Exhibit 10.2
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this "Agreement") is made as of July
27, 2000, by and among Talk Visual Corporation, a corporation incorporated under
the laws of Nevada (the "Company"), Evertrend Holdings Limited ("Purchaser"),
and Xxxxxxx Xxxxxx & Green, P.C., having an address at 000 Xxxx Xxxxxx, Xxx
Xxxx, XX 00000 (the "Escrow Agent"). Capitalized terms used but not defined
herein shall have the meanings set forth in the Common Stock Purchase Agreement
referred to in the first recital.
WHEREAS, the Purchaser will from time to time as requested by
the Company, purchase shares of the Company's Common Stock from the Company as
set forth in that certain Common Stock Purchase Agreement (the "Purchase
Agreement") dated the date hereof between the Purchaser and the Company, which
will be issued as per the terms and conditions contained herein and in the
Purchase Agreement; and
WHEREAS, the Company and the Purchaser have requested that the
Escrow Agent hold in escrow and then distribute the initial documents and
certain funds which are conditions precedent to the effectiveness of the
Purchase Agreement, and have further requested that upon each exercise of a Draw
Down, the Escrow Agent hold the relevant documents and the applicable purchase
price pending receipt by Purchaser of certificates representing the securities
issuable upon such Draw Down;
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 I
TERMS OF THE ESCROW FOR THE INITIAL CLOSING
1.1. The parties hereby agree to establish an escrow account
with the Escrow Agent whereby the Escrow Agent shall hold the funds and
documents which are referenced in Section 5.2 of the Purchase Agreement.
1.2. At the Closing, the Company shall deliver to the Escrow
Agent:
(i) the original executed Registration Rights
Agreement in the form of Exhibit A to the Purchase
Agreement;
(ii) the original executed opinion of Torys, in the
form of Exhibit C to the Purchase Agreement;
(iii) the sum of $150,000 for the non-accountable
expenses of Ladenburg Xxxxxxxx & Co. Inc.
(iv) the sum of $35,000 for the fees and expenses of
the Purchaser's counsel;
(v) the original executed Company counterpart of this
Escrow Agreement;
(vi) the original executed Company counterpart of the
Purchase Agreement;
(vii) a warrant certificate issued to the Purchaser to
purchase up to a number of shares of the Company's
Common Stock equal to $750,000 divided by the
closing bid price of the Common Stock on the
Trading Day immediately preceding the date of the
Closing issued to the Purchaser (the "Warrant").
The Warrant shall have an exercise price equal to
115% of the closing bid price of the Common Stock
on the Trading Day immediately preceding the date
of the Closing and a term of four (4) years; and
(viii) a warrant certificate identical to that of the
Warrant issued to Ladenburg Xxxxxxxx & Co. Inc.
(the "LT Warrant").
1.3. Upon receipt of the foregoing, and receipt of executed
counterparts from Purchaser of the Purchase Agreement, the Warrant, the LT
Warrant, the Registration Rights Agreement and this Escrow Agreement, the Escrow
Agent shall calculate and enter the exercise price, number, the issuance date
and termination date in accordance with the terms of the Purchase Agreement on
the face of the Warrant and the LT Warrant and immediately transfer the sum of
$35,000 to Xxxxxxx Xxxxxx & Green, P.C. ("EB&G"), 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 for the Purchaser's legal, administrative and escrow costs and the
sum of $150,000 as a non-accountable expense allowance to Ladenburg Xxxxxxxx &
Co. Inc. and the Escrow Agent shall then arrange to have the Purchase Agreement,
this Escrow Agreement, the Registration Rights Agreement, the Warrant and the LT
Warrant and the opinion of counsel delivered to the appropriate parties.
ARTICLE II
TERMS OF THE ESCROW FOR EACH DRAW DOWN
2.1. Each time the Company shall send a Draw Down Notice to
the Purchaser as provided in the Purchase Agreement, it shall send a copy, by
facsimile, to the Escrow Agent.
2.2. Each time the Purchaser shall purchase Shares pursuant to
a Draw Down, the Purchaser shall send the applicable purchase price of the Draw
Down Shares to the Escrow Agent, which shall advise the Company in writing that
it has received the purchase price for such Draw Down Shares. The Company shall
promptly, but no later than three (3) Trading Days after receipt of such funding
notice from the Escrow Agent, cause its transfer agent to issue the Draw Down
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Shares to the Purchaser via DTC deposit to the account specified by the
Purchaser from time to time. Upon receipt of written confirmation from the
transfer agent or from the Purchaser that such Draw Down Shares have been so
deposited or have been so delivered, the Escrow Agent shall within one (1)
Trading Day wire 92% of the purchase price per the written instructions of the
Company, net of $1,500 as escrow expenses to the Escrow Agent, and the remaining
8% of the purchase price as directed by Ladenburg Xxxxxxxx & Co. Inc.
ARTICLE III
MISCELLANEOUS
3.1. No waiver of 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 an extension of
the time for performance of any other obligation or act.
3.2. All notices or other communications required or permitted
hereunder shall be in writing, and shall be sent by fax, overnight courier,
registered or certified mail, postage prepaid, return receipt requested, and
shall be deemed received upon receipt thereof, as set forth in the Purchase
Agreement.
3.3. This Escrow Agreement shall be binding upon and shall
inure to the benefit of the permitted successors and permitted assigns of the
parties hereto.
3.4. 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 their respective agents duly authorized in
writing or as otherwise expressly permitted herein.
3.5. 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.
3.6. 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. Except as expressly set forth
herein, any action to enforce, arising out of, or relating in any way to, any
provisions of this Escrow Agreement shall brought in the Federal or state courts
of New York, New York as is more fully set forth in the Purchase Agreement.
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3.7. The Escrow Agent's duties hereunder may be altered,
amended, modified or revoked only by a writing signed by the Company, Purchaser
and the Escrow Agent.
3.8. 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, excepting only its own gross
negligence or willful misconduct, and any act done or omitted by the Escrow
Agent pursuant to the advice of the Escrow Agent's attorneys-at-law (other than
Escrow Agent itself) shall be conclusive evidence of such good faith.
3.9. 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.
3.10. 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 or hereunder.
3.11. 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
PURCHASER, AND MAY CONTINUE TO ACT AS LEGAL COUNSEL FOR THE PURCHASER, 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 PURCHASER
AND WAIVES ANY CLAIM THAT SUCH REPRESENTATION REPRESENTS A CONFLICT OF INTEREST
ON THE PART OF THE ESCROW AGENT. THE COMPANY UNDERSTANDS THAT THE PURCHASER AND
THE ESCROW AGENT ARE RELYING EXPLICITLY ON THE FOREGOING PROVISION IN ENTERING
INTO THIS ESCROW AGREEMENT.
3.12. 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 Purchaser. In the event of any such resignation, the
Purchaser and the Company shall appoint a successor Escrow Agent.
3.13. 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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3.14. 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 State and City of New York in accordance
with the applicable procedure therefor.
3.15. The Company and the Purchaser 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.
IN WITNESS WHEREOF, the parties hereto have executed this
Escrow Agreement as of this __ day of July, 2000.
TALK VISUAL CORPORATION
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------
Xxxxxx X. Xxxxx, President & CEO
EVERTREND HOLDINGS LIMITED
By:/s/ Xxxx Xxxxxxx
-------------------------------------
Xxxx Xxxxxxx, Authorized Signatory
ESCROW AGENT:
XXXXXXX XXXXXX & GREEN, P.C.
By:/s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Xxxxxx X. Xxxxxxx, Authorized Signatory
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