EXHIBIT 2.4
ESCROW AGREEMENT
ECOS Group Inc.
and
Third Millennium Telecommunications, Inc.
and
Xxxxxxx Xxxx and Xxxxxxx X. Xxxxx, on behalf of EE&G Management
and
Xxxxxxx X. Xxxx
This Escrow Agreement made as of this 30th day of September, 2001 among
ECOS Group, Inc., a Florida corporation ("ECOS"), Third Millennium
Telecommunications, Inc., a New Jersey corporation ("TMT"), Xxxxxxx Xxxx and
Xxxxxxx Xxxxx, as representatives of EE&G Management, and Xxxxxxx X. Xxxx
("Escrow Agent").
WITNESSETH:
WHEREAS, ECOS Group, Inc., a Florida corporation (the "Company"), Third
Millennium Telecommunications, Inc., a New Jersey corporation ("TMT"), each of
the shareholders of TMT (the "Sellers"), and the individuals listed on
Schedule I attached thereto (collectively referred to herein as "EE&G
Management") are parties to that certain Share Exchange Agreement dated as of
June 14, 2001, and a First Amendment and a Second Amendment to the Share
Exchange Agreement (collectively, the "Share Exchange Agreement"); and
WHEREAS, pursuant to Article VI of the Share Exchange Agreement,
35,000,000 shares of the Common Stock of the ECOS (the "Held Back Shares") are
to be held in escrow, to be delivered to the current shareholders of TMT in
the event certain Performance Thresholds are met, as more particularly set
forth in such Article VI of the Share Exchange Agreement, a copy of which
Article VI is attached to this Escrow Agreement as Exhibit A.
WHEREAS, the individuals who constitute EE&G Management have designated
Xxxxxxx Xxxx and Xxxxxxx Xxxxx, as their exclusive agents and representatives
for the purposes of this Agreement.
NOW THEREFORE, IN CONSIDERATION OF the foregoing premises, and other good
and valuable consideration, the parties agree that:
1. At the closing contemplated by the Share Purchase Agreement, ECOS
shall issue and deliver to the Escrow Agent, in the names of the respective
Sellers, as that term is defined in the Share Exchange Agreement, and in the
respective amounts set forth in the Share Purchase Agreement, certificates for
post-reverse split shares of common stock of ECOS aggregating 35,000,000
shares.
2. The Held Back Shares shall be held in escrow by the Escrow Agent
and delivered as follows:
(a) if, within three years after the date hereof, the Escrow
Agent receives a written certificate or other written determination certified
in writing by the Chief Executive Officer of TMT and reviewed and ratified by
TMT's independent accountants, stating that the Performance Threshold, as
described in Article VI of the Share Exchange Agreement has been met and the
MCI Claim (as defined in the Share Exchange Agreement) has paid in full, the
certificates for the shares shall be delivered to the respective Sellers; and.
(b) If the Escrow Agent has not received the certificate
described in the foregoing subparagraph on or before the end of such three
year period, the Escrow Agent shall cause the Held Back Shares to be returned
to ECOS and canceled.
3. The sole responsibility of the Escrow Agent shall be to hold and
deliver the Held Back Shares in accordance with this Agreement, or a final
judgment of a court of competent jurisdiction. In the event any dispute
arises, the Escrow Agent at any time may deposit the Held Back Shares with a
court of competent jurisdiction, and upon notice to TMT and ECOS of such
deposit Escrow Agent shall have no further responsibility or liability
hereunder.
4. The Escrow Agent may act upon any instruction or other writing
believed by Escrow Agent in good faith to be genuine and to be signed or
presented by the proper persons.
5. The parties acknowledge that Escrow Agent is merely a stakeholder,
and that Escrow Agent shall not be liable for any act or omission unless taken
or suffered in bad faith, in willful disregard of this Agreement or involving
gross negligence. ECOS and TMT shall indemnify and hold Escrow Agent harmless
from and against any costs and expenses incurred in connection with the
performance of the Escrow Agent's duties hereunder, and shall be jointly and
severally liable for, and shall pay Escrow Agent, on demand, any costs and
expenses of Escrow Agent incurred in connection with the performance of Escrow
Agent's duties hereunder, including attorneys' and accountants' fees.
Notwithstanding that Escrow Agent is serving as the escrow agent pursuant to
this Agreement, Escrow Agent as attorneys may represent any party to this
Agreement in the event of any dispute hereunder.
6. Escrow Agent shall not be bound by any agreement between ECOS and
TMT, whether or not Escrow Agent has knowledge thereof, and Escrow Agent's
only duties and responsibilities shall be to hold, and to dispose of, the Held
Back Shares in accordance with this Agreement. Without limiting the
generality of the foregoing, Escrow Agent shall have no responsibility to
protect or enforce any obligation with respect to the Held Back Shares, or for
any diminution of the value of the Held Back Shares for any cause.
7. Escrow Agent may consult with counsel, and any opinion of counsel
shall be full and complete authorization and protection in respect of any
action taken or omitted by Escrow Agent hereunder in good faith and in
reliance upon such opinion.
8. All instructions or notices given pursuant to the Escrow Agent
shall be in writing and delivered by hand, or by certified mail, return
receipt requested and by facsimile copy, to the Escrow Agent at:
Deutch & Xxxx
000 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
;except that no instruction or notice to Escrow Agent shall be deemed
effectively delivered to Escrow Agent until actual receipt thereof by Escrow
Agent.
9. Neither party may assign this Agreement or their rights hereunder
without the prior written consent of the others, in each instance.
10. All oral or written statements, representations, promises, and
agreements of parties with respect to the subject matter hereof are merged
into and superseded by this Agreement, which alone fully and completely
expresses their agreement.
11. This Agreement may not be altered, amended, changed, waived, or
modified in any respect or particular unless the same shall be in writing
signed by all of the parties hereto
12. This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective heirs, executors, administrators,
successors and permitted assigns.
IN WITNESS WHEREOF, each of the parties hereto has executed this Escrow
Agreement as of the date first set forth above.
ECOS Group, Inc.
/s/ Xxxxxxx Xxxxx
By: __________________________________
Xxxxxxx X. Xxxxx, CEO.
/s/ Xxxxxxx Xxxx
______________________________________
Xxxxxxx Xxxx, for himself and
as representative of EE&G Management
/s/ Xxxxxxx X. Xxxxx
______________________________________
Xxxxxxx X. Xxxxx, for himself and
as representative of EE&G Management
Third Millennium Telecommunications, Inc.
/s/ Xxxxxxx Xxxxxx
By: _________________________________
Xxxxxxx Xxxxxx, Pres.
/s/ Xxxxxxx X. Xxxx
_____________________________________
Xxxxxxx X. Xxxx
