Escrow Agreement - Communicate.com Inc., Siden Investments Ltd. and Norton Stewart
ESCROW AGREEMENT
-------------------------
THIS AGREEMENT is made the 10th day of October, 2001.
AMONG:
COMMUNICATE.COM, INC., a corporation incorporated under the
laws of Alberta, Canada, having its principal business office
at 1300 - 1090 West Georgia Street, Vancouver, British
Columbia, Canada, V6E 3V7
("Communicate")
AND:
SIDEN INVESTMENTS LTD., a company having its principal
business office at 1729 Acadia Road, Vancouver, BC, Canada,
V6T 1R2
("SIDEN")
AND:
NORTON STEWART, a firm of barristers and solicitors having its
principal business office at Suite 1200 - 1055 West Georgia
Street, Vancouver, British Columbia, Canada, V6E 3P3
(the "Escrow Agent")
WHEREAS:
A. Pursuant to a Loan Agreement, SIDEN has, among other matters, agreed to
provide a loan (the "Loan") to Communicate and its parent, Communicate.com, Inc.
(a Nevada corporation); and
B. SIDEN and Communicate have entered into this Agreement pursuant to the terms
of the Loan Agreement; and
C. As security for the Loan, Communicate has executed and delivered to SIDEN all
necessary documents to transfer the domain name "Perfume.com" to SIDEN so that
SIDEN appears as registrant in respect of such name with Network Solutions Inc.
and SIDEN has agreed to enter into this Escrow Agreement with Communicate to
provide for the retransfer of said domain name upon the fulfilment by
Communicate of all of its obligations under the Loan.
NOW THEREFORE WITNESSETH that in consideration of the premises and of the
mutual covenants and agreements set forth herein, the parties hereto covenant
and agree as follows:
C-1
<PAGE>
ARTICLE 1
DEFINITIONS AND INTERPRETATION
------------------------------
Definitions
-----------
1.01 In this Agreement, including the recitals hereto, the following words and
phrases shall have the following meanings:
(a) "Agreement" means this escrow agreement made among Communicate, SIDEN and
the Escrow Agent as the same may be amended from time to time;
(b) "Business Day" means any day other than a day which is a Saturday, a Sunday
or a statutory holiday in Vancouver, British Columbia;
(c) "Domain Name" means the domain name "Perfume.com", which domain name is
registered with Network Solutions, Inc. with SIDEN as registrant;
(d) "Escrow Documents" means the documents deposited into escrow from time to
time pursuant to Article 2;
(e) "Default" means, in respect of the Loan Agreement, any circumstances in
which constitute a default under the Loan Agreement or any security granted
pursuant to it;
(f) "Payments" means, in respect of the Loan Agreement and any and all
payments, or transfers, to be made by Communicate to SIDEN pursuant to the
Loan Agreement;
(g) "Loan Agreement" means that certain Loan Agreement dated October 10th, 2001
between Communicate and SIDEN relating to a loan of US$150,000.00 and;
any other capitalized term shall have the meaning ascribed to it in this
Agreement.
Captions and Section Numbers
----------------------------
1.02 The headings and section references in this Agreement are for convenience
of reference only and do not form a part of this Agreement and are not intended
to interpret, define or limit the scope, extent or intent of this Agreement or
any provision thereof.
Extended Meanings
-----------------
1.03 The words "hereof", "herein", "hereunder" and similar expressions used in
any clause, paragraph or section of this Agreement shall relate to the whole of
this Agreement and not to that clause, paragraph or section only, unless
otherwise expressly provided.
Number and Gender
-----------------
1.04 Whenever the singular or masculine or neuter is used in this Agreement, the
same shall be construed to mean the plural or feminine or body corporate where
the context of this Agreement or the parties hereto so require.
Section References
------------------
1.05 Any reference to a particular "article", "section", "subsection" or other
subdivision is to the particular article, section or other subdivision of this
Agreement.
Governing Law
-------------
1.06 This Agreement and all matters arising hereunder shall be governed by,
construed and enforced in accordance with the laws of the Province of British
Columbia and all disputes arising under this Agreement shall be referred to the
Courts of the Province of British Columbia, Canada.
C-2
<PAGE>
Severability of Clauses
-----------------------
1.07 In the event that any provision of this Agreement or any part thereof is
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Currency
--------
1.08 All sums of money to be paid or calculated pursuant to this Agreement, such
as fees and disbursements that are payable to the Escrow Agent, shall be paid or
calculated in currency of Canada unless otherwise expressly stated.
Statutes
--------
1.09 Unless otherwise stated, any reference to a statute includes and is a
reference to such statute and to the regulations made pursuant thereto, with all
amendments made thereto and in force from time to time, and to any statute or
regulations that may be passed which supplement or supersede such statute or
such regulations.
No Contra Proferentum
---------------------
1.10 The language in all parts of this Agreement shall in all cases be construed
as a whole and neither strictly for nor strictly against any of the parties.
Action on Non-Business Day
--------------------------
1.11 If by the terms of this Agreement any payment or delivery provided for
herein is scheduled to take place at a time which falls on a day which is not a
Business Day, such delivery or payment shall take place on the first Business
Day next following.
ARTICLE 2
ESCROW DEPOSIT AND RELEASE
--------------------------
Escrow Deposit
--------------
2.01 Subject to the terms and conditions of this Agreement, SIDEN shall deliver,
or cause to be delivered to the Escrow Agent, concurrently with execution and
delivery of this Agreement by all of the parties thereto, the following Escrow
Documents:
(a) a registrant name change agreement in the form currently specified by
Network Solutions, Inc. transferring registration of the Domain Name
from SIDEN to Communicate duly signed and dated by an authorized
signatory of SIDEN and notarized by a notary public in British
Columbia; and
(b) such other documents as may from time to time be received by the Escrow
Agent pursuant to the terms of this Agreement.
Dealing With Escrow Documents
-----------------------------
2.02 The Escrow Documents shall be held by the Escrow Agent in escrow at Suite
1200 - 1055 W Georgia Street, Vancouver, British Columbia, Canada, V6E 3P3 or at
such other address in British Columbia as the Escrow Agent shall advise
Communicate and SIDEN as follows. Unless then prohibited from doing so by a
court of competent jurisdiction:
C-3
<PAGE>
(a) on the receipt by the Escrow Agent of a statutory declaration duly
declared by a director of Communicate to the effect that all of the
Payments have been made in full in accordance with the Loan Agreement,
a copy of the statutory declaration will be delivered to SIDEN.
Thereafter, if by the close of the 15th Business Day after delivery to
the SIDEN:
(i) SIDEN has delivered a written notice to the Escrow Agent that it
disputes Communicate's claim of completing all such Payments, the
Escrow Agent shall interplead the Escrow Documents into court or,
if so instructed by both Communicate and SIDEN, continue to hold
the Escrow Documents in escrow pending receipt of the joint
instructions of Communicate and SIDEN as to their disposition; or
(ii) SIDEN has not delivered a written notice in (i), above, the
Escrow Agent shall release the Escrow Documents to Communicate;
or
(b) on the receipt by the Escrow Agent of a statutory declaration duly
declared, and delivered by a director of SIDEN specifying that any of
the Payments, has not been paid in full in accordance with the Loan
Agreement, or that a Default has occurred, a copy of the statutory
declaration will be delivered to Communicate. Thereafter, if, by the
close of the 15th Business Day after delivery to Communicate:
(i) Communicate has delivered a written notice to the Escrow Agent
that it disputes that any of the Payments has not been paid in
full, or that a Default has occurred, the Escrow Agent shall
interplead the Escrow Documents into court or, if so instructed
by both Communicate and SIDEN, continue to hold the Escrow
Documents in escrow pending receipt of the joint instructions of
Communicate and SIDEN as to their disposition; or
(ii) Communicate has not delivered a written notice in (i), above, the
Escrow Agent shall release the Escrow Documents to SIDEN,
provided that if the Escrow Agent at any time receives a written request to do
so signed by Communicate and SIDEN, it shall comply with the request and deliver
up all of the Escrow Documents to Communicate or SIDEN according to the request.
Deposit of Additional Documents in Escrow
-----------------------------------------
2.03 If Network Solutions, Inc. or any of its successors or assigns specifies a
new form of registrant name change agreement or requires and additional
documents prior to release of the Escrow Documents as contemplated herein, SIDEN
shall forthwith deliver, or cause to be delivered to the Escrow Agent, such new
form of registrant name change agreement transferring registration of the Domain
Name from SIDEN to Communicate and other documents duly signed and dated by an
authorized signatory of SIDEN and notarized by a notary public in British
Columbia.
ARTICLE 3
THE ESCROW AGENT
----------------
Fees
----
3.01 The Escrow Agent shall be entitled to charge reasonable fees and
disbursements in connection with acting in that capacity hereunder, which fees
and disbursements shall be borne by Communicate.
C-4
<PAGE>
Indemnity
---------
3.02 Each of Communicate and SIDEN jointly and severally covenants to indemnify
and save harmless the Escrow Agent from and against any and all claims, actions,
causes of action, damages, costs (including, without limitation, the costs of
any interpleader action), expenses and liabilities arising from or in any way
connected with the Escrow Agent acting in that capacity hereunder, provided that
the Escrow Agent has not committed an act of gross negligence or wilful
misconduct in carrying out its obligations hereunder.
Duty of Care
------------
3.03 The Escrow Agent shall have no duties except those which are expressly set
forth herein and shall have no responsibility in respect of loss of the Escrow
Documents except the duty to exercise such care in the safekeeping thereof as it
would exercise if the Escrow Documents were the property of the Escrow Agent.
Other Rights and Duties
3.04 It is acknowledged and agreed that:
(a) the duties and obligations of the Escrow Agent shall be determined
solely by the express provisions of this Agreement. No implied
covenants, duties, responsibilities or obligations shall be read into
this Agreement in relation to the Escrow Agent and the Escrow Agent
shall not be bound by the provisions of any other agreement between
Communicate and SIDEN;
(b) the Escrow Agent shall not be liable for any action taken, suffered or
omitted by it in good faith and reasonably believed to be within its
authority, rights, discretions or powers;
(c) the Escrow Agent may act upon written notice, certificate, instructions
or other document issued to it and executed by a party believed to be
genuine and may assume that any person purporting to act on behalf of a
party has been duly authorized to do so;
(d) the Escrow Agent may act through its duly appointed agents and
attorneys;
(e) the Escrow Agent shall not be bound by any notice of claim or demand or
any waiver, modification, amendment, termination or rescission of this
Agreement; and
(f) the Escrow Agent shall not be required to defend any legal proceedings
which may be commenced with respect to, or arising out of, this
Agreement or commence any legal proceedings unless it is indemnified
against the cost and expense of such defence or action to its sole
satisfaction including, without limitation, the posting of any security
which the Escrow Agent may require.
Advice of Counsel
-----------------
3.05 The Escrow Agent may act herein on the advice of counsel but shall not be
responsible for acting or failing act on the advice of counsel.
Interpleader
------------
3.06 In the event of any dispute between the parties concerning their respective
rights and obligations under this Agreement, the Loan Agreement or any document
delivered pursuant hereto or thereto, or any claim by any third party related to
the subject matter hereof, the Escrow Agent holder shall be entitled to
interplead such dispute in a court of competent jurisdiction in Vancouver,
British Columbia, and shall not represent Communicate or any other party in
connection with such dispute. The Escrow Agent shall be entitled to comply with
the order of any court of competent jurisdiction in British Columbia in relation
to the holding and disposition of any and all documents and funds delivered to
the Escrow Agent pursuant to the terms hereof, and shall not be liable in any
way to Communicate and SIDEN as a result of such compliance.
C-5
<PAGE>
Removal
-------
3.07 The Escrow Agent may be removed at any time by written direction of both
Communicate and SIDEN. The Escrow Agent may at any time resign by written notice
to Communicate and SIDEN, which notice shall specify the date upon which the
resignation shall take effect.
ARTICLE 4
GENERAL PROVISIONS
------------------
Notices
-------
4.01 All notices, requests, demands and other communications hereunder shall be
in writing and shall be deemed to have been duly given if delivered by hand,
telecopied or mailed postage prepaid addressed as follows:
To Communicate:
Communicate.com, Inc.
1300 - 1090 West Georgia Street
Vancouver, BC
V6E 3V7
Attention: Graham B. Heal
Telecopier No.: (604) 697-0139
To SIDEN:
Siden Investments Ltd.
1729 Acadia Road
Vancouver, BC, V6T 1R2
Attention: David Sidoo
Telecopier No: (604) 221-7075
To the Escrow Agent:
Norton Stewart
Suite 1200 - 1055 W Georgia Street
PO Box 11104
Vancouver, BC
V5E 3P3
Attention: John W. Norton
Telecopier No.: (604) 689-1248
or to such other address as may be given in writing by the parties and shall be
deemed to have been received, if delivered by hand, on the date of delivery, if
telecopied to the telecopier numbers set out above, on the business day next
following the date of transmission and if mailed as aforesaid to the addresses
set out above then on the fifth business day following the posting thereof
provided that if there shall be between the time of mailing and the actual
receipt of the notice a mail strike, slowdown or other labour dispute which
might affect the delivery of the notice by the mails, then the notice shall only
be effective if actually delivered or telecopied to the telecopier numbers set
out above.
C-6
<PAGE>
Time of Essence
---------------
4.02 Time is hereby expressly made of the essence of this Agreement with respect
to the performance by the parties of their respective obligations under this
Agreement.
Binding Effect
--------------
4.03 This Agreement shall enure to the benefit of and be binding upon the
parties hereto and their respective successors and assigns.
Entire Agreement
----------------
4.04 This Agreement constitutes the entire agreement between the parties with
respect to the subject matter hereof and shall supersede all previous
expectations, understandings, communications, representations and agreements
whether verbal or written between the parties with respect to the subject matter
hereof.
Further Assurances
------------------
4.05 Each of the parties hereto hereby covenants and agrees to execute such
further and other documents and instruments and do such further and other things
as may be necessary or desirable to implement and carry out the intent of this
Agreement.
Assignment
----------
4.06 None of the parties may assign or transfer their respective rights under
this Agreement.
Amendments
----------
4.07 No amendment to this Agreement shall be valid unless it is evidenced by a
written agreement executed by all of the parties hereto.
Legal and Other Expenses
------------------------
4.08 The parties will pay their respective legal, accounting and other
professional fees and expenses, including applicable taxes, incurred by them in
connection with the negotiation and settlement of this Agreement, the completion
of the transactions contemplated hereby and the other matters pertaining hereto.
No Waiver
---------
4.09 The failure of any party to insist on the strict performance of any
provision of this Agreement shall not constitute a waiver of the right of such
party of redress with respect to such non-performance or to insist on future
performance.
Counterparts
------------
4.10 This Agreement may be executed in several counterparts each of which when
executed by any party hereto shall be deemed to be an original and such
counterparts shall together constitute one and the same instrument.
C-7
<PAGE>
Execution by Telecopy
---------------------
4.11 This Agreement may be executed and transmitted by telecopy and if so
executed and transmitted shall be for all purposes as effective as if the
signing party had delivered executed originals thereof.
IN WITNESS WHEREOF the parties hereto have executed this Agreement on the day
and year first above written.
COMMUNICATE.COM, INC.
Per:
------------------------------
Authorized Signatory
SIDEN INVESTMENTS LTD.
Per:
------------------------------
Authorized Signatory
NORTON STEWART
Per:
------------------------------
Authorized Signatory
C-8