Exhibit 10.1
EXHIBIT A
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this "Agreement") is made as of March____, 2002,
by and among General Magic, Inc. (the "Seller"), the buyers of the Seller's
securities as set forth on the signature page hereto (collectively, the
"Buyers"), and Xxxxxxx Xxxxxxxxx LLP, having an address at 00 Xxxx 00xx Xxxxxx,
Xxxxx 0000, Xxx Xxxx, XX 00000 (the "Escrow Agent"). CAPITALIZED TERMS USED BUT
NOT DEFINED HEREIN SHALL HAVE THE MEANINGS SET FORTH IN THE SUBSCRIPTION
AGREEMENT REFERRED TO IN THE FIRST RECITAL.
WHEREAS, the Buyers will purchase, severally and not jointly, the
Common Stock (the "Shares") from the Seller pursuant to the Subscription
Agreements (the "Subscription Agreement") to be entered into between each Buyer
and the Seller, which Shares shall be issued pursuant to the terms and
conditions contained herein and in the Subscription Agreements; and
WHEREAS, the Seller and the Buyers have requested that the Escrow Agent
hold in escrow the applicable purchase price pending receipt by the Buyers of
the Shares issuable pursuant to the Subscription Agreement;
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 I
TERMS OF THE ESCROW
1.1. On or prior to the date that the Seller and each Buyer enters into
the Subscription Agreements, each Buyer shall send its portion of the purchase
price of the Shares, as set forth on the signature pages hereto (individually,
the "Pro Rata Portion" and collectively, the "Purchase Price"), to the Escrow
Agent. Upon receipt of the Purchase Price, but in no event prior to the date on
which a Subscription Agreement is executed by each of the Buyers, the Escrow
Agent shall advise the Seller that it has received the Purchase Price. The
Seller shall promptly, but no later than one (1) Trading Day after receipt of
such funding notice from the Escrow Agent:
(i) cause its transfer agent to issue the Shares applicable to each
Buyer via DTC's DWAC system to the account specified by such
Buyer; and
(ii) deliver a Form 424(b)(2) supplemental prospectus (the
"Prospectus") disclosing said purchase to the Buyers.
1.2. Each Buyer shall, upon (1) becoming aware that the Shares
applicable to such Buyer have been delivered to the account specified by such
Buyer and (2) receipt of the Prospectus, promptly (and in no event later than
the same Trading Day on which
the latter of the foregoing occurs) deliver written confirmation thereof to the
Escrow Agent. Upon receipt of such written confirmation from the Buyers that the
Shares have been so deposited and the Prospectus has been delivered, the Escrow
Agent shall, within one (1) Trading Day, wire 96% of the Purchase Price per the
written instructions of the Seller, net of $20,000 for the Buyers' legal,
administrative and due diligence fees and expenses and net of $80,000 per the
written directions of Hyperion Partners Corp. in connection with the placement
of $2,000,000 of the Shares with the Special Situation Group of Funds outside of
this Agreement, and the remaining 4% per the written instructions of Hyperion
Partners Corp.
1.3. In the event that, within two (2) Trading Days of the date of the
Escrow Agent's notice, the applicable Shares are not in a Buyer's DTC account
via the DWAC system or the supplemental prospectus is not delivered to a Buyer,
then such Buyer shall have the right to demand, by notice to the Escrow Agent
and the Seller, the return of the Purchase Price, and, at the election of the
Buyer, the Subscription Agreement with such Buyer shall be deemed null and void.
Notwithstanding the foregoing, the Escrow Agent shall deliver the remaining
amount of the Purchase Price in accordance with Section 1.2 hereof with respect
to any Buyer(s) that have received such Shares and such Prospectus.
1.4. The Seller understands and acknowledges that delivery of the
Shares into the Buyers' DTC accounts via the DWAC system is a material term of
the Subscription Agreements with each Buyer and this Agreement, that time is of
the essence and that a delay in the delivery of the Shares into a Buyer's DTC
account via the DWAC system beyond 3 business days after the dates set forth
herein or in the Escrow Agreement, as may be applicable, could result in
economic loss to such Buyer. Notwithstanding the foregoing, in no event shall
Seller be liable for incidental or consequential damages to any such Buyer.
1.5 Wire transfers to the Escrow Agent shall be made as follows:
Chase Manhattan Bank, NA
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000 XXX
ABA Routing Number: 000000000
Account Number: 987074342668
Name of Account: Xxxxxxx Xxxxxxxxx LLP Master Escrow Account
Remark: General Magic, Inc.
ARTICLE II
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 an 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 by fax, overnight courier,
registered or certified mail, postage
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prepaid, return receipt requested, and shall be deemed received upon receipt
thereof, as set forth in the Subscription 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 their respective agents 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. Except as expressly set forth herein,
any action to enforce, arising out of, or relating in any way to, any provisions
of this Escrow Agreement shall be brought in the Federal or state courts of New
York, New York as is more fully set forth in the Subscription Agreement.
2.7. The Escrow Agent's duties hereunder may be altered, amended,
modified or revoked only by a writing signed by the Seller, Buyers 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, excepting only its own gross negligence or willful
misconduct, and any act done or omitted by the Escrow Agent pursuant to the
advice of the Escrow Agent's attorneys-at-law (other than Escrow Agent itself)
shall be rebuttable evidence of such good faith.
2.9. In case the Escrow Agent obeys or complies with any 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 Subscription Agreement or any documents or
papers deposited or called for thereunder or hereunder.
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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 ACTED AS LEGAL COUNSEL FOR THE BUYERS,
AND MAY CONTINUE TO ACT AS LEGAL COUNSEL FOR THE BUYERS, FROM TIME TO TIME,
NOTWITHSTANDING HIS DUTIES AS AN OFFICER OF THE ESCROW AGENT HEREUNDER. THE
SELLER CONSENTS TO THE ESCROW AGENT IN SUCH CAPACITY AS LEGAL COUNSEL FOR THE
BUYERS AND WAIVES ANY CLAIM THAT SUCH REPRESENTATION REPRESENTS A CONFLICT OF
INTEREST ON THE PART OF THE ESCROW AGENT. THE SELLER UNDERSTANDS THAT THE BUYERS
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 Seller
and the Buyers. In the event of any such resignation, the Buyers and the Seller
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 all or any part of such portion of the escrow funds as is the
subject of said dispute until such disputes shall have been settled either by
mutual written agreement of the parties concerned or by a final order, decree or
judgment of 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
such portion of the escrow funds as is the subject of said dispute 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 State and
City of New York in accordance with the applicable procedure therefor.
2.15. The Seller and the Buyers agree jointly and severally to
indemnify and hold harmless the Escrow Agent and its partners, employees, agents
and representatives from any and 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 Subscription
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.
2.16. In order to provide for just and equitable contribution in
circumstances under which any of the Buyers or the Seller incurs any indemnity
obligation hereunder, each such Buyer and the Seller shall be entitled to seek
contribution from the other parties hereto in such proportion as is appropriate
and equitable under all circumstances taking into account the relative benefits
received by the Seller on the one hand and the Buyers on the other, from the
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transaction or proposed transaction under this Subscription or, if allocation on
that basis is not permitted under applicable law, in such proportion as is
appropriate to reflect not only the relative benefits received by the Seller on
the one hand and the Buyers on the other, but also the relative fault of the
Seller and the Buyers; provided, however, in no event shall the aggregate
contribution of (i) the Seller be greater than the net proceeds received by the
Seller from the sale of the Shares pursuant to the Registration Statement or
(ii) a Buyer be greater than the net amount actually received by such Buyers
pursuant to the purchase of the Shares.
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IN WITNESS WHEREOF, the parties hereto have executed this Escrow
Agreement as of this __ day of March, 2002.
ESCROW AGENT:
GENERAL MAGIC, INC. XXXXXXX XXXXXXXXX LLP
By: ______________________________ By: ______________________________
Name: Name:
Title: Title:
BUYERS:
PALISADES EQUITY FUND X.X. XXXXXXXXXXX L.P.
($750,000) ($1,150,000)
By: ______________________________ By: ______________________________
Name: Name:
Title: Title:
ALPHA CAPITAL AG TRADERSBLOOM LIMITED
($500,000) ($500,000)
By: ______________________________ By: ______________________________
Name: Name:
Title: Title:
KAZI MANAGEMENT, INC. XXXXX ENTERPRISES
($1,000,000) ($220,000)
By: ______________________________ By: ______________________________
Name: Name:
Title: Title:
CRESCENT INTERNATIONAL LTD. TRITON WEST GROUP, INC.
($700,000) ($300,000)
By: ______________________________ By: ______________________________
Name: Name:
Title: Title:
BRISTOL INVESTMENT FUND, LTD.
($650,000)
By: ______________________________ By: ______________________________
Name: XXXX XXXXXXX
Title: ($350,000)
THE ISOSCELES FUND
($200,000)
By: ______________________________ By: ______________________________
Name: XXXX XXXXX
Title: ($250,000)]
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