CLOSING
PAYMENT ESCROW AGREEMENT


 


CLOSING PAYMENT ESCROW
AGREEMENT, dated as of April 10th, 2013 (“Agreement”) by and among Selway Capital Acquisition Corporation,
a Delaware corporation (“Selway”), Healthcare Corporation of America, a New Jersey corporation (the “Company”),
Gary Sekulski as representative of the common stockholders of the Company (the “Stockholders’ Representative”),
Edmundo Gonzalez as representative of Selway (“Buyer’s Representative”), and American Stock Transfer &
Trust Company, LLC, as escrow agent (the “Escrow Agent”).


 


WHEREAS, Selway and
the Company are parties to that certain Agreement and Plan of Merger, dated January 25, 2013 (the “Merger Agreement”)
by and among Selway, Selway Merger Sub, Inc., a New Jersey corporation (“Merger Sub”), the Company, Prescription
Corporation of America, a New Jersey Corporation, the Stockholders’ Representative, and Buyer’s Representative, pursuant
to which Merger Sub will merge with and into the Company, with the Company being the surviving corporation following such merger
and, as such, a wholly-owned subsidiary of Selway; and


 


WHEREAS, in accordance
with the terms of the Merger Agreement, Selway, the Company, and the Stockholders’ Representative have agreed to deposit
10% of the Closing Payment (as defined in the Merger Agreement) paid by Selway to the common stockholders of the Company (the “Stockholders”)
in connection with the transactions contemplated by the Merger Agreement, consisting of (i) promissory notes with an aggregate
principal amount of $750,000 as set forth on Exhibit A hereto (the “Escrow Notes”) and (ii) 520,000
shares of common stock of Selway (the “Escrow Shares” and, together with the Escrow Notes, the “Escrow
Securities”) in the form of certificates in the names of the Stockholders and in the amounts as set forth on Exhibit
A hereto, into escrow to be released following the twelve month period starting as of the date hereof (the “Escrow
Period”); and


 


WHEREAS, the Company,
Selway, and the Stockholders’ Representative desire that the Escrow Agent accept the Escrow Securities, in escrow, to be
held and disbursed as hereinafter provided.


 


NOW, THEREFORE, IT
IS AGREED:


 


1.Appointment
of Escrow Agent. The Company, Selway, Buyer’s Representative and the Stockholders’ Representative hereby appoint
the Escrow Agent to act in accordance with and subject to the terms of this Agreement and the Escrow Agent hereby accepts such
appointment and agrees to act in accordance with and subject to such terms.


 


2.Deposit of
Escrow Securities.


 


2.1The Escrow
Fund. In connection with the execution hereof, Selway shall deliver to the Escrow Agent notes representing the Escrow Notes
and certificates representing the Escrow Shares, which together shall constitute the escrow fund (the “Escrow Fund”)
to be held and disbursed subject to the terms and conditions of this Agreement. During the Escrow Period and for as long as any
Escrow Securities remain in the Escrow Fund, Selway will deliver any dividends, interest payments, or distributions of any kind
made in respect of the Escrow Securities promptly to the Escrow Agent, together with instructions indicating how any such amounts
shall be allocated among the Stockholders, and the Escrow Agent will add any such amounts to the Escrow Fund.


 



    	 



    	 



    

 


2.2Voting.
The Stockholders shall be entitled to vote the Escrow Shares on any matters to come before the stockholders of Buyer, with each
Stockholder being entitled to direct the voting of the Escrow Shares allocated to such Stockholder.


 


2.3Transferability.
During the Escrow Period, no Escrow Securities or any beneficial interest therein may be pledged, sold, assigned, or transferred,
including by operation of law, by any Stockholder or be taken or reached by any legal or equitable process in satisfaction of any
debt or other liability of any such Stockholder, prior to delivery to such Stockholder of his, her, or its pro rata portion of
the Escrow Fund by the Escrow Agent as provided herein, except (i) by gift to a member of the immediate family of the Stockholder
or, if the Stockholder is an entity, the Stockholder’s officers or directors, or to a trust or other entity, the beneficiary
of which is such Stockholder or, if the Stockholder is an entity, one of its officers, directors (or a member of their respective
immediate families), (ii) by virtue of the laws of descent and distribution upon death of any Stockholder, or (iii) pursuant to
a qualified domestic relations order (such transferees, the “Permitted Transferees”); provided, however, that
such permissive transfers may be implemented only upon the respective transferee’s written agreement to be bound by the terms
and conditions of this Agreement.


 


3.Indemnification
by Stockholders. The Stockholders have agreed in Article XI of the Merger Agreement to indemnify and hold harmless Selway from
and against Adverse Consequences (as defined in Section 11.2 of the Merger Agreement) up to the amount of the Escrow Fund. The
Escrow Fund shall be security for such indemnity obligations of the Stockholders, subject to the limitations, and in the manner
provided, in this Escrow Agreement and the Merger Agreement.


 


4.Disbursement
of the Escrow Securities.


 


4.1Disbursement
Upon Claim of Adverse Consequences.


 


(a)The Escrow Agent
shall hold the Escrow Securities until the earlier of the expiration of the Escrow Period or the receipt of a written notice executed
by the Chief Executive Officer or Chief Financial Officer of Selway (an “Indemnification Notice”) to the Stockholders’
Representative and to the Escrow Agent. Such Indemnification Notice shall contain the amount of Adverse Consequences for which
Selway is seeking indemnification and shall set forth the reasons therefore in reasonable detail. Upon receipt of an Indemnification
Notice, the Escrow Agent shall retain in the Escrow Fund such number or amount of Escrow Securities (at an assumed value of $10.00
per Escrow Share and at the face value per Escrow Note, but pro rata based on the relative aggregate values of the Escrow Securities)
until the resolution of such claim. The Escrow Agent shall, upon receipt of a Representatives’ Certificate (as defined below),
disburse the Escrow Securities in accordance with Section 4.1(b) below.


 


(b)Unless the Stockholders’
Representative shall notify Selway and the Escrow Agent in writing within thirty (30) days after receipt of an Indemnification
Notice that the Stockholders’ Representative objects to any claim for indemnification set forth therein, which notice shall
include a reasonable explanation of the basis of such objection, then such indemnification claim shall be deemed to be accepted
by the Stockholders’ Representative, and the parties shall issue to the Escrow Agent a certificate (a “Representatives’
Certificate”) executed by the Buyer’s Representative and the Stockholders’ Representative indicating what
number or amount of Escrow Securities are to be released to Selway for cancellation. If the Stockholders’ Representative
shall timely notify Selway and the Escrow Agent in writing that it objects to any claim for indemnification made in such an Indemnification
Notice, Selway shall have fifteen (15) days from receipt of such notice to respond with a written statement to such objection.
If after thirty (30) days following receipt of Selway’s written statement, there remains a dispute as to any indemnification
claims set forth in the Indemnification Notice, the Stockholders’ Representative and Buyer’s Representative shall attempt
in good faith for sixty (60) days to agree upon the rights of the respective parties with respect to each of such claims. If the
Stockholders’ Representative and Buyer’s Representative should so agree, a memorandum setting forth such agreement
shall be prepared and signed by both parties. Based upon the memorandum, the parties shall issue to the Escrow Agent a Representatives’
Certificate indicating what number or amount of Escrow Securities are to be released to Selway for cancellation. The Escrow Agent
shall be entitled to rely on any Representatives’ Certificate and disburse Escrow Securities from the Escrow Fund in accordance
with the terms thereof.


 



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(c)If the Stockholders’
Representative and the Buyer’s Representative cannot resolve a dispute during the sixty-day period (or such longer period
as the parties may agree to in writing), then such dispute shall be submitted (and either party may submit such dispute) for arbitration
in accordance with Article XII of the Merger Agreement.


 


4.2Disbursement
Following Escrow Period. Subject to Section 4.1, within five (5) business days following the later of expiration of
the Escrow Period or the final determination with respect to any claim of Adverse Consequences (the “Release Date”),
the Escrow Agent, after releasing the amounts of Escrow Securities, if any, pursuant to Section 4.1 to Selway for cancellation,
will release the Escrow Securities remaining in the Escrow Fund to the Stockholders.


 


4.3Selway Covenants.
Selway hereby covenants and agrees to (i) cause its officers to act in good faith regarding the release of the Escrow Securities
pursuant to Sections 4.1 and 4.2, and (ii) to promptly release the Escrow Securities after the end of the Escrow
Period or the delivery of a Representatives’ Certificate to the Escrow Agent pursuant to Section 4.1.


 


4.4Fractional
Shares. No fractional shares shall be released and delivered from the Escrow Fund to the Stockholders and all fractional shares
shall be rounded to the nearest whole share.


 


4.5Duties.
The Escrow Agent shall have no further duties hereunder after the disbursement or destruction of the Escrow Securities in accordance
with this Section 4.


 



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5.Concerning
the Escrow Agent.


 


5.1Good Faith
Reliance. The Escrow Agent shall not be liable for any action taken or omitted by it in good faith and in the exercise of its
own best judgment, and may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion
or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report or other paper or document (not
only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of
any information therein contained) which is believed by the Escrow Agent to be genuine and to be signed or presented by the proper
person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission
of this Agreement unless evidenced by a writing delivered to the Escrow Agent signed by the proper party or parties and, if the
duties or rights of the Escrow Agent are affected, unless it shall have given its prior written consent thereto.


 


5.2Indemnification.
The Escrow Agent shall be indemnified and held harmless by Selway from and against any expenses, including counsel fees and disbursements,
or loss suffered by the Escrow Agent in connection with any action, suit or other proceeding involving any claim which in any way,
directly or indirectly, arises out of or relates to this Agreement, the services of the Escrow Agent hereunder, or the Escrow Securities
held by it hereunder, other than expenses or losses arising from the gross negligence or willful misconduct of the Escrow Agent.
Promptly after the receipt by the Escrow Agent of notice of any demand or claim or the commencement of any action, suit or proceeding,
the Escrow Agent shall notify the other parties hereto in writing. In the event of the receipt of such notice, the Escrow Agent,
in its sole discretion, may commence an action in the nature of interpleader in an appropriate court to determine ownership or
disposition of the Escrow Securities or it may deposit the Escrow Securities with the clerk of any appropriate court or it may
retain the Escrow Securities pending receipt of a final, non-appealable order of a court having jurisdiction over all of the parties
hereto directing to whom and under what circumstances the Escrow Securities are to be disbursed and delivered. The provisions of
this Section 5.2 shall survive in the event the Escrow Agent resigns or is discharged pursuant to Sections 5.5 or
5.6 below.


 


5.3Compensation.
The Escrow Agent shall be entitled to reasonable compensation from Selway for all services rendered by it hereunder, as set forth
on Exhibit B hereto. The Escrow Agent shall also be entitled to reimbursement from Selway for all expenses paid or
incurred by it in the administration of its duties hereunder including, but not limited to, all counsel, advisors’ and agents’
fees and disbursements and all taxes or other governmental charges.


 


5.4Further Assurances.
From time to time on and after the date hereof, Selway, the Company, Buyer’s Representative and the Stockholders’ Representative
shall deliver or cause to be delivered to the Escrow Agent such further documents and instruments and shall do or cause to be done
such further acts as the Escrow Agent shall reasonably request to carry out more effectively the provisions and purposes of this
Agreement, to evidence compliance herewith or to assure itself that it is protected in acting hereunder.


 



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5.5Resignation.
The Escrow Agent may resign at any time and be discharged from its duties as escrow agent hereunder by its giving the other parties
hereto written notice and such resignation shall become effective as hereinafter provided. Such resignation shall become effective
at such time that the Escrow Agent shall turn over to a successor escrow agent appointed by Selway and approved by the Stockholders’
Representative. If no new escrow agent is so appointed within the 60 day period following the giving of such notice of resignation,
the Escrow Agent may deposit the Escrow Securities with any court it deems appropriate.


 


5.6Discharge of
Escrow Agent. The Escrow Agent shall resign and be discharged from its duties as escrow agent hereunder if so requested in
writing at any time by the Selway and approved by the Stockholders’ Representative; provided, however, that such resignation
shall become effective only upon acceptance of appointment by a successor escrow agent as provided in Section 5.5.


 


5.7Liability.
Notwithstanding anything herein to the contrary, the Escrow Agent shall not be relieved from liability hereunder for its own gross
negligence or its own willful misconduct.


 


6.Miscellaneous.


 


6.1Governing Law.
This Agreement shall for all purposes be deemed to be made under and shall be construed in accordance with the laws of the State
of New York, without giving effect to any choice-of-law provisions thereof that would compel the application of the substantive
laws of any other jurisdiction (other than sections 5-1401 and 5-1402 of the New York General Obligations law, which shall apply
to this Agreement). Each of the parties hereby agrees that any action, proceeding or claim against it arising out of or relating
in any way to this Agreement shall be brought and enforced in the courts of the State of New York or the United States District
Court for the Southern District of New York, and irrevocably submits to such jurisdiction, which jurisdiction shall be exclusive.
Each of the parties hereby waives any objection to such exclusive jurisdiction and that such courts represent an inconvenient forum.


 


6.2Amendment.
This Agreement contains the entire agreement and understanding of the parties hereto with respect to the subject matter hereof.
This Agreement or any provision hereof may only be changed, amended or modified by a writing signed by each of the parties hereto.


 


6.3Headings.
The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation
thereof.


 


6.4Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the respective parties hereto and their legal representatives,
successors and assigns.


 


6.5Notices.
Any notice or other communication required or which may be given hereunder shall be in writing and either be delivered personally
or by private national courier service, or be mailed, certified or registered mail, return receipt requested, postage prepaid,
and shall be deemed given when so delivered personally or, if sent by private national courier service, on the next business day
after delivery to the courier, or, if mailed, two business days after the date of mailing, as follows:


 



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If to the Company or
the Stockholders’ Representative, to:


 


Healthcare Corporation of America

66 Ford Road - Suite 230

Denville, NJ 07834

Attention: Chief Executive Officer

Telecopy: (973) 983-6304


 


if to Selway or the
Buyer’s Representative, to:


 


Selway Capital Acquisition Corporation

900 Third Avenue, 19th Fl.

New York, NY 10022

Attention: Chief Executive Officer

Telecopy: (212) 308-6623


 


and if to the Escrow
Agent, to:


 


American Stock Transfer & Trust Company, LLC

59 Maiden Lane

New York, New York 10038

Attn: Compliance Department


 


A copy of any notice
sent hereunder shall be sent to (but which shall not constitute notice):


 


Loeb & Loeb LLP

345 Park Avenue

New York, New York 10154

Attn: Mitchell S. Nussbaum, Esq.


Fax: (212) 504-3013


 


and:


 


Zysman Aharoni Gayer and


Sullivan & Worcester LLP


One Post Office Square


Boston, MA 02109

Attn: Edwin L. Miller Jr.

Fax : (617) 338-2880


 


The parties may change the persons and
addresses to which the notices or other communications are to be sent by giving written notice to any such change in the manner
provided herein for giving notice.


 


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WITNESS the execution
of this Agreement as of the date first above written.


 


	 	SELWAY CAPITAL ACQUISITION CORPORATION
	 	 
	 	By: 	/s/ Edmundo Gonzalez 
	 	Name: 	Edmundo Gonzalez
	 	Title:	 Chief Financial Officer




 


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Escrow Agreement]


 




    	 



    	 



    

 


	 	HEALTHCARE CORPORATION OF AMERICA 
	 	 
	 	By:	 /s/ Gary Sekulski 
	 	Name:	 Gary Sekulski
	 	Title:	 Chief Executive Officer




 


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Agreement]




 




    	 



    	 



    

 


	 	AMERICAN STOCK TRANSFER

 & TRUST COMPANY, LLC, as escrow agent
	 	 
	 	By:	 /s/ Michael Nespoli 
	 	Name:	Michael A. Nespoli
	 	Title:	 Senior Vice President




 


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Agreement]




 




    	 



    	 



    

 


	 	Stockholders’ Representative:
	 	 
	 	/s/ Gary Sekulski 
	 	Gary Sekulski




 


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Escrow Agreement]


 




    	 



    	 



    

 


	 	Buyer’s Representative:
	 	 
	 	/s/ Edmundo Gonzalez 
	 	Edmundo Gonzalez




  


[Signature pages to Closing Payment
Escrow Agreement]