ESCROW AGREEMENT
This Escrow Agreement, ("Agreement"), dated as of among American
Alliance, Inc., a Nevada corporation with corporate offices located at 000-00
Xxxxxxxx Xxxxx, Xxxxxxxx Xxxx, Xxxxxxx, Xxxxxx ("CompanyA"); 1Soft Corporation,
an Oregon corporation with corporate offices located at 00000 Xxxxx Xxxx Xxxx,
Xxxx Xxxxx, Xxxxxx, 00000, ("CompanyB"); and Xxxxx Law Firm, P.C., whose address
is 00000 Xxxxx Xxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000-0000 (the
"Agent").
I. Escrow
S. 1.01 Appointment and Acknowledgment of Escrow Agent
Company A and Company B hereby appoint the Agent, and the Agent hereby
agrees to serve, as Escrow Agent pursuant to the terms of this Agreement. The
Agent acknowledges receipt of $50,000, which has been wired into the Agent's
Attorney Trust Account. This shall hereafter be referred to as the "Escrowed
Property."
S. 1.02 Operation of Escrow
The parties hereto agree that the escrow created by this Agreement (the
"Escrow") shall operate as follows:
(a) Within twenty-four (24) hours of receiving written notice of
transfer of the Domain Name "XxxxxXxXxxx.xxx" (the "Domain
Name") to CompanyA, which shall not be later than the close of
business April 15, 1999, Agent shall transfer the Escrowed
Property, less fifty percent (50%) of Agent's escrow fee not
to exceed $300.00, to CompanyB's bank as listed below:
Routing #1211-35045
TriCounties Bank
Chico, California
Acct.# 230-262091
AccountName: 1Soft Corp.
(b) If Domain Name has not been transferred to CompanyA by close
of business April 15, 1999 and the Agent has not received
written notice of the extension of the deadline, the Escrowed
Property, less fifty percent (50%) of Agent's escrow fee not
to exceed $300.00, shall be immediately returned to CompanyA.
S. 1.03 Further Provisions Relating to the Escrow
(a) Distribution by the Agent in accordance with the terms of this
Agreement shall operate to divest all right, title, interest, claim, and demand,
either at law or in equity, of any party to this Agreement (other than the
distributee) in and to the Escrowed Property distributed and shall be a
perpetual bar both at law and in equity with respect to such distributed
Escrowed Property against the parties to this Agreement and against any person
claiming or attempting to claim such distributed escrowed property from,
through, or under such party.
(b) Company A (as to half)and Company B (as to half)agree to reimburse
the Agent for the Agent's reasonable fees and other expenses (including legal
fees and expenses) incurred by the Agent in connection with its duties
hereunder.
(c) CompanyA and CompanyB jointly and severally, agree to indemnify and
hold harmless the Agent against and in respect of any and all claims, suits,
actions, proceedings (formal or informal), investigations, judgments,
deficiencies, damages, settlements, liabilities, and legal and other expenses
(including counsel fees and expenses of attorneys chosen by the Agent) as and
when incurred and whether or not involving a third party arising out of or based
upon any act, omission, alleged act, or alleged omission by the Agent or any
other cause, in any case in connection with the acceptance of, or the
performance or nonperformance by the Agent of, any of the Agent's duties under
this Agreement, except as a result of the Agent's bad faith or gross negligence.
The Agent shall be fully protected by acting in reliance upon any notice,
advice, direction, other document, or signature believed by the Agent to be
genuine, by assuming that any person purporting to give the Agent any notice,
advice, direction, or other document in accordance with the provisions hereof,
in connection with this Agreement, or in connection with the Agent's duties
under this Agreement, has been duly authorized so to do, or by acting or failing
to act in good faith on the advice of any counsel retained by the Agent (which
may be Xxxxx Law Firm, P.C.). CompanyB acknowledges that Xxxxx Law Firm, P.C.
acts as counsel to CompanyA and may continue to serve in that capacity, and
neither anything contained herein, the execution or delivery hereof by the
Agent, nor the performance by the Agent of its duties hereunder shall in any way
affect or require termination of such relationship with A. The Agent shall not
be liable for any mistake of fact or of law or any error of judgment, or for any
act or any omission, except as a result of the Agent's bad faith or gross
negligence.
(d) The Agent makes no representation as to the validity, value,
genuineness, or the collectibility of any security or other document or
instrument held by or delivered to the Agent.
(e) The Agent shall have no duties or responsibilities except those
expressly set forth herein. The parties hereto agree that the Agent will not be
called upon to construe any contract or instrument. The Agent shall not be bound
by any notice of a claim, or demand with respect thereto, or any waiver,
modification, amendment, termination, cancellation, or revision of this
Agreement, unless in writing and signed by the other parties hereto and received
by the Agent, and, if the Agent's duties as Escrow Agent hereunder are affected,
unless the Agent shall have given its prior written consent thereto. The Agent
shall not be bound by any assignment by CompanyA or by CompanyB of its rights
hereunder unless the Agent shall have received written notice thereof from the
assignor. The Agent is authorized to comply with and obey laws, rules,
regulations, orders, judgments, and decrees of any governmental authority,
court, or other tribunal. If the Agent complies with any such law, rule,
regulation, order, judgment, or decree, the Agent shall not be liable to any of
the parties hereto or to any other person even if such law, rule, order,
regulation, judgment, or decree is subsequently reversed, modified, annulled,
set aside, vacated, found to have been entered without jurisdiction, or found to
be in violation of or beyond the scope of a constitution or a law.
(f) If the Agent shall be uncertain as to the Agent's duties or rights
hereunder, shall receive any notice, advice, direction, or other document from
any other party with respect to the Escrowed Property which, in the Agent's
opinion, is in conflict with any of the provisions of this Agreement, or should
be advised that a dispute has arisen with respect to the payment, ownership, or
right of possession of the Escrowed Property or any part thereof (or as to the
delivery, nondelivery, or content of any notice, advice, direction, or other
document), the Agent shall be entitled, without liability to anyone, to refrain
from taking any action other than to use the Agent's reasonable efforts to keep
safely the Escrowed Property until the Agent shall be directed otherwise in
writing by both other parties hereto or by an order, decree, or judgment of a
court of competent jurisdiction which has been finally affirmed on appeal or
which by lapse of time or otherwise is no longer subject to appeal (a "Final
Judgment"), but the Agent shall be under no duty to institute or to defend any
proceeding, although the Agent may, in the Agent's discretion and at the expense
of CompanyA and CompanyB as provided in Section 1.03(c), institute or defend
such proceedings.
(g) The Agent may at any time give written notice of the Agent's
resignation (the "Notice") to the other parties hereto. Upon receipt of written
notice of the Agent's resignation, CompanyA and CompanyB promptly shall appoint
another successor escrow agent. If no successor escrow agent has been appointed
and has accepted the Escrowed Property within five days after the Notice is
sent, all responsibilities of the Agent hereunder shall, nevertheless, cease.
The Agent's sole responsibility thereafter shall be to use the Agent's
reasonable efforts to keep safely the Escrowed Property and to deliver the
Escrowed Property as may be directed in writing by both of the other parties
hereto or by a Final Judgment. In addition, the Agent may, but is not obligated
to, petition any court of competent jurisdiction for the appointment of a
successor escrow agent. Such court may thereupon appoint a successor escrow
agent after the Agent deposits the Escrowed Property into court and after such
notice, if any, to the other parties hereto as the court may deem proper and
prescribe. Except as provided in this Section 1.03(g), this Agreement shall not
otherwise be assignable by the Agent without the prior written consent of the
other parties hereto.
(h) CompanyA and CompanyB authorize the Agent, if the Agent is
threatened with litigation or is sued, to interplead all interested parties in
any court of competent jurisdiction and to deposit the Escrowed Property with
the clerk of that court.
(i) The Agent's responsibilities and liabilities hereunder, except as a
result of the Agent's own bad faith or gross negligence, will terminate upon the
delivery by the Agent of all the Escrowed Property under any provision of this
Agreement.
II. MISCELLANEOUS
S. 2.01 Further Action
At any time and from time to time, CompanyA and CompanyB each agrees,
at its expense, to take such actions and to execute and deliver such documents
as may be reasonably necessary to effectuate the purposes of this Agreement.
S. 2.02 Survival
Subject to Section 1.03(i), the covenants, agreements, representations,
and warranties contained in or made pursuant to this Agreement shall survive the
delivery by the Agent of the Escrowed Property, irrespective of any
investigation made by or on behalf of any party.
S. 2.03 Modification
This Agreement sets forth the entire understanding of the parties with
respect to the subject matter hereof, supersedes all existing agreements among
them concerning such subject matter, and (subject to Section 1.03(e)) may be
modified only by a written instrument duly executed by each party.
S. 2.04 Notices
Any notice, advice, direction, or other document or communication
required or permitted to be given hereunder shall be in writing and shall be
mailed by certified mail, return receipt requested [(or by the most nearly
comparable method if mailed from or to a location outside of the United
States)], or by Federal Express, Express Mail, or similar overnight delivery or
courier service or delivered (in person or by telecopy or similar
telecommunications equipment) against receipt to the party to whom it is to be
given at the address of such party set forth in the preamble to this Agreement
(or to such other address as the party shall have furnished in writing in
accordance with the provisions of this Section 2.04) with a copy to each of the
other parties hereto. Any notice given to a corporate party shall be addressed
to the attention of the Corporate Secretary. Any notice, advice, direction, or
other document or communication given by certified mail (or such comparable
method) shall be deemed given at the time of certification thereof (or
comparable act), except for a notice changing a party's address which shall be
deemed given at the time of receipt thereof. Any notice given by other means
permitted by this Section 2.04 shall be deemed given at the time of receipt
thereof.
S. 2.05 Waiver
Any waiver by any party of a breach of any provision of this Agreement
shall not operate as or be construed to be a waiver of any other breach of that
provision or of any breach of any other provision of this Agreement. The failure
of a party to insist upon strict adherence to any term of this Agreement on one
or more occasions shall not be considered a waiver or deprive that party of the
right thereafter to insist upon strict adherence to that term or any other term
of this Agreement. Any waiver must be in writing.
S. 2.06 Binding Effect
Subject to Section 1.03(g), the provisions of this Agreement shall be
binding upon and inure to the benefit of CompanyA and CompanyB and their
respective assigns, heirs, and personal representatives, and shall be binding
upon and inure to the benefit of the Agent and the Agent's successors and
assigns.
S. 2.07 No Third Party Beneficiaries
This Agreement does not create, and shall not be construed as creating,
any rights enforceable by any person not a party to this Agreement (except as
provided in Section 2.06).
S. 2.08 Jurisdiction
The parties hereby irrevocably consent to the jurisdiction of the
courts of the State of Arizona and of any federal court located in such State in
connection with any action or proceeding arising out of or relating to this
Agreement, any document or instrument delivered pursuant to, in connection with,
or simultaneously with this Agreement, a breach of this Agreement or of any such
document or instrument, or the Escrowed Property.
S. 2.09 Separability
This entire Agreement shall be void if any provision of this Agreement
other than the second and third sentence s of Section 2.11 is invalid, illegal,
unenforceable, or inapplicable to any person or circumstance to which it is
intended to be applicable, except that the provisions of Section 1.03 shall
survive.
S. 2.10 Headings
The headings in this Agreement are solely for convenience of reference
and shall be given no effect in the construction or interpretation of this
Agreement.
S. 2.11 Counterparts; Governing Law
This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument. It shall be governed by and construed in accordance
with the laws of the State of Arizona, without giving effect to conflict of
laws. Any action, suit, or proceeding arising out of, based on, or in connection
with this Agreement, any document or instrument delivered pursuant to, in
connection with, or simultaneously with this Agreement, any breach of this
Agreement or any such document or instrument, or any transaction contemplated
hereby or thereby may be brought only in the United States District Court for
the District of Phoenix and each party covenants and agrees not to assert, by
way of motion, as a defense, or otherwise, in any such action, suit, or
proceeding, any claim that such party is not subject personally to the
jurisdiction of such court, that such party's property is exempt or immune from
attachment or execution, that the action, suit, or proceeding is brought in an
inconvenient forum, that the venue of the action, suit, or proceeding is
improper, or that this Agreement or the subject matter hereof may not be
enforced in or by such court.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first written above.
AMERICAN ALLIANCE, INC.
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Name: _______________________
Its: __________________________
1SOFT CORP.
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Name: _______________________
Its: __________________________
XXXXX LAW FIRM, P.C.
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Xxxx X. Xxxxx, Attorney at Law, Agent
