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EXHIBIT 10.59
ESCROW AGREEMENT
THIS AGREEMENT (the "Escrow Agreement") is made as of April 23, 1999,
by and among (i) Xxxxxxx X. Xxx, Xxxxxx X. Xxxxxxx, Xxxx X. Xxxxxx, Xxxxx
X'Xxxxxxxx, Xxxxx Xxxxx, and Xxxx Xxxxxxx (collectively, the "Pledgor" and
individually a "Pledgor"); (ii) HOMECOM COMMUNICATIONS, INC., a Delaware
Corporation (hereinafter referred to as the "Pledgee"); and (iii) XXXX MOSS
KLINE & XXXXX LLP, a Georgia limited liability partnership (hereinafter referred
to as "Escrow Agent").
WHEREAS, Pledgors have certain obligations to indemnify Pledgee (the
"Obligations") under that certain Stock Purchase Agreement of even date herewith
between Pledgor and Pledgee (the "Agreement");
WHEREAS, to secure the Obligations, Pledgor has executed a Pledge and
Security Agreement of even date herewith in favor of Pledgee (the "Pledge");
WHEREAS, the Pledge provides for 17,918 shares of common stock of the
Pledgor (the "Pledged Shares") to be held in escrow for the benefit of the
Pledgee until the full payment, satisfaction or lapse of the Obligations; and
WHEREAS, the Pledgee and Pledgor agree that the Pledged Shares shall be
deposited with Escrow Agent subject to the terms and conditions of this Escrow
Agreement;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt, sufficiency and adequacy of which are
hereby acknowledged, the parties hereto agree as follows:
1. The Pledgor shall deliver the Pledged Shares to the Escrow Agent as
required by the Pledge. The Escrow Agent shall hold the Pledged Shares until
released to the Parent (on behalf of the Pledgee) or to the Pledgee in
accordance with the Pledge. It is agreed that the Escrow Agent shall act as a
depository of the Pledged Shares only and shall not be required to take notice
of any default or breach of warranty, representation, covenant or agreement of
any party contained in the Agreement or Pledge, as amended, or any other
agreement between Pledgor and Pledgee. Escrow Agent shall have no responsibility
or duty to obtain, collect or enforce any obligations of Pledgor, nor shall
Escrow Agent have any responsibility or duty to determine any "Indemnity Amount"
or other Obligation due from any Pledgor to the Pledgee, the proper application
of any payment or when or if the Obligations have been paid or satisfied in full
or have lapsed.
2. The Escrow Agent shall hold the Pledged Shares until they are
released and delivered to the Pledgee or the Pledgor, as the case may be, as
provided in Section 9 of the Pledge.
3. Pledgee agrees to reimburse Escrow Agent for its reasonable expenses
incurred in the
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performance of its services hereunder.
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4. The acceptance by the Escrow Agent of its duties hereunder is
subject to the following terms and conditions, which Pledgor and Pledgee agree
shall govern and control with respect to the Escrow Agent's rights, duties,
liabilities and immunities:
(a) The Escrow Agent shall be entitled to rely and act upon
any notice, request, waiver, consent, receipt or other paper or document
furnished to it, not only as to its due execution and the validity and
effectiveness of its provisions but also as to the truth and accuracy of any
information contained therein. The Escrow Agent is also relieved from the
necessity of satisfying itself as to the authority of any person executing this
Agreement or as to the authenticity of any signature to this Agreement.
(b) The Escrow Agent shall not be liable for any error of
judgment, or for any act done or step taken or omitted by it in good faith, or
for any bona fide mistake of fact or law, or for anything which it may do or
refrain from doing in connection herewith, except for its own gross negligence
or willful misconduct.
(c) The Escrow Agent shall have no duties except those which
are specifically set forth herein. No waiver, modification, amendment,
termination or rescission of this Escrow Agreement shall be effective or binding
upon the Escrow Agent unless Escrow Agent shall have specifically consented
thereto in writing.
(d) Pledgors acknowledge, understand and agree that (i) Escrow
Agent is Pledgee's counsel and, as such, Escrow Agent has not and will not
exercise any independent professional judgment on Pledgor's behalf, and (ii)
notwithstanding its role as Escrow Agent hereunder, Escrow Agent may, in the
event of a dispute between Pledgor and Pledgee, act as Pledgors' counsel and
represent Pledgor in any dispute or litigation, provided Escrow Agent first
resigns and delivers any and all Pledged Shares to a successor or substitute
Escrow Agent or deposits all disputed funds into court in connection with an
action for declaratory judgment or interpleader.
(e) Escrow Agent shall have no liability or responsibility to
Pledgor or Pledgee for any losses, claims, damages, liabilities, costs or
expenses provided that such losses are not the result of Escrow Agent's own
gross negligence or willful misconduct. Pledgor and Pledgee hereby, jointly and
severally, agree to indemnify, defend and hold harmless Escrow Agent against any
and all losses, claims, damages, liabilities, costs and expenses (including
court costs and reasonable attorneys' fees) which may be imposed upon or
incurred by Escrow Agent in connection with the subject matter of this Escrow
Agreement and Escrow Agent's performance of its obligations hereunder, provided
that such losses are not the result of Escrow Agent's own gross negligence or
willful misconduct.
(f) Escrow Agent's sole responsibility shall be to receive the
Pledged Shares, hold the Pledged Shares and release the Pledged Shares in
accordance with the Pledge. Should any dispute arise among Pledgor and Pledgee
as to the proper disposition of the Pledged Shares, then Pledgor and Pledgee
agree that Escrow Agent may file a declaratory judgment action or an
interpleader action
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to obtain a resolution of such dispute. Such a declaratory judgment action
or interpleader action may be filed in the U.S. District Court for the
Northern District of Georgia, Atlanta Division, or the Superior Court of
Xxxxxx County, Georgia, at the sole and absolute discretion of Escrow Agent.
Pledgor and Pledgee, by signing this Agreement, expressly consent and agree to
the jurisdiction and venue of such courts and waive and renounce any right to
object to the personal jurisdiction or venue of such court and further waive
and renounce any right to removal based on diversity of citizenship or transfer
to another venue based on forum, non-convenience or any other basis.
5. This Escrow Agreement may be amended, modified or canceled only by
the written consent of all parties hereto. The Escrow Agent (and any successor
Escrow Agent) may resign by notifying Pledgee and Pledgor in writing and, until
a successor Escrow Agent is appointed by Pledgee and Pledgor and accepts such
appointment, the Escrow Agent's only duty hereunder shall be to hold any
then-remaining Pledged Shares in accordance with the original provisions of this
Escrow Agreement. The appointment of Xxxx Moss Kline & Xxxxx LLP as escrow agent
is to accommodate an expeditious closing of the Agreement. At the request of
either Pledgors and Pledgee at any time, Xxxx Moss Kline & Xxxxx LLP will resign
and transfer the Pledged Shares and other funds on deposit with it to an
independent third party escrowee reasonably acceptable to Pledgee and Pledgors.
Any new escrow agent shall be required to become a party to this Agreement.
6. Any notices or other communications required or permitted hereunder
shall be in writing and delivered by facsimile transmission and by regular mail,
postage prepaid, as follows:
If to Pledgors to: Ganymede Corp.
000 Xxxx Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxx
Facsimile: (000) 000-0000
With a copy to: Xxxxxxxx & Fox
Xxx Xxxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
If to Pledgee: HomeCom Communications, Inc.
Fourteen Xxxxxxxx Xxxxxx, Xxxxx 000
0000 Xxxxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx Xxx, Xxxxxx Xxxxxxxx
Facsimile: (000) 000-0000
With a copy to: Xxxx Moss Kline & Xxxxx LLP
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000 Xxxxxxxxx Xxxx Xxxxxx, Xxxxx 000
1000 Xxxxxxxxx Road, N.E.
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. Xxxx, Esq.
Facsimile: (000) 000-0000
If to Escrow Agent: Xxxx Moss Kline & Xxxxx LLP
000 Xxxxxxxxx Xxxx Xxxxxx, Xxxxx 000
1000 Xxxxxxxxx Road, N.E.
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. Xxxx, Esq.
Facsimile: (000) 000-0000
or at any such other address as shall be furnished in writing by any such party
to the other parties hereto. Such notices or other communications so given shall
be deemed effectively given when actually received. All notices given to any
party hereto shall be copied to all other parties hereto.
7. This Escrow Agreement shall be governed by the laws of the State of
Georgia. Whenever possible each provision of this Escrow Agreement shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement shall be prohibited or invalid under such
law, such provision shall be deemed severed herefrom and ineffective to the
extent of such prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Agreement.
8. This Escrow Agreement may be executed in multiple counterparts, each
of which shall constitute an original, but all of which taken together shall
constitute one and the same instrument.
9. Anything contained in this Agreement to the contrary
notwithstanding, if with respect to any claim of an Event of Default, the Escrow
Agent receives notice from any Pledgor of its objection to the claim or the
claimed Indemnity Amount within ten (10) days of the date Pledgors receive
notice of the indemnification claim, the Escrow Agent shall hold the Pledged
Securities and/or proceeds, as the case may be, and disburse only in accordance
with the written agreement of Pledgor and Pledgee, a final order of court or as
provided in Section 4(f) herein.
10. The terms and conditions of the attached Pledge and Security
Agreement are incorporated in and a part of this agreement. Capitalized terms
used in this agreement and not otherwise defined shall have the meanings
ascribed to them in the Agreement.
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IN WITNESS WHEREOF, the parties hereto have duly caused this Escrow
Agreement to be duly executed as of the date first above written.
PLEDGOR:
/s/ Xxxxxxx X. Xxx
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Xxxxxxx X. Xxx
/s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
/s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
/s/ Xxxxx X'Xxxxxxxx
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Xxxxx X'Xxxxxxxx
/s/ Xxxxx Xxxxx
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Xxxxx Xxxxx
/s/ Xxxx Xxxxxxx
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Xxxx Xxxxxxx
PLEDGEE:
HOMECOM COMMUNICATIONS, INC.
By: /s/ Xxxxxx Xxx
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Name: Xxxxxx Xxx
Title: President and CEO
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