<PAGE>
PROGRAM PROMOTION AGREEMENT
---------------------------
AGREEMENT, dated as of December 15, 2000, by and between PlasmaNet,
Inc., a Delaware corporation having its principal place of business at 420
Lexington Avenue, Suite 2435, New York, NY 10170 ("PlasmaNet"); Return Assured
Incorporated, a Delaware corporation having its principal place of business at
1901 Avenue of the Stars, Suite 1710, Los Angeles, California 90067 ("Parent");
and Return Assured Incorporated, a Nevada corporation, which is a wholly-owned
subsidiary of Parent, having its principal place of business at 1901 Avenue of
the Stars, Suite 1710, Los Angeles, California 90067 ("Client"). The parties
hereinafter referred to as the "Parties".
RECITALS
WHEREAS, PlasmaNet owns and operates FreeLotto.com ("FreeLotto"), an
Internet web site presenting sweepstakes games in lottery format pursuant to
which users enter for free by clicking on an ad banner or answering a
consumer-oriented question to enter their selections (a "FreeBet"); and
WHEREAS, Client intends to furnish Internet users with an online credit
card protection program (the "Program") and seeks to have PlasmaNet refer site
traffic to Client for the purpose of generating enrollments in the Program on
the terms and conditions hereinafter set forth;
NOW, THEREFORE, the parties hereto, intending to be legally bound,
hereby agree as follows:
1. Program Description. PlasmaNet will refer site traffic to
Client for the purpose of new membership generation with a target of a minimum
of 1,000,000 registrations by Client within four (4) months of the launch of the
Program. To accomplish registration, each prospective member will be required to
provide his name, e-mail address, and postal address, and must be at least 21
years of age. Fraudulent registrations are not recognized. In addition,
PlasmaNet will use its best commercial efforts to assist Client in collecting
credit card information from the new members with such new members' consent.
2. Economics
---------
(a) In exchange for the above-mentioned membership
generation, and in reliance on the investment representation letter annexed
hereto, Parent will, at the end of each calendar week, issue shares of its
common stock, $0.001 par value per share, to PlasmaNet (the "Parent Shares"),
according to the following formula:
S= (M x 6) / (P)
where:
S= number of Parent Shares to be issued and delivered to PlasmaNet for that
calendar week
M= number of new members referred by PlasmaNet and registered by Client in that
calendar week
P= The average last sale price of Parent's common stock as reported by the
Nasdaq Stock Market during that calendar week, but not less than $1.00
1
<PAGE>
(b) Upon the execution hereof by the Parties, Parent will
deliver common stock certificates representing one million four hundred thousand
(1,400,000) Parent Shares in the name of PlasmaNet and deliver said certificates
to Kaplan Gottbetter & Levenson, LLP as escrow agent, pursuant to the escrow
agreement annexed hereto, in the denomination of certificates evidencing 50,000
Parent Shares each. As soon as practicable after Parent files its Form 10-KSB
for the year ended August 31, 2000, Parent will file a registration statement on
Form S-3, or such other form if Form S-3 is not available, to register the
resale of the Parent Shares by PlasmaNet. PlasmaNet agrees to a contractual
lock-up period of thirty (30) days commencing upon receipt of unrestricted
Parent Shares in the form annexed hereto.
(c) Certificates representing the Parent Shares shall be
delivered to PlasmaNet within three (3) trading days after the end of each
calendar week, except for certificates evidencing shares of less than 50,000
shares. Any shares due to PlasmaNet in amounts less than 50,000 shall be
delivered within five (5) trading days.
(d) Within five (5) trading days of both parties signing
this Agreement, Parent shall transfer a number of its shares of common stock
(the "Initial Parent Shares") as pre-payment for the first 200,000 members
referred by PlasmaNet. The number of the Initial Parent Shares is 542,066 (which
is calculated as (200,000 x 6)/average listed share price in the first five
working days of trading + 10% premium).
(e) If PlasmaNet refers less than 200,000 members within
sixty (60) days of the launch of the Program, then PlasmaNet shall surrender to
Parent certificates representing the number of Parent Shares according to the
following formula:
C=542,066 x ((200,000-N)/200,000)
where:
N= number of new members referred by PlasmaNet and registered by Client within
sixty (60) days of the launch of the Program
C= number of Parent Shares to be canceled and surrendered by PlasmaNet to Parent
(f) Should PlasmaNet transfer more than 1,000,000 members
to Client within four (4) months of the launch of the Program, PlasmaNet shall
receive, at Client's option, either in common stock of the Parent, on the same
terms and conditions as described above, or in cash at $5 for each member in
excess of 1,000,000, with a maximum limit of $500,000 to be paid to PlasmaNet
unless a new agreement is signed between the parties.
3. Reporting. Client shall provide a weekly statement (by fax or
email) indicating total referrals received and total number of resulting
membership registrations for the preceding week. As a means of verification,
Client will place 1 pixel of code on the page subsequent to the registration,
which will be served and counted by FreeLotto's server. PlasmaNet will have a
right, at its own expense, to audit the registration figures on Client's servers
on seven (7) days' written notice to Client. In the event that the audit reveals
a difference with the membership figures communicated by Client, such difference
being in Client's favor, Client shall pay the amount corresponding to the
difference to PlasmaNet within seven (7) days and pay for reasonable costs
related to the audit.
2
<PAGE>
4. Renewal Option. Client will have the option to renew this
agreement upon the same terms and conditions, for another 1,000,000 members. The
option will have to be exercised in writing within four (4) months of the launch
of the Program.
5. Press Release. Both parties shall coordinate and agree upon a
press release announcing this Agreement, which press release shall be
disseminated one week after the Client/FreeLotto link is introduced on the
FreeLotto site and is functioning to the satisfaction of both parties.
6. Intellectual Property Rights. PlasmaNet is and shall remain
the owner of all intellectual property rights associated with FreeLotto,
including without limitation all copyright and trademark rights. Client is and
shall remain the owner of all intellectual property rights in the Client web
site, including without limitation copyrights and trademarks, including, without
limitation the mark "Return Assured". Each party reserves all rights not
otherwise granted in this Agreement. PlasmaNet hereby grants to Client a
limited, non-exclusive, royalty-free, non-assignable and non-transferable
license to use and display the FreeLotto logo and such other of PlasmaNet's
intellectual property, and Client hereby grants to PlasmaNet a limited,
non-exclusive, royalty-free, non-assignable and non-transferable license to use
and display the Client logo and such other of Client's intellectual property, as
is necessary for the fulfillment of their respective obligations under this
Agreement.
7. Indemnities
-----------
(a) Client represents and warrants that it has the right
to grant the rights granted to PlasmaNet hereunder and that neither the rights
granted to Client hereunder, nor the exercise of such rights will infringe upon
or conflict with the rights held by any third party under any trademark,
copyright, trade secret or other proprietary right. Client shall indemnify,
defend and hold harmless PlasmaNet, its directors, officers, employees, agents
and assigns from and against any and all losses, claims, damages, liabilities,
judgments, costs and expenses (including reasonable attorneys' fees) resulting
from or arising out of (i) any of the foregoing representations and warranties
being false or inaccurate in any way, or (ii) Client's material breach of this
Agreement. PlasmaNet shall notify Client promptly of any such claim or
litigation, and shall cooperate with Client in every reasonable way, at Client's
expense, to facilitate the defense of such claim or litigation. In no event
shall the amount indemnified exceed the consideration paid or received by the
indemnified party.
(b) PlasmaNet represents and warrants that it has the
right to grant the rights granted to Client hereunder and that neither the
rights granted to Client hereunder, nor the exercise of such rights will
infringe upon or conflict with the rights held by any third party under any
trademark, copyright, trade secret or other proprietary right. PlasmaNet shall
indemnify, defend and hold harmless Client, its directors, officers, employees,
agents and assigns from and against any and all claims, losses, damages,
liabilities, judgments, costs and expenses (including reasonable attorneys'
fees) resulting from or arising out of (i) any of the foregoing representations
and warranties being false or inaccurate in any way, or (ii) PlasmaNet's
material breach of this Agreement. Client shall notify PlasmaNet promptly of any
such claim or litigation, and shall cooperate with PlasmaNet in every reasonable
way, at PlasmaNet's expense, to facilitate the defense of such claim or
litigation. In no event shall the amount indemnified exceed the consideration
paid or received by the indemnified party.
(c) It is acknowledged and agreed by the parties that
Client alone is responsible for the content and operation of the Program and the
payment of any claims made by any person who joins the Program. Client hereby
expressly indemnifies PlasmaNet and holds PlasmaNet harmless from and against
any and all losses, liabilities, claims or lawsuits, including expenses in
connection with the defense thereof, relating to or arising out of the Program.
3
<PAGE>
8. Confidentiality. Each Party (the "Receiving Party")
acknowledges that by reason of its relationship with the other party (the
"Disclosing Party") hereunder, the Receiving Party will have access to certain
information and materials concerning the Disclosing Party's business, financial
information, business plans, technology and business strategies, inventions, and
new products or services, ("Confidential Information"). The terms and conditions
set forth in this Agreement shall be Confidential Information. The Receiving
Party acknowledges and agrees that the Disclosing Party's Confidential
Information is of substantial value to the Disclosing Party, which value would
be harmed if such information were disclosed to third parties. The Receiving
Party agrees that it shall not use (except in the proper performance of its
obligations under this Agreement) in any way for its own account or the account
of any third party, nor disclose to any third party, such Confidential
Information. The Receiving Party may disclose the Disclosing Party's
Confidential Information to its employees and contractors who need to know such
information, provided such employees and contractor have signed confidentiality
agreements with terms no less restrictive than the terms in this Agreement. The
Receiving Party shall not publish in any form the Disclosing Party's
Confidential Information beyond any descriptions published by the Disclosing
Party. The obligations in this Section shall survive the termination of this
Agreement. Confidential Information does not include any information that the
Receiving Party can demonstrate by written records (a) was known to the
Receiving Party prior to its disclosure hereunder by the Disclosing Party; (b)
was independently developed by the Receiving Party without reference to the
Disclosing Party's Confidential Information; (c) is or becomes publicly known
through no wrongful act of the Receiving Party; (d) has been rightfully received
from a third party whom the Receiving Party has reasonable grounds to believe is
authorized to make such disclosure without restriction; or (e) has been approved
for public release by the Disclosing Party's prior written authorization.
Confidential Information may be disclosed pursuant to applicable law,
regulations or court order, provided that the Receiving Party provides prompt
advance notice thereof to enable the Disclosing Party to seek protective order
or otherwise prevent such disclosure. In addition, each party may disclose the
existence and terms of this Agreement in connection with a potential acquisition
of substantially the entire business of a party or a private or public offering
of a party's securities, but only as necessary to effectuate the particular
transaction.
9. Miscellaneous.
--------------
(a) Notices. All notices or reports permitted or required
under this Agreement shall be in writing and shall be delivered by personal
delivery, facsimile (provided that proof of transmission is retained),
nationally-recognized overnight air carrier, or by certified or registered mail,
return receipt requested, and shall be deemed given upon (i) the date of
personal delivery or facsimile, (ii) one business day after deposit with a
nationally-recognized overnight air-carrier, or (iii) five (5) days after
deposit in the mail. Notices shall be sent to the address set forth in the first
paragraph of this Agreement, or other such address as either party may specify
in writing to the other.
(b) Force Majeure Except for the payment obligations of a
party, neither party will be liable to the other party arising out of delays or
failures to perform under this Agreement to the extent that any such delays or
failures result from any cause beyond the reasonable control of the party
affected.
4
<PAGE>
(c) Relationship. Both parties are independent
contractors and neither party is the legal representative, agent, joint venture,
partner, or employee of the other party for any purpose whatsoever. Neither
party has any right or authority to assume or create any obligations of any kind
or to make any representation or warranty on behalf of the other party, whether
express or implied.
(d) Governing Law and Jurisdiction. This Agreement will
be governed in all respects by the laws of the State of New York. The prevailing
party in any such litigation or dispute will be entitled to recover from the
other party its costs, including reasonable attorneys' fees, associated with
such litigation or dispute.
(e) Waiver and Severability. No failure or delay on the
part of either party in exercising any right or remedy hereunder will operate as
a waiver thereof; nor will any single or partial exercise of any such right or
remedy preclude any other or further exercise thereof or of any other right or
remedy. No provision of this Agreement may be waived except in a writing signed
by the party granting such waiver. In the event that any provision of this
Agreement will be unenforceable or invalid such unenforceability or invalidity
will not render this Agreement unenforceable or invalid as a whole, and in such
event, such provision will be changed and interpreted so as to best accomplish
the objectives of such unenforceable or invalid provision within the limits of
applicable law or applicable court decisions.
(f) No Assignment. Neither this Agreement nor any rights
or obligations in this Agreement may be assigned or delegated by either party
without the prior written consent of the other, provided however, that in the
event of a merger, reorganization or acquisition of all or substantially all the
assets of either party, no such consent shall be required.
(g) Headings. The section headings in this Agreement are
inserted as a matter of convenience and in no way define, limit, or describe the
scope of extent of such section, or affect the interpretation of this Agreement.
(h) Counterparts This Agreement may be executed in
counterparts, all of which taken together shall constitute one single agreement
between the Parties.
10. Change of Control. Client and Parent shall have the option to
terminate this Agreement upon 30 days written notice in case of a change of
control of PlasmaNet, and immediately upon notice in case the company taking
control of PlasmaNet is involved in activities competing directly with the core
business of Parent or Client. PlasmaNet shall have the option to terminate this
Agreement upon 30 days written notice in case of a change of control of either
Client or Parent, and immediately upon notice in case (i) the company taking
control of either Client or Parent or (ii) a company over which Client or Parent
takes control, is involved in activities competing directly with the core
business of PlasmaNet.
11. Entire Agreement. This Agreement and the exhibits attached
hereto constitute the entire agreement between the parties with respect to the
subject matter hereof. This Agreement supersedes, and the terms of this
Agreement govern, any prior or collateral agreements, whether oral or written,
with respect to the subject matter hereof with the exception of any prior
confidentiality agreements between the Parties. This Agreement may only be
changed by mutual agreement of authorized representatives of Parties in writing.
5
<PAGE>
12. Termination.
-----------
(a) This Agreement shall automatically terminate one (1)
year from the date hereof.
(b) Client or Parent may terminate this Agreement upon
ten (10) days' written notice to PlasmaNet if:
(i) PlasmaNet refers less than 200,000 members
within sixty (60) days of the launch of the Program; or
(ii) PlasmaNet materially breaches any provisions
of this Agreement or any exhibit referenced herein and fails to cure within ten
(10) days after written notice from Client or Parent of such breach.
(c) Client or Parent may terminate this Agreement
immediately upon PlasmaNet receiving an aggregate of 1,400,000 Parent Shares
under this Agreement.
(d) PlasmaNet may terminate this Agreement upon ten (10)
days' written notice to Client if Parent or Client materially breaches any
provisions of this Agreement or any exhibit referenced herein and fails to cure
within ten (10) days after written notice from PlasmaNet of such breach.
[Signatures on following page]
6
<PAGE>
IN WITNESS WHEREOF, the Parties hereto have duly executed this
Agreement as of the date first written above.
Client: PlasmaNet:
Return Assured Incorporated PlasmaNet, Inc.
By: /s/ MATTHEW SEBAL By: /s/ ALAIN RENAUD
-------------------------------- --------------------------------
Name: Matthew Sebal Name: Alain Renaud
Title: President Title: VP Business Development
Parent:
Return Assured Incorporated
By: /s/ MATTHEW SEBAL
--------------------------------
Name: Matthew Sebal
Title: President
7
<PAGE>
December 15, 2000
Return Assured Incorporated
1901 Avenue of the Stars, Suite 1710
Los Angeles, California 90067
Gentlemen,
The undersigned hereby represents and warrants to you as follows:
(i) The undersigned has received and carefully reviewed any such
information and documentation relating to you that the undersigned has
requested;
(ii) The undersigned has had a reasonable opportunity to ask
questions of and receive answers from you concerning your business and the
securities the undersigned has, or shall acquire from you, and all such
questions, if any, have been answered to the full satisfaction of the
undersigned;
(iii) The undersigned has such knowledge and expertise in financial
and business matters that the undersigned is capable of evaluating the merits
and risks involved in an investment in your securities;
(iv) The undersigned understands that you have determined that the
exemption from the registration provisions of the Securities Act of 1933, as
amended (the "Act"), provided by Rule 506 of Regulation D is applicable to the
offer and sale of the securities to the undersigned, based, in part, upon the
representations and warranties made by the undersigned herein;
(v) The undersigned understands that (A) the securities have not
been registered under the Act or the securities laws of any state, based upon an
exemption from such registration requirements for non-public offerings pursuant
to Rule 506 of Regulation D under the Act; (B) the securities are and will be
"restricted securities", as said term is defined in Rule 144 of the Rules and
Regulations promulgated under the Act; (C) the securities may not be sold or
otherwise transferred unless they have been first registered under the Act
and/or all applicable state securities laws, or unless exemptions from such
registration provisions are available with respect to said resale or transfer;
and (D) other than as set forth in the Program Promotion Agreement between the
undersigned and you, et al, dated December 15, 2000, you are under no obligation
to register the securities under the Act or any state securities law, or to take
any action to make any exemption from any such registration provisions
available;
(vi) The undersigned will not sell or otherwise transfer any of the
securities, or any interest therein, unless and until (A) said securities shall
have first been registered under the Act and/or all applicable state securities
laws; or (B) the undersigned shall have first delivered to you a written opinion
of counsel (which counsel and opinion (in form and substance) shall be
reasonably satisfactory to you), to the effect that the proposed sale or
transfer is exempt from the registration provisions of the Act and all
applicable state securities laws;
(vii) The undersigned is an "accredited investor," as such term is
defined in Rule 501(a) of Regulation D of the Rules and Regulations promulgated
under the Act in that the undersigned is a corporation with assets of at least
$5,000,000;
1
<PAGE>
(viii) The undersigned is purchasing the securities for investment
purposes only, and without a view for resale or distribution of the securities.
(ix) The undersigned understands that the certificates representing
the securities will bear the following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED AND MAY NOT BE SOLD, TRANSFERRED,
PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF IN ABSENCE OF (I) AN EFFECTIVE
REGISTRATION STATEMENT FOR SUCH SECURITIES UNDER SAID ACT OR (II) AN OPINION OF
COMPANY COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED.
PlasmaNet, Inc.
By: /s/ ALAIN RENAUD
--------------------------------
Name: Alain Renaud
Title: VP Business Development
2
<PAGE>
LOCK-UP AGREEMENT
December 15, 2000
Return Assured Incorporated
1901 Avenue of the Stars, Suite 1710
Los Angeles, California 90067
The undersigned hereby agrees not to offer to sell, contract to sell or
otherwise sell, dispose of, loan, pledge or grant any rights with respect to
(collectively, a "Disposition") any shares of common stock, any options or
warrants to purchase any shares of common stock or any securities convertible
into or exchangeable for shares of common stock of Return Assured Incorporated,
a Delaware corporation issued, from time to time, pursuant to the Program
Promotion Agreement between the undersigned and Return Assured Incorporated, et
al, dated December 15, 2000, (collectively, the "Securities"), now owned or
hereafter acquired by the undersigned or with respect to which the undersigned
has or hereafter acquires the power of disposition, for the period commencing
the later of (i) the date the Securities were issued or (ii) the date a
registration statement registering the resale of the securities is declared
effective by the Securities and Exchange Commission through the date thirty (30)
days later (the "Lock-Up Period"), and may make a Disposition of such Securities
owned by the undersigned during the Lock-Up Period only with the prior written
consent of Return Assured Incorporated.
The foregoing restriction is expressly agreed to preclude the holder of the
Securities from engaging in any hedging or other transaction which is designed
to or reasonably expected to lead to or result in a Disposition of Securities
during the Lock-Up Period even if such Securities would be disposed of by
someone other than the undersigned. Such prohibited hedging or other
transactions would include without limitation any short sale (whether or not
against the box) or any purchase, sale or grant of any right (including without
limitation any put or call option) with respect to any Securities or with
respect to any security (other than a broad-based market basket or index) that
includes, relates to or derives any significant part of its value from
Securities.
Certificates evidencing the Securities may contain the following legend:
The securities evidenced by this certificate are subject to a Lock-Up
Agreement dated December 15, 2000 by and among the holder of this
certificate and Return Assured Incorporated, a copy of which is on file
with Return Assured Incorporated, and may not be sold, conveyed,
encumbered, hypothecated or otherwise transferred except with the prior
written consent of Return Assured Incorporated.
1
<PAGE>
Furthermore, the undersigned hereby agrees and consents to the entry of stop
transfer instructions with the transfer agent against the transfer of the
Securities held by the undersigned except in compliance with this Lock-Up
Agreement.
Very truly yours,
PlasmaNet, Inc.
By: /s/ ALAIN RENAUD
--------------------------------
Name: Alain Renaud
Title: VP Business Development
Accepted as of the date first set forth above:
Return Assured Incorporated
By: /s/ MATTHEW SEBAL
--------------------------------
Matthew Sebal
President
2
<PAGE>
ESCROW AGREEMENT
ESCROW AGREEMENT (the "Agreement"), dated as of December 15, 2000, by
and among PlasmaNet, Inc., a Delaware corporation having its principal place of
business at 420 Lexington Avenue, Suite 2435, New York, NY 10170 ("PlasmaNet"),
Return Assured Incorporated, a Delaware corporation having its principal place
of business at 1901 Avenue of the Stars, Suite 1710, Los Angeles, California
90067 ("Parent"), Return Assured Incorporated, a Nevada corporation having its
principal place of business at 1901 Avenue of the Stars, Suite 1710, Los
Angeles, California 90067, and wholly-owned subsidiary of Parent ("Client"), and
Kaplan Gottbetter & Levenson, LLP, a New York limited liability partnership with
its principal place of business at 630 Third Avenue, New York, NY 10017 (the
"Escrow Agent").
Recitals:
Whereas, PlasmaNet, Parent and Client entered into a Program Promotion
Agreement dated December 15, 2000 (the "Program Promotion Agreement"); and
Whereas, PlasmaNet, Parent and Client wish the Escrow Agent to act as
escrow agent with respect to the Shares (as defined below), and the Escrow Agent
is willing to act as escrow agent, pursuant to the terms of this Agreement.
Now, therefore, in consideration of the premises and other good and
valuable consideration, the sufficiency of which is hereby acknowledged, the
parties agree as follows:
1. Deposit in Escrow Account. Parent shall irrevocably deposit
One Million Four Hundred (1,400,000) shares of common stock, par value $.001 per
share (the "Common Stock"), of Return Assured Incorporated, a Delaware
corporation (the "Shares"), in escrow with the Escrow Agent (the "Escrowed
Shares"). The Escrowed Shares shall be delivered to the Escrow Agent in the form
of:
(a) seventeen certificates for 50,000 Shares each;
(b) one certificate for 542,066 Shares; and
(c) and one certificate for the balance of 7,934 Shares.
PlasmaNet, Parent and Client hereby acknowledge during the term of this
Agreement, that the Shares shall not be deemed issued for any purpose until
delivered to PlasmaNet in accordance herewith.
2. Terms of Escrow.
---------------
(a) Upon receipt of certificates representing the Shares,
the Escrow Agent is directed to deliver or cause to be delivered to PlasmaNet
Escrowed Shares equaling 542,066 Shares.
(b) After receipt of certificates representing the
Shares, Client shall, from time to time, in accordance with the Program
Promotion Agreement, deliver to Escrow Agent and PlasmaNet a schedule stating
the number of Escrowed Shares to be delivered to PlasmaNet, which schedule shall
show the method of calculation of the Escrowed Shares to be delivered. If
PlasmaNet does not notify Escrow Agent of its dissent to the calculation
1
<PAGE>
by 5:00 p.m., New York time, on the second trading day after Client delivered
the schedule, then Escrow Agent shall deliver the certificates representing the
number of Escrowed Shares within three (3) trading days, unless the number of
Escrowed Shares to be delivered is less than 50,000, then the certificates shall
be delivered within five (5) trading days. In the event that the Escrow Agent
does not have certificates representing the exact number of Shares to be
delivered to PlasmaNet, the Escrow Agent shall deliver to PlasmaNet from the
Escrowed Shares as many Shares as possible within three (3) trading days and
then deliver the balance to PlasmaNet within five (5) trading days after it has
received new certificates from the transfer agent for Parent.
(c) If PlasmaNet timely notifies Escrow Agent of that
PlasmaNet disputes the schedule, then Escrow Agent shall deliver the
certificates representing the number of Escrowed Shares not in dispute in
accordance with Paragraph 2(b) and Escrow Agent may, at its option, hold the
number of Escrowed Shares in dispute until the parties agree and deliver a
written statement executed by Parent, Client and PlasmaNet as to the agreed
number of Escrowed Shares to be delivered, or deposit the Escrowed Shares in
dispute with any court of competent jurisdiction.
3. Duties and Obligations of the Escrow Agent.
------------------------------------------
(a) The parties hereto agree that the duties and
obligations of the Escrow Agent are only such as are herein specifically
provided and no other. The Escrow Agent's duty is to manage the distribution of
Shares to PlasmaNet in accordance with the terms of this Agreement only, and the
Escrow Agent shall incur no liability whatsoever, except as a direct result of
its willful misconduct or gross negligence.
(b) The Escrow Agent may consult with counsel of its
choice, and shall not be liable for any action taken, suffered or omitted by it
in accordance with the advice of such counsel.
(c) The Escrow Agent shall not be bound in any way by the
terms of any other agreement to which Parent and PlasmaNet are parties, whether
or not it has knowledge thereof, and the Escrow Agent shall not in any way be
required to determine whether or not any other agreement has been complied with
by Parent and PlasmaNet, or any other party thereto. The Escrow Agent shall not
be bound by any modification, amendment, termination, cancellation, rescission
or supersession of this Agreement unless the same shall be in writing and signed
jointly by Parent and PlasmaNet, and agreed to in writing by the Escrow Agent.
(d) If the Escrow Agent shall be uncertain as to its
duties or rights hereunder or shall receive instructions, claims or demands
which, in its opinion, are in conflict with any of the provisions of this
Agreement, it shall be entitled to refrain from taking any action, other than to
keep safely all property held in escrow or to take certain action, until it
shall jointly be directed otherwise in writing by Parent and PlasmaNet or by a
final judgment of a court of competent jurisdiction.
(e) The Escrow Agent shall be fully protected in relying
upon any written notice, demand, certificate or document which it, in good
faith, believes to be genuine. The Escrow Agent shall not be responsible for the
sufficiency or accuracy of the form, execution, validity or genuineness of
documents or securities now or hereafter deposited hereunder, or of any
endorsement thereon, or for any lack of endorsement thereon, or for any
description therein; nor shall the Escrow Agent be responsible or liable in any
respect on account of the identity, authority or rights of the persons executing
or delivering or purporting to execute or deliver any such document, security or
endorsement.
2
<PAGE>
(f) The Escrow Agent shall not be required to institute
legal proceedings of any kind and shall not be required to defend any legal
proceedings that may be instituted against it or in respect of the Escrowed
Shares.
(g) If the Escrow Agent at any time, in its sole
discretion, deems it necessary or advisable to relinquish custody of the
Escrowed Shares, it may do so by delivering the same to any other escrow agent
mutually agreeable to Parent and PlasmaNet and, if no such escrow agent shall be
selected within three (3) days of the Escrow Agent's notification to Parent and
PlasmaNet of its desire to so relinquish custody of the Escrowed Shares, then
the Escrow Agent may do so by delivering the Escrowed Shares to the clerk or
other proper officer of a court of competent jurisdiction as may be permitted by
law. The fee of any court officer shall be borne by PlasmaNet and Parent. Upon
such delivery, the Escrow Agent shall be discharged from any and all
responsibility or liability with respect to the Escrowed Shares and this
Agreement and Parent shall promptly pay to the Escrow Agent all monies which may
be owed it for its services hereunder, including, but not limited to,
reimbursement of its out-of-pocket expenses.
(h) This Agreement shall not create any fiduciary duty on
the Escrow Agent's part to Parent or PlasmaNet, nor disqualify the Escrow Agent
from representing either party hereto in any dispute with the other, including
any dispute with respect to the Escrowed Shares.
(i) The parties acknowledge and agree that the Escrow
Agent is not counsel to any party in the transactions contemplated herein. In
addition, the fees to be earned by the Escrow Agent shall be compensation for
services as escrow agent, only, and not for any legal services. The Escrow Agent
shall not have any responsibility or liability to any party for acting or
failing to act as an attorney in connection with the transactions contemplated
herein.
(j) Upon the performance of this Agreement, the Escrow
Agent shall be deemed released and discharged of any further obligations
hereunder.
4. Indemnification.
---------------
(a) Parent hereby agrees to indemnify and hold the Escrow
Agent free and harmless from any and all losses, expenses, liabilities and
damages (including but not limited to reasonable attorney's fees, and amounts
paid in settlement) resulting from claims asserted by PlasmaNet against the
Escrow Agent with respect to the performance of any of the provisions of this
Agreement.
(b) PlasmaNet hereby agrees to indemnify and hold the
Escrow Agent free and harmless from any and all losses, expenses, liabilities
and damages (including but not limited to reasonable attorney's fees, and amount
paid in settlement) resulting from claims asserted by Parent against Escrow
Agent with respect to the performance of any of the provisions of this
Agreement.
(c) Parent and PlasmaNet hereby agree to, jointly and
severally, indemnify and hold the Escrow Agent harmless from and against any and
all losses, damages, taxes, liabilities and expenses that may be incurred by the
Escrow Agent, arising out of or in connection with its acceptance of appointment
as the Escrow Agent hereunder and/or the performance of its duties pursuant to
this Agreement, including, but not limited to, all legal costs and expenses of
the Escrow Agent incurred defending itself against any claim or liability in
connection with its performance hereunder, provided that the Escrow Agent shall
not be entitled to any indemnity for any losses, damages, taxes, liabilities or
expenses that directly result from its willful misconduct or gross negligence.
3
<PAGE>
(d) In the event of any legal action between the parties
to this Agreement to enforce any of its terms, the legal fees of the prevailing
party shall be paid by the party(is) who did not prevail.
5. Escrow Agent Fees. The Escrow Agent shall be paid a fee in
accordance with its normal hourly rate for legal services and out-of-pocket
expenses (the "Escrow Agent's Fees"). Parent shall be liable for payment of the
Escrow Agent's Fees.
6. Miscellaneous.
-------------
(a) All Notices hereunder shall be in writing, sent by
telecopier, upon proof of sending thereof to the following addresses:
(i) If to PlasmaNet, to:
PlasmaNet, Inc.
420 Lexington Avenue, Suite 2435
New York, New York 10170
Attn:
Phone:
Fax:
(ii) If to Parent or Client:
Return Assured Incorporated
1901 Avenue of the Stars, Suite 1710
Los Angeles, California 90067
Attn: Matthew Sebal, President
Phone:
Fax:
(iii) If to the Escrow Agent:
Kaplan Gottbetter & Levenson, LLP
Attn: Adam S. Gottbetter, Esq.
630 Third Avenue, 5th Floor
New York, NY 10017
Phone: 212.983.6900
Fax: 212.983.9210
or at such other address as any of the parties to this Agreement may hereafter
designate in the manner set forth above to the others.
(b) This Agreement shall be construed and enforced in
accordance with the law of the State of New York applicable to contracts entered
into and performed entirely within New York.
4
<PAGE>
(c) This Agreement may be executed in two or more
counterparts, all of which when taken together shall be considered one and the
same agreement and shall become effective when counterparts have been signed by
each party and delivered to the other party, it being understood that both
parties need not sign the same counterpart. In the event that any signature is
delivered by facsimile transmission, such signature shall create a valid and
binding obligation of the party executing (or on whose behalf such signature is
executed) the same with the same force and effect as if such facsimile signature
page were an original thereof.
(d) This Agreement shall be binding upon and inure to the
benefit of the parties and their successors and permitted assigns. The
assignment by a party of this Agreement or any rights hereunder shall not affect
the obligations of such party under this Agreement.
7. Termination of Escrow.
---------------------
This Escrow Agreement shall begin upon the date hereof and shall
terminate upon the earlier of (i) the delivery to PlasmaNet of all of the
Escrowed Shares or (ii) notice from Parent and PlasmaNet of termination of the
Program Promotion Agreement. Upon the termination of the Escrow Agreement, the
Escrow Agent shall deliver to Parent any Escrowed Shares that have not been
delivered to PlasmaNet.
IN WITNESS WHEREOF, the parties hereto have caused this Escrow
Agreement of to be signed the day and year first above written.
Client: PlasmaNet:
Return Assured Incorporated PlasmaNet, Inc.
By: /s/ MATTHEW SEBAL By: /s/ ALAIN RENAUD
-------------------------------- --------------------------------
Name: Matthew Sebal Name: Alain Renaud
Title: President Title: VP Business Development
Parent: Escrow Agent:
Return Assured Incorporated Kaplan Gottbetter & Levenson, LLP
By: /s/ MATTHEW SEBAL By: /s/ ADAM S. GOTTBETTER
-------------------------------- --------------------------------
Name: Matthew Sebal Adam S. Gottbetter
Title: President Managing Member
5
