ESCROW AGREEMENT
Exhibit 4.6
This
ESCROW AGREEMENT (this “Agreement”) is made
on January 15, 2010 by and among DAL Group, LLC, a limited liability company
organized under the laws of the State of Delaware (“DAL”), Chardan 0000
Xxxxx Acquisition Corp., a corporation organized under the laws of the British
Virgin Islands (“Chardan,” and,
together with DAL, the “Chardan Indemnified
Parties”), the Law Offices of Xxxxx X. Xxxxx, P.A., a professional
association licensed to practice law in the State of Florida (“DJS”), Professional
Title and Abstract Company of Florida, Inc., a corporation organized under the
laws of the State of Florida (“PTA”), Default
Servicing, Inc., a corporation organized under the laws of the State of Florida
(“DSI,” each of
DJS, PTA and DSI is referred to herein individually as a “Seller,” and is
referred to herein collectively as the “Sellers”), and U.S.
Bank National Association, national banking association (the “Escrow
Agent”).
RECITALS
A. The
Chardan Indemnified Parties and Sellers, among others, have entered into that
certain Contribution and Membership Interest Purchase Agreement (the “Purchase Agreement”),
dated January 15, 2010, and that certain Master Acquisition Agreement (the
“Master
Agreement”), dated December 10, 2009.
B. The
parties hereto desire to place in escrow with the Escrow Agent certain
securities and/or funds solely to be used to satisfy obligations that Sellers
may have to indemnify the Chardan Indemnified Parties in accordance with the
terms and conditions of the Purchase Agreement and the Master Agreement (the
“Indemnified
Claims”).
C. Capitalized
terms not otherwise defined in this Agreement shall have the meaning ascribed to
them in the Master Agreement, a copy of which has been delivered to Escrow
Agent, solely to enable it to reference such definitions.
Accordingly,
the parties hereto agree as follows:
AGREEMENTS
1. Establishment of
Escrow.
(a) Within
two (2) business days following execution of this Agreement, Sellers will
deposit with the Escrow Agent certain Series A Preferred Interests of DJS, PTA
and DSI with an aggregate value agreed upon by the parties hereto of $15,000,000
(the “Escrowed
Equity”), which shall be held in escrow by the Escrow Agent (the “Escrow
Fund”). The Escrow Agent agrees to acknowledge receipt of the
Escrow Fund upon delivery and agrees to hold, invest, reinvest, and disburse the
Escrow Fund in accordance with the terms contained in this
Agreement.
(b) At any
time following the execution of this Agreement, any Seller may from time to time
deposit with the Escrow Agent cash as a substitute for some or all of the
Escrowed Equity, with the Escrowed Equity valued at $15.00 per unit of the
Series A Preferred Interests being released from the Escrow Fund in exchange for
cash. Upon receiving such cash, the Escrow Agent shall deliver to
such Seller the certificates representing the substituted for Escrowed Equity,
add such cash to the Escrow Fund and acknowledge receipt of such cash to Sellers
and the Chardan Indemnified Parties.
2. Investment of the Escrow
Fund.
(a) As
directed in writing by Sellers from time to time, the Escrow Agent shall cause
any cash held in the Escrow Fund to be maintained and invested in one or more of
the following: (1) an investment with a maturity date of 30 days or less in
direct or indirect obligations of the United States, (2) an investment with a
maturity date of 30 days or less in certificates of deposit of a domestic
commercial bank of recognized standing having capital, surplus and undivided
profits in excess of $100,000,000, membership in the Federal Deposit Insurance
Corporation, and its senior debt carrying one of the two highest ratings of
Standard and Poor’s Corporation or Xxxxx’x Investors Services, Inc, (3) an
investment redeemable at any time without penalty in a money market instrument
issued by a United States mutual fund carrying one of the two highest ratings of
Standard and Poor’s Corporation or Xxxxx’x Investors Services, Inc., and having
assets of not less than $1,000,000,000, and/or (4) any other investment agreed
upon by Chardan.
(b) Any and
all transaction costs associated with any election by Sellers to change the
investment of the Escrow Fund shall be paid from the income on the Escrow
Fund. The Escrow Agent shall not be responsible for any interest or
income on the Escrow Fund except for such as is actually received, nor shall the
Escrow Agent be responsible for any loss resulting from the investment of the
Escrow Fund (including, but not limited to, the loss of any interest arising
from the sale of any Investment prior to maturity). Accrued interest
and other income on the Escrow Fund (after the payment of transaction costs
relating to changes in investments provided for above) shall be paid quarterly
to Sellers to the account specified on Schedule A, in
accordance with the Escrow Agent’s usual and customary procedures.
(c) Except as
otherwise provided hereunder or agreed in writing among the parties hereto, the
Sellers shall retain the authority to institute, participate and join in any
plan of reorganization, readjustment, merger or consolidation with respect to
the issuer of any securities held hereunder, and, in general, to exercise each
and every other power or right with respect to each such asset or investment as
individuals generally have and enjoy with respect to their own assets and
investment, including power to vote upon any securities.
(d) The
Sellers and Chardan Indemnified Parties acknowledge that regulations of the
Comptroller of the Currency grant the parties the right to receive brokerage
confirmations of the security transactions as they occur. The Sellers
and Chardan Indemnified Parties specifically waive such notification to the
extent permitted by law and will receive periodic cash transaction statements
which will detail all investment transactions.
3. Distribution of Escrow
Fund.
(a) The
Escrow Agent shall hold the Escrow Fund and shall not deliver any amount of the
Escrow Fund to any party other than as set forth in this Section 3 or by
depositing the Escrow Fund with a successor escrow agent in accordance with the
provisions of Section 6 of this Agreement.
(b) The
Chardan Indemnified Parties may make claims against the Escrow Fund for
Indemnified Claims prior to 5:00 p.m. New York Time on the Termination Date (as
defined in Section 3(d)) by delivery to the Escrow Agent, and the Sellers, of a
certificate signed by an officer of any of the Chardan Indemnified Parties (an
“Officer’s
Certificate”), (i) specifying the amount of the claim, and (ii)
specifying in reasonable detail the nature of the claim. Sellers may
in good faith respond to such Officer’s Certificate by delivering to the Chardan
Indemnified Parties, with a copy to Escrow Agent, a written statement setting
forth, in reasonable detail, the
2
basis of
any objection to the claim (or portion thereof) asserted in the Officer’s
Certificate (the “Seller’s
Response”). If a Seller’s Response is not received by the
Chardan Indemnified Parties and the Escrow Agent on or before 5:00 p.m. New York
Time of the 15th
Business Day after the Escrow Agent and Sellers receive the Officer’s
Certificate, the entire claim set forth in such Officer’s Certificate shall be
deemed valid and conclusive and binding upon all parties and shall be satisfied
by Escrow Agent from the Escrow Fund (in part, if the Escrow Fund is not
sufficient to satisfy the claim in full) by delivery of payment therefrom to the
Chardan Indemnified Parties. If the Chardan Indemnified Parties and
the Escrow Agent receive Seller’s Response by such 15th
Business Day described above, that portion of the claim which is disputed in
Seller’s Response shall not be satisfied by Escrow Agent from the Escrow Fund
(in part, if the Escrow Fund is not sufficient to satisfy such portion of the
Claim in full) unless and until the Escrow Agent receives: (a) written notice
from Sellers consenting to the payment of such disputed portion of the claim to
the Chardan Indemnified Parties or (b) receipt by Escrow Agent of a
certified copy of a judgment, decree or award of a court or other authority of
competent jurisdiction requiring the payment of money by Seller as to the
disputed portion of the claim.
(c) Any claim
satisfied pursuant to Section 3(b) shall be satisfied first from cash held in
the Escrow Fund and then, once there is no cash remaining in the Escrow Fund,
from the Escrowed Equity held in the Escrow Fund. For purposes of the
payment of any such claims with Escrowed Equity, the Escrowed Equity shall be
valued at $15.00 per unit of the Series A Preferred Interests used to pay the
claim.
(d) On the
Business Day following the 18 month “anniversary” of this Agreement (the “Termination Date”),
Escrow Agent shall pay to Sellers the portion of the remaining Fund, if any,
that exceeds the amount of money or value of Escrowed Equity sufficient to
satisfy all claims and pending claims made by the Chardan Indemnified Parties as
of the Termination Date for which the Escrow Agent or any Seller has received
notice pursuant to Section 3(b). After the resolution of all claims
pending on the Termination Date and, if applicable, payment therefor in the
manner described in Section 3(b), the Escrow Agent shall promptly deliver to
Sellers, on a pro rata basis in accordance with Schedule B attached
hereto, the remaining money or Escrowed Equity in the Escrow Fund, if
any.
(e) Upon the
distribution of the Escrow Fund as provided in this Section 3, this Agreement
shall terminate.
4. Expenses.
(a) The
Escrow Agent shall be entitled to compensation for its services under this
Agreement as set forth in Schedule C, which is
attached to and made a part of this Agreement, and for reimbursement of its
reasonable, documented out-of-pocket expenses, including but not limited to the
fees and expenses of attorneys or agents which the Escrow Agent may find
necessary to engage in the performance of its duties under this
Agreement. DAL shall pay all such fees and costs, charges and
expenses of the Escrow Agent, including attorneys fees and expenses in respect
of any litigation incurred by the Escrow Agent relating to this Agreement,
provided that such litigation shall not have resulted from any action taken or
omitted by the Escrow Agent or any Seller and which shall have been adjudged to
constitute bad faith, willful misconduct or gross negligence.
(b) If any
amounts due the Escrow Agent are not paid within 30 days of invoice, the Escrow
Agent shall have, and is hereby granted, a prior lien upon any property, cash,
or assets held hereunder, with respect to its unpaid fees and unreimbursed
expenses, superior to the interests of any other person or entities and the
Escrow Agent is hereby granted the right to set off and may deduct any unpaid
fees or unreimbursed expenses from amounts of cash on deposit in the Escrow Fund
pursuant to this Agreement. The rights of the Escrow Agent under this
subparagraph shall survive the resignation or removal of the Escrow Agent or the
termination of this Agreement
5. Limitation of Liability;
Indemnification of Escrow Agent.
(a) This
Agreement sets forth all matters pertinent to the escrow contemplated by this
Agreement and no additional obligations of the Escrow Agent shall be implied
from the terms of this Agreement or any other agreement. The duties
of the Escrow Agent under this Agreement shall be entirely administrative and
shall be only as specifically provided in this
Agreement. Accordingly, the Escrow Agent, including its officers,
directors, employees and agents, shall:
i) not be
liable for any error of judgment or for any act done or step taken or omitted by
it in good faith, except for any such acts, steps or omissions resulting from
its own gross negligence, bad faith or willful misconduct;
ii) be
obligated to act only in accordance with written notice received by it as
provided in this Agreement;
iii) have no
responsibility or liability for any diminution in value which may result from
any investments or reinvestments made in accordance with this
Agreement;
iv) have no
responsibility to inquire into or determine the genuineness, authenticity, or
sufficiency of any security, check, or other document or instrument submitted to
it in connection with its duties under this Agreement;
v) be
entitled to deem the signatories of any document or instrument submitted to it
under this Agreement as being those purported to be authorized to sign such
document or instrument on behalf of Sellers and the Chardan Indemnified Parties
and shall be entitled to rely upon the genuineness of the signatures of such
signatories without inquiry and without requiring substantiating evidence of any
kind;
vi) be under
no obligation to invest the Escrow Fund or the income generated by the Escrow
Fund until it has received an I.R.S. Form W-9 (or W-8, if applicable) from each
of the Sellers and the Chardan Indemnified Parties, regardless of whether any
party is exempt from reporting or withholding requirements under the Internal
Revenue Code of 1986, as amended;
vii) in the
event any dispute shall arise between Sellers and the Chardan Indemnified
Parties with respect to the disposition or disbursement of the Escrow Fund, be
permitted to interplead the Escrow Fund into a court of competent jurisdiction,
and thereafter be fully relieved from any and all liability or obligation with
respect to the Escrow Fund (other than with respect to its actions that may
constitute gross negligence, bad faith or willful misconduct), and the parties
further agree to pursue any redress or recourse in connection with such a
dispute without making the Escrow Agent a party to such dispute;
and
viii) neither
be responsible for, nor chargeable with knowledge of, the terms and conditions
of any other agreement, instrument or document between Sellers and the Chardan
Indemnified Parties, including but not limited to the Purchase Agreement and the
Master Agreement, and shall be required to act only pursuant to the terms and
provisions of this Agreement.
(b) The
Escrow Agent is jointly and severally indemnified and saved harmless by the
other parties hereto from all losses, costs, and expenses, including attorney’s
fees, which may be incurred by it as a result of its involvement in any
litigation arising from the performance of its duties under this Agreement,
provided that such litigation shall not have resulted from any action taken or
omitted by it and which shall have been adjudged to constitute bad faith,
willful misconduct or gross negligence and such indemnification shall survive
the termination of this Agreement and the resignation or removal of the Escrow
Agent until extinguished by any applicable statute of limitations.
6. Resignation or
Removal. The Escrow Agent may resign as Escrow Agent following
the giving of 30 calendar days prior written notice to the other parties to this
Agreement. Similarly, the Escrow Agent may be removed and replaced
following the giving of 30 calendar days prior written notice to the Escrow
Agent by Sellers and the Chardan Indemnified Parties. In either
event, the duties of the Escrow Agent shall terminate 30 calendar days after the
date of such written notice (or as of such earlier date as may be mutually
agreeable) and the Escrow Agent shall then deliver the balance of the Escrow
Fund then in its possession to a successor Escrow Agent as shall be appointed by
Sellers subject to the consent of Chardan (which consent will not unreasonably
be withheld), or failing such appointment, the Escrow Agent may petition any
court of competent jurisdiction for the appointment of a successor Escrow Agent
or other appropriate relief, and such resulting appointment shall be binding
upon all of the parties to this Agreement. Upon acknowledgment by any
successor Escrow Agent of the receipt of the remaining balance of the Escrow
Fund, the then acting Escrow Agent shall be fully released and relieved of all
duties, responsibilities and obligations under this Agreement, except for any
liability with respect to any previous acts, steps or omissions resulting from
its own gross negligence, bad faith or willful misconduct as set forth in
Section 5.
Any bank
or corporation into which the Escrow Agent may be merged or with which it may be
consolidated, or any bank or corporation to whom the Escrow Agent may transfer a
substantial amount of its escrow business, shall be the successor to the Escrow
Agent without the execution or filing of any paper or any further act on the
part of any of the parties, anything herein to the contrary
notwithstanding.
7. Notices. All
notices and other communications required or permitted under this Agreement
shall be in writing and shall be deemed to have been duly given upon delivery if
delivered personally, or on the date of receipt if delivered by facsimile,
nationally recognized overnight courier, mailed by registered or certified mail,
postage prepaid and return receipt requested, addressed as follows:
If to
Chardan or DAL, addressed to:
Chardan
2008 China Acquisition Corp.
c/o
Chardan Capital, LLC
000 Xxxxx
Xxxx Xxxx
Xxxxxxxxxxx,
XX 00000
Attn: Xxx
Xxxxxxx
Facsimile: (000)
000-0000
email: xxxxxxxx@xxxxxxxxxxxxxx.xxx
with a
copy to:
Loeb
& Loeb LLP
000 Xxxx
Xxxxxx
Xxx Xxxx,
XX 00000
Attn:
Xxxxxxxx X. Xxxxxxxx
Facsimile: 000-000-0000
email:
xxxxxxxxx@xxxx.xxx
If to
Sellers, addressed to:
Law
Offices of Xxxxx X. Xxxxx, P.A.
000 Xxxxx
Xxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxx,
XX 00000
Attn:
Xxxxx X. Xxxxx, Esq.
Facsimile: 000-000-0000
email: xxxxxxx@xxx.xxxxxxxxxx.xxx
with a
copy to:
Xxxxxx
Xxxxxxx PLLC
000
Xxxxxxxxxxx Xxxxxx
Xxxxxxx,
XX 00000
Attn:
Xxxxxx Xxxxxx
Facsimile: 000-000-0000
email:
xxxxxxx@xxxxxx.xxx
If to the
Escrow Agent:
U.S. Bank
National Association
000
Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx,
XX 00000
Attn:
Xxxxx Xxxxxxxx
Facsimile:
000-000-0000
email:
xxxxx.xxxxxxxx@xxxxxx.xxx
The
addresses indicated for any party may be changed by similar written
notice.
8. Entire
Agreement. This Agreement constitutes the entire understanding
among the parties hereto as to the subject matter of this Agreement and no
waiver or modification of the terms of this Agreement shall be valid unless in
writing and signed by Sellers, the Chardan Indemnified Parties and the Escrow
Agent and only to the extent specifically set forth in writing.
9. Continuance of
Agreement. This Agreement shall be binding upon the parties to
this Agreement and their respective successors and permitted
assigns.
10. Applicable
Law. This Agreement shall be governed by and construed under
and pursuant to the internal laws of the State of Florida without regard to its
conflict of laws principles.
11. Joint
Direction. Any other provision of this Agreement to the
contrary notwithstanding, Sellers and the Chardan Indemnified Parties may
jointly direct the Escrow Agent, in writing, to perform any action contemplated
by this Agreement, and, upon receipt of such joint direction, the Escrow Agent
shall act in compliance with such joint direction and be protected by this
Agreement.
12. Headings and
Sections. Unless otherwise indicated, all references in this
Agreement to “Sections” and “Schedules” refer to the sections and schedules of
this Agreement. The section headings and titles appearing in this
Agreement are inserted only as a matter of convenience and in no way define,
limit, construe, or describe the scope or extent of such section or in any way
affect this Agreement or the interpretation hereof.
13. Counterparts. This
Agreement may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
agreement. One or more counterparts of this Agreement may be
delivered by facsimile or e-mail, with the intention that delivery by such means
shall have the same effect as delivery of an original counterpart.
14. Invalid
Clause. If any term, covenant, condition or provision of this
Agreement is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the provisions of this Agreement shall remain in
full force and effect and shall in no way be affected, impaired or invalidated
thereby.
15. Tax
Matters.
(a) The
Escrow Agent shall not be responsible for the preparation or filing of any tax
return with respect to the Escrow Fund. Sellers shall be responsible
for payment of all taxes that are payable with respect to any income or interest
earned by the Escrow Fund, whether or not the income or interest was distributed
by the Escrow Agent during any particular year, or ever will be so distributed
by the Escrow Agent, or was used for expenses, as provided for in Section
2(b). The Escrow Agent shall not have any obligation to pay any taxes
or estimated taxes. Sellers will provide the Escrow Agent with the
respective taxpayer identification numbers of Sellers documented by an
appropriate I.R.S. Form W-9 (or W-8 if applicable) following execution of this
Agreement. Failure to provide such forms may prevent or delay
disbursements to Sellers from the Escrow Fund and may also result in the
assessment of a penalty and the Escrow Agent being required to withhold tax on
any interest or other income earned by the Escrow Fund. Any payments
of income or interest on the Escrow Fund will be subject to applicable
withholding regulations then in force in the United States or any other
jurisdiction as applicable. At the request of Sellers the Escrow
Agent will provide Sellers with any information reasonably requested by them and
available to the Escrow Agent which may be helpful in satisfying any tax
obligation relating to the interest relating to the Escrow Fund.
(b) If
required, the Escrow Agent will report to the Internal Revenue Service, as of
the end of each calendar year-end, all interest or income earned from the
investment of any sum held as part of the Escrow Fund against Sellers, whether
or not said interest or income has been distributed during such year, as and to
the extent required by law.
Customer Notice Required by
the USA Patriot Act
To
help the US government fight the funding of terrorism and money laundering
activities, US Federal law requires all financial institutions to obtain,
verify, and record information that identifies each person (whether an
individual or organization) for which a relationship is
established.
When
an escrow account is opened, the Escrow Agent will ask you to provide certain
information (and documents) that will help identify you and your
organization. The Escrow Agent will ask for your organization’s name,
physical address, tax identification or other government registration number and
other information that will help identify you. The Escrow Agent may
also ask for the Articles of Incorporation or similar document or other
pertinent identifying documentation for your type of organization.
16. Legal
Identification. Sellers
and the Chardan Indemnified Parties agree to disclose certain identification
information including the legal name of each Seller and each of the Chardan
Indemnified Parties, and their respective addresses, types of legal entity and
tax identification numbers on I.R.S. Form W-9 or W-8, if
applicable.
17. Authorized
Representatives. Sellers
and the Chardan Indemnified Parties hereby appoint the individuals, whose names
and specimen signatures appear on Schedule D, as their
respective Authorized Representatives. Any single Authorized Representative, of
any of Sellers or the Chardan Indemnified Parties is hereby expressly authorized
to give binding written direction to the Escrow Agent or to each other as to any
matter related to this Agreement. Schedule D may be
supplemented from time to time to reflect any change in the identities of such
Authorized Representatives.
18. Call
Back. In
the event federal wire transfer instructions are given, whether in writing,
e-mail, facsimile transmission or otherwise, the Escrow Agent is authorized to
seek confirmation of such wire instructions by telephone call back to the person
or persons designated on Schedule E and the
Escrow Agent may rely upon the confirmations of anyone purporting to be the
person or persons so designated.
[Signatures are on
the following page.]
The
parties have duly executed this Escrow Agreement as of the date first written
above.
| CHARDAN INDEMNIFIED PARTIES | SELLERS | ||||
| DAL Group, LLC | Law Offices Of Xxxxx X. Xxxxx, P.A. | ||||
| By: FlatWorld DAL LLC, its Member | By: | ||||
| Name: | Xxxxx X. Xxxxx | ||||
| By: |
Nagina
Engineering Investment
Corp.,
its Member
|
Title: | President | ||
| By: |
|
|
|||
|
Name
|
Xxx
X. Xxxxx
|
|
|||
|
Title
|
President
|
|
|||
| Chardan 2008 China Acquisition Corp. | Professional Title And Abstract Company Of Florida, Inc. | ||||
| By: |
|
By: |
/s/
|
||
|
Xxxxx
Xxxxxxx
|
Name: |
Xxxxx
X. Xxxxx
|
|||
|
Chief
Executive Officer
|
Title: |
President
|
|||
| Default Servicing, Inc. | |||||
| By: | |||||
| Name: | Xxxxx X. Xxxxx | ||||
| Title: | President | ||||
| ESCROW AGENT | |||||
| U.S. Bank National Association | |||||
| By: | |||||
| Name: | Xxxxx Xxxxxxxx | ||||
| Title: | Vice President - Account Manager | ||||
Escrow
Agreement
9
