Exhibit 10.32
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (the "Agreement") is made and entered into
effective as of the _____ day of ________________________, 2001 by and among
(a) the persons whose names appear beneath the caption "DEPOSITORS" on the
signature page hereof (such persons being referred to hereinafter
collectively as the "Depositors" and singly as a "Depositor"), (b) C.
Networks L.L.C., a Delaware limited liability company ("CNLLC"), and (c)
Xxxxxxxxx X. Xxxxxx ("Escrow Agent"). Hispanic Television Networks, Inc., a
Delaware corporation (the "Company"), joins herein for the limited purpose of
agreeing to its notification obligations under the first sentences of
Sections 3(a) and (b) herein.
RECITALS:
WHEREAS, each Depositor is the owner of the number of shares of the
common stock, par value $.01 per share ("Common Stock"), of the Company set
forth beneath such Depositor's signature below; and
WHEREAS, CNLLC executed a Subscription Agreement in favor of the
Company on or about the date of this Agreement (the "Subscription Agreement")
pursuant to which CNLLC obligated itself to purchase from the Company shares
of the Common Stock from time to time hereafter; and
WHEREAS, the Depositors agreed to convey to the Company from time to
time hereafter as a contribution to the capital of the Company portions of
the shares being deposited into escrow pursuant to this Agreement as CNLLC
honors its periodic share purchase obligations under the Subscription
Agreement; and
WHEREAS, the Depositors agreed to enter into this Agreement with
regard to the shares that may be conveyed to the Company from time to time
hereafter as a contribution to the capital of the Company;
AGREEMENT:
NOW, THEREFORE, in consideration of the premises and of the mutual
representations, warranties, covenants and agreements set forth herein, and
other good and valuable consideration, the receipt of which is hereby
acknowledged, it is hereby agreed as follows:
1. DESIGNATION OF ESCROW AGENT.
Depositors and CNLLC hereby designate and appoint Escrow Agent to
act as escrow agent in accordance with the terms and conditions hereof. By
his acceptance and execution of this Agreement, Escrow Agent agrees to act as
escrow agent hereunder.
2. ESCROWED ITEMS.
Each Depositor either deposited with Escrow Agent on the date of this
Agreement or shall deposit with Escrow Agent as promptly after the date of this
Agreement as is possible the following items:
(i) one or more stock certificates representing the
number of shares of Common Stock set forth beneath such Depositor's
signature below; and
(ii) 33 stock powers endorsed by such Depositor in blank
regarding such shares of Common Stock; and
(iii) 33 instruments executed by such Depositor each
conveying to the Company as a contribution to the capital of the
Company 1/33 of the shares of Common Stock originally deposited by such
Depositor into escrow as Escrowed Items; and
(iv) 33 letters of instruction to the Company's transfer
agent signed by such Depositor regarding such shares of Common Stock.
The preceding stock certificates, stock powers, conveyance instruments and
letters of instruction are referred to hereinafter collectively as the
"Escrowed Items". The Escrow Agent's obligations hereunder are expressly
conditioned upon the Escrow Agent's receipt of the Escrowed Items. In
addition to the preceding, in connection with the execution of this
Agreement, each Depositor executed in favor of CNLLC a proxy granting to
CNLLC the right to vote all shares of Common Stock represented by the one or
more stock certificate being deposited by such Depositor into escrow as
Escrowed Items so long as such shares have not been conveyed to the Company
as a contribution to the capital of the Company and so long as CNLLC has not
failed to honor one of its periodic obligations under the Subscription
Agreement to purchase 500,000 Class Two Units, as defined in the Subscription
Agreement.
3. DISBURSEMENT OF ESCROWED ITEMS.
(a) (i) Whenever CNLLC has honored one of its periodic
obligations under the Subscription Agreement to purchase 500,000 Class Two
Units (totalling 1,000,000 shares of Common Stock and 500,000 warrants to
purchase Common Stock), the Company shall give written notice of the same to
Escrow Agent. Upon receipt of the written notice required by the preceding
sentence, Escrow Agent shall be authorized to cause and shall cause 1/33 of
the shares of Common Stock originally deposited into escrow as Escrowed Items
by each Depositor to be conveyed to the Company as a contribution to the
capital of the Company, and in this connection Escrow Agent shall be
authorized to undertake and shall undertake (with respect to each Depositor)
the actions set forth in Section 3(b) below.
(ii) Once CNLLC has honored all its periodic
obligations under the Subscription Agreement to purchase 500,000 Class Two
Units (totalling 1,000,000 shares of Common Stock and
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500,000 warrants to purchase Common Stock), the Company shall give written
notice of the same to Escrow Agent. Starting 30 days after the receipt of the
written notice required by the preceding sentence and every 30 days
thereafter until all shares of Common Stock deposited into escrow as Escrowed
Items have been conveyed to the Company, Escrow Agent shall be authorized to
cause and shall cause 1/33 of the shares of Common Stock originally deposited
into escrow as Escrowed Items by each Depositor to be conveyed to the Company
as a contribution to the capital of the Company, and in this connection
Escrow Agent shall be authorized to undertake and shall undertake (with
respect to each Depositor) the actions set forth in Section 3(b) below.
(b) On each occassion on which Escrow Agent is authorized by
Section 3(a)(i) or (ii) above to take the action set forth in this Section
3(b), Escrow Agent shall undertake the following:
(i) submit to the Company's transfer agent one or more stock
certificates representing at least 1/33 of the shares of Common Stock
originally deposited by such Depositor into escrow as Escrowed Items,
together with one of the stock powers endorsed by such Depositor in
blank with the date and the related stock certificate number(s) being
included by Escrow Agent on such stock power and together with one of
the letters of instruction to the Company's transfer agent signed by
such Depositor with the date and the related stock certificate
number(s) being included by Escrow Agent on such letter of instruction;
and
(ii) after receipt from the Company's transfer agent of the
stock certificate issued in the Company's name as treasury stock
representing the shares of Common Stock to be convey to the Company as
a contribution to the capital of the Company (such shares being 1/33 of
the shares originally deposited by such Depositor into escrow as
Escrowed Items), submit to the Company such stock certificate, together
with one of the conveyance instruments executed by such Depositor with
the date being included by Escrow Agent on such conveyance instrument;
and
(iii) after receipt from the Company's transfer agent of the
stock certificate representing the residual shares of Common Stock of
such Depositor not conveyed to the Company, to hold such stock
certificate as an Escrowed Item.
(c) Whenever (i) CNLLC has failed to honor one of its periodic
obligations under the Subscription Agreement to purchase 500,000Class Two
Units, (ii) CNLLC has given the written notice of default required
thereunder, and (iii) the period of time set forth in the Subscription
Agreement for curing CNLLC's failure has expired, the Company shall give
written notice of the same to Escrow Agent. Upon receipt of the written
notice required by the preceding sentence, Escrow Agent shall be authorized
to disburse each Escrowed Item then held by Escrow Agent to the Depositor
that deposited such Escrow Item into escrow pursuant to this Agreement.
(d) If Depositors and CNLLC give joint notice to Escrow Agent
regarding the disbursement of the Escrowed Items, Escrow Agent shall, as soon
as is possible thereafter, disburse the Escrowed Items specified in the
notice in the manner set forth in the notice.
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(e) Notwithstanding anything else contained herein, Escrow
Agent shall be entitled to disburse all or any portion of the Escrowed Items
to the registry of a court of competent jurisdiction pursuant to any
provisions contained herein with regard to interpleader actions.
4. TERMINATION.
Upon disbursement of the Escrowed Items as provided hereinabove,
this Agreement, the escrow created hereby and the Escrow Agent's duties
hereunder shall terminate and be of no further force or effect.
5. ESCROW AGENT'S FEES AND EXPENSE REIMBURSEMENT.
Escrow Agent shall be entitled to no fees for his services
hereunder. However, Escrow Agent shall be entitled to a prompt reimbursement
for all costs and expenditures reasonably incurred in by him in acting as
escrow agent hereunder, one-half from CNLLC and one-half from Depositors (pro
rata based on the number shares of Common Stock separately contributed into
escrow by Depositors).
6. RESPONSIBILITIES OF ESCROW AGENT.
The acceptance by the Escrow Agent of his duties under this
Agreement is subject to the following terms and conditions (which each
Depositor and CNLLC hereby agree shall govern and control the Escrow Agent's
rights, duties and liabilities hereunder):
(a) DUTIES. The Escrow Agent's duties hereunder shall be limited
to (i) the safekeeping of the Escrowed Items, and (ii) the
disbursement of the Escrowed Items in accordance with the
above. The parties hereto expressly agree that there shall be
no claim or cause of action against the Escrow Agent for any
disbursement effected in strict compliance with this
Agreement.
(b) NOT A PARTY TO UNDERLYING TRANSACTION. Each Depositor and
CNLLC hereby acknowledge that the Escrow Agent is not a party
to the transactions underlying this Agreement, and that the
Escrow Agent shall not be required to make any determinations
in respect to any rights or responsibilities thereunder or
with respect to any of their agreements concerning the subject
matter thereof.
(c) STANDARD OF CONDUCT. The Escrow Agent shall not be liable for
any error of judgment, or for any action taken or omitted by
him in good faith regarding the Escrowed Items, except for
gross negligence, bad faith or willful misconduct with respect
to the Escrowed Items or his duties hereunder. Escrow Agent
may consult with an independent attorney of his reasonable
choice. Escrow Agent shall have full and complete
authorization and protection for any actions taken or suffered
by Escrow Agent in good faith and in accordance with the
opinionof such attorney.
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(d) ADVERSE CLAIMS OR DEMANDS. If conflicting demands or
notices are served upon Escrow Agent with respect to this
Agreement within the applicable time limits set forth herein
(if any), then Escrow Agent (a) may not comply with any ofsaid
demands or notices, and (b) may file a suit in an appropriate
interpleader action in a court of competent jurisdiction and
deposit the Escrowed Items with that court pursuant to such
filing. Under those circumstances, Escrow Agent shall not be
liable for damages or injuries to any Depositor or CNLLC or
any other person for such failure to comply. Escrow Agent may
continue to so refuse to comply with such conflicting demands
or notices until either (a) the rights of claimants have been
finally adjudicated by a court of competent jurisdiction, or
(b) the Depositors and CNLLC have resolved the conflict and
have jointly so notified Escrow Agent.
(e) RESOLUTION OF QUESTION OR INTERPRETATION. In the event that
any question or interpretation of any instrument, instruction
or other matter arises in connection with the Escrow Agent's
performance of his duties hereunder, the Escrow Agent shall
request, and the Depositors or CNLLC (as requested by Escrow
Agent) shall deliver, separate or joint written instructions
regarding the same to the Escrow Agent. In performing his
duties under this Agreement, Escrow Agent may rely upon any
notices or instructions given to Escrow Agent under this
Agreement and reasonably believed by Escrow Agent to be
genuine and to have been signed and given by the proper party
or parties. Escrow Agent shall be under no duty to make any
inquiry as to the form, genuineness, proper execution, or
accuracy of any such notice or instructions.
7. INDEMNITY.
Subject to the other provisions of this Agreement, each Depositor and
CNLLC jointly and severally agree to indemnify the Escrow Agent and hold the
Escrow Agent harmless from and against all costs, damages, losses, judgments,
reasonable attorneys' fees, expenses, obligations or liabilities of any kind or
nature which the Escrow Agent may incur or sustain in connection with or arising
under this Agreement; provided that the same is not a result of the Escrow
Agent's gross negligence, bad faith or willful misconduct.
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8. AMENDMENT.
This Agreement may be amended or terminated by agreement between the
Depositors and CNLLC at any time by written notice to the Escrow Agent;
provided, however, that the duties and responsibilities of the Escrow Agent
and the Company may not be increased without their written consent.
9. PARTIES IN INTEREST.
This Agreement shall inure to the benefit of and be binding upon the
Escrow Agent, each Depositor, CNLLC and the Company, and their respective
heirs, beneficiaries, legal representatives, successors and assigns. Nothing
expressed herein is intended or shall be construed to give any person other
than the parties hereto any legal or equitable right, remedy or claim under
or in respect to this Agreement or the Escrowed Items, which are intended to
be for the sole and exclusive benefit of the parties hereto in accordance
with the provisions hereof.
10. NOTICES.
All notices, requests, consents, and other communications hereunder
shall be in writing and shall deemed to have been given if personally
delivered or upon three (3) business days of mailing if mailed, first class,
registered or certified mail, postage prepaid, to a party at the address set
forth beneath their signatures below.
11. GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED, INTERPRETED AND
ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS.
IN WITNESS WHEREOF, the undersigned have set their hands hereunto as
of the first date written above.
"DEPOSITORS"
WOODCREST CAPITAL, LLC
/s/ XXXX XXXXXXX By: /s/ XXXXX XXXXXX
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Xxxx Xxxxxxx
Name:
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/s/ XXXXXXXX XXXXXXX
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Xxxxxxxx Xxxxxxx Title:
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Address: Address:
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Number of Shares: 9,672,537 Number of Shares: 9,546,534
/s/ Xxxxx Xxxxxx /s/ Xxx Xxxxxx
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Xxx Xxxxxx Xxx X. Xxxxxx
Address: Address:
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Number of Shares: 7,705,500 Number of Shares: 3,240,938
/s/ Xxxxxx Xxxxxx
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Xxxxxx X. Xxxxxx
Address:
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Number of Shares: 2,778,823
"CNLLC" "ESCROW AGENT"
By: /s/ Xxxxxx Xxxxxxx /s/ Xxxxxxxxx Xxxxxx
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Xxxxxxxxx X. Xxxxxx
Name:
------------------------------- Address:
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Title:
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Address:
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"COMPANY"
HISPANIC TELEVISION NETWORKS, INC.
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By: /s/ Xxxxxxxx Xxxx
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Title:
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Address:
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CERTIFICATE
Each of the undersigned hereby certifies and acknowledges that the
undersigned has signed and executed the foregoing agreement with multiple
original signature pages at separate locations to be effective immediately
upon signing and that the transmission of a telecopier facsimile of their
respective signatures, each to the other, shall be sufficient to cause the
mutual delivery of this executed agreement in order to bind the parties and
make the agreement effective upon the date of signing. It is further
certified, acknowledged and agreed that the original signature pages are to
be circulated hereafter but that the failure of any party to obtain the
original signature pages hereafter shall not affect the validity and
effectiveness of this agreement which is effective from and after the
execution by all parties and the transmission by telecopier facsimile of the
signature of all parties, each to the other.
IN WITNESS WHEREOF, the parties hereto have signed their names hereto
as of the first date written above.
WOODCREST CAPITAL, LLC
/s/ Xxxx Xxxxxxx By: /s/ Xxxxx Xxxxxx
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Xxxx Xxxxxxx
Name:
/s/ Xxxxxxxx Xxxxxxx ---------------------------
------------------------------------
Xxxxxxxx Xxxxxxx Title:
--------------------------
/s/ Xxxxx Xxxxxx /s/ Xxx Xxxxxx
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Xxx Xxxxxx Xxx X. Xxxxxx
/s/ Xxxxxx Xxxxxx /s/ Xxxxxxxxx Xxxxxx
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Xxxxxx X. Xxxxxx Xxxxxxxxx X. Xxxxxx
C. NETWORKS L.L.C. HISPANIC TELEVISION NETWORKS,
INC.
By: /s/ Xxxxxx Xxxxxxx By: /s/ Xxxxxxxx Xxxx
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Name: Name:
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Title: Title:
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