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EXHIBIT 10.23
ESCROW AGREEMENT AND AGREEMENT OF SETTLEMENT
AND GENERAL RELEASE
1. PARTIES: The parties to this Escrow Agreement and Agreement of Settlement
and General Release ("Agreement") are JMAR Industries, Inc. ("JMAR"), a Delaware
corporation; Atlantic American Holding Company Limited ("ATLANTIC"), a St. Kitts
and Nevis, West Indies corporation; Xxxxxx, Milliken, Clark, O'Hara & Xxxxxxxxx,
P.C. ("Escrow Agent 1"); and Sankary & Sankary ("Escrow Agent 2").1/ Escrow
Agents 1 and 2 at times will be referred to collectively as "Escrow Agents".
2. RECITALS: This Agreement is made with reference to the following
facts:
2.1 In 1995, Atlantic purchased 1,000,000 shares of JMAR Common Stock
(the, "JMAR Stock") pursuant to the terms of an agreement between JMAR and
Atlantic dated March 31, 1995 (the, "March 31, 1995 Agreement") and as
consideration therefore issued and delivered to JMAR 4,000 shares of $250 par
value of Series A Cumulative Preferred Stock (the, "Preferred Stock") of
Atlantic.
2.2 Certain disputes and controversies have arisen between JMAR and
Atlantic, including, but not limited to, the claims, demands and cause or causes
of action set forth by the parties in a civil action pending in the United
States District Court for the Southern District of California, entitled JMAR
Industries, Inc. v. Atlantic American Holding Company Limited, Case No.
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1/ JMAR and ATLANTIC shall at times be referred to as the "parties." Any such
reference shall exclude the Escrow Agents.
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96-1506 J(RBB) (the, "Civil Action").
2.3 It is the intention of JMAR and Atlantic to settle and dispose
of, fully and completely, any and all claims, demands, and causes of action
which exist or may exist between them, known or unknown, from the beginning of
time to the date hereof, including, without limitation on the generality of the
foregoing, any and all claims, demands and cause or causes of action reflected
in the Civil Action described more fully at Section 2.2.
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
3. DEPOSIT OF JMAR STOCK WITH ESCROW AGENT 2:
3.1 Atlantic currently is in possession of certificates, registered
in the name of Atlantic, representing an aggregate of 800,000 shares of the
JMAR Stock acquired under the March 31, 1995 Agreement. No later than the date
Atlantic executes this Agreement, Atlantic will deposit certificates, registered
in its name, representing 600,000 shares of the JMAR Stock with Escrow Agent 2.
Escrow Agent 2 shall hold and maintain the JMAR Stock until the purchase price
for the JMAR Stock has been received by Escrow Agent 1 as provided herein.
4. ATLANTIC'S DEPOSIT OF DOCUMENTATION WITH ESCROW AGENT 1:
4.1 No later than the date Atlantic executes this Agreement, Atlantic
will deliver to Escrow Agent 1 all documentation necessary to effect a transfer
of interest in the 600,000 shares of JMAR Stock deposited with Escrow Agent 2
pursuant to Section 3.1, all of which shall be in form and substance acceptable
to JMAR's transfer agent, including but not limited to: 1) a stock assignment
executed in blank by Atlantic; 2) a corporate resolution of Atlantic authorizing
the transfer of interest in the JMAR Stock provided for herein; and 3) signature
guaranties for all
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executed documents. As soon as Atlantic is provided with one or more
subscription agreements pertaining to the JMAR Stock, it will immediately
execute and deliver them to Escrow Agent 1. Signature guaranties also shall be
provided for all subscription agreements Atlantic delivers to Escrow Agent 1. If
no securities firms, banks or other institutions located in St. Kitts are
capable of providing signature guaranties acceptable to the transfer agent, then
Altantic shall execute the documents under alternative conditions satisfactory
to the transfer agent.
5. JMAR'S DEPOSIT OF THE ATLANTIC PREFERRED STOCK WITH ESCROW AGENT 1:
JMAR currently is in possession of 4,000 shares of Atlantic Preferred
Stock. No later than the date JMAR executes this Agreement, JMAR shall deposit
with Escrow Agent 1 the 4,000 shares of Atlantic Preferred Stock in its
possession, together with a stock assignment to effect the transfer of the
Atlantic Preferred Stock to Atlantic with the number of shares left blank.
Escrow Agent 1 shall hold and maintain the Atlantic Preferred Stock until JMAR
obtains a sufficient distribution of proceeds under the formula provided in
Section 7 to cover the par value of the Preferred Shares and dividends owed
thereon and fees and expenses as provided therein. If JMAR does not receive an
amount sufficient to cover the amounts owed to JMAR under Section 7, Escrow
Agent 1 shall redeem the maximum pro-rata number of Preferred Shares as can be
redeemed at $250.00 a share according to the amount of payment received by JMAR.
6. SALE OF THE JMAR STOCK
Once Atlantic has deposited the 600,000 shares of JMAR Stock with
Escrow Agent 2, JMAR shall attempt to locate a buyer or buyers to purchase the
JMAR Stock held by
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Escrow Holder 2. Once an offer to purchase the JMAR Stock is received from a
buyer, and the purchase price is not less than $1.99 per share, Atlantic shall
be deemed to have accepted such offer upon receipt of written notice thereof
from JMAR. If a buyer purchases the JMAR Stock for a price less than $1.99 per
share, then JMAR shall receive the amount specified in Section 7.1 minus 30% of
the difference between $1.99 per share and the purchase price per share
multiplied by the number of shares of JMAR Stock sold.
Upon receipt by Escrow Agent 1 of good funds representing payment for
the JMAR Stock, Escrow Agent 1 shall confirm this fact in writing to Escrow
Agent 2, and Escrow Agent 2 shall thereupon deliver to JMAR's transfer agent the
stock certificates representing the 600,000 shares of JMAR Stock deposited by
Atlantic with Escrow Agent 2, together with any documentation as the transfer
agent shall require, with a request that a new stock certificate or certificates
be issued in accordance with the purchaser's or purchasers' instructions and be
delivered to Escrow Agent 1.
Upon receipt by Escrow Agent 1 of the new stock certificate or
certificates in such form as are acceptable to the purchaser or purchasers,
Escrow Agent 1 shall distribute the proceeds from the sale of the JMAR Stock as
provided in Section 7 below and shall deliver the new stock certificate or
certificates to the purchaser or purchasers. Escrow Agent 1 also shall deliver
those Atlantic Preferred Shares and stock assignments, redeemed by the foregoing
distribution of proceeds, to Escrow Agent 2 who will convey them to Atlantic.
7. DISTRIBUTION OF PROCEEDS FROM THE SALE OF THE JMAR STOCK:
7.1 The proceeds from the sale of the JMAR Stock shall be distributed
as
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follows:
(A) JMAR shall receive :
(I) $1,000,000 representing the face value of the Atlantic
Preferred Shares issued to JMAR under the March 31, 1995 Agreement; (ii) unpaid
dividends on the Atlantic Preferred Shares due to JMAR amounting to $64,167 as
of December 1, 1996; and (iii) legal fees and expenses and other out-of-pocket
costs incurred by JMAR in connection with the Civil Action and this Agreement
amounting to $61,150. Atlantic shall receive a credit against the foregoing sums
in the amount of $209,705, being the net proceeds JMAR received from the
foreclosure sale of Atlantic's 200,000 shares of JMAR Stock which had been
pledged as security in a loan transaction involving Creative Sports. Therefore,
JMAR shall receive $915,612 from the proceeds of the sale of the JMAR Stock
pursuant to Section 6 hereof, provided this transaction is completed prior to
December 31, 1996.2/ If this transaction is not completed and Atlantic has
complied prior to December 31, 1996 with all requests for documents presented to
Atlantic by JMAR or the transfer agent prior to December 31, 1996, including but
not limited to requests for signed subscription agreements and all required
documents of the transfer agent, the Preferred Stock dividend of $5,833 due on
January 1, 1997 will be pro-rated on a daily basis until the completion of the
transaction.
(B) JMAR is deemed to have received its funds upon payment of
good funds to Escrow Agent 1 pursuant to paragraph 6 herein and when Escrow
Agent 1 has received the newly issued certificates in the names of the
purchasers in such form as is acceptable to
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2/ The amount JMAR receives is subject to the offset specified in Section 6 in
the event the purchase price paid for the JMAR Stock is less than $1.99 per
share.
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the purchaser or purchasers. Notwithstanding the foregoing, the transaction will
be deemed to be completed upon receipt of good funds by Escrow Agent 1 pursuant
to paragraph 6 and delivery to Escrow Agent 1 by Atlantic of 600,000 shares of
JMAR Stock properly endorsed by Atlantic, along with all necessary documents to
transfer ownership of the stock, as determined by the transfer agent.
(C) Atlantic shall receive any and all remaining proceeds
obtained through the sale of the JMAR Stock pursuant to Section 6 hereof after
JMAR is paid the sums specified in paragraph 7.1(a).
7.2 Concurrent with the distribution of the proceeds to Atlantic
under section 7.1(c), JMAR shall deliver to Atlantic (i) a release by JMAR of
any interest in, or claim to, the 200,000 shares of JMAR Stock issued to and
remaining in the possession of Atlantic and not delivered to Escrow Agent 1; and
(ii) the Atlantic Preferred Shares presently issued to JMAR, upon payment
evidenced by JMAR's receipt of the proceeds to be paid pursuant to the terms of
paragraph 7.1(a).
8. POWERS OF ESCROW AGENTS: The Escrow Agents undertake the duties and
obligations imposed by this Escrow Agreement upon the following terms and
conditions, all of which shall be binding on JMAR and Atlantic:
(A) In performing any duties under the Agreement, an Escrow
Agent shall not be liable to any party for damages, losses, or expenses, except
for gross negligence or willful misconduct on the part of the Escrow Agent.
Neither Escrow Agent shall incur any such liability for (1) any act or failure
to act made or omitted in good faith, or (2) any action taken or omitted in
reliance upon any instrument, including any written statement or affidavit
provided for in
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this Escrow Agreement that an Escrow Agent shall in good faith believe to be
genuine, nor will an Escrow Agent be liable or responsible for forgeries, fraud,
impersonations, nor determining the scope of any representative authority. In
addition, each Escrow Agent may consult with legal counsel in connection with
such Escrow Agent's duties under this Escrow Agreement and shall be fully
protected in any act taken, suffered, or permitted by him/her in good faith in
accordance with the advice of counsel. Neither Escrow Agent is responsible for
determining and verifying the authority of any person acting or purporting to
act on behalf of any party to this Escrow Agreement.
(B) In the event that the conditions of this Escrow Agreement
are not promptly fulfilled, or if an Escrow Agent renders any service not
provided for in this Escrow Agreement, or if the parties request a substantial
modification of its terms, or if any controversy arises, or if either Escrow
Agent is made a party to, or intervenes in, any litigation pertaining to this
escrow or its subject matter, such Escrow Agent shall be reasonably compensated
for such extraordinary services and reimbursed for all costs, attorney's fees
and expenses occasioned by such default, delay, controversy or litigation and
such Escrow Agent shall have the right to retain all documents and/or other
things of value at any time held by such Escrow Agent until such compensation,
fees, costs, and expenses are paid. The party or parties requesting such
additional services or modifications, or responsible for the default, delay,
controversy or litigation, shall pay these sums upon demand and such Escrow
Agent may deduct such sums from the funds to be distributed to such party or
parties hereunder.
(C) If any controversy arises between the parties to this
Agreement, or with any other party, concerning the escrow services provided
under this Agreement, its terms or conditions, neither Escrow Agent will be
required to determine the controversy or to take any action
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regarding it. The Escrow Agents may hold all documents and funds and may wait
for settlement of any such controversy by final appropriate legal proceedings or
other means as, in each Escrow Agent's discretion, such Escrow Agent may be
required, despite what may be set forth elsewhere in this Escrow Agreement. In
such event, neither Escrow Agent will be liable for interest or damage.
Furthermore, each Escrow Agent may at its option, file an action of interpleader
requiring the parties to answer and litigate any claims and rights among
themselves. Each Escrow Agent is authorized to deposit with the clerk of the
court all documents and funds held in escrow, except all costs, expenses,
charges and reasonable attorney fees incurred by such Escrow Agent due to the
interpleader action and which the parties jointly and severally agree to pay.
Upon initiating such action, such Escrow Agent shall be fully released and
discharged of and from all obligations and liability imposed by the terms of
this Escrow Agreement.
(D) JMAR and Atlantic and their respective successors and
assigns, jointly and severally, agree to indemnify and hold each Escrow Agent
harmless against any and all losses, claims, damages, liabilities and expenses,
including reasonable costs of investigation, attorney's fees and disbursements
that may be imposed on each Escrow Agent or incurred by each Escrow Agent in
connection with the performance of its duties under this Escrow Agreement,
unless such Escrow Agent's conduct was grossly negligent or willful.
(E) In the event of an actual conflict between either Escrow
Agent's representation of JMAR or Atlantic and its duties as Escrow Agent
hereunder, such Escrow Agent may resign immediately. Either Escrow Agent may
also resign at any time upon giving at least ten (10) days written notice to the
parties; provided, however, that no such resignations shall become
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effective until the appointment of a successor escrow agent which shall be
accomplished as follows: The parties shall use their best efforts to mutually
agree on a successor escrow agent within ten (10) days after receiving such
notice. If the parties fail to agree upon a successor escrow agent within such
time, such Escrow Agent shall have the right to appoint a successor escrow agent
authorized to do business in the State of California. The successor escrow agent
shall execute and deliver an instrument accepting such appointment and its
properties, rights, powers and duties of the predecessor escrow agent as if
originally named as escrow agent and the resigning Escrow Agent shall be
discharged from any further duties and liabilities under this Escrow Agreement.
9. DISMISSAL: Upon full performance of this Agreement, JMAR shall dismiss
the Civil Action described in Section 2.1 with prejudice, each party to bear its
own costs except as provided herein.
10. GENERAL RELEASES: In consideration of the mutual general releases
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which is acknowledged by each party, JMAR and ATLANTIC agree and
generally release each other as follows:
10.1 Except as to such rights or claims as may be created by this
Agreement and such Subscription Agreements as are executed by Atlantic, each
party hereby releases, remises and forever discharges each other party, and each
of its present and former agents, servants, officers, directors, employees,
shareholders, principals, predecessors, alter egos, partners, parents,
subsidiaries, attorneys, insurers, reinsurers, sureties, successors and assigns,
from any and all matters as described more fully at Section 2.2 above and any
claims, demands and cause or causes of action heretofore or hereafter arising
out of, connected with or incidental to the dealings between the parties
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prior to the effective date hereof, including, without limitation on the
generality of the foregoing, any and all claims, demands and cause or causes of
action reflected in the civil action described more fully at Section 2.1.
Notwithstanding the foregoing, Atlantic shall not be released from liability
arising out of, or related to, any breach by Atlantic of its representations and
warranties contained in Section 11 of this Agreement or any erroneous
representations and warranties contained therein.
10.2 THE UNDERSIGNED ALL ACKNOWLEDGE THAT THEY HAVE BEEN ADVISED BY
LEGAL COUNSEL, AND THAT THEY ARE FAMILIAR WITH AND SPECIFICALLY WAIVE THE
BENEFIT OF THE PROVISIONS OF SECTION 1542 OF THE CIVIL CODE OF THE STATE OF
CALIFORNIA, WHICH PROVIDES AS FOLLOWS:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES
NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE
RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR.
11. REPRESENTATIONS AND WARRANTIES:
11.1 Atlantic represents and warrants to, and agrees with, JMAR as
follows.
(A) Atlantic has full right, title and interest in the 600,000
shares of JMAR Stock, free and clear of any security interest, lien, charge,
encumbrance, option or any claim whatsoever.
(B) Atlantic and its directors, officers, employees, agents or
affiliates have complied with all federal or state securities statutes and
regulations in connection with
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Atlantic's ownership of the JMAR Stock.
(C) Neither the execution or delivery by Atlantic of this
Agreement nor the performance by Atlantic of the transactions contemplated
herein violate any provision of law applicable to Atlantic or conflict with or
result in a breach or termination of any provision of, or constitute a default,
or will result in the creation of any lien, charge or encumbrance upon any of
the property or assets of Atlantic pursuant to or under its certificate of
incorporation or By-laws, or any mortgage, deed of trust, indenture or other
agreement or instrument, or any other judgment, decree, statute, regulation or
any other restriction of any kind or character to which Atlantic may be bound
with or without the giving of notice, the passage of time or both, except with
respect to applicable laws affecting creditors rights.
11.2 Each of the parties to this Agreement represents and warrants to,
and agrees with, each other as follows:
(A) Each party has received independent legal advice from its
attorneys with respect to the advisability of making the settlement provided for
herein, with respect to the advisability of executing this Agreement, and with
respect to the meaning of California Civil Code Section 1542.
(B) No party (nor any officer, agent, partner, employee,
representative or attorney of or for any party), has made any statement or
representation to any other party regarding any fact relied upon in entering
into this Agreement, and each party does not rely upon any statement,
representation or promise of any other party (or any officer, agent, partner,
employee, representative or attorney of or for any other party), in executing
this Agreement, or in making the settlement provided for herein, except as
expressly stated in this Agreement.
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(C) Each party to this Agreement has made such investigation of
the facts pertaining to this settlement and this Agreement, and of all the
matters pertaining to it, as it deems necessary.
(D) Each party or responsible officer or partner thereof has
read this Agreement and understands the contents hereof. Each of the officers or
partners executing this Agreement on behalf of their respective corporations or
partnerships is empowered to do so and thereby binds such respective corporation
or partnership.
(E) Neither party has assigned, transferred, or granted, or
purported to assign, transfer, or grant, any of the claims, demands, and cause
or causes of action disposed of by this Agreement.
(F) Each term of this Agreement is contractual and not merely a
recital.
(G) Each party is aware that it may hereafter discover claims or
facts in addition to or different from those it now knows or believes to be true
with respect to the matters related herein. Nevertheless, it is the intention of
the parties to fully, finally and forever settle and release all such matters,
and all claims relating to them, which do now exist or may have existed between
them. In furtherance of such intention, the releases given herein shall be and
remain in effect as full and complete mutual releases of all such matters
notwithstanding the discovery or existence of any additional or different claims
or facts relating to them. Said releases shall not apply to Atlantic's breaches
of the representations and warranties made in Section 11 of this Agreement or to
any erroneous representations contained in said Section.
(H) The parties will execute all such further and additional
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documents as shall be reasonable, convenient, necessary or desirable to carry
out the provisions of this Agreement.
(I) It is within the contemplation of each of the parties to
this Agreement that each of them may have claims for relief or causes of action
for malicious prosecution or abuse of process or other claims in connection with
the filing of claims for relief, causes of action, counterclaims or
cross-complaints in the Civil Action described more fully at Section 2.1 and
matters undertaken in connection therewith. It is the intention of the parties
to this Agreement to release any and all such claims, to deny that any malicious
prosecution of actions or abuse of process has occurred, and to represent and
agree that the filing of all claims for relief, causes of action, counterclaims
or cross-complaints in the foregoing civil action, was done pursuant to advice
of legal counsel and upon probable cause.
12. INDEMNIFICATION: Atlantic agrees to indemnify, reimburse, and hold
harmless JMAR from and against all claims, damages, losses, liabilities,
demands, suits, judgments, causes of action, civil and criminal legal
proceedings, penalties, fines, and other sanctions, and any attorney's fees and
other reasonable costs and expenses, relating to or arising out of, Atlantic's
breach of, any representation, warranty, or covenant made by it in Section 11 of
this Agreement or any erroneous representations and warranties contained in
Section 11.
13. SETTLEMENT: This Agreement effects the settlement of claims which are
denied and contested, and nothing contained herein shall be construed as an
admission by any party of any liability of any kind to any other party. Each of
the parties denies any liability in connection with any claim and intends by
this Agreement solely to avoid litigation and buy its peace. The parties agree
to refrain from publicly disseminating this Agreement and the settlement terms
embodied herein
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to individuals or entities unaffiliated with their respective corporations,
unless required to do so: 1) by the Securities and Exchange Commission; 2) to
comply with a party's duties and/or obligations under applicable law; 3) to
fulfill disclosure obligations imposed by law; or 4) to provide retained
professionals such as attorneys and accountants with information necessary for
said professionals to perform their services. The parties additionally agree not
to make any adverse derogatory statements which are untrue concerning this
transaction or the other party in any report, press release, quarterly or annual
financial statement or report, and any response for information thereof.
14. MISCELLANEOUS:
14.1 This Agreement shall be deemed to have been executed and
delivered within the State of California, and the rights and obligations of the
parties hereto shall be construed and enforced in accordance with and governed
by, the laws of the State of California.
14.2 This Agreement and such Subscription Agreements as are executed
by the parties pursuant to this Agreement constitute the entire agreement
between the parties which supersedes all prior and contemporaneous oral and
written agreements and discussions. This Agreement may be amended only by an
agreement in writing.
14.3 This Agreement is binding upon and shall inure to the benefit of
the parties and each of their present and former agents, servants, officers,
directors, employees, shareholders, principals, predecessors, alter egos,
partners, parents, subsidiaries, attorneys, insurers, reinsurers, sureties,
heirs, executors, administrators, trustees, successors and assigns.
14.4 Each party has cooperated in the drafting and preparation of this
Agreement. Hence, in any construction to be made of this Agreement, the same
shall not be construed against any party.
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14.5 In the event of litigation or arbitration relating to this
Agreement, the prevailing party shall be entitled to recover reasonable
attorneys' fees and costs.
14.6 This Agreement may be executed in counterparts, and when each
party has signed and delivered at least one such counterpart, each counterpart
shall be deemed an original, and, when taken together with the other signed
counterparts, shall constitute one Agreement, which shall be binding upon and
effective as to all parties.
14.7 Each party shall pay for its own legal fees and other expenses
relating to the litigation referred to in Paragraph 2.1.
14.8 This Agreement shall be effective as of the date the last
counterpart is executed.
15. NOTICES: All notices, consents, requests, instructions, approvals, and
other communications hereunder shall be validly given, made or received if in
writing and delivered personally or sent by registered or certified mail,
postage prepaid, to:
(a) JMAR INDUSTRIES, INC.
0000 Xxxxxxxx Xxxxxx Xxxx., Xxxxx X
Xxx Xxxxx, XX 00000
Attn: Xxxxxx Xxxxxxxxx,
Chief Financial Officer
Fax Number: (000) 000-0000
(b) ATLANTIC AMERICAN HOLDING COMPANY LIMITED
0000 Xxxxxxxxx Xxxx., Xxxxx 0
Xxxxx Xxxxxxx, Xxxxxxxxxxx 00000
Attn: Xxxxxx Xxxxx
Facsimile: 601/875-7761
(c) THE ESCROW AGENTS:
Xxxxxx, Milliken, Clark, O'Hara & Xxxxxxxxx
000 Xxxxx Xxxx Xxxxxx, 00xx Xxxxx
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Xxx Xxxxxxx, XX 00000-0000
Attn: Xxxxxx X. Xxxxxxxx, Esq.
Fax Number: (000) 000-0000
SANKARY & SANKARY
0000 Xxxxx Xx Xx Xxxxxx
Xxx Xxx, Xxxxxxxxxx 00000
Attn: Xxxxxx Xxxxxxx
Fax Number: (000) 000-0000
JMAR INDUSTRIES, INC.
DATED: December 24, 1996 /s/ Xxxxxx X. Xxxxxxxxx
---------------------------------
By: Xxxxxx X. Xxxxxxxxx
Its: Chief Financial Officer
ATLANTIC AMERICAN HOLDING COMPANY LIMITED
DATED: December 26, 1996 /s/ Xxxx X. X. Xxxxxxx
---------------------------------
By: Xxxx X X Xxxxxxx
Its: Chairman
XXXXXX, MILLIKEN, CLARK, O'HARA
& XXXXXXXXX
DATED: December 30, 1996 /s/ Xxxxxx X. Xxxxxxxx
---------------------------------
By: Xxxxxx X. Xxxxxxxx
SANKARY & SANKARY
DATED: December 31, 1996 /s/ Xxxxxx Xxxxxxx
---------------------------------
By: Xxxxxx Xxxxxxx
