EXHIBIT 2.4
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ESCROW AGREEMENT
This Escrow Agreement ("Agreement") is dated as of the 4th day of
September, 2003, by and between ▇▇▇ ▇▇▇▇▇, ("▇▇▇▇▇"), Homes By Owners, Inc., a
Georgia corporation ("Homes"), R. Wireless, Inc., a Georgia corporation
("Wireless") and ▇▇▇▇▇ ▇. ▇▇▇▇▇, an individual (the "Escrow Agent"), such
persons collectively being referred to herein as the "Parties";
W I T N E S S E T H
WHEREAS, ▇▇▇▇▇, Homes and R Wireless, Inc. have entered into a Stock
Purchase Agreement ("Purchase Agreement") of even date herewith, a copy of which
is attached as Exhibit A hereto, whereby, among other things, ▇▇▇▇▇ has acquired
4,200,000 shares ("Homes Shares") of original issue common stock of Homes in
exchange for 1,000 shares ("Freedom Shares") of common stock of Freedom Homes,
Inc., a Georgia corporation;
WHEREAS, prior to the acquisition by ▇▇▇▇▇ of the Homes Shares, Homes
was a wholly-owned subsidiary of Wireless, which now has a 25% equity interest
in Homes;
WHEREAS, pursuant to the Purchase Agreement Homes is required to use
its best efforts to raise at least $500,000 gross proceeds from the sale of its
common stock or failing to do so, as a condition subsequent of the Purchase
Agreement, the Homes Shares are returned to Homes and the Freedom Shares are
returned to ▇▇▇▇▇; and
WHEREAS, in order to implement such condition subsequent, ▇▇▇▇▇ wishes
to deliver the Homes Shares and Homes wishes to deliver the Freedom Shares, to
the Escrow Agent to hold them in escrow ("Escrow") pursuant to the terms of this
Escrow Agreement;
NOW, THEREFORE, for and in consideration of the premises stated and for
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged and agreed to by the Parties, the Parties agree as follows:
1. APPOINTMENT OF ESCROW AGENT. The Parties hereby designate and
appoint the Escrow Agent as their agent to perform the duties and services
specified herein, and the Escrow Agent hereby accepts such engagement, upon the
terms and conditions hereinafter set forth.
2. DEPOSIT WITH ESCROW AGENT.
(a) ▇▇▇▇▇ hereby deposits with the Escrow Agent Certificate
No. 3 of Homes ("Homes Certificate") for 4,200,000 shares of Homes common stock,
representing the Homes Shares, together with a stock power therefor ("Homes
Power") executed by ▇▇▇▇▇ in blank.
(b) Homes hereby deposits with the Escrow Agent Certificate
No. 1 of Freedom ("Freedom Certificate") for 1,000 shares of Freedom common
stock, representing the Freedom Shares, together with a stock power therefor
("Freedom Power") executed by Homes in blank.
(c) The Escrow Agent shall hold the Homes Certificate, the
Homes Power, the Freedom Certificate and the Freedom Power (collectively the
"Escrow Property") in a fiduciary capacity as agent of the Parties, subject to
the provisions of this Escrow Agreement.
3. ESCROW FEE. There shall be no separate escrow fee, but to the extent
Escrow Agent spends time in services as Escrow Agent, he shall by paid by Homes
at the rate he regularly charges for legal services and shall ▇▇▇▇ Homes for
such service and related expenses (including reasonable attorney's fees and
expenses when incurred in accordance with Subsection 7(b)) on a monthly basis,
which Homes will pay promptly.
4. DELIVERY OF ESCROW PROPERTY.
(a) Upon receiving notice at any time from Homes, Wireless and ▇▇▇▇▇ as
to the disposition of the Escrow Property, the Escrow Agent will promptly effect
such disposition.
(b) Upon receiving notice no later than 183 days from the date of this
Agreement from Homes or Wireless that Homes has received gross proceeds of at
least $500,000 from the sale of Homes common stock (such a notice being referred
to herein as a "Receipt Notice") which Receipt Notice is concurred in by notice
from ▇▇▇▇▇, the Escrow Agent will forthwith deliver the Homes Certificate and
the Homes Power to ▇▇▇▇▇ and the Freedom Certificate and the Freedom Power to
Homes.
(c) Upon receiving a Receipt Notice no later than 183 days from the
date hereof that is not concurred in by ▇▇▇▇▇, Escrow Agent will continue to
hold the Escrow Property until instructed as provided in clause (a), above, or
instructed by a court pursuant to final order from a court with jurisdiction
over the Escrow Agent.
(d) Promptly after the 183rd day from the date hereof, if the Escrow
Agent has not received a Receipt Notice, the Escrow Agent will deliver the
Freedom Certificate and the Freedom Power to ▇▇▇▇▇ and the Homes Certificate and
the Homes Power to Homes.
5. TERM AND TERMINATION. The term of the Escrow shall begin effective
as of the date of this Escrow Agreement and shall continue until the delivery by
the Escrow Agent of all the Escrow Property as provided in this Escrow Agreement
or as otherwise ordered by a court of competent jurisdiction, and any unpaid
amounts for services and expenses of the Escrow Agent during such term and
otherwise in connection with the termination of this Escrow shall forthwith be
paid by Homes, or if not paid by Homes, shall be paid by Wireless and ▇▇▇▇▇,
which shall be jointly and severally liable therefor.
6. LIABILITY OF THE ESCROW AGENT. It is agreed that the duties of the
Escrow Agent are only such as are herein specifically provided, and that in
performing any of his duties hereunder, the Escrow Agent shall not incur any
liability to anyone for any damages, losses or expenses, except for willful
misconduct or gross negligence, and the Escrow Agent accordingly shall not incur
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any such liability with respect to (i) any action taken or omitted in good faith
or (ii) any action taken or omitted in reliance upon any instrument, including
any written notice or instruction relating to this Agreement, not only as to the
due execution and the validity and effectiveness of such instrument but also as
to the truth and accuracy of any information contained herein which the Escrow
Agent shall in good faith believe to be genuine, to have been signed or
presented by a proper person or persons and to conform with the provisions of
this Agreement. The Escrow Agent shall have no further responsibility for the
genuineness or validity of any document or other item deposited with him, and he
shall be fully protected by the remaining Parties to this Agreement in acting in
accordance with any written instructions given him hereunder and believed by him
in good faith to have been signed by the proper parties. The Escrow Agent hereby
represents and warrants that he has no disabilities that would prevent him from
duly executing and performing this Agreement and serving as escrow agent
hereunder.
7. INDEMNIFICATION OF THE ESCROW AGENT.
(a) Except as otherwise set forth in Section 6 hereof, the
Parties other than the Escrow Agent shall indemnify and hold harmless the Escrow
Agent against any and all losses, claims, damages, liability and expenses,
including reasonable costs of investigation and counsel fees and disbursements,
which may be imposed upon the Escrow Agent or incurred by the Escrow Agent
hereunder, or in the performance of his duties as escrow agent hereunder
including litigation arising from this Agreement or involving the subject matter
hereof.
(b) The Escrow Agent is authorized to and may consult with,
and obtain advice from, legal counsel (including the firm of which he is Of
Counsel) in the event any dispute, conflict or question arises as to the
construction of any of the provisions hereof or its duties hereunder. The Escrow
Agent shall incur no liability and shall be fully protected in acting in good
faith in accordance with the advice, opinions, and instructions of such counsel,
except as otherwise provided in Section 6 hereof. Copies of all such opinions as
are in writing shall be made available to the other Parties upon request.
(c) The Escrow Agent may, but shall not be required to, defend
himself in any legal proceedings which may be instituted against him or he may,
but shall not be required to, institute legal proceedings with respect to any of
the Escrow Property deposited pursuant to this Agreement. The Escrow Agent shall
be indemnified and held harmless by the Parties other than the Escrow Agent
against the cost and expense of any such defense or action, except as otherwise
provided in Section 6 hereof.
(d) The Escrow Agent shall deliver Escrow Property to any
party only if in his judgment such delivery may be made under the terms of this
Agreement without his incurring any liability. If conflicting demands not
expressly provided for in this Agreement are made or notices served upon the
Escrow Agent with respect to his action or omission under this Agreement, the
Parties other than the Escrow Agent agree that the Escrow Agent shall have the
absolute right to elect to do either or both of the following: (i) withhold and
stop all future actions or omissions on its part under this Agreement; or (ii)
file a suit in interpleader or for instructions or for declaratory judgment or
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other relief and obtain an order from the proper court requiring the Parties
other than the Escrow Agent to litigate in such court their conflicting claims
and demands. In the event any such action is taken, the Escrow Agent shall be
fully released and discharged from all obligations to perform any duties or
obligations imposed upon it by this Agreement unless and until otherwise ordered
by the court.
8. DEPOSIT INTO COURT. In the event of a dispute between or among the
Parties or involving any person otherwise having an interest in the Escrow or
this Agreement that the Escrow Agent, in his sole judgment, believes could
affect the Escrow or this Agreement, the Escrow Agent shall be entitled, but
shall incur no liability for his failure, to tender into the registry or custody
of any court of competent jurisdiction or to any governmental agency reasonably
deemed by the Escrow Agent to be appropriate, all money, instruments, documents
and other property in the hands of the Escrow Agent, including the Escrow
Property, held under this Agreement. Any legal action instituted by the Escrow
Agent under the terms of this paragraph may be brought in any court the Escrow
Agent shall determine to have jurisdiction thereof.
9. REMOVAL AND RESIGNATION.
(a) REMOVAL. The Escrow Agent may be removed at any time, with
or without cause, upon written agreement of the Parties, other than the Escrow
Agent, and upon payment to the Escrow Agent of all amounts owed to it hereunder.
In such event, a new escrow agent shall be appointed by the Parties, other than
the Escrow Agent, and the Escrow Property shall be promptly transferred to said
successor.
(b) RESIGNATION. The Escrow Agent may resign from its
appointment hereunder only upon ten (10) days prior written notice to the other
Parties. In such event, the other Parties shall appoint a new escrow agent.
However, in the event the other Parties are unable to agree on a successor
within said ten (10) day period, the Escrow Agent shall appoint a successor
escrow agent to serve pursuant to the terms and conditions of this agreement.
10. INSTRUCTIONS AND NOTICES. In the execution and performance of its
duties hereunder, the Escrow Agent shall be entitled to rely upon instructions
from the remaining Parties to this Agreement or from any other person designated
by the remaining Parties to this Agreement upon notice to the Escrow Agent, for
any acts permitted to be performed or required to be performed by the Escrow
Agent hereunder. Any notice, payment, demand, instruction or communication
required or permitted to be given by this Agreement shall be in writing and
shall be deemed to have been sufficiently given or served for all purposes on
the date on which the same was delivered personally or by overnight express
courier to the party or to an officer of the party to whom the same is directed,
or three business days after the same was deposited in a regularly maintained
receptacle for deposit of United States mail, if sent by registered or certified
United States mail, first class postage prepaid, addressed as follows:
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If to ▇▇▇▇▇: Mr. ▇▇▇ ▇▇▇▇▇
Freedom Homes, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
(Tel) ▇▇▇-▇▇▇-▇▇▇▇
(Fax) ▇▇▇-▇▇▇-▇▇▇▇
If to Homes: Homes By Owners, Inc.
c/o Freedom Homes, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
(Tel) ▇▇▇-▇▇▇-▇▇▇▇
(Fax) ▇▇▇-▇▇▇-▇▇▇▇
with copies to ▇▇▇▇▇ and Wireless at the addresses set forth herein.
If to Wireless: R Wireless, Inc.
c/o MA&N LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(Tel) ▇▇▇-▇▇▇-▇▇▇▇
(Fax) ▇▇▇-▇▇▇-▇▇▇▇
(e-mail) ▇▇▇▇▇▇▇▇▇_▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇
If to the Escrow Agent: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLC
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Tower
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
(Tel) ▇▇▇-▇▇▇-▇▇▇▇
(Fax) ▇▇▇-▇▇▇-▇▇▇▇
(e-mail) ▇▇▇@▇▇▇.▇▇▇
Any Party may change its address for purposes of notice by notice of such change
given to the other Parties in the manner specified herein; provided, however,
that no change may be made of the right to receive copies of notices to Homes
without the consent of the designated recipient.
11. NO THIRD-PARTY BENEFICIARIES. This Agreement shall not confer any
rights or remedies upon any person or entity other than the Parties and their
respective successors, heirs, legal representatives and permitted assigns.
12. CAPTIONS. The captions in this Agreement are inserted for
convenience and identification only and are in no way intended to describe,
interpret, define or limit the scope, extent or intent of this Escrow Agreement
or any provisions hereof.
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13. SOLE AGREEMENT. This Agreement constitutes the entire understanding
of the Parties with respect to the subject matter hereof.
14. BINDING EFFECT. This Agreement shall be binding upon and inure to
the benefit of the Parties and their respective successors, assigns and
transferees, as the case may be. The Escrow Agent shall be bound only by the
terms of this Agreement and shall not be bound by or incur any liability with
respect to this Agreement or any other agreement or understanding among the
Parties, or among the remaining Parties to this Agreement, except as herein
expressly provided. The Escrow Agent shall not have any duties hereunder except
those specifically set forth herein.
15. AMENDMENT. The Parties may amend, alter, modify or change any
portion of this Agreement by written consent of all the Parties.
16. CONSTRUCTION. The headings of the sections in this Agreement are
provided for convenience only and shall not affect its construction or
interpretation. All references to "Section" or "Sections" refer to those of this
Agreement. All words used in this Agreement shall be construed to be of such
gender or number as the circumstances require. Unless otherwise expressly
provided, the word "including" does not limit the preceding words or terms. The
terms "herein", "hereof", "hereto" or "hereunder" or similar terms shall be
deemed to refer to this Agreement as a whole and not to a particular Section.
17. GOVERNING LAW. This Agreement shall be construed, interpreted and
governed in accordance with the law of the State of Georgia applicable to
contracts entered into by residents of Georgia, and fully to be performed, in
Georgia.
18. COUNTERPARTS. This Agreement and any amendments hereto may be
executed by the Parties in counterparts, each of which shall be deemed to be an
original, and it shall not be necessary for the same counterpart of this
Agreement or any amendment hereto to be signed by all of the undersigned in
order for the agreements set forth herein or in such amendment to be binding
upon all of the undersigned in accordance with the terms hereof.
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IN WITNESS WHEREOF, the parties have executed, sealed and delivered
this Agreement as of the day and year first above written.
/s/ ▇▇▇ ▇▇▇▇▇
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▇▇▇ ▇▇▇▇▇
R WIRELESS, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Chairman
HOMES BY OWNERS, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Chairman
/s/ ▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
▇▇▇▇▇ ▇▇▇▇▇
Escrow Agent
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Exhibit A
[Form of Stock Acquisition Agreement,
omitting Exhibit A, a copy of this Escrow Agreement]
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