTATIVE.
Xxxxxxx Xxxxxx ("Xxxxxx") shall be deemed the Shareholders'
Representative, and Acquiror and Escrow Agent may rely on the statements and
signature of Xxxxxx as binding . Notices or communications to or from Xxxxxx
shall constitute notice to or from the Escrow Shareholders. A decision, act,
consent or instruction of Xxxxxx shall constitute a decision of ENI and shall be
final, binding and conclusive with respect to that portion of the Escrow Fund
beneficially owned by each of the Escrow Shareholders. All other Indemnified
Persons may rely upon any decision, act, consent or instruction of Xxxxxx as
being the decision, act, consent or instruction of the Escrow Shareholders.
Escrow Agent, Acquiror and all other Indemnified Persons are hereby relieved
from any liability to any person for any acts done by them in accordance with
such decision, act, consent or instruction of Xxxxxx.
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7. ESCROW AGENT'S DUTIES.
(a) Acquiror shall indemnify Escrow Agent and hold it
harmless from and against any fee, loss, liability or expense (including
reasonable attorney's fees and expenses) (a "Loss") incurred by Escrow Agent
arising out of or in connection with the performance of its obligations in
accordance with the provisions of this Agreement or with the administration of
its duties hereunder, unless such Loss shall arise out of or be caused by Escrow
Agent's gross negligence, bad faith or willful misconduct; provided however the
indemnity agreement contained in this Section 7(a) shall not apply to amounts
paid in settlement of any Loss if such settlement is effected without the
consent of Acquiror and the Shareholders' Representative.
(b) Acquiror shall indemnify and hold Escrow Agent
harmless from and against any taxes, additions for late payment, interest,
penalties and other expenses, that may be assessed against Escrow Agent on any
payment or other activities under this Agreement unless any such tax, addition
for late payment, interest, penalty or other expense shall arise out of or be
caused by the actions of, or a failure to act by, Escrow Agent.
(c) Escrow Agent's duties and obligations hereunder shall
be determined solely by the express provisions of this Agreement. Escrow Agent's
duties and obligations are purely ministerial in nature, and nothing in this
Agreement shall be construed to give rise to any fiduciary obligations of Escrow
Agent with respect to Acquiror . Escrow Agent is not charged with any duties or
responsibilities with respect to the Merger Agreement and shall not be concerned
with the terms thereof. Escrow Agent shall not be required to notify or obtain
the consent, approval, authorization, or order of court or governmental body to
perform its obligations under this Agreement, except as expressly provided
herein.
(d) In the event of any disagreement or the presentation
of any adverse claim or demand in connection with the disbursement of the Escrow
Fund, except as otherwise provided herein, then Escrow Agent may, at its option,
after providing written notice to Acquiror and the Shareholders' Representative
of such disagreement or adverse claim or demand, refuse to comply with any such
claims or demands during the continuance of such disagreement and may refrain
from delivering any item affected hereby, and in so doing, Escrow Agent shall
not become liable to the undersigned or to any other person, due to its failure
to comply with such adverse claim or demand. If Acquiror and/or the
Shareholders' Representative, as appropriate do not provide satisfactory
assurances to Escrow Agent that it may act in accordance with the other
provisions of this Agreement, Escrow Agent shall be entitled to continue,
without liability, to refrain and refuse to act until:
(i) authorized to disburse the Escrow Fund by an
order from a court purporting to have jurisdiction of the parties and the Escrow
Fund, after which time Escrow Agent shall be entitled to act in conformity with
such order; or
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(ii) Escrow Agent (i) shall have been notified
that all differences shall have been adjusted by agreement, and (ii) shall have
been directed in writing to take certain actions with respect to the Escrow Fund
subject to the adverse claim or demand, signed jointly or in counterpart by the
Shareholders' Representative and/or Acquiror and by all persons making adverse
claims or demands, at which time Escrow Agent shall be protected in acting in
compliance therewith.
At any time prior to Escrow Agent's receipt of a court order or a
notice, as provided in clauses (i) or (ii) of this Section 7(d) Escrow Agent
may, but is not required to, file a suit in interpleader and obtain an order
from the court requiring the parties to interplead and litigate in such court
adverse claims or demands raised pursuant to this Section 7(d). If such
interpleader suit is brought, then Escrow Agent shall ipso facto be fully
released and discharged from all obligations to further perform any and all
duties or obligations imposed upon it in relation to the disputed amount.
Acquiror agrees to reimburse Escrow Agent for all costs, expenses, and
reasonable attorney's fees expended or incurred by Escrow Agent in connection
with such adverse claim or demand, the amount thereof to be fixed and judgment
thereof to be rendered by the court in such lawsuit.
(e) Escrow Agent shall not be liable to anyone whatsoever
by any reason of error of judgment or for any act done or step taken or omitted
by them in good faith or for any mistake of fact or law or for anything which
they may do or refrain from doing in connection herewith unless caused by or
arising out of their own gross negligence or willful misconduct. In no event
shall Escrow Agent be liable for any indirect, special, consequential damages,
or punitive damages.
(f) Escrow Agent shall be entitled to rely on and shall
be protected in acting in reliance upon any instructions or directions furnished
to it in writing or pursuant to any provisions of this Agreement and shall be
entitled to treat as genuine, and as the document it purports to be, any letter,
paper, or other document furnished to it and believed by it to be genuine and to
have been signed and presented by the proper party or parties. The Shareholders'
Representative and Acquiror shall not include Escrow Agent's name in any
document unless such document has been approved in writing by the Escrow Agent,
except with regard to those documents pertaining to and referring to Escrow
Agent's functions as Escrow Holder pursuant to this Agreement.
(g) Escrow Agent may resign at any time upon giving at
least 30 days written notice to Acquiror and the Shareholders' Representative;
provided, however, that no such resignation shall become effective until the
appointment of a successor escrow agent, which shall be accomplished as follows:
Acquiror and the Shareholders' Representative shall use their best efforts to
mutually agree upon a successor agent within 30 days after receiving such
notice. If the parties fail to agree upon a successor escrow agent within such
time, the Shareholders' Representative shall have the right to appoint a
successor escrow agent, such appointment to be
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made in his reasonable best judgment. The successor escrow agent selected in the
preceding manner shall execute and deliver an instrument accepting such
appointment and it shall thereupon be deemed Escrow Agent hereunder and it shall
without further acts be vested with all the estates, properties, rights, powers,
and duties of the predecessor Escrow Agent as if originally named as Escrow
Agent. If no successor escrow agent is named, Escrow Agent may apply to a court
of competent jurisdiction for the appointment of a successor escrow agent.
Thereafter, the predecessor Escrow Agent shall be discharged from any further
duties and liabilities under this Agreement.
8. FEES, EXPENSES AND TAXES. Acquiror shall pay to Escrow Agent,
as compensation for its services hereunder the following amounts (a) a $2,500
non-refundable start-up fee, payable upon Escrow Agent's execution of this
Agreement; (a) an annual renewal fee of $1,000, payable upon each anniversary of
the date of this Agreement; and (c) a $50 escrow processing fee (for each
receipt and disbursement of the Escrow Fund) and all customary charges assessed
by Mercantile National Bank in connection with the Escrow Account, upon the
Escrow Agent's demand. Upon demand, Acquiror will pay or reimburse Escrow Agent
for all expenses, disbursements and advances incurred or made at the request of
that party. If Acquiror fails to pay any fee or other sums owing to Escrow Agent
hereunder when due then Escrow Agent may pay out of and charge to the Escrow
Fund all such fees and sums. Taxes incurred with respect to the earnings of the
Escrow Fund and payments made hereunder shall be borne by the party to whom such
earnings are distributed (or to be distributed) or to whom such payment is made.
9. MISCELLANEOUS.
(a) VOTING. All shares of the Acquiror Common Stock held
in the Escrow Account shall be voted by the applicable Escrow Shareholder as if
such shares had been distributed.
(b) AMENDMENTS AND WAIVERS. Any term of this Agreement
may be amended or waived with the written consent of the parties or their
respective successors and assigns. Any amendment or waiver effected in
accordance with this Section 9(b) shall be binding upon the parties and their
respective successors and assigns.
(c) SUCCESSORS AND ASSIGNS. The terms and conditions of
this Agreement shall inure to the benefit of and be binding upon the respective
successors and assigns of the parties. Nothing in this Agreement, express or
implied, is intended to confer upon any party other than the parties hereto or
their respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
(d) GOVERNING LAW. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York regardless of
the laws that might otherwise
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govern under applicable principles of conflicts of laws thereof. If any portion
of subsection (h) below shall be unenforceable, each of the parties hereto
irrevocably consents to the exclusive jurisdiction and venue of the New York
State or federal courts encompassing the city of New York, New York in
connection with any matter based upon or arising out of this Agreement or the
matters contemplated herein, agrees that process may be served upon them in any
manner authorized by the laws of the State of New York for such persons and
waives and covenants not to assert or plead any objection which they might
otherwise have to such jurisdiction, venue and such process.
(e) COUNTERPARTS. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
(f) TITLES AND SUBTITLES. The titles and subtitles used
in this Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement
(g) NOTICES. Any notice required or permitted by this
Agreement shall be in writing and shall be deemed sufficient upon receipt, when
delivered personally or by courier, overnight delivery service or confirmed
facsimile addressed to the party to be notified at such party's address or
facsimile number as set forth below, or as subsequently modified by written
notice.
If to the Acquiror: 0000 X. 00xx XXXXXX
XXXXX 000
XXXXXXX, XX 00000-0000
Telephone:000 000-0000
Facsimile:000-000-0000
With an Additional Xxxxx X. Xxxx, Esq.
Copy to: Xxxxx Xxxxxx & Xxxx LLP
0000 Xxxxxx xx xxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile: 000-000-0000
If to Shareholders' Mr. Xxxxxxx Xxxxxx
Representative: 00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
With an Additional
Copy to: Xxxxxxx X. Xxxxxxxxx, Esq.
Xxxxxx Xxxxx Xxxxxxx & Xxxxxx LLP
000 Xxxx Xxxxxx
0
Xxx Xxxx, XX 00000
Facsimile: 212-888-0255
If to Escrow Agent: Mercantile National Bank
0000 Xxxxxxx Xxxx Xxxx
Xxx Xxxxxxx, Xx. 00000
Attn: Xxxxxx Xxxx
Facsimile: 000 000 0000
(h) SEVERABILITY. If one or more provisions of this
Agreement are held to be unenforceable under applicable law, the parties agree
to renegotiate such provision in good faith, in order to maintain the economic
position enjoyed by each party as close as possible to that under the provision
rendered unenforceable. If the parties cannot reach a mutually agreeable and
enforceable replacement for such provision, then (i) such provision shall be
excluded from this Agreement, (ii) the balance of the Agreement shall be
interpreted as if such provision were so excluded and (iii) the balance of the
Agreement shall be enforceable in accordance with its terms.
(i) ARBITRATION. All disputes between the Shareholders'
Representative and/or Acquiror on the one hand, and Escrow Agent, on the other
hand, relating to the payment of the Escrow Fund and/or Escrow Agent's rights,
obligations, and liabilities arising from or related to this Agreement shall be
resolved by mandatory binding expedited arbitration as provided in Section 4(c)
above. Acquiror, the Shareholders' Representative, and Escrow Agent shall abide
by any decision rendered in such arbitration, and that any court having
jurisdiction may enforce such a decision.
(j) ENTIRE AGREEMENT. Except as set forth in the Merger
Agreement (the terms of which Escrow Agent is not to be concerned), this
Agreement is the product of all of the parties hereto, and constitutes the
entire agreement among such parties pertaining to the subject matter hereof. Any
and all other written or oral agreements existing between the parties hereto
regarding such transactions are expressly canceled.
(k) ADVICE OF LEGAL COUNSEL. Each party acknowledges and
represents that, in executing this Agreement, it has had the opportunity to seek
advice as to its legal rights from legal counsel and that the person signing on
its behalf has read and understood all of the terms and provisions of this
Agreement. This Agreement shall not be construed against any party by reason of
the drafting or preparation thereof.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
VITAL LIVING , INC.
By:_______________________________
Name: Xxxx Xxxxx
Title: Chief Executive Officer
By:_______________________________
Name: Xxxxxx Xxxxxx
Title: President
E-NUTRICEUTICALS, INC.
By:_______________________________
Name: Xxxxxxx Xxxxxx
Title: Sole Officer and Director
Agreed and Accepted Agreed and Accepted
"ESCROW AGENT" "SHAREHOLDERS' REPRESENTATIVE"
MERCANTILE NATIONAL BANK
By:_____________________________ _______________________________
Xxxxxx Xxxx, Senior Vice President Xxxxxxx Xxxxxx
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