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EXHIBIT 2.3
FUNDS ESCROW AGREEMENT
This Agreement is dated as of the 10th day of June, 1999 among The
Recovery Network, Inc. (the "Company"), the parties identified on Schedule A
hereto, ("Subscriber" or "Subscribers"), and Grushko & Xxxxxxx (the "Escrow
Agent"):
W I T N E S S E T H:
WHEREAS, the Company and Subscriber have entered into Subscription
Agreements ("Subscription Agreement") calling for the sale by the Company of
the Company's common stock ("Common Stock") to the Subscribers for the
aggregate purchase price of $500,000 and issuance of $.01 par value common
stock ("Commission Shares") set forth on Schedule A hereto and issuance of
Common Stock Purchase Warrants ("Placement Warrants") to Placement Agents in
the denominations set forth on Schedule A to the Subscription Agreement
(hereinafter defined), against payment of the aggregate purchase price; and
WHEREAS, the parties hereto require the Company to deliver the Common
Stock, Commission Shares, Placement Warrants and other documents against
payment therefor, with such Common Stock, Commission Shares, Placement
Warrants, documents and payment to be delivered to the Escrow Agent to be held
in escrow and released by the Escrow Agent in accordance with the terms and
conditions of this Agreement; and
WHEREAS, the Escrow Agent is willing to serve as escrow agent pursuant to
the terms and conditions of this Agreement;
NOW THEREFORE, the parties agree as follows:
ARTICLE I
INTERPRETATION
1.1. Definitions. Whenever used in this Agreement, the following terms
shall have the following respective meanings:
(a) "Agreement" means this Agreement and all amendments made hereto by
written agreement among the parties;
(b) "Common Stock" means $.01 par value common stock of the Company to be
issued to the Subscribers in the amounts designated on Schedule A hereto.
(c) "Commission Shares" means the $.01 par value common stock of the
Company to be issued to the Placement Agents in the amount designated on
Schedule A to the Subscription Agreement.
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(d) "Placement Warrants" means common stock purchase warrants of the
Company issued to the Placement Agents in the amount designated on Schedule A
to the Subscription Agreement.
(e) "Escrowed Payment" means the sum of up to $500,000 to be held in
escrow by the Escrow Agent on behalf of the Company and Subscribers.
(f) Subscription Agreement" means the Subscription Agreement entered or
to be entered into by the Company and Subscribers in reference to the Common
Stock, Commission Shares, and Placement Warrants, with the exhibits thereto.
(g) "Opinion" means the original legal opinion described in Section 3 of
the Subscription Agreement.
(h) Collectively, the Common Stock, Commission Shares, Placement
Warrants, Subscription Agreements signed on behalf of the Company, and Opinion
are referred to as "Company Documents."
(i) Collectively, the Escrowed Payment and Subscription Agreements
(without exhibits) signed on behalf of the Subscribers are referred to as
"Subscriber Documents."
1.2. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto pertaining to the Company Documents and Subscriber
Documents and supersedes all prior agreements, understandings, negotiations and
discussions, whether oral or written, of the parties. There are no warranties,
representations and other agreements made by the parties in connection with the
subject matter hereof except as specifically set forth in this Agreement.
1.3. Extended Meanings. In this Agreement words importing the singular
number include the plural and vice versa; words importing the masculine gender
include the feminine and neuter genders. The word "person" includes an
individual, body corporate, partnership, trustee or trust or unincorporated
association, executor, administrator or legal representative.
1.4. Waivers and Amendments. This Agreement may be amended, modified,
superseded, cancelled, renewed or extended, and the terms and conditions hereof
may be waived, only by a written instrument signed by all parties, or, in the
case of a waiver, by the party waiving compliance. Except as expressly stated
herein, no delay on the part of any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof, nor shall any waiver on
the part of any party of any right, power or privilege hereunder preclude any
other or future exercise of any other right, power or privilege hereunder.
1.5. Headings. The division of this Agreement into articles, sections,
subsections and paragraphs and the insertion of headings are for convenience of
reference only and shall not affect the construction or interpretation of this
Agreement.
1.6. Governing Law. This Agreement shall be governed by and construed in
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accordance with the internal laws of the State of New York without regard to
principles of conflict of laws.
1.7. Jurisdiction and Consents to Service of Process. The Company and the
Subscriber each hereby irrevocably consent to the exclusive jurisdiction of the
courts of the State of New York and of any Federal Court located in the State
of New York, each as may have competent jurisdiction, in connection with any
action, suit or other proceeding arising out of or relating to this Agreement
or any action taken or omitted hereunder, waive trial by jury, and waive
personal service of any summons, complaint or other process and agree that the
service thereof may be made by certified or registered mail directed to such
person at such person's address for purpose of notice hereunder.
1.8. Fees. The Company shall pay the Escrow Agent the fee described in
Section 6 of the Subscription Agreement. This fee shall be paid by
proportionate deduction from the Escrowed Payment deliverable to the Company,
but only if a portion of the Escrowed Payment is to be released to the Company
pursuant to this Agreement.
ARTICLE II
DELIVERIES TO THE ESCROW AGENT
2.1. Delivery of Company Documents to Escrow Agent. On or about the date
hereof, the Company shall deliver to the Escrow Agent the Company Documents.
2.2. Delivery of Subscriber Documents to Escrow Agent. On or about the
date hereof, the Subscriber shall deliver to the Escrow Agent the Subscriber
Documents and the Escrowed Payment pursuant to the following wire transfer
instructions:
Citibank, N.A.
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000, XXX
ABA Number: 0210-00089
For Credit to: Grushko & Xxxxxxx
XXXX Trust Account
Account Number: 037-00000000
2.3. Intention to Create Escrow Over Company Documents and Subscriber
Documents. The Subscriber and Company intend that the Company Documents and
Subscriber Documents shall be held in escrow by the Escrow Agent pursuant to
this Agreement for their benefit as set forth herein.
2.4. Escrow Agent to Deliver Company Documents and Subscriber Documents.
The Escrow Agent shall hold and release the Company Documents and Subscriber
Documents only in accordance with the terms and conditions of this Agreement.
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ARTICLE III
RELEASE OF COMPANY DOCUMENTS AND SUBSCRIBER DOCUMENTS
3.1 Release of Escrow. Subject to the provisions of Section 4.2, the
Escrow Agent shall release the Company Documents and Subscriber Documents as
follows:
(a) Upon receipt by the Escrow Agent of the Company Documents and the
corresponding Subscriber Documents, the Escrow Agent will release the Company
Documents to the Subscribers and Placement Agents and the corresponding
Subscriber Documents will be released to the Company. The corresponding
Commission Shares, and Placement Warrants will be delivered to the Placement
Agents identified on Schedule A to the Subscription Agreement. The Company will
provide written facsimile or original instructions to the Escrow Agent as to
the disposition of all funds releasable to the Company. The fees described in
Section 1.8 hereof will be deducted from the funds releasable to the Company
and delivered to the Escrow Agent.
(b) In the event the Escrow Agent does not receive Company Documents and
the corresponding Subscriber Documents prior to June 22, 1999, then the Escrow
Agent will return the Company Documents to the Company, and return the
Subscriber Documents to the Subscribers.
(c) Upon receipt by the Escrow Agent of joint written instructions
("Joint Instructions") signed by the Company and the Subscriber, it shall
deliver the Company Documents and Subscriber Documents in accordance with the
terms of the Joint Instructions.
(d) Upon receipt by the Escrow Agent of a final and non-appealable
judgment, order, decree or award of a court of competent jurisdiction (a "Court
Order"), the Escrow Agent shall deliver the Company Documents and Subscriber
Documents in accordance with the Court Order. Any Court Order shall be
accompanied by an opinion of counsel for the party presenting the Court Order
to the Escrow Agent (which opinion must be reasonably satisfactory to the
Escrow Agent) to the effect that the court issuing the Court Order has
competent jurisdiction and that the Court Order is final and non-appealable.
3.2 Acknowledgment of Company and Subscriber; Disputes. The Company and
the Subscriber acknowledge that the only terms and conditions upon which the
Company Documents and Subscriber Documents are to be released are set forth in
Sections 3 and 4 of this Agreement. The Company and the Subscriber reaffirm
their agreement to abide by the terms and conditions of this Agreement with
respect to the release of the Company Documents and Subscriber Documents. Any
dispute with respect to the release of the Company Documents and Subscriber
Documents shall be resolved pursuant to Section 4.2 or by agreement between the
Company and Subscriber.
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ARTICLE IV
CONCERNING THE ESCROW AGENT
4.1. Duties and Responsibilities of the Escrow Agent. The Escrow Agent's
duties and responsibilities shall be subject to the following terms and
conditions:
(a) The Subscriber and Company acknowledge and agree that the Escrow
Agent (i) shall not be responsible for or bound by, and shall not be required
to inquire into whether either the Subscriber or Company is entitled to receipt
of the Company Documents and Subscriber Documents pursuant to, any other
agreement or otherwise; (ii) shall be obligated only for the performance of
such duties as are specifically assumed by the Escrow Agent pursuant to this
Agreement; (iii) may rely on and shall be protected in acting or refraining from
acting upon any written notice, instruction, instrument, statement, request or
document furnished to it hereunder and believed by the Escrow Agent in good
faith to be genuine and to have been signed or presented by the proper person
or party, without being required to determine the authenticity or correctness of
any fact stated therein or the propriety or validity or the service thereof;
(iv) may assume that any person purporting to give notice or make any statement
or execute any document in connection with the provisions hereof has been duly
authorized to do so; (v) shall not be under any duty to give the property held
by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its
own similar property; and (vi) may consult counsel satisfactory to Escrow
Agent, the opinion of such counsel to be full and complete authorization and
protection in respect of any action taken, suffered or omitted by Escrow Agent
hereunder in good faith and in accordance with the opinion of such counsel.
(b) The Subscriber and Company acknowledge that the Escrow Agent is
acting solely as a stakeholder at their request and that the Escrow Agent shall
not be liable for any action taken by Escrow Agent in good faith and believed by
Escrow Agent to be authorized or within the rights or powers conferred upon
Escrow Agent by this Agreement. The Subscriber and Company, jointly and
severally, agree to indemnify and hold harmless the Escrow Agent and any of
Escrow Agent's partners, employees, agents and representatives for any action
taken or omitted to be taken by Escrow Agent or any of them hereunder, including
the fees of outside counsel and other costs and expenses of defending itself
against any claim or liability under this Agreement, except in the case of gross
negligence or willful misconduct on Escrow Agent's part committed in its
capacity as Escrow Agent under this Agreement. The Escrow Agent shall owe a duty
only to the Subscriber and Company under this Agreement and to no other person.
(c) In the event the Company does not receive its portion of the Escrowed
Payment, then the Subscriber and Company jointly and severally agree to
reimburse the Escrow Agent for its reasonable out-of-pocket expenses (including
counsel fees) incurred in connection with the performance of its duties and
responsibilities hereunder.
(d) The Escrow Agent may at any time resign as Escrow Agent hereunder by
giving five (5) days prior written notice of resignation to the Subscriber and
the Company. Prior to the effective date of the resignation as specified in such
notice, the Subscriber and Company will
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issue to the Escrow Agent a Joint Instruction authorizing delivery of the Notes
and Escrowed Payment to a substitute Escrow Agent selected by the Subscriber
and Company. If no successor Escrow Agent is named by the Subscriber and
Company, the Escrow Agent may apply to a court of competent jurisdiction in the
State of New York for appointment of a successor Escrow Agent, and to deposit
the Notes and Escrowed Payment with the clerk of any such court.
(e) The Escrow Agent does not have and will not have any interest in the
Company Documents and Subscriber Documents, but is serving only as escrow
Subscriber, having only possession thereof. The Escrow Agent shall not be
liable for any loss resulting from the making or retention of any investment in
accordance with this Escrow Agreement.
(f) This Agreement sets forth exclusively the duties of the Escrow Agent
with respect to any and all matters pertinent thereto and no implied duties or
obligations shall be read into this Agreement.
(g) The Escrow Agent shall be permitted to act as counsel for the
Subscriber or Placement Agent, as the case may be, in any dispute as to the
disposition of the Company Documents and Subscriber Documents, in any other
dispute between the Subscriber and Company, whether or not the Escrow Agent is
then holding the Company Documents and Subscriber Documents and continues to
act as the Escrow Agent hereunder.
(h) The provisions of this Section 4.1 shall survive the resignation of
the Escrow Agent or the termination of this Agreement.
4.2. Dispute Resolution; Judgments. Resolution of disputes arising under
this Agreement shall be subject to the following terms and conditions:
(a) If any dispute shall arise with respect to the delivery, ownership,
right of possession or disposition of the Company Documents and Subscriber
Documents, or if the Escrow Agent shall in good faith be uncertain as to its
duties or rights hereunder, the Escrow Agent shall be authorized, without
liability to anyone, to (i) refrain from taking any action other than to
continue to hold the Company Documents and Subscriber Documents pending receipt
of a Joint Instruction from the Subscriber and Company, or (ii) deposit the
Company Documents and Subscriber Documents with any court of competent
jurisdiction in the State of New York, in which event the Escrow Agent shall
give written notice thereof to the Subscriber and the Company and shall
thereupon be relieved and discharged from all further obligations pursuant to
this Agreement. The Escrow Agent may, but shall be under no duty to, institute
or defend any legal proceedings which relate to the Company Documents and
Subscriber Documents. The Escrow Agent shall have the right to retain counsel
if it becomes involved in any disagreement, dispute or litigation on account
of this Agreement or otherwise determines that it is necessary to consult
counsel.
(b) The Escrow Agent is hereby expressly authorized to comply with and
obey any Court Order. In case the Escrow Agent obeys or complies with a Court
Order, the Escrow Agent shall not be liable to the Subscriber and Company or to
any other person, firm, corporation or
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entity by reason of such compliance.
ARTICLE V
GENERAL MATTERS
5.1. Termination. This escrow shall terminate upon the release of all of
the Company Documents and Subscriber Documents or at any time upon the
agreement in writing of the Subscriber and Company.
5.2 Notices. All notices, request, demands and other communications
required or permitted hereunder shall be in writing and shall be deemed to have
been received one (1) day after being sent by telecopy (with copy delivered by
regular mail):
(a) If to the Company, to:
The Recovery Network, Inc.
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxxxx, XX 00000
(000) 000-0000 (Telecopier)
(b) If to the Subscriber, to: the addresses and telecopier
numbers listed on Schedule A hereto.
(c) If to the Escrow Agent, to:
Grushko & Xxxxxxx
Attorneys at Law
000 Xxxxxxxx, Xxxxx 000
Xxx Xxxx, Xxx Xxxx 00000
(000) 000-0000 (telecopier)
or to such other address as any of them shall give to the others by notice made
pursuant to this Section 5.2.
5.3 Interest. Interest will not be payable to the Subscriber or Company
in connection with the Escrowed Payment.
5.4 Assignment; Binding Agreement. Neither this Agreement nor any right
or obligation hereunder shall be assignable by any party without the prior
written consent of the other parties hereto. This Agreement shall enure to the
benefit of and be binding upon the parties hereto and their respective legal
representatives, successors and assigns.
5.5 Invalidity. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal, or unenforceable in any
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respect for any reason, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions contained
herein shall not be in any way impaired thereby, it being intended that all of
the rights and privileges of the parties hereto shall be enforceable to the
fullest extent permitted by law.
5.6. Counterparts/Execution. This Agreement may be executed in any number
of counterparts and by different signatories hereto on separate counterparts,
each of which, when so executed, shall be deemed an original, but all such
counterparts shall constitute but one and the same instrument. This Agreement
may be executed by facsimile transmission.
[THIS SPACE INTENTIONALLY LEFT BLANK]
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5.7 AGREEMENT. Each of the undersigned states that he has read the
foregoing Funds Escrow Agreement and understands and agrees to it.
-------------------------------------
THE RECOVERY NETWORK, INC.
/s/ [Signature Illegible]
-------------------------------------
AUSTOST ANSTALT XXXXXX
-------------------------------------
BALMORE FUNDS S.A.
-------------------------------------
AMRO INTERNATIONAL S.A.
-------------------------------------
NESHER, INC.
-------------------------------------
GUARANTEE & FINANCE CORP.
-------------------------------------
ESCROW AGENT:
By:
---------------------------------
GRUSHKO & XXXXXXX
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5.7 AGREEMENT. Each of the undersigned states that he has read the
foregoing Funds Escrow Agreement and understands and agrees to it.
-------------------------------------
THE RECOVERY NETWORK, INC.
-------------------------------------
AUSTOST ANSTALT XXXXXX
-------------------------------------
BALMORE FUNDS S.A.
/s/ [Signature Illegible]
-------------------------------------
AMRO INTERNATIONAL S.A.
-------------------------------------
NESHER, INC.
-------------------------------------
GUARANTEE & FINANCE CORP.
-------------------------------------
ESCROW AGENT:
By:
---------------------------------
GRUSHKO & XXXXXXX
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5.7 AGREEMENT. Each of the undersigned states that he has read the
foregoing Funds Escrow Agreement and understands and agrees to it.
-------------------------------------
THE RECOVERY NETWORK, INC.
-------------------------------------
AUSTOST ANSTALT XXXXXX
-------------------------------------
BALMORE FUNDS S.A.
/s/ [Signature Illegible]
-------------------------------------
AMRO INTERNATIONAL S.A.
-------------------------------------
NESHER, INC.
-------------------------------------
GUARANTEE & FINANCE CORP.
-------------------------------------
ESCROW AGENT:
By:
---------------------------------
GRUSHKO & XXXXXXX
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5.7 AGREEMENT. Each of the undersigned states that he has read the
foregoing Funds Escrow Agreement and understands and agrees to it.
-------------------------------------
THE RECOVERY NETWORK, INC.
-------------------------------------
AUSTOST ANSTALT XXXXXX
-------------------------------------
BALMORE FUNDS S.A.
-------------------------------------
AMRO INTERNATIONAL S.A.
/s/ [Signature Illegible]
-------------------------------------
NESHER, INC.
-------------------------------------
GUARANTEE & FINANCE CORP.
-------------------------------------
ESCROW AGENT:
By:
---------------------------------
GRUSHKO & XXXXXXX
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5.7 AGREEMENT. Each of the undersigned states that he has read the
foregoing Funds Escrow Agreement and understands and agrees to it.
/s/ [Signature Illegible]
-------------------------------------
THE RECOVERY NETWORK, INC.
-------------------------------------
AUSTOST ANSTALT XXXXXX
-------------------------------------
BALMORE FUNDS S.A.
-------------------------------------
AMRO INTERNATIONAL S.A.
-------------------------------------
NESHER, INC.
/s/ [Signature Illegible]
-------------------------------------
GUARANTEE & FINANCE CORP.
-------------------------------------
ESCROW AGENT:
By:
---------------------------------
GRUSHKO & XXXXXXX
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SCHEDULE A TO FUNDS ESCROW AGREEMENT
PURCHASE COMPANY
SUBSCRIBERS PRICE SHARES
AUSTOST ANSTALT XXXXXX $100,000.00 100,000
7440 Fuerstentum
Xxxxxxxxxxx
Xxxxxxxxxxx 000
Fax: 000-000-000000000
BALMORE FUNDS, S.A. $100,000.00 100,000
X.X. Xxx 0000
Xxxxxx, Xxxxxxxxxxx
Fax: 000-000-000-0000
AMRO INTERNATIONAL, S.A. $100,000.00 100,000
c/o Ultra Finanz
Grossmuenster Xxxxx 00
X.X. Xxx 0000
Xxxxxx, Xxxxxxxxxxx CH 8022
Fax: 000-000-000-00000
NESHER, INC. $ 50,000.00 50,000
x/x Xxxxxxx Xxxxx
00 Xxxx Xxxx
Douglas, Isle of Man
1M1 4L2, United Kingdom
Fax: 000-000-00000000
GUARANTEE & FINANCE, CORP. $ 50,000.00 50,000
Vallarino X.X.
Xxxxx 00, Xxxxxx
Fax: 000-0000000000
TO BE IDENTIFIED $100,000.00 100,000
TOTALS $500,000.00 500,000
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