AGREEMENT
AGREEMENT (the "Agreement"), dated as of March 19, 2005 between MediaBay,
Inc., a Florida corporation (the "Company"), Xxxxxx Xxxxxxx ("Xxxxxxx") and
Huntingdon Corporation, a Delaware corporation ("Huntingdon").
BACKGROUND
A. The Company has issued to Xxxxxxx (i) the convertible promissory notes
set forth on Exhibit A hereto (the "Xxxxxxx Notes"), (ii) the Series A
Convertible Preferred Stock, no par value per share (the "Series A Preferred
Stock") and (iii) the Series C Convertible Preferred Stock, no par value per
share (the "Series C Preferred Stock), set forth on Exhibit B hereto.
B. The Company has issued to Huntingdon (i) the convertible promissory
notes set forth on Exhibit A hereto (the "Huntingdon Notes") and (ii) the Series
C Convertible Preferred Stock, set forth on Exhibit B hereto.
C. The Company requires financing (the "Financing") to meet certain debt
payment obligations and its working capital requirements and is raising
approximately $35,900,000 in connection with the sale of Series D Convertible
Preferred Stock, no par value per share (the "Series D Preferred Stock"),
pursuant to the terms of that certain Securities Purchase Agreement dated the
date hereof (the "Securities Purchase Agreement"), by and among the Company and
the entities whose names appear on the signature page thereto (the "Investors").
Capitalized terms used but not otherwise defined herein shall have the meaning
set forth in the Securities Purchase Agreement.
D. On the date hereof, a majority of the Company's shareholders has
approved by written consent (the "Written Consent") the following actions in
connection with the Financing (i) the issuance of the common stock, no par value
per share, of the Company ("Common Stock") in excess of the Cap Amount in
connection with the transactions contemplated in the Securities Purchase
Agreement and the other Transaction Documents (as defined in the Securities
Purchase Agreement), (ii) an amendment to the Articles of Incorporation of the
Company, providing for an increase in the authorized number of shares of Common
Stock of the Company from 150,000,000 shares to 300,000,000 shares, and (iii) a
change of control (as defined in accordance with Nasdaq Marketplace Rule
4350(i)(I)(B)) (together, the "Shareholder Actions"). While such shareholder
actions have been approved, the Company may not effect them until it satisfies
certain information requirements (the "Information Requirements") to the
shareholders not party to the written consent pursuant to Section 607.0704 of
the Florida Business Corporation Act and Regulation 14C of the Securities
Exchange Act of 1934, as amended ("Regulation 14C").
E. As a condition to the Closing of the Financing, (i) Xxxxxxx is required
to convert the Xxxxxxx Notes (as set forth on Exhibit A hereto) and a portion of
his Series A Preferred Stock (as set forth on Exhibit B hereto) into Common
Stock, and (ii) the Company is required to redeem the balance of Xxxxxxx'x
Series A Preferred Stock (as set forth on Exhibit B hereto) and all of Xxxxxxx'x
Series C Preferred Stock, pursuant to the terms set forth herein.
F. As a further condition to the Closing of the Financing transaction, (i)
Huntingdon is required to convert the Huntingdon Notes into Common Stock, (ii)
the Company is required to redeem all of Huntingdon's Series C Preferred Stock,
and (iii) the Company is required to pay all accrued but unpaid interest on
notes issued to Huntingdon which were previously canceled.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Xxxxxxx is hereby (i) converting the principal amount of the Xxxxxxx
Notes outstanding into the Company's Common Stock, pursuant to the terms of such
notes and for the number of shares of Common Stock set forth on Exhibit A, and
(ii) converting that portion of his shares of Series A Preferred Stock with an
aggregate stated capital of $1,068,400 (the "Converted Series A Preferred") for
that number of shares of Common Stock set forth on Exhibit B, pursuant to the
terms set forth in designations of the Series A Preferred Stock in the Company's
Articles of Incorporation. All accrued but unpaid dividends on the Converted
Series A Preferred, and interest on the Xxxxxxx Notes as of the date hereof (as
set forth on Exhibit A and Exhibit B, respectively) shall be paid immediately
upon conversion. The shares of Common Stock issuable upon conversion of the
Xxxxxxx Notes, the Huntingdon Notes and the Converted Series A Preferred are
hereinafter collectively referred to herein as the "Conversion Shares".
2. Huntingdon is hereby converting the principal amount of the Huntingdon
Notes outstanding into the Company's Common Stock, pursuant to the terms of such
notes and for the number of shares of Common Stock set forth on Exhibit A. All
accrued but unpaid interest on the Huntingdon Notes as of the date hereof (as
set forth on Exhibit A) shall be paid immediately upon conversion. Upon
consummation of the Financing, the Company shall pay to Huntingdon $11,913 in
satisfaction of all accrued but unpaid interest on notes issued to Huntingdon
which were previously canceled.
3. Immediately upon consummation of the Financing, (A) the Company shall
place into escrow with Blank Rome LLP (the "Escrow Agent") (i) $1,431,600, which
represents the stated capital of the Series A Preferred Stock not being
converted by Xxxxxxx pursuant to Section 1 hereof (the "Remaining Series A
Preferred Stock"), and (ii) $1,181,400, which represents the stated capital of
the Series C Preferred Stock owned by Xxxxxxx, both as set forth on Exhibit B
(collectively, the "Xxxxxxx Redemption Amount"), and (B) Xxxxxxx shall place
into escrow with the Escrow Agent stock certificates (the "Xxxxxxx Stock
Certificates") in his name representing the Remaining Series A Preferred Stock
and the Series C Preferred Stock, which certificates shall have attached to them
a stock power endorsed in blank for transfer owned by Xxxxxxx, to be held in
escrow pursuant to Section 6 hereof and the terms of the Escrow Agreement
attached hereto as Exhibit C (the "Escrow Agreement").
4. Immediately upon consummation of the Financing, (A) the Company shall
place into escrow with the Escrow Agent $3,171,300, which represents the stated
capital of the Series C Preferred Stock owned by Huntingdon, as set forth on
Exhibit B (the "Huntingdon Redemption Amount"), and (B) Huntingdon shall place
into escrow with the Escrow Agent stock certificates (the "Huntingdon Stock
Certificates") in its name representing the Series C Preferred Stock owned by
Huntingdon, which certificates shall have attached to them a stock power
endorsed in blank for transfer, to be held in escrow pursuant to Section 6
hereof and the terms of the Escrow Agreement.
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5. All accrued but unpaid dividends on the Remaining Series A Preferred
Stock and the Series C Preferred Stock as of the date hereof (as set forth on
Exhibit B hereof), shall be paid in cash to Xxxxxxx and Huntingdon, as
applicable, on the date hereof. Dividends on the Remaining Series A Preferred
Stock and Series C Preferred Stock shall cease to accrue on the Closing Date and
Huntingdon and Xxxxxxx, as applicable, accordingly hereby waive all rights to
such dividends, provided that they shall be entitled to receive all interest
earned on the Xxxxxxx Redemption Amount and Huntingdon Redemption Amount, as
applicable, in accordance with the terms of the Escrow Agreement.
6. On the earlier of (i) Stockholder Approval, which shall not be deemed
to have been obtained until the Written Consent has become effective in
accordance with Regulation 14C, and (ii) June 1, 2005 (the first to occur of (i)
and (ii) being referred to herein as the "Redemption Date"), the Company shall
redeem from Xxxxxxx and Huntingdon the Remaining Series A Preferred Stock and
the Series C Preferred Stock for the Xxxxxxx Redemption Amount and the
Huntingdon Redemption Amount, as applicable. On the Redemption Date, (A) the
Xxxxxxx Redemption Amount (including interest thereon) and the Huntingdon
Redemption Amount (including interest thereon), as applicable, shall be
distributed by the Escrow Agent to Xxxxxxx and Huntingdon, and (B) the Xxxxxxx
Stock Certificates and the Huntingdon Stock Certificates shall be delivered to
the Company for cancellation.
7. The Company shall register for resale (i) the Conversion Shares, so
long as they are owned by Xxxxxxx or Huntingdon, pursuant to Registration Rights
Agreement No. 1, by and among the Company, Xxxxxxx and Huntingdon, a form of
which is attached hereto as Exhibit D, and (ii) all warrants ("Warrants") to
purchase shares of Common Stock owned by Xxxxxxx or Huntingdon and any
Conversion Shares or Warrants sold or otherwise transferred by Xxxxxxx or
Huntingdon, as the case may be, pursuant to Registration Rights Agreement No. 2,
by and among the Company, Xxxxxxx and Huntingdon, a form of which is attached
hereto as Exhibit E.
8. Pursuant to (i) that certain Agreement dated April 28, 2004 between the
Company and Xxxxxxx, (ii) that certain Agreement dated April 28, 2004 between
the Company and Huntingdon, and (iii) that certain Agreement dated April 28,
2004 between the Company and the X. Xxxxxxx Irrevocable ABC Trust (to the extent
the rights thereunder were assigned to Xxxxxxx), each of Xxxxxxx and Huntingdon
have the right (the "Warrant Amendment Rights") to require the Company to hold a
shareholder meeting in order to amend the warrants issued pursuant to that
certain Warrant Agreement dated May 25, 2005, by and among the Company, Xxxxxxx
and Huntingdon, to provide for full ratchet anti-dilution protection under
certain conditions. Xxxxxxx and Huntingdon hereby waive and agree to eliminate
all Warrant Amendment Rights.
9. Xxxxxxx (as holder of the Xxxxxxx Notes, Series A Preferred Stock and
Series C Preferred Stock and under any other agreements between him and the
Company) and Huntingdon (as holder of the Huntingdon Notes and Series C
Preferred Stock and under any other agreements between it and the Company)
hereby consent (as such consents are required under the terms of the Xxxxxxx
Notes, Huntingdon Notes, Series A Preferred Stock, Series C Preferred Stock and
other such agreements) to the Financing on the terms and conditions set forth in
the Securities Purchase Agreement and the Transaction Documents, including but
not limited to (a) the execution of the agreements relating to such
transactions, (b) the authorization, creation and issuance of the Series D
Preferred Stock and the rights and preferences of such preferred stock as set
forth in the Articles of Amendment to the Articles of Incorporation with respect
thereto, which Xxxxxxx and Huntingdon, as applicable, acknowledge and consent to
being senior to the Series A Preferred Stock and the Series C Preferred Stock,
(c) the authorization and issuance of the Investor Warrants, Preferred Warrant,
Additional Warrants, Satellite Consulting Warrant and Common Stock issuable upon
exercise thereof, (d) the execution, delivery and performance of that certain
Letter Agreement, dated the date hereof, by and among the Company, Forest Hill
Select Offshore, Ltd., Forest Hill Select Fund, L.P. and Lone Oak Partners, L.P.
and (e) any change in control (as defined in any Xxxxxxx Note, Huntingdon Note,
the Articles of Incorporation or any agreement between the Company and Xxxxxxx
or Huntingdon) which may occur as a result of the Financing.
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10. Each of Xxxxxxx and Huntingdon hereby represent, warrant and
acknowledge to the Company, as to itself only, that:
(a) Such party has, and will have on the Redemption Date (except
with respect to the Series A Preferred Stock which is converted), good and
marketable title to the Series A Preferred Stock (with respect to Xxxxxxx only)
and Series C Preferred Stock owned by it, free and clear of all liens, security
interests, pledges, encumbrances, claims and restrictions.
(b) Such party has full power and authority to execute and deliver
this Agreement, and to perform his or its obligations hereunder. This Agreement
has been duly delivered by such party and constitutes the legal, valid and
binding obligation of such party, enforceable against such party in accordance
with its terms.
11. The Company hereby represents, warrants and acknowledges to Xxxxxxx
and Huntingdon that:
(a) The Company is a corporation duly organized under the laws of
the State of Florida and has full power and authority to execute and deliver
this Agreement and to perform its obligations thereunder. The execution and
delivery of this Agreement by the Company and the performance by the Company of
its obligations hereunder have been duly authorized by all necessary corporate
action on the part of the Company. This Agreement has been duly executed and
delivered by the Company and constitutes the legal, valid and binding obligation
of the Company, enforceable against the Company in accordance with its terms.
(b) The execution, delivery and performance by the Company of this
Agreement and the consummation by the Company of the transactions contemplated
hereby do not (i) violate any law, rule, regulation, order, writ, judgment,
injunction, decree, determination or award or (ii) conflict with or result in
the breach of, or constitute a default under, any material contract, loan
agreement, indenture, mortgage, deed of trust, lease or other material
instrument or agreement binding on or affecting the Company.
12. In addition to the representations and warranties made by the Company
to Xxxxxxx and Huntingdon pursuant Section 10 hereof, Xxxxxxx and Huntington may
rely on the representations and warranties made by the Company to the Investors
pursuant to Section 3 of the Securities Purchase Agreement, as if such
representations and warranties were made directly to Xxxxxxx and Huntingdon.
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13. Xxxxxxx and Huntingdon shall not, at any time following the date
hereof, disparage in any material respect the Company, any affiliate of the
Company, any of their respective businesses, any of their respective officers,
directors or employees, or the reputation of any of the foregoing persons or
entities. Notwithstanding the foregoing, nothing in this Agreement shall
preclude Xxxxxxx or Huntingdon from making truthful statements that are required
by applicable law, regulation or legal process.
14. The Company, any affiliate of the Company, and any of their respective
officers, directors or employees shall not, at any time following the date
hereof, disparage in any material respect Xxxxxxx, any members of Xxxxxxx'x
family, Huntingdon, any officers, directors or employees or other affiliate of
Huntingdon, any of their respective businesses, or the reputation of any of the
foregoing persons or entities. Notwithstanding the foregoing, nothing in this
Agreement shall preclude Company or any of its affiliates, or their respective
businesses, officers, directors or employees, from making truthful statements
that are required by applicable law, regulation or legal process.
15. The Company, on behalf of itself, its Subsidiaries and their
respective successors and assigns (collectively the "Company Releasors"),
release and discharge Xxxxxxx, his heirs and assigns, and Huntingdon, its
officers, directors and stockholders, and its successors and assigns
(collectively the "Company Releasees") from all actions, causes of action,
claims and demands whatsoever, in law or equity, which against the Company
Releasees, the Company Releasors ever had, now have or hereafter can have, by
reason of any matter known or should have been known to the Company or its
officers or directors, and arising on or prior to the date hereof, except for
the express obligations of Xxxxxxx and Huntingdon pursuant to this Agreement,
the Registration Rights Agreement, HH Securities Purchase Agreement and that
certain Voting Agreement and Proxy dated the date hereof by and between the
Company, Xxxxxxx and Huntingdon; provided that the Company Releasors may bring a
counterclaim or cross claim against a Company Releasee with respect to any claim
or action made specifically against such Company Releasor specifically alleging
wrongdoing by such Company Releasee.
16. Xxxxxxx and Huntingdon hereby acknowledge and agree that, upon
conversion of the Xxxxxxx Notes and Huntingdon Notes and payment of accrued
interest thereon by the Company, all security interests held by Xxxxxxx or
Huntingdon, as the case may be, in the collateral granted by the Company under
the Xxxxxxx Notes and the Huntingdon Notes, as the case may be, and all other
security interests securing payment of the obligations under such notes, shall
be deemed irrevocably terminated and released. Xxxxxxx and Huntingdon shall
promptly deliver such documents and agreements as the Company may reasonably
request to evidence termination of the Xxxxxxx Notes and the Huntingdon Notes,
as the case may be, including, without limitation, Uniform Commercial Code
termination statements, assignment or release financing statements and any
filings to be made in the U.S. Patent and Trademark Office and the U.S.
Copyright Office.
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17. The Company and The Xxxxxxx Company, Inc. are parties to a joint
umbrella excess liability policy (the "Umbrella Policy"). The Company shall, and
Xxxxxxx shall cause The Xxxxxxx Company, Inc. to, use commercially reasonable
efforts to obtain independent umbrella policies as soon as reasonable practical
following the date hereof, but in no event later than the date on which the
Umbrella Policy expires.
18. Each party shall be responsible for its own fees and expenses in
connection with the negotiation, execution and delivery of this Agreement.
19. This Agreement is made under, and shall be construed and enforced in
accordance with, the substantive laws of New York.
20. This Agreement may be executed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument. Facsimile signatures shall be
effective and binding as original signatures.
-SIGNATURE PAGE FOLLOWS-
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
and delivered as of the date first above written.
MEDIABAY, INC.
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chief Executive Officer
HUNTINGDON CORPORATION
By: /s/ Xxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxx
Title: President
/s/ Xxxxxx Xxxxxxx
------------------------------------
XXXXXX XXXXXXX
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EXHIBIT A
Xxxxxxx Notes
Accrued Interest
Principal Conversion through March 17, Shares Issuable
Holder Amount Issue Date Price 2005* Upon Conversion
Xxxxxx Xxxxxxx $1,984,250 December 31, 1998 $0.56 $1,326,149 3,543,303
Xxxxxx Xxxxxxx $500,000 December 31, 2002 $0.56 $46,773 892,857
Huntingdon Corporation $800,000 April 30, 2000 $0.56 $95,153 1,428,571
Huntingdon Corporation $2,500,000 April 30, 2000 $0.56 $158,980 4,464,285
*Interest continues to accrue to in accordance with the terms of the respective
notes.
EXHIBIT B
Preferred Stock
Accrued Dividends
Conversion through March 17, Shares Issuable
Holder Series Price 2005(1) Stated Capital Upon Conversion
Xxxxxx Xxxxxxx A $0.56 $78,794.50 $1,068,400 1,907,857
(to be converted)
Xxxxxx Xxxxxxx A $0.56 $105,580.50 $1,431,600(2) N/A
(to be redeemed)
Xxxxxx Xxxxxxx C $0.78 $116,173 $1,181,400(2) N/A
(to be redeemed)
Huntingdon Corporation C $0.78 $311,842 $3,171,300(2) N/A
(to be redeemed)
(1) Dividends continue to accrue in accordance with the terms of the
Series A Preferred Stock and Series C Preferred Stock, as the case may be.
(2) Amounts to be placed into escrow by the Company pursuant to Sections 3
and 4.
EXHIBIT C
Escrow Agreement
ESCROW AGREEMENT
ESCROW AGREEMENT dated as of March 19, 2005, by and among MediaBay, Inc.,
a Florida corporation (the "Company"), Xxxxxx Xxxxxxx ("Xxxxxxx"), Huntingdon
Corporation, a Delaware corporation ("Huntingdon") and Blank Rome LLP, as escrow
agent (the "Escrow Agent").
RECITALS
A. The Company, Xxxxxxx and Huntingdon are parties to that certain
Agreement dated as of March 19, 2005 (the "Xxxxxxx/Huntingdon Agreement"),
pursuant to which the Company has agreed to (A) redeem from Xxxxxxx (i) 14,316
shares Series A Preferred Stock, no par value, for a redemption price of
$1,431,600 (the "Series A Escrow Funds"), and (ii) 11,814 shares Series C
Preferred Stock, no par value, for a redemption price $1,181,400 (together with
the Series A Escrow Funds, the "Xxxxxxx Escrow Funds"), and (B) redeem from
Huntingdon 31,713 shares of Series C Preferred Stock, no par value, for a
redemption price of $3,171,300 (the "Huntingdon Escrow Funds", and together with
Xxxxxxx Escrow Funds, the "Escrow Funds"). Capitalized terms used but not
otherwise defined herein shall have the meaning ascribed to them in the
Xxxxxxx/Huntingdon Agreement.
B. Pursuant to the Xxxxxxx/Huntingdon Agreement, (i) the Company is
required to place into escrow the Escrow Funds, (ii) Xxxxxxx is required to
place into escrow the Xxxxxxx Stock Certificates, which certificates shall have
attached to them a stock power endorsed in blank for transfer, and (iii)
Huntingdon is required to place into escrow the Huntingdon Stock Certificates,
which certificates shall have attached to them a stock power endorsed in blank
for transfer, to be held in escrow by the Escrow Agent pursuant to Section 6 of
the Xxxxxxx/Huntingdon Agreement and the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants hereinafter set forth, the parties hereto agree as follows:
1. Appointment. The Company, Xxxxxxx and Huntingdon do hereby appoint and
designate the Escrow Agent as escrow agent for the purposes set forth herein,
and the Escrow Agent does hereby accept such appointment subject to the terms
and conditions set forth herein.
2. Establishment of Escrow.
(a) Simultaneously with the execution and delivery hereof, (i) the
Company is depositing the Escrow Funds with the Escrow Agent, (ii) Xxxxxxx is
depositing the Xxxxxxx Stock Certificates, which certificates have attached to
them a stock power endorsed in blank for transfer, and (iii) Huntingdon is
depositing the Huntingdon Stock Certificates, which certificates have attached
to them a stock power endorsed in blank for transfer.
(b) The Escrow Agent is authorized and instructed to invest the
Escrow Funds in one or more interest-bearing accounts of the Escrow Agent's
choice in one or more banks or financial institutions of having a net worth of
at least $100,000,000 each, the terms of which accounts shall provide that
withdrawals may be made only by Escrow Agent. Interest earned on the Escrow
Funds (the "Interest") shall be payable to Xxxxxxx and Huntingdon, pro rata base
on the amount of Escrow Funds distributed to such party. All Interest or
earnings on the Escrow Funds will be chargeable to Xxxxxxx and Huntingdon, as
applicable, for tax purposes. Escrow Agent will not be responsible for any loss
incurred as a result of any deposits or investments made in accordance with this
Section 2(b).
3. Release from Escrow; Escrow Period. On the Redemption Date and without
any further action by the parties hereto, the Escrow Agent shall distribute (A)
the Xxxxxxx Escrow Funds and Interest thereon to Xxxxxxx and the Xxxxxxx Stock
Certificates to the Company, and (B) the Huntingdon Escrow Funds and Interest
thereon to Huntingdon and the Huntingdon Stock Certificates to the Company.
4. Duties and Responsibilities of the Escrow Agent.
(a) The duties and responsibilities of the Escrow Agent hereunder
shall be determined solely by the express provisions of this Escrow Agreement
and no other or further duties or responsibilities shall be implied. The Escrow
Agent shall be under no obligation to refer to any documents between or among
the parties related in any way to this Escrow Agreement.
(b) The Escrow Agent's only obligations hereunder, and the only acts
the Escrow Agent shall take hereunder, is to hold in escrow the Escrow Funds
(including Interest), the Xxxxxxx Stock Certificates and the Huntingdon Stock
Certificates (collectively, the "Escrow Items") and to release the Escrow Items
only in accordance with Section 3 of this Agreement. The Escrow Agent may rely
and shall be protected in acting upon the written instructions by the Company,
Xxxxxxx and Huntingdon furnished to it hereunder and believed by it to be
genuine and to have been signed or presented by the proper party.
(c) The Escrow Agent shall not be liable for any action taken or
omitted by it in good faith unless a court of competent jurisdiction determines
that the Escrow Agent's willful misconduct was the cause of any loss to the
Company, Xxxxxxx or Huntingdon. The Escrow Agent may consult with counsel of its
own choice and, at its option, may act as its own counsel in connection
herewith.
5. Indemnification. The Company, Xxxxxxx and Huntingdon hereby agree to
jointly and severally indemnify the Escrow Agent for, and to hold it harmless
against, any loss, liability or expense, arising out of or in connection with
this Escrow Agreement and carrying out its duties hereunder, including, without
limitation, reasonable attorneys' fees and other costs and expenses of defending
itself against any claim of liability, except to the extent such loss, liability
or expense is the result of the Escrow Agent's willful misconduct; provided,
however, that the foregoing provisions of this Section 5 shall not affect the
rights and remedies of the Company, Xxxxxxx and Huntingdon as against each
other. Anything in this Escrow Agreement to the contrary notwithstanding, in no
event shall the Escrow Agent be liable for special, indirect or consequential
loss or damage of any kind whatsoever (including, but not limited to, lost
profits), even if the Escrow Agent has been advised of the likelihood of such
loss or damage and regardless of the form of action.
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6. Notices. All notices and communications hereunder shall be in writing
and shall be sent by certified or registered mail, return receipt requested, air
courier, personal delivery or verified facsimile, as follows:
If to the Escrow Agent: Blank Rome LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
If to the Company: MediaBay, Inc.
0 Xxxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxx Xxxxxx 00000
Attention: Chief Executive Officer and
Chief Financial Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Xxxxxxx: Xxxxxx Xxxxxxx
0 Xxxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxx Xxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Huntingdon: Huntingdon Corporation
0 Xxxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or to such other address as any of the above may have furnished to the other
parties in writing by certified or registered mail, return receipt requested,
air courier, personal delivery, or verified facsimile, and any such notice or
communication given in the manner specified in this Section 6 shall be deemed to
have been duly given on the date received by the recipient party. In the event
that the Escrow Agent, in its sole discretion, shall determine that any
emergency exists, the Escrow Agent may use such other means of communications,
as the Escrow Agent deems advisable.
7. Amendment. The provisions of this Escrow Agreement may be waived,
altered, amended or supplemented, in whole or in part, only by a writing signed
by all of the parties to be charged with such waiver, alteration, amendment or
supplement.
8. Binding Agreement. This Escrow Agreement shall be binding upon and
inure to the benefit of each of the parties hereto and their respective
successors and assigns.
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9. Counterparts. This Escrow Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
10. Conflict Waiver. The parties hereto acknowledge and agree that the
Escrow Agent currently represents and may continue to represent the Company,
Xxxxxxx and Huntingdon. The parties hereto waive the right to raise any claim of
conflict or any claim of a similar nature in connection with such
representation.
11. Governing Law; Jurisdiction. This Escrow Agreement shall be governed
by and construed in accordance with the laws of the State of New York without
regard to its principles of conflicts of laws and any action brought hereunder
shall be brought exclusively in the Federal or state courts located in the State
of New York, County of New York. With respect to any action brought hereunder in
said courts, each party hereto (a) irrevocably waives any objection on the
grounds of venue, forum non-conveniens or any similar grounds and (b)
irrevocably consents to service of process in any manner permitted by applicable
law and consents to the jurisdiction of said courts.
- SIGNATURE PAGE FOLLOWS -
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IN WITNESS WHEREOF, the parties hereto have executed this Escrow Agreement
as of the day and year first above written.
MediaBay, Inc.
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chief Executive Officer
Huntingdon Corporation
By: /s/ Xxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxx
Title: President
/s/ Xxxxxx Xxxxxxx
------------------------------------
XXXXXX XXXXXXX
ESCROW AGENT:
BLANK ROME LLP
By: /s/ Xxxx X. Xxxxxxxx
------------------------------------
Xxxx X. Xxxxxxxx, Partner
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EXHIBIT D
Registration Rights Agreement No. 1
See Exhibit No. 4.3
EXHIBIT E
Registration Rights Agreement No. 2
See Exhibit No. 4.4
