EXHIBIT C
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this "Agreement") is made as of March 29, 2001, by
and among World Wide Wireless Communications, Inc., a corporation incorporated
under the laws of the State of Nevada (the "Company"), the investors signatory
hereto (each an "Investor" and together the "Investors"), and Xxxxxxx Xxxxxx &
Green, P.C., (the "Escrow Agent"). Capitalized terms used but not defined herein
shall have the meanings set forth in the Purchase Agreement referred to in the
first recital.
W I T N E S S E T H:
WHEREAS, the Investors will be purchasing from the Company convertible
debentures with an aggregate principal amount of $750,000 (the "Convertible
Debentures") and Warrants at the Purchase Price set forth in the Senior Secured
Convertible Debenture and Warrants Purchase Agreement (the "Purchase Agreement")
dated the date hereof between the Investors and the Company, which will be
issued as per the terms contained herein and in the Purchase Agreement; and
WHEREAS, it is intended that the purchase of the securities be consummated
in accordance with the requirements set forth by Sections 4(2) and/or 4(6)
and/or Regulation D promulgated under the Securities Act of 1933, as amended;
and
WHEREAS, the Company and the Investors have requested that the Escrow Agent
hold the Purchase Price with respect to the Closing in escrow until the Escrow
Agent has received the certificates representing the Convertible Debentures, the
Warrants and certain other closing documents specified herein;
NOW, THEREFORE, in consideration of the covenants and mutual promises
contained herein and other good and valuable consideration, the receipt and
legal sufficiency of which are hereby acknowledged and intending to be legally
bound hereby, the parties agree as follows:
ARTICLE 1
TERMS OF THE ESCROW
1.1. The parties hereby agree to establish an escrow account with the
Escrow Agent whereby the Escrow Agent shall hold the funds for the purchase of
the $750,000 principal amount of Convertible Debentures and the Warrants at the
Closing as contemplated by the Purchase Agreement.
1.2. Delivery of Purchase Price.
(a) At the Closing, upon the Escrow Agent's receipt of the
Purchase Price for the Closing into its master escrow account,
together with executed counterparts of this Agreement, the
Purchase Agreement
and the Registration Rights Agreement, it shall telephonically
advise the Company, or the Company's designated attorney or
agent, of the amount of funds it has received into its master
escrow account.
(b) Wire transfers to the Escrow Agent shall be made as follows:
Xxxxxxx Xxxxxx & Green, P.C.
Master Escrow Account
Chase Manhattan Bank
0000 Xxxxxxxx - Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
ABA No. 000000000
Account No. 000-0-000000
Attention: L. Borneo
1.3. Obligations of the Company. The Company, upon receipt of said
notice, shall deliver to the Escrow Agent the certificates representing the
Convertible Debentures evidencing in the aggregate the $750,000 principal amount
of Convertible Debentures and the Warrants to be issued to each Investor at the
Closing together with:
(a) the original executed Registration Rights Agreement
substantially in the form of Exhibit B to the Purchase
Agreement;
(b) the original executed Instructions to Transfer Agent
substantially in the form of Exhibit F to the Purchase
Agreement;
(c) the original executed opinion of Xxxxx & Xxxxxxx in the form
of Exhibit D to the Purchase Agreement;
(d) the original executed Security Documents and, if required to
perfect the Investor's security interest, copies of receipts
of all filed UCC-1;
(e) an original counterpart of this Escrow Agreement; and
(f) original counterparts to the Side Letters for each Investor.
In the event that the foregoing items are not in the Escrow Agent's
possession within three (3) Trading Days of the Escrow Agent notifying the
Company that the Escrow Agent has custody of the Purchase Price applicable to
such Convertible Debentures, then each Investor shall have the right to demand
the return of said Purchase Price.
1.4. At the Closing, once Escrow Agent confirms the validity of the
issuance of the applicable Convertible Debentures and the Warrants by means of
its receipt of a Release Notice in the form attached hereto as Exhibit X
executed by the Company and each Investor, it shall calculate and enter the
number, exercise price, issuance date and termination date on the face of the
Warrants and insert the set price and
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issuance date on each Convertible Debenture and then wire that amount of funds
necessary to purchase the applicable Convertible Debentures and the Warrants per
the written instructions of the Company, net of $25,000 to Xxxxxxx Xxxxxx &
Green for Investor's legal, administrative and escrow costs and net of 8% of the
Purchase Price as directed by Union Atlantic, L.C.
Once the funds (as set forth above) have been sent per the Company's
instructions, the Escrow Agent shall then arrange to have the Convertible
Debentures, the Warrants, the Registration Rights Agreement, the Escrow
Agreement, the Security Documents and the opinion of counsel delivered as per
instructions from the Investor, deliver the Instructions to Transfer Agent to
the Transfer Agent.
ARTICLE 2
MISCELLANEOUS
2.1. No waiver or any breach of any covenant or provision herein contained
shall be deemed a waiver of any preceding or succeeding breach thereof, or of
any other covenant or provision herein contained. No extension of time for
performance of any obligation or act shall be deemed any extension of the time
for performance of any other obligation or act.
2.2. All notices or other communications required or permitted hereunder
shall be in writing, and shall be sent as set forth in the Purchase Agreement.
2.3. This Escrow Agreement shall be binding upon and shall inure to the
benefit of the permitted successors and permitted assigns of the parties hereto.
2.4. This Escrow Agreement is the final expression of, and contains the
entire agreement between, the parties with respect to the subject matter hereof
and supersedes all prior understandings with respect thereto. This Escrow
Agreement may not be modified, changed, supplemented or terminated, nor may any
obligations hereunder be waived, except by written instrument signed by the
parties to be charged or by its agent duly authorized in writing or as otherwise
expressly permitted herein.
2.5. Whenever required by the context of this Escrow Agreement, the
singular shall include the plural and masculine shall include the feminine. This
Escrow Agreement shall not be construed as if it had been prepared by one of the
parties, but rather as if both parties had prepared the same. Unless otherwise
indicated, all references to Articles are to this Escrow Agreement.
2.6. The parties hereto expressly agree that this Escrow Agreement shall
be governed by, interpreted under and construed and enforced in accordance with
the laws of the State of New York. Any action to enforce, arising out of, or
relating in any way to, any provisions of this Escrow Agreement shall only be
brought in a state or Federal court sitting in New York City.
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2.7. The Escrow Agent's duties hereunder may be altered, amended,
modified or revoked only by a writing signed by the Company, each Investor and
the Escrow Agent.
2.8. The Escrow Agent shall be obligated only for the performance of such
duties as are specifically set forth herein and may rely and shall be protected
in relying or refraining from acting on any instrument reasonably believed by
the Escrow Agent to be genuine and to have been signed or presented by the
proper party or parties. The Escrow Agent shall not be personally liable for any
act the Escrow Agent may do or omit to do hereunder as the Escrow Agent while
acting in good faith, and any act done or omitted by the Escrow Agent pursuant
to the advice of the Escrow Agent's attorneys-at-law shall be conclusive
evidence of such good faith.
2.9. The Escrow Agent is hereby expressly authorized to disregard any and
all warnings given by any of the parties hereto or by any other person or
corporation, excepting only orders or process of courts of law and is hereby
expressly authorized to comply with and obey orders, judgments or decrees of any
court. In case the Escrow Agent obeys or complies with any such order, judgment
or decree, the Escrow Agent shall not be liable to any of the parties hereto or
to any other person, firm or corporation by reason of such decree being
subsequently reversed, modified, annulled, set aside, vacated or found to have
been entered without jurisdiction.
2.10. The Escrow Agent shall not be liable in any respect on account of
the identity, authorization or rights of the parties executing or delivering or
purporting to execute or deliver the Purchase Agreement or any documents or
papers deposited or called for thereunder.
2.11. The Escrow Agent shall be entitled to employ such legal counsel and
other experts as the Escrow Agent may deem necessary properly to advise the
Escrow Agent in connection with the Escrow Agent's duties hereunder, may rely
upon the advice of such counsel, and may pay such counsel reasonable
compensation therefor. The Escrow Agent has acted as legal counsel for the
Investors, and may continue to act as legal counsel for the Investors, from time
to time, notwithstanding its duties as the Escrow Agent hereunder. The Company
consents to the Escrow Agent in such capacity as legal counsel for the Investors
and waives any claim that such representation represents a conflict of interest
on the part of the Escrow Agent. The Company understands that the Investors and
the Escrow Agent are relying explicitly on the foregoing provision in entering
into this Escrow Agreement.
2.12. The Escrow Agent's responsibilities as escrow agent hereunder shall
terminate if the Escrow Agent shall resign by written notice to the Company and
the Investors. In the event of any such resignation, the Investors and the
Company shall appoint a successor Escrow Agent.
2.13. If the Escrow Agent reasonably requires other or further instruments
in connection with this Escrow Agreement or obligations in respect hereto, the
necessary parties hereto shall join in furnishing such instruments.
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2.14. It is understood and agreed that should any dispute arise with
respect to the delivery and/or ownership or right of possession of the documents
or the escrow funds held by the Escrow Agent hereunder, the Escrow Agent is
authorized and directed in the Escrow Agent's sole discretion (1) to retain in
the Escrow Agent's possession without liability to anyone all or any part of
said documents or the escrow funds until such disputes shall have been settled
either by mutual written agreement of the parties concerned by a final order,
decree or judgment or a court of competent jurisdiction after the time for
appeal has expired and no appeal has been perfected, but the Escrow Agent shall
be under no duty whatsoever to institute or defend any such proceedings or (2)
to deliver the escrow funds and any other property and documents held by the
Escrow Agent hereunder to a state or Federal court having competent subject
matter jurisdiction and located in the City of New York in accordance with the
applicable procedure therefor.
2.15. The Company and each Investor agree jointly and severally to
indemnify and hold harmless the Escrow Agent and its partners, employees, agents
and representatives from any and all claims, liabilities, costs or expenses in
any way arising from or relating to the duties or performance of the Escrow
Agent hereunder or the transactions contemplated hereby or by the Purchase
Agreement other than any such claim, liability, cost or expense to the extent
the same shall have been determined by final, unappealable judgment of a court
of competent jurisdiction to have resulted from the gross negligence or willful
misconduct of the Escrow Agent.
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[SIGNATURE PAGE OF WLGS ESCROW AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
this __ day of March, 2001.
WORLD WIDE WIRELESS COMMUNICATIONS, INC.
By:
-------------------------------------
Xxxxxxx X. Xxxxxx, President & CEO
INVESTORS:
SPLENDID ROCK HOLDINGS, LTD.
By:
-------------------------------------
Xxxxx Xxxx, Authorized Signatory
ALPHA CAPITAL AG
By:
-------------------------------------
Xxxxxx Xxxxxxxxx,
Authorized Signatory
THE ENDEAVOUR CAPITAL
MANAGEMENT FUND, S.A.
By: Endeavour Management, Inc.
By:
-------------------------------------
Xxxxxx Xxxxxxxxx, President
THE KESHET FUND, L.P.
By:
-------------------------------------
Name:
Title:
ESCROW AGENT:
XXXXXXX XXXXXX & GREEN, P.C.
By:
-------------------------------------
Xxxxxx X. Xxxxxxx,
Authorized Signatory
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Exhibit X to
Escrow Agreement
RELEASE NOTICE
The UNDERSIGNED, pursuant to the Escrow Agreement, dated as of March 29,
2001 among World Wide Wireless Communications, Inc., the Investors signatory
thereto and Xxxxxxx Xxxxxx & Green, P.C., as Escrow Agent (the "Escrow
Agreement"; capitalized terms used herein and not defined shall have the meaning
ascribed to such terms in the Escrow Agreement), hereby notify the Escrow Agent
that each of the conditions precedent to the purchase and sale of the
Convertible Debenture set forth in the Convertible Debentures and Warrants
Purchase Agreement have been satisfied. The Company and the undersigned Investor
hereby confirm that all of their respective representations and warranties
contained in the Purchase Agreement remain true and correct and authorize the
release by the Escrow Agent of the funds and documents to be released at the
Closing as described in the Escrow Agreement. This Release Notice shall not be
effective until executed by the Company and the Investor.
This Release Notice may be signed in one or more counterparts, each of
which shall be deemed an original.
IN WITNESS WHEREOF, the undersigned have caused this Release Notice to be
duly executed and delivered as of this __ day of March, 2001.
WORLD WIDE WIRELESS COMMUNICATIONS, INC.
By:
-------------------------------------
A. Xxxx Xxxxxx, Ph.D., Chairman & CEO
INVESTORS:
SPLENDID ROCK HOLDINGS, LTD.
By:
-------------------------------------
Xxxxx Xxxx, Authorized Signatory
ALPHA CAPITAL AG
By:
-------------------------------------
Xxxxxx Xxxxxxxxx,
Authorized Signatory
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[SIGNATURE PAGE 2 OF WLGS RELEASE]
THE ENDEAVOUR CAPITAL
MANAGEMENT FUND, S.A.
By: Endeavour Management, Inc.
By:
-------------------------------------
Xxxxxx Xxxxxxxxx, President
THE KESHET FUND, L.P.
By:
-------------------------------------
Name:
Title:
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