Shares Escrow Agreement among Shareholders, Olympus Capital, Christian Mahe de Berdouare, and L. Van Stillman as Escrow Agent

Summary

This agreement, dated March 23, 2001, is between certain shareholders, Olympus Capital (as Shareholders' Representative), Christian Mahe de Berdouare (the Depositing Party), and L. Van Stillman (the Escrow Agent). It sets out the terms for holding and releasing specific stock certificates in escrow, as required by a related Exchange Agreement. The Escrow Agent will release the shares only upon receiving proper instructions, documentation, or court orders. The agreement also outlines the Escrow Agent’s limited responsibilities and provides for indemnification against liabilities, except in cases of willful misconduct.

EX-10.17 6 0006.txt EXHIBIT 10.17 SHARES ESCROW AGREEMENT ESCROW AGREEMENT, dated as of March 23, 2001, by and among the parties listed on Annex A hereto (collectively, the "Shareholders"), Olympus Capital, Inc., a Florida corporation ("Olympus Capital"), as Shareholders' Representative, Christian Mahe de Berdouare (the "Depositing Party"), and L. Van Stillman (the "Escrow Agent"). W I T N E S S E T H: WHEREAS, the parties hereto, other than the Escrow Agent and the Shareholders' Representative, have entered into a certain Exchange Agreement dated as of March 23, 2001 (the "Underlying Agreement"), and pursuant thereto the Depositing Party is required to deposit the Deposited Shares (as defined below) to be held in escrow; and WHEREAS, the Escrow Agent is willing to serve as escrow agent and hold the Deposited Shares in accordance with the terms and conditions hereof; NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: 1. This is to confirm that the Depositing Party has delivered the stock certificates listed on Annex B and duly executed stock powers in blank (the "Deposited Shares") to the Escrow Agent: 2. The Escrow Agent shall release from escrow hereunder and deliver the Deposited Shares as follows: a. Within three (3) business days following receipt by the Escrow Agent of a Shares Release Certificate duly executed by the Shareholders' Representative substantially in the form of Exhibit A hereto in accordance with instructions set forth therein; b. Within three (3) business days following receipt by the Escrow Agent of a Final Shares Release Notice duly executed by the Depositing Party and the Shareholders' Representative and substantially in the form of Exhibit B hereto in accordance with instructions set forth therein; c. Within three (3) business days of the receipt of an original of the Note dated March 23, 2001 issued by Chicken Kitchen Corporation in favor on the Shareholders' Representative (or endorsed to the Depositing Party) marked "PAID IN FULL" which original shall be returned to the Depositing Party together with the Deposited Shares; or d. Within three (3) business days after receipt by the Escrow Agent of (i) a copy of a final judgment or order of a court of competent jurisdiction, certified by the clerk of such court or other appropriate official, the Deposited Shares shall be delivered as set forth in such judgment or order and (ii) an opinion of counsel, acceptable to the Escrow Agent, to the party to whom the Deposited Shares are to be delivered to the effect that such judgment or order is final within the meaning of this Agreement. A judgment or order under this Agreement shall be deemed to be final at the expiration of the time within which to take an appeal therefrom and no appeal has been taken prior to such time, or until the entry of a judgment or order from which no appeal may be taken. 3. Until the Deposited Shares are released and delivered in accordance with Section 2 hereof, the Escrow Agent shall promptly forward any and all dividends and other distributions in respect of the Deposited Shares, received by the Escrow Agreement, to Christian Mahe de Berdouare. 4. The Escrow Agent shall be entitled to rely upon, and shall be fully protected from all liability, loss, cost, damage or expense in acting or omitting to act pursuant to, any instruction, order, judgment, certification, affidavit, demand, notice, opinion, instrument or other writing delivered to it hereunder without being required to determine the authenticity of such document, the correctness of any fact stated therein, the propriety of the service thereof or the capacity, identity or authority of any party purporting to sign or deliver such document. 5. The duties of the Escrow Agent are only as herein specifically provided, and are purely ministerial in nature. The Escrow Agent shall neither be responsible for or under, nor chargeable with knowledge of, the terms and conditions of any other agreement, instrument or document in connection herewith, including, without limitation, the Underlying Agreement, and shall be required to act in respect of the Deposited Shares only as provided in this Agreement. This Agreement sets forth all the obligations of the Escrow Agent with respect to any and all matters pertinent to the escrow contemplated hereunder and no additional obligations of the Escrow Agent shall be implied from the terms of this Agreement or any other agreement. The Escrow Agent shall incur no liability in connection with the discharge of its obligations under this Agreement or otherwise in connection therewith, except such liability as may arise from the willful misconduct of the Escrow Agent. 6. The Escrow Agent may consult with counsel of its choice, which may include attorneys in the firm of L. Van Stillman, P.A., and shall not be liable for any action taken or omitted to be taken by the Escrow Agent in accordance with the advice of such counsel. 7. The Escrow Agent shall not be bound by any modification, cancellation or rescission of this Agreement unless in writing and signed by the Escrow Agent. 8. The Escrow Agent is acting as a stakeholder only with respect to the Deposited Shares. If any dispute arises as to whether the Escrow Agent is obligated to deliver the Deposited Shares or as to whom the Deposited Shares are to be delivered, the Escrow Agent shall not be required to make any delivery, but in such event the Escrow Agent may hold the Deposited Shares until receipt by the Escrow Agent of instructions in writing, signed by all parties which have, or claim to have, an interest in the Deposited Shares, directing the disposition of the Deposited Shares, or in the absence of such authorization, the Escrow Agent may hold the Deposited Shares until receipt of a certified copy of a final judgment of a court of competent jurisdiction providing for the disposition of the Deposited Shares. The Escrow Agent may require, as a condition to the disposition of the Deposited Shares pursuant to written instructions, indemnification and/or opinions of counsel, in form and substance satisfactory to the Escrow Agent, from each party providing such instructions. If such written instructions, indemnification and opinions are not received, or proceedings for such determination are not commenced, within thirty (30) days after receipt by the Escrow Agent of notice of any such dispute and diligently continued, or if the Escrow Agent is uncertain as to which party or parties are entitled to the Deposited Shares, the Escrow Agent may either (i) hold the Deposited Shares until receipt of (x) such written instructions and indemnification or (y) a certified copy of a final judgment of a court of competent jurisdiction providing for the disposition of the Deposited Shares, or (ii) deposit the Deposited Shares in the registry of a court of competent jurisdiction; provided, however, that notwithstanding the foregoing, the Escrow Agent may, but shall not be required to, institute legal proceedings of any kind. 9. The Shareholders, jointly and severally, agree to reimburse the Escrow Agent on demand for, and to indemnify and hold the Escrow Agent harmless against and with respect to, any and all loss, liability, damage, or expense (including, without limitation, attorneys' fees and costs) that the Escrow Agent may suffer or incur in connection with the entering into of this Agreement and performance of its obligations under this Agreement or otherwise in connection therewith, except to the extent such loss, liability, damage or expense arises from the willful misconduct of the Escrow Agent. Without in any way limiting the foregoing, the Escrow Agent shall be reimbursed for the cost of all legal fees and costs incurred by it in acting as the Escrow Agent hereunder (which may include fees and costs of legal services provided by attorneys in the firm of L. Van Stillman, P.A., based on the normal hourly rates in effect at the time services are rendered. 10. The Escrow Agent and any successor escrow agent may at any time resign as such by delivering the Deposited Shares to either (i) any successor escrow agent designated in writing by the Shareholders' Representative and the Depositing Party, or (ii) any court having competent jurisdiction. Upon its resignation and delivery of the Deposited Shares as set forth in this paragraph, the Escrow Agent shall be discharged of, and from, any and all further obligations arising in connection with the escrow contemplated by this Agreement. 11. The Escrow Agent shall have the right to represent any party hereto in any dispute between the parties hereto with respect to the Deposited Shares or otherwise. 12. This Agreement shall inure to the benefit of, and be binding upon, the parties hereto and their respective successors and assigns. Nothing in this Agreement, express or implied, shall give to anyone, other than the parties hereto and their respective permitted successors and assigns, any benefit, or any legal or equitable right, remedy or claim, under or in respect of this Agreement or the escrow contemplated hereby. 13. All notices required under the terms and provisions of this Agreement shall be in writing, and any such notice may be given by United States mail, courier service or facsimile (confirmed by telephone or in writing in the case of notice by facsimile) or any other customary means of communication, and any such notice shall be effective when delivered, or if mailed, three (3) days after deposit in the United States mail with proper postage for ordinary mail prepaid, to the addresses set forth on Schedule N. 14. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Florida. All actions against the Escrow Agent arising under or relating to this Agreement shall be brought against the Escrow Agent exclusively in the appropriate court in the State of Florida, County of Dade. Each of the parties hereto agree to submit to personal jurisdiction and to waive any objection as to venue in the State of Florida, County of Dade. Service of process on any party hereto in any action arising out of or relating to this Agreement shall be effective if mailed to such party as set forth in the immediately preceding paragraph. 15. TO THE FULL EXTENT PERMITTED BY LAW, EACH OF THE PARTIES HERETO HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES THE RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF ANY PARTY HERETO. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE ESCROW AGENT ENTERING INTO THIS AGREEMENT. 16. This Agreement may be executed in two or more separate counterparts, each of which shall be an original and all of which, together, shall constitute one agreement. 17. All pronouns and any variations thereof shall be deemed to refer to the masculine, feminine or neuter, singular or plural, as the identity of the parties hereto taken within context may require. 18. The rights of the Escrow Agent contained in this Agreement, including without limitation the right to indemnification, shall survive the resignation of the Escrow Agent and the termination of the escrow contemplated hereunder. [signature pages follow] IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the day and year first written above. CHICKEN KITCHEN CORPORATION By:/s/ Christian Mahe de Berdouare ---------------------------------------- Name: Christian Mahe de Berdouare ------------------------------------ Title Chairman, President & CEO ----------------------------------------- Christian Mahe de Berdouare ----------------------------------------------------- Christian Mahe de Berdouare AGRICOLA COCO BONH, S.A. By: ------------------------------------- Name: Title: AZUCAR, LTD. By: ------------------------------------- Name: Title: BARRAS INVESTMENT By: ------------------------------------- Name: Title: ---------------------------------------- William Beckman C.A. OPORTUNIDAD, S.A. By: ------------------------------------- Name: Title: ---------------------------------------- Kristy Cash CASTLE CREEK VALLEY RANCH PARTNERSHIP DBPP By: ------------------------------------- Name: Title: ---------------------------------------- Charles Devine ---------------------------------------- Jimmy Dean Dowda EDWARDS CAPITAL CORPORATION By: ------------------------------------- Name: Title: MATTHEW HOLSTEIN PENSION PLAN By: ------------------------------------- Name: Title: HASSAN ABDUL, S.A. By: ------------------------------------- Name: Title: ---------------------------------------- Phillip Holstein ---------------------------------------- Bruce Knox ---------------------------------------- Ed Leinster ---------------------------------------- Frederick A. Lenz ---------------------------------------- Michael M. Louis, Jr. ---------------------------------------- David Mallen ---------------------------------------- John T. Mitchell NOSTRADAMUS, S.A. By: ------------------------------------- Name: Title: ---------------------------------------- Richard M. Peck ---------------------------------------- Barry Seidman ---------------------------------------- James Skalko ---------------------------------------- Joseph Sloves ---------------------------------------- Dominick Vicari WORLD CAPITAL FUNDING, L.L.C. By: ------------------------------------- Name: Title: ---------------------------------------- Arnold A. Zousmer OLYMPUS CAPITAL, INC., as Shareholders' Representative, By: ------------------------------------- Name: Title: ---------------------------------------- L. Van Stillman, as Escrow Agent Annex A Agricola Coco Bonh, S.A. Azucar, Ltd. Barras Investments William Beckman C.A. Opportunidad Kristy Cash Castle Creek Valley Ranch Partnership DBPP Charles Devine Jimmy Dean Dowda Edwards Capital Corporation Hassan Abdul, S.A. Matthew Holstein Pension Plan Phillip Holstein Bruce Knox Ed Leinster Frederick A. Lenz Michael M. Louis, Jr. David Mallen John T. Mitchell Nostradamus, S.A. Richard M. Peck Barry Seidman James Skalko Joseph Sloves Dominick Vicari World Capital Funding, L.L.C. Arnold A. Zousmer Annex B Deposited Shares - -------------------------------------------------------------------------------- Issuer Class of Stock Stock Certificate Number Certificate of Number(s) Shares - -------------------------------------------------------------------------------- Chicken Kitchen Class A 1913 500,000 Corporation Common Stock - -------------------------------------------------------------------------------- Schedule N CHICKEN KITCHEN CORPORATION Address: 770 Ponce de Leon Blvd. Suite 200 Coral Gables, FL 33134 Christian Mahe De Berdouare Address: 5750 N. Bay Road Miami Beach, FL 33140 Fax: (305 ###-###-#### AGRICOLA COCO BONH, S.A. Address: c/o Mr. Jose Antonio Gomez, President Apartado 1474-C.P. 1000 San Jose, Costa Rica Fax: 011 ###-###-#### AZUCAR, LTD. Address: c/o Mr. Jose Antonio Gomez, President Apartado 1474-C.P. 1000 San Jose, Costa Rica Fax: 011 ###-###-#### BARRAS INVESTMENTS Address: Martastrasse 137 Postfach 8040 Zurich, Switzerland Fax: 011 ###-###-#### William Beckman Address: c/o GRC Vanderweil Engineers, Inc. 1055 Maitland Center Commons Blvd. Maitland, FL 32751 Fax: (407 ###-###-#### C.A. Oportunidad S.A. Address: c/o Mr. Jose Antonio Gomez, President Apartado 1474-C.P. 1000 San Jose, Costa Rica Fax: (506) 258-3995 Kristy Cash Address: 2180 Dover Street Lakewood, Colorado 80215 Fax: (303) 232-3082 CASTLE CREEK VALLEY RANCH PARTNERSHIP DBPP Address: P.O. Box 2747 Aspen, Colorado 81612 Fax: ( 970) 920-9361 Charles Devine Address: 1433 Oakfield Drive Brandon, FL 33511 Fax: (813) 689-0435 Jimmy Dean Dowda Address: 8052 Cherry Lake Road Groveland, FL 33476 Fax: (354) 429-9172 EDWARDS CAPITAL CORPORATION Address: ATTN: Mr. W.J. Matthews, President P.O. Box 1044 Grand Cayman, Cayman Islands BW1 Fax: (345) 949-7325 MATTHEW HOLSTEIN PENSION PLAN Address: P.O. Box 2747 Aspen, Colorado 81612 Fax: (970) 544-0374 Hassan Abdul, S.A. Address: c/o Mr. Jose Antonio Gomez, President Apartado 1474-C.P. 1000 San Jose, Costa Rica Fax: 011 ###-###-#### Bruce Knox Address: c/o Knox Nursery 4349 N. Hiawassee Road Orlando, Florida 32818 Fax: (407) 290-1702 Ed Leinster Address: c/o Faith Williams 2788 D Curry Ford Road Orlando, Florida 32806 Fax: (407) 894-8435 Frederick A. Lenz Address: 113 Hathaway Drive Altamonte Springs, Florida 32701 Fax: (407) 831-6106 Michael M. Louis, Jr. Address: 5634 Edgewater Drive Orlando, Florida 32810 Fax: (407) 294-9689 David Mallen Address: 2300 Randall Road Winter Park, Florida 32789 Fax: (407) 843-8591 John T. Mitchell Address: 5422 Monterrey Club Court Windermere, Florida 34786 Fax: (407 ###-###-#### NOSTRADAMUS, S.A. Address: c/o Mr. Jose Antonio Gomez, President Apartado 1474-C.P. 1000 Fax: 011 ###-###-#### Richard M. Peck Address: 1583 E. Silver Star Road, #326 Ocoee, FL 34761 Fax: (407) 422-0590 POW WOW, INC. Address: 136 Vista Oak Drive Longwood, FL 32779 Fax: (407) 333-3191 Barry Seidman Address: 16631 Avenida Molino Viejo P.O. Box 9813 Rancho Sante Fe, California 92067 Fax: (858) 759-0336 James Skalko Address: 136 Vista Oak Drive Longwood, FL 32779 Fax: (407) 333-3191 Joseph Sloves Address: 0800 Cluny Road Aspen, CO 81611 Fax: (970) 923-6292 Dominick Vicari Address: 5520 Rockwood Avenue Orlando, Florida 32839 Fax: (407) 339-4476 WORLD CAPITAL FUNDING, L.L.C. Address: c/o Mr. Keith Mazer 1625 Larimer Street, Suite 1903 Denver, Colorado 80202 Fax: (303) 620-9199 Arnold A. Zousmer Address: P.O. Box 9906 Rancho Sante Fe, California 92067 Fax: (858) 756-1464 OLYMPUS CAPITAL, INC. Address: attn: James Spratt 4828 S. Peninsula Drive Ponce Inlet, Florida 32127 Fax: (904) 304-6070 L. Van Stillman Address: 1177 George Bush Boulevard Suite 308 Delray Beach, Florida 33483 Fax: (561) 330-9116 Exhibit A Shares Release Certificate To: L. Van Stillman 1177 George Bush Boulevard Suite 308 Delray Beach, Florida 33483 Re: Shares Escrow Agreement (the "Escrow Agreement") dated as of March 23, 2001, among the Shareholders listed therein (the "Shareholders"), Olympus Capital, Inc., as Shareholders' Representative, Christian Mahe de Berdouare and L. Van Stillman, as Escrow Agent. Ladies and Gentlemen: The undersigned hereby certifies that _______ ($_______) are past due and payable under that certain Note issued by Chicken Kitchen Corporation on March 23, 2001 in favor of the Shareholders' Representative in the aggregate amount of $150,000. Please be advised that the undersigned hereby request the release and delivery of the Deposited Shares (as such term is defined in the Escrow Agreement) to the undersigned at __________ [address]. Olympus Capital, Inc. as Shareholders' Representative, acting on behalf of all Shareholders. By: ------------------------------------- Name: -------------------------------- cc: Christian Mahe de Berdouare A-1 Exhibit B Final Shares Release Notice To: L. Van Stillman 1177 George Bush Boulevard Suite 308 Delray Beach, Florida 33483 Re: Shares Escrow Agreement (the "Escrow Agreement") dated as of March 23, 2001, among the Shareholders listed therein ("Shareholders"), Olympus Capital, Inc., as Shareholders' Representative, Christian Mahe de Berdouare and L. Van Stillman, as Escrow Agent. Ladies and Gentlemen: Please be advised that the undersigned hereby request the release and delivery of the Deposited Shares (as such terms is defined in the Escrow Agreement) to Christian Mahe de Berdouare, at ___________ [address]. [alternative delivery instructions] ---------------------------------------- Christian Mahe de Berdouare Date: ----------------------------------- Olympus Capital, Inc. as Shareholders' Representative By: ------------------------------------- Name: --------------------------------