ESCROW AGREEMENT
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AGREEMENT ("Agreement"), made as of the 2nd day of January, 2001, by and
among Salomon Grey Financial Corporation ("Consultant"), with an office at 5430
LBJ Freeway, Suite 1626, Dallas, Texas 75240, Vizacom Inc., a Delaware
corporation with an office at Glenpointe Center East, 300 Frank W. Burr
Boulevard, 7th Floor, Teaneck, New Jersey 07666 (the "Company", and together
with Consultant, the "Parties") and Kaufman & Moomjian, LLC, a New York
professional limited liability company, with offices at 50 Charles Lindbergh
Boulevard, Mitchel Field, New York 11553 (the "Escrow Agent").
W I T N E S S E T H:
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WHEREAS, the Parties desire to establish an escrow with the Escrow Agent,
and the Escrow Agent is willing to establish such escrow on the terms and
subject to the conditions hereinafter set forth; and
WHEREAS, under Section 3 of the Agreement, dated as of January 2, 2001,
between Consultant and the Company (the "Consulting Agreement"), the Company has
elected to pay Consultant in shares of common stock, par value $.001 per share,
of the Company (the "Common Stock"), certain of which shares are to be held in
escrow hereunder.
NOW, THEREFORE, in consideration of the mutual covenants, conditions and
promises herein contained, the parties hereto hereby agree as follows:
1. Establishment of the Escrow Fund.
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1.1 (a) The Escrow Agent shall hold in escrow on behalf of the Parties
those certain stock certificate nos. ___________ and warrant certificate nos.
SGFC-2, SGFC-3 and SGFC-4 (the "Escrow Fund"), issued by the Company to
Consultant, representing the ownership by Consultant of an aggregate of 200,000
shares (the "Shares") of Common Stock and 400,000 warrants ("Warrants"), each
Warrant to purchase one share Common Stock, and shall release such Shares to
Consultant as follows, unless it shall have received a notice of cancellation of
the Consulting Agreement from the Company prior to any such release of Shares:
Date Number of Shares to be Released
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February 15, 2001 75,000
June 30, 2001 75,000
December 31, 2001 50,000
In addition, on each such date listed above, the Escrow Agent shall release to
Consultant those Warrants which become exercisable on such date, unless it shall
have received a notice of cancellation of the Consulting Agreement from the
Company prior to any such release of Warrants.
(b) This Agreement shall terminate as of January 1, 2002. Any Shares
and Warrants remaining in the Escrow Fund on such date shall be released by the
Escrow Agent to the Company for cancellation. If the Escrow Agent receives
notice of termination of the Consulting
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Agreement from the Company, any Shares and Warrants remaining in the Escrow
Fund as of such time shall be released by the Escrow Agent to the Company for
cancellation.
1.2 The Escrow Agent agrees to hold and dispose of the Escrow Fund in
accordance with the terms of this Escrow Agreement.
1.3 All dividends and other distributions (whether of cash,
securities, or other property) upon or in respect of any of the Escrow Fund and
all property receivable in substitution or exchange therefor shall be included
with and constitute part of the Escrow Fund.
1.4 All Shares included in the Escrow Fund shall be voted in
accordance with the instructions of Consultant.
2. No Liability Upon Disbursement from the Escrow Fund.
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2.1 Upon disbursement of the Escrow Fund pursuant to the terms of
Section 1, the Escrow Agent shall be relieved of any and all further obligations
and released from any and all liability under this Agreement. It is expressly
agreed and understood that in no event shall the aggregate amount of payments
made by the Escrow Agent exceed the amount of the Escrow Fund.
3. Rights, Duties and Responsibilities of Escrow Agent.
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It is understood and agreed that the duties of the Escrow Agent are purely
ministerial in nature, and that:
3.1 The Escrow Agent shall not be responsible for or be required to
enforce any of the terms or conditions of this Agreement or any other agreement
in connection with the transaction contemplated hereunder.
3.2 The Escrow Agent shall be under no duty or responsibility to
accept any additional deposit into the Escrow Fund or enforce collection of any
check delivered to it hereunder.
3.3. The Escrow Agent is authorized to perform only such duties, and
shall have no duties or responsibilities other than, as specifically set forth
herein. The Escrow Agent shall be under no liability to the other parties hereto
or to anyone else by reason of any failure on the part of any party hereto or
any maker, guarantor, endorser or other signatory of any document or any other
person to perform such person's obligations under any such document. Except for
amendments to this Escrow Agreement referred to below, and except for
instructions given to the Escrow Agent relating to the Escrow Fund, the Escrow
Agent shall not be obligated to recognize any agreement between any and all of
the persons referred to herein, notwithstanding that references thereto may be
made herein and whether or not it has knowledge thereof.
3.4. The Escrow Agent shall be entitled to rely upon the accuracy, act
in reliance upon the contents, and assume the genuineness, of any notice,
instruction, certificate, signature, instrument or other document which is given
to the Escrow Agent pursuant to this Agreement
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without the Escrow Agent being obligated to undertake any action or
investigation to verify the truth or accuracy thereof. The Escrow Agent shall
not be obligated to make any inquiry as to the authority, capacity, existence or
identity of any person purporting to give any such notice or instructions or to
execute any such certificate, instrument or other document. The Escrow Agent
shall have no responsibility with respect to the use or application of any
documents delivered by the Escrow Agent pursuant to the provisions hereof.
3.5. In the event that the Escrow Agent shall be uncertain as to its
duties or rights hereunder or shall receive instructions with respect to the
Escrow Account or the Escrow Fund which, in its sole determination, are in
conflict either with other instructions received by it or with any provision of
this Agreement, then, in such event, it shall be entitled to hold the Escrow
Fund, or a portion thereof, in its possession pending the resolution of such
uncertainty to the Escrow Agent's sole satisfaction, by final judgment of a
court or courts of competent jurisdiction or otherwise; or the Escrow Agent, at
its sole option, may deposit the Escrow Fund (and any other amounts that
thereafter may become part of the Fund) with the Clerk of a court of competent
jurisdiction in a proceeding to which all parties in interest are joined. Upon
the deposit by the Escrow Agent of the Escrow Fund with the Clerk of any court,
the Escrow Agent shall be relieved of any and all further obligations and
released from any and all liability hereunder.
3.6. Any dispute which may arise between the parties hereto with
respect to (a) the delivery, maintenance or release of the Escrow Fund, (b) the
facts upon which the Escrow Agent's determinations hereunder are based, (c) the
duties of the Escrow Agent hereunder and (d) any other questions arising under
this Escrow Agreement, shall be settled either by (i) a joint written notice of
the Parties providing instructions to the Escrow Agent therein, or (ii) by entry
of a final order, decree or judgment by a court of competent jurisdiction in the
State of New York (the time for appeal therefrom having expired and no appeal
having been perfected).
3.7. The Escrow Agent shall not be liable for any action taken or
omitted hereunder, or for the misconduct of any of its members, partners,
employees, agents or attorneys appointed by it, except in the case of willful
misconduct. The Escrow Agent shall be entitled to consult with counsel of its
own choosing, including itself, and shall not be liable for any action taken,
suffered or omitted by it in accordance with the advice of such counsel. The
Escrow Agent may rely conclusively and shall be protected in acting upon any
order, notice, demand, certificate, opinion or advice of counsel (including
counsel chosen by the Escrow Agent), statement, instrument, report or other
paper or document (not only as to its due execution and the validity and
effectiveness of its provisions, but also as to the truth and acceptability of
any information therein contained), which is believed by the Escrow Agent to be
genuine and to be signed or presented by the proper person or persons. The
Escrow Agent shall not be bound by any notice or demand, or any waiver,
modification, termination or rescission of this Escrow Agreement or any of the
terms thereof, unless evidenced by a writing delivered to the Escrow Agent
signed by the proper party or parties and, if the duties or rights of the Escrow
Agent are affected, unless it shall give its prior written consent thereto.
3.8. The Escrow Agent shall have no responsibility at any time to
ascertain whether or not any security interest exists in the Escrow Fund or any
part thereof or to file any
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financing statement under the Uniform Commercial Code or any similar
regulatory or reporting agency or body used to perfect a security interest with
respect to the Escrow Fund or any part thereof.
3.9. The Escrow Agent shall have the right to assume in the absence of
written notice to the contrary from the proper person or persons that a fact or
an event by reason of which an action would or might be taken by the Escrow
Agent does not exist or has not occurred, without incurring liability to the
other parties hereto or to anyone else for any action taken or omitted, or any
action suffered by it to be taken or omitted, in good faith and in the exercise
of its own best judgement, in reliance upon such assumption.
3.10 The Parties acknowledge and agree that Kaufman & Moomjian, LLC
("K&M") may act as the Escrow Agent hereunder, notwithstanding that K&M
simultaneously represents the Company. In the event of any claim, dispute or
litigation concerning the Escrow Agreement, K&M shall nevertheless have the
unqualified right to represent the Company and its officers and directors in
respect of any such claim, dispute or litigation, notwithstanding that it is
acting as Escrow Agent hereunder.
4. Resignation. The Escrow Agent may resign for any reason upon written
notice to the Parties specifying a date (not less than five days after the
giving of such notice) when such resignation shall take effect. Should the
Escrow Agent resign as herein provided, it shall not be required to accept any
deposit into, make any disbursement from or otherwise dispose of the Escrow
Fund, but its only duty shall be to hold the Escrow Fund for a period of not
more than five (5) business days following the effective date of such
resignation, at which time (a) if a successor escrow agent shall have been
appointed and written notice thereof (including the name and address of such
successor escrow agent) shall have been given to the resigning Escrow Agent, the
Escrow Agent shall be authorized to pay over to the successor escrow agent the
Escrow Fund, less any portion thereof previously distributed in accordance with
this Agreement; or (b) if the resigning Escrow Agent shall not have received
written notice signed by the Company and a successor escrow agent, then the
resigning Escrow Agent shall be authorized to promptly return the amount in the
Escrow Fund to the Company, and the resigning Escrow Agent shall be authorized
to notify the Company, in writing, of its liquidation and distribution of the
Escrow Fund; whereupon, in either case, the Escrow Agent shall be relieved of
all further obligations and released from any and all liability under this
Agreement. Without limiting the provisions of Section 6 hereof, the resigning
Escrow Agent shall be entitled to be reimbursed by the Parties and the Parties
shall be liable for any expenses incurred in connection with the Escrow Agent's
resignation, the transfer of the Fund to a successor escrow agent or the
distribution of the Fund pursuant to this Section 4.
5. Representations and Warranties. The Parties each represent, warrant
and covenant to the Escrow Agent that:
5.1 No party other than the parties hereto and the prospective
purchasers have, or shall have, any lien, claim, pledge or security interest in
the Escrow Fund or any part thereof.
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5.2 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 Fund or any part thereof.
6. Fees and Expenses. The Escrow Agent shall be entitled to reasonable
compensation for its services hereunder and shall be reimbursed for any
reasonable expenses, disbursements and advancements (including, but not limited
to, reasonable attorneys' fees and expenses) incurred or made by it in the
performance of its duties hereunder, at its customary rates.
7. Indemnification and Contribution.
7.1 The Parties (the "Indemnitors") jointly and severally agree to
indemnify the Escrow Agent and its members, partners, employees, agents and
associates (jointly and severally the "Indemnitees") against, and hold them
harmless of and from, any and all loss, liability, cost, damage and expense,
including, without limitation, reasonable attorneys' fees, which the Indemnitees
may suffer or incur by reason of any action, claim or proceeding brought against
the Indemnitees arising out of or relating in any way to this Agreement, any
transaction to which this Agreement relates, or the services of the Escrow Agent
hereunder, unless such action, claim or proceeding is the result of the willful
misconduct or gross negligence of the Indemnitees. For the purposes hereof, the
term "expense or loss" shall include all amounts paid or payable to satisfy any
claim, demand or liability, or in settlement of any claim, demand, action, suit
or proceeding settled with the express written consent of the Escrow Agent, and
all costs and expenses, including, but not limited to, reasonable counsel fees
and disbursements, paid or incurred in investigating or defending against any
such claim, demand, action, suit or proceeding.
7.2 If the indemnification provided for in this Section 7 is
applicable, but for any reason is held to be unavailable, the Indemnitors shall
contribute such amounts as are just and equitable to pay, or to reimburse the
Indemnitees for, the aggregate of any and all losses, liabilities, costs,
damages and expenses, including counsel fees and expenses, actually incurred by
the Indemnitees as a result of or in connection with, and any amount paid in
settlement of, any action, claim or proceeding arising out of or relating in any
way to any actions or omissions of the Indemnitors.
7.3 Any Indemnitee which proposes to assert the right to be
indemnified under this Section 7, promptly after receipt of notice of
commencement of any action, suit or proceeding against such Indemnitee in
respect of which a claim is to be made against any Indemnitor under this Section
7, will notify the Indemnitors of the commencement of such action, suit or
proceeding; provided, that failure to give notice shall not relieve the
Indemnitors from any liability which they may have to any Indemnitee otherwise
than under this Section 7. In case any such action, suit or proceeding shall be
brought against any Indemnitee and it shall notify the Indemnitors of the
commencement thereof, the Indemnitor shall be entitled to participate in and, to
the extent that it shall wish, to assume the defense thereof, including without
limitation by selecting counsel to defend such action, suit or proceeding, which
counsel shall be reasonably satisfactory to the Indemnitee, at the cost and
expense of the Indemnitors. The Indemnitee shall nevertheless have the right to
employ its counsel in any such action, and in such event, the fees and expenses
of such counsel shall be at
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the expense of the Indemnitee. If the Indemnitee shall have concluded
reasonably that there may be a conflict of interest among the Indemnitors and
the Indemnitee in the conduct of the defense of such action, then
notwithstanding anything contained herein to the contrary, the Indemnitors shall
not have the right to direct the defense of such action on behalf of the
Indemnitee.
7.4 The provisions of this Section 7 shall survive any termination of
this Agreement, whether by disbursement of the Fund, resignation of the Escrow
Agent or otherwise.
8. Further Assurances. The Parties, jointly and severally, agree to do such
further acts and things and to execute and deliver such statements, assignments,
agreements, instruments and other documents as the Escrow Agent from time to
time reasonably may request in connection with the administration, maintenance,
enforcement or adjudication of this Agreement in order (a) to give the Escrow
Agent confirmation and assurance of the Escrow Agent's rights, powers,
privileges, remedies and interests under this Agreement and applicable law, (b)
to better enable the Escrow Agent to exercise any such right, power, privilege
or remedy, or (c) to otherwise effectuate the purpose and the terms and
provisions of this Agreement, each in such form and substance as may be
acceptable to the Escrow Agent.
9. Cumulative Rights. The rights and remedies granted to the Escrow Agent
in this Agreement are cumulative and not exclusive, and are in addition to any
and all other rights and remedies granted and permitted under and pursuant to
law.
10. No Waiver. The failure of any of the signatories hereto to enforce any
provision hereof on any occasion shall not be deemed to be a waiver of any
preceding or succeeding breach of such provision or any other provision.
11. Entire Agreement; Amendment. This Agreement constitutes the entire
agreement and understanding of the signatories hereto and no amendment,
modification or waiver of any provision herein shall be effective unless
consented thereto in writing by the parties hereto. This Agreement and the
agreements referred to herein are intended by the parties as a final expression
of their agreements and are intended to be a complete and exclusive statement of
the agreements and understandings of the parties hereto in respect of the
subject matter contained herein and therein. There are no restrictions,
promises, representations, warranties or undertakings, with respect to the
subject matter hereof, other than those set forth or referred to herein and
therein. This Agreement and the agreements referred to herein are supersede all
prior agreements and understandings between the parties with respect to such
subject matters.
12. Governing Law. This Agreement shall be construed, interpreted and
enforced in accordance with and shall be governed by the laws of the State of
New York without regard to the principles of conflicts of laws.
13. Binding Effect. This Agreement shall bind and inure to the benefit of
the parties hereto, their successors and assigns.
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14. Assignment and Delegation of Duties. This Agreement may not be assigned
by the parties hereto.
15. Paragraph Headings. The paragraph headings herein have been inserted
for convenience of reference only, and shall in no way modify or restrict any of
the terms or provisions hereof.
16. Notices. Any notice or other communication under the provisions of this
Agreement shall be in writing, and shall be effective when delivered in person,
by nationally recognized overnight courier service, by facsimile transmission
electronically confirmed during normal business hours, or mailed by certified
mail, return receipt requested, to the Parties at their respective address set
forth herein and if to the Company, with a copy to Kaufman & Moomjian, LLC, 50
Charles Lindbergh Boulevard, Suite 206, Mitchel Field, New York 11553,
Attention: Neil M. Kaufman, Esq., or to any new address of which any party
hereto shall have informed the others by the giving of notice in the manner
provided herein.
17. Unenforceability; Severability. If any provision of this Agreement is
found to be void or unenforceable by a court of competent jurisdiction, then the
remaining provisions of this Agreement shall, nevertheless, be binding upon the
parties with the same force and effect as though the unenforceable part had been
severed and deleted.
18. No Third Party Rights. The representations, warranties and other terms
and provisions of this Agreement are for the exclusive benefit of the parties
hereto, and no other person shall have any right or claim against any party by
reason of any of those terms and provisions or be entitled to enforce any of
those terms and provisions against any party.
19. Counterparts. This Agreement may be executed in counterparts, all of
which shall be deemed to be duplicate originals.
20. Definitions. 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; the term "or" shall
be deemed to include the term "and/or;" singular or plural tenses shall be
deemed to include the opposite whenever the context so indicates or requires;
and article, section, subsection, paragraph, clause, schedule and exhibit
references are to this Agreement unless otherwise specified.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
day and year first above written.
VIZACOM INC.
By: /s/ Alan Schoenbart
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Name: Alan Schoenbart
Title: CFO
SALOMON GREY FINANCIAL CORPORATION
By: /s/ Paul Koupas
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Name: Paul Koupas
Title: CEO
KAUFMAN & MOOMJIAN, LLC,
as Escrow Agent
By: /s/ Neil M. Kaufman
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Neil M. Kaufman, Member
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