EXHIBIT 10.3
ESCROW AGREEMENT
This ESCROW AGREEMENT (this "AGREEMENT") is made and entered into as of
this 28th day of June, 2005 by and among CHAMBERS BELT COMPANY (the "SELLER"),
CHARLES STEWART, as Seller's Agent, CHAMBERS DELAWARE ACQUISITION COMPANY (the
"BUYER") and MANUFACTURERS AND TRADERS TRUST COMPANY ("ESCROW AGENT").
R E C I T A L S :
A. Pursuant to the Asset Purchase Agreement dated as of April 18, 2005
(the "ASSET PURCHASE AGREEMENT") by and among Buyer, a wholly-owned subsidiary
of Phoenix Footwear Group, Inc., a Delaware corporation ("PHOENIX FOOTWEAR"),
Seller, the stockholders of Seller (collectively, the "STOCKHOLDERS") and
Seller's Agent, Buyer is acquiring certain of Seller's tangible and intangible
assets as set forth in Section 2.01 of the Asset Purchase Agreement. Seller's
Agent is authorized to take all actions on Seller's behalf required hereunder.
B. In consideration for the purchase of Seller's assets as set forth in
the Asset Purchase Agreement, the Purchase Price is being paid, in part, by
Phoenix Footwear's issuance of 374,462 shares of Phoenix Footwear common stock
(the "CLOSING SHARES").
C. The Asset Purchase Agreement provides that the Closing Shares shall be
paid by deposit thereof by Phoenix Footwear with the Escrow Agent to be held,
invested and distributed as provided herein, to secure obligations of Seller to
Buyer, including the compensation, reimbursement and indemnification
obligations, of Seller as set forth in the Asset Purchase Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
obligations herein and such other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the parties agree as follows:
1. DEFINITIONS. All capitalized terms used and not otherwise defined
herein shall have the meanings specified in the Asset Purchase Agreement. Except
as otherwise expressly set forth herein, all matters pertaining to the Escrow
Property (defined below) shall be governed by the provisions of this Agreement.
2. APPOINTMENT OF ESCROW AGENT. Buyer and Seller hereby appoint and
designate the Escrow Agent as the escrow agent hereunder upon the terms and
conditions and for the purposes set forth herein. The Escrow Agent hereby
accepts its appointment and agrees to act as Escrow Agent and to hold, invest
and disburse the Escrow Property upon the terms and conditions and for the
purposes set forth in this Agreement. The Escrow Agent undertakes to perform
only such duties as are expressly set forth herein.
3. ESTABLISHMENT OF ESCROW ACCOUNT.
(a) At or prior to the Closing, Escrow Agent shall establish an
Escrow Account in which the Escrow Property shall be held, invested and
distributed (the "ESCROW ACCOUNT"). At the Closing, Buyer shall cause Phoenix
Footwear to instruct its transfer agent to deliver to the Escrow Agent for
deposit into the Escrow Account, a certificate issued in the name of the Escrow
Agent for the Closing Shares (as so deposited, the "ESCROW SHARES" and, together
with the Distributions referred to below and any gains thereon or substitutions
therefore in accordance with the terms hereof, the "ESCROW PROPERTY") as
required by Section 2.03(b) of the Asset Purchase Agreement. The Escrow Shares
shall be beneficially owned by Seller.
(b) In the event the Escrow Shares are reclassified or otherwise
changed into or exchanged for other securities, property or cash pursuant to any
merger, consolidation, sale of all or substantially all of the assets of Phoenix
Footwear and liquidation or other transaction, the securities, cash or other
property received by the Escrow Agent in respect of the Escrow Shares shall all
be retained by Escrow Agent as part of the Escrow Property. All such cash,
property, Phoenix Footwear capital stock and other securities received and
retained by the Escrow Agent pursuant to the foregoing sentence are referred to
herein as "DISTRIBUTIONS." Notwithstanding the foregoing, any non-liquidating
cash dividends in respect of the Escrow Shares shall not be retained by the
Escrow Agent and shall not become part of the Escrow Property, and instead shall
be promptly remitted to Seller or such persons as Seller's Agent may designate
in writing to the Escrow Agent.
(c) The Escrow Agent shall (i) file information returns with the
United States Internal Revenue Service and payee statements with Seller,
documenting all Distributions and gains earned or realized on the Escrow
Property for the account of Seller ("EARNINGS"), and (ii) prepare any and all
necessary federal, state and local tax filings or reports, including, without
limitation, IRS Form 1099 in connection with the release or distribution of all
or any portion of the Escrow Property. Seller's Agent shall provide to the
Escrow Agent all forms and information necessary to complete such information
returns, payee statements and applicable forms. In the event the Escrow Agent
becomes liable for the payment of taxes, including withholding taxes and
penalties or interest for failure to properly withhold or time report income and
which penalties and interest are not due to the Escrow Agent's own negligence,
relating to Earnings or any payment made hereunder, the Escrow Agent may deduct
such taxes, penalties or interest from the Escrow Property.
(d) The Escrow Property shall be held as a trust fund and shall not
be subject to any lien, attachment, trustee process or any other judicial
process of any creditor of the Seller or of any party hereto. The Escrow Agent
shall hold and safeguard the Escrow Property until release in accordance with
the terms hereof.
(e) The interests of the Seller in the Escrow Account and in the
Escrow Property, as applicable, shall not be assignable or transferable. No
assignment or transfer of any of such interests by operation of law shall be
recognized or given effect. Notwithstanding the foregoing, the Seller's Agent
may at any time instruct the Escrow Agent to sell the Escrow Property other than
Disputed Escrow Property which constitute securities, subject to the
restrictions and obligations under the Asset Purchase Agreement and the
Registration Rights Agreement (as defined in the Asset Purchase Agreement) and
the Escrow Agent shall so dispose
of such Escrow Property, provided that it has no liability or obligations with
respect thereto and the proceeds thereof are deposited with the Escrow Agent and
become Escrow Property. Buyer shall cause Phoenix Footwear to cooperate with the
Escrow Agent in issuing, or causing its transfer agent to issue, such stock
certificates as shall be required to effect such transfers which involve Escrow
Shares.
4. DUTIES OF ESCROW AGENT; MAINTENANCE OF THE ESCROW ACCOUNT.
(a) The Escrow Agent shall maintain records for the Escrow Account
and shall adjust the Escrow Property to reflect distributions by the Escrow
Agent therefrom, and additions or substitutions thereto in accordance with the
terms hereof. The Escrow Agent is hereby granted the power to effect any
transfer of the Escrow Property as required by this Agreement. Buyer shall and
shall cause Phoenix Footwear to cooperate with the Escrow Agent in promptly
issuing, or causing its transfer agent to promptly issue, the stock certificates
for Phoenix Footwear Capital Stock as shall be required to effect such transfers
which involve the Phoenix Footwear capital stock. All Escrow Shares or other
securities which become part of the Escrow Property (collectively, the "ESCROW
SECURITIES") held by the Escrow Agent shall be registered in the name of the
Escrow Agent or its nominee on behalf of Seller.
(b) Pending disbursement of any funds held by the Escrow Agent
hereunder, such funds shall be invested and reinvested by the Escrow Agent in
(a) FDIC insured certificates of deposit, (b) shares of money market mutual
funds selected by Escrow Agent including shares in funds advised by affiliates
of the Escrow Agent or, (c) direct obligations of, or obligations guaranteed as
to principal and interest by, the United States, in either case maturing in
three (3) months or less. Unless and until otherwise jointly directed by
Seller's Agent and Buyer, Escrow Agent shall invest any such funds in direct
obligations of, or obligations guaranteed as to principal and interest by, the
United States.
(c) The Escrow Agent shall vote all Escrow Securities other than
Disputed Securities as directed by Seller's Agent, in his sole and absolute
discretion. The Escrow Agent shall vote all Disputed Securities as directed by
Buyer as it determines in its sole and absolute discretion.
5. CLAIMS AND DISBURSEMENTS.
(a) For purposes of this Agreement: (i) the term "ESCROW CLAIM
TERMINATION DATE" shall mean January 28, 2007(1); (ii) the term "BUSINESS DAY"
shall mean any day other than a Saturday, Sunday or other day on which banks in
the State of New York are authorized to close; and (iii) the term "ESCROW
SECURITIES VALUE" as it applies to the Escrow Shares shall mean the average
closing price of one share of Phoenix Footwear common stock on the American
Stock Exchange for the twenty (20) consecutive trading days preceding the second
(2nd) trading day prior to the date of any delivery or set aside of Escrow
Shares by the Escrow Agent, and as it applies to all other Escrow Securities
shall mean the average closing price of such securities in the primary market
where they trade for the twenty (20) consecutive trading days preceding the
second (2nd) trading day prior to the date of any delivery or set aside of
Escrow Securities by the
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(1) Instruction - insert date which is thirty (30) business days following the
end of the 18 months from the date hereof.
Escrow Agent or in the absence of trading in such market, the fair market value
thereof determined by the Escrow Agent.
(b) If, at any time prior to the Escrow Claim Termination Date, the
Buyer seeks to have any portion of the Escrow Property distributed to it as
payment of a claim ("CLAIM") under Section 2.04 of the Asset Purchase Agreement
or indemnification or other payments due under the Asset Purchase Agreement, it
shall file with the Escrow Agent, with a copy to Seller's Agent, a written
demand (a "BUYER DEMAND") for such distribution to be made to it from the Escrow
Property. The Buyer Demand shall include a statement that the Buyer has
contemporaneously delivered a copy of the Buyer Demand to Seller's Agent. The
Escrow Agent shall disburse to the Buyer Escrow Securities with an aggregate
Escrow Securities Value as of the date of distribution equal to the amount of
the Claim set forth in the Buyer Demand, unless Seller's Agent delivers an
objection in writing (the "SELLER OBJECTION") to the Escrow Agent (with a copy
to the Buyer) prior to the fifteenth (15th) business day following the date of
delivery of the Buyer Demand to the Escrow Agent (the "OBJECTION PERIOD") to the
effect that the Buyer is not so entitled and setting forth the reasons therefor.
If no Seller Objection is so delivered, then the Escrow Agent shall make such
distribution to Buyer on the first day following the end of the Objection
Period. If a Seller Objection is delivered to the Escrow Agent prior to the end
of the Objection Period, then no disbursement shall be made by the Escrow Agent
pursuant to the Buyer Demand except in accordance with the terms and conditions
hereof.
(c) If Seller's Agent timely objects to a Buyer Demand pursuant to a
Seller Objection delivered to the Escrow Agent prior to the end of the Objection
Period, the Escrow Agent shall promptly (i) set aside Escrow Securities with an
aggregate Escrow Securities Value in the amount of the Claim or portion thereof
to which Buyer Demand has been made if the Objection Period has not expired or
if it has expired, as to which the Seller's Agent has objected (such funds being
the "DISPUTED ESCROW PROPERTY"), and (ii) promptly distribute to the Buyer (or
Buyer's designee) the Escrow Securities with an Escrow Securities Value in an
amount equal to the undisputed Claim.
(d) The Escrow Agent shall hold the Disputed Escrow Property until
the Escrow Agent shall have received (i) a Joint Instruction in accordance with
Section 5(e) below, or (ii) a final and non-appealable order of a court of
competent jurisdiction, in either case directing the disbursement of the
Disputed Escrow Property.
(e) At any time after the date of the Closing, the Escrow Agent may
be advised in writing by the Buyer and Seller's Agent to disburse all or a
portion of the Escrow Property pursuant to a joint written instruction (the
"JOINT INSTRUCTION"), in which case the Escrow Agent shall disburse the Escrow
Property, or portion thereof, in accordance with the terms and in the manner set
forth in such Joint Instruction.
(f) Upon the Escrow Claim Termination Date, the Escrow Agent shall
distribute all Escrow Property other than Disputed Escrow Property to Seller
including instructions to the transfer agent of Phoenix Footwear to issue the
Escrow Securities to persons and in amounts specified by Seller's Agent.. The
Escrow Agent shall continue to hold, invest and disburse the Disputed Escrow
Property in accordance with the terms hereof.
(g) Seller's Agent and the Buyer each agree that they will give to
each other copies of any Buyer Demand or Seller Objection, as the case may be,
concurrently with the delivery thereof to the Escrow Agent.
6. TERMINATION OF ESCROW AGREEMENT. This Agreement shall terminate upon
the complete distribution of the Escrow Property in accordance with Section 5
above.
7. FEES OF THE ESCROW AGENT. The fees of the Escrow Agent, including (a)
the normal costs of administering the Escrow Account as set forth on the Fee
Schedule attached hereto as SCHEDULE A, and (b) all fees and costs associated
with the Escrow Agent's administration of the Escrow Account, shall be paid
one-half (1/2) by Buyer and one-half (1/2) by Seller which shall be paid at
closing. If additional fees are due Escrow Agent, Escrow Agent may at its
discretion, satisfy Seller's obligation to pay such additional fees by sale of
Escrow Securities with an aggregate Escrow Securities Value in the amount equal
to one-half (1/2) the amount required to be paid to the Escrow Agent which are
not Disputed Escrow Property. In the event that the Escrow Agent renders any
service hereunder not provided for herein or there is any assignment of any
interest in the subject matter of the Escrow Property or modification hereof,
the Escrow Agent shall be reasonably compensated for such extraordinary services
by the party that is responsible for or requests such services and if made by
Seller's Agent, Escrow Agent may obtain payment out of the Escrow Property in
the same manner as provided above. In the event that the Escrow Agent renders
any service hereunder not provided for herein or there is any assignment of any
interest in the subject matter of the Escrow Account or modification hereof, the
Escrow Agent shall be reasonably compensated for such extraordinary services by
the party that is responsible for or requests such services.
8. LIABILITY OF THE ESCROW AGENT. In performing any of its duties under
this Agreement, the Escrow Agent shall not be liable to any party for damages,
losses or expenses, except in the event of gross negligence or willful
misconduct on the part of the Escrow Agent. The Escrow Agent shall not incur any
such liability for (a) any act or failure to act made or omitted in good faith,
or (b) any action taken or omitted in reliance upon any instrument, including
any written statement or affidavit provided for in this Agreement that the
Escrow Agent shall in good faith believe to be genuine; nor will the Escrow
Agent be liable or responsible for forgeries, fraud or determining the scope of
any agent's authority. In addition, the Escrow Agent, at the expense of Buyer
and Seller, may consult with legal counsel in connection with its duties under
this Agreement and shall be fully protected in any act taken, suffered or
permitted by it in good faith in accordance with the advice of counsel. Escrow
Agent may satisfy Buyers's and Seller's obligation to pay such fees in the same
manner as is provided in Section 7, above. The Escrow Agent shall not be
responsible for mistakes with respect to determining and verifying the authority
of any person acting or purporting to act on behalf of any party to this
Agreement to the extent the Escrow Agent is not grossly negligent.
9. CONTROVERSIES. If any controversy arises between the parties to this
Agreement, or with any other party, concerning the subject matter of the Escrow
Property, its terms or conditions, the Escrow Agent will not be required to
determine the controversy or to take any action regarding it. The Escrow Agent
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 the
Escrow Agent's discretion, it may require, despite what may be set forth
elsewhere in this Agreement. In such event, the Escrow Agent will not be liable
for interest or damage. Furthermore, the Escrow Agent may at its option, file an
action of interpleader requiring the
parties to answer and litigate any claims and rights among themselves. The
Escrow Agent is authorized to deposit with the clerk of the court the Escrow
Property and all documents and certificates related thereto, except Escrow
Property, attributable to costs, expenses, charges and reasonable attorneys'
fees incurred by it due to the interpleader action and which the parties jointly
and severally agree to pay. Upon initiating such action, the Escrow Agent shall
be fully released and discharged of and from all obligations and liability
imposed by the terms of the escrow, and the action will be deemed to be solely a
dispute between the parties subject to the Asset Purchase Agreement.
10. INDEMNIFICATION OF ESCROW AGENT. Buyer and Seller agree to jointly and
severally indemnify and hold the Escrow Agent harmless against any and all
losses, claims, damages, liabilities and expenses, including reasonable costs of
investigation, outside counsel fees, and disbursements that may be imposed on
the Escrow Agent, or incurred by it in connection with the performance of its
duties under this Agreement, including, but not limited to, any litigation
arising from this Agreement or involving its subject matter, unless such loss,
claim, damage, liability or expense shall be caused by the gross negligence or
willful misconduct on the part of the Escrow Agent. Nothing contained in this
Section 10 shall impair the rights of Buyer, Seller and Seller's Agent, as
between themselves.
11. RESIGNATION OF ESCROW AGENT. The Escrow Agent may resign at any time
upon giving at least thirty (30) days written notice to the other parties;
provided, however, that no such resignation shall become effective until the
appointment of a successor Escrow Agent which shall be accomplished as follows:
Buyer and Seller's Agent shall use their best efforts to agree on a successor
Escrow Agent within thirty (30) days after receiving such notice. If the parties
fail to agree on a successor Escrow Agent within such time, then the Escrow
Agent shall have the right to appoint a successor Escrow Agent, provided that
the successor so chosen shall have capital, surplus and undivided profits of at
least $200,000,000. The successor Escrow Agent shall execute and deliver to the
Escrow Agent an instrument accepting such appointment, and the successor Escrow
Agent shall, without further acts, be vested with all the estates, property
rights, powers and duties of the predecessor Escrow Agent as if originally named
as Escrow Agent herein. The predecessor Escrow Agent then shall deliver the
Escrow Property then held by it to the successor Escrow Agent and shall
thereafter be discharged from any further duties and liability under this
Agreement.
12. MISCELLANEOUS.
(a) Assignment; Binding Upon Successors and Assigns. None of the
parties hereto may assign any of its rights or obligations hereunder without the
prior written consent of the other parties. This Agreement will be binding upon
the Seller and the Seller's Agent and their respective successors and permitted
assigns, and will inure to the benefit of Buyer and Escrow Agent and their
successors and assigns.
(b) Severability. If any provision of this Agreement, or the
application thereof, shall for any reason and to any extent be held to be
invalid or unenforceable, the remainder of this Agreement and the application of
such provision to other persons or circumstances shall be interpreted so as best
to reasonably effect the intent of the parties hereto. The parties further agree
to replace such invalid or unenforceable provision of this Agreement with a
valid and enforceable provision which will achieve, to the extent possible, the
economic, business and other purposes of the invalid or unenforceable provision.
(c) Entire Agreement. This Agreement, the Schedules hereto and the
Asset Purchase Agreement constitute the entire understanding and agreement of
the parties hereto with respect to the subject matter hereof and thereof and
supersede all prior and contemporaneous agreements or understandings,
inducements or conditions, express or implied, written or oral, between the
parties with respect hereto and thereto. The express terms hereof control and
supersede any course of performance or usage of the trade inconsistent with any
of the terms hereof.
(d) Notices. All notices, requests, demands, claims, and other
communications hereunder shall be in writing. Any notice, request, demand,
claim, or other communication hereunder shall be deemed duly given (i) when
delivered personally to the recipient, (ii) one (1) business day after being
sent to the recipient by reputable overnight courier service (charges prepaid),
(iii) one (1) business day after being sent to the recipient by facsimile
transmission or electronic mail, or (iv) four (4) business days after being
mailed to the recipient by certified or registered mail, return receipt
requested and postage prepaid, and addressed to the intended recipient as set
forth below:
If to Seller and Seller's Agent:
Chambers Belt Company
3230 East Broadway
Suite A-200
Phoenix, Arizona 85040
Attention: Charles Stewart, President
With Copy to:
Osborn Maledon, P.A.
The Phoenix Plaza
2929 North Central Avenue
Twenty-First Floor
Phoenix, AZ 85012-2794
Attention: Thomas H. Curzon, Esq.
If to Buyer:
Chambers Delaware Acquisition Company
c/o Phoenix Footwear Group, Inc.
5759 Fleet Street, Suite 220
Carlsbad, California 92008
Attention: James R. Riedman, Chairman of the Board
With a copy to:
Woods Oviatt Gilman LLP
700 Crossroads Building
2 State Street
Rochester, New York 14614
Attn: Gordon E. Forth, Esq.
If to Escrow Agent:
Manufacturers & Traders Trust Company
One M&T Plaza
Buffalo, New York
Attention:
Any Party may change the address to which notices, requests, demands, claims,
and other communications hereunder are to be delivered by giving the other Party
notice in the manner herein set forth.
(e) Other Remedies. Except as otherwise provided herein, any and all
remedies herein expressly conferred upon a party shall be deemed cumulative with
and not exclusive of any other remedy conferred hereby or by law on such party,
and the exercise of any one remedy shall not preclude the exercise of any other.
(f) Amendment and Waivers. Any term or provision of this Agreement
may be amended, and the observance of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively) only by a writing signed by the parties hereto and only with the
written consent of Phoenix Footwear. The waiver by a party of any breach hereof
for default in payment of any amount due hereunder or default in the
performance hereof shall not be deemed to constitute a waiver of any other
default or any succeeding breach or default.
(g) Further Assurances. Each party agrees to cooperate fully with
the other parties and to execute such further instruments, documents and
agreements and to give such further written assurances, as may be reasonably
requested by any other party to better evidence and reflect the transactions
described herein and contemplated hereby and to carry into effect the intents
and purposes of this Agreement.
(h) Absence of Third Party Beneficiary Rights. No provisions of this
Agreement are intended, nor shall be interpreted, to provide or create any third
party beneficiary rights or any other rights of any kind in any client,
customer, affiliate, shareholder, partner of any party hereto or any other
person or entity unless specifically provided otherwise herein, and, except as
so provided, all provisions hereof shall be solely between the parties to this
Agreement.
(i) Governing Law. It is the intention of the parties hereto that
the internal laws of the State of Delaware (irrespective of its choice of law
principles) shall govern the validity of this agreement, the construction of its
terms, and the interpretation and enforcement of the rights and duties of the
parties hereto.
(j) Submission to Jurisdiction. Each of the parties submits to the
jurisdiction of any state or federal or state court sitting in the State of
Delaware, in any action or proceeding arising out of or relating to this
Agreement and agrees that all claims in respect of the action or proceeding may
be heard and determined in any such court. Each party also agrees not to bring
any action or proceeding arising out of or relating to this Agreement in any
other court. Each of the parties waives any defense of inconvenient forum to the
maintenance of any action or proceeding so brought and waives any bond, surety,
or other security that might be required of any other party with respect
thereto.
(k) Tax Reporting Information and Certification of Tax
Identification Numbers. The parties hereto agree that, for tax reporting
purposes, all interest on or other income, if any, attributable to the Escrow
Account or any other amount held in escrow by the Escrow Agent pursuant to this
Agreement shall be allocable to the Seller. Buyer and Seller's Agent shall
provide the Escrow Agent with certified tax identification numbers for each of
them by furnishing appropriate forms W-9 (or Forms W-8, in the case of non-U.S.
persons) and any other forms and documents that the Escrow Agent may reasonably
request (collectively, "TAX REPORTING DOCUMENTATION") to the Escrow Agent within
30 days after the date hereof. The parties hereto understand that, if such Tax
Reporting Documentation is not so furnished to the Escrow Agent, the Escrow
Agent shall be required by the Code to withhold a portion of any interest or
other income earned on the investment of monies or other property held by the
Escrow Agent pursuant to this Agreement, and to immediately remit such
withholding to the Internal Revenue Service.
(l) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same instrument.
[SIGNATURES ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties have executed this Escrow Agreement as of
the date first set forth above.
MANUFACTURERS AND TRADERS TRUST
COMPANY, ESCROW AGENT
By: /s/ Joan Stapley
---------------------------------------
Name: Joan Stapley
Title: Assistant Vice President
CHAMBERS DELAWARE ACQUISITION COMPANY
By: /s/ Richard E. White
--------------------------------------------
Name: Richard E. White
Title: Chief Executive Officer and President
CHAMBERS BELT COMPANY
By: /s/ Charles Stewart
---------------------------------------
Name: Charles Stewart
Title: President
SCHEDULE A
ESCROW AGENT FEE SCHEDULE