EXHIBIT 10.11
ESCROW AGREEMENT
ESCROW AGREEMENT, effective as of the ___ day of May, 2003, by and among
certain of the shareholders listed on Exhibit A to this Escrow Agreement (the
"Shareholders" or "Shareholder") of CENTENNIAL SPECIALTY FOODS CORPORATION, a
Delaware corporation (the "Company"), X.X. XXXXXX & COMPANY, L.L.C. (the
"Representative") and CORPORATE STOCK TRANSFER, INC. (the "Escrow Agent").
WHEREAS, the Shareholders are the record and beneficial owners of certain
of the Company's $.0001 par value common stock ("Common Stock") all as more
fully reflected on Exhibit A to this Escrow Agreement;
WHEREAS, the Company and the Representative of the several underwriters
(the "Underwriters") intend to enter into an underwriting agreement (the
"Underwriting Agreement") pursuant to which the Company will sell Common Stock
in a public offering pursuant to the registration provisions of the Securities
Act of 1933, as amended (the "1933 Act");
WHEREAS, as a condition to closing the proposed public offering of the
Company (the "Offering"), the Representative has required the Shareholders to
deposit an aggregate of 200,000 shares of Common Stock owned by such
Shareholders in Escrow with the Escrow Agent as reflected on Exhibit A (the
"Escrow Shares"); and
WHEREAS, the Shareholders wish to deposit the Escrow Shares in Escrow in
order to fulfill the requirements of the Underwriting Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants, terms and conditions hereinafter set forth, the parties to this
Escrow Agreement agree as follows:
SECTION 1. DESIGNATION AND DEPOSIT OF ESCROW SHARES.
a. The Escrow Shares to be deposited in Escrow pursuant to this
Escrow Agreement consist of 200,000 shares of Common Stock of the Company
and are owned of record as of the date of this Escrow Agreement by the
Shareholders identified on Exhibit A.
b. On the date on which the Securities and Exchange Commission
declares the Company's Registration Statement on Form SB-2 (Reg. No.
333-_____) effective under the 1933 Act (the "Effective Date"), the
Shareholders shall deliver to the Escrow Agent any and all certificates
representing the Escrow Shares and a stock power endorsed in blank with a
medallion guarantee. Promptly after the Effective Date, the Escrow Agent
shall deliver a receipt therefor and, if requested by a Shareholder, a new
certificate representing each Shareholder's share of Common Stock
represented by the certificates delivered but which are not subject to
this Escrow Agreement.
SECTION 2. TITLE OF ACCOUNT. All certificates representing the Escrow
Shares delivered to the Escrow Agent pursuant to this Agreement shall be
deposited on the Effective Date by the Escrow Agent in an account designated
substantially as follows: "Centennial Specialty Foods Corporation Escrow Share
Account" (the "Escrow Account").
SECTION 3. TRANSFER OF ESCROW SHARES DURING ESCROW PERIOD.
a. During the Escrow Period (as defined below) none of the Escrow
Shares deposited in the Escrow Account shall be sold, pledged,
hypothecated or otherwise transferred or delivered out of the Escrow
Account except:
i. transfers by operation of law;
ii. transfers of ownership certificates representing the
Escrow Shares, certificates for which have been deposited to the
Escrow Account, shall remain subject to the restrictions imposed
hereby, including those persons, if any, who become holders, by any
means provided herein, of the Escrow Shares during the Escrow
Period.
SECTION 4. DURATION OF ESCROW PERIOD.
a. The Escrow Period shall commence on the Effective Date and shall
terminate on the earlier of the date on which all Escrow Shares have been
returned to the Shareholders pursuant to Sections 6(a), 6(b), 6(c) or 6(d)
below.
b. This Agreement shall be of no force or effect in the event the
Underwriting Agreement is not executed on the Effective Date in accordance
with its terms.
SECTION 5. RECEIPT OF DISTRIBUTIONS AND DIVIDENDS. During the term of the
Escrow Period, if the Company issues any distributions, dividends, rights or
other property with respect to the Common Stock, then, in such event, the
Company shall be authorized to send evidence of such distributions, dividends,
rights or other property directly to the Escrow Agent, which is hereby
authorized to hold and retain possession of all such evidences of distributions,
dividends, rights or other property until termination of the Escrow Period in
accordance with Section 6 below. In the event the Escrow Shares are distributed
to the Shareholders pursuant to Sections 6(a), 6(b), 6(c) or 6(d) below, then
the Escrow Agent will distribute evidences of such distributions, dividends,
rights, or other property in the form the Escrow Agent received such
distributions, dividends, rights, or other property from the Company. If the
Company recapitalizes, splits or combines its shares, such shares shall be
substituted on a pro rata basis for the Escrow Shares. The Company will notify
the Escrow Agent of the occurrence of the events listed in this section.
SECTION 6. RELEASE AND DELIVERY OF ESCROW SHARES.
a. In the event the Escrow Agent receives written notice from the
Representative and the Company confirming that the Company had after tax
net income of $1.5 million in fiscal 2004, the Escrow Agent shall return
to each Shareholder a certificate for his portion of the Escrow Shares as
are listed on Exhibit A. The Escrow Agent shall return the Escrow Shares
only to the person or entity named as the holder of record in Exhibit A to
this Escrow Agreement, as modified by any transfers made pursuant to
Section 3 above.
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b. In the event the Escrow Agent receives written notice from the
Representative and the Company confirming the Company had after tax net
income of $4.0 million in fiscal year 2005, the Escrow Agent shall return
to each Shareholder a certificate for his portion of the Escrow Shares as
are listed on Exhibit A. The Escrow Agent shall return each certificate
only to the person or entity named as the holder of record in Exhibit A
hereto, as modified by any transfers made pursuant to Section 3 above.
c. In the event the Escrow Agent receives written notice from the
Representative and the Company confirming that the Company has been merged
or consolidated, or has executed a share exchange, with another company
which is the survivor to the transaction or in which the stockholders of
the Company own less that 50% of the outstanding capital stock of the
surviving entity, or that the Company has sold all or substantially all of
its assets and the relevant transaction was approved by the holders of a
majority of the Company's outstanding voting securities exclusive of the
Escrow Shares held hereunder, the Escrow Agent shall contemporaneously
with the closing of any such transaction return to each Shareholder a
certificate for his share of the Escrow Shares as are listed on Exhibit A.
The Escrow Agent shall return each certificate only to the person or
entity named as the holder of record in Exhibit A hereto, as modified by
any transfers made pursuant to Section 3 above.
d. In the event none of the criteria for release specified in
subparagraphs (a), (b) or (c) above is reached by the Company, the Escrow
Shares shall remain in the Escrow Account until a date that is seven years
from the Effective Date. Upon termination of the Escrow Period pursuant to
the provisions of this Section 6(d), the Escrow Agent shall, as promptly
as possible, return to each Shareholder a certificate for its share of the
Escrow Shares as are listed on Exhibit A. The Escrow Agent shall return
each certificate only to the person named as the holder of record in
Exhibit A hereto, as modified by any transfers made pursuant to Section 3
above.
e. At such time as the Escrow Agent shall have returned all Escrow
Shares as provided in this Section, the Escrow Agent shall be discharged
completely and released from any and all further liabilities and
responsibilities under this Escrow Agreement.
f. The determination of the criteria described above shall be solely
the responsibility of the Company and the Representative, and the Escrow
Agent shall have no liability or responsibility therefor.
SECTION 7. VOTING RIGHTS. During the Escrow Period, each Shareholder, or
any transferee receiving all or a portion of the Escrow Shares of such
Shareholder pursuant to Section 3 of this Escrow Agreement, shall have the right
to vote in such Escrow Shares (to the extent the Escrow Shares have voting
rights) in the Escrow Account at any and all shareholder meetings without
restriction.
SECTION 8. LIMITATION OF LIABILITY OF ESCROW AGENT. In acting pursuant to
this Escrow Agreement, the Escrow Agent shall be protected fully in every
reasonable exercise of its discretion and shall have no obligation hereunder to
either the Shareholders or to any other party except as expressly set forth
herein. In performing any of its duties hereunder, the Escrow
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Agent shall not incur any liability to any person for any damages, losses or
expenses, except for willful default or negligence and it shall, accordingly,
not incur any such liability with respect to (1) any action taken or omitted in
good faith upon advice of its counsel, counsel for the Company or counsel for
the Representative given with respect to any questions relating to the duties
and responsibilities of the Escrow Agent under this Agreement, and (2) any
action taken or omitted in reliance upon any instrument, including written
notices provided for herein, not only to its due execution and validity and
effectiveness of its provisions, but also to the truth and accuracy of any
information contained therein, which the Escrow Agent shall in good faith
believe to be genuine, to have been signed and presented by a proper person or
persons and to be in compliance with the provisions of this Agreement.
SECTION 9. INDEMNIFICATION. The Company, the Representative and the
Shareholders shall indemnify and hold harmless the Escrow Agent against any and
all losses, claims, damages, liabilities and expenses, including reasonable
costs of investigation and counsel fees and disbursements, which may be imposed
upon the Escrow Agent or incurred by Escrow Agent in connection with its
acceptance of appointment as Escrow Agent or the performance of its duties
hereunder, including any litigation arising from this Escrow Agreement or
involving the subject matter of this Escrow Agreement.
SECTION 10. PAYMENT OF FEES. The Company shall be responsible for all
reasonable fees and expenses of the Escrow Agent incurred by it in the course of
performing under this Escrow Agreement.
SECTION 11. CHANGE OF ESCROW AGENT. In the event the Escrow Agent notifies
the Company and the Representative that its acceptance of the duties of Escrow
Agent has been terminated by the Escrow Agent, or in the event the Escrow Agent
files for protection under the United States Bankruptcy Code or is liquidated or
ceases operations for any reason, the Company and the Representative shall have
the right to jointly designate a replacement Escrow Agent who shall succeed to
the rights and duties of the Escrow Agent hereunder. Any such replacement Escrow
Agent shall be a trust or stock transfer company experienced in stock transfer,
escrow and related matters and shall have a minimum net worth of $5 million.
Upon appointment of such successor Escrow Agent, the Escrow Agent shall be
discharged from all duties and responsibilities hereunder.
SECTION 12. NOTICES. All notices, demands or requests required or
authorized hereunder shall be deemed given sufficiently if in writing and sent
by registered mail or certified mail, return receipt requested and postage
prepaid and by facsimile or cable:
In the case of the Representative to:
X.X. Xxxxxx & Company, L.L.C.
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxx, Director of Investment Banking, Denver
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With a copy to (which shall not constitute notice):
Xxxxxx & Whitney LLP
000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxxx, Esq.
In the case of the Escrow Agent to:
Corporate Stock Transfer, Inc.
0000 Xxxxxx Xxxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxx, President
In the case of the Company to:
Centennial Specialty Foods Corporation
000 Xxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: J. Xxxxxxx Xxxxxx, Chief Executive Officer
With a copy to (which shall not constitute notice):
Berliner Xxxxxx Xxxxxx & XxXxxxxx, P.C.
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
In the case of the Shareholders to the addresses on the records of the
Escrow Agent.
SECTION 13. COUNTERPARTS. This Escrow Agreement may be executed in
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same Escrow Agreement. Facsimile signatures shall
be accepted as original signatures for all purposes.
SECTION 14. GOVERNING LAW. The validity, interpretation and construction
of this Escrow Agreement and of each part hereof shall be governed by the laws
of the State of Colorado.
SECTION 15. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement and understanding between the parties hereto in reference to all the
matters herein agreed upon.
IN WITNESS WHEREOF, the Shareholders, the Company, the Representative and
the Escrow Agent have executed this Escrow Agreement to be effective as of the
day and year first above written.
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CORPORATE STOCK TRANSFER, INC.:
By: ______________________________________
Title:______________________________________
CENTENNIAL SPECIALTY FOODS CORPORATION:
By: ______________________________________
J. Xxxxxxx Xxxxxx, Chief Executive Officer
X.X. XXXXXX & COMPANY, L.L.C.:
By: ______________________________________
Xxxxx Xxxx, Director of Investment
Banking, Denver
THE SHAREHOLDERS:
____________________________________________
J. Xxxxxxx Xxxxxx
____________________________________________
Xxxxxxx X. Xxxxxx
____________________________________________
Xxxxxx X. Xxxxxxxx
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EXHIBIT A
TO ESCROW AGREEMENT
Name Total Shares
---- ------------
J. Xxxxxxx Xxxxxx..................
Xxxxxxx X. Xxxxxx..................
Xxxxxx X. Xxxxxxxx.................
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Total.............................. 200,000
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