ESCROW AGREEMENT
THIS ESCROW AGREEMENT (the "Escrow Agreement") is entered
into as of this 12th day of February 1997 between XXXXX XXXXXXXX
ENTERTAINMENT, INC., a Colorado corporation ("JNE"), AMERINET
FINANCIAL SYSTEMS, INC., a Florida corporation ("AFSI") and MRC
LEGAL SERVICES CORPORATION dba the Law offices of M. Xxxxxxx Xxxxxx,
Esq., as escrow agent (the "Escrow Agent").
R E C I T A L S
A. As of October 2, 1996 JNE, AFSI, ANFS, Inc. a
Delaware corporation ("ANFS") and Real Estate Television Network,
Inc., a Nevada corporation ("RETN") entered into an Agreement and
Plan of Reorganization (the "Agreement") providing for the merger of
RETN with and into ANFS. Unless otherwise set forth herein,
capitalized terms used herein shall have the meaning as set forth in
the Agreement; and
B. In connection with the merger, AFSI would initially
issue to JNE up to an aggregate of 1,000,000 shares of AFSI Series A
Preferred Stock (the "AFSI Stock"), a total of 400,000 of which
would be subject to a "lock-up" agreement to be released to JNE upon
the occurrence of certain contingencies. Up to an additional
400,000 shares of AFSI Series A Preferred Stock would be issued to
JNE upon the occurrence of certain contingencies.
C. Although a closing of the transaction represented by
the Agreement has not yet occurred, the parties are desirous that
the certificates representing 100% of the issued and outstanding
capital stock of RETN (the "RETN Stock") and the certificates
representing the AFSI Stock be held and released in accordance with
the terms and conditions of this Escrow Agreement. All other terms
and conditions of the Agreement shall remain in place and shall be
supplemented by, and not supplanted by, this Escrow Agreement.
D. Escrow Agent has agreed to act as the escrow agent
hereunder, in accordance with the terms and conditions set forth in
this Escrow Agreement.
NOW THEREFORE, for and in consideration of the foregoing and
of the mutual covenants and agreements hereinafter set forth, the
parties hereto hereby agree as follows:
1. Appointment of Escrow Agent. AFSI and JNE
(collectively, the "Parties") hereby mutually appoint and designate
the Escrow Agent to receive, hold and release, as escrow agent, the
RETN Stock and the AFSI Stock, and the Escrow Agent hereby accepts
such appointment and designation.
2. Escrow Delivery. On or before February 14, 1997, JNE
shall deliver or cause to be delivered certificates representing the
RETN Stock to the Escrow Agent and AFSI shall deliver or cause to be
delivered certificates representing the AFSI Stock to the Escrow Agent.
3. Conditions of Escrow.
3.1 The Escrow Deposit. Escrow Agent shall hold and
release the RETN Stock and the AFSI Stock as follows:
a. Release of RETN Stock From Escrow. Upon the occurrence of
any of the following events, the Escrow Agent shall (i) provide
notification to AFSI and JNE as set forth herein of the occurrence
of any such event and instruct AFSI to complete the filing of merger
documents of RETN with and into ANFS, and (ii) provided that the
Escrow Agent has not received an affidavit from AFSI or JNE,
notarized and signed under penalty of perjury, to the effect that
such an event has not occurred (in which case the Parties shall
proceed under Section 3.1(c) hereof), and upon the expiration of
five days from the date the notice is deemed given to AFSI and JNE
pursuant to Section 6 hereof, release and distribute the RETN Stock
as follows:
i. to JNE or AFSI, as the case may be, pursuant to joint
written instructions executed by JNE and AFSI; or
ii. to JNE or AFSI, as the case may be, pursuant to any
"final order" of a court of competent jurisdiction, any such order
being deemed to be "final" if (i) such order has not been reserved,
stayed, enjoined, set aside, annulled or suspended, (ii) no request
for a stay, suspension or an injunction, petition for
reconsideration or appeal, or sua sponte action with comparable
effect is pending with respect to the order, and (iii) the time for
filing any such request, petition or appeal or further taking of any
such sua sponte action has expired; or
iii. to AFSI or ANFS upon the receipt by the Escrow Agent of
written notification from AFSI that it has received, after the date
hereof, a minimum of $1,500,000 (as net proceeds) in equity
financing, or upon the receipt by the Escrow Agent of other
documentary evidence of the receipt and acceptance by AFSI, after
the date hereof, of a minimum of $1,500,000 (as net proceeds) in
equity financing; or
iv. to AFSI or ANFS upon receipt of written notification
from AFSI that it has determined, in its sole discretion, that ANFS
and/or AFSI has adequate financing to fund the operations of RETN
(the "AFSI Option"); or
v. to AFSI or ANFS on February 1, 1998.
b. Release of AFSI Stock From Escrow. Upon the
occurrence of any of the following events, the Escrow Agent shall
(i) provide notification to AFSI and JNE as set forth herein of the
occurrence of any such event and instruct AFSI to complete the
filing of merger documents of RETN with and into ANFS, and (ii)
provided that the Escrow Agent has not received an affidavit from
AFSI or JNE, notarized and signed under penalty of perjury, to the
effect that such an event has not occurred (in
which case the Parties shall proceed under Section 3.1(c) hereof),
and upon the expiration of five days from the date the notice is
deemed given to AFSI and JNE pursuant to Section 6 hereof, release
and distribute the AFSI Stock as follows:
i. to JNE or AFSI, as the case may be, pursuant to joint
written instructions executed by JNE and AFSI; or
ii. to JNE or AFSI, as the case may be, pursuant to any
"final order" of a court of competent jurisdiction, any such order
being deemed to be "final" if (i) such order has not been reserved,
stayed, enjoined, set aside, annulled or suspended, (ii) no request
for a stay, suspension or an injunction, petition for
reconsideration or appeal, or sua sponte action with comparable
effect is pending with respect to the order, and (iii) the time for
filing any such request, petition or appeal or further taking of any
such sua sponte action has expired; or
iii. to JNE upon the receipt by the Escrow Agent of the
written notification referred to in Section 3.1(a)(iii) above, or
upon receipt of other documentary evidence of the receipt and
acceptance by AFSI, after the date hereof, of a minimum of
$1,500,000 (as net proceeds) in equity financing; or
iv. to JNE on February 1, 1998; or
v. to JNE upon the exercise by AFSI or ANFS of the AFSI
Option as defined above.
c. Conflicting Instructions. If a bona fide controversy
arises between the Parties concerning the release of either the RETN
Stock of the AFSI Stock hereunder, they shall notify the Escrow
Agent. In that event (unless the Escrow Agent determines in good
faith that a bona fide controvery does not exist) (or, in the
absence of such notification, if in the good faith judgment of the
Escrow Agent such a bona fide controversy exists), then,
notwithstanding any other provision hereof, the Escrow Agent shall
not resolve such controversy or take any action but shall be
required to await resolution of the controversy by joint
instructions from the Parties or by order of a court of competent
jurisdiction. If a suit is commenced against the Escrow Agent, it
may answer by way of interpleader and name JNE, RETN, AFSI and/or
ANFS as additional parties to such action, and the Escrow Agent may
tender the RETN Stock and/or the AFSI Stock into such court for
determination of the respective rights, titles and interests of the
Parties. Upon such tender, the Escrow Agent shall be entitled to
receive from the Parties its reasonable attorneys' fees and expenses
incurred in connection with said interpleader action or in any
related action or suit. As between JNE and AFSI, such fees,
expenses and other sums shall be paid by the party which fails to
prevail in the proceedings brought to determine the appropriate
distribution of the RETN Stock or the AFSI Stock, as the case may
be.
If and when the Escrow Agent shall so interplead such Parties,
or either of them, and deliver the RETN Stock and/or the AFSI Stock
to the clerk of such court, all of its duties hereunder shall cease,
and it shall have no further obligation in this regard. Nothing
herein shall prejudice any right or remedy of the Escrow Agent.
4. Concerning Escrow Agent
4.1 Duties. Escrow Agent undertakes to perform all
duties which are expressly set forth herein; provided, however, that
the Escrow Agent shall not be required to make or be liable in any
manner for its failure to make any determination under the Agreement
or any other agreement, including whether any of JNE, AFSI and/or
ANFS is entitled to delivery of the RETN Stock and/or the AFSI Stock
under the Agreement.
4.2 Indemnification.
a. Escrow Agent may rely upon and shall be protected in
acting or refraining from acting upon any written notice,
instructions or request furnished to it hereunder and reasonably
believed by it to be genuine and authorized.
b. Escrow Agent shall not be liable for any action taken
by it in good faith and without gross negligence or wilful
misconduct, and believed by it to be authorized or within the rights
or powers conferred upon it by this Escrow Agreement, and may
consult with counsel of its own choice and shall have full and
complete authorization and protection for any action taken or
suffered by it hereunder in good faith and in accordance with the
opinion of such counsel.
c. JNE and AFSI hereby jointly and severally agree to
indemnify the Escrow Agent for, and hold the Escrow Agent harmless
against, any loss, liability or expense incurred without gross
negligence or wilful misconduct or bad faith on the part of the
Escrow Agent, arising out of or in connection with the Escrow
Agent's entering into this Escrow Agreement and carrying out the
Escrow Agent's duties hereunder, including, without limitation,
costs and expenses of defending the Escrow Agent against any claim
or liability with respect thereto.
d. Escrow Agent shall have no implied obligations or
responsibilities hereunder, nor shall it have any obligation or
responsibility to collect funds or seek the deposit of money or
property.
4.3 Other Matters. Escrow Agent (and any successor
escrow agent or agents) reserves the right to resign as the Escrow
Agent at any time, provided fifteen (15) days' prior written notice
is given to the other parties hereto, and provided further that a
mutually acceptable successor escrow agent(s) agrees in writing to
serve as escrow agent hereunder within such fifteen (15)-day period.
The Escrow Agent may petition any court in the State of California
having jurisdiction to designate a successor Escrow Agent. The
resignation of the Escrow Agent (and any successor escrow agent or
agents) shall be effective only upon delivery of the RETN Stock
and/or the AFSI
Stock, as the case may be, to the successor escrow
agent(s). The Parties reserve the right to jointly remove the
Escrow Agent at any time, provided fifteen (15) days' prior written
notice is given to the Escrow Agent. In the event of litigation or
dispute by the Parties in which the performance of the duties of the
Escrow Agent is at issue, the Escrow Agent shall take no action
until such action is agreed in writing by the Parties, or until
receipt of any final order by a court of competent jurisdiction
directing the Escrow Agent to take such action.
5. Termination. This Escrow Agreement shall be
terminated upon the release of the RETN Stock and the AFSI Stock in
accordance with the terms and conditions hereof, or otherwise by
written mutual consent signed by all parties hereto.
6. Notice. All notices, demands, requests, or other
communications which may be or are required to be given, served or
sent by any party to any other party pursuant to this Escrow
Agreement shall be in writing and shall be hand delivered (including
delivery by courier) or mailed by first-class, registered or
certified mail, return receipt requested, postage prepaid, addressed
as follows:
IF TO JNE:
Xxxxx Xxxxxxxx Entertainment, Inc.
0000 Xxxxxx Xxxx., Xxxxx 000
Xxx Xxxxxxx, XX 00000
Attn: Xxx Xxxxxxxx, President
Facsimile No.: 000-000-0000
IF TO AFSI:
AmeriNet Financial Systems, Inc.
0000 Xxxxxx Xxxxxx Xxxx., Xxxxx 000
Xxxxxxx, XX 00000
Attn: Xxxx Pembroke, President
Facsimile No.: 000-000-0000
With a copy to:
Xxxx X. Xxxxx, Esq.
AmeriNet Financial Systems, Inc.
0000 Xxx Xxxxxxx
Xxx Xxxx, XX 00000
Facsimile No.: 000-000-0000
IF TO THE ESCROW AGENT:
Law Offices of M. Xxxxxxx Xxxxxx, Esq.
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
Attn: M. Xxxxxxx Xxxxxx, Esq.
Facsimile No.: 000-000-0000
or such other address as the addressee may indicate by written
notice to the other parties. Each notice, demand, request or
communication which shall be given or made in the manner described
above shall be deemed sufficiently given or made for all purposes at
such time as it delivered to the addressee (with the return receipt,
the delivery receipt or the affidavit of messenger being deemed
conclusive but not exclusive evidence of such delivery) or at such
time as delivery is refused by the addressee upon presentation.
7. Benefit and Assignment. This Escrow Agreement shall
be binding upon and shall inure to the benefit of the parties hereto
and their respective successors and assigns as permitted hereunder.
No person or entity other than the parties hereto is or shall be
entitled to bring any action to enforce any provision in this Escrow
Agreement against any of the parties hereto, and the covenants and
agreements set forth in this Escrow Agreement shall be solely for
the benefit of, and shall be enforceable only by, the parties hereto
or their respective successors and assigns this Escrow Agreement or
any rights hereunder without the prior written consent of the
parties hereto.
8. Entire Agreement; Amendment. This Escrow Agreement
contains the entire agreement among the parties with respect to the
subject matter hereof and supersedes all prior oral or written
agreements, commitments or understandings with respect to such
matters. This Escrow Agreement may not be changed orally, but only
by an instrument in writing signed by the party against whom
enforcement of any waiver, change, modification, extension or
discharge is sought.
9. Headings. The headings of the sections and
subsections contained in this Escrow Agreement are inserted for
convenience only and do not form a part or affect the meaning,
construction or scope thereof.
10. Governing Law; Venue. This Escrow Agreement shall be
governed and constructed under and in accordance with the laws of
the State of California (but not including the conflicts of laws and
rules thereof). For purposes of any action or proceeding involving
this Escrow Agreement each of the parties to this Escrow Agreement
expressly submits to the jurisdiction of the federal and state
courts located in the State of California and consents to the
service of any process or paper by registered mail or by personal
service within or without the State of California in accordance with
applicable law, provided a reasonable time for appearance is allowed.
11. Signature in Counterparts. This Escrow Agreement may
be executed in separate counterparts, none of which need contain the
signature of all parties, each of which shall be deemed to be an
original and all of which taken together constitute one and the same
instrument. It shall not be necessary in making proof of this
Escrow Agreement to produce or account for more than the number of
counterparts containing the respective signatures of, or on behalf
of, all of the parties hereto.
12. Attorney's Fees. Should any action be commenced
between the parties to this Agreement concerning the matters set
forth in this Agreement or the right and duties of either in
relation thereto, the prevailing party in such action shall be
entitled, in addition to such other relief as may be granted, to a
reasonable sum as and for its Attorney's Fees and Costs.
13. Fees and Expenses of Escrow Agent. Except as may
otherwise be provided in Section 3(c) and 4.2 hereof,
notwithstanding any other provision hereof, all fees of the Escrow
Agent hereunder shall be paid by JNE except with respect to the
first $500 of such fees, which shall be borne equally as between JNE
and AFSI, and all out-of-pocket expenses of the Escrow Agent shall
be borne equally by JNE and AFSI.
IN WITNESS WHEREOF, each of the parties has caused this
Escrow Agreement to be duly executed and delivered in its name and
on its behalf, all as of the date and year first above written.
XXXXX XXXXXXXX ENTERTAINMENT, INC.
a Colorado corporation ("JNE")
By: /s/Xxx Xxxxxxxx
Xxx Xxxxxxxx, President
AMERINET FINANCIAL SYSTEMS, INC., a
Florida corporation ("AFSI")
By: /s/Xxxx Pembroke
Xxxx Pembroke, President
MRC LEGAL SERVICES CORPORATION, a California corporation
dba The Law Offices of M. Xxxxxxx Xxxxxx, Esq. ("ESCROW AGENT")
By: /s/M. Xxxxxxx Xxxxxx
M. Xxxxxxx Xxxxxx, President
