EXHIBIT A-1. ESCROW AGREEMENT BETWEEN INCOMNET, INC., XXXX XXXXXXXXXX AND XXXXX
X. XXXXXXX, DATED APRIL 25, 1997
ESCROW AGREEMENT
ESCROW AGREEMENT (this "Agreement"), dated as of April 25, 1997, by
and among Incomnet, Inc., a California corporation (the "Purchaser"), Xxxx X.
Xxxxxxxxxx (the "Escrow Agent") and the party who has executed this Agreement as
the Seller (the "Seller").
RECITALS
A. Simultaneously with the execution of this Agreement, the Seller
has entered into a Agreement, dated as of the date hereof (the "Purchase
Agreement"), pursuant to which the Seller has agreed to sell to the Purchaser
certain shares of the Common Stock of California Interactive Computing, Inc.
(the "Shares").
B. The Escrow Agent is willing to act as escrow agent pursuant to
the terms of this Agreement with respect to the Purchase Price (as described in
Section 1.2 of the Purchase Agreement) to be paid for the Shares and the
delivery of one or more stock certificates representing the Shares registered in
the name of the Seller as set forth in the Purchase Agreement (referred to
herein as the "Share Certificates" and, together with the Purchase Agreement and
the Purchase Price, the "Consideration").
C. Upon the closing of the transaction contemplated by the Purchase
Agreement (the "Closing") and the occurrence of an event described in Section 2
below, the Escrow Agent shall cause the distribution of the Consideration in
accordance with the terms of this Agreement.
D. All capitalized terms used but not defined herein shall have the
meanings ascribed thereto in the Purchase Agreement.
NOW, THEREFORE, IT IS AGREED:
1. DEPOSIT OF CONSIDERATION.
(a) The Purchaser shall deliver to the Escrow Agent (i) the Purchase
Agreement or a counterpart thereof signed by the Purchaser, (ii) this Escrow
Agreement or a counterpart thereof signed by the Purchaser, (iii) funds
specified in the Purchase Agreement to be paid by the Purchaser to the Seller,
and (iv) instructions for payment of the funds deposited by the Purchaser with
the Escrow Agent to the Seller.
4
(b) The Seller shall deliver to the Escrow Agent (i) the Purchase Agreement
or a counterpart thereof signed by the Seller and (il) the Shares properly
signed over to the Purchaser.
(c) Until termination of this Agreement as set forth in Section 2, all
additional Consideration paid by or which becomes payable between the Purchaser
and the Seller shall be deposited with the Escrow Agent.
(d) The Escrow Agent agrees to hold the Consideration received by it in
accordance with the terms and conditions set forth herein until it has received
all of the Consideration.
(e) The Seller and the Purchaser understand that all Consideration
delivered to the Escrow Agent pursuant to Section 1(a) and 1(b) shall be held in
the above referenced escrow account until the Closing. The Purchase Price and
other consideration will be returned promptly to the Purchaser if all of the
Consideration is not received on or before April 31, 1997. After all of the
Consideration has been received by the Escrow Agent, the parties hereto hereby
authorize and instruct the Escrow Agent to promptly effect the Closing.
2. TERMS OF ESCROW.
(a) The Escrow Agent shall hold the Consideration in escrow
until the earlier to occur of (i) the receipt by the Escrow Agent of all of the
Consideration from the Purchaser and the receipt by the Escrow Agent of the
certificate ("Share Certificate") representing all of the Shares, duly endorsed
with valid signatures for transfer by the Seller to the Purchaser or (ii) the
receipt by the Escrow Agent of a written notice, executed by each of the
Purchaser and the Seller, stating that the Purchase Agreement has been
terminated or otherwise directing the disposition of the Consideration and the
Shares.
(b) If the Escrow Agent receives the items referenced in Section
2(a) prior to its receipt of the written notice referenced in clause (ii) of
Section 2(a), then, the Escrow Agent shall deliver as soon as practicable, but
in no event later than three (3) business days, the Purchase Agreement and
related closing documents, if any, to the Purchaser and shall deliver the
Consideration deposited by the Purchaser for the purchase of the Shares. Because
the Purchaser is purchasing the Share Certificates over time with a Promissory
Note (the "Note"), attached as Exhibit A, the Escrow Agent shall hold the Share
Certificates until such time as Purchaser completes the terms and conditions of
the Note. Should the Purchaser and Seller terminate the Note without payment in
full from the Purchaser to the Seller, the Escrow Agent is empowered by both
parties to take the steps required to have the Share Certificates divided, so
that Purchaser and Seller each receive their pro-rated shares as represented by
the percentage of total funds that is exchanged between Purchaser and Seller
when fulfilling terms of the Note.
(c) If the Escrow Agent receives the notice referenced in clause
(iii) of Section 2(a) prior to its receipt of the items referenced in clauses
(i) and (ii) of Section 2(a), then the Escrow Agent shall promptly deliver the
Purchase Price, Share Certificates, Purchase Agreement and related closing
documents, if any, as specified in such notice, to the respective parties. The
parties agree that if such notice is silent as to the delivery of such items,
the Escrow
5
Agent shall promptly upon receipt of such notice return (i) the Purchase
Price to the Purchaser, (ii) the Share Certificates to the Seller and (ill)
any closing documents to the party that delivered the same.
(d) If the Escrow Agent, prior to delivering or causing to be
delivered the Consideration, Share Certificates and closing documents in
accordance herewith, receives notice of objection, dispute, or other
assertion in accordance with any of the provisions of this Agreement, the
Escrow Agent shall continue to hold the Consideration, Share Certificates and
closing documents until such time as the Escrow Agent shall receive (i)
written instructions jointly executed by the Seller and the Purchaser,
directing distribution of such Consideration, Share Certificates and closing
documents, or (ii) a certified copy of a judgment, order or decree of a court
of competent jurisdiction, final beyond the right of appeal, directing the
Escrow Agent to distribute said Consideration, Share Certificates and closing
documents to any party hereto or as such judgment, order or decree shall
otherwise specify (including any such order directing the Escrow Agent to
deposit the Consideration, Share Certificates and closing documents into the
court rendering such order, pending determination of any dispute between any
of the parties). In addition, the Escrow Agent shall have the right to
deposit any of the Consideration, Share Certificates and closing documents
with a court of competent jurisdiction without liability to any party if said
dispute is not resolved within 30 days of receipt of any such notice of
objection, dispute or otherwise. All disbursements by the Escrow Agent under
this Agreement shall be without interest on funds deposited in the escrow
account.
3. DUTIES AND OBLIGATIONS OF THE ESCROW AGENT.
(a) The parties hereto agree that the duties and obligations
of the Escrow Agent are only such as are herein specifically provided and no
other. The Escrow Agent's duties are as a depository only, and the Escrow
Agent shall incur no liability whatsoever, except as a direct result of its
willful misconduct or gross negligence.
(b) The Escrow Agent may consult with counsel of its choice,
and shall not be liable for any action taken, suffered or omitted by it in
accordance with the advice of such counsel.
(c) The Escrow Agent shall not be bound in any way by the
terms of any other agreement to which the Seller and the Purchaser are
parties, whether or not it has knowledge thereof, and the Escrow Agent shall
not in any way be required to determine whether or not any other agreement
has been complied with by the Seller and the Purchaser, or any other party
thereto. The Escrow Agent shall not be bound by any modification, amendment,
termination, cancellation, rescission or supersession of this Agreement
unless the same shall be in writing and signed jointly by each of the Seller
and the Purchaser, and agreed to in writing by the Escrow Agent.
(d) if the Escrow Agent shall be uncertain as to its duties
or rights hereunder or shall receive instructions, claims or demands which,
in its opinion, are in conflict with any of the provisions of this Agreement,
it shall be entitled to refrain from taking any
6
action, other than to keep safely all property held in escrow, until it shall
jointly be directed otherwise in writing by the Seller and the Purchaser or
by a final judgment of a court of competent jurisdiction.
(e) The Escrow Agent shall be fully protected in relying upon
any written notice, demand, certificate or document which it, in good faith,
believes to be genuine. The Escrow Agent shall not be responsible for the
sufficiency or accuracy of the form, execution, validity or genuineness of
documents or securities now or hereafter deposited hereunder, or of any
endorsement thereon, or for any lack of endorsement thereon, or for any
description therein; nor shall the Escrow Agent be responsible or liable in
any respect on account of the identity, authority or rights of the persons
executing or delivering or purporting to execute or deliver any such
document, security or endorsement.
(f) The Escrow Agent shall not be required to institute legal
proceedings of any kind and shall not be required to defend any legal
proceedings which may be instituted against it or in respect of the
Consideration, Share Certificates and closing documents.
(g) If the Escrow Agent at any time, in its sole discretion,
deems it necessary or advisable to relinquish custody of the Consideration,
Share Certificates and closing documents, it may do so by delivering the same
to any other escrow agent mutually agreeable to the Seller and the Purchaser
and, if no such escrow agent shall be selected within three days of the
Escrow Agent's notification to the Seller and the Purchaser of its desire to
so relinquish custody of the Consideration, Share Certificates and closing
documents, then the Escrow Agent may do so by delivering the Consideration,
Share Certificates and closing documents (a) to any bank or trust company in
the County of Los Angeles, State of California, which is willing to act as
escrow agent thereunder in place and instead of the Escrow Agent, or (b) to
the clerk or other proper officer of a court of competent jurisdiction as may
be permitted by law. The fee of any such bank or trust company or court
officer shall be borne by the Purchaser. Upon such delivery, the Escrow Agent
shall be discharged from any and all responsibility or liability with respect
to the Consideration, Share Certificates and closing documents and the
Purchaser shall promptly pay to the Escrow Agent all monies which may be owed
it for its services hereunder, including, but not limited to, reimbursement
of its out-of-pocket expenses pursuant to paragraph (i) below.
(h) This Agreement shall not create any fiduciary duty on the
Escrow Agent's part to the Seller or the Purchaser, nor disqualify the Escrow
Agent from representing either party hereto in any dispute with the other,
including any dispute with respect to the Consideration, Share Certificates
and closing documents. The parties understand that the Escrow Agent has acted
and will continue to act as counsel to the Purchaser.
(i) The reasonable out-of-pocket expenses paid or incurred by
the Escrow Agent in the administration of its duties hereunder, including,
but not limited to, postage, all outside counsel to the Escrow Agent and
advisors' and agents' fees and all taxes or other governmental charges, if
any, shall be paid by the Purchaser.
7
4. INDEMNIFICATION.
(a) The Seller and the Purchaser, jointly and severally,
hereby indemnify and hold the Escrow Agent harmless from and against any and
all losses, damages, taxes, liabilities and expenses that may be incurred by
the Escrow Agent, arising out of or in connection with its acceptance of
appointment as the Escrow Agent hereunder and/or the performance of its
duties pursuant to this Agreement, including, but not limited to, all legal
costs and expenses of the Escrow Agent incurred defending itself against any
claim or liability in connection with its performance hereunder, provided
that the Escrow Agent shall not be entitled to any indemnity for any losses,
damages, taxes, liabilities or expenses that directly result from its willful
misconduct or gross negligence.
5. MISCELLANEOUS.
(a) All notices, requests, demands and other communications
hereunder shall be in writing, with copies to all the other parties hereto,
and shall be deemed to have been duly given when (i) if delivered by hand,
upon receipt, (ii) if sent by telecopier, upon receipt of proof of sending
thereof, (iii) if sent by Express Mall, Federal Express or other express
delivery service (receipt requested), the next business day or (iv) if mailed
by first-class registered or certified mail, return receipt requested,
postage prepaid, upon receipt, in each case if delivered to the following
addresses:
(i) If to the Purchaser:
Incomnet, Inc.
00000 Xxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxxxxxxx Xxxxx, XX 00000
(ii) If to the Seller:
At the address set forth in the Purchase
Agreement
(iii) If to the Escrow Agent:
Xxxx X. Xxxxxxxxxx
0000 Xxxxx Xxx. #000
Xxxxx Xxxxxx, XX 00000
or at such other address as any of the parties to this Agreement may hereafter
designate in the manner set forth above to the others.
(b) This Agreement shall be construed and enforced in accordance
with the law of the State of California applicable to contracts entered into and
performed entirely within California.
8
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be signed the day and year first above written.
SELLER:
/s/ Xxxxx X. Xxxxxxx
--------------------
Xxxxx X. Xxxxxxx
BUYER:
Incomnet, Inc.
/s/ Xxxxxx Xxxxxxx
------------------
Name: Xxxxxx Xxxxxxx
Title: President
ESCROW AGENT:
/s/ Xxxx X. Xxxxxxxxxx
----------------------
Xxxx X. Xxxxxxxxxx, Escrow Agent
9
