BREAK-UP ESCROW AGREEMENT
BREAK-UP
ESCROW AGREEMENT
THIS
ESCROW AGREEMENT (this “Agreement”), dated of February __, 2007, among GoFish
Corporation, a Nevada corporation (the “Buyer”) and Bolt, Inc. (a/k/a Bolt
Media, Inc.), a Delaware corporation (the “Seller”) and U.S. BANK TRUST NATIONAL
ASSOCIATION, a national banking association (the “Escrow Agent”). The Buyer and
the Seller are sometimes referred to herein collectively as the “Interested
Parties.” Capitalized terms used but not otherwise defined herein shall have
their respective meanings set forth in the Merger Agreement (as defined below).
WITNESSETH:
WHEREAS,
the Buyer, BM Acquisition Corp., Inc., a Delaware corporation and a wholly-owned
subsidiary of the Company (the “Transitory Subsidiary”), the Seller (referred to
as the “Company” therein) and the Indemnification Representative named therein
are parties to that certain Agreement and Plan of Merger, dated as of February
11, 2007 (the “Merger Agreement”);and
WHEREAS,
the Buyer will pay cash to the Seller, and the Seller will deliver shares to
the
Buyer, as the case may be, if the Merger Agreement is terminated by either
party
as described under Section 8.2 of the Merger Agreement, which break-up cash
or
shares will constitute the escrow fund to be delivered into escrow pursuant
to
Sections 1.9(c) and 1.9(d) of the Merger Agreement to secure the obligations
of
the Interested Parties in the event of a termination of the Merger Agreement;
and
WHEREAS,
the Buyer and the Seller have agreed that the Escrow Agent shall hold the escrow
fund pursuant to the terms and conditions of this Agreement;
NOW,
THEREFORE, the parties hereto agree as follows:
1. DEPOSIT
OF ESCROW PROPERTY.
(a) To
secure
the performance by the Seller of the Seller’s obligation in the event the Merger
Agreement is terminated by the Buyer or the Seller pursuant to Section 8.1(g)
of
the Merger Agreement (the "Seller Break-up Obligation"), the Seller has
delivered a certificate for Common Shares (issued in the name of the Escrow
Agent or its nominee) in an amount agreed upon by the Buyer and the Seller
(the
“Seller Escrow”) to the Escrow Agent at the Closing. Subject to the terms and
conditions of this Agreement, the Escrow Agent shall hold and administer the
Seller Escrow (and any interest, dividends and distributions paid thereon or
proceeds received therefrom, in each case received by the Escrow Agent)
(collectively, the “Seller Submitted Escrow Property”) in escrow. The Escrow
Agent shall have no responsibility for the genuineness, validity, market value,
title or sufficiency for any intended purpose of the Seller Submitted Escrow
Property.
(b) To
secure
the performance by the Buyer of the Buyer’s obligation in the event of a
termination of the Merger Agreement by the Seller pursuant to Section 8.1(c)
or
8.1(f) of the Merger Agreement (the "Buyer Break-up Obligation"), the Buyer
has
delivered $1,500,000 in cash (the “Buyer Escrow”) to the Escrow Agent at the
Closing. Subject to the terms and conditions of this Agreement, the Escrow
Agent
shall hold and administer the Buyer Escrow (and any interest or proceeds
received therefrom, in each case received by the Escrow Agent) (collectively,
the “Buyer Submitted Escrow Property” and, together with the Seller Submitted
Escrow Property, the “Escrow Fund”) in escrow. The Escrow Agent shall have no
responsibility for the genuineness, validity, market value, title or sufficiency
for any intended purpose of the Buyer Submitted Escrow Property.
(c) The
Escrow Agent hereby acknowledges receipt of the Seller Escrow from the Seller
and the Buyer Escrow from the Buyer, and agrees to hold and to deliver the
same
in accordance with this Agreement.
(d) So
long
as the Merger Agreement is not terminated by the Buyer or the Seller pursuant
to
Section 8.1(g) thereof, the Seller shall exercise and enjoy all the rights
accruing from the ownership of the Seller Submitted Escrow Property, including
the right to vote the shares in such Escrow, but excluding the right to
transfer, assign, ▇▇▇▇▇ ▇ ▇▇▇▇, pledge or other security interest in or
otherwise encumber or to alienate in any other manner, any of the Seller
Submitted Escrow Property.
(e) So
long
as the Merger Agreement is not terminated by the Seller pursuant to Section
8.1(c) or Section 8.1(f) thereof, the Buyer shall exercise and enjoy all the
rights accruing from the ownership of the Buyer Submitted Escrow Property,
but
excluding the right to transfer, assign, ▇▇▇▇▇ ▇ ▇▇▇▇, pledge or other security
interest in or otherwise encumber or to alienate in any other manner, any of
the
Buyer Submitted Escrow Property.
2. PAYMENTS;
RELEASE FROM ESCROW.
(a) Whenever
the Escrow Agent receives a written notice (a “Notice”) and any appropriate
evidencing documentations (i) from the Buyer that the Merger Agreement has
been
terminated by the Buyer or the Seller pursuant to Section 8.1(g) thereof, or
(ii) from the Seller that the Merger Agreement has been terminated by the Seller
pursuant to Sections 8.1(c) or 8.1(f) thereof, the Escrow Agent shall send
a
copy of such Notice and evidencing documentations to the other party. The other
party shall send a written response (a “Response”) to the Escrow Agent stating
whether it agrees with the statements in the Notice. Whenever the Escrow Agent
receives a Response that agrees with the Notice, then the Escrow Agent shall
promptly, and in any event within three (3) business days, deliver the Buyer
Submitted Escrow Property to the Seller in the case the Notice is provided
by
the Seller, and deliver the Seller Submitted Escrow Property to the Buyer in
the
case the Notice is provided by the Buyer.
(b) If
the
Escrow Agent receives a Notice signed by the Seller and the Buyer stating that
the Closing of the Merger has occurred, the Escrow Agent shall promptly, and
in
any event within three (3) business days, deliver (i) to the Seller all of
the
Seller Submitted Escrow Property then held by the Escrow Agent and (ii) to
the
Buyer all of the Buyer Submitted Escrow Property then held by the Escrow Agent,
and thereupon the Escrow Agent shall be discharged of and from all other and
further responsibilities with respect to the Seller Submitted Escrow Property
and the Buyer Submitted Escrow Property.
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(c) Anything
in this Agreement notwithstanding, if at any time the Escrow Agent receives
a
Notice signed by the Buyer and the Seller, or a final order of a court of
competent jurisdiction that directs delivery of the Seller Submitted Escrow
Property or the Buyer Submitted Escrow Property, the Escrow Agent shall, at
the
expense of the Interested Party receiving such Escrow Property, comply with
such
instructions or order. The Escrow Agent shall also be entitled to deposit the
Seller Submitted Escrow Property and/or the Buyer Submitted Escrow Property
with
the clerk of any court of competent jurisdiction upon commencement of an action
in the nature of interpleader or in the course of any court proceedings. Upon
any delivery or deposit of the Escrow Property as provided in this Section
2(c),
the Escrow Agent shall thereupon be discharged of and from all other and further
responsibilities with respect to such Escrow Property.
3. CERTAIN
TERMS CONCERNING ESCROW PROPERTY.
(a) No
Duty to Vote or Preserve Rights to Escrow Property.
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 Fund (including with respect to the exercise of any voting
rights, conversion or exchange rights, defense of title, preservation of rights
against prior matters or otherwise). Notwithstanding the foregoing, if the
Escrow Agent is so requested in a request of the Seller received by the Escrow
Agent at least two 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 shall cause its nominee
to execute, and deliver to Seller a proxy or other instrument in the form
supplied to it by the Seller for voting or otherwise exercising any right with
respect to any of the Seller Escrow held by it hereunder, to authorize therein
the Seller to exercise such voting or other authority in respect of the Seller
Escrow (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 Seller Escrow, including proxy material, tenders, options, the pendency
of
calls and maturities and expiration of rights; it being understood that the
intent of the parties is for any such notice, solicitation or other document
or
information to be sent directly to the Seller, and not to the Escrow Agent.
(b) Distribution
of Seller Escrow.
Any
distribution of all or any portion of the Seller Escrow made pursuant to Section
2 of this Agreement shall be made by delivery of the applicable certificate(s)
held by the Escrow Agent representing such Seller Escrow, mailed by certified
mail or nationally recognized overnight courier to the Buyer at such address
as
the Escrow Agent may have previously been instructed in writing.
(c) Distribution
of Escrow Fund.
Any
distribution of the Escrow Fund made pursuant to Section 2 of this Agreement
shall be made at such address, and by such delivery method, as the Escrow Agent
shall have previously been instructed in writing by the Seller and the Buyer,
respectively.
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(d) Dividends
and Distributions.
Any
dividends on the Seller Escrow, whether cash dividends or otherwise, splits
and
any other distributions made with respect to the Seller Escrow received by
the
Escrow Agent from time to time during the term of this Agreement shall be added
to and become a part of the Seller Submitted Escrow Property (and, as such,
shall become subject to the terms of this Agreement). The Escrow Agent shall
deposit the Buyer Escrow in an interest bearing money market account that it
may
select in its discretion or as may be specified by the Buyer.
4. CONCERNING
THE ESCROW AGENT.
(a) Each
of
the Interested Parties acknowledges and agrees that the Escrow Agent (i) shall
not be responsible for any of the agreements referred to or described herein,
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 that 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 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
or
persons, and shall have no responsibility for making inquiry as to or
determining the genuineness, accuracy or validity thereof, or of the authority
of any 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.
(b) The
Escrow Agent shall not be liable to any person 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 any indirect, punitive, special
or
consequential damage or loss (including 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.
(c) 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 sub-escrow agent employed by the Escrow Agent than any such book-entry
depository, securities intermediary or other sub-escrow agent has to the Escrow
Agent, except to the extent that such action or omission of any book-entry
depository, securities intermediary or other sub-escrow agent was caused by
the
Escrow Agent’s own gross negligence or willful misconduct in breach of this
Agreement.
(d) Notwithstanding
any term in this Agreement to the contrary, in no instance shall the Escrow
Agent be required or obligated to distribute any Escrow Property (or take other
action that may be called for hereunder to be taken by the Escrow Agent) sooner
than two business days after (i) it has received the applicable documents
required under this Agreement in proper form, or (ii) passage of the applicable
time period (or both, as applicable under the terms of this Agreement), as
the
case may be.
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5. COMPENSATION,
EXPENSE REIMBURSEMENT AND INDEMNIFICATION.
(a) Each
of
the Interested Parties covenants and agrees that the Interested Parties shall
share equally in, but in any event be jointly and severally liable for, (i)
paying to or reimbursing the Escrow Agent for its reasonable attorney’s fees and
reasonable expenses incurred in connection with the preparation of this
Agreement; (ii) paying 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 (the “Escrow Fees”); and (iii) reimbursing 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 that are in excess of the Escrow Fees,
including payment of any legal fees and reasonable expenses incurred by the
Escrow Agent in connection with resolution of any claim by any party
hereunder.
(b) Each
of
the Interested Parties covenants and agrees that the Interested Parties shall
share equally in, but in any event be jointly and severally liable for,
indemnifying the Escrow Agent (and its directors, officers and employees) and
holding 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 attorney’s fees and other
reasonable 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.
(c) 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
all proceeds thereof, to secure payment of all amounts owing to it from time
to
time under this Agreement, whether now existing or hereafter arising. The Escrow
Agent shall have the right to deduct from the Escrow Property, and proceeds
thereof, any such sums, upon one business day notice to the Interested Parties
of its intent to do so.
(d) The
Escrow Agent may present invoices for its services hereunder (including for
its
fees and reimbursable expenses) and claims for indemnification hereunder to
the
Interested Parties by delivery of same to the Seller and the Buyer.
6. TAX
INDEMNIFICATION.
Each of
the Interested Parties covenants and agrees that the Interested Parties shall
share equally in, but in any event be jointly and severally liable for, (i)
assuming any and all obligations imposed now or hereafter by any applicable
tax
law with respect to any payment or distribution of the Escrow Property or
performance of other activities under this Agreement, (ii) instructing the
Escrow Agent in writing with respect to the Escrow Agent’s responsibility for
withholding and other taxes, assessments or other governmental charges, and
instructing 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) indemnifying and holding 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, the management established hereby, any
payment or distribution of or from the Escrow Property pursuant to the terms
hereof or other activities performed under the terms of this Agreement,
including 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.
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7. RESIGNATION.
The
Escrow Agent may at any time resign as Escrow Agent hereunder by giving 30
days'
prior written notice of resignation to the Interested Parties. Prior to the
effective date of the resignation as specified in such notice, the Seller and
the Buyer will agree upon a bank or trust company as successor to the Escrow
Agent hereunder, and shall deliver to the Escrow Agent a written instruction
signed by the Interested Parties authorizing redelivery of the Escrow Property
to such bank or trust company that they selected as successor to the Escrow
Agent. If no successor escrow agent is named by the Interested Parties, the
Escrow Agent may apply to a court of competent jurisdiction for appointment
of a
successor escrow agent. Upon the resignation of the Escrow Agent, the Escrow
Fees paid to the Escrow Agent will be returned to the party or parties that
made
such payment, on a pro-rated basis.
8. 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, or should any claim be made upon the Escrow Agent or the Escrow
Property 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 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 of competent jurisdiction, 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 that relate to the Escrow Property.
9. CONSENT
TO JURISDICTION AND SERVICE.
The
Buyer, the Escrow Agent and the Seller hereby irrevocably and unconditionally
agree that any action, suit or proceeding, at law or equity, arising out of
or
relating to this Agreement or any agreements or transactions contemplated hereby
shall only be brought in any federal court of the Southern District of New
York,
and hereby irrevocably and unconditionally expressly submit to the personal
jurisdiction and venue of such courts for the purposes thereof and hereby
irrevocably and unconditionally waive (by way of motion, as a defense or
otherwise) any and all jurisdictional, venue and convenience objections or
defenses that any such party may have in such action, suit or proceeding. The
Buyer, the Escrow Agent and the Seller hereby irrevocably and unconditionally
consent to the service of process of any of the aforementioned courts in any
such action, suit or proceeding by the mailing of copies thereof by registered
or certified mail, return receipt requested, postage prepaid, to such party’s
address set forth herein, such service to become effective ten days after such
mailing. Nothing herein contained shall be deemed to affect the right of any
party to serve process in any manner permitted by law or commence legal
proceedings or otherwise proceed against any other party in any other
jurisdiction to enforce judgments obtained in any action, suit or proceeding
brought pursuant to this Section 9.
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10. WAIVER
OF JURY TRIAL.
EACH
PARTY TO THIS AGREEMENT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES 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.
11. 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 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.
12. NOTICES.
Any
notice to a party permitted or required hereunder shall be in writing, and
shall
be sent to such party (i) by personal delivery (in which case notice shall
be
effective upon delivery), (ii) by overnight delivery by a recognized courier
or
delivery service (in which case notice shall be effective upon confirmed
receipt), or (iii) by registered or certified mail, return receipt requested,
postage prepaid (in which case notice shall be effective upon confirmed
receipt), or (iv) by confirmed facsimile telecopy accompanied by mailing of
the
original on the same day by first class mail, postage prepaid, in each case
to
the party at its address set forth below (or to such other address as such
party
may hereafter designate by written notice to the other parties) (in which case
notice shall be effective upon confirmed receipt of the telecopy);
communications by email are for convenience purposes only and shall not
constitute notice unless also sent by the methods set forth in clauses (i)
through (iv):
If
to the
Seller, to:
Bolt,
Inc.
[ADDRESS]
Attention:
Telephone:
Facsimile:
Email:
and
to:
Mintz,
Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇▇▇▇,
▇.▇. ▇▇▇▇▇
Attention:
▇▇▇ ▇▇▇▇▇▇, Esq.
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
Email:
▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇
7
with
a
copy (which shall not constitute notice) to
if
to the
Buyer,
GoFish
Corporation
[ADDRESS]
and
to:
McGuireWoods
LLP
▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇ ▇▇▇▇▇, Esq.
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
Email:
▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
if
to the
Escrow Agent, to:
U.S.
Bank
Trust National Association
▇▇▇
▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
▇▇. ▇▇▇▇ ▇▇▇▇▇▇
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
Email:
▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
13. MISCELLANEOUS.
(a) Binding
Effect; Successors.
This
Agreement shall be binding upon the parties to this Agreement and their
respective heirs, executors, successors and assigns. If the Escrow Agent
consolidates, merges or converts into, or transfers all or substantially all
of
its corporate trust business to, another corporation, the successor corporation
without any further act shall be the successor Escrow Agent.
(b) Modifications;
Waivers.
This
Agreement may not be altered or modified without the express written consent of
the Interested Parties and the Escrow Agent. Waiver of any term or condition
of
this Agreement by any party shall be effective only if in a writing signed
by
the party against whom such waiver is asserted. Any such waiver shall not be
construed as a waiver of any subsequent breach or failure of the same term
or
condition, or a waiver of any other term of this Agreement. No failure or delay
by any party in exercising any right, power or privilege hereunder shall operate
as a waiver thereof nor shall any single or partial exercise thereof preclude
any other or further exercise thereof or the exercise of any other right, power
or privilege.
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(c) Governing
Law.
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL
LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICTS OF LAW PRINCIPLES
OF SUCH STATE.
(d) Counterparts.
This
Agreement may be executed in any number of counterparts, all of which shall
be
considered one and the same agreement, and shall become effective when one
or
more such counterparts have been signed by each of the parties to this Agreement
and delivered to the other parties.
(e) General.
The
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement. Unless
the context of this Agreement otherwise requires: (i) pronouns and any
variations thereof refer to the masculine, feminine or neuter, singular or
plural, as the identity of the person or persons may require; (ii) the words
“hereof,” “herein” and “hereunder” and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any particular
provision of this Agreement; (iii) the word “person” shall refer to any
individual, corporation, general or limited partnership, firm, joint venture,
association, enterprise, joint stock company, trust, unincorporated organization
or other entity; (iv) article, section, paragraph and schedule references are
to
the articles, sections, paragraphs and schedules of this Agreement; (v) the
word
“including” and words of similar import when used in this Agreement shall mean
“including, without limitation;” (vi) the word “or” is not exclusive; and (vii)
provisions apply to successive events and transactions.
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IN
WITNESS WHEREOF, the parties hereto have duly executed this Escrow Agreement
as
of the date first above written.
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THE
SELLER:
BOLT,
INC.
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Name:
Title:
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THE
BUYER:
GOFISH
CORPORATION.
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| By: | ||
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Name:
Title:
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THE
ESCROW AGENT:
U.S.
BANK TRUST NATIONAL ASSOCIATION
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| By: | ||
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Name:
▇▇▇▇ ▇▇▇▇▇
Title:
Assistant Vice President
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10
Exhibit
A
Escrow
Agent Fees
Escrow
Agency Fee: $__________________, payable upon execution and delivery of this
Escrow Agreement by the Escrow Agent, plus reasonable out of pocket fees
and
expenses, payable upon request from time-to-time to upon presentation of
an
invoice for same to the Seller and/or the Buyer.
(i)