ESCROW AGREEMENT
Exhibit
10.2
THIS
ESCROW AGREEMENT (this “Agreement”), dated of _____________ __, 2007, among
GoFish Corporation, a Nevada corporation (the “Buyer”) and Xxxx Xxxxx, acting in
his capacity as the Indemnification Representative of the Indemnifying
Stockholders (the “Indemnification Representative”) and U.S. BANK TRUST NATIONAL
ASSOCIATION, a national banking association (the “Escrow Agent”). The Buyer, the
Interested Stockholders and the Indemnification Representative are sometimes
referred to herein collectively as the “Interested Parties.” Capitalized terms
used but not otherwise defined herein shall have their respective meanings
set
forth in the Merger Agreement (as defined below).
WITNESSETH:
WHEREAS,
the Buyer, BM Acquisition Corp. Inc., a Delaware corporation and a wholly-owned
subsidiary of the Company (the “Transistory Subsidiary”), Bolt, Inc. (a/k/a Bolt
Media, Inc.), a Delaware corporation (the “Company”) and the Indemnification
Representative are parties to that certain Agreement and Plan of Merger, dated
as of February 11, 2007 (the “Merger Agreement”); and
WHEREAS,
the Indemnifying Stockholders have appointed the Indemnification Representative
to act on their behalf in certain matters relating to the Merger Agreement,
including matters relating to this Agreement; and
WHEREAS,
subject to the terms and conditions of the Merger Agreement, the Indemnifying
Stockholders are acquiring at the Effective Time, among other things certain
shares of Buyer Common Stock, including shares
which constitute part of the Merger Consideration payable to the Company
Stockholders pursuant to the Merger Agreement, a portion of which shares
constitute the Escrow Shares to be delivered into escrow pursuant to Section
1.9
of the
Merger Agreement, to
secure
the indemnification obligations of the Indemnifying Stockholders under the
Merger Agreement; and
WHEREAS,
the Buyer, the Transitory Subsidiary, the Company and the Indemnification
Representative have agreed that the Escrow Agent shall hold the Escrow Shares
pursuant to the terms and conditions of this Agreement;
NOW,
THEREFORE, the parties hereto agree as follows:
1. DEPOSIT
OF ESCROWED PROPERTY.
(a) To
secure
the performance by the Indemnifying Stockholders of the Indemnifying
Stockholders’ obligations to indemnify the Company pursuant to Article VI of the
Merger Agreement (the "Indemnification Obligations"), the Buyer, on behalf
of
the Indemnifying Stockholders, has delivered the
Escrow
Shares to the Escrow Agent at the Closing. Subject to the terms and conditions
of this Agreement, the Escrow Agent shall hold and administer the
Escrow
Shares (and any dividends
and distributions paid on the Escrow Shares or proceeds received therefrom,
in
each case received by the Escrow Agent) (collectively, the “Escrow Property”) in
escrow. The number
of
Escrow Shares deposited in escrow on behalf of each Indemnifying Stockholder
is
in proportion to the number of Preferred
Shares or Common
Shares held by each such Indemnifying Stockholder immediately prior to the
Effective Time, as set forth in Schedule 1(a) delivered by the Company to the
Escrow Agent at the Closing. The Escrow Agent shall have no responsibility
for
the accuracy of the information contained in Schedule 1(a) or the genuineness,
validity, market value, title or sufficiency for any intended purpose of the
Escrow Property.
(b) The
Escrow Agent hereby acknowledges receipt of the Escrow Shares from the
Indemnifying Stockholders and the Company, and agrees to hold and to deliver
the
same in accordance with this Agreement.
(c) So
long
as the Indemnifying Stockholders are not in default in respect of any of their
Indemnification Obligations, the Indemnifying Stockholders shall exercise and
enjoy all the rights accruing from the ownership of the Escrowed Property,
including the right to vote the Escrow Shares, but excluding the right to
transfer, assign, xxxxx x xxxx, pledge or other security interest in or
otherwise encumber or to alienate in any other manner, any of the Escrowed
Property.
2. CLAIMS
AND PAYMENTS; RELEASE FROM ESCROW.
(a) Whenever
the Escrow Agent receives a Claim Notice from the Buyer that seeks
indemnification from the Indemnifying Stockholders, the Escrow Agent shall
send
a copy of the Claim Notice to the Indemnification Representative. Whenever
the
Escrow Agent receives a Response to a Claim Notice issued by the Buyer setting
forth either an agreement as to the full Claimed Amount or an Agreed Amount,
or
a notice pursuant to Section 6.3(d) of the Merger Agreement (a “Dispute
Resolution Notice”), signed by the Buyer and the Indemnification Representative
setting forth the resolved amount of a Dispute (the “Dispute Resolution Amount”)
related to a Claim Notice of the Buyer, then the Escrow Agent shall immediately
record on Schedule 1(a) a pro-rata reduction of the amount of Escrow Shares
issued to each Indemnifying Stockholder and promptly, and in any event within
three business days, deliver to the Buyer certificate(s) for Escrow Shares,
together with a stock power duly endorsed for the transfer to the Buyer of
shares with an aggregate Value of 50%
of
the
Claimed Amount or the Agreed Amount or Dispute Resolution Amount (as the case
may be), together with a notice (the “Escrow Agent’s Payment
Notice”).
Distributions of Escrow Shares as aforesaid shall be applied first, to the
Escrow Common Shares and second to the Escrow Preferred Shares.
(b) Upon
the
later to occur of (i) in
respect of (x) the Escrow Shares deposited into escrow on the date hereof (the
“Initial Escrow”), the
first
anniversary of the Closing
Date
(the “Initial Termination Date”) and (y) the Escrow Shares deposited into escrow
on the date that is on or about the first anniversary of the Closing Date (the
“Subsequent Escrow”), the date that is eighteen months from the date
hereof
(the
“Final Termination Date”) the
“Termination Date”) and
(ii)
the date on which there shall have been resolved any outstanding Buyer claims
with respect to any Stockholder Indemnification Obligations that are subject
to
Claim Notices that are outstanding and unresolved on the Initial
Termination
Date
or the
Final Termination Date, as the case may be,
the
Buyer shall deliver to the Escrow Agent a notice (the "Satisfaction Notice"),
which Satisfaction Notice shall state that all of the Indemnification
Obligations that are required to be satisfied during the period ending on the
date of the Satisfaction Notice have been satisfied. Upon receipt of the
Satisfaction Notice from the Buyer,
the Escrow Agent shall deliver to the Indemnifying Stockholders (or the
assignees of the Indemnifying Stockholders) all of the Escrowed Property then
remaining with the Escrow Agent
relating
to the Initial Escrow of the Subsequent Escrow, as the case may be, in
proportion to the number of Exchange Shares initially deposited under this
Agreement, and thereupon the Escrow Agent shall be discharged of and from all
other and further responsibilities with respect to the Escrowed
Property.
(c) Anything
in this Agreement notwithstanding, if at any time the Escrow Agent receives
written instructions signed by the Buyer and the Indemnification Representative,
or a final order of a court of competent jurisdiction that directs delivery
of
the Escrowed Property, the Escrow Agent shall, at the expense of the Buyer,
comply with such instructions or order. The Escrow Agent shall also be entitled
to deposit the Escrowed Property with the clerk of any court of competent
jurisdiction upon commencement of an action in the nature of interpleader or
in
the course of any court proceedings. Upon any delivery or deposit of the
Escrowed Property as provided in this Section 2(c), the Escrow Agent shall
thereupon be discharged of and from all other and further responsibilities
with
respect to the Escrowed Property.
3. CERTAIN
TERMS CONCERNING ESCROWED PROPERTY.
(a) No
Duty to Vote or Preserve Rights to Escrow Property.
Neither
the Escrow Agent nor its nominee shall be under any duty to take any action
to
preserve, protect, exercise or enforce any rights or remedies under or with
respect to the Escrowed Property (including with respect to the exercise of
any
voting rights, conversion or exchange rights, defense of title, preservation
of
rights against prior matters or otherwise). Notwithstanding the foregoing,
if
the Escrow Agent is so requested in a request of the Indemnification
Representative received by the Escrow Agent at least two business days prior
to
the date on which the Escrow Agent is requested therein to take such action
(or
such later date as may be acceptable to the Escrow Agent), the Escrow Agent
shall execute, or shall cause its nominee to execute, and deliver to the
Indemnification Representative a proxy or other instrument in the form supplied
to it by the Indemnification Representative for voting or otherwise exercising
any right with respect to any of the Escrow Shares held by it hereunder, to
authorize therein the Indemnification Representative to exercise such voting
or
other authority in respect of the Escrow Shares (provided,
that
the Escrow Agent shall not be obliged to execute any such proxy or other
instrument if, in its judgment, the terms thereof may subject the Escrow Agent
to any liabilities or obligations in its individual capacity). The Escrow Agent
shall not be under any duty or responsibility to forward to any Interested
Party, or to notify any Interested Party with respect to, or to take any action
with respect to, any notice, solicitation or other document or information,
written or otherwise, received from an issuer or other person with respect
to
the Escrow Shares, including proxy material, tenders, options, the pendency
of
calls and maturities and expiration of rights; it being understood that the
intent of the parties is for any such notice, solicitation or other document
or
information to be sent directly to the underlying owner of Escrow Shares or,
as
applicable, to the Indemnification Representative, and not to the Escrow Agent.
(b) Distribution
of Escrow Shares.
Any
distribution of all or any portion of the Escrow Shares made pursuant to Section
2 or Section 3 shall be made by delivery of the applicable certificate(s) held
by the Escrow Agent representing such Escrow Shares, mailed by first class
mail
to the appropriate person at such address as the Escrow Agent may have
previously been instructed in writing; and, if less than all of the Escrow
Shares included on any such certificate are to be so distributed, then the
Escrow Agent shall instruct the Buyer to, and the Buyer promptly shall,
subdivide such certificate and (i) issue and deliver to the appropriate person
the appropriate number of Escrow Shares to which such person is entitled and
(ii) issue and return to the Escrow Agent (or its nominee, if the Escrow Agent
shall so instruct) one or more certificates representing the Escrow Shares
that
remain subject to this Agreement. The Escrow Agent shall have no liability
for
the actions or omissions of, or any delay on the part of, the Interested Parties
in connection with the foregoing.
(c) Dividends
and Distributions.
Any
dividends
on the Escrow Shares, whether cash dividends or otherwise, splits and any other
distributions made with respect to the Escrow Shares received by the Escrow
Agent from time to time during the term of this Agreement shall be added to
and
become a part of the Escrow Property (and, as such, shall become subject to
the
terms of this Agreement). The Escrow Agent shall be under no obligation or
duty
to invest (or otherwise pay interest on) any cash it may receive as part of
the
Escrow Property from time to time.
4. CONCERNING
THE ESCROW AGENT.
(a) Each
of
the Interested Parties acknowledges and agrees that the Escrow Agent (i) shall
not be responsible for any of the agreements referred to or described herein,
or
for determining or compelling compliance therewith, and shall not otherwise
be
bound thereby, (ii) shall be obligated only for the performance of such duties
as are expressly and specifically set forth in this Agreement on its part to
be
performed, each of which is ministerial (and shall not be construed to be
fiduciary) in nature, and no implied duties or obligations of any kind shall
be
read into this Agreement against or on the part of the Escrow Agent, (iii)
shall
not be obligated to take any legal or other action hereunder that might in
its
judgment involve or cause it to incur any expense or liability unless it shall
have been furnished with acceptable indemnification, (iv) may rely on and shall
be protected in acting or refraining from acting upon any written notice,
instruction (including wire transfer instructions, whether incorporated herein
or provided in a separate written instruction), instrument, statement,
certificate, request or other document furnished to it hereunder and believed
by
it to be genuine and to have been signed or presented by the proper person
or
persons, and shall have no responsibility for making inquiry as to or
determining the genuineness, accuracy or validity thereof, or of the authority
of any person signing or presenting the same, and (v) may consult counsel
satisfactory to it, including in-house counsel, and the opinion or advice of
such counsel in any instance shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in accordance with the opinion or advice of such counsel.
(b) The
Escrow Agent shall not be liable to any person for any action taken or omitted
to be taken by it hereunder except in the case of the Escrow Agent’s gross
negligence or willful misconduct in breach of the terms of this Agreement.
In no
event shall the Escrow Agent be liable for any indirect, punitive, special
or
consequential damage or loss (including lost profits) whatsoever, even if the
Escrow Agent has been informed of the likelihood of such loss or damage and
regardless of the form of action.
(c) The
Escrow Agent shall have no more or less responsibility or liability on account
of any action or omission of any book-entry depository, securities intermediary
or other sub-escrow agent employed by the Escrow Agent than any such book-entry
depository, securities intermediary or other sub-escrow agent has to the Escrow
Agent, except to the extent that such action or omission of any book-entry
depository, securities intermediary or other sub-escrow agent was caused by
the
Escrow Agent’s own gross negligence or willful misconduct in breach of this
Agreement.
(d) Notwithstanding
any term in this Agreement to the contrary, in no instance shall the Escrow
Agent be required or obligated to distribute any Escrow Property (or take other
action that may be called for hereunder to be taken by the Escrow Agent) sooner
than two business days after (i) it has received the applicable documents
required under this Agreement in proper form, or (ii) passage of the applicable
time period (or both, as applicable under the terms of this Agreement), as
the
case may be.
5. COMPENSATION,
EXPENSE REIMBURSEMENT AND INDEMNIFICATION.
(a) Each
of
the Interested Parties covenants and agrees that the Interested Parties shall
share equally in, but in any event be jointly and severally liable for, (i)
paying to or reimbursing the Escrow Agent for its reasonable attorney’s fees and
reasonable expenses incurred in connection with the preparation of this
Agreement; (ii) paying the Escrow Agent’s compensation for its normal services
hereunder in accordance with the fee schedule attached hereto as Exhibit
A
and made
a part hereof, which may be subject to change hereafter by the Escrow Agent
on
an annual basis (the “Escrow Fees”); and (iii) reimbursing the Escrow Agent on
demand for all reasonable costs and expenses incurred in connection with the
administration of this Agreement or the escrow created hereby or the performance
or observance of its duties hereunder that are in excess of the Escrow Fees,
including payment of any legal fees and reasonable expenses incurred by the
Escrow Agent in connection with resolution of any claim by any party
hereunder.
(b) Each
of
the Interested Parties covenants and agrees that the Interested Parties shall
share equally in, but in any event be jointly and severally liable for,
indemnifying the Escrow Agent (and its directors, officers and employees) and
holding it (and such directors, officers and employees) harmless from and
against any loss, liability, damage, cost and expense of any nature incurred
by
the Escrow Agent arising out of or in connection with this Agreement or with
the
administration of its duties hereunder, including attorney’s fees and other
reasonable costs and expenses of defending or preparing to defend against any
claim of liability unless and except to the extent such loss, liability, damage,
cost and expense shall be caused by the Escrow Agent’s gross negligence or
willful misconduct. The foregoing indemnification and agreement to hold harmless
shall survive the termination of this Agreement.
(c) Notwithstanding
anything herein to the contrary, the Escrow Agent shall have and is hereby
granted a possessory lien on and security interest in the Escrow Property,
and
all proceeds thereof, to secure payment of all amounts owing to it from time
to
time under this Agreement, whether now existing or hereafter arising. The Escrow
Agent shall have the right to deduct from the Escrow Property, and proceeds
thereof, any such sums, upon one business day notice to the Interested Parties
of its intent to do so.
(d) The
Escrow Agent may present invoices for its services hereunder (including for
its
fees and reimbursable expenses) and claims for indemnification hereunder to
the
Interested Parties by delivery of same to the Indemnification
Representative.
6. TAX
INDEMNIFICATION.
Each of
the Interested Parties covenants and agrees that the Interested Parties shall
share equally in, but in any event be jointly and severally liable for, (i)
assuming any and all obligations imposed now or hereafter by any applicable
tax
law with respect to any payment or distribution of the Escrow Property or
performance of other activities under this Agreement, (ii) instructing the
Escrow Agent in writing with respect to the Escrow Agent’s responsibility for
withholding and other taxes, assessments or other governmental charges, and
instructing the Escrow Agent with respect to any certifications and governmental
reporting that may be required under any laws or regulations that may be
applicable in connection with its acting as escrow agent under this Agreement,
and (iii) indemnifying and holding the Escrow Agent harmless from any liability
or obligation on account of taxes, assessments, additions for late payment,
interest, penalties, expenses and other governmental charges that may be
assessed or asserted against the Escrow Agent in connection with, on account
of
or relating to, the Escrow Property, the management established hereby, any
payment or distribution of or from the Escrow Property pursuant to the terms
hereof or other activities performed under the terms of this Agreement,
including any liability for the withholding or deduction of (or the failure
to
withhold or deduct) the same, and any liability for failure to obtain proper
certifications or to report properly to governmental authorities in connection
with this Agreement, including costs and expenses (including reasonable legal
fees and expenses), interest and penalties. The foregoing indemnification and
agreement to hold harmless shall survive the termination of this
Agreement.
7. RESIGNATION.
The
Escrow Agent may at any time resign as Escrow Agent hereunder by giving 30
days'
prior written notice of resignation to the Interested Parties. Prior to the
effective date of the resignation as specified in such notice, the Buyer will
issue to the Escrow Agent a written instruction authorizing redelivery of the
Escrow Property to a bank or trust company that it selects as successor to
the
Escrow Agent hereunder, subject to the consent of the Indemnification
Representative (which consent shall not be unreasonably withheld or delayed).
If, however, the Buyer fails to name such a successor escrow agent within 20
days after the notice of resignation from the Escrow Agent, then the Company
shall be entitled to name such successor escrow agent, subject to the consent
of
the Indemnification Representative (which consent shall not be unreasonably
withheld or delayed). If no successor escrow agent is named by the Buyer or
the
Indemnification Representative, the Escrow Agent may apply to a court of
competent jurisdiction for appointment of a successor escrow agent. Upon the
resignation of the Escrow Agent, the Escrow Fees paid to the Escrow Agent will
be returned to the party or parties that made such payment, on a pro-rated
basis.
8. DISPUTE
RESOLUTION.
It is
understood and agreed that, should any dispute arise with respect to the
delivery, ownership, right of possession and/or disposition of the Escrow
Property, or should any claim be made upon the Escrow Agent or the Escrow
Property by a third party, the Escrow Agent upon receipt of notice of such
dispute or claim is authorized and shall be entitled (at its sole option and
election) to retain in its possession without liability to anyone, all or any
of
said Escrow Property until such dispute shall have been settled either by the
mutual written agreement of the parties involved or by a final order, decree
or
judgment of a court of competent jurisdiction, the time for perfection of an
appeal of such order, decree or judgment having expired. The Escrow Agent may,
but shall be under no duty whatsoever to, institute or defend any legal
proceedings that relate to the Escrow Property.
9. CONSENT
TO JURISDICTION AND SERVICE.
The
Buyer, the Escrow Agent and the Indemnification Representative hereby
irrevocably and unconditionally agree that any action, suit or proceeding,
at
law or equity, arising out of or relating to this Agreement or any agreements
or
transactions contemplated hereby shall only be brought in any federal court
of
the Southern District of New York, and hereby irrevocably and unconditionally
expressly submit to the personal jurisdiction and venue of such courts for
the
purposes thereof and hereby irrevocably and unconditionally waive (by way of
motion, as a defense or otherwise) any and all jurisdictional, venue and
convenience objections or defenses that any such party may have in such action,
suit or proceeding. The Buyer, the Escrow Agent and the Indemnification
Representative hereby irrevocably and unconditionally consent to the service
of
process of any of the aforementioned courts in any such action, suit or
proceeding by the mailing of copies thereof by registered or certified mail,
return receipt requested, postage prepaid, to such party’s address set forth
herein, such service to become effective ten days after such mailing. Nothing
herein contained shall be deemed to affect the right of any party to serve
process in any manner permitted by law or commence legal proceedings or
otherwise proceed against any other party in any other jurisdiction to enforce
judgments obtained in any action, suit or proceeding brought pursuant to this
Section 11.
10. WAIVER
OF JURY TRIAL.
EACH
PARTY TO THIS AGREEMENT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES A TRIAL
BY
JURY OF ANY AND ALL ISSUES ARISING IN ANY ACTION OR PROCEEDING BETWEEN THEM
OR
THEIR SUCCESSORS OR ASSIGNS UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY
OF
ITS PROVISIONS OR ANY NEGOTIATIONS IN CONNECTION HEREWITH.
11. FORCE
MAJEURE.
The
Escrow Agent shall not be responsible for delays or failures in performance
resulting from acts beyond its control. Such acts shall include acts of God,
strikes, lockouts, riots, acts of war, epidemics, governmental regulations
superimposed after the fact, fire, communication line failures, computer
viruses, power failures, earthquakes or other disasters.
12. NOTICES.
Any
notice to a party permitted or required hereunder shall be in writing, and
shall
be sent to such party (i) by personal delivery (in which case notice shall
be
effective upon delivery), (ii) by overnight delivery by a recognized courier
or
delivery service (in which case notice shall be effective upon confirmed
receipt), or (iii) by registered or certified mail, return receipt requested,
postage prepaid (in which case notice shall be effective upon confirmed
receipt), or (iv) by confirmed facsimile telecopy accompanied by mailing of
the
original on the same day by first class mail, postage prepaid, in each case
to
the party at its address set forth below (or to such other address as such
party
may hereafter designate by written notice to the other parties) (in which case
notice shall be effective upon confirmed receipt of the telecopy);
communications by email are for convenience purposes only and shall not
constitute notice unless also sent by the methods set forth in clauses (i)
through (iv):
If
to the
Company, the Indemnifying Stockholders, or to the Indemnification
Representative, to:
ABL
Capital
000
Xxxxxx Xxxxxx, 0xx
Xxxxx
Xxx
Xxxx,
XX 00000
Attention:
Xxxx Xxxxx, Esq.
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
Email:
xxxx@xxxxxxxxxx.xxx
and
to:
Mintz,
Lvein, Cohn, Ferris, Glovsky and Popeo, P.C.
000
Xxxxxxxxxxxx Xxxxxx, XX
Xxxxxxxxxx,
X.X. 00000
Attention:
Xxx Xxxxxx, Esq.
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
Email:
xxxxxxx@xxxxx.xxx
with
a
copy (which shall not constitute notice) to
if
to the
Buyer,
GoFish
Corporation
[ADDRESS]
and
to:
McGuireWoods
LLP
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxx Xxxxx, Esq.
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
Email:
xxxxxx@xxxxxxxxxxxx.xxx
if
to the
Escrow Agent, to:
U.S.
Bank
Trust National Association
000
Xxxx
Xxxxxx, Xxxxx 0000
Xxx
Xxxx,
XX 00000
Attention:
Xx. Xxxx Xxxxxx
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
Email:
xxxx.xxxxxx@xxxxxx.xxx
13. MISCELLANEOUS.
(a) Binding
Effect; Successors.
This
Agreement shall be binding upon the parties to this Agreement and their
respective heirs, executors, successors and assigns. If the Escrow Agent
consolidates, merges or converts into, or transfers all or substantially all
of
its corporate trust business to, another corporation, the successor corporation
without any further act shall be the successor Escrow Agent.
(b) Modifications;
Waivers.
This
Agreement may not be altered or modified without the express written consent
of
the Interested Parties and the Escrow Agent. Waiver of any term or condition
of
this Agreement by any party shall be effective only if in a writing signed
by
the party against whom such waiver is asserted. Any such waiver shall not be
construed as a waiver of any subsequent breach or failure of the same term
or
condition, or a waiver of any other term of this Agreement. No failure or delay
by any party in exercising any right, power or privilege hereunder shall operate
as a waiver thereof nor shall any single or partial exercise thereof preclude
any other or further exercise thereof or the exercise of any other right, power
or privilege.
(c) Governing
Law.
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL
LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICTS OF LAW PRINCIPLES
OF SUCH STATE.
(d) Counterparts.
This
Agreement may be executed in any number of counterparts, all of which shall
be
considered one and the same agreement, and shall become effective when one
or
more such counterparts have been signed by each of the parties to this Agreement
and delivered to the other parties.
(e) General.
The
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement. Unless
the context of this Agreement otherwise requires: (i) pronouns and any
variations thereof refer to the masculine, feminine or neuter, singular or
plural, as the identity of the person or persons may require; (ii) the words
“hereof,” “herein” and “hereunder” and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any particular
provision of this Agreement; (iii) the word “person” shall refer to any
individual, corporation, general or limited partnership, firm, joint venture,
association, enterprise, joint stock company, trust, unincorporated organization
or other entity; (iv) article, section, paragraph and schedule references are
to
the articles, sections, paragraphs and schedules of this Agreement; (v) the
word
“including” and words of similar import when used in this Agreement shall mean
“including, without limitation;” (vi) the word “or” is not exclusive; and (vii)
provisions apply to successive events and transactions.
\4384986.1
IN
WITNESS WHEREOF, the parties hereto have duly executed this Escrow Agreement
as
of the date first above written.
| THE INDEMNIFICATION REPRESENTATIVE: | ||
| |
|
|
|
Xxxx
Xxxxx, acting as
Indemnification
Representative
|
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|
THE
BUYER:
GOFISH
CORPORATION.
|
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| |
|
|
| By: | ||
|
Name:
Title:
|
||
|
THE
ESCROW AGENT:
U.S.
BANK TRUST NATIONAL ASSOCIATION
|
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| |
|
|
| By: | ||
|
Name:
Xxxx Xxxxx
Title:
Assistant Vice President
|
||
Exhibit
A
Escrow
Agent Fees
Escrow
Agency Fee: $__________________, payable upon execution and delivery of this
Escrow Agreement by the Escrow Agent, plus reasonable out of pocket fees and
expenses, payable upon request from time-to-time to upon presentation of an
invoice for same to the Indemnification Representative and/or the Buyer.
(i)
