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EXHIBIT 2.3
AMENDED AND RESTATED
ESCROW AGREEMENT
This amended and restated escrow agreement (the "Agreement") made and
entered this 30th day of December 1998 by and among Next Generation Media Corp.,
a Nevada corporation with a principal place of business at 000 Xxxxx Xxxxxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxxxx, Xxxxxxxx 00000 (hereinafter "Seller"), T.C.
Equities, Ltd., a Bahamas corporation with a principal place of business at
Charlotte House, Nassau, Bahamas (hereinafter "Buyer"), and the Law Office of
Xxxxx Xxxxx Xxxxxx P.C., a professional corporation incorporated under the laws
of the State of New York with an address at 0 Xxxxxxxxxxx Xxxxx, Xxxxx 0000, Xxx
Xxxx, Xxx Xxxx 00000 (hereinafter "Escrow Agent").
WHEREAS, the parties hereto entered into an escrow agreement as of May 1,
1998 (the "Prior Agreement"); and
WHEREAS, Buyer agreed to purchase 70,000 shares of Redeemable Cumulative
Convertible Preferred Stock of the Seller (hereinafter, the "Securities") and
stock purchase warrants for the purchase of common stock of the Seller
(hereinafter, collectively with the Securities, the "Shares") pursuant to an
Securities Subscription Agreement dated May 4, 1998 and as amended and restated
by an Amended and Restated Securities Subscription Agreement dated as of even
date hereof (the "Subscription Agreement"); and
WHEREAS, in partial consideration for entering into the Subscription
Agreement Seller has agreed pursuant to a Stock Purchase Agreement dated May 4,
1998 and as amended and restated by an Amended and Restated Stock Purchase
Agreement as of even date hereof (the "T.C. Equities Stock Purchase Agreement")
to provide Buyer with a Controlling Interest (as defined in the T.C. Equities
Stock Purchase Agreement) in UNICO, Inc., a Delaware Corporation ("UNICO");
WHEREAS, Seller, Buyer and the Escrow Agent desire to enter into this
Agreement to provide for (1) the deposit and the disbursement of the purchase
price for the Shares, (2) the deposit and the delivery of the Shares, and (3)
the deposit and delivery of the shares of UNICO common stock representing a
Controlling Interest, subject to the terms and conditions of this Agreement.
WHEREAS, the Escrow Agent is willing to act as escrow agent under this
Agreement subject to the revised terms required pursuant to the Subscription
Agreement and the T.C. Equities Stock Purchase Agreement, as amended.
NOW, THEREFORE, it is hereby agreed by and among the parties as follows:
1. FUNDS PLACED IN ESCROW
Buyer has delivered the purchase price for the Shares and for the
execution of the T.C. Equities Stock Purchase Agreement of Three Hundred Fifty
Thousand ($350,000.00) to the Escrow Agent. The Escrow Agent has delivered this
cash (less the fees described in Section 6 herein) to the Seller pursuant to the
Prior Agreement.
2. SECURITIES TO BE HELD IN ESCROW
Seller has delivered a certificate representing the Securities which have
a redemption price of $5.00 per share and a face value of $350,000.00, along
with 250,000 common stock purchase warrants in Seller. Seller has also provided
the Escrow Agent a fully executed T.C. Equities Stock Purchase Agreement
providing for the delivery of a Controlling Interest in UNICO.
3. RELEASE OF SHARES AND SETTLEMENT
The Escrow Agent has paid over the $350,000.00 purchase price to Seller
(less the fees described in Section 6 herein) and has delivered the Shares
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(including the Securities) to Buyer and shall deliver a copy of the executed
T.C. Equities Stock Purchase Agreement to Buyer by overnight courier service as
of the date of the execution of this Agreement.
4. DUTIES OF ESCROW AGENT
The sole remaining duty of Escrow Agent that has not been satisfied under
the Prior Agreement, other than as hereinafter specified, shall be to receive a
stock certificate representing 1,800,000 shares and a stock certificate
representing 13,187 shares, each of common stock of UNICO and hold them subject
to release in accordance with the terms and conditions of this Agreement and the
T.C. Equities Stock Purchase Agreement. The Escrow Agent shall be under no duty
to make certain that Seller and Buyer are complying with the laws of any
jurisdiction that may apply to any resale of the Shares. The Escrow Agent shall
undertake to perform only such duties as are expressly set forth and no implied
duties or obligations shall be read into this Agreement against the Escrow
Agent. The Escrow Agent may act in reliance upon any writing or instrument,
including any such writing or instrument received by facsimile, or signature
which it in good faith believes to be genuine, may assume the validity and
accuracy of any statement or ascertain contained in such writing or instrument,
and may assume that any person purporting to give any writing, notice, advice,
or instruction in connection with the provisions hereof has been duly authorized
to so do. The Escrow Agent shall not be liable in any manner for the sufficiency
or correctness as to form, manner and execution, or the validity of any
instrument deposited pursuant to this Agreement. The Escrow Agent's duties
hereunder shall be limited to the safekeeping of such instrument and monies
received by it as the escrow agent, and for the maintenance and disposition of
the funds deposited with it in accordance with this Agreement. The Escrow Agent
shall not be liable for collection items until the net proceeds of the same in
actual cash have been received, nor shall it be liable for default in payment of
negotiable documents deposited. It may rely upon paper document or other writing
believed by it to be authentic in making any delivery of money or property
hereunder.
5. ESCROW AGENT'S LIABILITIES
The Escrow Agent's obligations and duties in connection herewith are
confined to those duties specifically enumerated in this Agreement. The Escrow
Agent shall not be in any manner liable or responsible for the sufficiency,
correctness, genuineness, or validity of any instruments deposited with it or
with reference to the form of execution thereof, or the identity, authority, or
rights of any person executing or depositing same, and the Escrow Agent shall
not be liable for any loss that may occur by reason of forgery, false
representations, or the exercise of its discretion in any particular manner or
for any other reason, except for its own negligence or willful misconduct.
6. ESCROW AGENT AND LEGAL FEES
The Escrow Agent's fee herein shall be Two Thousand U.S. Dollars
($2,000.00). This fee is intended as full compensation for the Escrow Agent's
services as contemplated by this Escrow Agreement and has been disbursed through
the proceeds of the transaction. The parties hereto have further authorized the
disbursement of legal fees to The Law Office of Xxxxx Xxxxx Xxxxxx, P.C., as
attorneys for the Buyer, through the proceeds of the transaction as per a
memorandum of costs to be provided by the attorneys, with such costs not to
exceed Eight Thousand Dollars ($8,000.00). The Escrow Agent acknowledges receipt
of $10,000.00 pursuant to the Prior Agreement in satisfaction of these
obligations to the The Law Office of Xxxxx Xxxxx Xxxxxx, P.C. in its capacity as
Escrow Agent and as attorneys for the Buyer.
7. BINDING AGREEMENT AND SUBSTITUTION OF ESCROW AGENT
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The terms and conditions of this Agreement shall be binding on the heirs,
executors and assigns, creditors or transferees, or successors in interest,
whether by operation of law or otherwise, of the parties hereto. If for any
reason the Escrow Agent herein, should be unable or unwilling to continue as
such escrow agent, the other parties to this Agreement may substitute another
person to serve as escrow agent. No party may assign its rights or obligations
hereunder without the consent in writing of the other parties hereto.
8. MISCELLANEOUS
The parties covenant and agree that in performing any of its duties under
this Agreement, the Escrow Agent shall not be liable for any loss or damages
which may be occasioned as a result of serving as escrow agent hereunder, except
for any loss or damages occasioned by its willful default or negligence.
The Escrow Agent may, upon ten (10) days written notice, resign as escrow
agent hereunder, provided that such resignation shall not become effective until
such time as a successor escrow agent acceptable to Seller and Buyer has been
appointed.
All notices and communications hereunder shall be in writing and shall be
deemed to be duly given and received if made by prepaid registered mail with
return receipt requested, courier, telecopier, telex, or telegraph to each of
the parties at their respective addresses or such other addresses as may be set
forth in writing by a party and sent to all other parties.
The validity, interpretation, and performance of this Agreement shall be
controlled by and construed under the laws of the State of New York (without
regard to any otherwise applicable conflicts of laws provisions), the State in
which this Agreement is deemed executed, and the parties hereto agree to submit
to that State's jurisdiction.
For the convenience of the parties, any number of counterparts of this
Agreement may be executed by any one or more parties hereto and each such
executed counterpart shall be, and shall be deemed to be, an original
instrument, and to have the force and effect of an original, but all of which
shall constitute, and shall be deemed to constitute, in the aggregate, but one
and the same instrument.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day first above written in New York.
SELLER BUYER
/s/ Xxxxx Xxxxxx /s/ Xxxxx Xxxxxxxx
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Name: Xxxxxxxx Xxxxxx Name: Xxxxx Xxxxxxxx
Title: President Title: Director
NEXT GENERATION MEDIA CORP. T.C. EQUITIES LTD.
ESCROW AGENT
/s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxx Xxxxxx, Esq.
THE LAW OFFICE OF
XXXXX XXXXX XXXXXX P.C.
