Exhibit 10 - Escrow Agreement
ESCROW AGREEMENT
This Escrow Agreement, is dated June 20th, 2003 by and among the Purchasers
listed on the signature page hereof ("Purchasers"), Future Ventures Ltd., a
Turks & Caicos company, as Lender ("Lender"), Satellite Enterprises Corp., a
Nevada corporation (the "Company"), and Corporate Legal Services, LLP as escrow
agent (the "Escrow Agent").
Lender has entered into that certain Debenture (the "Debenture"), dated as
of the date hereof, by and between Lender and the Purchasers. The obligations
under the Debenture are secured by that certain Security Agreement, dated as of
the date hereof (the "Security Agreement"), and guaranteed by the Company. The
Company, Purchasers and Lender (the "Parties") have requested that Escrow Agent
act as Escrow Agent as provided herein.
It is agreed as follows:
1. Escrow Property. Purchasers shall deliver to Escrow Agent 3,740,484
shares of common stock of the Company (the "Common Stock"), registered
in the name of the Purchasers, and which shall be and remain
beneficially owned by the Purchasers for all reporting purposes. The
Purchasers shall have the sole and absolute right to vote such shares
so long as there is no breach or default under, or an Event of Default
exists under, either the Security Agreement or the Debenture.
2. Disbursement.
2.1 Upon an Event of Default. Thirty (30) days after Escrow Agent
receives notice from Lender of an Event of Default, Escrow agent
shall, and the Parties hereby irrevocably instruct Escrow Agent
to, release the Common Stock to Lender. Escrow Agent shall cause
the Company's transfer agent to register such shares in the name
of Lender immediately prior to such transfer, and Escrow Agent's
duties hereunder shall immediately terminate with no liability to
any of the Parties.
2.2 Termination. Upon satisfaction of all obligations under the
Debenture, this Escrow Agreement shall terminate, and Escrow
Agent shall return the Common Stock to Xxxxx Xxxxxxxxx, counsel
to the Purchasers. Upon such delivery, Escrow Agent's duties
hereunder shall immediately terminate with no liability to any of
the Parties.
3. Escrow Agents as Special Counsel to Parties. The Parties acknowledge
that they are each aware that Escrow Agent is acting, and has acted,
as counsel to the Company and Lender in connection with this
Agreement, the Debenture, and the various other agreements entered
into in connection with the transactions with SNW, as well as the
consummation of the transactions contemplated by such agreements and
other matters and that the Escrow Agent is a law firm and has been,
and may in the future be, involved with representing the Company and
its current shareholders and/or consultants with respect to any of the
foregoing or any other matter. The Parties agree that the Escrow Agent
acting under this Agreement shall not affect the Escrow Agent's
ability to act as counsel to the Company or any of its
representatives, shareholders or officers in any matter, including,
but not limited to, any claim, action or proceeding with respect to
this Agreement, any of the transactions contemplated by this agreement
or the disposition of, or entitlement to, the Common Stock.
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4. Escrow Agent.
4.1 General. The Escrow Agent shall act as escrow agent and hold and
deliver the Common Stock pursuant to the terms and conditions of
this Agreement. The Escrow Agent's duties under this Agreement
shall cease upon release of the Common Stock to either Lender or
Purchasers in accordance with the terms of this Agreement.
4.2 Limited Duties. The Escrow Agent undertakes to perform only such
duties as are expressly set forth in this Agreement. The Escrow
Agent shall not incur any liability whatsoever to Lender, the
Purchasers, the Company or any other person or entity, except for
the Escrow Agent's own willful misconduct in its capacity as
escrow agent.
4.3 Reliance on Notices. The Escrow Agent may rely and shall be
protected in acting or refraining from acting upon any written
notice, instruction or request furnished to it hereunder and
believed by it to be genuine and to have been signed or presented
by the proper party or parties. The Escrow Agent may conclusively
presume that each of the undersigned representatives of the
parties hereto has full power and authority to instruct the
Escrow Agent on behalf of that party.
4.4 Limited Responsibilities. The Escrow Agent's sole responsibility
upon receipt of any notice requiring any delivery of the Common
Stock pursuant to the terms of this Agreement is to deliver the
Common Stock as provided in this Agreement, and the Escrow Agent
shall have no duty to determine the validity, authenticity or
enforceability of any specification or certification made in such
notice.
4.5 Action in Good Faith. The Escrow Agent shall act in good faith at
all times, and the Escrow Agent may consult with counsel of its
own choice.
4.6 Disputes. In the event of a dispute between the parties as to the
proper disposition of the Common Stock, the Escrow Agent shall be
entitled (but not required) (i) to retain the Common Stock in its
possession pending direction as to the disposition thereof by a
final order, from which no further appeal may be taken, of a
court having proper jurisdiction, or (ii) to deliver the Common
Stock into the possession of any court of proper jurisdiction as
such is set forth in Section 7.1 of this Agreement, and, upon
giving notice to Lender and Xxxxx Xxxxxxxxx, on behalf of the
Purchasers, of such action, shall thereupon be relieved of all
further responsibility.
4.7 Indemnification. Each of Lender, the Purchasers and the Company
hereby jointly and severally agree to indemnify the Escrow Agent
for, and to hold it harmless against, any loss, claim, action,
liability, damage, cost or expense incurred without bad faith on
the part of the Escrow Agent arising out of or in connection with
the Escrow Agent's entering into and or performing under this
Agreement, including, but not limited to, the cost and expense
(including, but not limited to, attorneys' fees and expenses at
the rate of $250 per hour if handled by Escrow Agent's in house
attorneys) of defending itself against any claim, action or
liability.
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5. Escrow Agents Not Affected By Other Agreements. This Agreement
expressly sets forth all the duties of the Escrow Agent with respect
to any and all matters pertinent hereto. No implied duties or
obligations shall be read into this Agreement against the Escrow
Agent. The Escrow Agent, in it's capacity as such, shall not be bound
by the provisions of any agreement among the parties to this Agreement
other than this Agreement.
6. Notices. Any notices required to be delivered to the Escrow Agent,
including, but not limited to, the Notice of Closing, shall be deemed
received by the Escrow Agent when the Escrow Agent physically has
possession of such notice. Any notice required to be delivered to the
Purchasers shall be deemed delivered upon mailing to Xxxxx Xxxxxxxxx.
7. Miscellaneous.
7.1 Jurisdiction. Any proceeding, action, litigation or claim (a
"Proceeding") arising out of or relating to this Agreement or any
of the transactions contemplated herein may be brought in the
courts of the State of California, County of Los Angeles, city of
Santa Xxxxxx, or, if it has or can acquire jurisdiction, in the
United States District Court for the Central District of
California, and each of the parties irrevocably submits to the
exclusive jurisdiction of each such court in any such Proceeding,
waives any objection it may now or hereafter have to venue or to
convenience of forum, agrees that all claims in respect of the
Proceeding shall be heard and determined only in any such court
and agrees not to bring any Proceeding arising out of or relating
to this Agreement or any of the transactions contemplated herein
in any other court. The parties agree that either or both of them
may file a copy of this paragraph with any court as written
evidence of the knowing, voluntary and bargained agreement
between the parties irrevocably to waive any objections to venue
or to convenience of forum. Each party hereto hereby consents to
process being served in any such action or proceeding by the
mailing of a copy thereof to the address set forth opposite its
name below and agrees that such service upon receipt shall
constitute good and sufficient service of process or notice
thereof. Nothing in this paragraph shall affect or eliminate any
right to serve process in any other manner permitted by law.
WAIVER OF JURY TRIAL. THE PARTIES HEREBY WAIVE ANY RIGHT TO
TRIAL BY JURY IN ANY PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR ANY OF THE CONTEMPLATED TRANSACTIONS, WHETHER
NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN
CONTRACT, TORT OR OTHERWISE. THE PARTIES AGREE THAT ANY OF THEM
MAY FILE A COPY OF THIS PARAGRAPH WITH ANY COURT AS WRITTEN
EVIDENCE OF THE KNOWING, VOLUNTARY AND BARGAINED-FOR AGREEMENT
AMONG THE PARTIES IRREVOCABLY TO WAIVE TRIAL BY JURY AND THAT ANY
PROCEEDING WHATSOEVER BETWEEN THEM RELATING TO THIS AGREEMENT OR
ANY OF THE CONTEMPLATED TRANSACTIONS SHALL INSTEAD BE TRIED IN A
COURT OF COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A
JURY.
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7.2 Captions. The captions in this Agreement are for convenience of
reference only and shall not be given any effect in the
interpretation of this Agreement.
7.3 No Waiver. The failure of a party to insist upon strict adherence
to any term of this Agreement on any occasion 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.
7.4 Exclusive Agreement; Amendment; Assignment. This Agreement
supersedes all prior agreements among the parties with respect to
the escrow of the Common Stock, is intended as a complete and
exclusive statement of the terms of the agreement among the
Parties with respect thereto and cannot be changed or terminated
orally. No party may assign any rights or delegate any of its
duties under this Agreement, but this Agreement shall be binding
upon and inure to the benefit of the successors of the parties
hereto.
7.5 Counterparts. This Agreement may be executed in counterparts,
each of which shall be considered an original, but all of which
together shall constitute the same instrument.
7.6 Governing Law. This Agreement and all amendments hereof and
waivers and consents hereunder shall be governed by, and all
disputes arising hereunder shall be resolved in accordance with,
the internal law of the State of California, without regard to
the conflicts of law principles thereof.
FUTURE VENTURES LTD. CORPORATE LEGAL SERVICES, LLP
BY: STERLING NOMINEES LTD..
By: /s/ Xxxxx Xxxxxx By: /s/ Xxxx Xxxxxxxx
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Xxxxx Xxxxxx Xxxx Xxxxxxxx, Partner
Director
Purchasers, under power of attorney:
By: /s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx, Attorney in Fact,
and individually as a purchaser
Purchasers: Xx. X. Xxxxxx, Mr. H.E. Xxxxxxx, Burest Holding BV, Xx. X.X. xxx
Xxxxxx, Xx. Xxxxx Xxxxxxx, and Xx. Xxxxx Xxxxxx
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