EXHIBIT (S)
September 23, 1999
ESCROW AGREEMENT
Parties: GLOBAL SPORTS, INC.,
a Delaware corporation ("Global")
555 S. Henderson Road
King of Prussia, PA 19406
GEN-X ACQUISITION (U.S.), INC.,
a Washington corporation ("U.S. Co.")
701 5th Avenue
Suite 3300
Seattle, Washington
98104-7082
GEN-X ACQUISITION (CANADA) INC.,
an Ontario corporation ("Canadian Co.")
25 Vanley Crescent
North York, Ontario
M3J 2B7
DMJ FINANCIAL, INC.,
a Barbados limited company ("DMJ")
Royal Bank of Canada (Caribbean) Corporation
2/nd/ Floor, Building #2
Chelston Park, Collymore
St. Michael, Barbados
JAMES J. SALTER,
an individual ("Salter")
277 Glencairn Avenue
Toronto, Ontario M5N1T8
KENNETH J. FINKELSTEIN,
an individual ("Finkelstein")
25 Brandy Court
Toronto, Ontario M3B3L3
BORDEN & ELLIOT ("Escrow Agent")
Scotia Plaza
40 King Street West
Toronto, Ontario M5H 3Y4
Canada
Attn: Daniel F. Hirsh.
Date: __________________, _____
Background: Global, U.S. Co., Canadian Co., DMJ, Salter and Finkelstein are
parties to an Acquisition Agreement, dated as of September 24, 1999 (the
"Acquisition Agreement"), pursuant to which (i) U.S. Co. acquired all of the
issued and outstanding shares of capital stock of Gen-X Holdings Inc. ("Gen-X
Holdings") in exchange for, among other things: (a) a cash payment in the amount
of Six Million Forty Thousand Dollars ($6,040,000); (b) a promissory note in the
principal amount of Five Million Dollars ($5,000,000); and (c) the assumption of
Global's non-negotiable subordinated notes in the original aggregate principal
amount of Three Million Nine Hundred Sixty Thousand Dollars ($3,960,000) payable
to Gen-X Holdings, dated as of the Closing Date, together with all accrued and
unpaid interest thereon, and (ii) Canadian Co. acquired all of the issued and
outstanding shares of capital stock of Gen-X Equipment Inc. ("Gen-X Equipment")
in exchange for, among other things, a promissory note in the principal amount
of Five Million Dollars ($5,000,000).
This is the Escrow Agreement referred to in the Acquisition Agreement.
Capitalized terms used in this Agreement without definition shall have the
respective meanings given to them in the Acquisition Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
1. Establishment of Escrow.
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(a) Pursuant to the terms of the Acquisition Agreement, if any
Indemnification Matters are pending at the time an Indemnitee is required to
make any payment to an Indemnitor (whether under the Acquisition Agreement or
otherwise), then such Indemnitee shall pay the total amount for which such
Indemnitor may become liable as a result thereof, determined by such Indemnitee
reasonably and in good faith, to Escrow Agent (which amount, as increased by any
earnings thereon and as reduced by any disbursements or losses on investments,
shall be referred to herein as the "Escrow Fund"), to be held by Escrow Agent
pursuant to the terms hereof until final determination of such Indemnification
Matter.
(b) Upon Indemnitee's payment to Escrow Agent of the Escrow Fund,
Escrow Agent shall issue a receipt to Indemnitee in the form of Exhibit "A"
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attached hereto to acknowledge receipt of the Escrow Fund.
(c) Escrow Agent hereby agrees to act as escrow agent and to hold,
safeguard and disburse the Escrow Fund pursuant to the terms and conditions
hereof.
2. Investment of Funds. Except as Indemnitee and Indemnitor may from
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time to time jointly instruct Escrow Agent in writing, the Escrow Fund shall be
invested from time to time, to the extent possible, in United States Treasury
bills having a remaining maturity of 90 days or less and repurchase obligations
secured by such United States Treasury Bills, with any remainder being deposited
and maintained in a money market deposit account with Escrow Agent, until
disbursement of the entire Escrow Fund. Escrow Agent is authorized to liquidate
in accordance with its customary procedures any portion of the Escrow Fund
consisting of investments to provide for payments
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required to be made under this Agreement.
3. Claims. Upon final settlement, agreement by Indemnitee and Indemnitor
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or rendering of a final Judgment (without further right of appeal) determining
the amount owed with respect to an Indemnification Matter relating to the Escrow
Fund, Escrow Agent shall make payment with respect thereto only in accordance
with (i) the joint written instructions of Indemnitee and Indemnitor or (ii) a
final non-appealable order of the court entering such final Judgment. Any court
order shall be accompanied by a legal opinion by counsel for the presenting
party satisfactory to Escrow Agent to the effect that the order is final and
non-appealable. Escrow Agent shall act on such court order and legal opinion
without further question.
4. Termination of Escrow. This escrow shall terminate on the later of
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(i) the date which is twelve (12) months from the Closing Date and (ii) the date
upon which all Escrow Funds have been paid by the Escrow Agent pursuant to
Section 3 hereof.
5. Duties of Escrow Agent.
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(a) Escrow Agent shall not be under any duty to give the Escrow Fund
held by it hereunder any greater degree of care than it gives its own similar
property and shall not be required to invest any funds held hereunder except as
directed in this Agreement. Uninvested funds held hereunder shall not earn or
accrue interest.
(b) Escrow Agent shall not be liable, except for its own gross
negligence or willful misconduct and, except with respect to claims based upon
such gross negligence or willful misconduct that are successfully asserted
against Escrow Agent, the other parties hereto shall jointly and severally
indemnify and hold harmless Escrow Agent (and any successor Escrow Agent) from
and against any and all losses, liabilities, claims, actions, damages and
expenses, including reasonable attorneys' fees and disbursements, arising out of
and in connection with this Agreement. Without limiting the foregoing, Escrow
Agent shall in no event be liable in connection with its investment or
reinvestment of any cash held by it hereunder in good faith, in accordance with
the terms hereof, including, without limitation, any liability for any delays
(not resulting from its gross negligence or willful misconduct) in the
investment or reinvestment of the Escrow Fund, or any loss of interest incident
to any such delays.
(c) Escrow Agent shall be entitled to rely upon any order, judgment,
certification, demand, notice, instrument or other writing delivered to it
hereunder without being required to determine the authenticity or the
correctness of any fact stated therein or the propriety or validity of the
service thereof. Escrow Agent may act in reliance upon any instrument or
signature believed by it to be genuine and may assume that the person purporting
to give receipt or advice or make any statement or execute any document in
connection with the provisions hereof has been duly authorized to do so. Escrow
Agent may conclusively presume that the undersigned representative of any party
hereto which is an entity other than a natural person has full power and
authority to instruct Escrow Agent on behalf of that party unless written notice
to the contrary is delivered to Escrow Agent.
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(d) Escrow Agent may act pursuant to the advice of counsel with
respect to any matter relating to this Agreement and shall not be liable for any
action taken or omitted by it in good faith in accordance with such advice.
(e) Escrow Agent does not have any interest in the Escrow Fund
deposited hereunder but is serving as escrow holder only and having only
possession thereof. Any payments of income from this Escrow Fund shall be
subject to withholding regulations then in force with respect to United States
taxes. The parties hereto will provide Escrow Agent with appropriate Internal
Revenue Service Forms W-9 for tax identification number certification, or non-
resident alien certifications. This Section 5(e) and Section 5(b) hereof shall
survive notwithstanding any termination of this Agreement or the resignation of
Escrow Agent.
(f) Escrow Agent makes no representation as to the validity, value,
genuineness or the collectability of any security or other document or
instrument held by or delivered to it.
(g) Escrow Agent shall not be called upon to advise any party as to
the wisdom in selling or retaining or taking or refraining from any action with
respect to any securities or other property deposited hereunder.
(h) Escrow Agent (and any successor Escrow Agent) may at any time
resign as such by delivering the Escrow Fund to any successor Escrow Agent
jointly designated by the other parties hereto in writing, or to any court of
competent jurisdiction, whereupon Escrow Agent shall be discharged of and from
any and all further obligations arising in connection with this Agreement. The
resignation of 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 Escrow Agent has not
received a designation of a successor Escrow Agent, Escrow Agent's sole
responsibility after that time shall be to retain and safeguard the Escrow Fund
until receipt of a designation of successor Escrow Agent or a joint written
disposition instruction by the other parties hereto or a final non-appealable
order of a court of competent jurisdiction.
6. Limited Responsibility. This Agreement expressly sets forth all the
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duties of Escrow Agent with respect to any and all matters pertinent hereto. No
implied duties or obligations shall be read into this agreement against Escrow
Agent. Escrow Agent shall not be bound by the provisions of any agreement among
the other parties hereto except this Agreement.
7. Ownership for Tax Purposes. Indemnitor agrees that, for purposes of
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federal and other taxes based on income, Indemnitor will be treated as the owner
of the Escrow Fund, and that Indemnitor will report all income, if any, that is
earned on, or derived from, the Escrow Fund as its income in the taxable year or
years in which such income is properly includible and pay any taxes attributable
thereto.
8. Notices. All notices, consents or other communications required or
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permitted to be given under this Agreement shall be in writing and shall be
deemed to have been duly given (a) when delivered personally, (b) three business
days after being mailed by first class certified mail,
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return receipt requested, postage prepaid, or (c) one business day after being
sent by a reputable overnight delivery service, postage or delivery charges
prepaid, to the parties at their respective addresses stated on the first page
or the signature pages of this Agreement. Notices may also be given by prepaid
telegram or facsimile and shall be effective on the date transmitted if
confirmed within 24 hours thereafter by a signed original sent in the manner
provided in the preceding sentence. A copy of each notice to U.S. Co., Canadian
Co., DMJ, Salter or Finkelstein shall be simultaneously sent to Borden & Elliot,
Scotia Plaza, 40 King Street West, Toronto, Ontario M5H 3Y4, Canada, Attn:
Daniel F. Hirsh. A copy of each notice to Global shall be simultaneously sent
to: Blank Rome Comisky & McCauley LLP, One Logan Square, Philadelphia,
Pennsylvania 19103, Attn: Francis E. Dehel, Esquire. Any party may change its
address for notice and the address to which copies must be sent by giving notice
of the new addresses to the other parties in accordance with this Section 8,
except that any such change of address notice shall not be effective unless and
until received.
9. Entire Understanding. This Agreement states the entire
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understanding among the parties with respect to the subject matter hereof, and
supersedes all prior oral and written communications and agreements, and all
contemporaneous oral communications and agreements, with respect to the subject
matter hereof.
10. Parties in Interest. This Agreement shall bind, benefit, and be
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enforceable by and against each party hereto and its successors and assigns.
Global shall not in any manner assign any of its rights or obligations under
this Agreement without the express prior written consent of U.S. Co. and
Canadian Co., and none of U.S. Co., Canadian Co., DMJ, Salter nor Finkelstein
shall in any manner assign any of its rights or obligations under this Agreement
without the express prior written consent of Global.
11. Counterparts. This Agreement may be executed in any number of
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counterparts, each of which when so executed and delivered shall constitute an
original hereof, and it shall not be necessary in making proof of this Agreement
to produce or account for more than one original counterpart hereof.
12. CONTROLLING LAW. THIS AGREEMENT IS MADE UNDER, AND SHALL BE CONSTRUED
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AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED SOLELY THEREIN, WITHOUT GIVING
EFFECT TO PRINCIPLES OF CONFLICTS OF LAW.
13. Jurisdiction and Process. Each of the parties (a) irrevocably
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consents to the exclusive jurisdiction of the Courts of Common Pleas of
Montgomery County, Pennsylvania, or the United States District Court for the
Eastern District of Pennsylvania, in any and all actions between or among any of
the parties, whether arising hereunder or otherwise, (b) irrevocably waives its
right to trial by jury in any such action, and (c) irrevocably consents to
service of process by first class certified mail, return receipt requested,
postage prepaid, to the address at which such party is to receive notice in
accordance with Section 8 hereof. In any and all actions between or among any
of the parties, whether arising hereunder or otherwise, the prevailing party or
parties shall be entitled
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to recover their reasonable attorneys' fees and legal expenses from the other
party or parties.
IN WITNESS WHEREOF, the parties have executed, or have caused this Escrow
Agreement to be executed on their behalf by their duly authorized officers, as
of the date first stated above.
GLOBAL SPORTS, INC. DMJ FINANCIAL, INC.
By:_______________________________ By:_______________________________
Name: Michael G. Rubin Name:
Title: Chairman and CEO Title:
GEN-X ACQUISITION (U.S.), INC. GEN-X ACQUISITION (CANADA) INC.
By:_______________________________ By:_______________________________
Name: Name:
Title: Title:
__________________________________ _______________________________
KENNETH J. FINKELSTEIN JAMES J. SALTER
BORDEN & ELLIOT
By:_______________________________
Name:
Title:
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Exhibit "A"
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RECEIPT OF ESCROW FUNDS
The undersigned, as escrow agent under a certain Escrow Agreement (the
"Escrow Agreement"), dated as of ____________, ____, among Global Sports, Inc.,
Gen-X Acquisition (U.S.), Inc., Gen-X Acquisition (Canada) Inc., DMJ Financial,
Inc., James J. Salter, Kenneth J. Finkelstein and the undersigned, hereby
acknowledges receipt from _________________ ____on the date set forth below of
$__________ in accordance with the terms of the Escrow Agreement.
Date: ________________
BORDEN & ELLIOT
By:_______________________________
Name:
Title:
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