EXHIBIT 99.2
ESCROW AGREEMENT
THIS ESCROW AGREEMENT is made and entered into on August 11, 2005 by
and between XXXXXX XXXXXXX (the "Seller"), the controlling stockholder of GREEN
MOUNTAIN CAPITAL, INC., a Nevada corporation (the "Company"), and XXXXXXX
PARTNERS & COMPANY, LLC, a limited liability corporation organized under the
laws of New York (the "Purchaser"), and GLAST, XXXXXXXX & XXXXXX, P.C. (the
"Escrow Agent").
WHEREAS, the Purchaser and the Seller have executed that certain Stock
Purchase Agreement dated August 11, 2005 (the "Stock Purchase Agreement") with
respect to the purchase of shares of the Stock as described therein; and
WHEREAS, all capitalized terms herein shall have the same meanings as
defined in the Stock Purchase Agreement, unless otherwise defined herein; and
WHEREAS, the Purchaser has delivered into escrow with the Escrow Agent
the sum of $100,000 (the "Escrowed Funds");
NOW, THEREFORE, in consideration of the foregoing and the following
mutual covenants and agreements, the parties hereto do agree as follows:
1. Transfer into Escrow by the Purchaser. The Purchaser has delivered the
Escrowed Funds into escrow with the Escrow Agent, the receipt of which is hereby
acknowledged by the Escrow Agent.
2. Release of the Escrowed Funds. Six months following the date of the Closing
of the Stock Purchase Agreement, in the event that the Purchaser has incurred no
liability as described in the Stock Purchase Agreement, the Escrow Agent shall
deliver the Escrowed Funds to the Seller.
3. Duty of the Escrow Agent. The sole duty of the Escrow Agent, other than as
hereinafter specified, shall be to receive the Escrowed Funds and hold them
subject to release, in accordance with this Agreement, the Stock Purchase
Agreement, and the Other Agreements.
4. Liability of the Escrow Agent. The duties of the Escrow Agent hereunder will
be limited to observance of the express provisions of this Agreement.
Furthermore, the Escrow Agent is not expected or required to be familiar with
the provisions of any other writing, understanding or agreement, and shall not
be charged with any responsibility or liability in connection with the
observance or non-observance of the provisions of such other writing,
understanding or agreement, and no implied covenant of any type whatsoever shall
be read into this Agreement.
The further provisions shall govern the Escrow Agent's liabilities
hereunder:
(a) In receiving the Escrowed Funds, the Escrow Agent acts only as a depository
and thereby assumes no responsibility, except pursuant to the terms of this
Agreement.
(b) The Escrow Agent may act or refrain from acting in respect of any matter
covered by this Agreement in full reliance upon and with the advice of counsel
which may be selected by him, and shall be fully protected in so acting or in
refraining from acting upon the advice of such counsel. Furthermore, the Escrow
Agent may rely and shall be protected in acting upon any writing that may be
submitted to him in connection with his duties hereunder without determining the
genuineness, authenticity or due authority from any such writing or the person
signing same and shall have no liability or responsibility with respect to the
form, content or validity thereof.
(c) The Escrow Agent shall have no responsibility or liability for any act or
omission on his part, notwithstanding any demand or notice to the contrary by
the Seller or the Purchaser, or any other person or entity, all subject to the
sole limitation that the Escrow Agent exercises his best judgment. Except as
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herein expressly provided, none of the provisions of this Agreement shall
require the Escrow Agent to expend or risk his own funds or otherwise incur
financial liability or expense in the performance of any of his duties
hereunder.
(d) The Escrow Agent is hereby authorized to comply with and obey all orders,
judgments, decrees or writs entered or issued by any court, and in the event the
Escrow Agent obeys or complies with any such order, judgment, decree or writ, in
whole or in part, he shall not be liable to the Seller, the Purchaser, or any
other person or entity, by reason or such compliance, notwithstanding that it
shall be determined that any such order, judgment, decree or writ be entered
without jurisdiction or be invalid for any reason or be subsequently reversed,
modified, annulled, satisfied or vacated.
(e) The Escrow Agent shall not be required to institute or defend any action or
legal process involving any matter referred to herein which in any manner
affects his duties or liabilities hereunder to take any other action with
reference to the Escrowed Funds not specifically agreed to herein, and the
Escrow Agent shall not be responsible for any act or failure to act on his part
except in the case of his own fraud or gross negligence.
(f) Should any controversy arise between the Escrow Agent, the Seller, the
Purchaser, or between any other person or entity with respect to this Agreement,
or with respect to the ownership of or the right to receive the Escrowed Funds,
the Escrow Agent shall have the right to institute a plea of interpleader in any
court of competent jurisdiction to determine the rights of the parties. Should a
plea of interpleader be instituted, or should the Escrow Agent become involved
in litigation in any manner whatsoever connected with or pertaining to this
Agreement, the Stock Purchase Agreement, the Other Agreements, or the Escrowed
Funds, the Seller and the Purchaser hereby agree to pay the Escrow Agent, on
demand, in addition to any charge made hereunder for acting as escrow agent,
reasonable attorneys' fees incurred by the Escrow Agent, and any other
disbursements, expenses, losses, costs, and damages in connection with or
resulting from such litigation.
5. Indemnification. The Seller and the Purchaser hereby agree to indemnify and
hold the Escrow Agent harmless from and against any and all claims, loses,
liabilities, costs, damages, fees, charges, and expenses (including attorneys'
fees) which the Escrow Agent may incur or sustain by reason of his acting as the
Escrow Agent under this Agreement, unless same shall result from the fraud or
gross negligence of the Escrow Agent.
6. Death, Incapacity, or Resignation of the Escrow Agent. In the event of the
death, incapacity, or resignation of the Escrow Agent, the Seller and the
Purchaser shall appoint a successor Escrow Agent within 10 days following such
death, incapacity, or resignation. If the Seller and the Purchaser shall fail to
appoint a successor Escrow Agent within such 10 day period, the Seller may
thereupon deposit the Escrowed Funds into the registry of a court of competent
jurisdiction, and seek to have a successor Escrow Agent appointed by such court.
Any substitute Escrow Agent appointed hereunder shall possess and exercise all
powers and authority herein conferred on the original Escrow Agent, unless the
court otherwise decrees in the order of appointment. Further, any successor
Escrow Agent shall receive such compensation as such court may determine. The
parties hereto intend that a substitute Escrow Agent will be appointed to
fulfill the duties of the Escrow Agent hereunder for the remaining term of this
Agreement in the event of the Escrow Agent's death, incapacity, or resignation,
and the Seller will use its best efforts to promptly appoint a substitute Escrow
Agent who shall be bound by the terms and provisions of this Agreement.
7. Termination and Amendment. This Agreement shall remain in effect until the
Escrowed Funds are delivered in accordance herewith; provided that any Escrow
Agent hereunder who resigns in accordance with the terms hereof shall no longer
be bound by this Agreement, but this Agreement shall remain in effect,
notwithstanding such resignation, for purposes of determining the rights and
duties of the Seller and any successor Escrow Agent. No amendment or
modification to this Agreement shall be in force or effect unless signed by the
parties hereto.
8. No Trusteeship. The Seller and the Purchaser agree that the Escrow Agent is
acting solely as an escrowee hereunder and not as a trustee and that the Escrow
Agent has no fiduciary duties, obligations or liabilities under this Agreement.
9. Confidentiality. Except as required by applicable law, legal process or other
legal compulsion, the Escrow Agent shall hold all information relating to the
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transactions contemplated by this Agreement in strict confidence and under no
circumstance shall any of the terms and conditions or the participants involved
be disclosed, unless such disclosure is mandated by applicable law.
10. Mediation and Arbitration. All disputes arising or related to this Agreement
must exclusively be resolved first by mediation with a mediator selected by the
parties, with such mediation to be held in Houston, Texas. If such mediation
fails, then any such dispute shall be resolved by binding arbitration under the
Commercial Arbitration Rules of the American Arbitration Association in effect
at the time the arbitration proceeding commences, except that (a) Texas law and
the Federal Arbitration Act must govern construction and effect, (b) the locale
of any arbitration must be in Houston, Texas, and (c) the arbitrator must with
the award provide written findings of fact and conclusions of law. Any party may
seek from a court of competent jurisdiction any provisional remedy that may be
necessary to protect its rights or assets pending the selection of the
arbitrator or the arbitrator's determination of the merits of the controversy.
The exercise of such arbitration rights by any party will not preclude the
exercise of any self-help remedies (including without limitation, setoff rights)
or the exercise of any non-judicial foreclosure rights. An arbitration award may
be entered in any court having jurisdiction.
11. Attorneys' Fees. In the event that it should become necessary for any party
entitled hereunder to bring suit against any other party for enforcement of the
covenants contained herein, the parties hereby covenant and agree that the party
who is found to be in violation of this Agreement shall also be liable to the
other parties for all reasonable attorneys' fees and costs of court incurred by
such other parties.
12. Benefit. The terms and provisions of this Agreement shall be binding upon,
inure to the benefit of and be enforceable by, the parties hereto and their
respective successors and permitted assigns.
13. Notices. All notices, requests, demands, and other communications hereunder
shall be in writing and delivered personally or sent by registered or certified
United States mail, return receipt requested with postage prepaid, or by
telecopy or e-mail, if to the Seller, addressed to Xx. Xxxxxx Xxxxxxx at 0000
Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxx Xxxx 00000, telephone (000) 000-0000,
telecopier (000) 000-0000, and e-mail Xxxxxxx@xxx.xxx; and if to the Purchaser,
addressed to Xx. Xxxxxx X. Xxxxxxxx at Xxxxxxx Partners, LLC, 00 Xxxxxx Xxxxxx,
Xx. 0, Xxx Xxxx, Xxx Xxxx 00000, telephone (000) 000-0000, telecopier (212)
274-8102 and e-mail xx@xxxxxxxxxxxxxxx.xxx; and if to the Escrow Agent,
addressed to Xxxxxx X. Xxxxxxxx, Esq. at 000 Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxx 00000, telephone (000) 000-0000, telecopier (000) 000-0000, and e-mail
xxxxxxxxx@xxx-xxx.xxx. Any party hereto may change its address upon 10 days'
written notice to any other party hereto.
14. Construction. Words of any gender used in this Agreement shall be held and
construed to include any other gender, and words in the singular number shall be
held to include the plural, and vice versa, unless the context requires
otherwise. In addition, the pronouns used in this Agreement shall be understood
and construed to apply whether the party referred to is an individual,
partnership, joint venture, corporation or an individual or individuals doing
business under a firm or trade name, and the masculine, feminine and neuter
pronouns shall each include the other and may be used interchangeably with the
same meaning.
15. Waiver. No course of dealing on the part of any party hereto or its agents,
or any failure or delay by any such party with respect to exercising any right,
power or privilege of such party under this Agreement or any instrument referred
to herein shall operate as a waiver thereof, and any single or partial exercise
of any such right, power or privilege shall not preclude any later exercise
thereof or any exercise of any other right, power or privilege hereunder or
thereunder.
16. Representations, Warranties and Agreements to Survive. All indemnity
agreements set forth in this Agreement, as well as all representations,
warranties, covenants and other agreements set forth in this Agreement shall
remain operative and in full force and effect at the termination of this
Agreement, and any successor of the parties shall be entitled to the benefit of
the respective representations, warranties and agreements made herein.
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17. Cumulative Rights. The rights and remedies contained in this Agreement shall
be cumulative and the exercise or partial exercise of any such right or remedy
shall not preclude the exercise of any other right or remedy.
18. Invalidity. In the event any one or more of the provisions contained in this
Agreement shall, for any reason, be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not affect
the other provisions of this Agreement or any such other instrument.
19. Headings. The headings used in this Agreement are for convenience and
reference only and in no way define, limit, amplify or describe the scope or
intent of this Agreement, and do not effect or constitute a part of this
Agreement.
20. Excusable Delay. The parties shall not be obligated to perform and shall not
be deemed to be in default hereunder, if the performance of a non-monetary
obligation required hereunder is prevented by the occurrence of any of the
following, other than as the result of the financial inability of the party
obligated to perform: acts of God, strikes, lock-outs, other industrial
disturbances, acts of a public enemy, war or war-like action (whether actual,
impending or expected and whether de jure or de facto), acts of terrorists,
arrest or other restraint of governmental (civil or military), blockades,
insurrections, riots, epidemics, landslides, lightning, earthquakes, fires,
hurricanes, storms, floods, washouts, sink holes, civil disturbances,
explosions, breakage or accident to equipment or machinery, confiscation or
seizure by any government of public authority, nuclear reaction or radiation,
radioactive contamination or other causes, whether of the kind herein enumerated
or otherwise, that are not reasonably within the control of the party claiming
the right to delay performance on account of such occurrence.
21. No Third-Party Beneficiary. Any agreement to pay an amount and any
assumption of liability contained in this Agreement, express or implied, shall
be only for the benefit of the undersigned parties and their respective
successors and assigns (as herein expressly permitted), and such agreements and
assumptions shall not inure to the benefit of the obligees or any other party,
whomsoever, it being the intention of the parties hereto that no one shall be or
be deemed to be a third-party beneficiary of this Agreement.
22. Law Governing; Jurisdiction. This Agreement shall be governed by and
construed in accordance with the laws of the State of Texas, without regard to
any conflicts of laws provisions thereof. Each party hereby irrevocably submits
to the personal jurisdiction of the United States District Court for the
Southern District of Texas, as well as of the District Courts of the State of
Texas in Xxxxxx County, Texas over any suit, action or proceeding arising out of
or relating to this Agreement. Each party hereby irrevocably waives, to the
fullest extent permitted by law, any objection which it may now or hereafter
have to the laying of the venue of any such mediation, arbitration, suit, action
or proceeding brought in any such county and any claim that any such mediation,
arbitration, suit, action or proceeding brought in such county has been brought
in an inconvenient forum.
23. Incorporation by Reference. Any agreement referred to or included herein
constitutes an integral part to this Agreement and is incorporated into this
Agreement by this reference.
24. Controlling Agreement. Other than the provisions of Paragraphs 10 and 22
hereof, in the event of any conflict between the terms of this Agreement, the
Stock Purchase Agreement, or the Other Agreements, the terms of the Stock
Purchase Agreement shall control.
25. Entire Agreement. This instrument contains the entire understanding of the
parties with respect to the subject matter hereof, and may not be changed
orally, but only by an instrument in writing signed by each of the parties
hereto.
26. Multiple Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. A facsimile transmission
of this signed Agreement shall be legal and binding on all parties hereto.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the day and year first above written.
/s/ Xxxxxx Xxxxxxx
SYDNEY XXXXXXX
XXXXXXX PARTNERS & COMPANY, LLC
By /s/ Xxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxxx, Managing Member
GLAST, XXXXXXXX & XXXXXX, P.C.
By /s/ Xxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxxx
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