EXHIBIT 99.9
ESCROW AGREEMENT
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This Escrow Agreement is entered into as of August 3, 2000, by and among
XxxxxxXxxxx.xxx, a Nevada corporation (the "Buyer"), Magnitude Network, Inc., a
Delaware corporation (the "Company"; together with Buyer, "Interested Parties")
and State Street Bank and Trust Company (the "Escrow Agent").
WHEREAS, the Buyer and the Company have entered into an Asset Purchase Agreement
dated August 3, 2000 (the "Purchase Agreement"), pursuant to which the
Buyer will purchase certain of the assets and assume certain of the
liabilities of the Company (the "Acquisition");
WHEREAS, the Purchase Agreement provides that an escrow account will be
established to secure the indemnification obligations of the Company to the
Buyer; and
WHEREAS, the parties hereto desire to establish the terms and conditions
pursuant to which such escrow account will be established and maintained;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. CONSENT OF COMPANY STOCKHOLDERS. The Company has consented to: (a) the
establishment of this escrow to secure the Company's indemnification obligations
under Section 8 of the Purchase Agreement in the manner set forth herein, and
(b) all of the other terms, conditions and limitations in this Escrow Agreement.
2. ESCROW AND INDEMNIFICATION.
(a) ESCROW OF SHARES. Simultaneously with the execution of this Escrow
Agreement, the Buyer shall deposit with the Escrow Agent a certificate for
416,486 shares of common stock of the Buyer (the "Escrow Shares"), as determined
pursuant to Section 1.5(a) of the Purchase Agreement, issued in the name of the
Escrow Agent or its nominee. The Escrow Agent hereby acknowledges receipt of
such stock certificate. The Escrow Shares shall be held as a trust fund and
shall not be subject to any lien, attachment, trustee process or any other
judicial process of any creditor of any party hereto. The Escrow Agent agrees to
hold the Escrow Shares in an escrow account (the "Escrow Account"), subject to
the terms and conditions of this Escrow Agreement.
(b) INDEMNIFICATION. The Company has agreed in Section 8 of the Purchase
Agreement to indemnify and hold harmless the Buyer from and against specified
Damages (as defined in Section 8.1 of the Purchase Agreement). The Escrow Shares
shall be security for such indemnity obligation of the Company, subject to the
limitations, and in the manner provided, in this Escrow Agreement.
(c) DIVIDENDS, ETC. Any securities distributed in respect of or in exchange
for any of the Escrow Shares, whether by way of stock dividends, stock splits or
otherwise, shall be issued in the name of the Escrow Agent or its nominee, and
shall be delivered to the Escrow Agent, who shall hold such securities in the
Escrow Account. Such securities shall be considered Escrow Shares for purposes
hereof. Any cash dividends or property (other than securities) distributed in
respect of the Escrow Shares shall promptly be distributed by the Escrow Agent
to the Company at the address in Section 8 (or such other address as may be
provided in writing to the Escrow Agent by the Company).
(d) VOTING OF SHARES. In accordance with Section 6 of this Escrow
Agreement, the Company shall have the right, in its sole discretion, to direct
the Escrow Agent in writing as to the exercise of any voting rights pertaining
to the Escrow Shares, and the Escrow Agent shall comply with any such written
instructions. In the absence of such instructions, the Escrow Agent shall not
vote any of the Escrow Shares. The Company shall have no obligation to solicit
consents or proxies from the Company's stockholders for purposes of any such
vote.
(e) TRANSFERABILITY. Pursuant to Section 9 of the Purchase Agreement, the
Company may sell, transfer or otherwise assign any or all of its right, title
and interest in and to the Escrow Shares. Notice of any such sale, transfer or
assignment shall be given to the Escrow Agent and the Buyer, and no such sale,
transfer or assignment shall be valid for purposes of this Escrow Agreement
until such notice is given.
3. DISTRIBUTION OF ESCROW PROPERTY (AS DEFINED IN SECTION 5 BELOW) AND
ESCROW SHARES.
(a) The Escrow Agent shall distribute the Escrow Property and Escrow
Shares only in accordance with (i) a written instrument delivered to the
Escrow Agent that is executed by both the Buyer and the Company and that
instructs the Escrow Agent as to the distribution of some or all of the
Escrow Property and Escrow Shares, (ii) an order of a court of competent
jurisdiction, a copy of which is delivered to the Escrow Agent by either
the Buyer or the Company, that instructs the Escrow Agent as to the
distribution of some or all of the Escrow Property and Escrow Shares, or
(iii) the provisions of Section 3(b) hereof.
(b) Within two business days after the date that is twelve months
following the date of this Escrow Agreement (the "Termination Date"), the
Escrow Agent shall distribute to the Company all of the Escrow Property and
Escrow Shares then held in escrow, registered in the name of the Company.
Notwithstanding the foregoing, if the Buyer has previously delivered to the
Escrow Agent a copy of a Claim Notice (as defined in Section 8.3 of the
Purchase Agreement) and the Escrow Agent has not received written notice of
the resolution of the claim covered thereby, the Escrow Agent shall retain
in escrow after the Termination Date such Escrow Shares as have a Value (as
defined in Section 4 below) equal to the Claimed Amount covered by such
Claim Notice; provided that, in the event insufficient Escrow Shares remain
in escrow, then Escrow Agent shall retain in escrow after the Termination
Date such Escrow Property as shall have a value, together with the
remaining Escrow Shares (if any) such that the aggregate value of the
retained Escrow Property and Escrow Shares is equal to the Claimed Amount
covered by such Claim Notice. Any Escrow Property and Escrow Shares so
retained in escrow shall be distributed only in accordance with the terms
of clauses (i) or (ii) of Section 3(a) hereof.
(c) Any distribution of all or a portion of the Escrow Property and
Escrow Shares to the Company shall be made, in the event of Escrow Shares,
by delivery of stock certificates issued in the name of the Company, and in
the event of Escrow Property, by check or wire transfer. Distributions to
the Company shall be made by mailing a stock certificate or such other
property to the Company at the address in Section 8 (or such other address
as may be provided in writing to the Escrow Agent by the Company). No
fractional Escrow Shares shall be distributed to Company pursuant to this
Escrow Agreement. Instead, the number of shares the Company shall receive
shall be rounded up or down to the nearest whole number.
4. VALUATION OF ESCROW SHARES. For purposes of this Escrow Agreement, the
"Value" of any Escrow Shares shall be $2.88 per share multiplied by the number
of such Escrow Shares.
5. INVESTMENT OF FUNDS.
In the event that the escrow consists of property other than the Escrow
Shares (the "Escrow Property"), then
(a) INVESTMENT OF FUNDS. If the Escrow Agent shall have received
specific written investment instruction from the Company (which shall
include instruction as to term to maturity, if applicable), on a timely
basis, the Escrow Agent shall invest the Escrow Property in Eligible
Investments, pursuant to and as directed in such instruction.
"Eligible Investments" shall mean (i) obligations issued or
guaranteed by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of
the United States is pledged in support thereof); (ii) obligations
(including certificates of deposit and banker's acceptances) of any
domestic commercial bank having capital and surplus in excess of
$500,000,000; (iii) repurchase obligations for underlying securities
of the type described in clause (i); (iv) investment in the Escrow
Agent's "Insured Money Market Fund" (IMMA). If otherwise qualified,
obligations of the Escrow Agent or any of its affiliates shall qualify
as Eligible Investments.
(b) ESCROW AGENT NOT RESPONSIBLE FOR INVESTMENT DECISIONS. Absent its
timely receipt of such specific written investment instruction from the
Company the Escrow Agent shall have no obligation or duty to invest (or
otherwise pay interest on) the Escrow Property. All earnings received from
the investment of the Escrow Property shall be credited to, and shall
become a part of, the Escrow (and any losses on such investments shall be
debited to the Escrow Account). The Escrow Agent shall have no liability
for any investment losses, including without limitation any market loss on
any investment liquidated prior to maturity in order to make a payment
required hereunder.
(c) TAX REPORTING. The Interested Parties agree that, for tax
reporting purposes, all interest or other income earned from the investment
of the Escrow Property in any tax year shall (i) to the extent such
interest or other income is distributed by the Escrow Agent to any person
or entity pursuant to the terms of this Agreement during such tax year, be
reported as allocated to such person or entity, and (ii) otherwise shall be
reported as allocated to the Company.
(d) CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER. The Interested
Parties agree to provide the Escrow Agent with a certified tax
identification number by signing and returning a Form W-9 (or Form W-8, in
case of non-U.S. persons) to the Escrow Agent prior to the date on which
any income earned on the investment of the Escrow Property is credited to
the Escrow Property. The Interested Parties understand that, in the event
their tax identification numbers are not certified to the Escrow Agent, the
Internal Revenue Code, as amended from time to time, may require
withholding of a portion of any interest or other income earned on the
investment of the Escrow Property.
6. NO DUTY TO VOTE OR PRESERVE RIGHTS IN ESCROW STOCK. Neither the Escrow
Agent nor its nominee shall be under any duty to take any action to preserve,
protect, exercise or enforce any rights or remedies under or with respect to the
Escrow Property and Escrow Shares (including without limitation with respect to
the exercise of any voting or consent rights, conversion or exchange rights,
defense of title, preservation of rights against prior matters or otherwise).
Notwithstanding the foregoing, if the Escrow Agent receives a written request
from the Company at least three (3) Business Days prior to the date on which the
Escrow Agent is requested therein to take such action (or such later date as may
be acceptable to the Escrow Agent), the Escrow Agent shall execute or cause its
nominee to execute, and deliver to a proxy or other instrument in the form
supplied to it by the Company for voting or otherwise exercising any right of
consent with respect to any of the Escrow Shares held by it hereunder (provided
that the Escrow Agent shall not be obliged to execute any such proxy or other
instrument if, in its judgment, the terms thereof may subject the Escrow Agent
to any liabilities or obligations in its individual capacity). The Escrow Agent
shall not be under any duty or responsibility to forward to any Interested
Party, or to notify any Interested Party with respect to, or to take any action
with respect to, any notice, solicitation or other document or information,
written or otherwise, received from an issuer or other person with respect to
the Escrow Shares, including but not limited to, proxy material, tenders,
options, the pendency of calls and maturities and expiration of rights.
7. SALE OF ESCROW SHARES.
In connection with any sale of the Escrow Shares pursuant to Section
2(e) of this Agreement, the Escrow Agent shall be entitled to receive and
rely upon, prior to taking action in that regard, written direction from
the Company as to the manner and method to be undertaken in carrying out
such sale, including without limitation written direction (1) identifying
the number of shares to be sold, (2) requesting the Escrow Agent to use a
brokerage firm identified by the Company therein, or requesting the Escrow
Agent to use its affiliated brokerage service, and (3) setting forth any
necessary or special instructions with respect to the sale (including any
stop loss or minimum price per share instruction); and the Company shall
execute and deliver any instruments reasonably required by the Escrow Agent
in order to carry out such sale or liquidation.
The Escrow Agent shall have no responsibility in connection with such
sale other than to make delivery of the Escrow Shares to the selected
brokerage firm, with instruction (including any special instruction
provided by the Company), and to receive and deposit into the Escrow
Account (to be administered and distributed in accordance with this
Agreement) as part of the Escrow Property and Escrow Shares, any net sale
proceeds received therefrom. The Escrow Agent shall have no duty or
obligation to determine or accomplish compliance with any applicable
transfer restrictions; and it shall be the sole obligation of the party
directing such sale to take any remaining actions, and to provide or
deliver any necessary instruments or opinions (at its expense) necessary to
comply with applicable transfer restrictions or applicable securities laws.
The Escrow Agent shall have no liability for any actions or omissions of
any such brokerage firm, and shall have no liability for the price or
execution achieved. Without limiting the generality of the foregoing, the
Company expressly acknowledges that (a) the Escrow Shares may be sent to a
transfer agent to be reissued in saleable form, (b) the Escrow Shares may
contain or be subject to transfer restrictions that may limit their
marketability and impose restrictions upon the number or types of
purchasers to whom they can be offered or sold, and (c) the Escrow Agent
shall have no liability for any failure or delay (or any price change
during any such delay) on the part of the Company or any transfer agent, or
caused by any necessary registration or delivery procedures, or compliance
with any applicable transfer restrictions involved in the transfer of such
Escrow Shares.
The Escrow Agent shall be entitled to contract with any brokerage firm
(which may be selected by the Escrow Agent without liability on its part,
taking into consideration any brokerage firm requested by the Company, as
provided above), which may be affiliated with the Escrow Agent, and may
enter into any such contract on a "best efforts" basis with the brokerage
firm. The Escrow Agent shall be indemnified hereunder for any costs,
expenses and risks associated therewith or arising thereunder (other than
resulting from its own gross negligence or willful misconduct), and the
proceeds of sale to be added to this escrow shall be net of all brokerage
commissions and charges.
The net sale proceeds of any such sale of Escrow Shares received by
the Escrow Agent shall be added to and administered as a part of the escrow
established by this Agreement, less a Sales Administration Fee (as
hereinafter defined). The "Sales Administration Fee" shall mean a fee equal
to five hundred dollars ($500.00) (the "Minimum Sales Fee") which shall be
due and payable upon the first such sales transaction; provided, however,
that in the event of more than one hundred (100) sale transactions in the
aggregate (the "Minimum Fee Limit"), a fee in addition to the Minimum Sales
Fee shall be assessed for each sale transaction after the Minimum Fee
Limit, in an amount equal to five dollars ($5.00) per sales transaction
(the "Additional Sales Fee"), due and payable at the time of each such
sale. For purposes of determining whether the Minimum Fee Limit has been
reached, and for purposes of assessing the Additional Sales Fee, any
individual sale (whether or not effected on the same day) shall be counted
as a separate sales transaction, and the Sales Administration Fee shall be
assessed each day any sale of shares is effected until the total number of
shares directed to be sold are sold.
8. CONCERNING THE ESCROW AGENT.
Each Interested Party acknowledges and agrees that the Escrow Agent
(i) shall not be responsible for any of the agreements referred to or
described herein (including without limitation the Asset Purchase
Agreement), or for determining or compelling compliance therewith, and
shall not otherwise be bound thereby, (ii) shall be obligated only for the
performance of such duties as are expressly and specifically set forth in
this Agreement on its part to be performed, each of which is ministerial
(and shall not be construed to be fiduciary) in nature, and no implied
duties or obligations of any kind shall be read into this Agreement against
or on the part of the Escrow Agent, (iii) shall not be obligated to take
any legal or other action hereunder which might in its judgment involve or
cause it to incur any expense or liability unless it shall have been
furnished with acceptable indemnification, (iv) may rely on and shall be
protected in acting or refraining from acting upon any written notice,
instruction (including, without limitation, wire transfer instructions,
whether incorporated herein or provided in a separate written instruction),
instrument, statement, certificate, request or other document furnished to
it hereunder and believed by it to be genuine and to have been signed or
presented by the proper person, and shall have no responsibility for making
inquiry as to or determining the genuineness, accuracy or validity thereof,
or of the authority of the person signing or presenting the same, and (v)
may consult counsel satisfactory to it, including in-house counsel, and the
opinion or advice of such counsel in any instance shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in accordance with
the opinion or advice of such counsel. Documents and written materials
referred to in this paragraph include, without limitation, e-mail and other
electronic transmissions capable of being printed, whether or not they are
in fact printed; and any such e-mail or other electronic transmission may
be deemed and treated by the Escrow Agent as having been signed or
presented by a person if it bears, as sender, the person's e-mail address.
The Escrow Agent shall not be liable to anyone for any action taken or
omitted to be taken by it hereunder except in the case of the Escrow
Agent's gross negligence or willful misconduct in breach of the terms of
this Agreement. In no event shall the Escrow Agent be liable for indirect,
punitive, special or consequential damage or loss (including but not
limited to lost profits) whatsoever, even if the Escrow Agent has been
informed of the likelihood of such loss or damage and regardless of the
form of action.
The Escrow Agent shall have no more or less responsibility or
liability on account of any action or omission of any book-entry
depository, securities intermediary or other subescrow agent employed by
the Escrow Agent than any such book-entry depository, securities
intermediary or other subescrow agent has to the Escrow Agent, except to
the extent that such action or omission of any book-entry depository,
securities intermediary or other subescrow agent was caused by the Escrow
Agent's own gross negligence or willful misconduct in breach of this
Agreement. The Escrow Agent is hereby authorized, in making or disposing of
any investment permitted by this Agreement, to deal with itself (in its
individual capacity) or with any one or more of its affiliates, whether it
or such affiliate is acting as a subagent of the Escrow Agent or for any
third person or dealing as principal for its own account.
Notwithstanding any term appearing in this Agreement to the contrary,
in no instance shall the Escrow Agent be required or obligated to
distribute any Escrow Property and Escrow Shares (or take other action that
may be called for hereunder to be taken by the Escrow Agent) sooner than
two (2) Business Days after (i) it has received the applicable documents
required under this Agreement in good form, or (ii) passage of the
applicable time period (or both, as applicable under the terms of this
Agreement), as the case may be.
All cash deposits and cash payments hereunder, or pursuant to the
terms hereof shall be in U.S. dollars.
9. COMPENSATION, EXPENSE REIMBURSEMENT AND INDEMNIFICATION.
Each of the Interested Parties agrees, jointly and severally, (i) to
pay or reimburse the Escrow Agent for its reasonable attorney's fees and
expenses incurred in connection with the preparation of this Agreement and
(ii) to pay the Escrow Agent's compensation for its normal services
hereunder in accordance with the fee schedule attached hereto as Exhibit A
and made a part hereof, which may be subject to change hereafter by the
Escrow Agent on an annual basis.
Each of the Interested Parties agrees, jointly and severally, to
reimburse the Escrow Agent on demand for all reasonable costs and expenses
incurred in connection with the administration of this Agreement or the
escrow created hereby or the performance or observance of its duties
hereunder which are in excess of its compensation for normal services
hereunder, including without limitation, payment of any legal fees and
expenses incurred by the Escrow Agent in connection with resolution of any
claim by any party hereunder; provided that, Company shall be solely
responsible for payment or reimbursement to the Escrow Agent for its
reasonable attorney's fees and expenses incurred in connection with any
sale of Escrow Shares pursuant to Sections 2(e) and 7.
Each of the Interested Parties covenants and agrees, jointly and
severally, to indemnify the Escrow Agent (and its directors, officers and
employees) and hold it (and such directors, officers and employees)
harmless from and against any loss, liability, damage, cost and expense of
any nature incurred by the Escrow Agent arising out of or in connection
with this Agreement or with the administration of its duties hereunder,
including but not limited to reasonable attorney's fees and other costs and
expenses of defending or preparing to defend against any claim of liability
unless and except to the extent such loss, liability, damage, cost and
expense shall be caused by the Escrow Agent's gross negligence, or willful
misconduct. The foregoing indemnification and agreement to hold harmless
shall survive the termination of this Agreement and the resignation of the
Escrow Agent.
Notwithstanding anything herein to the contrary, the Escrow Agent
shall have and is hereby granted a possessory lien on and security interest
in the Escrow Property and Escrow Shares, and all proceeds thereof, to
secure payment of all amounts owing to it from time to time hereunder,
whether now existing or hereafter arising. The Escrow Agent shall have the
right to deduct from the Escrow Property and Escrow Shares, and proceeds
thereof, any such sums, upon one Business Day's notice to the Interested
Parties of its intent to do so. Without altering or limiting the joint and
several liability of any of the Interested Parties to the Escrow Agent
hereunder, each of the Interested Parties agrees as between themselves that
they shall share, in equal amounts each, all amounts payable to the Escrow
Agent pursuant to this Section.
10. TAX INDEMNIFICATION.
Each of the Interested Parties agrees, jointly and severally, (i) to
assume any and all obligations imposed now or hereafter by any applicable
tax law with respect to any payment or distribution of the Escrow Property
and Escrow Shares or performance of other activities under this Agreement,
(ii) to instruct the Escrow Agent in writing with respect to the Escrow
Agent's responsibility for withholding and other taxes, assessments or
other governmental charges, and to instruct the Escrow Agent with respect
to any certifications and governmental reporting that may be required under
any laws or regulations that may be applicable in connection with its
acting as Escrow Agent under this Agreement, and (iii) to indemnify and
hold the Escrow Agent harmless from any liability or obligation on account
of taxes, assessments, additions for late payment, interest, penalties,
expenses and other governmental charges that may be assessed or asserted
against the Escrow Agent in connection with, on account of or relating to
the Escrow Property and Escrow Shares, the management established hereby,
any payment or distribution of or from the Escrow Property and Escrow
Shares pursuant to the terms hereof or other activities performed under the
terms of this Agreement, including without limitation any liability for the
withholding or deduction of (or the failure to withhold or deduct) the
same, and any liability for failure to obtain proper certifications or to
report properly to governmental authorities in connection with this
Agreement, including costs and expenses (including reasonable legal fees
and expenses), interest and penalties. The foregoing indemnification and
agreement to hold harmless shall survive the termination of this Agreement
and the resignation of the Escrow Agent
11. DISPUTE RESOLUTION. It is understood and agreed that, should any
dispute arise with respect to the delivery, ownership, right of possession,
and/or disposition of the Escrow Property and Escrow Shares, or should any
claim be made upon the Escrow Agent or the Escrow Property and Escrow
Shares by a third party, the Escrow Agent upon receipt of notice of such
dispute or claim is authorized and shall be entitled (at its sole option
and election) to retain in its possession without liability to anyone, all
or any of said Escrow Property and Escrow Shares until such dispute shall
have been settled either by the mutual written agreement of the parties
involved or by a final order, decree or judgment of a court in the United
States of America, the time for perfection of an appeal of such order,
decree or judgment having expired. The Escrow Agent may, but shall be under
no duty whatsoever to, institute or defend any legal proceedings which
relate to the Escrow Property and Escrow Shares.
12. WAIVER OF JURY TRIAL.
THE ESCROW AGENT AND THE INTERESTED PARTIES HEREBY WAIVE A TRIAL BY
JURY OF ANY AND ALL ISSUES ARISING IN ANY ACTION OR PROCEEDING BETWEEN THEM
OR THEIR SUCCESSORS OR ASSIGNS, UNDER OR IN CONNECTION WITH THIS AGREEMENT
OR ANY OF ITS PROVISIONS OR ANY NEGOTIATIONS IN CONNECTION HEREWITH.
13. FORCE MAJEURE. The Escrow Agent shall not be responsible for delays or
failures in performance resulting from acts beyond its control. Such acts shall
include but not be limited to acts of God, strikes, lockouts, riots, acts of
war, epidemics, governmental regulations superimposed after the fact, fire,
communication line failures, computer viruses, power failures, earthquakes or
other disasters.
14. REPRODUCTION OF DOCUMENTS. This Agreement and all documents relating
thereto, including, without limitation, (a) consents, waivers and modifications
which may hereafter be executed, and (b) certificates and other information
previously or hereafter furnished, may be reproduced by any photographic,
photostatic, microfilm, optical disk, micro-card, miniature photographic or
other similar process. The parties agree that any such reproduction shall be
admissible in evidence as the original itself in any judicial or administrative
proceeding, whether or not the original is in existence and whether or not such
reproduction was made by a party in the regular course of business, and that any
enlargement, facsimile or further reproduction of such reproduction shall
likewise be admissible in evidence.
15. ASSIGNEES.
(a) This Escrow Agreement, and the rights and obligations of the
Company hereunder, may be assigned by the Company to any person or entity,
and such transferee shall have all of the power, authority, rights and
privileges conferred by this Escrow Agreement upon the original Company,
and the term "Company" as used herein shall be deemed to include successor
Company; provided that such transferee agrees in writing to be bound by the
terms and conditions of this Escrow Agreement.
(b) The Escrow Agent may execute any of its powers or responsibilities
hereunder and exercise any rights hereunder, either directly or by or
through its agents or attorneys. Nothing in this Escrow Agreement shall be
deemed to impose upon the Escrow Agent any duty to qualify to do business
in any jurisdiction other than the Commonwealth of Massachusetts or to act
as fiduciary. The Escrow Agent shall not be responsible for and shall not
be under a duty to examine, inquire into or pass upon the validity, binding
effect, execution or sufficiency of this Escrow Agreement or of any
amendment or supplement hereto.
16. AMOUNTS PAYABLE BY THE PARTIES. The amounts payable by the Interested
Parties under this Escrow Agreement (i.e., the fees of the Escrow Agent payable
and the indemnification obligations pursuant to Section 9) shall be paid in
cash, by certified check or by wire transfer of immediately available funds. The
Escrow Agent shall notify the Buyer and/or the Company, as the case may be, of
any such amount payable by such party, as soon as it becomes aware that any such
amount is payable, with a copy of such notice to the other parties to this
Escrow Agreement.
17. TERMINATION. This Escrow Agreement shall terminate upon the
distribution by the Escrow Agent of all of the Escrow Shares in accordance with
this Escrow Agreement; provided that the provisions of Sections 9 and 10 shall
survive such termination.
18. NOTICES. All notices, instructions and other communications given
hereunder or in connection herewith shall be in writing. Any such notice,
instruction or communication shall be sent either (i) by registered or certified
mail, return receipt requested, postage prepaid, or (ii) via a reputable
nationwide overnight courier service, in each case to the address set forth
below. Any such notice, instruction or communication shall be deemed to have
been delivered two business days after it is sent by registered or certified
mail, return receipt requested, postage prepaid, or one business day after it is
sent via a reputable nationwide overnight courier service.
If to Company: with a copy to:
Magnitude Network, Inc. Xxxx and Xxxx LLP
c/o CMGI, Inc. 00 Xxxxx Xxxxxx
000 Xxxxxxxxxx Xx. Xxxxxx, XX 00000
Xxxxxxx, XX 00000 Tel: (000) 000-0000
Attention: General Counsel Fax: (000) 000-0000
and Chief Financial Officer Attn: Xxxx X. Xxxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
and to:
iCast Corporation
00 Xxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Chief Financial Officer
Tel: (000) 000-0000
Fax: (000) 000-0000
If to Buyer: with a copy to:
XxxxxxXxxxx.xxx Clark, Wilson, Barristers & Solicitors
000 Xxxxxxxx Xxxxxx 000-000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, X.X. X0X 0X0 Xxxxxxxxx, X.X., Xxxxxx
Tel: (000) 000-0000 V6C 3H1
Fax: (000) 000-0000 Tel: (000) 000-0000
Attn: Chief Financial Officer Fax: (000) 000-0000
Attn: Xxxxx Xxxxx, Esq.
If to the Escrow Agent:
By Mail:
State Street Corporation
Corporate Trust
X.X. Xxx 000
Xxxxxx, XX 00000-0000
Attention: Corporate Trust Department, 6th Floor
Magnitude/XxxxxxXxxxx.xxx
Facsimile: (000) 000-0000
By Overnight or Courier:
State Street Corporation
Xxx Xxxxxx xx Xxxxxxxxx
Xxxxxx, XX 00000-0000
Attention: Corporate Trust Department, 6th Floor
Magnitude/XxxxxxXxxxx.xxx
Facsimile: (000) 000-0000
Any party may give any notice, instruction or communication in connection
with this Escrow Agreement using any other means (including personal delivery,
telecopy or ordinary mail), but no such notice, instruction or communication
shall be deemed to have been delivered unless and until it is actually received
by the party to whom it was sent. Any party may change the address to which
notices, instructions or communications are to be delivered by giving the other
parties to this Escrow Agreement notice thereof in the manner set forth in this
Section 10.
19. SUCCESSOR ESCROW AGENT. In the event the Escrow Agent becomes
unavailable or unwilling to continue in its capacity herewith, the Escrow Agent
may resign and be discharged from its duties or obligations hereunder by
delivering a resignation to the parties to this Escrow Agreement, not less than
60 days prior to the date when such resignation shall take effect. The Buyer may
appoint a successor Escrow Agent without the consent of the Company so long as
such successor is a bank with assets of at least $500 million, and may appoint
any other successor Escrow Agent with the consent of the Company, which shall
not be unreasonably withheld. If, within such notice period, the Buyer provides
to the Escrow Agent written instructions with respect to the appointment of a
successor Escrow Agent and directions for the transfer of any Escrow Shares then
held by the Escrow Agent to such successor, the Escrow Agent shall act in
accordance with such instructions and promptly transfer such Escrow Shares to
such designated successor. If no successor Escrow Agent is named as provided in
this Section 19 prior to the date on which the resignation of the Escrow Agent
is to properly take effect, the Escrow Agent may apply to a court of competent
jurisdiction for appointment of a successor Escrow Agent.
20. GENERAL.
(a) GOVERNING LAW; ASSIGNS. This Escrow Agreement shall be governed by
and construed in accordance with the internal laws of the Commonwealth of
Massachusetts without regard to conflict-of-law principles and shall be
binding upon, and inure to the benefit of, the parties hereto and their
respective successors and assigns.
(b) COUNTERPARTS. This Escrow 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.
(c) ENTIRE AGREEMENT. Except for those provisions of the Purchase
Agreement referenced herein, this Escrow Agreement constitutes the entire
understanding and agreement of the parties with respect to the subject
matter of this Escrow Agreement and supersedes all prior agreements or
understandings, written or oral, between the parties with respect to the
subject matter hereof.
(d) WAIVERS. No waiver by any party hereto of any condition or of any
breach of any provision of this Escrow Agreement shall be effective unless
in writing. No waiver by any party of any such condition or breach, in any
one instance, shall be deemed to be a further or continuing waiver of any
such condition or breach or a waiver of any other condition or breach of
any other provision contained herein.
(e) AMENDMENT. This Escrow Agreement may be amended only with the
written consent of the Buyer, the Escrow Agent and the Company.
(f) CONSENT TO JURISDICTION AND SERVICE. The parties hereby absolutely
and irrevocably consent and submit to the jurisdiction of the courts in the
Commonwealth of Massachusetts and of any Federal court located in said
Commonwealth in connection with any actions or proceedings brought against
any party hereto by the Escrow Agent arising out of or relating to this
Escrow Agreement. In any such action or proceeding, the parties hereby
absolutely and irrevocably waive personal service of any summons,
complaint, declaration or other process and hereby absolutely and
irrevocably agree that the service thereof may be made by certified or
registered first-class mail directed to such party, at their respective
addresses in accordance with Section 18 hereof.
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IN WITNESS WHEREOF, the parties have duly executed this Escrow Agreement as of
the day and year first above written.
XXXXXXXXXXX.XXX By:
By: /s/ Xxxxxxx Xxxxx
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MAGNITUDE NETWORK, INC.
By: /s/ Xxxx X. Xxxxxxx
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STATE STREET BANK
AND TRUST COMPANY
By: /s/
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