1
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this "Escrow Agreement") is made and entered
into as of February 16, 2001, by and among HIGH SPEED NET SOLUTIONS, INC. a
Florida corporation (the "Buyer"), SUMMUS, LTD., a Delaware corporation (the
"Seller"), and BRANCH BANKING AND TRUST COMPANY, a North Carolina banking
corporation (the "Escrow Agent").
WITNESSETH:
WHEREAS, the Buyer, the Seller and the other signatories thereto
entered into an Asset Purchase Agreement dated as of the date hereof (the
"Purchase Agreement"), providing for the purchase by the Buyer from the Seller
of the Assets (as defined in the Purchase Agreement);
WHEREAS, pursuant to the Purchase Agreement, the Seller has undertaken
certain indemnity obligations for the benefit of the Buyer as provided therein;
and
WHEREAS, the Buyer and the Seller have agreed that the Seller's
obligations pursuant to the Purchase Agreement shall be secured pursuant to this
Escrow Agreement by the Escrow Fund as described herein;
NOW, THEREFORE, in consideration of the premises, covenants and
agreements set forth in this Escrow Agreement and of other good and valuable
consideration, the receipt and legal sufficiency of which the parties hereto
hereby acknowledge, and intending to be legally bound hereby, and as an
inducement for the execution and delivery of the Purchase Agreement, the Buyer,
the Seller and the Escrow Agent hereby agree as follows:
1
2
ARTICLE I
DESIGNATION OF ESCROW AGENT
1.1 Designation of Escrow Agent. The Buyer and the Seller hereby
designate and appoint Branch Banking and Trust Company, a North Carolina banking
corporation having an office and place of business located at 000 Xxxx Xxxx
Xxxxxx, Xxxxxx, Xxxxx Xxxxxxxx, 00000, as Escrow Agent for the purposes set
forth herein. The Escrow Agent hereby accepts such appointment and agrees to act
in furtherance of the provisions of the Purchase Agreement, but only upon the
terms and conditions provided in this Escrow Agreement.
ARTICLE II
DEPOSIT OF ESCROW FUND;
DEADLINE FOR CLAIMS; DISTRIBUTION OF ESCROW FUND
UPON TERMINATION OF THIS ESCROW AGREEMENT
2.1 Escrow.
2.1.1 On the date of this Escrow Agreement, the Buyer is depositing
with the Escrow Agent on behalf of the Seller Two Thousand (2,000) shares of the
Buyer's Series B Convertible Preferred stock ("SERIES B STOCK") (the "ESCROW
SHARES"), pursuant to Section 2 of the Purchase Agreement. The Escrow Agent
shall also hold under this Escrow Agreement any cash, securities or other
property that may be distributed on account of the Escrow Shares (collectively
with the Escrowed Shares, the "ESCROW FUND").
The Escrow Agent shall hold and dispose of the Escrow Fund as
hereinafter provided. Notwithstanding any other provisions of this Escrow
Agreement or the Purchase Agreement, neither the Seller nor the Buyer shall be
considered to have an ownership interest in the Escrow Funds for purposes of
transfer, attachment or otherwise until such Escrow Funds are paid or otherwise
distributed under the terms hereof.
2
3
2.1.2 After its receipt thereof, the Escrow Agent shall hold the
Escrow Shares in accordance with this Escrow Agreement and shall (to the extent
legally permissible) vote the Escrow Shares in accordance with the written
instructions (if any) provided by the Representative (as defined in Section 2.2
below), in his capacity as voting designee for the Escrow Shares. The Escrow
Agent shall not vote any Escrow Shares for which the Escrow Agent has not
received from the Representative written instructions in form and substance
reasonably satisfactory to the Escrow Agent. The Escrow Agent shall hold the
Escrow Fund separate and apart from any other fund or account maintained by the
Escrow Agent, and the Escrow Fund shall not be subject to lien or attachment by
any creditor of any party hereto. The Escrow Fund shall be used solely for the
purposes and subject to the conditions set forth in this Escrow Agreement. The
Escrow Agent may treat the Representative as the duly authorized agent and
representative of Seller for all purposes as set forth in Section 2.2 below.
2.1.3 In accordance with Sections 2.1(b) and 3.2(a)(v)(B) of the
Purchase Agreement, at the Closing (as defined in the Asset Purchase Agreement)
the Buyer shall issue and deliver, or cause to be delivered to the Escrow Agent
one or more stock certificates (the "ESCROW CERTIFICATES"), each of which shall
be in the name of the Escrow Agent as escrow agent hereunder, representing the
Escrow Shares. Upon receipt by the Escrow Agent of the Escrow Certificates, the
Escrow Agent shall execute and deliver a written receipt therefore to HSNS and
the Representative. Thereafter, the Escrow Agent shall hold and distribute the
Escrow Certificates and shares held in the Escrow Funds in accordance with the
terms hereof.
2.1.4 For all purposes pursuant to this Escrow Agreement, including
without limitation the distribution of the Escrowed Shares, the value of each
share held in the Escrow Shares on a date on which distribution is to be made to
Buyer on amount of a claim, as described in Article III below, shall be deemed
to be that number of shares of Buyer's common stock for which the Escrow Share
may then be converted multiplied by the average of the closing bid and asked
price per share of Buyer's common stock for the ten trading days prior to the
payment date (the "ESCROW SHARE VALUE"); provided, however, that in the event
that during the term of this Escrow Agreement, the Buyer shall change the number
of shares of its common stock that are issued and outstanding as a result of any
stock split, stock dividend or similar recapitalization, the Escrow
3
4
Share Value shall be proportionately adjusted correspondingly. The Buyer shall
certify any such adjustment to the Escrow Agent in writing.
2.2 Appointment of Representative. The Seller hereby appoints
Xxxxx Xxxxxxx, effective as of the Closing Date, to serve as its representative
(such representative, or any successor representative appointed by the Seller,
the "REPRESENTATIVE") and their true and lawful agent and attorney in fact with
respect to the matters arising in connection with this Escrow Agreement,
including but not limited to the power and authority on behalf of the Seller to
do any one or all of the following:
(a) give any written notices or consents and seek any declaratory
judgments, damages or other appropriate relief from a court or other tribunal
that the Representative may consider necessary or appropriate;
(b) give any written direction to the Escrow Agent as the
Representative may consider necessary or appropriate;
(c) make, execute and deliver such amendments of and supplements
to this Escrow Agreement or any other agreements, instruments or documents
relating hereto that the Representative may consider necessary or appropriate
and not materially adverse to the Seller's interests hereunder, such authority
to be conclusively evidenced by the execution and delivery thereof; and
(d) take all actions and do all things, including but not limited
to the execution and delivery of all documents necessary or proper, required,
contemplated or deemed advisable by the Representative, and generally to act for
and in the name of the Seller with respect to this Escrow Agreement. All action
to be taken hereunder by the Seller shall be taken by the Representative unless
specifically provided to the contrary herein, and the Escrow Agent shall be
entitled to rely exclusively on instructions and notices provided on the
Seller's behalf by the Representative.
4
5
2.3 Deadline for Claims and Termination of Escrow Agreement. The
Buyer shall not be entitled to assert any new claim against the Escrow Fund
after the one year anniversary of the execution of this Escrow Agreement (the
"CLAIMS DEADLINE"); provided, however, that any claim asserted on or prior to
the Claims Deadline (whether or not formal legal action shall yet have been
commenced based upon such claim) shall continue, subject to final resolution as
provided herein. This Escrow Agreement shall terminate upon the earlier of: (1)
the complete distribution of the Escrow Fund in accordance with this Escrow
Agreement; (2) if no claims have been asserted in accordance with Article III,
on the Claims Deadline; or (3) if claims have been asserted in accordance with
Article III prior to the Claims Deadline, then whenever all such claims are
resolved according to Article III.
2.4 Distribution of the Escrow Fund Upon Termination of the Escrow
Agreement. Within five (5) business days after the Claims Deadline, the Escrow
Agent shall deliver to the Seller that portion of the Escrow Fund not otherwise
subject to claims pursuant to Article III. Thereafter, the balance of the Escrow
Fund, if any, shall continue to be held by the Escrow Agent in accordance with
the terms of this Escrow Agreement until all claims asserted against the Escrow
Fund have been finally resolved in accordance with Article III below; whereupon,
the remaining balance of the Escrow Fund and all interest accrued thereon shall
be remitted to the Seller in full discharge of the Escrow Agent's obligations
under this Escrow Agreement.
ARTICLE III
PAYMENT FROM ESCROW SHARES
3.1 Claims Against Escrow Fund. If at any time on or prior to the
Claims Deadline, the Buyer shall assert a claim arising out of the Purchase
Agreement, the Buyer shall notify the Escrow Agent and the Representative in
writing of such claim and the basis therefor. The Buyer's notice also shall
state the amount of any liability, loss, damage or expense incurred by or
imposed upon the Buyer on account hereof.
5
6
(a) If such liability, loss, damage or expense is
liquidated in amount, the notice shall so state and the stated
amount shall be deemed the amount of the particular liquidated
claim that is asserted against the Escrow Fund on behalf of
the Buyer.
(b) If, however, the liability, loss, damage or expense
is not liquidated in amount, the notice shall so state, in
which event an unliquidated claim shall be deemed to have been
asserted against the Escrow Fund on behalf of the Buyer.
(c) No payment or distribution shall be made by the
Escrow Agent out of the Escrow Fund for any asserted claims
(whether liquidated or unliquidated) before the Claims
Deadline.
3.2 Resolution of Asserted Claims Against the Escrow Fund. If,
within ten (10) days after the Buyer gives notice to the Escrow Agent and the
Representative of an asserted claim pursuant to Section 3.1 above, the
Representative shall fail to notify the Escrow Agent and the Buyer, in writing,
that the Representative denies the right of the Buyer to any indemnity in
respect of the asserted claim, then Seller shall lose its right to dispute such
claim and such claim will be deemed resolved in favor of the Buyer. If such
resolved claim is liquidated, the Escrow Agent shall pay such claim to the Buyer
on the Claims Deadline. If such resolved claim is unliquidated, the Escrow Agent
shall pay such claim to the Buyer as soon as such resolved claim becomes
liquidated, but not before the Claims Deadline.
3.3 Resolution of Disputed Claims Against Escrow Fund. If, within
the ten (10) day period after notice of an asserted claim is given to the Escrow
Agent and the Representative under Section 3.1 above, the Representative shall
notify the Escrow Agent and the Buyer, in writing, that the Seller disputes and
denies the asserted claim made by the Buyer against the Escrow Fund, then the
parties shall use their respective reasonable best efforts to effect a
settlement and compromise of such asserted claim.
6
7
(a) Any liability, loss, damage or expense established by
reason of any such settlement and compromise shall be
certified in writing to the Escrow Agent by the parties, and,
if so certified before the Claims Deadline, the Escrow Agent
shall pay to the Buyer on the Claims Deadline out of the
Escrow Fund any amount due and owing to the Buyer by reason of
such settlement and compromise, but, if the disputed claim is
so certified after the Claims Deadline, the Escrow Agent shall
pay the Buyer when Escrow Agent receives such certification.
(b) If any such settlement and compromise so certified to
the Escrow Agent establishes that no amount shall be due and
owing to the Buyer under the asserted claim, then the Escrow
Agent shall treat the asserted claim as rejected by mutual
agreement of the parties, and the asserted claim shall be
totally disregarded by the Escrow Agent as if never the
subject of assertion against the Escrow Fund.
3.4 Unresolved Claims Against Escrow Fund. If the parties are
unable to settle and compromise any disputed claim asserted against the Escrow
Fund, the Escrow Agent shall have no obligation to make any payment or
distribution out of the Escrow Fund with respect to such unresolved asserted
claim unless and until the asserted claim has become fixed and liquidated and
the Escrow Agent shall have received either:
(a) a certificate signed on behalf of the Buyer and the
Representative certifying the amount of the asserted claim in
dispute and directing payment thereof; or
(b) a certified copy of a judgment of a court competent
jurisdiction determining the amount of the asserted claim in
dispute.
Upon receipt of any such certification, the claim shall be treated as a resolved
asserted claim pursuant to Section 3.2 above and the Escrow Agent shall pay and
distribute an amount of the Escrow Fund in the manner described in Section 3.2.
7
8
ARTICLE IV
RESPONSIBILITIES AND DUTIES OF ESCROW AGENT
4.1 Rights, Duties, Liabilities and Immunities of Escrow Agent.
The Buyer and the Seller hereby agree as follows with respect to the rights,
duties, liabilities and immunities of the Escrow Agent:
(a) The Escrow Agent shall act as a depository only and
shall not be responsible or liable in any manner whatsoever for the
sufficiency, correctness, genuineness, or validity of the Escrow Fund
deposited with it, or any part thereof.
(b) The Escrow Agent shall be protected in acting upon
any written certificate, notice, request, waiver, consent, receipt or
other paper or document furnished to it, not only as to its due
execution and the validity and effectiveness of its provisions, but
also as to the truth and acceptability of any information therein
contained that the Escrow Agent in good faith believes to be genuine
and what it purports to be.
(c) The Escrow Agent shall not be liable for any error of
judgment, or for any act done or steps taken or made by it in good
faith, or for any mistake of fact or law, or for any things that it may
do or refrain from doing in connection herewith, except due to the
Escrow Agent's own gross negligence or willful misconduct.
(d) The Escrow Agent may consult with and obtain advice
from legal counsel in the event of any question as to any of the
provisions of this Escrow Agreement or its duties hereunder, and the
Escrow Agent shall incur no liability and shall be fully protected in
acting in good faith in accordance with the opinion and instructions of
such counsel. In the event the Escrow Agent consults with and obtains
advice from legal counsel pursuant to this subsection (d), the Seller
and the Buyer agree to indemnify and save the Escrow Agent harmless
from all reasonable attorneys' fees incurred by Escrow Agent.
8
9
(e) The Escrow Agent shall have no duties except those
expressly set forth herein, and shall not be bound by any notice of a
claim or demand with respect thereto, or any waiver, modification,
amendment, termination or rescission of this Escrow Agreement, unless
in a writing received by it, and, if its duties herein are affected,
unless it shall have given its prior written consent thereto.
(f) The Escrow Agent is not a party to and is not bound
by the Purchase Agreement, nor is it a party to or bound by or charged
with notice of any other agreement (other than this Escrow Agreement)
out of which the Escrow Fund might arise or to which they may relate.
(g) In the event of any disagreement between any of the
parties to this Escrow Agreement or between them or any one of them and
any other person, resulting in adverse claims or demands being made in
connection with the subject matter of this Escrow Agreement, or in the
event the Escrow Agent in good faith shall be in doubt as to what
action it should take hereunder, the Escrow Agent shall thereupon have
the right (i) to refrain from complying with any claims or demands
asserted on it as the Escrow Agent or (ii) to refuse to take any other
action hereunder, so long as such disagreement continues or exists, and
in either such event, the Escrow Agent shall not be or become liable in
any way to any person for the Escrow Agent's failure to act, and the
Escrow Agent shall be entitled to continue to refrain from acting,
until (x) the rights of all parties shall have been fully and finally
adjudicated by a court of competent jurisdiction or (y) all differences
shall have been adjusted and all doubts resolved by agreement among all
of the interested persons, and the Escrow Agent shall have been
notified thereof by a writing signed by all such persons. The rights of
the Escrow Agent under this subsection (g) are cumulative of all other
rights which it may have by law or otherwise.
(h) In the event the Escrow Agent becomes involved in
litigation in connection with its duties under this Escrow Agreement,
the Seller and the Buyer agree to indemnify and save the Escrow Agent
harmless from all losses, costs, damages, expenses and attorneys' fees,
other than those suffered or incurred by the Escrow Agent
9
10
as a result of its own gross negligence or willful misconduct. The
Seller and the Buyer shall be jointly and severally liable to the
Escrow Agent for the obligations under this subsection (h); provided
however that as between the Buyer and the Seller, the prevailing party
in any such litigation shall be entitled to collect from the
non-prevailing party all amounts that such prevailing party has paid to
the Escrow Agent pursuant to this subsection (h).
4.2 Copies of Certifications, Notices and Other Documentation.
Promptly after receipt by the Escrow Agent from the Representative or the Buyer
of any written certificate, notice, request, waiver, consent, receipt or other
document, the Escrow Agent shall furnish a copy of any of such items to the
Representative or the Buyer, as the case may be.
4.3 Compensation. Upon execution of this Escrow Agreement, the
Buyer shall pay to the Escrow Agent the sum of $1,000.00 as the total fee for
the Escrow Agent's services hereunder.
4.4 Successor Escrow Agent. The Escrow Agent or any successor to
it hereafter appointed may at any time resign by giving notice in writing to the
Seller and the Buyer and the Escrow Agent shall be discharged from its duties
hereunder upon the appointment of a successor Escrow Agent as hereinafter
provided, or upon the expiration of thirty (30) days after such notice is given.
In the event of any such resignation, a successor Escrow Agent shall be
appointed by written consent of the Representative and the Buyer. Any successor
Escrow Agent shall deliver to the Representative and the Buyer a written
instrument accepting the appointment hereunder, and thereupon it shall succeed
to all the rights and duties of the Escrow Agent hereunder and shall be entitled
to receive all assets then held by the predecessor Escrow Agent hereunder.
4.5 Court Order or Joint Instructions. Notwithstanding anything to
the contrary in this Escrow Agreement:
(a) The Escrow Agent may deposit the Escrow Fund with the
clerk of any court of competent jurisdiction upon commencement of an
action in the nature of
10
11
interpleader or in the course of any court proceedings relating to or
arising out of this Escrow Agreement. The Escrow Agent shall thereupon
be released and discharged from any and all further obligations arising
in connection with this Escrow Agreement.
(b) If at any time the Escrow Agent receives a final
non-appealable order of a court of competent jurisdiction or an order
of an arbitrator or a panel of arbitrators designated in writing
jointly by the Buyer and the Representative, or written instructions
signed by the Buyer and the Representative, directing delivery of the
Escrow Fund or any portion thereof, the Escrow Agent shall comply with
the order or instructions. Upon any delivery or deposit of all of the
Escrow Fund as provided in this Section 4.5, the Escrow Agent shall
thereupon be released and discharged from any and all further
obligations arising in connection with this Escrow Agreement.
ARTICLE V
MISCELLANEOUS
5.1 Successors and Assigns. This Escrow Agreement shall be binding
upon and shall inure to the benefit of the Seller, the Buyer and the Escrow
Agent, and their successors and permitted assigns. Neither the Seller nor the
Buyer shall be permitted to assign this Escrow Agreement without the prior
written consent of the other party. Upon the liquidation of Seller, this Escrow
agreement shall be binding upon and inure to the benefit of the shareholders of
Seller in accordance with their rights regarding the Escrow Fund under the
Purchase Agreement.
5.2 Notices. All Necessary notices, demands, and requests required
or permitted to be given under this Escrow Agreement shall be in writing and
shall be deemed duly given if mailed by certified mail, postage prepaid,
addressed as follows:
11
12
If to the Escrow Agent, to:
Branch Banking and Trust Company
Attn Xxxxxxxx X. Xxxxx, Vice President
Corporate Trust
000 Xxxx Xxxx Xxxxxx
Xxxxxx, Xxxxx Xxxxxxxx 00000
If to the Buyer, to:
High Speed Net Solutions, Inc.
000 Xxxxxxxxxxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxx Xxxxxxxx 00000
With a required copy to its counsel,
Xxxxxxxxxx Xxxxxxxx LLP
0000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxx Xxxxxx, Esq.
If to the Representative, to:
Summus, Ltd.
000 Xxxxxxxxxxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxx Xxxxxxxx
Attention: Xxxxx Xxxxxxx
12
13
With a required copy to its counsel,
Smith, Anderson, Blount, Dorsett, Xxxxxxxx &
Xxxxxxxx, L.L.P.
Lawyers
0000 Xxxxx Xxxxx Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: R. Xxxxx Xxxxxx, Esq.
or to such other address as shall be furnished in writing by any such party.
5.3 Entire Agreement. This Escrow Agreement and the Purchase
Agreement contain the entire agreement and understanding by and between the
parties with respect to the matters herein referred to, and no representations,
promises, agreements, or understandings, written or oral, not herein or therein
contained shall be of any force or effect.
5.4 Governing Law. This Escrow Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of North
Carolina.
5.5 Severability. If any provision of this Escrow Agreement shall
be invalid or unenforceable, the other provisions of this Escrow Agreement shall
continue in full force, and the validity and enforceability of such other
provisions shall not be adversely affected.
5.6 Execution in Counterparts. This Escrow Agreement may be
executed in two or more counterparts, all of which taken together shall
constitute one original instrument.
5.7 Amendments. This Agreement may not be modified orally, but
only by an agreement in writing signed by the parties hereto.
5.8 Waiver of Consent. No failure or delay on the part of any
party hereto in exercising any power or right hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right or
power, or any abandonment or discontinuance of steps to enforce such a right or
power, preclude any other or further exercise thereof or the exercise of
13
14
any other right or power. The rights and remedies of the parties hereunder are
cumulative and not exclusive of any rights or remedies that they otherwise would
have. No modification or waiver of any provision of this Escrow Agreement, nor
consent to any departure by any party therefrom, shall in any event be effective
unless the same shall be in writing, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given. No
notice to or demand on any party in any case shall entitle such party to any
other or further notice or demand in similar or other circumstances.
5.9 Captions. The Article and Section captions used herein are for
reference purposes only and shall not in any way affect the meaning or
interpretation of this Escrow Agreement.
5.10 Other Buyer Remedies. The remedies available to the Buyer
under this Escrow Agreement, including, without limitation, the right to assert
claims against the Escrow Fund pursuant to the Purchase Agreement, shall be in
addition to and not to the exclusion of any other rights or remedies available
to the Buyer under applicable law, including without limitation any right to
assert any such claim directly against the Seller and/or the Shareholders.
5.11 Taxes, etc. On Escrow Fund. The Seller agrees to pay and
discharge promptly all taxes, charges, liens and assessments, if any, against
the Escrow Fund.
[Signatures appear on the following page]
14
15
IN WITNESS WHEREOF, the Buyer, the Seller and the Escrow Agent have
caused their corporate names to be hereunto subscribed by their respective
officers thereunto duly authorized, all as of the day and year first above
written.
HIGH SPEED NET SOLUTIONS, INC.
By: /s/ Xxxxxx Xxx
----------------------------------------
Name: Xxxxxx Xxx
Title: President and CEO
SUMMUS, LTD.
By: /s/ Xxxxx Xxxxxxx
----------------------------------------
Name: Xxxxx Xxxxxxx
Title: President
BRANCH BANKING AND TRUST COMPANY
By: /s/ Xxxxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Vice President
15
