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EXHIBIT 4.6
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this "Agreement") is made as of March
1, 1999 by and among TELESERVICES INTERNATIONAL GROUP INC., a corporation
incorporated under the laws of the State of Florida (the "Company"), the
Investors signatory hereto (each an "Investor" and together the "Investors"),
and Xxxxxxx Xxxxxx & Green, P.C., (the "Escrow Agent"). Capitalized terms used
but not defined herein shall have the meanings set forth in the Debenture
Purchase Agreement referred to in the first recital.
W I T N E S S E T H:
WHEREAS, each Investor will be purchasing from the Company
Convertible Debentures (each a "Debenture"), at the purchase price set forth in
the Debenture Purchase Agreement (the "Purchase Agreement") dated the date
hereof between the Investor and the Company, which will be issued as per the
terms contained herein and in the Purchase Agreement; and
WHEREAS, it is intended that the purchase of the securities be
consummated in accordance with the requirements set forth by Section 4(2), 4(6)
and/or Regulation D promulgated under the Securities Act of 1933, as amended;
and
WHEREAS, the Company and each Investor have requested that the
Escrow Agent hold the Purchase Price in escrow until the Escrow Agent has
received the Convertible Debentures and certain other closing documents
specified herein;
NOW, THEREFORE, in consideration of the covenants and mutual
promises contained herein and other good and valuable consideration, the receipt
and legal sufficiency of which are hereby acknowledged and intending to be
legally bound hereby, the parties agree as follows:
ARTICLE 1
TERMS OF THE ESCROW
1.1 The parties hereby agree to establish an escrow account
with the Escrow Agent whereby the Escrow Agent shall hold the funds for the
purchase of the Convertible Debentures at the Closing as contemplated by the
Purchase Agreement, and shall hold the relevant documents.
1.2 Upon Escrow Agent's receipt of the executed Purchase
Agreement and the Purchase Price into its attorney trustee account from the
Investor(s), it shall notify the Company, or the Company's designated attorney
or agent, of the amount of funds it has received into its account. The wire
transfer instructions for the Escrow Agent's attorney trustee account are as
follows:
Xxxxxxx Xxxxxx & Green, P.C.
Master Escrow Account
Chase Manhattan Bank
0000 Xxxxxxxx -0xx Xxxxx
Xxx Xxxx, XX 00000
Account No. 000-0-000000
ABA No. 000000000
Account Representative: Lenny Borneo
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1.3 The Company, upon receipt of said notice, shall deliver to
the Escrow Agent the certificates representing the Convertible Debentures to be
issued to each Investor together with:
(i) the original executed Purchase Agreement;
and
(ii) the original executed opinion of, or
reliance letter from, Futro & Xxxxxxxxxxx
LLC, in the form of Exhibit D to the
Purchase Agreement.
In the event that the foregoing items are not in the
Escrow Agent's possession within three (3) Business Days of the Escrow Agent
notifying the Company that the Escrow Agent has custody of the Purchase Price,
then each Investor shall have the right to demand the return of said sum.
1.4 At the Closing, once Escrow Agent has received all of the
foregoing items, it shall immediately wire that amount of funds necessary to
purchase the Convertible Debentures per the written instructions of the Company,
net of 13% of the Purchase Price, which shall be paid as directed by Xxxxx &
Hatch and Co., Inc. and the sum of $2,500 per Investor to the Escrow Agent as
payment in full of the Escrow Agent's fees and expenses hereunder. Once the net
funds (as set forth above) have been sent per the Company's instructions, the
Escrow Agent shall then arrange to have the Convertible Debenture certificates,
a counterpart of the Purchase Agreement and the opinion of counsel delivered as
per instructions from the Investor(s).
ARTICLE 2
MISCELLANEOUS
2.1 No waiver or any breach of any covenant or provision
herein contained shall be deemed a waiver of any preceding or succeeding breach
thereof, or of any other covenant or provision herein contained. No extension of
time for performance of any obligation or act shall be deemed any extension of
the time for performance of any other obligation or act.
2.2 All notices or other communications required or permitted
hereunder shall be in writing, and shall be sent by fax, overnight courier,
registered or certified mail, postage prepaid, return receipt requested, and
shall be deemed received upon receipt thereof, as follows:
(a) TeleServices International Group Inc.
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Chairman
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or to such other person at such other place as the Company shall designate to
the Investor(s) in writing;
(b) if to Escrow Agent, to
Xxxxxxx Xxxxxx & Green, P.C.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxx
Telephone: (000)000-0000
Facsimile: (000) 000-0000
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(c) if to the Investor:
As set forth in the Purchase Agreement
2.3 This Escrow Agreement shall be binding upon and shall
inure to the benefit of the permitted successors and permitted assigns of the
parties hereto.
2.4 This Escrow Agreement is the final expression of, and
contains the entire agreement between, the parties with respect to the subject
matter hereof and supersedes all prior understandings with respect thereto. This
Escrow Agreement may not be modified, changed, supplemented or terminated, nor
may any obligations hereunder be waived, except by written instrument signed by
the parties to be charged or by its agent duly authorized in writing or as
otherwise expressly permitted herein.
2.5 Whenever required by the context of this Escrow Agreement,
the singular shall include the plural and masculine shall include the feminine.
This Escrow Agreement shall not be construed as if it had been prepared by one
of the parties, but rather as if all parties had prepared the same. Unless
otherwise indicated, all references to Articles are to this Escrow Agreement.
2.6 The parties hereto expressly agree that this Escrow
Agreement shall be governed by, interpreted under and construed and enforced in
accordance with the laws of the State of New York. Any action to enforce,
arising out of, or relating in any way to, any provisions of this Escrow
Agreement shall brought through the American Arbitration Association at the
designated locale of New York, New York as is more fully set forth in the
Purchase Agreement.
2.7 The Escrow Agent's duties hereunder may be altered,
amended, modified or revoked only by a writing signed by the Company, each
Investor and the Escrow Agent.
2.8 The Escrow Agent shall be obligated only for the
performance of such duties as are specifically set forth herein and may rely and
shall be protected in relying or refraining from acting on any instrument
reasonably believed by the Escrow Agent to be genuine and to have been signed or
presented by the proper party or parties. The Escrow Agent shall not be
personally liable for any act the Escrow Agent may do or omit to do hereunder as
the Escrow Agent while acting in good faith, and any act done or omitted by the
Escrow Agent pursuant to the advice of the Escrow Agent's attorneys-at-law shall
be conclusive evidence of such good faith.
2.9 The Escrow Agent is hereby expressly authorized to
disregard any and all warnings given by any of the parties hereto or by any
other person or corporation, excepting only orders or process of courts of law
and is hereby expressly authorized to comply with and obey orders, judgments or
decrees of any court. In case the Escrow Agent obeys or complies with any such
order, judgment or decree, the Escrow Agent shall not be liable to any of the
parties hereto or to any other person, firm or corporation by reason of such
decree being subsequently reversed, modified, annulled, set aside, vacated or
found to have been entered without jurisdiction.
2.10 The Escrow Agent shall not be liable in any respect on
account of the identity, authorization or rights of the parties executing or
delivering or purporting to execute or deliver the Purchase Agreement or any
documents or papers deposited or called for thereunder.
2.11 The Escrow Agent shall be entitled to employ such legal
counsel and other experts as the Escrow Agent may deem necessary properly to
advise the Escrow Agent in connection with the Escrow Agent's duties hereunder,
may rely upon the advice of such counsel, and may pay such counsel reasonable
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compensation therefor. THE ESCROW AGENT HAS NOT ACTED AS LEGAL COUNSEL FOR THE
INVESTORS OR THE COMPANY. THE ESCROW AGENT HAS ACTED AS COUNSEL FOR OTHER
PERSONS WHO HAVE PREVIOUSLY PURCHASED CONVERTIBLE DEBENTURES FROM THE COMPANY,
TO WHICH REPRESENTATION THE COMPANY AND THE INVESTORS HEREBY CONSENT.
4.12 The Escrow Agent's responsibilities as escrow agent
hereunder shall terminate if the Escrow Agent shall resign by written notice to
the Company and the Investors. In the event of any such resignation, the
Investor and the Company shall appoint a successor Escrow Agent.
4.13 If the Escrow Agent reasonably requires other or further
instruments in connection with this Escrow Agreement or obligations in respect
hereto, the necessary parties hereto shall join in furnishing such instruments.
4.14 It is understood and agreed that should any dispute arise
with respect to the delivery and/or ownership or right of possession of the
documents or the escrow funds held by the Escrow Agent hereunder, the Escrow
Agent is authorized and directed in the Escrow Agent's sole discretion (1) to
retain in the Escrow Agent's possession without liability to anyone all or any
part of said documents or the escrow funds until such disputes shall have been
settled either by mutual written agreement of the parties concerned by a final
order, decree or judgment or a court of competent jurisdiction after the time
for appeal has expired and no appeal has been perfected, but the Escrow Agent
shall be under no duty whatsoever to institute or defend any such proceedings or
(2) to deliver the escrow funds and any other property and documents held by the
Escrow Agent hereunder to a state or federal court having competent subject
matter jurisdiction and located in the State and City of New York in accordance
with the applicable procedure therefor.
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4.15 The Company and the Investors agree jointly and severally
to indemnify and hold harmless the Escrow Agent and its partners, employees,
agents and representatives from any and all claims, liabilities, costs or
expenses in any way arising from or relating to the duties or performance of the
Escrow Agent hereunder or the transactions contemplated hereby or by the
Purchase Agreement other than any such claim, liability, cost or expense to the
extent the same shall have been determined by final, unappealable judgment of a
court of competent jurisdiction to have resulted from the gross negligence or
willful misconduct of the Escrow Agent.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of March 1, 1999.
TELESERVICES INTERNATIONAL GROUP INC.
By:
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INVESTOR:
By:
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Authorized Signatory
ESCROW AGENT:
XXXXXXX XXXXXX & GREEN, P.C.
By:
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