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EXHIBIT 10.30
EXHIBIT A
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this "Agreement") is made as of April 25,
2000 by and among MediaX Corporation, a corporation incorporated under the laws
of the State of Nevada (the "Company"), the investors signatory hereto (each an
"Investor" and together the "Investors"), and Epstein Becker & Green, P.C., (the
"Escrow Agent"). Capitalized terms used but not defined herein shall have the
meanings set forth in the Common Stock 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 Five
Hundred Thousand Dollars ($500,000) of Common Stock (the "Shares") at the
Purchase Price set forth in the Common Stock 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 the initial Closing in
escrow until the Escrow Agent has received the certificates representing the
Initial Shares;
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 $500,000 of Common Stock, all as contemplated by the Purchase
Agreement.
1.2. (a) At the initial Closing, upon Escrow Agent's receipt of
the applicable Purchase Price for the Closing into its attorney trustee account
from the Investors, together with 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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(a) Wire transfers to the Escrow Agent shall be made
as follows:
Epstein Becker & Green, P.C.
Master Escrow Account
Chase Manhattan Bank
1411 Broadway - Fifth Floor
New York, New York 10018
ABA No. 021000021
Account No. 035-1-346036
Attention: L. Borneo
1.3. At the initial Closing, the Company, upon receipt of said
notice, shall deliver to the Escrow Agent the certificates representing the
Initial Shares to be issued to each Investor 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 D
to the Purchase Agreement;
(iii) the original executed opinion of Weed & Co. L.P. in the
form of Exhibit C 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 initial Closing, once Escrow Agent confirms the
validity of the issuance of the Shares 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
per the written instructions of the Company net of legal and escrow
administrative costs of Five Thousand Dollars ($5,000) to Epstein Becker &
Green, P.C. ("EB&G"), 250 Park Avenue, New York, NY 10177, and a finder's fee of
five percent (5%) of the Purchase Price as directed by Triton West Group.
Once the funds (as set forth above) have been sent per the
Company's instructions, the Escrow Agent shall then arrange to have the Initial
Share certificates, 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.
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.
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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.
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.
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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.
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 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.
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
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
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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.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date set forth above.
Dated: April 25, 2000
MEDIAX CORPORATION
By:
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Rainer Poertner, Chairman
INVESTOR
AMRO International, S.A.
By:
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H.U. Bachofen, Director
ESCROW AGENT:
EPSTEIN BECKER & GREEN, P.C.
By:
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Robert F. Charron
Authorized Signatory
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EXHIBIT X TO
ESCROW AGREEMENT
RELEASE NOTICE
The UNDERSIGNED, pursuant to the Escrow Agreement, dated as of
April 25, 2000 among MediaX Corporation, the Investors signatory thereto and
Epstein Becker & 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 set forth in the
Common Stock 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 Investor.
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 25th day of April, 2000.
MEDIAX CORPORATION
By:
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Rainer Poertner, President
INVESTOR:
AMRO International, S.A.
By:
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H.U. Bachofen, Director
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