Exhibit 10.72
ESCROW AGREEMENT
ESCROW AGREEMENT (the "Agreement"), dated as of this 18th day of January,
2000, by and among Fidelity Holdings, Inc. ("Fidelity"), XxxxXX.xxx, Inc.
("Cars"), Xxxx X. Xxxxxx ("Singer"), and each of the persons other than Singer
listed on Schedule A hereto (each, including Singer, a "Significant Stockholder"
and with Singer the "Significant Stockholders"), and the law firm of Xxxxxxx
Krooks Xxxx & Ball P.C., as escrow agent (the "Escrow Agent").
W I T N E S S E T H
WHEREAS, concurrently herewith, Fidelity is acquiring all of the issued
and outstanding capital stock of Cars pursuant to an Merger Agreement dated
January 18, 2000 (the "Merger Agreement") by and among Fidelity, Cars
Acquisition, Inc. ("Acquisition Corp."), and Cars; and
WHEREAS, upon consummation of the Merger, Cars will merge with and into
Acquisition Corp., which will be the surviving corporation, in a transaction
whereby Acquisition Corp. will remain a wholly-owned subsidiary of Fidelity (the
"Merger"); and
WHEREAS, Section 1.05.11 of the Merger Agreement contemplates the deposit
by the parties thereto with the Escrow Agent of 113,557 shares of Fidelity
Common Stock otherwise issuable to the Significant Stockholders pursuant to the
Merger, to be held in escrow subject to and in accordance with the terms of this
Agreement.
NOW THEREFORE, in consideration of the mutual agreements hereinafter set
forth, the parties hereto, intending to be legally bound, hereby agree as
follows:
1. Appointment of Agent; Delivery of Escrowed Shares; Escrow
Termination Date. Fidelity, Cars and the Significant Stockholders hereby appoint
the Escrow Agent, as their agent to hold and to release the Escrowed Shares (as
defined below) on the terms and conditions set forth herein, and the Escrow
Agent hereby accepts such appointment.
(a) Delivery of Escrowed Shares. Simultaneously herewith,
Fidelity is delivering to the Escrow Agent an aggregate of 113,557 shares of
Fidelity Common Stock otherwise issuable to the Significant Stockholders
pursuant to the Merger (the "Escrowed Shares"). Exhibit A annexed hereto sets
forth the number of Escrowed Shares being deposited on behalf of each of the
Significant Stockholders.
(b) Escrow Period. Subject to the provisions of Section 5
hereof, the escrow period (the "Escrow Period") shall begin with the Closing and
shall terminate upon the earlier to occur of the following dates (the "Escrow
Termination Date"):
(i) the date upon which the Escrow Agent confirms that
it has released all of the Escrowed Shares; or
(ii) the earlier to occur of (A) the date on which
Fidelity files with the Securities and Exchange Commission its Annual Report on
Form 10-KSB for its 2000 fiscal year, (B) the consummation of an IPO (as defined
in the Merger Agreement or (C) April 15, 2001.
2. Escrow Agent to Hold and Disburse Escrowed Shares. The Escrow
Agent will hold and disburse the Escrowed Shares received by it pursuant to the
terms of this Agreement, as follows:
(a) in accordance with written instructions executed by
Fidelity and the Significant Stockholders; and
(b) in accordance with Section 3 hereof; provided, that in the
event there is any dispute or uncertainty concerning any action to be taken by
the Escrow Agent, pursuant to Section 3 hereof, whether with respect to the
release of the Escrowed Shares or otherwise, or if circumstances arise which the
Escrow Agent determines may result in liability, cost or expense to the Escrow
Agent, then the Escrow Agent shall be entitled to take the action set forth in
Section 3(d) below.
3. Manner of Asserting Claims Against Escrowed Shares.
(a) In the event that Fidelity believes that it is entitled to
indemnification pursuant to the provisions of Section 7 hereof, Fidelity shall
give notice thereof ("Indemnification Notice") to the Escrow Agent, with a copy
to the Significant Stockholders, certifying in such Indemnification Notice (i)
that Fidelity is entitled to indemnification pursuant to Section 6 of the Merger
Agreement; (ii) the grounds upon which a claim for indemnification (the "Claim")
is made, including the particular section of the Merger Agreement or other
agreement or instrument under which such Claim is made and, if applicable, the
nature of the misrepresentation or the breach of covenant to which such Claim is
applicable; and (iii) the amount or the estimated amount of the Claim to the
extent then feasible, which estimate shall not be conclusive of the final amount
of the Claim and which may be amended from time to time upon further notice by
Fidelity to the Escrow Agent and the Significant Stockholders. Any such
Indemnification Notice shall state whether the losses described therein are
final or estimated. Upon resolution of the final amount of a Claim relating to
the estimated losses specified in an Indemnification Notice, such
Indemnification Notice shall be amended as provided in this Section 3 to reflect
the final amount of the claimed losses.
(b) The Significant Stockholders shall have 20 business days
from the date of receipt of the Indemnification Notice (the "Notice Period") to
deliver notice to the Escrow Agent and Fidelity which disputes the Claim
("Dispute Notice") setting forth in such notice the grounds upon which it
believes that Fidelity is not entitled to the amount set forth in the
Indemnification Notice. In the event that the Escrow Agent has not received a
Dispute Notice from the Significant Stockholders within the Notice Period, the
Significant Stockholders shall be deemed to have accepted the Claim in the
amount specified in the Indemnification Notice.
(c) If Fidelity asserts a Claim in the manner specified in
Section 3(a)
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with respect to an amount designated in the Indemnification Notice as being the
final amount of such losses, and the Significant Stockholders either accept or
fail to send a Dispute Notice within the Notice Period, the Escrow Agent shall
thereupon release a portion of the Escrowed Shares to Fidelity equal to, when
valued at the "Fidelity Share Value" (which term, when used in this Agreement,
shall have the meaning assigned it in Section 1.05.04(c) of the Merger
Agreement), the lesser of (i) the amount of losses specified in the
Indemnification Notice; or (ii) the remaining Escrowed Shares. If Fidelity
asserts a Claim in the manner specified in Section 3(a) hereof with respect to
an amount designated in the Indemnification Notice as being an estimate and the
Significant Stockholders either accept or fail to dispute such Claim within the
Notice Period, the Escrow Agent shall reserve an amount equal to the lesser of:
(i) the amount of the estimated losses, as specified in the Indemnification
Notice; or (ii) the entire amount of remaining Escrowed Shares. To the extent
the Escrowed Shares remain and are released from escrow in satisfaction of a
Claim, such Escrowed Shares shall be valued at the Fidelity Share Value.
(d) If the Significant Stockholders send a Dispute Notice to
the Escrow Agent and Fidelity during the Notice Period, the Escrow Agent shall
continue to hold the balance of the Escrowed Shares pursuant to the terms of
this Agreement, until otherwise directed pursuant to either (i) a written
instrument signed by Fidelity and the Significant Stockholders or (ii) a
non-appealable final order, decree or judgment by a court of competent
jurisdiction, which order, decree or judgment shall have determined whether and
to what extent Fidelity is entitled to the amount set forth in the
Indemnification Notice.
4. Purchase Price Adjustment. In the event Fidelity disputes the
Closing Date Balance Sheet in accordance with Section 1.05.04 (b) of the Merger
Agreement, Fidelity shall provide written notice to the Escrow Agent. In the
event that a determination is made in accordance with the provisions of Section
1.05.04 of the Merger Agreement that there existed a net shareholder's deficit
in excess of $0.00 at Closing, Fidelity and the Significant Shareholders shall
provide written notice to Escrow Agent. In such case, Escrow Agent shall deliver
to Fidelity a number of Escrowed Shares equal to the quotient obtained by
dividing (i) such excess deficit by (ii) the Fidelity Share Value.
5. Distribution and Termination. As soon as practicable after the
Escrow Termination Date, the Escrow Agent shall deliver the Escrowed Shares, as
then constituted, to the Significant Stockholders according to their pro-rata
percentages; provided, however, that if Fidelity notifies the Escrow Agent in
writing that a claim by Fidelity for indemnity under the Merger Agreement has
been made prior to the Escrow Termination Date and remains pending on the Escrow
Termination Date, the Escrow Agent shall withhold such number of Escrowed Shares
equal to Fidelity's good faith estimate of the maximum amount of all such
pending claims (including, without limitation, expenses as specified by Fidelity
in such notice), and shall distribute the balance of the Escrowed Shares to the
Significant Stockholders. With respect to the Escrowed Shares which remain in
escrow, the provisions hereof shall continue to apply, including the disposition
of the Escrow Shares in accordance with Section 3 hereof. At each such time as
any claim pending on the Escrow Termination Date is no longer pending, the
Escrow Agent shall distribute to the Significant Stockholders any balance of the
Escrowed Shares withheld in respect of that claim remaining after disposition
thereof. When all Escrowed Shares have been distributed in accordance with
Section 3 and/or this Section 5, this Agreement shall terminate.
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6. Representations and Warranties as to the Significant
Stockholders. Each of the Significant Stockholders hereby severally, and not
jointly, represents and warrants to Fidelity as follows:
(a) This Agreement is, and each of the agreements, documents
and instruments which may be delivered by him or it, as the case may be,
pursuant hereto (all of the foregoing, including this Agreement, being
hereinafter sometimes collectively called the "Significant Stockholder Executed
Agreements"), when executed and delivered by him or it, as the case may be, will
be, his or its, as the case may be, valid and binding obligations in accordance
with its terms, except as enforceability may be limited (i) by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally, and (ii) to the extent that the
remedies of specific performance and injunctive or other forms of equitable
relief are subject to certain equitable defenses and to the discretion of the
court before which any proceeding therefor may be brought.
(b) Neither the execution and delivery by him or it, as the
case may be, of any of the Significant Stockholder Executed Agreements, nor the
consummation of any of the transactions contemplated thereby, nor the
performance by Significant Stockholders of any of his or its, as the case may
be, obligations thereunder, will (nor with the giving of notice or the lapse of
time or both would) (i) conflict with, violate, breach, or constitute a default
under, accelerate any obligation under, or give rise to a right of termination,
amendment, or cancellation of any right or benefit under any of the terms,
conditions or provisions of any note, bond, mortgage, debt instrument, credit
facility, security agreement, lease, deed of trust, franchise, indenture,
license, agreement or other instrument, commitment or obligation to which he or
it, as the case may, is a party or by which any his or its, as the case may be,
property of assets is bound, or require any consent, approval or notice under
the terms of any such document or instrument, or (ii) conflict or violate any
applicable order, writ, injunction, decree, law, statute, ordinance, rule,
judgment, regulation or other restriction of any Governmental Entity having
jurisdiction over him or it, as the case may be, or by which any his or its, as
the case may be, property or assets is bound or affected.
(c) He or it, as the case may be, is the record and beneficial
owner of the number of the shares of Cars Common Stock which is set forth
opposite his name on Schedule A to the Merger Agreement. He or it, as the case
may be, has good and valid title to said shares of Cars Common Stock, free and
clear of any and all liens, and encumbrances of any nature whatsoever, and has
sole possession of all rights incident to said ownership, including, but not
limited to, the right to vote said shares and dispositive power with respect to
said shares. He or it, as the case may be, has voted or will vote, as the case
may be, the shares of Cars Common Stock which are owned by him or it, as the
case may be, in favor of the Merger.
(d) No consent, approval or authorization of, or declaration,
filing or registration with, any third party or governmental or administrative
authority is required in connection with the execution and delivery by him or
it, as the case may be, of any of the Significant Stockholder Executed
Agreements, the performance by him or it, as the case may be, of any of his or
its, as the case may be, obligations thereunder, or the consummation of any
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of the transactions contemplated thereby.
7. Indemnification by Significant Stockholders.
(a) Each of the Significant Stockholders hereby agrees to indemnify
and hold Fidelity harmless from and against any and all losses, obligations,
deficiencies, liabilities, claims, damages, costs and expenses (including,
without limitation, the amount of any settlement entered into pursuant hereto,
and all reasonable legal and other expenses incurred in connection with the
investigation, prosecution or defense of any matter indemnified pursuant hereto)
which Fidelity may sustain, suffer or incur and which arise out of or are caused
by the breach of any representation or warranty made by Cars in Section IV, and
with respect to Singer only, any representation or warranty made by Singer in
Section III, of the Merger Agreement. Anything contained in the Merger Agreement
or this Agreement to the contrary notwithstanding, the indemnification
obligation of each of the Significant Stockholders shall not exceed the value of
the number of Escrowed Shares being deposited hereunder on behalf of such
Significant Shareholders, such value being determined at the time of the release
of such Escrowed Shares, if ever, from the Escrow Agent to Fidelity hereunder.
Any indemnification claim under this Agreement may be satisfied by forfeiture of
the Escrowed Shares, valued as provided in the previous sentence, or by payment
in cash (in which case an equivalent number of the Escrowed Shares valued as
provided in the previous sentence shall be released from this Agreement). The
form of the payment shall be determined by each of the Significant Stockholders.
(b) If a claim by a third party is made against Fidelity and
Fidelity intends to seek indemnification with respect thereto under this Section
7, Fidelity shall promptly notify the Significant Stockholders of such claim in
accordance with Section 3 hereof; provided, however, that the failure to give
such notice promptly shall not affect the rights of Fidelity hereunder unless
such failure adversely affects the Significant Stockholders. In case such action
is brought against Fidelity and it notifies the Significant Stockholders of the
commencement thereof, the Significant Stockholders shall have the right to
participate in, and, to the extent that it may wish, jointly with any other
Significant Stockholder similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to Fidelity, provided, however, if the
defendants in any action include both Fidelity and the Significant Stockholders
and Fidelity shall have reasonably concluded that there may be legal defenses
available to it which are different from or in addition to those available to
the Significant Stockholders, or if there is a conflict of interest which would
prevent counsel for the Significant Stockholders from also representing
Fidelity, Fidelity has the right to select separate counsel to participate in
the defense of such action on behalf of Fidelity. After notice from the
Significant Stockholders to Fidelity of its election so to assume the defense
thereof, the Significant Stockholders will not be liable to Fidelity pursuant to
the provisions of this Section 7 for any legal or other expense subsequently
incurred by Fidelity in connection with the defense thereof other than
reasonable costs of investigation unless the Significant Stockholders shall not
have employed counsel reasonably satisfactory to Fidelity to represent Fidelity
within a reasonable time after the notice of the commencement of the action or
the Significant Stockholders have authorized the employment of counsel for
Fidelity at the expense of the Significant Stockholders.
8. Waiver of Conflict. The parties hereto acknowledge and consent to
the legal
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representation of Fidelity by the Escrow Agent and hereby waive any conflict of
interest claims arising from such representation of Fidelity by the Escrow
Agent.
9. Duties and Obligations. It is agreed that the duties and
obligations of Escrow Agent are those herein specifically provided and no other.
Escrow Agent shall not have any liability under, or duty to inquire into, the
terms and provisions of any agreement, other than this Agreement. The duties of
the Escrow Agent are ministerial in nature and Escrow Agent shall not incur any
liability whatsoever so long as it has acted in good faith except for willful
misconduct or gross negligence.
Escrow Agent may consult with counsel of its choice, and shall not
be liable for any action taken, suffered or omitted by it in accordance with the
advice of such counsel. Escrow Agent shall not be bound by any modification,
amendment, termination, cancellation, rescission or supersession of this
Agreement unless the same shall be in writing and signed by all of the other
parties hereto and, if its duties as Escrow Agent hereunder are affected
thereby, unless it shall have given its prior written consent thereto.
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 the parties hereto or by a final
judgment or order of a court of competent jurisdiction.
Escrow Agent shall not incur any liability for following the
instructions herein contained or expressly provided for, or written instructions
given by the parties hereto in accordance with the terms of this Agreement.
Escrow Agent shall not have any responsibility for the genuineness
or validity of any document or other item deposited with it or any liability for
action in accordance with any written instructions or certificates given to it
hereunder and believed by it to be signed by the proper parties.
Escrow Agent shall not be required to institute legal proceedings of
any kind and shall not be required to initiate or defend any legal proceedings
which may be instituted against it in respect of the subject matter of these
instructions. If it does elect to act, it will do so only if it is indemnified
to its satisfaction against the cost and expense of such defense or initiation.
10. Resignation of Escrow Agent. Escrow Agent may at any time resign
hereunder by giving written notice of its resignation to the parties hereto at
their address set forth below, at least 10 days prior to the date specified for
such resignation to take effect, and, upon the effective date of such
resignation, all property then held by Escrow Agent hereunder shall be delivered
by it to such person as may be designated in writing by the parties hereto,
whereupon all of Escrow Agent's obligations hereunder shall cease and terminate.
If no such person shall have been designated by such date, all obligations of
Escrow Agent hereunder shall nevertheless cease and terminate. Escrow Agent's
sole responsibility thereafter shall be to keep safely all property then held by
it and to deliver the same to a person designated by the
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parties hereto or in accordance with the directions of a final order or judgment
of a court of competent jurisdiction.
11. Indemnification in favor of Escrow Agent. The parties hereto
agree (jointly and severally) to indemnify, defend and hold Escrow Agent
harmless from and against any and all loss, damage, tax, liability and expense
that may be incurred by Escrow Agent arising out of or in connection with the
acceptance of its appointment as Escrow Agent and the performance of its duties
hereunder, except as caused by its gross negligence or willful misconduct,
including the legal costs and expenses of defending itself against any claim or
liability in connection with its performance hereunder.
12. Expenses. Reasonable fees and expenses of the Escrow Agent shall
be paid by Fidelity.
13. Notices. All notices, requests, demands and other communications
given hereunder shall be in writing and shall be deemed to have been duly given:
(i) on the date of delivery, if delivered personally or by messenger, (ii) on
the first business day following the date of timely deposit with Federal Express
or other nationally recognized overnight courier service, if sent by such
courier specifying next day delivery, (iii) upon receipt of confirmation of
transmission, if transmitted by telecopier; and (iv) on the third business day
after mailing, if mailed by registered or certified mail (postage prepaid,
return receipt requested); provided, however, that a notice of change of address
or telecopier number shall not be deemed to have been given until actually
received by the addressee. All such notices, requests, demands and other
communications shall be addressed as set forth below or to such other address or
telecopier number as either party hereto may designate to the other party hereto
by like notice:
If to Fidelity to:
Fidelity Holdings, Inc.
00-00 Xxx Xxxxxxx Xxxx
Xxx Xxxxxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attn: Xxxxx Xxxxx, President
with a copy to:
Xxxxxxx Krooks Xxxx & Ball P.C.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopier No.: (000) 000-0000
Attn: Xxxxxxxx X. Xxxxxxx, Esq.
If to the Escrow Agent to:
Xxxxxxx Xxxxxx Xxxx & Ball P.C.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopier No.: (000) 000-0000
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Attn: Xxxxxxxx X. Xxxxxxx, Esq.
If to the Significant Stockholders to:
Xxxx X. Xxxxxx
0000 Xxxxxxxxxxx Xxxx
Xxxx Xxxxx, XX 00000
Xxxxxx X. Xxxxx
00000 Xxxx Xxxxx Xxxxx
Xxxx Xxxxx, XX 00000
Xxxxxxxxxxx X. Xxxxx
000 Xxxxxxx Xxxx
Xxxxxxx, XX 00000
C. Xxxxx Xxxxxx, III
0000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Xxxxxxx X. Xxxx
00000 Xxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Xxxx X. Xxxxxxx
00000 Xxxxxxx, Xxxxxxxxx, Xxx. 000
Xxxxxx, XX 00000
with a copy to:
Xxxxxxx Xxxx, a Professional Corporation
11th Floor, 000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn: Xxxx X. XxXxxxx, Esq.
or to such other address as any party shall have specified by notice in writing
to the other in compliance with this Section 13.
14. Miscellaneous. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors, heirs,
executors, administrators and assigns. This Agreement shall be governed by and
interpreted under the laws of the State of New York applicable to contracts made
and performed therein without giving effect to the principles of conflict of
laws thereof. Capitalized terms used in this Agreement which are not otherwise
defined herein shall have the meanings ascribed to them in the Merger Agreement.
Any amendment or waiver of the provisions hereof shall be in writing and shall
be signed by the parties against whom such amendment or waiver is sought to be
enforced. This Agreement
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may be executed in any number of counterparts, each of which shall be deemed to
be an original, but collectively all of such counterparts shall constitute one
and the same agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Escrow
Agreement on the date first above written.
FIDELITY HOLDINGS, INC.
By:____________________________________
Name:
Title:
XXXXXX.XXX, INC.
By:____________________________________
Name:
Title:
_______________________________________
Xxxx X. Xxxxxx
Xxxxxxx Xxxxxx Xxxx & Ball P.C.
By:_______________________________________________
An Officer of the Professional Corporation
______________________________________
Xxxxxx X. Xxxxx
______________________________________
Xxxxxxxxxxx X. Xxxxx
______________________________________
C. Xxxxx Xxxxxx, III
______________________________________
Xxxxxxx X. Xxxx
______________________________________
Xxxx X. Xxxxxxx
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SCHEDULE A
SIGNIFICANT STOCKHOLDERS
Xxxx X. Xxxxxx
Xxxxxx X. Xxxxx
Xxxxxxxxxxx X. Xxxxx
C. Xxxxx Xxxxxx, III
Xxxxxxx X. Xxxx
Xxxx X. Xxxxxxx
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Exhibit A
Significant Stockholder Contribution
Name Number of Shares Percentage of Total Escrowed Shares
Xxxx X. Xxxxxx 76,128 67.0
Xxxxxx X. Xxxxx 14,396 12.7
Xxxxxxxxxxx X. Xxxxx 14,396 12.7
C. Xxxxx Xxxxxx,III 3,455 3.0
Xxxxxxx X. Xxxx 2,879 2.5
Xxxx X. Xxxxxxx 2,303 2.0
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Total 113,557
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