Exhibit 10.16
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this "AGREEMENT") is made and entered into as of
March 19, 2001, by Nexland, Inc., a Delaware Corporation (the "COMPANY"); The
May ▇▇▇▇▇ Group, a Maryland corporation (the "PLACEMENT AGENT"); and First Union
National Bank, a national banking association, as Escrow Agent hereunder (the
"ESCROW AGENT").
BACKGROUND
WHEREAS, the Company and the Placement Agent have entered into a
Placement Agent Agreement (the "PLACEMENT AGENT AGREEMENT"), dated as of the
date hereof, pursuant to which the Company proposes to sell convertible
debentures (the "CONVERTIBLE DEBENTURES") which shall be convertible into the
Company's Common Stock, $0.0001 par value per share (the "COMMON STOCK"), at the
Purchase Price, as that term is defined in the Securities Purchase Agreement
dated the date hereof between the Company and the Investors named therein (the
"SECURITIES PURCHASE AGREEMENT"). The Securities Purchase Agreement provides
that the Investors shall deposit the purchase amount in a segregated escrow
account to be held by Escrow Agent in order to effectuate a disbursement to the
Company at a closing to be held as set forth in the Securities Purchase
Agreement (the "CLOSING").
WHEREAS, the Placement Agent intends to sell the Convertible
Debentures as the Company's agent (the "OFFERING").
WHEREAS, Escrow Agent has agreed to accept, hold, and disburse
the funds deposited with it in accordance with the terms of this agreement.
WHEREAS, in order to establish the escrow of funds and to effect
the provisions of the Securities Purchase Agreement, the parties hereto have
entered into this Agreement.
NOW THEREFORE, in consideration of the foregoing, it is hereby agreed as
follows:
1. DEFINITIONS. The following terms shall have the following meanings when used
herein:
a. "ESCROW FUNDS" shall mean the funds deposited with Escrow Agent
pursuant to this Agreement.
b. "JOINT WRITTEN DIRECTION" shall mean a written direction executed by
the Placement Agent and the Company directing Escrow Agent to disburse all or a
portion of the Escrow Funds or to take or refrain from taking any action
pursuant to this Agreement.
c. "ESCROW PERIOD" shall begin with the commencement of the Offering and
shall terminate upon the earlier to occur of the following dates:
(i) The date upon which Escrow Agent confirms that it has received in
the Escrow Account all of the proceeds of the sale of the Convertible
Debentures;
(ii) The expiration of twenty (20) days from the date of commencement of
the Offering (unless extended by mutual written agreement between the Company
and the Placement Agent with a copy of such extension to Escrow Agent); or
(iii) The date upon which a determination is made by the Company and the
Placement Agent to terminate the Offering prior to the sale of all the
Convertible Debentures.
During the Escrow Period, the Company and the Placement Agent are aware that
they are not entitled to any funds received into escrow and no amounts deposited
in the Escrow Account shall become the property of the Company or the Placement
Agent or any other entity, or be subject to the debts of the Company or the
Placement Agent or any other entity.
2. APPOINTMENT OF AND ACCEPTANCE BY ESCROW AGENT. The Placement Agent and the
Company hereby appoint the Escrow Agent to serve as Escrow Agent hereunder. The
Escrow Agent hereby accepts such appointment and, upon receipt by wire transfer
of the Escrow Funds in accordance with Section 3 below, agrees to hold, invest
and disburse the Escrow Funds in accordance with this Agreement.
3. CREATION OF ESCROW FUNDS. On or prior to the date of the commencement of the
Offering, the parties shall establish an escrow account with the Escrow Agent,
which escrow account shall be entitled as follows: Nexland, Inc./May ▇▇▇▇▇
Group, Inc. Escrow Account for the deposit of the Escrow Funds. The Placement
Agent will instruct subscribers to wire funds to the account of the Escrow Agent
as follows:
Bank: First Union National Bank of New Jersey
Routing # ▇▇▇▇▇▇▇▇▇
Account # 2020000659170
Name on Account: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP/First Union Escrow Account
Name on Sub-Account: Nexland, Inc./May ▇▇▇▇▇ Group, Inc.
Escrow account
Reference Sub-Account # 1402-01
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
Only wire transfers shall be accepted.
2
4. DEPOSITS INTO THE ESCROW ACCOUNT. The Placement Agent agrees that they shall
promptly deliver all monies received from subscribers for the payment of the
Convertible Debentures to the Escrow Agent for deposit in the Escrow Account.
5. DISBURSEMENTS FROM THE ESCROW ACCOUNT.
-----------------------------------------
(a) At such time as Escrow Agent has collected and deposited instruments
of payment in the total amount of the Purchase Price , Escrow Agent shall notify
the Company and the Placement Agent. The Escrow Agent will continue to hold such
funds until Placement Agent and Company execute a Joint Written Direction
directing the Escrow Agent to disburse the Proceeds pursuant to Joint Written
Direction signed by the Company and the Placement Agent. In disbursing such
funds, Escrow Agent is authorized to rely upon such Joint Written Direction from
Company and the Placement Agent and may accept any signatory from the Company
listed on the signature page to this Agreement and any signature from the
Placement Agentthat Escrow Agent already has on file.
In the event the Escrow Agent does not receive the Escrow Funds from the
Investors in the amount of the Purchase Price , the Escrow Agent shall notify
the Company and the Placement Agent. Upon receipt of payment instructions from
the Company and the Placement Agent, the Escrow Agent shall disburse the Escrow
Funds to the Company or refund to each subscriber without interest the amount
received from each Investor, without deduction, penalty, or expense to the
subscriber. The purchase money returned to each subscriber shall be free and
clear of any and all claims of the Company, the Placement Agent or any of their
creditors.
In the event Escrow Agent does receive the Purchase Price prior to
expiration of the Escrow Period, in no event will the Escrow Funds be released
to the Company until such amount is received by Escrow Agent in collected funds.
For purposes of this Agreement, the term "collected funds" shall mean all funds
received by Escrow Agent which have cleared normal banking channels and are in
the form of cash.
6. COLLECTION PROCEDURE. Escrow Agent is hereby authorized to forward each wire
for collection and, upon collection of the proceeds of each wire deposit the
collected proceeds in the Escrow Account.
Any wires returned unpaid to Escrow Agent shall be returned to the
Placement Agent. In such cases, Escrow Agent will promptly notify the Company of
such return.
If the Company rejects any subscription for which the Escrow Agent has
already collected funds, Escrow Agent shall promptly issue a refund check or
wire to the rejected subscriber. If the Company rejects any subscription for
which Escrow Agent has not yet collected funds but has submitted the
subscriber's wire for collection, Escrow Agent shall promptly issue a check or
wire the amount of the subscriber's wire to the rejected subscriber after Escrow
Agent has cleared such funds. If Escrow Agent has not yet submitted a rejected
3
subscriber's wire for collection, Escrow Agent shall promptly remit the
subscriber's wire directly to the subscriber. The Company shall provide payment
instructions to Escrow Agent.
7. SUSPENSION OF PERFORMANCE: DISBURSEMENT INTO COURT. If at any time, there
shall exist any dispute between the Company and the Placement Agent with respect
to holding or disposition of any portion of the Escrow Funds or any other
obligations of Escrow Agent hereunder, or if at any time Escrow Agent is unable
to determine, to Escrow Agent's sole satisfaction, the proper disposition of any
portion of the Escrow Funds or Escrow Agent's proper actions with respect to its
obligations hereunder, or if the parties have not within thirty (30) days of the
furnishing by Escrow Agent of a notice of resignation pursuant to Section 9
hereof, appointed a successor Escrow Agent to act hereunder, then Escrow Agent
may, in its sole discretion, take either or both of the following actions:
a. suspend the performance of any of its obligations (including
without limitation any disbursement obligations) under this
Escrow Agreement until such dispute or uncertainty shall be
resolved to the sole satisfaction of Escrow Agent or until a
successor Escrow Agent shall be appointed (as the case may be);
provided however, Escrow Agent shall continue to invest the
Escrow Funds in accordance with Section 8 hereof; and/or
b. petition (by means of an interpleader action or any other
appropriate method) any court of competent jurisdiction in any
venue convenient to Escrow Agent, for instructions with respect
to such dispute or uncertainty, and to the extent required by
law, pay into such court, for holding and disposition in
accordance with the instructions of such court, all funds held
by it in the Escrow Funds, after deduction and payment to
Escrow Agent of all fees and expenses (including court costs
and attorneys' fees) payable to, incurred by, or expected to be
incurred by Escrow Agent in connection with performance of its
duties and the exercise of its rights hereunder.
c. Escrow Agent shall have no liability to the Company, the
Placement Agent, or any person with respect to any such
suspension of performance or disbursement into court,
specifically including any liability or claimed liability that
may arise, or be alleged to have arisen, out of or as a result
of any delay in the disbursement of funds held in the Escrow
Funds or any delay in with respect to any other action required
or requested of Escrow Agent.
8. INVESTMENT OF ESCROW FUNDS. Escrow Agent shall deposit the Escrow Funds in a
non-interest bearing money market account.
If Escrow Agent has not received a Joint Written Direction at any time
that an investment decision must be made, Escrow Agent shall invest the Escrow
Funds, or such portion thereof, as to which no Joint Written Direction has been
received, in investments described above. The foregoing investments shall be
4
made by Escrow Agent. Notwithstanding anything to the contrary contained, Escrow
Agent may, without notice to the parties, sell or liquidate any of the foregoing
investments at any time if the proceeds thereof are required for any release of
funds permitted or required hereunder, and Escrow Agent shall not be liable or
responsible for any loss, cost or penalty resulting from any such sale or
liquidation. With respect to any funds received by Escrow Agent for deposit into
the Escrow Funds or any Joint Written Direction received by Escrow Agent with
respect to investment of any funds in the Escrow Funds after ten o'clock, a.m.,
New Jersey time, Escrow Agent shall not be required to invest such funds or to
effect such investment instruction until the next day upon which banks in New
Jersey are open for business.
9. RESIGNATION AND REMOVAL OF ESCROW AGENT. Escrow Agent may resign from the
performance of its duties hereunder at any time by giving thirty (30) days'
prior written notice to the parties or may be removed, with or without cause, by
the parties, acting jointly, by furnishing a Joint Written Direction to Escrow
Agent, at any time by the giving of ten (10) days' prior written notice to
Escrow Agent as provided herein below. Upon any such notice of resignation or
removal, the representatives of the Placement Agent and the Company identified
in Sections 13a. (iv) and 13b. (iv), below, jointly shall appoint a successor
Escrow Agent hereunder, which shall be a commercial bank, trust company or other
financial institution with a combined capital and surplus in excess of
$10,000,000.00. Upon the acceptance in writing of any appointment of Escrow
Agent hereunder by a successor Escrow Agent, such successor Escrow Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Escrow Agent, and the retiring Escrow Agent shall be
discharged from its duties and obligations under this Escrow Agreement, but
shall not be discharged from any liability for actions taken as Escrow Agent
hereunder prior to such succession. After any retiring Escrow Agent's
resignation or removal, the provisions of this Escrow Agreement shall inure to
its benefit as to any actions taken or omitted to be taken by it while it was
Escrow Agent under this Escrow Agreement. The retiring Escrow Agent shall
transmit all records pertaining to the Escrow Funds and shall pay all funds held
by it in the Escrow Funds to the successor Escrow Agent, after making copies of
such records as the retiring Escrow Agent deems advisable and after deduction
and payment to the retiring Escrow Agent of all fees and expenses (including
court costs and attorneys' fees) payable to, incurred by, or expected to be
incurred by the retiring Escrow Agent in connection with the performance of its
duties and the exercise of its rights hereunder.
10. LIABILITY OF ESCROW AGENT.
--------------------------
a. Escrow Agent shall have no liability or obligation with respect to the
Escrow Funds except for Escrow Agent's willful misconduct or gross negligence.
Escrow Agent's sole responsibility shall be for the safekeeping, investment, and
disbursement of the Escrow Funds in accordance with the terms of this Agreement.
Escrow Agent shall have no implied duties or obligations and shall not be
charged with knowledge or notice or any fact or circumstance not specifically
set forth herein. Escrow Agent may rely upon any instrument, not only as to its
due execution, validity and effectiveness, but also as to the truth and accuracy
of any information contained therein, which Escrow Agent shall in good faith
5
believe to be genuine, to have been signed or presented by the person or parties
purporting to sign the same and conform to the provisions of this Agreement. In
no event shall Escrow Agent be liable for incidental, indirect, special, and
consequential or punitive damages. Escrow Agent shall not be obligated to take
any legal action or commence any proceeding in connection with the Escrow Funds,
any account in which Escrow Funds are deposited, this Agreement or the
Securities Purchase Agreement, or to appear in, prosecute or defend any such
legal action or proceeding. Escrow Agent may consult legal counsel selected by
it in any event of any dispute or question as to construction of any of the
provisions hereof or of any other agreement or its duties hereunder, or relating
to any dispute involving any party hereto, and shall incur no liability and
shall be fully indemnified from any liability whatsoever in acting in accordance
with the opinion or instructions of such counsel. The Company and the Placement
Agent jointly and severally shall promptly pay, upon demand, the reasonable fees
and expenses of any such counsel.
b. Escrow Agent is hereby authorized, in its sole discretion, to comply
with orders issued or process entered by any court with respect to the Escrow
Funds, without determination by Escrow Agent of such court's jurisdiction in the
matter. If any portion of the Escrow Funds is at any time attached, garnished or
levied upon under any court order, or in case the payment, assignment, transfer,
conveyance or delivery of any such property shall be stayed or enjoined by any
court order, or in any case any order judgment or decree shall be made or
entered by any court affecting such property or any part thereof, then and in
any such event, Escrow Agent is authorized, in its sole discretion, to rely upon
and comply with any such order, writ judgment or decree which it is advised by
legal counsel selected by it, binding upon it, without the need for appeal or
other action; and if Escrow Agent complies with any such order, writ, judgment
or decree, it shall not be liable to any of the parties hereto or to any other
person or entity by reason of such compliance even though such order, writ
judgment or decree may be subsequently reversed, modified, annulled, set aside
or vacated.
11. INDEMNIFICATION OF ESCROW AGENT. From and at all times after the date of
this Agreement, the parties jointly and severally, shall, to the fullest extent
permitted by law and to the extent provided herein, indemnify and hold harmless
Escrow Agent and each director, officer, employee, attorney, agent and affiliate
of Escrow Agent (collectively, the "INDEMNIFIED PARTIES") against any and all
actions, claims (whether or not valid), losses, damages, liabilities, costs and
expenses of any kind or nature whatsoever (including without limitation
reasonable attorney's fees, costs and expenses) incurred by or asserted against
any of the Indemnified Parties from and after the date hereof, whether direct,
indirect or consequential, as a result of or arising from or in any way relating
to any claim, demand, suit, action, or proceeding (including any inquiry or
investigation) by any person, including without limitation the parties to this
Agreement, whether threatened or initiated, asserting a claim for any legal or
equitable remedy against any person under any statute or regulation, including,
but not limited to, any federal or state securities laws, or under any common
law or equitable cause or otherwise, arising from or in connection with the
negotiation, preparation, execution, performance or failure of performance of
this Agreement or any transaction contemplated herein, whether or not any such
6
Indemnified Party is a party to any such action or proceeding, suit or the
target of any such inquiry or investigation; provided, however, that no
Indemnified Party shall have the right to be indemnified hereunder for liability
finally determined by a court of competent jurisdiction, subject to no further
appeal, to have resulted from the gross negligence or willful misconduct of such
Indemnified Party. If any such action or claim shall be brought or asserted
against any Indemnified Party, such Indemnified Party shall promptly notify the
Company and the Placement Agent hereunder in writing, and the Placement Agent
and the Company shall assume the defense thereof, including the employment of
counsel and the payment of all expenses. Such Indemnified Party shall, in its
sole discretion, have the right to employ separate counsel (who may be selected
by such Indemnified Party in its sole discretion) in any such action and to
participate and to participate in the defense thereof, and the fees and expenses
of such counsel shall be paid by such Indemnified Party, except that the
Placement Agent and/or the Company shall be required to pay such fees and
expense if (a) the Placement Agent or the Company agree to pay such fees and
expenses, or (b) the Placement Agent and/or the Company shall fail to assume the
defense of such action or proceeding or shall fail, in the sole discretion of
such Indemnified Party, to employ counsel reasonably satisfactory to the
Indemnified Party in any such action or proceeding, (c) the Placement Agent and
the Company are the plaintiff in any such action or proceeding or (d) the named
or potential parties to any such action or proceeding (including any potentially
impleaded parties) include both the Indemnified Party, the Company and/or the
Placement Agent and the Indemnified Party shall have been advised by counsel
that there may be one or more legal defenses available to it which are different
from or additional to those available to the Company or the Placement Agent. The
Placement Agent and the Company shall be jointly and severally liable to pay
fees and expenses of counsel pursuant to the preceding sentence, except that any
obligation to pay under clause (a) shall apply only to the party so agreeing.
All such fees and expenses payable by the Company and/or the Placement Agent
pursuant to the foregoing sentence shall be paid from time to time as incurred,
both in advance of and after the final disposition of such action or claim. The
obligations of the parties under this section shall survive any termination of
this Agreement, and resignation or removal of the Escrow Agent shall be
independent of any obligation of Escrow Agent.
The parties agree that neither payment by the Company or the Placement Agent
of any claim by Escrow Agent for indemnification hereunder shall impair, limit,
modify, or affect, as between the Placement Agent and the Company, the
respective rights and obligations of Placement Agent, on the one hand, and the
Company, on the other hand, under the Placement Agent Agreement.
12. EXPENSES OF ESCROW AGENT. Except as set forth in Section 11 the Company
shall reimburse Escrow Agent for all of its reasonable out-of-pocket expenses,
including attorneys' fees, travel expenses, telephone and facsimile transmission
costs, postage (including express mail and overnight delivery charges), copying
charges and the like. All of the compensation and reimbursement obligations set
forth in this Section shall be payable by the Company, upon demand by Escrow
7
Agent. The obligations of the Company under this Section shall survive any
termination of this Agreement and the resignation or removal of Escrow Agent.
13. WARRANTIES.
----------
a. Placement Agent makes the following representations and warranties to
Escrow Agent:
(i) Placement Agent has full power and authority to execute and
deliver this Escrow Agreement and to perform its obligations
hereunder.
(ii) This Escrow Agreement has been duly approved by all
necessary corporate action of Placement Agent, including any
necessary shareholder approval, has been executed by duly
authorized officers of the Placement Agent, enforceable in
accordance with its terms.
(iii) The execution, delivery, and performance of the Placement
Agent of this Agreement will not violate, conflict with, or cause
a default under the certificate of incorporation or bylaws of
Placement Agent, any applicable law or regulation, any court
order or administrative ruling or degree to which the Placement
Agent is a party or any of its property is subject, or any
agreement, contract, indenture, or other binding arrangement.
(iv) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ has been duly appointed to act as the
representative of the Placement Agent hereunder and has full
power and authority to execute, deliver, and perform this Escrow
Agreement, to execute and deliver any Joint Written Direction, to
amend, modify, or waive any provision of this Agreement, and to
take any and all other actions as the Placement Agent's
representative under this Agreement, all without further consent
or direction form, or notice to, the Placement Agent or any other
party.
(v) No party other than the parties hereto and the Investors
have, or shall have, any lien, claim or security interest in the
Escrow Funds or any part thereof. No financing statement under
the Uniform Commercial Code is on file in any jurisdiction
claiming a security interest in or describing (whether
specifically or generally) the Escrow Funds or any part thereof.
(vi) All of the representations and warranties of the Placement
Agent contained herein are true and complete as of the date
8
hereof and will be true and complete at the time of any
disbursement from the Escrow Funds.
b. The Company makes the following representations and warranties to
Escrow Agent:
(i) The Company is a corporation duly organized, validly
existing, and in good standing under the laws of the State of
Delaware and has full power and authority to execute and deliver
this Escrow Agreement and to perform its obligations hereunder.
(ii) This Escrow Agreement has been duly approved by all
necessary corporate action of the Company, including any
necessary shareholder approval, has been executed by duly
authorized officers of the Company, enforceable in accordance
with its terms.
(iii) The execution, delivery, and performance by the Company of
this Escrow Agreement is in accordance with the Purchase
Agreement and will not violate, conflict with, or cause a default
under the certificate of incorporation or bylaws of the Company,
any applicable law or regulation, any court order or
administrative ruling or decree to which the Company is a party
or any of its property is subject, or any agreement, contract,
indenture, or other binding arrangement, including without
limitation to the Securities Securities Purchase Agreement, to
which the Company is a party.
(iv) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ has been duly appointed to act as the
representative of the Company hereunder and has full power and
authority to execute, deliver, and perform this Escrow Agreement,
to execute and deliver any Joint Written Direction, to amend,
modify or waive any provision of this Agreement and to take all
other actions as the Company's Representative under this
Agreement, all without further consent or direction from, or
notice to, the Company or any other party.
(v) No party other than the parties hereto and the Investors
have, or shall have, any lien, claim or security interest in the
Escrow Funds or any part thereof. No financing statement under
the Uniform Commercial Code is on file in any jurisdiction
claiming a security interest in or describing (whether
specifically or generally) the Escrow Funds or any part thereof.
(vi) All of the representations and warranties of the Company
contained herein are true and complete as of the date hereof and
9
will be true and complete at the time of any disbursement from
the Escrow Funds.
14. CONSENT TO JURISDICTION AND VENUE. In the event that any party
hereto commences a lawsuit or other proceeding relating to or arising from this
Agreement, the parties hereto agree that the United States District Court for
the District of New Jersey shall have the sole and exclusive jurisdiction over
any such proceeding. If all such courts lack federal subject matter
jurisdiction, the parties agree that the Superior Court Division of New Jersey,
Chancery Division of Essex County shall have sole and exclusive jurisdiction.
Any of these courts shall be proper venue for any such lawsuit or judicial
proceeding and the parties hereto waive any objection to such venue. The parties
hereto consent to and agree to submit to the jurisdiction of any of the courts
specified herein and agree to accept the service of process to vest personal
jurisdiction over them in any of these courts.
15. NOTICE. All notices and other communications hereunder shall be in
writing and shall be deemed to have been validly served, given or delivered five
(5) days after deposit in the United States mails, by certified mail with return
receipt requested and postage prepaid, when delivered personally, one (1) day
delivered to any overnight courier, or when transmitted by facsimile
transmission and upon confirmation of recipet and addressed to the party to be
notified as follows:
If to Placement Agent, to: The May ▇▇▇▇▇ Group, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇)▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With Copy to: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Company, to: Nexland, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
10
With a copy to: ▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇. - ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to Escrow Agent, to: First Union National Bank,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Or to such other address as each party may designate for itself by like notice.
16. AMENDMENTS OR WAIVER. This Agreement may be changed, waived, discharged or
terminated only by a writing signed by the parties hereto. No delay or omission
by any party in exercising any right with respect hereto shall operate as
waiver. A waiver on any one occasion shall not be construed as a bar to, or
waiver of, any right or remedy on any future occasion.
17. SEVERABILITY. To the extent any provision of this Agreement is prohibited by
or invalid under applicable law, such provision shall be ineffective to the
extent of such prohibition, or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Agreement.
18. GOVERNING LAW. This Agreement shall be construed and interpreted in
accordance with the internal laws of the State of New Jersey without giving
effect to the conflict of laws principles thereof.
19 ENTIRE AGREEMENT. This Agreement constitutes the entire Agreement between the
parties relating to the holding, investment, and disbursement of the Escrow
Funds and sets forth in their entirety the obligations and duties of the Escrow
Agent with respect to the Escrow Funds.
20.BINDING EFFECT. All of the terms of this Agreement, as amended from time to
time, shall be binding upon, inure to the benefit of and be enforceable by the
respective heirs, successors and assigns of the Placement Agent, the Company, or
the Escrow Agent.
11
21. EXECUTION OF COUNTERPARTS. This Agreement and any Joint Written Direction
may be executed in counter parts, which when so executed shall constitute one
and same agreement or direction.
22. TERMINATION. Upon the first to occur of the disbursement of all amounts in
the Escrow Funds pursuant to Joint Written Directions or the disbursement of all
amounts in the Escrow Funds into court pursuant to Section 7 hereof, this
Agreement shall terminate and Escrow Agent shall have no further obligation or
liability whatsoever with respect to this Agreement or the Escrow Funds.
[REMAINDER OF PAGE INTENIONALLY LEFT BLANK]
12
IN WITNESS WHEREOF the parties have hereunto set their hands and seals
the day and year above set forth.
NEXLAND, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
FIRST UNION NATIONAL BANK
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: As Escrow Agent
THE MAY ▇▇▇▇▇ GROUP, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director