Exhibit 10.4
ESCROW AGREEMENT
ESCROW AGREEMENT ("ESCROW AGREEMENT") dated as of December 13, 2001 by
and among Vacation Ownership Marketing, Inc., a Delaware corporation
("COMPANY"), Equity Planners LLC, Sea Lion Investors LLC, and Myrtle Holdings
LLC, all of which are Colorado limited liability companies ("PURCHASERS"), and
Xxxxx Holdings Company, Inc., a New York corporation having a principal place of
business at 0000 Xxxx 00xx Xxxxxx, Xxxxxxxx, XxxXxxx 00000 ("ESCROW AGENT").
WHEREAS:
A. Purchasers and XXXX Acquisition Corp. ("ACQUISITION CORP.") entered
into a Securities Subscription Agreement dated as of August 27, 2001
("AGREEMENT"), in which, INTER ALIA, Purchasers agreed to purchase $1,000,000 of
Acquisition Corp.'s 8% Series A Senior Subordinated Convertible Redeemable
Debentures ("ACQUISITION CORP. DEBENTURE(S)") convertible into shares of
Acquisition Corp. common stock.
B. Subsequent to the execution and delivery of the Acquisition Corp.
Debentures Acquisition Corp. was merged into the Company, the Company assumed
the obligations of Acquisition Corp. to the Purchasers under the Agreement, and
the Company agreed to substitute for the Acquisition Corp. Debentures the
Company's 8% Series SPA Senior Subordinated Convertible Redeemable Debentures
convertible into shares of common stock in the Company (referred to herein as
either the "Conversion Shares" or the "Common Stock"), which Common Stock is
publicly traded and quoted on the National Association of Securities Dealers OTC
Electronic Bulletin Board under the symbol "VAOM."
C. Purchasers have been requested by certain broker/dealers set forth
on SCHEDULE A ("BROKER") through which Conversion Shares may be sold to deposit
with each Broker a sufficient number of shares of the Company's Common Stock
("ESCROW SHARES") to ensure the timely delivery of any Conversion Shares sold
through such Broker to the buyer thereof.
D. The Company is willing to deposit such Escrow Shares with the Escrow
Agent provided that the Purchasers have no present right or entitlement to the
Escrow Shares whatsoever, and provided that a procedure is established to
release the Escrow Shares either to the Purchasers or the Company, as the case
may be.
NOW THEREFORE, in consideration of the respective premises, mutual
covenants and agreements of the parties hereto, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. APPOINTMENT OF ESCROW AGENT. Escrow Agent is hereby appointed as
escrow agent and the Escrow Agent hereby accepts such appointment. The Escrow
Agent shall act in accordance with the instructions set forth in this Escrow
Agreement and any further instructions given to it by written instrument signed
by Company and Purchasers.
2. DELIVERY OF AND USE OF THE CONVERSION SHARES
(a) On the date hereof or at such later time as the Company
has authorized sufficient shares therefor, the Company shall deposit with Escrow
Agent 100,000,000 Escrow Shares of Company's common stock, issued in the name of
Escrow Agent, which
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shall be freely tradeable and without restrictive legend of any nature, and same
shall be deposited and held in an account or accounts registered in the name of
the Escrow Agent at one or more of the Brokers. If the Company does not now have
authorized a sufficient number of shares of Common Stock to meet its escrow
requirement, it shall concurrently herewith deposit with the Escrow Agent the
number of shares of Common Stock remaining authorized but unissued, and upon
authorization of a sufficient additional number of shares, shall deposit such
additional shares as Escrow Shares with the Escrow Agent.
(b) Each Notice of Conversion of the Debenture shall be
simultaneously sent by facsimile to the Company, as required by the terms of the
Debenture, and to the Escrow Agent. Only upon Escrow Agent's receipt of a copy
of a Notice of Conversion to the Company, as defined under section 3 of the each
Debenture, the Escrow Shares shall be used as Conversion Shares, as defined in
Section 4 (a) of the Debenture, to convert the Debenture into Company common
stock in accordance with the terms of the Debenture and Escrow Agent shall
direct Broker to journal the Conversion Shares to Purchasers' account at Broker
or to such other party as Purchasers shall direct. Until such Notice of
Conversion is received, Purchaser shall have absolutely no right, title or
interest in any of the Escrow Shares.
(c) Escrow Agent is specifically authorized hereby to rely
upon the validity and effectiveness of any Notice of Conversion received by it
and shall deliver the Conversion Shares in accordance with subparagraph b above.
(d) Upon Maturity and payment or redemption by the Company of
the Debenture, or upon conversion of the entire Debenture into Conversion
Shares, any remaining Escrow Shares shall be delivered by the Escrow Agent to
Company, and upon such delivery, none of the parties to this Escrow Agreement
shall have any further obligations to the other.
3. INDEMNIFICATION. Purchasers and Company agree, jointly and
severally, to indemnify, defend and hold harmless the Escrow Agent from and
against any and all costs (including, without limitation, legal fees and
expenses), liabilities, claims and losses arising out of or in connection with
this Escrow Agreement or any action or failure to act by the Escrow Agent under
this Escrow Agreement, except as provided in paragraph 8 below.
4. CONCERNING THE ESCROW AGENT. To induce the Escrow Agent to act
hereunder, it is further agreed by the undersigned that:
(a) This Escrow Agreement expressly sets forth all the duties
of the Escrow Agent with respect to any and all matters pertinent hereto. No
implied duties or obligations shall on the part of the Escrow Agent shall be
read into this Escrow Agreement. The Escrow Agent shall not be bound by the
provisions of any agreement among the other parties hereto except this Escrow
Agreement.
(b) The Escrow Agent shall not be liable for any action or
failure to act in its capacity as Escrow Agent hereunder unless such action or
failure to act shall constitute willful misconduct on the part of the Escrow
Agent, in which case there shall be no indemnification obligations.
(c) The Escrow Agent shall be entitled to rely upon any order,
judgment, certification, demand, notice, instrument or other writing delivered
to it hereunder without
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being required to determine the authenticity or the correctness of any fact
stated therein or the propriety or validity of the service thereof. The Escrow
Agent may act in reliance upon any instrument or signature believed by it to be
genuine and may assume, unless he has actual knowledge to the contrary, that any
person purporting to give notice or receipt or advice or make any statement or
execute any document in connection with the provisions hereof has been duly
authorized to do so.
(d) The Escrow Agent may act pursuant to the advice of counsel
with respect to any matter relating to this Escrow Agreement and shall not be
liable for any action taken or omitted in accordance with such advice, except as
provided in paragraph 4(b) above.
(e) The Escrow Agent does not have and shall not have any
interest whatsoever in the Debentures, Conversion Shares, Escrow Shares or any
other property deposited hereunder but is serving as escrow holder only and
having only possession thereof with no rights as a shareholder of the Company,
and is not charged with any duty or responsibility to determine the validity or
enforceability of any such documents. Furthermore, the Escrow Agent shall have
no right to vote the Escrow Shares or have any other pecuniary rights in the
Escrow Shares. The Escrow Agent may not assert any lien on the Escrow Shares for
payment of any fee due the Escrow Agent.
(f) The Escrow Agent (and any successor Escrow Agent) may at
any time resign as such by delivering the Escrow Shares to any successor Escrow
Agent, jointly designated by the other parties hereto in writing, or to any
court of competent jurisdiction, whereupon the Escrow Agent shall be discharged
of and from any and all further obligations arising in connection with this
Escrow Agreement thereafter. The resignation of the Escrow Agent will take
effect on the earlier of (a) the appointment of a successor (including a court
of competent jurisdiction) or (b) the day which is 30 days after the date of
delivery of its written notice of resignation to the other parties hereto. If at
that time the Escrow Agent has not received a designation of a successor Escrow
Agent, the Escrow Agent's sole responsibility after that time shall be to
safekeep the Escrow Shares and not make delivery or disposition thereof until
receipt of a designation of successor Escrow Agent or a joint written
disposition instruction by the other parties hereto or a final order of a court
of competent jurisdiction.
(g) In the event of any disagreement among the parties hereto
resulting in adverse claims or demands being made in connection with the Escrow
Shares, or in the event that the Escrow Agent otherwise determines that the
Escrow Shares should be retained, then the Escrow Agent may retain the Escrow
Shares until the Escrow Agent shall have received (i) a final nonappealable
order of a court of competent jurisdiction directing delivery of the Escrow
Shares or (ii) a written agreement executed by the other parties hereto
directing delivery of the Escrow Shares, in which case the Escrow Agent shall
promptly deliver the Escrow Shares in accordance with such order or agreement.
Any court order referred to in (i) above shall be accompanied by a legal opinion
by counsel for the presenting party reasonably satisfactory to the Escrow Agent
to the effect that said court order is final and nonappealable. The Escrow Agent
shall act on such court order and legal opinion without further question.
(h) This Escrow Agreement shall be binding upon and inure
solely to the benefit of the parties hereto an their respective successors
(including successors by way of merger) and assigns, heirs, administrators and
representatives and shall not be enforceable
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by or inure to the benefit of any third party except as provided in paragraph
(g) with respect to a resignation by the Escrow Agent.
(i) This Escrow Agreement may be modified by a writing signed
by all the parties hereto, and no waiver hereunder shall be effective unless in
a writing signed by the party to be charged.
5. CONSENT TO JURISDICTION.
Company and Purchasers hereby irrevocably consents to the jurisdiction
of any federal or state court, in New York, New York, in any action or
proceeding arising out of or relating to this Escrow Agreement. Company hereby
irrevocably waives, to the fullest extent possible the defense of an
inconvenient forum to the maintenance of such action or proceeding. Service of
process may be effectuated by certified mail, return receipt requested, or by
Federal Express with evidence of delivery to the parties at the addresses set
forth in Section 7 below.
COMPANY AND PURCHASERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY
AND ALL RIGHTS TO A TRIAL BY JURY IN ANY ACTION, SUIT OR COUNTERCLAIM,
ARISING IN CONNECTION WITH, OUT OF OR OTHERWISE RELATING TO THIS ESCROW
AGREEMENT. COMPANY SHALL NOT RAISE ANY COUNTERCLAIM IN ANY PROCEEDING
BROUGHT BY PURCHASERS TO ENFORCE THE PROVISIONS OF THIS ESCROW
AGREEMENT.
Nothing herein shall affect the right of the Purchasers to serve
process in any other manner permitted by law or to affect the right of the
Purchasers to bring any action or proceeding against Purchasers in any other
court or jurisdiction.
6. GOVERNING LAW. This Escrow Agreement shall be governed in all
respects by the internal laws of the State of New York. The parties agree to
submit to the jurisdiction and venue of any state or federal court in New York
City having subject matter jurisdiction over the matter. Service may be made by
certified mail, return receipt requested, to the parties at the addresses set
forth in paragraph 7 below, but the parties shall not be precluded from making
service in any other manner permitted by law.
7. NOTICES. All notices, requests, consents and other communications
hereunder shall be in writing, shall be delivered by hand or sent by U.S.
Express Mail, Fedex or some other reliable overnight courier service for next
day delivery. Each such notice or other communication shall for all purposes of
this Escrow Agreement be treated as effective or having been given when
delivered if delivered personally, or, if sent by overnight express mail
service, 1 day after the same has been deposited with the U.S. Postal Service,
Fedex or the overnight courier. All such notices must also be sent by facsimile
on the same day to the parties as follows:
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If to Company: Xxxxxxx Xxxxxxxxx, President
Vacation Ownership Marketing, Inc.
0000 XX 0xx Xxxxxx
Xxxxx, Xxxxxxx 00000
Fax: (000) 000-0000
If to Purchasers: Equity Planners LLC
Quadrant Center, 0000 XXX Xxxxxxx, Xxxxxxxxx Xxxx
Xxxxxxxxx Xxxxxxx, XX 00000
Fax: (000) 000-0000
Sea Lion Investors LLC 0000 00xx
Xxxxxx, Xxxxx 000 Xxxxxx, XX 00000
Fax: (000) 000-0000
Myrtle Holdings LLC
000 Xxxxxxxxxxx Xxxx., 0xx Xxxxx
Xxxxxxxxxx, XX 00000
Fax: (000) 000-0000
If to Escrow Agent: Xxxxx Holdings Company, Inc.
0000 Xxxx 00xx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
8. COUNTERPARTS. This Escrow Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
9. FEES. Purchasers shall pay all reasonable fees and expenses of the
Escrow Agent.
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IN WITNESS WHEREOF, the parties hereto have caused this Escrow
Agreement to be duly executed and delivered, as of the day and year first above
written.
COMPANY:
Vacation Ownership Marketing, Inc.
By:
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Xxxxxxx Xxxxxxxxx, President
PURCHASERS:
EQUITY PLANNERS LLC
By:
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SEA LION INVESTORS LLC
By:
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MYRTLE HOLDINGS LLC
By:
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ESCROW AGENT:
------------
XXXXX HOLDINGS COMPANY, INC.
By:
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