Exhibit 10
CUSTODIAL ESCROW AGREEMENT
This Custodial Escrow Agreement (the "Escrow Agreement") is entered into
this 2nd day of March, 2001, by and between XXXXXXX X. XXXXXX, an
individual ("Seller"), and NUWAYS, INC., a Delaware corporation ("Buyer"),
and Xxxxxx X. Xxxxxxx, APC, A California limited liability partnership
(the "Escrow Holder"). This Escrow Agreement is executed by the parties
with respect to the sale of Seller's interest in ANTARES CAPITAL CORP. a
Colorado corporation (the"Company").
Buyer shall pay outside of this Escrow, an amount not to exceed Six
Thousand Dollars ($6000.00) for current liabilities of the Company.
Seller and Buyer hereby authorize Escrow Holder, pursuant to this Escrow
Agreement and General Escrow Instructions, attached hereto and
incorporated herein by this reference, to receive from Buyer the sum of
Fifty Thousand and No/100th Dollars ($50,000.00) in the form of a wire
transfer or other readily available funds (the "Funds"), and from the
Seller (1) one more certificates representing a total of One Million Six
Hundred Thousand (1,600,000) shares of Common Stock ("The Shares") of the
"Company" (the "Certificate"), and (2) one or more stock powers for the
transfer of the Certificate endorsed by the Seller in the blank (the
"Stock Power"). Upon verification of the availability of such Funds and
the Shares and that all of the conditions to Closing set forth in
Paragraph 3 and 4 of that Agreement and Plan of Reorganization of the
Seller and the Buyer have been satisfied or waived by the parties thereto,
Escrow Holder Shall deliver to Buyer the Certificate and Stock power and
deliver Twenty Five Thousand Dollars ($25,000.00) of the Funds to Seller
in the form of a cashiers check or wire transfer. The Escrow Holder shall
hold the remainder of the Funds, being Twenty Five Thousand Dollars, in
escrow until the Company's common stock is approved for trading on a stock
exchange other than the pink sheets, at which time Funds shall be paid to
the Seller in the form of a cashier's check or wire transfer on the first
business day of 2002. In exchange for such services, the Escrow Holder
shall receive as compensation and reimbursement of any out-of-pocket
expenses the sum Eight Hundred and No/100th Dollars ($800.00) payable by
Seller from the any Funds payable to the Seller hereunder.
Seller and Buyer hereby expressly agreed that Escrow Holder's sole
responsibility with respect to the transaction contemplated by this Escrow
Agreement shall be to receive the Certificate and Stock Power. The Shares
and Funds, verify the availability of such Funds and provide for the
deliveries of such items as set forth herein. Escrow Holder has no
obligations not specifically set forth herein.
Escrow Holder shall make deliveries and direct all communication relating
to or concerning this Escrow Agreement to Seller and Company and to Buyer
at the following address:
SELLER: XXXXXXX X. XXXXXX XX.XX.
Attn: Xxxxxxx X. Xxxxxx
0000 Xxxxx Xxxxx Xxxxx
Xxxxxxxxx Xxxxxxx, XX 00000
BUYER: NUWAYS, INC.
00000 Xx Xxxx Xxxx, Xxxxx 000
Xxxxxx Xxxxx, XX 00000
C/o Xxx Xxxxxx, CEO
Seller and Buyer hereby agree that Escrow Holder is authorized to act
under the provisions, terms and conditions of the Escrow Agreement and
that Escrow Holder has no duties to act other than those contained herein.
In the event that a dispute arises over the content of this Escrow
Agreement or the actions required herein, the parties agree to consent to
the legal, binding arbitration to resolve said dispute. The parties
further agree that the laws or the State of California shall apply with
respect to any action or proceeding brought hereunder.
In Witness Whereof, the parties executed this Escrow Agreement on the Date
indicated above.
SELLER:
XXXXXXX X. XXXXXX
By: /s/ Xxxxxxx X. Xxxxxx 3/16/01
Dated
BUYER:
NUWAYS, INC.
By: /s/ Xxxxx X. Xxxxxx 3/16/01
Xxxxx X. Xxxxxx, CEO Dated
ESCROW HOLDER:
Xxxxxx X. Xxxxxxx, APC
By______________________ ____________
Xxxxxx X. Xxxxxxx, President Dated
NOTICE OF REPRESENTATION AND RIGHT TO INDEPENDENT COUNSEL
XXXXXXX X. XXXXXX and ANTARES CAPITAL CORP., through its duly authorized
and appointed officers (Seller), hereby acknowledges that Xxxxxx X.
Xxxxxxx, APC has been employed by Buyer to draft this Escrow Agreement and
is not acting in any capacity as attorney or counsel for Seller and the
Company. Furthermore, Seller and the Company acknowledges that Xxxxxx X.
Xxxxxxx APC has informed them of their right to seek the advice of
independent counsel in reviewing the terms and conditions of this Escrow
Agreement and Seller and the Company have had an opportunity to consult
with independent counsel prior to executing this Agreement. By the
signature of its Authorized Representative below, Seller and the Company
acknowledges this notice.
SELLER AND THE COMPANY:
XXXXXXX X. XXXXXX
By: /s/ Xxxxxxx X. Xxxxxx _________
Xxxxxxx X. Xxxxxx Dated
ANTARES CAPITAL CORP.
By:__________________________ _________
XXXXXXX X. XXXXXX, PRESIDENT Dated
GERNERAL ESCROW INSTRUCTIONS
1. All of the provisions, instructions, and conditions set forth
herein shall govern, without reservation, any amended and/or supplemental
instructions furnished to the Escrow. All such amended and/or
supplemental instructions must be in writing, deposited with Escrow
Holder, and approved by all parties to this Escrow.
2. Escrow Holder is not to be held liable for the sufficiency or
correctness as to form, manner or execution, forgeries or false
personages, or validity or any instrument deposited in the Escrow, nor as
to the identity, authority or rights of any person executing the same, nor
for failure to comply with any of the provisions of any agreement,
contract or other documents received by Escrow Holder, and for the
disposition of the same in accordance with written instructions accepted
by Escrow Holder in the Escrow.
3. These Escrow Instruments may be executed in counterparts each
of which so executed shall irrespective of the date and its execution and
delivery, be deemed an original, and said counterparts together shall
constitute one and the same instrument. Fax signatures shall be regarded
as originals.
4. Seller and Buyer, jointly and severally, agree to save, defend
and hold Escrow harmless by reason of any misrepresentation or omission by
Seller and/or Buyer or their agents as to Seller's and/or Buyer's
compliance with rules and/or regulations or any governmental agency,
State, Federal, County or otherwise.
5. Should any controversy arise between the parties hereto with
respect to the subject matter of this Escrow, its terms or conditions, or
conflicting demands are made or notice served upon Escrow Holder or legal
action taken in connection with this escrow, Escrow holder shall not be
required to take any action, but may withhold all moneys, securities,
documents or other things deposited until such controversy shall be
determined by agreement or appropriate legal proceedings, and in such
event Escrow Holder may file suit in interpleader or declaratory relief.
If Escrow Holder is required to respond to any legal summons or
proceedings, or if any action of interpleader or declaratory relief is
brought by Escrow Holder, or if conflicting demands or notice by parties
to Escrow, or jointly and severally agree to pay reasonable escrow fees
and all costs expenses, and reasonable attorney's fee expended or incurred
by Escrow Holder as a result of any of the above described events, and a
lien is hereby created in Escrow Holders favor to cover said terms.
Seller and Buyer agree to defend, indemnify and save Escrow Holder
harmless from all losses and expenses, including reasonable attorney's
fees and court costs sustained by reason of any claim, demand, or action
filed, legal or otherwise, which may in any manner arise out of, or from
this Escrow, before or after closing, notwithstanding anything in these
instructions to the contrary.
6. Seller's and Buyer's signatures on instructions and
instruments pertaining to this Escrow Instructions and amendments, if any,
and/or final closing statements upon request to the attorneys representing
any of the parties in this transaction.
7. Seller's and Buyer's signatures on instructions and
instruments pertaining to the Escrow indicated their unconditional
acceptance and approval of these General instructions and al documents
executed by them, and they hereby acknowledge receipt of a copy of these
instructions in their entirety.
