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ESCROW AGREEMENT
This Escrow Agreement (the "Escrow Agreement") is entered into on
October 30, 1996 among Video Jukebox Network, Inc., a Florida corporation
("VJN"), EMAP PLC., an English company ("EMAP"), and Xxxxxx Xxxx, as escrow
agent (the "Escrow Agent").
Any term used herein which is defined in the Stock Purchase Agreement,
dated as of October 30, 1996 (the "Agreement"), between VJN and EMAP and not
specifically defined herein has the meaning specified in the Agreement, unless
the context herein should otherwise require.
RECITALS:
A. VJN and EMAP have entered into the Agreement relating to the
purchase by EMAP of the Shares; and
B. VJN and EMAP have agreed that the Purchase Price and all
accrued interest thereon (the "Escrowed Funds") will be held in escrow by the
Escrow Agent pursuant to the terms and conditions hereof.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements and covenants herein contained and in order to carry out the escrow
arrangement contemplated by the Agreement, the parties hereby agree as follows:
1. Following the execution of this Escrow Agreement by the
parties hereto and as promptly as practicable after the satisfaction of the
conditions specified in Sections 6.2 (c) and (d) of the Agreement, EMAP shall
deliver the Purchase Price to the Escrow Agent, and the Escrow Agent shall
promptly provide written confirmation of receipt of the Escrowed Funds to VJN.
The Escrow Agent shall invest the Purchase Price in an interest bearing account
with a bank in London, England or as otherwise directed by written notice
signed by both EMAP and VJN. The Escrow Agent shall have no liability to VJN
or EMAP in the event of the financial failure of such bank or any other
financial institution chosen by EMAP and VJN to hold the Escrowed Funds.
2. The Escrowed Funds shall remain in escrow until the earlier to
occur of: (a) the date and time that VJN submits the Fourth Amended and
Restated Articles of Incorporation (the "Articles"), attached as Exhibit "A" to
the Agreement, to the Florida Department of State (the "Department") and the
Articles are accepted for filing by the Department (the "Escrow Period"), or
(b) receipt by the Escrow Agent of a written
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notice from EMAP (with a copy of such notice contemporaneously sent by EMAP to
VJN, stating that: (i) the average of the closing bid and asked prices of VJN's
common stock, par value $.001 per share, as reported on the Nasdaq Small-Cap
Market during all of the trading days of the Escrow Period was less than $0.25
per share, or (ii) there is a material breach by VJN of a representation and
warranty set forth in the Agreement which has not been cured by VJN by the end
of the Escrow Period, it being understood and agreed by EMAP that it shall
promptly provide written notice to VJN when EMAP becomes aware of a material
breach by VJN of such a representation and warranty.
3. If the Escrow Agent does not receive a written notice from
EMAP during the Escrow Period pursuant to Section 2(b) hereof, the Escrow Agent
shall promptly after the end of the Escrow Period wire transfer the Escrowed
Funds to VJN in accordance with the wire instructions attached hereto as
Exhibit "A." However, subject to Section 4 hereof, if the Escrow Agent
receives a written notice from EMAP pursuant to Section 2(b) hereof, the Escrow
Agent shall release the Escrowed Funds to EMAP in accordance with EMAP's
written instructions.
4. If the Escrow Agent shall be uncertain as to its duties or
rights hereunder, shall receive any notice, advice, direction, or other
document from any other party with respect to the Escrowed Funds hereunder
which, in its opinion, is in conflict with any of the provisions of this Escrow
Agreement, or should be advised that a dispute has arisen with respect to the
payment, ownership, or right of possession of the Escrowed Funds or any part
thereof (or as to the delivery, non-delivery, or content of any notice, advice,
direction or other document), then the Escrow Agent shall not deliver the
Escrowed Funds (or any part thereof) to VJN or EMAP or to take any action
unless and until required to do so in: (a) a written notice signed by both
EMAP and VJN; or (b) a final order of a court of competent jurisdiction arising
out of a dispute between the parties hereto with respect to the Escrowed Funds.
The Escrow Agent shall also have the right to institute an interpleader action
or proceeding in any court of competent jurisdiction located in Dade County,
Florida to determine the rights of the parties hereto.
5. The Escrow Agent hereby undertakes to and shall perform only
such duties as are expressly set forth herein, and is entitled to rely upon the
direction or notice from the parties or a party, as the case may be, pursuant
to Sections 1, 2(b) or 4(a) hereof. No implied duties or obligations shall be
read into this Escrow Agreement against the Escrow Agent.
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6. EMAP and VJN hereby agree jointly and severally to indemnify
the Escrow Agent against and to hold it harmless from any and all claims,
liabilities, losses, actions, suits or proceedings at law or in equity, or any
other expense, fee or charge of any character or nature, which the Escrow Agent
may incur or with which the Escrow Agent may be threatened by reason of its
acting as escrow agent under this Escrow Agreement, and, in connection
therewith, to indemnify the Escrow Agent against any and all expenses,
including reasonable attorneys' fees and costs of defending any action, suit
or proceeding or resisting any claim, arising herefrom or relating hereto.
7. Upon execution of this Escrow Agreement, VJN and EMAP shall
each pay the Escrow Agent, as compensation for all of its services hereunder, a
fee of Thirty U.S. Dollars (U.S.$30.00). The Escrow Agent shall be reimbursed
equally by VJN and EMAP for all reasonable documented out-of-pocket costs and
expenses incurred by the Escrow Agent for all of its services hereunder.
8. EMAP and VJN agree that the Escrow Agent shall not be liable
to any party or person for misdelivery of the monies subject to this Escrow
Agreement, unless such misdelivery shall be due to the willful breach or gross
negligence of the Escrow Agent.
9. This Escrow Agreement shall be governed by, and construed and
enforced in accordance with, the laws of England and Wales without regard to
principles of conflict of laws thereof. By the execution and delivery of this
Escrow Agreement, each of the parties hereto irrevocably and unconditionally
submits to the jurisdiction of any court of competent jurisdiction located in
London, England, and hereby irrevocably and unconditionally waives: (a) any
objection a party may now or hereafter have to venue in a proceeding in any
such court involving a dispute between EMAP and VJN with respect to the
Escrowed Funds, and (b) any claim that any action or proceeding brought in such
court has been brought in an inconvenient or improper forum.
10. All notices hereunder shall be in writing and shall be deemed
to have been duly given if: (a) personally delivered, (b) made by reputable
overnight courier service, (c) sent by telecopier and the sending party
receives a written confirmation made by telecopier, or (d) delivered by
registered or certified mail, return receipt requested, as follows (or to such
other addresses as the parties may designate in writing pursuant hereto):
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To EMAP: 0 Xxxxxxx Xxxxx
Xxxxxxx
Xxxxxxxxxxxx XX0 0XX
Attention: The Company Secretary
Telecopy: (01733) 312115
To VJN: Video Jukebox Network, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxx Xxxxx, Xxxxxxx 00000
Attn: Chief Executive Officer
Telecopier: (000) 000-0000
With a copy to:
Xxxxxx X. Xxxxxxx, Esq.
Xxxxx, Mandler, Croland, Xxxxxxxxx & Xxxxxxx, P.A.
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Telecopier: (000) 000-0000
To the Escrow Agent:
Xxxxxx Xxxx
Five Xxxxxxxx Xxxx
Xxxxxxxx'x Xxx
Xxxxxx, XX0X 0XX
Attn: Xxxx Xxxxx
Telecopier: 001-441-71-404-0087
11. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Escrow
Agreement on the date first above written.
EMAP PLC.
By: /s/ Xxxxx Xxxxx
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Authorized Representative
VIDEO JUKEBOX NETWORK, INC.
By: /s/ Xxxx XxXxxxx
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Authorized Representative
XXXXXX XXXX
By: /s/ Xxxx Xxxxx
------------------------------------
Authorized Representative
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EXHIBIT "A"
Bank Name: SunTrust
Account Name: Video Jukebox Network, Inc.
Account Number: 0189001156423
ABA Number: 000000000
Branch: 0000 Xxxxxxx Xxxx Xxxx
Xxxxx Xxxxx, Xxx. 00000
