EXHIBIT 10.30
ESCROW AGREEMENT
BETWEEN XXXXXXXXX XXXXX XXXXXXX & XXXXX,
XXXXXXXXXXXXXXX.XXX INC. AND
NETCHEMISTRY, INC.
ESCROW AGREEMENT
THIS ESCROW AGREEMENT ("Escrow Agreement") is made and entered into
July 26, 2001, by and among XXXXXXXXX XXXXX XXXXXXX & XXXXX, a professional
corporation ("Stradling" or "Escrow Agent"), XXXXXXXXXXXXXXX.XXX INC., an
Arizona corporation ("ATC"), NETCHEMISTRY, INC., a Delaware corporation
("NetChemistry").
RECITALS
A. ATC and NetChemistry have entered into (1) that certain Agreement
for Professional Services dated September 27, 2000 (the "2000 Agreement") which
has expired; (2) that certain NetChemistry Professional Services Agreement,
dated March 9, 2001, which was superseded by that certain Professional
Consulting Services Agreement dated March 21, 2001 (the "March 21, 2001
Development Agreement"), which expires July 31, 2001 (collectively, the "2001
Agreements"); and (3) that certain Agreement for Professional Services dated May
1, 2000, related to managed hosting services (the "Web Hosting Agreement," and
together with the 2000 Agreement and 2001 Agreement, the "Related Agreements"),
which expires April 30, 2002.
B. ATC and NetChemistry desire to establish an escrow account with
Escrow Agent into which ATC shall deposit certain payments to NetChemistry under
the Related Agreements and NetChemistry shall deposit certain work product
produced under the 2000 Agreement and 2001 Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual covenants set forth herein, the parties hereto agree as follows:
1. INITIAL PAYMENTS AND DEPOSITS. Concurrently with the execution
and delivery of this Escrow Agreement,
(a) ATC shall pay $103,275 to NetChemistry as partial payment of
amounts owed pursuant to the Related Agreements;
(b) NetChemistry and ATC shall execute and deliver that certain
Amendment No. 1 to the Web Hosting Agreement (the "Amendment");
(c) ATC shall pay to NetChemistry the "Fees", as defined in the
Amendment, in the additional sum of $45,900; and
(d) ATC and NetChemistry shall execute and deliver to Escrow Agent
counterpart originals, separately executed, of that certain Settlement Agreement
and Release of
even date herewith (the "Settlement Agreement"), together with a "Stipulation
for Dismissal" in the form of Exhibit "A" to the Settlement Agreement.
2. ESCROW ACCOUNT. Stradling will act as Escrow Agent in connection
with this Escrow Agreement. As Escrow Agent, Stradling will establish an escrow
account (the "Escrow Account"), and will denominate the account as follows:
"XxxxXxxxxXxxxxx.xxx Inc. - Escrow."
(a) Upon execution of this Escrow Agreement, ATC shall deliver to
the Escrow Agent a promissory note issued to NetChemistry in the principal
amount of $309,825 (the "Note"), in the form of EXHIBIT F attached hereto, the
payment of which shall be guaranteed by Eagle Capital Group, L.L.C. ("Eagle"),
pursuant to a guaranty in the form of EXHIBIT G attached hereto (the
"Guaranty"). Concurrent with the execution and delivery of this escrow
agreement, ATC and Eagle shall deliver the Guaranty to NetChemistry. Upon ATC
receiving the Verification Notice pursuant to SECTION 2(D) from SilverStream
Software, Inc., ("SilverStream") , ATC shall provide to Escrow Agent funds in
the amount of $309,825 (the "Escrow Funds"), in the form of cash, wire transfer,
or bank or cashier's check immediately payable to NetChemistry, representing
payment of all principal due under the Note. Escrow Agent shall hold the Escrow
Funds in the Escrow Account.
(b) NetChemistry shall deliver to Escrow Agent the software and
related materials described in subsections (1) through (4) below of this Section
2(b) (collectively referred to herein as the "Software Deliverables"). The
Software Deliverables are intended to be, and shall be, all of the software
Utilized to Operate the ATCADVANTAGE Web Site with the exception of the Excluded
Software, as defined below. As used herein, software "Utilized to Operate the
ATCADVANTAGE Web Site" shall include such software, and only such software, as
may be in actual, current use, as of the date of this Escrow Agreement, and
during the term hereof, in the operation and management by NetChemistry of the
websites located at XXX.XXXXXXXXXX.XXX, XXX.XXXXXXXXX.XXX,
XXX.XXXXXXXXXXXXX.XXX, XXX.XXXXXXXXXXXXXX.XXX, and XXX.XXXXXXXXXXXX.XXX
(collectively, the "ATCADVANTAGE Web Site"), and any Work Product, as defined
hereinbelow, including such Work Product developed for ATC by NetChemistry
during the term of this Escrow Agreement. The Software Deliverables shall
consist of the following:
(1) All computer software code (including source code and
object code), routines, processes, procedures, software engines, tools, modules,
rules, methods, and libraries and all patents and patentable subject matter,
copyrights, and copyrightable subject matter and all trade secrets of any kind
developed by NetChemistry under the 2000 Agreement, except for those proprietary
modules which shall remain the property of NetChemistry as follows:
User Authorization
User Authentication
User Administration
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All custom Perl distribution modules
All development tools
All CGI programs which run the following
* page/data display
* navigation
* database access
* data feeds/transmissions
* e-mail
* data transfer
Any NetChemistry copyrighted programs & materials
(2) All computer software code (including source code and
object code), routines, processes, procedures, software engines, tools, modules,
rules, methods, libraries, site plans, design documents, and schemas, and all
patents and patentable subject matter, copyrights, and copyrightable subject
matter and all trade secrets of any kind developed by NetChemistry under the
2001 Agreements.
(3) All computer software code, if any, (including source code
and object code), routines, processes, procedures, software engines, tools,
modules, rules, methods, and libraries and all patents and patentable subject
matter, copyrights, and copyrightable subject matter and all trade secrets of
any kind developed by NetChemistry under the Web Hosting Agreement, except for
those proprietary modules which shall remain the property of NetChemistry as
follows:
User Authorization
User Authentication
User Administration
All custom Perl distribution modules
All development tools
All CGI programs which run the following
* page/data display
* navigation
* database access
* data feeds/transmissions
* e-mail
* data transfer
Any NetChemistry copyrighted programs & materials
(4) Copies, in object code, of all other computer software
proprietary to NetChemistry which is "Utilized to Operate the ATCADVANTAGE Web
Site," together with a non-exclusive, nontransferable, site license to utilize
such software for the sole purpose of continuing to operate the ATCADVANTAGE Web
Site in connection with the business of B2B internet automotive vehicle
remarketing.
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(5) Copies, in object code, of the following third party
computer software (not all of which may necessarily be Utilized to Operate the
ATCADVANTAGE Web Site):
FREEWARE:
o FREEWARE/proftpd (production only)...no license
o FREEWARE/perl...no license
o ImageMagick/ImageMagick perl version .. no license required
o Oracle/Oracle Server...no license required for development
o Microsoft/Internet Explorer...no license required
o Netscape/Netscape Navigator.. no license required
o Microsoft/Web Application Stress Tool.. no license required
LICENSED PRODUCTS PURCHASED BY ATC:
o Silverstream/Silverstream server (production only)
o COM-PRESS/easyaccess2000 (production only)
o Sun/Solaris... licenses come with each server
(The Software Deliverables described in subparagraphs (1), (2), and (3) of this
SECTION 2(B) shall be referred to collectively herein as the "Work Product").
Upon receipt of the Software Deliverables, Escrow Agent shall hold the Software
Deliverables in the Escrow Account.
Except as expressly set forth in this Escrow Agreement, nothing herein contained
shall be deemed to alter by implication the respective ownership and license
rights of the parties established under the Related Agreements.
(c) Except as expressly set forth in subparagraph 2(b)(4) above,
nothing herein contained shall require the delivery by NetChemistry of any third
party software. Without limiting the generality of the foregoing, NetChemistry
shall not be required to deliver any of the following third party software, some
of which may be Utilized to Operate the ATCADVANTAGE Web Site, and other modules
of which may be helpful to the future operation or development of the web site:
o Microsoft/SourceSafe...(license required)
o Sourcegear/SourceOffSite...(license required)
o Quest/Toad...(license required)
o Silverstream/Silverstream developer...(partnership program, license required)
o Microsoft/Windows 2000...(license required)
o Microsoft/Office products (word, excel, outlook, etc.)...(license required)
o Adobe/Photoshop...(license required)
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o Adobe/Imageready...(license required)
o Macromedia/Dreamweaver Ultradev...(license required)
x Xxxxxxx/Xxxxxxx Issue Manager...(license required)
o Microsoft/Visio...(license required)
o Hummingbird/Exceed...(license required)
o Microsoft/NT Server...(license required)
The third party software excluded from delivery into escrow pursuant to the
provisions of this SECTION 2(C), shall be referred to herein as the "Excluded
Software".
(d) ATC and NetChemistry shall engage SilverStream to verify that
the Software Deliverables contain all of the Work Product and NetChemistry
proprietary software Utilized to Operate the ATCADVANTAGE Web Site, in
accordance with the following procedure:
(1) SilverStream shall designate a single individual (the
"Verifying Employee "), who shall be an employee of SilverStream, to conduct the
verification.
(2) The Verifying Employee shall be free of any conflicts of
interest, whether actual, potential, or apparent, (including, without
limitation, any current or past applications for or solicitations of employment,
or other communications with respect to possible employment, with any of the
parties to this agreement), except any such conflicts of interest which may be
waived in writing by ATC and NetChemistry. The Verifying Employee may be
requested by either ATC or NetChemistry to disclose any and all conflicts of
interest, whether actual, potential, or apparent, prior to commencement of
performance of his verification activities hereunder, and to verify the absence
of any. ATC and NetChemistry each hereby represent and warrant to the other
that, prior to the commencement of verification activities hereunder by the
Verifying Employee, they will disclose in writing to the other any known or
suspected conflicts of interest, whether actual, potential, or apparent, on the
part of the Verifying Employee. ATC and NetChemistry shall be prohibited, for a
period of two years from the date of this agreement, from directly or indirectly
employing or hiring, as an employee, consultant, or otherwise, the Verifying
Employee; provided, however, that nothing herein contained shall prevent either
party from engaging SilverStream in any manner whatsoever, so long as such
engagement does not require, induce, or encourage any breach of the obligations
of confidentiality undertaken by the Verifying Employee.
(3) The Verifying Employee shall execute a confidentiality
agreement in favor of NetChemistry and ATC, in form and substance acceptable to
NetChemistry and ATC, with respect to the source code and any other confidential
material proprietary to NetChemistry and ATC provided as part of the Software
Deliverables.
(4) NetChemistry shall make available to the Verifying Employee
access to the operating hardware and software utilized by NetChemistry to
operate the ATCADVANTAGE Web Site. The Verifying Employee shall have the
opportunity, and shall be
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provided with the necessary equipment and facilities, to make copies of any or
all of the software Utilized to Operate the ATCADVANTAGE Web Site, aside from
any Excluded Software, as deemed necessary by the Verifying Employee to verify
that the Software Deliverables constitute all of the software "Utilized to
Operate the ATCADVANTAGE Web Site" with the exception of any Excluded Software.
Any such software copied by the Verifying Employee shall be delivered,
immediately upon completion of copying at the NetChemistry facilities, by the
Verifying Employee, to an authorized agent of Escrow Agent, who shall transport
such copies to the offices of Escrow Agent to be deposited and held in the
Escrow Account.
(5) The parties shall use their best efforts and shall take all
steps necessary and appropriate to arrange for and complete the verification and
the close of escrow no later than August 7, 2001. Unless delayed as a result of
the inability of the Verifying Employee to complete his verification by such
date, final verification shall occur on August 7, 2001. A preliminary
verification shall be conducted as soon as possible following the date of this
Escrow Agreement and before August 7, 2001, so that the only remaining
verification required on August 7, 2001, will be to update the Software
Deliverables with any additional Work Product created during the interim.
Following the preliminary verification, the Verifying Employee shall provide the
parties with written notice of the results of the preliminary verification.
(6) All costs, expenses, and charges incurred for the services
rendered by SilverStream and the Verifying Employee shall be borne by ATC, and
ATC shall indemnify NetChemistry and hold it harmless from and against any such
costs, expenses, or charges.
(e) Upon final verification of the content of the Software
Deliverables, the Verifying Employee shall execute a Verification Notice in the
form attached hereto as EXHIBIT A, and deliver such notice to ATC, NetChemistry,
Escrow Agent, and Eagle. The Verification Notice shall identify any material
exceptions between the Software Deliverables and the modules currently Utilized
to Operate the ATCADVANTAGE Web Site.
(f) As soon as practicable after receipt of the Verification
Notice, NetChemistry and ATC shall discuss the nature and extent of the material
exceptions identified in the Verification Notice, if any. Upon the parties
mutually acceptable resolution of any identified material exceptions, the
parties shall execute the escrow instructions in the form of closing notice
attached hereto as EXHIBIT B, and ATC shall deliver the Escrow Funds forthwith.
The date of the parties' mutually acceptable resolution of any identified
material exceptions shall be referred to as the "Verification Date."
(g) In the event that there are no material exceptions identified
in the Verification Notice, the date of the Verification Notice shall be deemed
to be the "Verification Date", ATC shall deliver the Escrow Funds forthwith, and
the parties shall execute the Closing Notice.
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(h) In the event ATC is unable to deliver the Escrow Funds on the
Verification Date, ATC shall have one business day after receipt of the
Verification Notice within which to deliver the Escrow Funds.
(i) In the event that the parties are not able to agree on a
mutually acceptable resolution of any identified material exceptions, the
parties shall so notify Escrow Agent. As soon as practicable upon receipt of
notification that the parties cannot mutually agree on an acceptable resolution,
or if the Verification Date has not occurred by August 31, 2001, Escrow Agent
shall return (1) to NetChemistry, any Software Deliverables in the Escrow
Account, the counterpart original Settlement Agreement executed by NetChemistry,
and the Stipulation for Dismissal; (2) to ATC, the Note, unless otherwise paid
with Escrow Funds in the Escrow Account, together with the counterpart original
Settlement Agreement executed by ATC; and (3) to ATC, the Escrow Funds, if any.
As a matter with which the Escrow Agent need not be concerned, substantially
contrary with the deliveries specified in the preceding sentence, NetChemistry
shall return to Eagle the Guaranty.
3. DISBURSEMENT OF SOFTWARE DELIVERABLES AND ESCROW FUNDS.
(a) Upon receipt of (A) the Closing Notice duly executed by ATC and
NetChemistry, and (B) the Escrow Funds in exchange for the Note, Escrow Agent
shall deliver or transfer the Escrow Funds to NetChemistry, shall deliver the
Software Deliverables and the Stipulation for Dismissal to ATC, and shall
deliver to ATC and NetChemistry, respectively, the counterpart originals of the
Settlement Agreement, as duly executed by the other party thereto.
(b) Upon receipt of either or both of the Closing Notice duly
executed by ATC and NetChemistry, or the unqualified Verification Notice from
SilverStream, and in the event that the Escrow Funds have not been deposited
with Escrow Agent in exchange for the Note within three business days following
the later of August 7, 2001, or the date of receipt of the Verification Notice,
Escrow Agent shall deliver or transfer (1) to NetChemistry, any Software
Deliverables in the Escrow Account, the counterpart original Settlement
Agreement executed by NetChemistry, the Stipulation for Dismissal, and the Note;
and (2) to ATC, the counterpart original Settlement Agreement executed by ATC.
4.MAINTENANCE OF RECORDS. Escrow Agent shall maintain accurate
records of all transactions hereunder. Promptly after the termination of the
escrow, Escrow Agent shall provide ATC and NetChemistry with a complete and
accurate account of the transactions. ATC and NetChemistry shall also have
access to such books and records relating to the Escrow Account at all
reasonable times during normal business hours upon reasonable notice to the
Escrow Agent; PROVIDED, HOWEVER, that ATC shall have no access to the Software
Deliverables prior to the close of escrow hereunder.
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5. EXCULPATION AND INDEMNIFICATION OF ESCROW AGENT. Each of the
parties hereto agree:
(a) to authorize Escrow Agent, in the event of any conflicting
demands made upon it concerning this Escrow Agreement or the escrow, at its
election, to hold any money, documents, and Software Deliverables deposited
hereunder until it receives mutual instructions by all parties or until a civil
action shall have been fully concluded in a court of competent jurisdiction,
determining the rights of the parties. In the alternative, Escrow Agent may, at
its discretion, at any time, commence a civil action to interplead any
conflicting demands to a court of competent jurisdiction.
(b) to indemnify and hold harmless Escrow Agent for, from, and
against all costs, damages, attorneys' fees, expenses, and liabilities, which it
may incur or sustain in connection with this Escrow Agreement or any court
action arising therefrom and will pay same on demand. This right of
indemnification shall survive the termination of this Escrow Agreement, and/or
the removal or resignation of the Escrow Agent.
(c) that unless otherwise herein expressly provided, the Escrow
Agent shall not be held liable for any action taken or omitted under this Escrow
Agreement, so long as it shall have acted in good faith and without negligence.
The Escrow Agent shall have no responsibility to inquire into or determine the
genuineness, authenticity, or sufficiency of any documents or instruments
submitted to it in connection with its duties hereunder. The Escrow Agent shall
be entitled to deem the signatories of any document or instrument submitted to
it hereunder as being authorized to sign such documents or instruments on behalf
of the party submitting such documents or instruments, and shall be entitled to
rely upon the genuineness of signatures or such signatories without inquiry and
without requiring substantiating evidence. At the option of Escrow Agent,
facsimile copies of documents may be accepted as originals.
(d) to grant Escrow Agent a lien on all escrowed assets for all
fees, expenses, taxes, indebtedness, and other financial obligations that may
become owing to Escrow Agent arising hereunder, including any indemnities
prescribed herein. In all cases, Escrow Agent may deduct any unpaid fees, with
prior notice, before final disbursement of the escrow funds. To the extent that
Escrow Agent deducts any unpaid fees from the final disbursement of escrow
funds, the party otherwise entitled to receipt of the escrow funds shall be
promptly reimbursed by the other party for any amount deducted from the escrow
funds attributable to any failure by the latter to pay its share of the Escrow
Agent's fees.
6.COMPENSATION OF ESCROW AGENT. For all services rendered by Escrow
Agent hereunder, Escrow Agent shall be entitled to receive from ATC and
NetChemistry the fees (the "Fees") described and calculated on the fee schedule
attached as EXHIBIT C hereto. The Fees earned shall be payable on the earliest
to occur of: (i) any date the Escrow Funds and Software Deliverables are
disbursed in accordance with SECTION 3(A) hereof, (ii) the occurrence of the
events set forth in SECTION 2(I) or SECTION 3(B) hereof, or (iii) the
resignation of the Escrow Agent as set forth in SECTION 8 hereof. The Fees shall
be payable by and prorated
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equally among ATC and NetChemistry. To the extent such fees and expenses are not
paid by the undersigned, the foregoing shall be paid from the cash in the Escrow
Funds after written notice from the Escrow Agent to the undersigned.
7.FURTHER ASSURANCES. From time to time, on and after the date
hereof, the parties shall deliver, or cause to be delivered, to Escrow Agent
such further documents and instruments and shall do any further acts, or cause
such further acts to be done as Escrow Agent shall reasonably request (it being
understood that Escrow Agent shall have no obligation to make any such request)
to carry out more effectively the provisions and purposes of this Escrow
Agreement, to evidence compliance herewith or to assure itself that it is
protected in acting hereunder.
8.RESIGNATION. Escrow Agent may resign at any time and be
discharged from its duties as Escrow Agent hereunder by giving the other parties
hereto at least fifteen (15) business days' notice hereof. As soon as
practicable after its resignation, Escrow Agent shall turn over to a successor
Escrow Agent appointed jointly by ATC and NetChemistry all monies and property
held hereunder (less such amount as Escrow Agent is entitled to retain pursuant
to SECTION 5) upon presentation of the document appointing the new Escrow Agent
and its acceptance thereof. If no new Escrow Agent is so appointed within a
thirty (30) day period following such notice of resignation, Escrow Agent may
deposit the aforesaid monies and property with any court it deems appropriate,
or may return the materials deposited to the parties who originally deposited
such materials with Escrow Agent.
9.ADDITIONAL AGREEMENTS OF ATC AND NETCHEMISTRY. As additional
covenants effective only as between ATC and NetChemistry, and with which Escrow
Agent need not be concerned, ATC and NetChemistry agree as follows:
(a) CONDITIONAL STAY OF FURTHER PROCEEDINGS. All proceedings in
American Arbitration Association, Orange County, California, Demand for
Arbitration, entitled NETCHEMISTRY, INC., V. XXXXXXXXXXXXXXX.XXX, ET. AL, filed
July 13, 2001 (the "Litigation") shall be stayed and no further pleadings filed
or motions will be urged until any of the following occur: (1) the escrow closes
hereunder and the Stipulation for Dismissal has been filed, or (2) escrow is
terminated without closing due to the failure of the conditions necessary to
closing; or (3) August 31, 2001.
(b) COMPLETION OF SERVICES. NetChemistry shall continue to provide,
through and including August 7, 2001, the services pursuant to the Professional
Consulting Services Agreement dated March 21, 2001, as directed by a
representative of ATC through an individual specified by NetChemistry, in the
manner provided for in and in accordance with the March 21, 2001, Development
Agreement. On August 7, 2001, or as soon as practicable thereafter, NetChemistry
shall deliver the Work Product (as defined in that agreement) to the Escrow
Agent, to be disbursed by the Escrow Agent to ATC under the terms and conditions
set forth herein.
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(c) SUPPLEMENTAL SERVICES. NetChemistry shall provide such services
as may be requested by ATC and as may be reasonably necessary or appropriate to
assist ATC in the transition of the operation and management of the ATCADVANTAGE
Web Site from NetChemistry to ATC. Without limiting the generality of the
foregoing, NetChemistry shall provide to ATC documentation as to the directory
structures utilized in the operation of the ATCADVANTAGE Web Site together with
installation instructions as and to the degree requested by ATC. To the extent
that ATC timely directs NetChemistry to engage in such activities during the
term of the existing development obligations of NetChemistry under the March 21,
2001 Development Agreement, ending on August 7, 2001 (as and to the extent such
services can be performed prior to the close of escrow hereunder), in lieu of
some portion or all of the development services otherwise being provided during
such term, such services shall be performed by NetChemistry at no additional
charge to ATC except for any extra out-of-pocket expenses incurred. As and to
the extent such services are requested either following August 7, 2001, or,
during the term of this Escrow Agreement, in addition to services being provided
under the March 21, 2001 Development Agreement, ATC shall pay to NetChemistry,
in advance, NetChemistry's charges at its then prevailing rates.
(d) NONSOLICITATION. ATC shall be prohibited, for a period of two
years from the date of this Escrow Agreement, from directly or indirectly
employing or hiring, as an employee, consultant, or otherwise, any person who is
an employee of NetChemistry as of the date of this Escrow Agreement or at any
time within the period ending two years from the date of this Escrow Agreement.
(e) REPRESENTATIONS AND WARRANTIES OF NETCHEMISTRY. NetChemistry
hereby represents and warrants to ATC as follows:
(1) The Software Deliverables as delivered to ATC at the close
of escrow hereunder, together with the Excluded Software, shall constitute all
of the software in actual, current use, as of the date of this Escrow Agreement,
and during the term of this Escrow Agreement, in the operation and management by
NetChemistry of the websites located at XXX.XXXXXXXXXX.XXX, xxxxxxxxx.xxx,
XXX.XXXXXXXXXXXXX.XXX, XXX.XXXXXXXXXXXXXX.XXX, and XXX.XXXXXXXXXXXX.XXX.
10. CONSENT TO SERVICE OF PROCESS. Each of the parties hereto
hereby irrevocably consents to the jurisdiction of the courts of the State of
California, in the County of Orange, and of any federal court located in such
state and county in connection with any action, suit, or other proceeding
arising out of or relating to this Escrow Agreement or any action taken or
omitted hereunder.
11. NOTICES. Unless otherwise provided herein, any notice, offer,
exercise of rights or other communication required or permitted to be given
hereunder shall be in writing and shall be given by registered or certified
mail, confirmed facsimile or telecopy, overnight delivery service such as
Federal Express if a receipt is obtained showing delivery, at such party's
address set forth next below or such other address as such party may hereafter
specify
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by notice to the other parties hereto, or by actual personal delivery. Any
notice or other communication shall be deemed to have been given as of the date
so personally delivered or transmitted by confirmed telecopy or like
transmission, on the date of delivery shown on the receipt when sent by
overnight delivery service, or on the date shown on the return receipt for
delivery or refusal when given by registered or certified mail. Address and fax
numbers for such notice are as follows:
If to Escrow Agent: Xxxxxxxxx Xxxxx Xxxxxxx & Xxxxx
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
Confirming No: (000) 000-0000
If to ATC: XxxxXxxxxXxxxxx.xxx Inc.
00000 Xxxxx Xxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxxxxxx
Facsimile: (000) 000-0000
Confirming No: (000) 000-0000
with a copy to:
Xxxxxxxxx Traurig, LLP
0000 X. Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxx
Facsimile: (000) 000-0000
Confirming No.: (000) 000-0000
If to NetChemistry: NetChemistry, Inc.
0000 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxx
facsimile: (000) 000-0000
confirming no: (000) 000-0000
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with a copy to:
Xx Xxxxxxx, Esq.
Xxxxx & Xxxxxx
000 Xxxxx Xxxxxxxxx
Xxxxx 0000
Xxxxx Xxxx, XX 00000
facsimile: (000) 000-0000
confirming no: (000) 000-0000
12. MISCELLANEOUS.
(a) BINDING NATURE OF ESCROW AGREEMENT; NO ASSIGNMENT. This Escrow
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective heirs, successors, and assigns, except that no party may
assign, delegate, or transfer its rights or obligations under this Escrow
Agreement without the prior written consent of the other parties hereto. Any
assignment, delegation, or transfer made in violation of this SECTION 12(A)
shall be null and void.
(b) CONTROLLING LAW. This Escrow Agreement and all questions
relating to its validity, interpretation, performance, and enforcement shall be
governed by and construed in accordance with the laws of the State of
California, notwithstanding any California or other conflict-of-law provisions
to the contrary. The laws of the State of California and the rules and
regulations of the California Bar Association shall govern the performance and
obligations of Escrow Agent, and any and all conflicts arising from or related
to the performance of Escrow Agent's duties and obligations hereunder,
notwithstanding any California or other conflict-of-law provisions to the
contrary.
(c) HEADINGS. The headings in this Escrow Agreement are for the
purposes of reference only and shall not limit or otherwise affect any of the
terms hereof.
(d) ENTIRE ESCROW AGREEMENT. This Escrow Agreement contains the
entire understanding among the parties hereto with respect to the subject matter
hereof and supersedes all prior and contemporaneous agreements, understandings,
inducements, and conditions, express or implied, oral or written, except as
herein contained. The express terms hereof control and supersede any course of
performance and/or usage of the trade inconsistent with any of the terms hereof.
This Escrow Agreement may not be modified or amended other than by an agreement
in writing.
(e) REGARDING THE ESCROW AGENT. ATC and NetChemistry each
understand and acknowledge that Escrow Agent is a professional corporation
engaged in the practice of law and that its duties as Escrow Agent hereunder
arise from its contemporaneous association with and bona fide client
relationship with NetChemistry and Xxxxxx Xxxxxxxxxx, the principal
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stockholder of NetChemistry. ATC and NetChemistry each understand and
acknowledge that Escrow Agent has apprised them of the provisions of Rule 3-310
of the Rules of Professional Conduct of the State Bar of California, a copy of
which is attached hereto as EXHIBIT E. Each of ATC and NetChemistry hereby
consent to Escrow Agent's performance as Escrow Agent with respect to this
Escrow Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this
Escrow Agreement as of the day and year first above written.
XXXXXXXXXXXXXXX.XXX INC.
By: /s/ XXXX X. XXXXXXX
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Name: XXXX X. XXXXXXX
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Title: SECRETARY
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NETCHEMISTRY, INC.
By: /s/ XXXXXX XXXXXXX XXXXXX III
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Name: XXXXXX XXXXXXX XXXXXX III
---------------------------------------------
Title: CHIEF EXECUTIVE OFFICER
--------------------------------------------
XXXXXXXXX XXXXX XXXXXXX & XXXXX
By: /s/ XXXX X. XXXXX
-----------------------------------------------
Name: XXXX X. XXXXX
---------------------------------------------
Title: SHAREHOLDER
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