Exhibit 10.36
ESCROW AGREEMENT
ESCROW AGREEMENT, dated as of September 23, 1999 (this "AGREEMENT") among
the WORLDWIDE WEB NETWORX CORPORATION, a Delaware corporation ("WWWX"), NEW
AMERICA NETWORK, INC., a Delaware corporation ("NAI"), and XXXXXXXXX, GOSS,
SCHLEIFER, EISENBERG, WINKLER, XXXXXXXXXX & XXXXXXX, Attorneys at Law ("ESCROW
AGENT").
WITNESSETH
WHEREAS, simultaneously with execution and delivery of this Agreement, WWWX
and NAI have entered into a Share Exchange Agreement (the "EXCHANGE AGREEMENT")
and WWWX, NAI and Real Quest, Inc., a New Jersey Corporation ("RQ"), have
entered into a Real Quest, Inc. Shareholders' Agreement (the "RQ SHAREHOLDERS'
AGREEMENT");
WHEREAS, pursuant to the Exchange Agreement, WWWX agreed to place 750,000
shares of WWWX common stock (the "ESCROWED STOCK")with the Escrow Agent to be
distributed in accordance with the provisions of this Agreement;
NOW, THEREFORE, parties agree as follows:
SECTION 1. PLACEMENT OF ESCROWED STOCK WITH THE ESCROW AGENT.
(a) DELIVERY OF THE ESCROWED STOCK. Simultaneously with the execution
of this Agreement, WWWX is delivering (or will immediately thereafter undertake
to) deliver a share certificate representing the Escrowed Stock in the name of
NAI to the Escrow Agent to be held in escrow pursuant to the terms and
conditions of this Agreement, and the Escrow Agent is accepting the Escrowed
Stock for deposit in escrow pursuant to the terms and conditions of this
Agreement. All interest, income and earnings on the Escrow Amount are
hereinafter referred as the "ESCROW INTEREST".
(b) DIVIDENDS AND DISTRIBUTIONS. The Escrow Agent will hold the
Escrowed Stock for the benefit and on behalf of WWWX and NAI. Any dividends or
distributions made by WWWX with respect to the Escrowed Stock during the period
of time that the Escrowed Stock is held by the Escrow Agent will be distributed
to NAI. The Escrowed Stock shall be under the sole dominion and control of the
Escrow Agent and may be disbursed from the Escrow Account only in accordance
with the terms of this Agreement.
(c) VOTING TRUST. During the period that the Escrowed Stock is held in
escrow by the Escrow Agent, NAI will be entitled, for and in its name, to vote
and otherwise act with respect to the Escrowed Stock, at all annual, special,
and other meetings of stockholders (or by
written consent in lieu of those meetings) and at any other times that the
Escrowed Stock is required to be, or may be voted or acted upon.
SECTION 2. DISTRIBUTION OF THE ESCROWED STOCK. The Escrow Agent shall
continue to hold the Escrowed Stock in escrow until the Escrow Agent's receipt
of written instruction ("INSTRUCTIONS") signed by either (i) the accounting firm
appointed by NAI Direct, Inc., a Delaware corporation, as its independent
auditor (the "AUDITOR") certifying as to whether or not the Revenue Goal (as
defined in the Exchange Agreement) has been met and instructing the Escrow Agent
to distribute the Escrowed Stock to either WWWX or NAI or (ii) both of WWWX and
NAI, stating either that RQ Shareholders' Agreement has been terminated and to
which party the Escrowed Stock should be delivered. The Escrow Agent irrevocably
(i) undertakes to act in accordance with the terms set forth in this Agreement
and (ii) waives any and all rights of set-off, counterclaim or deduction
whatsoever against or from the Escrowed Stock, except with respect to the fees
and expenses referred to in SECTION 3(F), as to which, the Escrow Agent is
hereby granted a lien on the Escrowed Stock in order to secure the timely
payment of such fees and expenses.
SECTION 3. THE ESCROW AGENT. The acceptance by the Escrow Agent of its
duties under this Escrow Agreement is subject to the following terms and
conditions, which all parties to this Escrow Agreement hereby agree shall govern
and control with respect to the rights, duties and liabilities of the Escrow
Agent:
(a) PROTECTION OF THE ESCROW AGENT. The Escrow Agent shall be liable as
a depository only and shall not be responsible or accountable for the
correctness of any information set forth in any statements delivered to it, nor
shall it be required in any event to verify the correctness of any such
statements and it shall not be responsible for verifying compliance by either
WWWX or NAI with any agreement, including, but not limited to, the Exchange
Agreement and the RQ Shareholders' Agreement, among such parties relating to the
release of the Escrowed Stock. The Escrow Agent shall be entitled to rely,
without any investigation whatsoever, upon the communication received from WWWX,
NAI or the Auditor. The Escrow Agent shall be entitled to deem the signatories
of any communication submitted to it hereunder as being those purported to be
authorized to sign such communication on behalf of such party and shall be
entitled to rely on the genuineness of the signatures of such signatories
without inquiry and without substantiating evidence of any kind.
(b) DUTIES. The duties of the Escrow Agent are only such as are herein
specifically provided.
(c) ESCROW AGENT'S COUNSEL. The Escrow Agent may consult with, and
obtain advice from, legal counsel in the event of any dispute or question as to
the construction of any of the provisions hereof or its duties hereunder, and it
shall incur no liability and shall be fully protected in acting in good faith in
accordance with the advice of such counsel.
(d) OTHER AGREEMENTS. Other than this Escrow Agreement, the Escrow
Agent is not a party to or otherwise bound by any understanding, document or
agreement (including, but not limited to the Exchange Agreement or the RQ
Shareholders' Agreement) of any kind relating
to the subject matter of this Escrow Agreement.
(e) COLLECTION. The Escrow Agent, shall have no obligation whatsoever
to take any measures to collect the Escrowed Stock if the Escrowed Stock is not
delivered to it.
(f) ESCROW AGENT FEES. As compensation for the services of the Escrow
Agent to be performed hereunder, the Escrow Agent is hereby receiving a fee of
$1,500 payable upon the execution of this Agreement. In addition, the Escrow
Agent shall be entitled to reimbursement, within 30 days of presentation of
appropriate documented invoices, from WWWX of the Escrow Agent's reasonable
out-of-pocket expenses incurred in the performance of his duties hereunder. NAI
agrees to reimburse WWWX for 50% of any amounts paid by WWWX to the Escrow Agent
as reimbursement of expenses. The Escrow Agent shall pre-advise WWWX and NAI
prior to incurring any such expenses.
SECTION 4. INDEMNIFICATION OF ESCROW AGENT. WWWX and NAI agree to indemnify
the Escrow Agent from, and to hold it harmless against, any and all losses,
liabilities, claims, damages, actions, suits, costs and expenses incurred
without gross negligence or bad faith on the part of the Escrow Agent, arising
out of or in connection with its entering into this Agreement and carrying out
its duties hereunder, including the costs and expenses (including reasonable
counsel fees and expenses) of defending itself against any claim or liability.
All amounts payable pursuant to this SECTION 4 shall be either (a) shared
equally by WWWX and NAI, so long as neither WWWX or NAI is the party iniating
the subject action, (b) the non-initiating party of the subject action if the
Escrow Agent is found to have acted improperly or (c) the initiating party of
the subject action if the Escrow Agent is found to have acted properly.
SECTION 5. RESIGNATION OF ESCROW AGENT. The Escrow Agent shall have the
right, in its discretion, to resign and be discharged from its duties and
obligations hereunder at any time by giving at least 30 days' prior written
notice of such resignation to WWWX and NAI. In such event, WWWX and NAI will act
in good faith to promptly select another entity, which will be appointed as
successor Escrow Agent, and will enter into an agreement with such other
institution in substantially the form of this Escrow Agreement. The Escrow Agent
shall continue to serve until its successor accepts the terms of this Escrow
Agreement by written notice thereof to each of WWWX and NAI and receives the
Escrowed Stock. WWWX and NAI shall have the right at any time upon unanimous
consent to substitute a new Escrow Agent by giving notice thereof to the Escrow
Agent then acting, and the Escrow Agent shall deliver the Escrowed Stock to the
successor Escrow Agent at the written direction of WWWX and NAI.
SECTION 6. TERMINATION. This Escrow Agreement shall terminate, and Escrow
Agent shall be released from all claims of any sort arising under this
Agreement, upon the final disbursement of the Escrowed Stock in accordance with
the provisions of this Escrow Agreement. This SECTION 6 shall survive
termination of this Agreement.
SECTION 7. NOTICES. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed to have been given or
made if in writing and delivered personally, by registered or certified mail or
by courier or messenger, or sent by facsimile (with confirmation received) to
the parties at the following addresses:
(a) If to WWWX, to:
WorldWide Web NetworX Corporation
000 Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxx Xxxxxx, XX 00000
Attn.: President and CEO
Fax: 000-000-0000
with a copy to:
Attn.: Xxxxx X. Xxxxx, Esq.
General Counsel
Fax: 000-000-0000
(b) If to NAI, to:
New America Network, Inc.
X.X. Xxx 000
000 XX Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxx, Chairman and CEO
Fax Number: (000) 000-0000
with a copy to: Xxxxxx X. Xxxx, Esq.
General Counsel
Fax Number: (000) 000-0000
(c) If to the Escrow Agent, to:
XXXXXXXXX, GOSS, SCHLEIFER, EISENBERG, WINKLER,
XXXXXXXXXX & XXXXXXX
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
Attn.: Xxxxxxx X. Xxxx
Fax: 000-000-0000
or to such other persons or at such other addresses as shall be furnished by any
party by like notice to the other parties, and such notice, or communication
shall be deemed to have been given or made as of the date so delivered. No
change in any of such addresses or facsimile numbers shall be effective insofar
as notices under this Section are concerned unless such changed address shall
have been given to each other party hereto as provided in this Section.
SECTION 8. SETTLEMENT OF DISPUTES. If any dispute arises under this Escrow
Agreement with respect to the delivery, ownership or right of possession of any
of the Escrowed Stock, or the duties of the Escrow Agent hereunder, or as to any
other matter arising out of or
relating to this Agreement, such dispute shall be settled either by mutual
agreement of WWWX and NAI (evidenced by appropriate instructions in writing to
the Escrow Agent, signed by WWWX and NAI and satisfactory in all respects to the
Escrow Agent and its counsel) or by a final order, decree or judgment of a court
of competent jurisdiction in the United States of America (the time for appeal
having expired and no appeal having been perfected), all costs and expenses of
which (including reasonable attorneys' fees) shall be borne by the party against
which the dispute is settled. The Escrow Agent shall be under no duty whatsoever
to institute or defend any such proceedings.
SECTION 9. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED UNDER AND
GOVERNED BY THE INTERNAL LAWS OF THE STATE OF DELAWARE. THE PARTIES AGREE TO
WAIVE A JURY TRIAL IN ANY PROCEEDING BROUGHT TO ENFORCE ANY OF THE TERMS OF THIS
AGREEMENT.
SECTION 10. WAIVERS AND AMENDMENTS. The waiver by any party hereto of a
breach of any provision of this Agreement shall not operate or be construed as a
waiver of any other or subsequent breach, whether or not similar. This Agreement
may be amended, modified or supplemented, and any terms hereof may be waived
only by a written instrument executed by the parties hereto.
SECTION 11. SEVERABILITY. The terms of this Agreement shall be deemed
severable, and the invalidity or unenforceability of any term or provision
hereof shall not affect the validity or enforceability of this Agreement or of
any other term or provision hereof.
SECTION 12. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall be considered one and the same agreement.
SECTION 13. SUCCESSORS AND ASSIGNS; NO THIRD PARTY BENEFICIARIES. This
Agreement shall inure to the benefit of, and be binding upon, the parties hereto
and their respective successors and assigns. Nothing in this Agreement shall
confer upon any person or entity not a party to this Agreement, or the legal
representatives of such person or entity, any rights or remedies of any nature
or kind whatsoever under or by reason of this Agreement.
SECTION 14. JOINT AND SEVERAL LIABILITY. WWWX and NAI shall be jointly and
severally liable for all amounts payable to the Escrow Agent hereunder.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
WORLDWIDE WEB NEWORX CORPORATION
By:
Name: Xxxxxx X. Xxxx
Title: President and CEO
NEW AMERICA NETWORK, INC.
By:
Name: Xxxxxx X. Xxxx
Title: Chairman and CEO
XXXXXXXXX, GOSS, SCHLEIFER, EISENBERG, WINKLER,
XXXXXXXXXX & XXXXXXX,
in its capacity as Escrow Agent
By:
Name: Xxxxxxx X. Xxxx
Title: Partner
