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EXHIBIT 99.2
ESCROW AGREEMENT
This Escrow Agreement ("Agreement"), dated as of December 1, 1999, is
entered into by and among Alloy Online, Inc., a Delaware corporation ("Alloy"),
Alloy Acquisition Corporation, a Delaware corporation and a wholly owned
subsidiary of Alloy ("Buyer"), Celebrity Sightings, LLC, a Delaware limited
liability company (the "Company"), and State Street Bank and Trust Company, in
its capacity as Escrow Agent hereunder (the "Escrow Agent", which term shall
also include any successor escrow agent appointed in accordance with Section
8(d) hereof).
Reference is made to the Asset Purchase Agreement of even date herewith
by and among Alloy, Buyer and the Company (the "Asset Purchase Agreement"),
pursuant to which Buyer has agreed to purchase, and the Company has agreed to
sell, substantially all of the assets of the Company for a consideration of
$1,214,000 in cash and shares of Alloy common stock, $0.01 par value per share
("Alloy Common Stock"), with a Market Value (as defined in the Asset Purchase
Agreement) of $3,386,000 (the "Stock Consideration").
This Agreement is designed to implement provisions of the Asset
Purchase Agreement pursuant to which Alloy is to deposit with Escrow Agent, on
behalf of the Company, 20,061 shares of Alloy Common Stock equal to 10% of the
total Stock Consideration (the "Escrow Shares"), as security for satisfaction of
the indemnification obligations of the Company pursuant to Article IX of the
Asset Purchase Agreement.
NOW, THEREFORE, in consideration of the premises and the
representations and warranties and agreements contained herein, the parties
hereto agree as follows:
1. APPOINTMENT OF ESCROW AGENT; ESCROW ACCOUNT. The Escrow Agent is
hereby appointed to act as escrow agent hereunder and the Escrow Agent agrees to
act as such.
2. ESCROW FUND AND ESCROW ACCOUNT.
(a) In accordance with Section 2.04(a) of the Asset Purchase Agreement,
Alloy shall deliver to the Escrow Agent a certificate or certificates registered
in the name of the Company representing the Escrow Shares, and the Company shall
deliver to the Escrow Agent ten (10) stock powers executed in blank by the
Company. In any event, the Escrow Agent shall hold such certificate or
certificates in escrow for the benefit of (i) Buyer and Alloy, and their
respective directors, officers, employees, agents, affiliates and assigns
(collectively, the "Buyer Indemnified Persons") and (ii) the Company, all
pursuant to the provisions of this Agreement. The shares of Alloy Common Stock
to be delivered to the Escrow Agent pursuant to this Section 2(a), together with
all cash dividends, stock dividends or stock distributions or any securities of
Alloy or any other person issued in respect thereof (including, without
limitation, any shares issued pursuant to any stock dividend, stock split,
reverse stock split, combination or reclassification thereof) shall become part
of, and are hereinafter referred to collectively as, the "Escrow Fund." The
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Escrow Agent shall have no responsibility for the genuineness, validity, market
value, title or sufficiency for any intended purpose of the Escrow Shares to be
delivered to it under this Agreement. The Escrow Agent shall have no
responsibility to invest any cash dividends or other amounts received with
respect to the Escrow Shares and held in the Escrow Fund.
(b) The Escrow Agent shall establish a segregated account (the "Escrow
Account") at its office located at its address set forth on SCHEDULE I in which
to hold the Escrow Fund.
3. RIGHTS TO THE ESCROW FUND. The Escrow Fund shall be for the
exclusive benefit of the Buyer Indemnified Persons and their respective
successors and assigns, as provided herein and in the Asset Purchase Agreement,
and no other person or entity shall have any right, title or interest therein
other than the Company's residual ownership interests in the property
constituting the Escrow Fund. Alloy, Buyer and the Company acknowledge and agree
that the Company currently contemplates dissolving and distributing its assets
to its members prior to the expiration of the term of this Agreement. The
Company has informed Alloy and the Buyer that, in such event, the Company's
residual ownership interests in the property constituting the Escrow Fund is to
be assigned to RHL Marketing Corporation, the managing member of the Company
("RHL"). Upon such assignment, the Company shall deliver notice thereof to
Alloy, Buyer and the Escrow Agent, and RHL shall thereupon succeed to all of the
Company's rights, duties and obligations hereunder. Neither Alloy, Buyer or the
Escrow Agent shall have any duty to inquire into the bona fides of any such
notice of assignment and shall, upon receipt thereof, be entitled to treat RHL
as if it were the sole owner of residual ownership interests in the property
constituting the Escrow Fund, and the Company and RHL shall indemnify and hold
Alloy, Buyer and the Escrow Agent harmless from and against loss, liability,
damage, cost and expense of any nature either or all of them may incur in
connection therewith.
4. DISTRIBUTION OF THE ESCROW FUND. The Escrow Agent shall continue to
hold the Escrow Fund in its possession until authorized hereunder to make
distributions from the Escrow Fund. The Escrow Agent shall distribute the Escrow
Fund as follows:
(a) If any Buyer Indemnified Person (the "Claiming Person") timely
asserts a right of indemnity against the Company under Article IX of the Asset
Purchase Agreement, Buyer shall execute and deliver to the Escrow Agent (with a
copy being sent simultaneously to the Company) a written notice to such effect
(a "Notice of Claim;" and the right of indemnity asserted in a Notice of Claim
being hereinafter referred to as a "Claim") and instruct the Escrow Agent to
deliver that portion of the Escrow Fund the Fair Market Value (as defined in
Section 5 hereof) of which shall equal the amount of the Claim (or, if the
amount of the Claim shall be greater than the Fair Market Value of the Escrow
Fund, the balance of the Escrow Fund) to such Claiming Person and the following
shall apply:
(i) in order to be effective hereunder, a Notice of Claim
delivered to the Escrow Agent pursuant to this
Section 4(a) shall (A) set forth the name of the
Claiming Person, the nature and details of such
Claim, and the amount thereof (or if not
ascertainable, a reasonable estimate of the maximum
amount thereof) and (b) be delivered to Escrow Agent
on or prior to the
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Escrow Agent's close of business on the date that is
the six month anniversary date hereof (or the next
succeeding business day, if Escrow Agent is not open
for business on such date); and
(ii) if within 30 days after the Escrow Agent's receipt of
any Notice of Claim pursuant to this Section 4(a) the
Escrow Agent has not received a notification from the
Company that the Claim, or the amount thereof, is
disputed, the Escrow Agent shall, within 5 days after
the expiration of such 30-day period, deliver to the
Claiming Person that portion of the Escrow Fund the
Fair Market Value of which shall equal the amount of
the Claim as set forth in such Notice of Claim (or,
if the amount of the Claim shall be greater than the
Fair Market Value of the entire Escrow Fund as of
such date, the balance of the Escrow Fund) (the date
of any such delivery being referred to herein as a
"RELEASE DATE"). If the Company does so notify the
Escrow Agent in writing of such a dispute (a copy of
such notice being simultaneously sent to Buyer), the
Escrow Agent shall not be authorized to deliver such
disputed amount to such Claiming Person until 5 days
after such dispute has been settled as provided in
Section 12 below, but shall deliver to the Claiming
Person that portion of the Escrow Fund as represents
the undisputed amount of the Claim, if any.
(b) Anything contained herein to the contrary notwithstanding, if the
Escrow Agent is authorized, at any time pursuant to strict compliance with
Section 4(a) and Section 12 hereof, to deliver all or any portion of the Escrow
Fund to a Claiming Person with respect to a Claim or Claims, then (i) such
delivery shall be made regardless of the Escrow Agent's prior or subsequent
receipt of any Notice of Claim or subsequent receipt of any Notice of Dispute
with respect to any other Claim or Claims and (ii) the Escrow Agent shall (A)
deliver to Alloy's transfer agent (who shall be identified to the Escrow Agent
in writing by Alloy) a certificate or certificates registered in the name of the
Escrow Agent or its nominee representing at least such number of Escrow Shares,
the Fair Market Value of which equals the undisputed amount of the Claim,
together with a completed stock power or powers and instructions transferring to
such Claiming Person that number of shares of the Escrow Shares being delivered
to such Claiming Person and (B) instruct such transfer agent to issue and
deliver to the Escrow Agent for retention hereunder as part of the Escrow Fund a
new certificate or certificates in the name of the Escrow Agent as escrow agent
hereunder (or in the name of its nominee or, if originally in the name of the
Company, the Company) representing the remaining balance of the portion of
Escrow Shares so delivered to the Escrow Agent. Buyer, Alloy and the Company
shall take all such actions and execute and deliver all such documents as are
necessary to effectuate the intent and purpose of this Section 4(b).
(c) Subject to Section 4(a) hereof, promptly, and in any event within
ten (10) days, following the six month anniversary of the Closing Date, the
Escrow Agent shall distribute to the Company the entire then remaining balance,
if any, of the Escrow Fund, that is in excess of the aggregate amounts specified
in all Notices of Claim which, on or prior to such date, have been delivered to
the Escrow Agent and the Company but which have not been paid to Buyer or
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otherwise discharged or withheld pursuant to this Section 4. Any portion of the
Escrow Fund which shall continue to be held by the Escrow Agent pursuant to the
preceding sentence shall be so held until such time as all disputed Claims
hereunder have been settled or resolved and notice of such settlement or
resolution setting forth the amounts to be paid to Buyer Indemnified Parties, on
the one hand, and the Company, on the other hand, has been delivered to the
Escrow Agent in accordance with the terms hereof.
5. VALUATION. For all purposes of this Agreement, the "Fair Market
Value" of any property (other than cash and shares of Alloy Common Stock)
contained in the Escrow Fund as of any date shall be the fair market value of
such property as of such date as determined by the Board of Directors of Buyer
in the good faith exercise of its reasonable business judgment, and consented to
by the Company in the good faith exercise of its reasonable business judgment,
which determination and consent, as applicable, shall be evidenced by a
certificate executed by the Secretary of Buyer and managing member of the
Company and delivered to the Escrow Agent, and the "Fair Market Value" per share
of Alloy Common Stock shall be, as of any date, the average closing price for
the Alloy Common Stock as quoted on the NASDAQ National Market System and as
reported in the Eastern Edition of THE WALL STREET JOURNAL for the fifteen
trading days ending on the second trading day prior to such date, as determined
by Alloy and consented to by the Company.
6. COMPANY RIGHTS. (a) Except as expressly provided otherwise herein,
the Company shall at all times retain and have the full and absolute right to
exercise all rights and indicia of ownership with respect to the Escrow Shares,
including, without limitation, voting and consensual rights; PROVIDED, HOWEVER,
that the Company shall have no right to transfer, pledge or encumber or
otherwise dispose of in any manner whatsoever any Escrow Shares that are held in
the Escrow Fund. The Escrow Agent shall vote all Escrow Shares then held in the
Escrow Fund in the manner instructed by the Company in writing. The Escrow
Shares shall be treated as having been actually issued and transferred to the
Company at the time of the closing of the transactions contemplated by the Asset
Purchase Agreement. In accordance with Section 2(a), all dividends or
distributions or proceeds in stock or other property issued in respect of the
Escrow Shares shall be deposited into the Escrow Account and become part of the
Escrow Fund. Any such dividends or distributions or proceeds deposited into the
Escrow Fund shall be attributed to the Company as of the date of their issuance.
If any such shares of Alloy Common Stock are transferred to a Claiming Person
strictly in accordance with the provisions of Section 4 hereof in satisfaction
of a Claim or Claims, all rights and indicia of ownership with respect to such
shares shall thereupon reside with such Claiming Person or any subsequent holder
thereof.
(b) Anything contained herein to the contrary notwithstanding, Escrow
Shares shall not be registrable pursuant to the Securities Act of 1933, as
amended, so long as they are held in the Escrow Fund and the Escrow Agent shall
not release such Escrow Shares from the Escrow Account, except pursuant to
Section 4 hereof, or take any other actions to register such Escrow Shares.
(c) The Escrow Agent shall be under no duty to preserve, protect or
exercise rights in the Escrow Shares, and shall be responsible only for
reasonable measures to maintain the
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physical safekeeping thereof, and otherwise to perform such duties on its part
as are expressly set forth in this Agreement, except that it will, at the
written request of the Company given to the Escrow Agent at least three business
days prior to the date on which the Escrow Agent is requested therein to take
any action, deliver to the Company a proxy or other instrument in the form
supplied to it by the Company for voting or otherwise exercising any right of
consent with respect to any of the Escrow Shares held by it hereunder. The
Escrow Agent will not be responsible for authenticating the right of the Company
to exercise voting or consent-giving authority in respect of Escrow Shares held
by it hereunder. The Escrow Agent shall, upon receiving instructions from the
Company, be responsible for forwarding to or notifying any party or taking any
other action with respect to any notice, solicitation or other document or
information, written or oral, received by the Escrow Agent from an issuer or
other person with respect to Escrow Shares held by the Escrow Agent hereunder,
including, without limitation, any proxy material, tenders, options, the
pendency of calls and maturities and the expiration of rights.
7. TERMINATION. This Agreement may be terminated at any time by and
upon the receipt by the Escrow Agent of 10 days' prior written notice of
termination executed by Buyer and the Company directing the distribution of all
property then held by the Escrow Agent under and pursuant to the distribution
provisions of Section 4(c) of this Agreement and such termination notice. This
Agreement shall automatically terminate if and when all Escrow Shares and other
property in the Escrow Account shall have been distributed by the Escrow Agent
in accordance with the terms of this Agreement.
8. CONCERNING THE ESCROW AGENT.
(a) Each party acknowledges and agrees that the Escrow Agent (i) shall
not be responsible for any of the agreements referred to or described herein
(including without limitation the Asset Purchase Agreement), or for determining
or compelling compliance therewith, and shall not otherwise be bound thereby,
(ii) shall be obligated only for the performance of such duties as are expressly
and specifically set forth in this Agreement on its part to be performed, each
of which are ministerial (and shall not be construed to be fiduciary) in nature,
and no implied duties or obligations of any kind shall be read into this
Agreement against or on the part of the Escrow Agent, (iii) shall not be
obligated to take any legal or other action hereunder that might in its judgment
involve or cause it to incur any expense or liability unless it shall have been
furnished with acceptable indemnification, (iv) may rely on and shall be
protected in acting (or, if so requested, refraining from acting) upon and in
accordance with any written notice, instruction (including, without limitation,
wire transfer instructions, whether incorporated herein or provided in a
separate written instruction), instrument, statement, certificate, request or
other document furnished to it hereunder and believed by it to be genuine and to
have been signed or presented by the proper person, and shall have no
responsibility for determining the accuracy thereof, and (v) may consult counsel
satisfactory to it, including in-house counsel, and the opinion or advice of
such counsel in any instance shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in accordance with the opinion or advice of such counsel.
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(b) The Escrow Agent shall not be liable to anyone for any action taken
or omitted to be taken by it hereunder except in the case of the Escrow Agent's
gross negligence or willful misconduct in breach of the terms of this Agreement.
In no event shall the Escrow Agent be liable for indirect, punitive, special or
consequential damage or loss (including but not limited to lost profits)
whatsoever, even if the Escrow Agent has been informed of the likelihood of such
loss or damage and regardless of the form of action.
(c) The Escrow Agent shall have no more or less responsibility or
liability on account of any action or omission of any book-entry depository or
securities intermediary employed by the Escrow Agent than any such book-entry
depository or securities intermediary has to the Escrow Agent, except to the
extent that such action or omission of any book-entry depository or securities
intermediary was caused by the Escrow Agent's own gross negligence, bad faith or
willful misconduct in breach of this Agreement.
(d) The Escrow Agent may resign and be discharged from its duties
hereunder at any time by giving at least 30 days' prior written notice of such
resignation to Buyer and the Company specifying a date upon which such
resignation shall take effect; PROVIDED, HOWEVER, that the Escrow Agent shall
continue to serve until its successor accepts the Escrow Fund. Upon receipt of
such notice, a successor escrow agent shall be appointed by Buyer and the
Company, such successor escrow agent to become the Escrow Agent hereunder on the
resignation date specified in such notice. If a written instrument of acceptance
by a successor escrow agent shall not have been delivered to the Escrow Agent
within 40 days after the giving of such notice of resignation, the resigning
Escrow Agent may at the expense of Buyer petition any court of competent
jurisdiction for the appointment of a successor escrow agent. Buyer and the
Company acting jointly, may at any time substitute a new escrow agent by giving
10 days' prior written notice thereof to the Escrow Agent then acting and by
Buyers' paying all fees and expenses of such Escrow Agent accrued as of such
date.
9. INDEMNIFICATION. Without determining or limiting any rights as
between the Company and Buyer, each of the Company, Buyer and Alloy covenants
and agrees, jointly and severally, to indemnify the Escrow Agent (and its
directors, officers and employees) and hold it (and such directors, officers and
employees) harmless from and against any loss, liability, damage, cost and
expense of any nature incurred by the Escrow Agent arising out of or in
connection with this Agreement or with the administration of its duties
hereunder, including but not limited to reasonable attorney's fees and other
costs and expenses of defending or preparing to defend against any claim of
liability unless and except to the extent such loss, liability, damage, cost and
expense shall be caused by the Escrow Agent's gross negligence, bad faith, or
willful misconduct. The foregoing indemnification and agreement to hold harmless
shall survive the termination of this Agreement and the resignation or removal
of the Escrow Agent.
10. FEES OF ESCROW AGENT. Alloy agrees (i) to pay or reimburse the
Escrow Agent for its reasonable attorneys' fees and expenses incurred in
connection with the preparation of this Agreement and (ii) to pay the Escrow
Agent's compensation for its normal services hereunder in accordance with the
attached Schedule II, which may be subject to change hereafter, provided that
such changes are consistent with changes to fees generally charged to similar
escrow
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accounts maintained by the Escrow Agent. Each of Buyer, Alloy and the Company
(sometimes referred to collectively herein as the "Interested Parties") agree,
jointly and severally, to reimburse the Escrow Agent on demand for all costs and
expenses incurred in connection with the administration of this Agreement or the
escrow created hereby or the performance or observance of its duties hereunder
which are in excess of its compensation for normal services, including without
limitation, payment of any reasonable legal fees and expenses incurred by the
Escrow Agent in connection with the resolution of any Claim made by a party to
this Agreement. Without altering or limiting the joint and several liability of
the Interested Parties under this paragraph and under paragraph 9 of this
Agreement, Buyer, Alloy and the Company agree, as among themselves, that Buyer
shall pay the Escrow Agent's fees for its normal services, and that the Buyer on
the one hand, and the Company on the other, shall each pay one-half of all costs
and expenses incurred by the Escrow Agent. The Escrow Agent shall periodically
xxxx Buyer and the Company for such out of pocket fees and expenses. The Escrow
Fund shall not be available to, and shall not be used by, the Escrow Agent to
set off any obligations of any party hereto owing the Escrow Agent in any
capacity.
11. TAX INDEMNIFICATION.
(a) Without determining or limiting any rights as between the Company
and Buyer, each of Buyer, Alloy and the Company agree, severally, and not
jointly, (i) to assume any and all obligations now or hereafter arising under
any applicable tax law with respect to any payment or distribution of the Escrow
Funds to, or performance of other activities under this Agreement by, such
party, (ii) to instruct the Escrow Agent in writing with respect to the Escrow
Agent's responsibility for withholding and other taxes, assessments or other
governmental charges, and to instruct the Escrow Agent with respect to any
certifications and governmental reporting that may be required under any laws or
regulations that may be applicable in connection with its action as Escrow Agent
under this Agreement, and (iii) to indemnify and hold the Escrow Agent harmless
from any liability or obligation on account of taxes, assessments, additions for
late payment, interest, penalties, expenses and other governmental charges that
may be assessed or asserted against the Escrow Agent in connection with or
relating to any payment made or other activities performed under the terms of
this Agreement, including without limitation any liability for the withholding
or deduction of (or the failure to withhold or deduct) the same, and any
liability for failure to obtain proper certifications or to report properly to
governmental authorities in connection with this Agreement, including costs and
expenses (including reasonable legal fees and expenses), interest and penalties,
to the extent that it relates to such individual party. The foregoing
indemnification and agreement to hold harmless shall survive the termination of
this Agreement and the resignation or the removal of the Escrow Agent.
(b) Buyer, Seller and the Company agree that all earnings, if any, with
respect to the Escrow Fund will be reported by the Escrow Agent as earnings of
the Company whether or not distributed. Buyer, Seller and the Company agree that
promptly after the date hereof, they will each provide the Escrow Agent with a
completed IRS Form W-9 (W-8 in the case of non-US persons) certifying thereon
their employer identification numbers. Buyer, Seller and the Company acknowledge
that withholding of a portion of the earnings on the Escrow Fund may be
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required for federal income tax purposes in the event any party fails to certify
such party's employer identification number to the Escrow Agent.
12. DISPUTES. If any dispute should arise with respect to the payment
or ownership or right of possession of the Escrow Fund, or the duties of the
Escrow Agent hereunder or should any claim be made upon the Escrow Agent or the
Escrow Fund by any third party, the Escrow Agent is authorized and directed to
retain in its possession, without liability to anyone, all or any part of the
Escrow Fund in dispute until such dispute shall have been settled either by
mutual agreement of Buyer and the Company (evidenced by appropriate instructions
in writing to the Escrow Agent signed by Buyer and the Company) or by the final
order, decree or judgment of a court of competent jurisdiction or arbitrabal
panel, with respect to any arbitrated disputes, in the United States of America
(the time for appeal having expired with no appeal having been taken) in a
proceeding to which Buyer and the Company are parties, but the Escrow Agent
shall be under no duty whatsoever to institute or defend any such proceedings.
13. MISCELLANEOUS.
(a) All notices or other communications which are required or permitted
hereunder shall be in writing and shall be deemed given (i) when received by the
addressee if delivered personally or sent by nationally-recognized overnight
courier (ii) when received by the addressee if sent by registered or certified
mail, return receipt requested and postage prepaid, or (iii) when sent by
telecopier, provided that a confirmation copy thereof is sent the same day by
postage prepaid U.S. mail. Notices shall be sent to the addresses given below
for the parties, or to such other address for any party notice of which,
complying with these requirements, is given by that party to all others.
(i) if to the Company then to:
Celebrity Sightings, LLC
0000 Xxx Xxx Xxxxxx
Xxxxxx Xxx Xxx, XX 00000
Attn: Xxxxxx Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Pillsbury Madison & Sutro LLP
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxxxxx, Esquire
Tel: (000) 000-0000
Fax: (000) 000-0000
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and:
RHL Marketing Corporation
000 xxx xx xx Xxx
Xxxxxxx Xxxxxxxxx, XX 00000
(ii) if to Buyer, to:
Alloy Online, Inc.
000 X. 00xx Xxxxxx
Xxx Xxxx, XX 1001
Attn: Xxxxxxx X. Xxxxxxx, President
Tel: (000) 000-0000
Fax: (000) 000-0000
with copies to:
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxx Xxxxxx, Esquire
Fax: (000) 000-0000; and
(iii) if to the Escrow Agent, to:
If by courier:
State Street Bank and Trust Company
Global Investor Services Group - Corporate Trust
0 Xxxxxx xx Xxxxxxxxx - 0xx Xxxxx
Xxxxxx, XX 00000-0000
Attn: Xxxx Xxxxxxxx
Fax: (000) 000-0000
or, if by mail:
State Street Bank and Trust Company
Global Investor Services Group - Corporate Trust
X.X. Xxx 000
Xxxxxx, XX 00000-0000
Attn: Xxxx Xxxxxxxx
Fax: (000) 000-0000
or to such other address as the party to whom notice is to be given may have
furnished to the other parties hereto in writing in accordance herewith.
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(b) COUNTERPARTS. This Agreement may be executed in any number of
counterparts, and each such counterpart hereof shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
(c) GOVERNING LAW. This Agreement will be governed by and construed and
enforced in accordance with the laws of the State of New York without giving
effect to any choice of law or conflicting provision or rule (whether of the
State of New York, or any other jurisdiction) that would cause the laws of any
jurisdiction other than the State of New York to be applied.
(d) WIRING INSTRUCTIONS. All funds, if any, to be paid to or by the
Escrow Agent shall be sent by wire transfer in accordance with the instructions
provided on Schedule III hereto, or by such other method of payment and in
accordance with such instructions as may be given in advance and in writing to
the Escrow Agent, by notice in compliance with paragraph 13(a) of this Escrow
Agreement.
(e) PARTIES IN INTEREST. This Agreement shall be binding upon, inure to
the benefit of, and be enforceable by, the parties hereto and their respective
successors and assigns. Anything contained herein to the contrary
notwithstanding, this Agreement shall not be assigned by any party hereto
without the consent of the other parties hereto.
(f) AMENDMENTS. This Agreement may be amended only by a written
instrument duly executed by the parties hereto.
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(g) HEADINGS. The section and paragraph headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
(h) ENTIRE AGREEMENT. This Agreement and, with respect to the Buyer,
Seller and the Company only, the Asset Purchase Agreement and the Ancillary
Agreements referenced therein, contain the entire agreement among the parties
hereto with respect to the transactions contemplated hereby and supersedes all
prior agreements or understandings, written or oral, among the parties
identified above with respect thereto; PROVIDED, that anything contained herein
to the contrary notwithstanding, the parties hereto agree that the Escrow Agent
shall perform its obligations under this Agreement solely by reference to this
Agreement.
(i) FORCE MAJEURE. The Escrow Agent will not be responsible for delays
or failures in performing its duties resulting from acts beyond its control such
as, but not limited to, acts of God, strikes, lockouts, riots, acts of war,
epidemics, governmental regulations superimposed after the fact, fire,
communication line failures, computer viruses, power failures, earthquakes or
other disasters.
(j) REPRODUCTION OF AGREEMENT. This Agreement and all documents
relating hereto, including, without limitation, (1) consents, waivers and
modifications that may hereafter be executed, and (2) certificates and other
information previously or hereafter furnished, may be reproduced by any
photographic, photostatic, microfilm, optical disk, micro-card, miniature
photographic or other similar process. It is agreed that any such reproduction
shall be admissible in evidence as the original itself in any judicial or
administrative proceeding, whether or not the original is in existence and
whether or not the reproduction was made by a party in the regular course of
business, and that any enlargement, facsimile or further reproduction of such
reproduction shall likewise be admissible in evidence.
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IN WITNESS WHEREOF, the parties hereto have caused this Escrow
Agreement to be executed and delivered on the date first above written.
ALLOY ONLINE, INC.
/s/ Xxxxxxx X. Xxxxxxx
By:____________________________
Name: Xxxxxxx X. Xxxxxxx
Title: Chief Executive Officer
CELEBRITY SIGHTINGS, LLC
/s/ Xxxxxx X. Xxxxxx
By:____________________________
Name: Xxxxxx X. Xxxxxx
Title: Founder
Accepted and Agreed to
as of the Date First Above Written:
STATE STREET BANK AND TRUST COMPANY
AS ESCROW AGENT:
/s/ Chi C. Ma
By:___________________________
Name: Chi C. Ma
Title: Vice President
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SCHEDULE I
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FEES OF ESCROW AGENT
ESCROW AGENT:
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FEES AND EXPENSES:
Acceptance Fee: Waived
Administrative Fee: $3,500.00 per year or part thereof
Out-of-Pocket Expenses: At Cost
Legal Fees: At Cost
