EXHIBIT 10.2
ESCROW AGREEMENT BETWEEN FIDELITY TRANSFER COMPANY,
TTI AND THE COMPANY
ESCROW AGREEMENT
THIS ESCROW AGREEMENT ("Escrow Agreement") is entered into effective as
of the 1st day of August, 1995, by and among TRANSWORLD TELECOMMUNICATIONS,
INC., a Pennsylvania corporation ("Transworld"), WIRELESS CABLE &
COMMUNICATIONS, INC., a Nevada corporation ("Wireless"), and FIDELITY TRANSFER
COMPANY, a Utah corporation ("Fidelity"), with reference to the following facts:
A. Transworld and Wireless are parties to that certain Agreement and
Plan of Reorganization of even date herewith (the "Plan") under which Transworld
and Wireless will enter into a transaction in compliance with the provisions of
ss. 355 and ss. 368(a)(1)(D) of the Internal Revenue Code of 1986, as amended,
and pursuant to which Wireless will issue to Transworld, and Transworld will
thereafter distribute to its shareholders, 3,500,000 common shares of Wireless
(the "Wireless Shares").
B. Wireless and Transworld have agreed that, immediately after the
issuance by Wireless of the Wireless Shares to Transworld, the Wireless Shares
will be delivered by Transworld to Fidelity, to be held in accordance with the
terms and conditions of this Escrow Agreement, pending the compliance by
Transworld and Wireless of certain disclosure and registration requirements set
forth in the federal securities laws.
C. Fidelity acts as transfer agent for Transworld's securities, and is
familiar with and maintains, Transworld's shareholder records.
58
D. Fidelity has agreed to act as escrow agent hereunder, and is willing to
accept delivery of, and to hold, the Wireless Shares on the terms and subject to
the conditions of this Escrow Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. Appointment of Escrow Agent. Wireless and Transworld hereby appoint and
designate Fidelity as escrow agent hereunder. Fidelity accepts such appointment,
subject to the terms and conditions hereof.
2. Compensation. Transworld shall pay to Fidelity the amount of Five
Hundred Dollars ($500) as full compensation for its services hereunder. Such
amount shall be in addition to any amounts due or payable to Fidelity under the
provisions of paragraph 5.
3. Term of Escrow. The term of the escrow established hereunder (the
"Escrow") will begin as of the date of the initial deposit of the Escrow
Documents, as described below, into the Escrow, and will continue thereafter
until terminated as provided in this Escrow Agreement.
4. Fidelity Instructions. Fidelity's conduct hereunder will be subject to
the terms and conditions specified in the other provisions of this Escrow
Agreement and to the specific instructions set forth in this paragraph 4.
(a) Concurrently with the Closing of the Plan, Transworld will
deliver to Fidelity, for deposit into the Escrow, the following certificates,
documents, instruments, and agreements (the "Escrow Documents"): (i) the
Wireless Shares, represented by one certificate in the name of Fidelity, as
escrow agent for Transworld's shareholders; and (ii) such other documents,
instruments, stock powers, endorsements or agreements as may be necessary or
appropriate for the transfer of the Wireless Shares to the shareholders of
Transworld on the books and records of Wireless, in
59
accordance with their respective interests as set forth on Schedule "A" attached
hereto, upon their release by Fidelity as provided herein.
(b) Upon the receipt by Fidelity of (i) the Escrow Documents;
and (ii) written notices (the "Release Notices") from both Wireless and
Transworld that they have complied with all requirements of the federal
securities laws necessary for the distribution of the Wireless Shares to
Transworld's shareholders (including the filing of a Form 10 under the
Securities Exchange Act of 1934, as amended (the "Act"), and/or proxy or
disclosure materials providing substantially all of the information required by
Regulation 14A and/or 14C of the Act), Fidelity will, and is hereby instructed
to, release the Escrow Documents and to cause to be prepared and delivered to
the respective Transworld shareholders at the addresses set forth in the
shareholders books and records of Transworld, as maintained by Fidelity,
separate certificates for the Wireless Shares in the respective amounts set
forth on Schedule "A". Upon Fidelity's delivery of the Escrow Documents in
accordance with the provisions of this paragraph, this Escrow Agreement will
terminate.
(c) If Transworld does not deposit the Escrow Documents,
and/or the Escrow Agent has not received the Release Notices from Transworld and
Wireless on or before February 1, 1996 (or such other date as Transworld and
Wireless will designate by written notice to Fidelity on or before February 1,
1996), Fidelity is hereby instructed to return the Escrow Documents to
Transworld, at which time this Escrow Agreement will terminate.
5. Escrow Agent Terms. The acceptance by Fidelity of its obligations
hereunder is subject to the following terms and conditions:
(a) Transworld hereby agrees to pay to Fidelity any and all
costs or expenses incurred by it in connection with the actions taken hereunder,
and to pay to Fidelity such other amounts as shall be incurred by Fidelity in
its capacity as transfer agent for Transworld in connection with the
transactions described herein (including, without limitation, such certificate
and document
60
preparation fees, stock record transfer fees and other costs and expenses as
Transworld and Fidelity shall agree upon).
(b) In performing any of its duties under this Escrow
Agreement, or upon the claimed failure to perform hereunder, Fidelity shall not
be liable to anyone for any damages, losses, or expenses which may occur as a
result of Fidelity so acting or failing to act; provided, however, that Fidelity
will be liable for damages arising out of its negligence or willful default
under this Escrow Agreement. Accordingly, Fidelity will not incur any liability
with respect to (i) any action taken or omitted to be taken by it in good faith
upon written advice by independent counsel given with respect to any questions
relating to the duties and responsibilities of the escrow agent hereunder, or
(ii) any action taken or omitted to be taken in reliance upon any document,
including any written notice or instructions provided for in this Escrow
Agreement, the truth and accuracy of any information contained therein which
Fidelity in good faith believes to be genuine, to have been signed or presented
by the proper person or persons, and to conform with the provisions of this
Escrow Agreement.
(c) Transworld hereby agrees to indemnify and hold Fidelity
harmless against and from any and all losses, claims, damages, costs,
liabilities and expenses, including without limitation, reasonable costs of
investigation and counsel fees and disbursements (the "Claims") incurred by it
arising from any litigation relating to the provisions of this Escrow Agreement;
provided, however, that if Fidelity is found guilty of willful default under
this Escrow Agreement, then in that event, Fidelity will bear all Claims
relating to such willful default and, in addition, will be liable to Wireless
and Transworld for their damages, costs, or losses arising from such action by
Fidelity.
(d) Fidelity will be bound only by the terms of this Escrow
Agreement and will not be bound by or incur any liability with respect to the
Plan or any other document or understanding of Wireless and Transworld except as
expressly provided herein. Fidelity will not have any duties hereunder except
those specifically set forth herein.
61
6. Full Force and Effect. The parties hereby expressly consent to the terms
of this Escrow Agreement and agree that it will be given full force and effect.
7. Entire Agreement. This Escrow Agreement sets forth the entire
understanding of the parties as to the matters set forth herein and cannot be
altered or otherwise amended except pursuant to an instrument, in writing,
signed by all of the parties hereto.
8. Governing Law. This Escrow Agreement will be governed by and interpreted
in accordance with the laws of the State of Utah, without giving effect to the
choice of law provisions thereof.
9. Counterparts. This Escrow Agreement may be executed in any number of
counterparts and/or telecopied counterparts, each of which, when executed and
delivered, will be deemed an original, but all of which will together constitute
one and the same instrument.
10. Binding Agreement. This Escrow Agreement will be binding upon and will
inure to the benefit of the parties hereto and their heirs, personal
representatives, successors, and assigns.
11. Authorizations. Each individual executing this Escrow Agreement hereby
represents and warrants to each other person so signing (and to each other
entity for which another person may be signing) that he has been duly authorized
to execute and deliver this Escrow Agreement in the capacity of the person or
entity set forth for which he so executes this Escrow Agreement.
12. Notices. All notices required or permitted hereunder must be made in
writing to the party to be notified and at the address noted for such party
below. Notices delivered by United States mail will be deemed delivered two days
after deposit in the United States mail, postage prepaid; notices delivered by
facsimile or in person will be deemed made when actually received by such party
with confirmation.
13. Time of Essence. Time is of the essence hereof.
62
IN WITNESS WHEREOF, the parties have executed this Escrow Agreement as
of the date first shown above.
TRANSWORLD TELECOMMUNICATIONS, INC.
By:/s/ Troy D'Ambrosio
Its:Vice President
WIRELESS CABLE & COMMUNICATIONS, INC.
By:/s/ Lance D'Ambrosio
Its:President
FIDELITY TRANSFER COMPANY
By:/s/ Linda Kener
Its:President
63