Exhibit 4.27
PRIVATE EQUITY LINE FUNDS ESCROW AGREEMENT
This Agreement is dated as of the 24th day of October, 2003 among Central
Wireless, Inc., a Utah corporation (the "Company"), AJW Partners, LLC, AJW
Qualified Partners, LLC, AJW Offshore, Ltd., New Millennium Capital Partners II,
LLC and Equilibrium Equity, LLC (collectively, the "Investor"), and Xxxxxxxxx &
Associates (the "Escrow Agent"):
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company and Investor have entered into a Private Equity Line
of Credit Agreement dated October 24, 2003 (the "Investment Agreement") calling
for the sale by the Company to the Investor of shares of Common Stock; and
WHEREAS, the parties hereto wish to arrange for the Company to deliver to
the Escrow Agent the Put Shares issued in connection with each Put and wish to
arrange for the Investor to deliver to the Escrow Agent the Investment Amount
specified in each Optional Purchase Notice; and
WHEREAS, the Escrow Agent is willing to serve as escrow agent pursuant to
the terms and conditions of this Agreement;
NOW THEREFORE, the parties agree as follows:
ARTICLE I
INTERPRETATION
1.1. Definitions. Whenever used in this Agreement, the following terms
shall have the following respective meanings:
(a) "Agreement" means this Agreement and all amendments made hereto
and thereto by written agreement between the parties;
(b) "Compliance Certificate" shall mean a completed signed
Compliance Certificate, a form of which is annexed to the Investment Agreement
as Exhibit C.
(c) "Finder's Fee" means the fee to be paid to the Finders as
described in Section 13.4 and Schedule 13 of the Investment Agreement, which is
equal to 2% of the Investment Amount.
(d) "Company Documents" means, with respect to any Closing, the
Compliance Certificate, Put Shares, Optional Purchase Notice, and Finder's Fee
relating to that Closing.
1
Terms employed in this Agreement shall have the same definitions employed
in the Investment Agreement, unless modified herein.
1.2. Entire Agreement. This Agreement and the Investment Agreement
constitute the entire agreement between the parties hereto pertaining to the
Company Documents and Investment Amounts and supersedes all prior agreements,
understandings, negotiations and discussions, whether oral or written, of the
parties. There are no warranties, representations and other agreements made by
the parties in connection with the subject matter hereof except as specifically
set forth in this Agreement and Investment Agreement.
1.3. Extended Meanings. In this Agreement words importing the singular
number include the plural and vice versa; words importing the masculine gender
include the feminine and neuter genders. The word "person" includes an
individual, body corporate, partnership, trustee or trust or unincorporated
association, executor, administrator or legal representative.
1.4. Waivers and Amendments. This Agreement may be amended, modified,
superseded, cancelled, renewed or extended, and the terms and conditions hereof
may be waived, only by a written instrument signed by all parties, or, in the
case of a waiver, by the party waiving compliance. Except as expressly stated
herein, no delay on the part of any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof, nor shall any waiver on
the part of any party of any right, power or privilege hereunder preclude any
other or future exercise of any other right, power or privilege hereunder.
1.5. Headings. The division of this Agreement into articles, sections,
subsections and paragraphs and the insertion of headings are for convenience of
reference only and shall not affect the construction or interpretation of this
Agreement.
1.6. Law Governing this Agreement. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York without regard to
principles of conflicts of laws. Subject to Section 4.2, any action brought by
either party against the other concerning the transactions contemplated by this
Agreement shall be brought only in the state courts of New York or in the
federal courts located in the state of New York. All parties and the individuals
executing this Agreement and other agreements on behalf of the Company agree to
submit to the jurisdiction of such courts and waive trial by jury. The
prevailing party (which shall be the party which receives an award most closely
resembling the remedy or action sought) shall be entitled to recover from the
other party its reasonable attorney's fees and costs. In the event that any
provision of this Agreement or any other agreement delivered in connection
herewith is invalid or unenforceable under any applicable statute or rule of
law, then such provision shall be deemed inoperative to the extent that it may
conflict therewith and shall be deemed modified to conform with such statute or
rule of law. Any such provision which may prove invalid or unenforceable under
any law shall not affect the validity or enforceability of any other provision
of any agreement.
1.7. Specific Enforcement, Consent to Jurisdiction. The Company and the
Investor acknowledge and agree that irreparable damage would occur in the event
that any of the provisions of this Agreement were not performed in accordance
with their specific terms or were otherwise breached. It is accordingly agreed
that the parties shall be entitled to an injuction or injunctions to prevent or
cure breaches of the provisions of this Agreement and to enforce specifically
the terms and provisions hereof
2
or thereof, this being in addition to any other remedy to which any of them may
be entitled by law or equity. Subject to Section 1.6 hereof, each of the Company
and Investors hereby waives, and agrees not to assert in any such suit, action
or proceeding, any claim that it is not personally subject to the jurisdiction
of such court, that the suit, action or proceeding is brought in an inconvenient
forum or that the venue of the suit, action or proceeding is improper. Nothing
in this Section shall affect or limit any right to serve process in any other
manner permitted by law.
1.8. Fees. The Company shall pay the Escrow Agent a fee of $500 in
connection with each Optional Purchase Notice. This fee shall be payable by
proportionate deduction from each Investment Amount, but only if the balance of
the Investment Amount is to be released to or on behalf of the Company and the
Finder pursuant to this Agreement.
ARTICLE II
DELIVERIES TO THE ESCROW AGENT
2.1. Delivery of Company Documents to Escrow Agent. Prior to each Closing,
the Company shall deliver to the Escrow Agent the Company Documents relative to
such Closing. The Purchase Price and amount of Put Shares for each Closing will
be determined jointly by the Company and the Escrow Agent consistant with
Section 1.29 of the Investment Agreement.
2.2. Delivery of Investment Amount to Escrow Agent. Subsequent to the
receipt of an Optional Purchase Notice, the Investor shall deliver to the bank
account of the Escrow Agent identified below the Investment Amount stated in
that Optional Purchase Notice.
2.3. Intention to Create Escrow Over Company Documents and Investment
Amounts. The Investor and Company intend that any Company Documents and any
Investment Amounts shall be held in escrow by the Escrow Agent pursuant to this
Agreement for their benefit as set forth herein.
2.4. Escrow Agent to Deliver Company Documents and Investment Amounts. The
Escrow Agent shall hold and release any Company Documents and any Investment
Amounts only in accordance with the terms and conditions of this Agreement.
2.5. Delivery of Certificate. Not later than two days after the date of
the Optional Purchase Notice, the Company must provide a certificate of service
("Delivery Certificate") to the Escrow Agent regarding the service of the
Optional Purchase Notice on the Investor in the manner required pursuant to
Section 12.1 of the Investment Agreement. The Delivery Certificate must be
accompanied by a copy of the Optional Purchase Notice and a schedule setting
forth: (i) the manner in which the Investment Amount was determined; (ii) the
remaining amount of Common Stock included in the Registration Statement for the
Investor; and (iii) the amount of Common Stock available for issuance to the
Investor subject to the limitation set forth in Section 7.2(j) of the Investment
Agreement, stating the amount of Common Stock outstanding on the last day prior
to the date of the relevant Optional Purchase Notice.
ARTICLE III
RELEASE OF COMPANY DOCUMENTS AND INVESTMENT AMOUNTS
3
3.1. Release of Escrow. Subject to the provisions of Section 4.2, in
connection with any Closing, the Escrow Agent shall release the Company
Documents and Investment Amount relating to the Closing as follows:
(a) Upon receipt by the Escrow Agent of the Company Documents and the
Investment Amount from an Investor, the Escrow Agent will simultaneously release
the Company Documents to each such depositing Investor and release the
Investment Amount to the Company except that (i) the Finder's Fee will be
delivered to the finder in proportion to the funds released from escrow; and
(ii) the fee described in Section 1.8 above will be released to the Escrow
Agent. All funds will be delivered to the Company as per its instructions.
All funds to be delivered to the Finder will be delivered by wire transfer
as per instructions to be delivered by the Finder to the Escrow Agent in
writing.
The Escrow Agent is instructed to deduct actual bank wire transfer fees
from funds to be delivered to each recipient.
(b) In the event the Escrow Agent does not receive any Company Documents
or the Investment Amount prior to the Closing, then the Escrow Agent will
promptly return the Company Documents to the Company, and promptly return the
Investment Amount to the Investor.
(c) Upon receipt by the Escrow Agent of joint written instructions ("Joint
Instructions") signed by the Company and the Investor, it shall deliver the
Company Documents and the Investment Amount in accordance with the terms of the
Joint Instructions.
(d) Upon receipt by the Escrow Agent of a final and non-appealable
judgment, order, decree or award of a court of competent jurisdiction (a "Court
Order"), the Escrow Agent shall deliver the Company Documents and the Investment
Amount in accordance with the Court Order. Any Court Order shall be accompanied
by an opinion of counsel for the party presenting the Court Order to the Escrow
Agent (which opinion shall be satisfactory to the Escrow Agent) to the effect
that the court issuing the Court Order has competent jurisdiction and that the
Court Order is final and non-appealable.
(e) The Escrow Agent is authorized to rely on any uncontradicted
calculation, notice or information provided by the Company or Investor or from
any source when determining the amount of Common Shares to be released on a
Closing Date.
3.2. Acknowledgement of Company and Investor; Disputes. The Company and
the Investor acknowledge that the only terms and conditions upon which any
Company Documents and any Investment Amounts are to be released are set forth in
Sections 3 and 4 of this Agreement. The Company and the Investor reaffirm their
agreement to abide by the terms and conditions of this Agreement with respect to
the release of any Company Documents and any Investment Amounts. Any dispute
with respect to the release of any Company Documents and any Investment Amounts
shall be resolved pursuant to Section 4.2 or by agreement between the Company
and the Investor.
4
ARTICLE IV
CONCERNING THE ESCROW AGENT
4.1. Duties and Responsibilities of the Escrow Agent. The Escrow Agent's
duties and responsibilities shall be subject to the following terms and
conditions:
(a) The Investor and Company acknowledge and agree that the Escrow Agent
(i) shall not be responsible for or bound by, and shall not be required to
inquire into whether either the Investor or Company is entitled to receipt of
the Company Documents and Investment Amount pursuant to, any other agreement or
otherwise; (ii) shall be obligated only for the performance of such duties as
are specifically assumed by the Escrow Agent pursuant to this Agreement; (iii)
may rely on and shall be protected in acting or refraining from acting upon any
written notice, instruction, instrument, statement, request or document
furnished to it hereunder and believed by the Escrow Agent in good faith to be
genuine and to have been signed or presented by the proper person or party,
without being required to determine the authenticity or correctness of any fact
stated therein or the propriety or validity or the service thereof; (iv) may
assume that any person purporting to give notice or make any statement or
execute any document in connection with the provisions hereof has been duly
authorized to do so; (v) shall not be under any duty to give the property held
by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its
own similar property; and (vi) may consult counsel satisfactory to Escrow Agent,
the opinion of such counsel to be full and complete authorization and protection
in respect of any action taken, suffered or omitted by Escrow Agent hereunder in
good faith and in accordance with the opinion of such counsel.
(b) The Investor and Company acknowledge that the Escrow Agent is acting
solely as a stakeholder at their request and that the Escrow Agent shall not be
liable for any action taken by Escrow Agent in good faith and believed by Escrow
Agent to be authorized or within the rights or powers conferred upon Escrow
Agent by this Agreement, except in the case of gross negligence or willful
misconduct. The Investor and Company, jointly and severally, agree to indemnify
and hold harmless the Escrow Agent and any of Escrow Agent's partners,
employees, agents and representatives for any action taken or omitted to be
taken by Escrow Agent or any of them hereunder, including the fees of outside
counsel and other costs and expenses of defending itself against any claim or
liability under this Agreement, except in the case of gross negligence or
willful misconduct on Escrow Agent's part committed in its capacity as Escrow
Agent under this Agreement. The Escrow Agent shall owe a duty only to the
Investor and Company under this Agreement and to no other person.
(c) The Investors and Company jointly and severally agree to reimburse the
Escrow Agent for its reasonable out-of-pocket expenses (including outside
counsel fees, to the extent authorized hereunder) incurred in connection with
the performance of its duties and responsibilities hereunder.
(d) The Escrow Agent may at any time resign as Escrow Agent hereunder by
giving five (5) days prior written notice of resignation to the Investor and the
Company. Prior to the effective date of the resignation as specified in such
notice, the Investor and Company will issue to the Escrow Agent a Joint
Instruction authorizing delivery of all Company Documents and all Investment
Amounts to a substitute Escrow Agent selected by the Investor and Company. If no
successor Escrow Agent is named by the Investor and Company, the Escrow Agent
may apply to a court of competent jurisdiction in the
5
State of New York for appointment of a successor Escrow Agent, and to deposit
any Company Documents and any Investment Amounts with the clerk of any such
court.
(e) The Escrow Agent does not have and will not have any interest in any
Company Documents and any Investment Amounts, but is serving only as escrow
agent, having only possession thereof.
(f) This Agreement sets forth exclusively the duties of the Escrow Agent
with respect to any and all matters pertinent thereto and no implied duties or
obligations shall be read into this Agreement.
(g) The Escrow Agent shall be permitted to act as counsel for the Investor
or the Company, as the case may be, in any dispute as to the disposition of any
Company Documents and or any Investment Amounts, in any other dispute between
the Investor and Company, whether or not the Escrow Agent is then holding any
Company Documents or any Investment Amounts and continues to act as the Escrow
Agent hereunder.
(h) The provisions of this Section 4.1 shall survive the resignation of
the Escrow Agent or the termination of this Agreement.
4.2. Dispute Resolution: Judgments. Resolution of disputes arising under
this Agreement shall be subject to the following terms and conditions:
(a) If any dispute shall arise with respect to the delivery, ownership,
right of possession or disposition of any Company Documents or any Investment
Amounts, or if the Escrow Agent shall in good faith be uncertain as to its
duties or rights hereunder, the Escrow Agent shall be authorized, without
liability to anyone, to (i) refrain from taking any action other than to
continue to hold all Company Documents and Investment Amounts pending receipt of
a Joint Instruction from the Investor and Company, or (ii) deposit all Company
Documents and Investment Amounts with any court of competent jurisdiction in the
State of New York, in which event the Escrow Agent shall give written notice
thereof to the Investor and the Company and shall thereupon be relieved and
discharged from all further obligations pursuant to this Agreement. The Escrow
Agent may, but shall be under no duty to, institute or defend any legal
proceedings which relate to Company Documents or Investment Amounts. The Escrow
Agent shall have the right to retain counsel if it becomes involved in any
disagreement, dispute or litigation on account of this Agreement or otherwise
determines that it is necessary to consult counsel.
(b) The Escrow Agent is hereby expressly authorized to comply with and
obey any Court Order. In case the Escrow Agent obeys or complies with a Court
Order, the Escrow Agent shall not be liable to the Investor and Company or to
any other person, firm, corporation or entity by reason of such compliance.
6
ARTICLE V
GENERAL MATTERS
5.1. Termination. This escrow shall terminate upon termination of the
Investment Agreement and the release of all Company Documents and Investment
Amounts then being held in escrow by the Escrow Agent or at any time upon the
agreement in writing of the Investor and Company.
5.2. Notices. All notices, requests, demands and other communications
required or permitted hereunder shall be in writing and shall be sent by
telecopy (with the sender's facsimile machine confirming transmission and a copy
of the notice delivered by overnight courier, regular or certified mail) and
shall be deemed to have been duly given (a) one (1) day after being sent, if
sent by 5:00 P.M., New York time on a business day, or (b) the next business day
if sent at any other time
(a) If to Central Wireless, Inc.:
Central Wireless, Inc.
0000 X. Xxxxxxx Xxxxx
Xxxxx X
Xxxxxxxx, XX 00000
Attn: Xxxxxxx X. Brand, CEO
Telecopier: (000) 000-0000
With a copy to:
Xxxxxxxxxxx & Xxxxxxxx LLP
Miami Center, 20th Floor
000 Xxxxx Xxxxxxxx, Xxxx.
Xxxxx, XX 00000-0000
Attn: Xxxx Xxxxxx, Esq.
Telecopier: (000) 000-0000
(b) If to the Investor, to:
AJW Partners, LLC AJW Qualified Partners, LLC AJW Offshore, Ltd.
New Millennium Capital Partners II, LLC
Equilibrium Equity, LLC
0000 Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxxxxx
Telecopier: (000) 000-0000
7
(c) With a copy to:
Xxxxxxx Xxxxx Xxxxxxx & Xxxxxxxxx, LLP
0000 Xxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxx, Esq.
Telecopier: (000) 000-0000
(d) If to the Escrow Agent, to:
Xxxxxxxxx & Associates
00000 Xxxxxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Xxxx Xxxxxxxxx, Esq.
Telecopier: (000) 000-0000
or to such other address as any of them shall give to the others by notice made
pursuant to this Section 5.2.
5.3. Interest. The Investment Amounts shall not be held in an interest
bearing account nor will interest be payable in connection therewith.
5.4. Assignment; Binding Agreement. Neither this Agreement nor any right
or obligation hereunder shall be assignable by any party without the prior
written consent of the other parties hereto. This Agreement shall enure to the
benefit of and be binding upon the parties hereto and their respective legal
representatives, successors and assigns.
5.5. Resale/Issuance. The Investor hereby notifies the Company that unless
the Company is otherwise advised prior to a Closing Date, the Investor will have
sold, pledged or otherwise transferred or agreed to sell, pledge or otherwise
transfer all Put Shares in a bona fide transaction to a third party that is not
an affiliate of the Company, and that the Investor will have caused the
prospectus delivery requirements to have been satisfied. Accordingly, the
Company agrees to deliver all Put Shares to the Escrow Agent without restrictive
legend pursuant to the requirements of Article IX of the Investment Agreement.
5.6. Invalidity. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal, or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions contained herein shall not be in any way impaired
thereby, it being intended that all of the rights and privileges of the parties
hereto shall be enforceable to the fullest extent permitted by law.
5.7. Counterparts/Execution. This Agreement may be executed in any number
of counterparts and by different signatories hereto on separate counterparts,
each of which, when so executed, shall be deemed an original, but all such
counterparts shall constitute but one and the same instrument. This Agreement
may be executed by facsimile transmission.
5.8. Agreement. Each of the undersigned states that he has read the
foregoing Credit Line Funds Escrow Agreement and understands and agrees to it.
8
[Signature Page Follows]
9
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by the undersigned, thereunto duly authorized, as of the date first set
forth above.
CENTRAL WIRELESS, INC.
By:_____________________________________
Name:
Title:
AJW PARTNERS, LLC
By:_____________________________________
Name:
Title:
AJW QUALIFIED PARTNERS, LLC
By:_____________________________________
Name
Title:
AJW OFFSHORE, LTD.
By:_____________________________________
Name:
Title:
NEW MILLENNIUM CAPITAL PARTNERS II, LLC
By: ____________________________________
Name:
Title:
EQUILIBRIUM EQUITY, LLC
By: ____________________________________
Name:
Title:
ESCROW AGENT:
XXXXXXXXX & ASSOCIATES
By: ________________________________
Name:
Title:
10
