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EXHIBIT 10.21
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this "Agreement") is made as of March
31, 2000, by and among xXxxxxxx.xxx, Inc., a corporation incorporated under the
laws of the State of Delaware (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 Common Stock and Warrants Purchase Agreement
referred to in the first recital.
W I T N E S S E T H:
WHEREAS, the Investors will be purchasing from the Company up
to 2,333,334 shares of Common Stock (the "Shares") and Warrants to purchase, in
the aggregate, up to 700,000 shares of Common Stock, at the purchase prices set
forth in the Common Stock and Warrants Purchase Agreement (the "Purchase
Agreement") dated the date hereof between the Investors 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 Sections 4(2)
and/or 4(6) and/or Regulation D promulgated under the Securities Act of 1933, as
amended; and
WHEREAS, the Company and the Investors have requested that the
Escrow Agent hold the Purchase Price with respect to each Closing in escrow
until the Escrow Agent has received the certificates representing the Shares
and, as to the first Closing, the Warrants, the Rights 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 (i) shall hold the funds for the
purchase of the initial 1,166,667 Shares and the Warrants at the first Closing
as contemplated by the Purchase Agreement and (ii) shall hold the funds for the
purchase of the next 1,166,667 Shares at the second Closing, all as contemplated
by the Purchase Agreement.
1.2. (a) At each Closing, upon Escrow Agent's receipt of the
applicable Purchase Price for the Closing into its attorney trustee account from
the Investors, together with, at the first Closing, executed counterparts of
this Agreement, the Purchase Agreement and the Registration Rights Agreement, it
shall telephonically advise the Company, or the Company's designated attorney or
agent, of the amount of funds it has received into its account.
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(b) Wire transfers to the Escrow Agent shall be
made as follows:
Xxxxxxx Xxxxxx & Green, P.C.
Master Escrow Account
Chase Manhattan Bank
0000 Xxxxxxxx - Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
ABA No. 000000000
Account No. 000-0-000000
Attention: L. Borneo
1.3. At the first Closing, the Company, upon receipt of said
notice, shall deliver to the Escrow Agent the certificates representing the
initial 1,166,667 Shares and the 350,000 Warrants to be issued to the Investors
together with:
(i) the original executed Registration Rights Agreement
in the form of Exhibit B to the Purchase Agreement;
(ii) Instructions to Transfer Agent in the form of Exhibit
E to the Purchase Agreement;
(iii) the original executed opinion of Steel Xxxxxx & Xxxxx
LLP, in the form of Exhibit D to the Purchase
Agreement; and
(iv) an original counterpart of this Escrow Agreement.
In the event that the foregoing items are not in the Escrow
Agent's possession within three (3) Trading 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 first Closing, once Escrow Agent confirms the
validity of the issuance of the Shares and the Warrants by means of its receipt
of a Release Notice in the form attached hereto as Exhibit X executed by the
Company and each Investor, it shall wire that amount of funds necessary to
purchase the Shares and the Warrants per the written instructions of the
Company, net of (a) legal and escrow administrative costs of ten thousand
dollars ($10,000) plus $2,500 for each Investor in addition to AMRO
International, S.A., Austost Anstalt Xxxxxx and Balmore Funds SA, payable to
Xxxxxxx Xxxxxx & Green, P.C. ("EB&G"), 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000, and
(b) the legal fees of Thomson Kernaghan & Co., Ltd., Toronto, in an amount not
to exceed fifteen thousand dollars ($15,000), pursuant to wire instructions to
be provided to the Escrow Agent by Thomson Kernaghan & Co., Ltd.
Once the funds (as set forth above) have been sent per the
Company's instructions, the Escrow Agent shall then arrange to have the
certificates for the Shares, the Warrants, the Registration Rights Agreement and
the opinion of counsel delivered as per instructions from the Investors and to
deliver the Instructions to Transfer Agent to the Transfer Agent.
1.5. At the second Closing, the Company, upon receipt of said
notice of receipt of funds, shall deliver to the Escrow Agent the certificates
representing the Shares to be issued to the Investors.
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In the event that the foregoing items are not in the Escrow
Agent's possession within three (3) Trading Days of the Escrow Agent notifying
the Company that the Escrow Agent has custody of the Purchase Price applicable
to such Shares, then each Investor shall have the right to demand the return of
said sum.
Once Escrow Agent confirms the validity of the issuance of the
Shares and the Warrants by means of its receipt of a Release Notice in the form
attached hereto as Exhibit X executed by the Company and the Investors, it shall
immediately wire that amount of funds necessary to purchase the Shares per the
written instructions of the Company.
Once the funds (as set forth above) have been sent per the
Company's instructions, the Escrow Agent shall then arrange to have the Shares
delivered as per instructions from the Investors.
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 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 both 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 only be brought in a state or Federal court sitting in New York
City.
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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, excepting Escrow Agent's
performance of this Escrow Agreement.
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
compensation therefor. The Escrow Agent has acted as legal counsel for the
Investors, and may continue to act as legal counsel for the Investors, from time
to time, notwithstanding its duties as the Escrow Agent hereunder. The Company
consents to the Escrow Agent in such capacity as legal counsel for the Investors
and waives any claim that such representation represents a conflict of interest
on the part of the Escrow Agent. The Company understands that the Investors and
the Escrow Agent are relying explicitly on the foregoing provision in entering
into this Escrow Agreement.
2.12. The Escrow Agent's responsibilities as escrow agent
hereunder shall terminate if the Escrow Agent shall resign by not less that ten
(10) days written notice to the Company and the Investors. In the event of any
such resignation, the Investors and the Company shall appoint a successor Escrow
Agent and the resigning agent shall forthwith tender all sums, documents and
instruments it holds in escrow to such successor Escrow Agent.
2.13. 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.
2.14. 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
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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 City of New York in accordance with the
applicable procedure therefor.
The Company and each Investor 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.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date set forth above.
Investors:
AMRO International, S.A. v. Xxxxxxx.xxx, Inc.
By:
---------------------------------
Name: By:
--------------------------------- ----------------------------
Title:
---------------------------------
CALP II Limited Partnership, a Escrow Agent:
Bermuda limited partnership
Xxxxxxx Xxxxxx & Green, P.C.
By: VMH Investment Management Ltd.,
a Bahamas company, general partner
By: By:
--------------------------------- ----------------------------
Name: Name: Xxxxxx X. Xxxxx
---------------------------------
Title: Title:
------------------------------ -------------------------
Austost Anstalt Xxxxxx
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
Balmore Funds SA
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
Xxxxxx X. Xxxxxx, Manager of Xxxxxx
Management LLC, General Partner of
Xxxxxx Investments, LLLP
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
worldVentures Fund I, LLC
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
RBB Bank Aktiengesellschaft
By:
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Name:
---------------------------------
Title:
---------------------------------
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EXHIBIT X TO
ESCROW AGREEMENT
RELEASE NOTICE
The UNDERSIGNED, pursuant to the Escrow Agreement, dated as of
March 31, 2000 among xXxxxxxx.xxx, Inc.,the Investors signatory thereto and
Xxxxxxx Xxxxxx & Green, P.C., as Escrow Agent (the "Escrow Agreement";
capitalized terms used herein and not defined shall have the meaning ascribed to
such terms in the Escrow Agreement), hereby notify the Escrow Agent that each of
the conditions precedent to the purchase and sale of the Shares and Warrants set
forth in that certain Common Stock and Warrants Purchase Agreement, dated March
31, 2000, between the Company and the Investors (the "Purchase Agreement", have
been satisfied. The Company and the undersigned Investor hereby confirm that all
of their respective representations and warranties contained in the Purchase
Agreement remain true and correct and authorize the release by the Escrow Agent
of the funds and documents to be released at the Closing as described in the
Escrow Agreement. This Release Notice shall not be effective until executed by
the Company and the Investors.
This Release Notice may be signed in one or more counterparts,
each of which shall be deemed an original.
IN WITNESS WHEREOF, the undersigned have caused this Release
Notice to be duly executed and delivered as of this __ day of ____________,
2000.
AMRO International, S.A. v. Xxxxxxx.xxx, Inc.
By:
---------------------------------
Name: By:
--------------------------------- ----------------------------
Title:
---------------------------------
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CALP II Limited Partnership, a Escrow Agent:
Bermuda limited partnership
Xxxxxxx Xxxxxx & Green, P.C.
By: VMH Investment Management Ltd.,
a Bahamas company, general partner
By: By:
--------------------------------- ----------------------------
Name: Name: Xxxxxx X. Xxxxx
---------------------------------
Title: Title:
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Austost Anstalt Xxxxxx
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
Balmore Funds SA
By:
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Name:
---------------------------------
Title:
---------------------------------
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Xxxxxx X. Xxxxxx, Manager of Xxxxxx
Management LLC, General Partner of
Xxxxxx Investments, LLLP
By:
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Name:
---------------------------------
Title:
---------------------------------
worldVentures Fund I, LLC
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
RBB Bank Aktiengesellschaft
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
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