ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this "Agreement") is made as of June 30, 2000,
by and among Worldwide Wireless Networks, 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 Convertible Debentures and Warrants 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 up to $1,000,000 (the
"Convertible Debenture") at the purchase price set forth in the Convertible
Debentures 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 and Regulation S 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 each Closing in escrow until the
Escrow Agent has received the Convertible Debentures 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 and Common Stock
Certificates for the purchase of the $1,000,000 principal amount of Convertible
Debentures and Warrants at the Closing as contemplated by the Purchase
Agreement.
1.2. a) At each Closing, upon the Escrow Agent's receipt of
the Purchase Price and Common Stock Certificates for the Closing into its
attorney trustee account from the Investors, 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 account and the Common
Stock Certificates it has received.
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(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. At the Closing, the Company, upon receipt of said notice, shall
deliver to the Escrow Agent the Convertible Debenture and Warrants to be issued
to each Investor together with:
(i) the original executed Registration Rights Agreement in the
form of Exhibit B to the Purchase Agreement;
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(ii) Instructions to Transfer Agent in the form of Exhibit E to the
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Purchase Agreement;
(iii) the original executed opinions of Feldake, August & Xxxxxxxxx,
in the form of Exhibit D to the Purchase Agreement; and
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(iv) an original counterpart of this Escrow Agreement.
(v) a certificate representing five thousand (5,000) shares of
Common Stock issued to Triton West Group, Inc. (the "Triton
Certificate");.
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, then each
Investor shall have the right to demand the return of said sum.
1.4. At the Closing, once Escrow Agent confirms the validity of
the issuance of the Convertible Debentures and 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 enter the exercise price, the issuance date
and the termination date of the Warrants on the face of such warrants and wire
that amount of funds necessary to purchase the Convertible Debentures and
Warrants per the written instructions of the Company net of legal and escrow
administrative costs of seven thousand dollars ($7,000) to Xxxxxxx Xxxxxx &
Green, P.C. ("EB&G"), 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000, and a finder's fee
of five percent (5%) of the Purchase Price as directed by Triton West Group,
Inc.
Once the funds (as set forth above) and the Common Stock Certificates
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 and the opinion of counsel delivered as per instructions from
the Investors and to deliver the Instructions to Transfer Agent to the Transfer
Agent and the Triton Certificate delivered to Triton West Group, Inc.
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1.5. At the second Closing, the Company, upon receipt of said
notice of receipt of funds, shall deliver to the Escrow Agent the remaining
Convertible Debentures and Warrants to be issued to the Investors.
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 and Warrants, then each Investor shall have the
right to demand the return of said sum.
Once Escrow Agent confirms the validity of the issuance of the
Convertible Debentures and 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 enter the exercise price, issuance date and termination date
of the Warrants on the face of such warrants and then immediately wire that
amount of funds necessary to purchase the Convertible Debentures and Warrants
per the written instructions of the Company.
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 and Warrants delivered as per instructions from the Investors.
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.
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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.
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.
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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.
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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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of this __ day of June, 2000.
WORLDWIDE WIRELESS NETWORKS, INC.
By:__________________________________
Xxxx Xxxxxxxxx, Chairman & CEO
INVESTORS:
AMRO International, S.A.
By:__________________________________
X.X. Xxxxxxxx, Director
TRINITY CAPITAL ADVISORS, INC.
By:__________________________________
Xxxx Xxxx, Managing Director
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 June
30, 2000 among Worldwide Wireless Networks, 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 Debenture 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 June, 2000.
WORLDWIDE WIRELESS NETWORKS, INC.
By:__________________________________
Xxxx Xxxxxxxxx, Chairman & CEO
INVESTORS:
AMRO International, S.A.
By:__________________________________
X.X. Xxxxxxxx, Director
TRINITY CAPITAL ADVISORS, INC.
By:__________________________________
Xxxx Xxxx, Managing Director
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