EXHIBIT 2
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this "Escrow Agreement"), dated as of the 16th day
of June, 1997, by and among HORSHAM ENTERPRISES LIMITED, a British Virgin
Islands corporation ("Horsham") having offices at Columbus Centre Building,
Wickams Cay, Road Town, Tortola, British Virgin Islands, XXXXXXXXX INDUSTRIES,
INC., a Delaware corporation ("Xxxxxxxxx") having offices at 00000 X.X. 0xx
Xxxxxx, Xxxxxxx, Xxxxxxx 00000, and FULBRIGHT & XXXXXXXX L.L.P., a Texas limited
liability partnership ("Escrow Agent") having offices at 000 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000.
WHEREAS, pursuant to a certain stock purchase agreement (the "Xxxxxxxxx-
Horsham Agreement"), dated June 1, 1997, by and between Xxxxxxxxx and Horsham,
Xxxxxxxxx granted to Horsham an option (the "Option") to require Xxxxxxxxx to
sell to Horsham 1,298,000 ordinary shares, NIS 0.002 par value per share (the
"Second Ordinary Shares"), of Rada Electronic Industries Limited ("Rada") upon
satisfaction of certain conditions, which Option has been exercised;
WHEREAS, pursuant to the Xxxxxxxxx-Horsham Agreement, Xxxxxxxxx further
agreed to sell to Horsham an additional 100,000 Ordinary Shares of Rada (the
"First Ordinary Shares" and, together with the Second Ordinary Shares, the
"Shares") upon satisfaction of certain conditions;
WHEREAS, pursuant to each of the Agreements, the delivery of the Shares and
the payment therefore is to be performed in accordance with, and subject to, the
terms and conditions set forth herein; and
WHEREAS, the parties hereto desire that Fulbright & Xxxxxxxx L.L.P. serve
as Escrow Agent in connection with the consummation of the transactions
contemplated by the Agreements, the date of such consummation hereafter referred
to as the "Closing Date";
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and conditions contained herein, the parties hereto agree as follows:
1. ESCROWED PROPERTY. On or prior to the Closing Date, Escrow Agent shall
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receive, and hold in escrow pursuant to this Escrow Agreement, the following
(collectively, the "Escrowed Property"):
(i) certificate(s) representing the Second Ordinary Shares from
Xxxxxxxxx, representing delivery of the Second Ordinary Shares issued and sold
by Xxxxxxxxx to Horsham;
(ii) certificate(s) representing the First Ordinary Shares from
Xxxxxxxxx, representing delivery of the First Ordinary Shares sold by Xxxxxxxxx
to Horsham;
1.
(iii) U.S. $3,473,512.00 from Horsham, representing payment by Horsham
to Xxxxxxxxx of the purchase price for the Shares; and
(iv) (x) an officer's certificate from each of Horsham and Xxxxxxxxx
confirming that the representations and warranties contained in the Xxxxxxxxx-
Horsham Agreement are true and correct as of the Closing Date and (y) any and
all other closing documents as Horsham and Xxxxxxxxx may mutually determine to
be necessary or advisable (collectively, the "Closing Documents").
2. DEPOSIT OF FUNDS. To the extent the funds identified in Section 1(iii)
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above are received by Escrow Agent prior to the Closing Date, Escrow Agent shall
deposit such funds into an interest-bearing escrow account maintained by Escrow
Agent at Citibank, N.A. (the "Account"). Horsham shall be entitled to all
interest earned on such funds deposited into the Account prior to the Closing
Date.
3. INVESTMENT OF ESCROWED PROPERTY. Other than the deposit of the above-
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described funds into the Account, Escrow Agent shall be under no obligation to
invest the Escrowed Property.
4. DISBURSEMENT OF ESCROWED PROPERTY. Upon receipt by Escrow Agent of all
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Escrowed Property identified in Section 1 above and written confirmation to
proceed via facsimile from each of the other parties hereto, Escrow Agent shall
distribute the Escrowed Property as follows:
(i) certificates representing the Shares to Horsham on behalf of
Xxxxxxxxx;
(ii) U.S. $3,478,512.00 to Xxxxxxxxx on behalf of Horsham,
representing payment of the purchase price for the Shares;
(iii) any interest accrued prior to the Closing on the funds deposited
into the Account to Horsham;
(iv) the Closing Documents to the parties and in the quantities as
Horsham and Xxxxxxxxx mutually determine.
5. NO IMPLIED DUTIES OF ESCROW AGENT. It is expressly agreed and
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understood that (i) Escrow Agent is serving solely as an accommodation to the
other parties hereto and Escrow Agent shall not be liable to any of the other
parties hereto or any other person for any error of judgment, mistake or act of
omission hereunder or any matter or thing arising out of its conduct hereunder,
except for Escrow Agent's willful misconduct or gross negligence, (ii) Escrow
Agent shall have, and be under, no other duties or obligations and shall not be
required to perform any tasks other than those expressly described herein, (iii)
Escrow Agent is acting hereunder as a depository only and is not responsible or
liable in any manner whatsoever for the identity, authority or rights of any
person claiming to have rights to the Escrowed Property or for the terms and
conditions of any instrument pursuant to which the other parties hereto may act
and
2.
(iv) Escrow Agent is acting, and may continue act, as counsel to Xxxxxxxxx in
connection with various legal matters, including but not limited to, any dispute
which may arise as to the proper application of the Escrowed Property and/or
this Escrow Agreement and any disputes or litigation which may arise with
respect thereto and/or thereunder.
6. RELIANCE OF ESCROW AGENT ON DOCUMENTS. Escrow Agent may (i) act in
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reliance upon any writing or instrument or signature which it, in good faith,
believes to be genuine, (ii) assume the validity and accuracy of any statement
or assertion contained in such a writing or instrument and (ii) assume that any
person purporting to give any writing, notice, advice, or instructions in
connection with the provisions of this Escrow Agreement has been duly authorized
to do so. Escrow Agent shall not be liable in any manner for the sufficiency or
correctness as to form, execution or validity of any instrument or copy of any
instrument deposited in escrow, nor as to the identity, authority or right of
any person executing the same, and its duties shall be limited to those
specifically provided in this Escrow Agreement.
7. INDEMNIFICATION OF ESCROW AGENT. Unless Escrow Agent discharges any of
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its duties under this Escrow Agreement in a grossly negligent manner or is
guilty of willful misconduct with regard to its duties under this Escrow
Agreement, Escrow Agent shall not be liable to any person for any action taken
or loss suffered by such person, nor for any mistake of fact, error of judgment,
or for any actions or omissions of any kind. The other parties hereto shall,
jointly and severally, indemnify Escrow Agent and hold it harmless from any and
all claims, liabilities, losses, actions, suits or proceedings, or other
expenses, fees, or charges of any character or nature, public or private, which
it may incur or with which it may be threatened by reason of its acting as
Escrow Agent under this Escrow Agreement, and shall indemnify Escrow Agent
against any and all expenses, including reasonable attorneys' fees and the cost
of defending any action, suit or proceeding or resisting any claim in such
capacity, both at the trial and appellate levels.
8. DISPUTES AND INTERPLEADERS. In the event of any dispute between any of
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the parties hereto relating to delivery of the Escrowed Property by Escrow Agent
or to any other matter arising out of this Escrow Agreement, Escrow Agent may
submit the matter to a court of competent jurisdiction in the State of New York
in an interpleader or similar action. Escrow Agent shall perform any acts
ordered by any court of competent jurisdiction, without any liability or
obligation to any party hereunder by reason of such act.
9. CONSULTATION WITH COUNSEL. Escrow Agent may consult with counsel of
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its own choice and shall have full and complete authorization and protection to
act in accordance with the opinion of such counsel as to any matters in
connection with this Escrow Agreement to the extent that any act or failure to
act undertaken on the advice of counsel is undertaken in good faith and is not
contrary to the specific provisions of this Escrow Agreement. Escrow Agent
shall not be liable for (i) any action taken in reliance upon the advice of
counsel and in good faith or (ii) any mistakes of fact or errors of judgment, or
for any acts or omissions of any kind, unless any of such actions, omissions or
mistakes are caused by its gross negligence or willful misconduct.
3.
10. RESIGNATION OF ESCROW AGENT. The term of this Escrow Agreement shall
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begin on the effective date hereof and still continue as long as Escrow Agent
holds the Escrowed Property hereunder. Escrow Agent may resign by notice given
to the other parties hereto at least 30 days prior to the effective date of
resignation. If a successor escrow agent is not appointed by the other parties
hereto within a reasonable period of time after receipt of such notice, Escrow
Agent may petition a court of competent jurisdiction to name a successor. Upon
the effective date of its resignation hereunder, Escrow Agent shall be released
from any further obligations hereunder.
11. NOTICES.
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(i) All notices and other communications required or permitted
hereunder shall be in writing and shall be mailed by first-class, registered or
certified mail, postage prepaid, or delivered either by hand or by messenger, or
sent via telex, telecopier, computer mail or other electronic means, addressed
(A) if to Xxxxxxxxx, at 00000 X.X. 0xx Xxxxxx, Xxxxxxx, Xxxxxxx 00000,
Attention: President (facsimile no.: 954-845-0428), or at such other address as
Xxxxxxxxx shall have furnished to the other parties hereto in writing, or (B) if
to Horsham, at Xxxx Xxxxxxx Solicitors, Xxx Xxxxxxxx, Xxxxxx Xxxx, Xxxxxxxxxx,
Xxxxxxxx, XX00 0XX, Xxxxxxx (Ref: NEM) (facsimile no.: 0161 941 3719), or at
such other address as Horsham shall have furnished to the other parties hereto
in writing, or (C) if to Escrow Agent, at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxxxxx X. Xxxxxx (facsimile no.: 212/752-5958), or at such
other address as Escrow Agent shall have furnished to the other parties hereto
in writing.
(ii) Any notice or other communications so addressed and mailed,
postage prepaid, by registered or certified mail (in each case, with return
receipt requested) shall be deemed to be given when so mailed. Any notice so
addressed and otherwise delivered shall be deemed to be given when actually
received by the addressee.
12. ENTIRE AGREEMENT. This Escrow Agreement and the other documents
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delivered pursuant hereto, including the Xxxxxxxxx-Horsham Agreement, constitute
the full and entire understanding and agreement between the parties with regard
to the subjects hereof and thereof. Except as otherwise expressly provided
herein, neither this Escrow Agreement nor any term hereof may be amended,
waived, discharged or terminated, except by a written instrument signed by the
parties hereto.
13. GOVERNING LAW. This Escrow Agreement shall be governed by, and
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construed and enforced in accordance with, the laws of the State of New York.
14. COUNTERPARTS. This Escrow Agreement may be executed in counterparts,
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each of which when so executed and delivered shall constitute a complete and
original instrument but all of which together shall constitute one and the same
agreement, and it shall not be necessary when making proof of this Escrow
Agreement or any counterpart thereof to account for any other counterpart.
4.
IN WITNESS WHEREOF, the parties have caused this Escrow Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first written above.
HORSHAM ENTERPRISES
By: /s/ Xxxxxx Xxxx
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Name: Xxxxxx Xxxx
Title: Agent
XXXXXXXXX INDUSTRIES, INC.
By: /s/ Zivi X. Xxxxxx
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Name: Zivi X. Xxxxxx
Title: Chief Executive Officer
and President
FULBRIGHT & XXXXXXXX L.L.P., solely in its
capacity as Escrow Agent
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Partner
5.
