EXHIBIT 10.4
ESCROW AGREEMENT
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THIS ESCROW AGREEMENT (this "Agreement") is made and entered into as of
August 26, 2004 by CAPITAL SOLUTIONS I, INC., a Delaware corporation (the
"Company"); CORNELL CAPITAL PARTNERS, LP, a Delaware limited partnership (the
"Investor"); and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP (the "Escrow Agent").
BACKGROUND
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WHEREAS, the Company and the Investor have entered into an Standby
Equity Distribution Agreement (the "Standby Equity Distribution Agreement")
dated as of the date hereof, pursuant to which the Investor will purchase the
Company's Common Stock, par value $.0000001 per share (the "Common Stock"), at a
price per share equal to the Purchase Price, as that term is defined in the
Standby Equity Distribution Agreement, for an aggregate price of up to Six
Million Dollars ($6,000,000). The Standby Equity Distribution Agreement provides
that on each Advance Date the Investor, as that term is defined in the Standby
Equity Distribution Agreement, shall deposit the Advance pursuant to the Advance
Notice in a segregated escrow account to be held by Escrow Agent and the Company
shall deposit shares of the Company's Common Stock, which shall be purchased by
the Investor as set forth in the Standby Equity Distribution Agreement, with the
Escrow Agent, in order to effectuate a disbursement to the Company of the
Advance by the Escrow Agent and a disbursement to the Investor of the shares of
the Company's Common Stock by Escrow Agent at a closing to be held as set forth
in the Standby Equity Distribution Agreement (the "Closing").
WHEREAS, Escrow Agent has agreed to accept, hold, and disburse the
funds and the shares of the Company's Common Stock deposited with it in
accordance with the terms of this Agreement.
WHEREAS, in order to establish the escrow of funds and shares to effect
the provisions of the Standby Equity Distribution 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 Advance funds deposited
with the Escrow Agent pursuant to this Agreement.
b. "JOINT WRITTEN DIRECTION" shall mean a written
direction executed by the Investor and the Company directing the 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. "COMMON STOCK JOINT WRITTEN DIRECTION" shall mean a
written direction executed by the Investor and the Company directing the Escrow
Agent to disburse all
or a portion of the shares of the Company's Common Stock or to refrain from
taking any action pursuant to this Agreement.
2. APPOINTMENT OF AND ACCEPTANCE BY ESCROW AGENT.
a. The Investor and the Company hereby appoint Escrow
Agent to serve as Escrow Agent hereunder. 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.
b. The Investor and the Company hereby appoint the Escrow
Agent to serve as the holder of the shares of the Company's Common Stock which
shall be purchased by the Investor. The Escrow Agent hereby accepts such
appointment and, upon receipt via D.W.A.C or otherwise the certificates
representing of the shares of the Company's Common Stock in accordance with
Section 3 below, agrees to hold and disburse the shares of the Company's Common
Stock in accordance with this Agreement.
c. The Company hereby acknowledges that the Escrow Agent
is counsel to the Investor in connection with the transactions contemplated and
referenced herein. The Company agrees that in the event of any dispute arising
in connection with this Escrow Agreement or otherwise in connection with any
transaction or agreement contemplated and referenced herein, the Escrow Agent
shall be permitted to continue to represent the Investor and the Company will
not seek to disqualify such counsel.
3. CREATION OF ESCROW ACCOUNT/COMMON STOCK ACCOUNT.
a. On or prior to the date of this Agreement the Escrow
Agent shall establish an escrow account for the deposit of the Escrow Funds
entitled as follows: Vacation Ownership Marketing Inc/Cornell Capital Partners,
LP. The Investor will wire funds to the account of the Escrow Agent as follows:
BANK: Wachovia, N.A. of New Jersey
ROUTING #: ▇▇▇▇▇▇▇▇▇
ACCOUNT #: 2020000659170
NAME ON ACCOUNT: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP as Escrow Agent
NAME ON SUB-ACCOUNT: Capital Solutions I, Inc/Cornell Capital Partners, LP
Escrow account
b. On or prior to the date of this Agreement the Escrow
Agent shall establish an account for the D.W.A.C. of the shares of Common Stock.
The Company will D.W.A.C. shares of the Company's Common Stock to the account of
the Escrow Agent as follows:
BROKERAGE FIRM: ▇▇▇▇▇ Securities Corp.
CLEARING HOUSE: Fiserv
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ACCOUNT #: ▇▇▇▇▇▇▇▇
DTC #: 0632
NAME ON ACCOUNT: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP Escrow Account
4. DEPOSITS INTO THE ESCROW ACCOUNT. The Investor agrees that it
shall promptly deliver all monies for the payment of the Common Stock 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 Advance and has
received the shares of Common Stock via D.W.A.C from the Company which are to be
issued to the Investor pursuant to the Standby Equity Distribution Agreement,
the Escrow Agent shall notify the Company and the Investor. The Escrow Agent
will continue to hold such funds until the Investor and Company execute and
deliver a Joint Written Direction directing the Escrow Agent to disburse the
Escrow Funds pursuant to Joint Written Direction at which time the Escrow Agent
shall wire the Escrow Funds to the Company. In disbursing such funds, Escrow
Agent is authorized to rely upon such Joint Written Direction from Company and
may accept any signatory from the Company listed on the signature page to this
Agreement and any signature from the Investor that Escrow Agent already has on
file. Simultaneous with delivery of the executed Joint Written Direction to the
Escrow Agent the Investor and Company shall execute and deliver a Common Stock
Joint Written Direction to the Escrow Agent directing the Escrow Agent to
release via D.W.A.C to the Investor the shares of the Company's Common Stock. In
releasing such shares of Common Stock the Escrow Agent is authorized to rely
upon such Common Stock Joint Written Direction from Company and may accept any
signatory from the Company listed on the signature page to this Agreement.
In the event the Escrow Agent does not receive the amount of the
Advance from the Investor or the shares of Common Stock to be purchased by the
Investor from the Company, the Escrow Agent shall notify the Company and the
Investor.
In the event that the Escrow Agent has not received either the Common
Stock to be purchased by the Investor or the Common Stock Joint Written
Direction from the Company, in no event will the Escrow Funds be released to the
Company until such Common Stock and Common Stock Joint Written Direction is
received by the Escrow Agent. In the event that the Escrow Agent has not
received either the Escrow Funds or the Joint Written Direction from the
Investor, in no event will the Common Stock received pursuant to the Standby
Equity Distribution Agreement be released to the Investor until such Escrow
Funds and Joint Written Direction are received by the Escrow Agent. For purposes
of this Agreement, the term "Common Stock certificates" shall mean Common Stock
certificates to be purchased pursuant to the respective Advance Notice pursuant
to the Standby Equity Distribution Agreement.
6. DEPOSIT OF FUNDS. The Escrow Agent is hereby authorized to
accept the Escrow Funds in the Escrow Account.
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7. SUSPENSION OF PERFORMANCE: DISBURSEMENT INTO COURT.
a. Escrow Agent. If at any time, there shall exist any
dispute between the Company and the Investor with respect to holding or
disposition of any portion of the Escrow Funds or the Common Stock 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:
i. 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
ii. 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.
iii. Escrow Agent shall have no liability to the
Company, the Investor, 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. The 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 may retain the Escrow
Fund, or such portion thereof, as to which no Joint Written Direction has been
received, in a non-interest bearing money market account.
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 to Escrow Agent ten
(10) days' prior written notice as provided herein below. Upon any such notice
of resignation or removal, the representatives of the Investor and the Company
identified in Sections 13a.(iv) and 13b.(iv), below, jointly shall appoint a
successor Escrow
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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 and the Common
Stock deposited with the Escrow Agent 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 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 or the Common Stock deposited with the Escrow Agent, any
account in which Escrow Funds are deposited, this Agreement or the Standby
Equity Distribution Agreement, or to appear in, prosecute or defend any such
legal action or proceeding. Escrow Agent may consult legal counsel selected by
it in the 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 Investor
jointly and severally shall promptly pay, upon demand, the reasonable fees and
expenses of any such counsel.
b. The 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 the 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
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be made or entered by any court affecting such property or any part thereof,
then and in any such event, the Escrow Agent is authorized, in its sole
discretion, to rely upon and comply with any such order, writ judgment or decree
when it is advised by legal counsel selected by it, that such order, writ,
judgment or decree is binding upon it, without the need for appeal or other
action; and if the 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 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
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 solely 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 Investor hereunder in writing, 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 Investor and/or the Company shall be
required to pay such fees and expense if (a) the Investor or the Company agree
to pay such fees and expenses, or (b) the Investor 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 Investor 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 Indemnified Party the Company and/or the
Investor and 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 Investor. The Investor and
the Company shall be jointly 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
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and/or the Investor 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.
12. EXPENSES OF ESCROW AGENT. The Company shall reimburse the
Escrow Agent as set forth in Section 12.3 of the Standby Equity Distribution
Agreement. All of the compensation and reimbursement obligations set forth in
this Section shall be payable by the Company, upon demand by Escrow 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. The Investor makes the following representations and
warranties to the Escrow Agent and Investor's Counsel:
i. The Investor has full power and authority to
execute and deliver this Agreement and to perform its obligations hereunder.
ii. This Agreement has been duly approved by all
necessary action of the Investor, including any necessary approval of the
limited partner of the Investor, has been executed by duly authorized officers
of the Investor's general partner, enforceable in accordance with its terms.
iii. The execution, delivery, and performance of the
Investor of this Agreement will not violate, conflict with, or cause a default
under the agreement of limited partnership of the Investor, any applicable law
or regulation, any court order or administrative ruling or degree to which the
Investor 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 Investor hereunder and has full power and authority to
execute, deliver, and perform this 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 Investor's representative under
this Agreement, all without further consent or direction form, or notice to, the
Investor or any other party.
v. No party other than the parties hereto 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
Investor contained herein are true and complete as of the date hereof in all
material respects and will be true and complete at the time of any disbursement
from the Escrow Funds in all material respects.
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b. The Company makes the following representations and
warranties to Escrow Agent and, the Investor:
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 Agreement and to
perform its obligations hereunder.
ii. This 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, and is
enforceable in accordance with its terms.
iii. The execution, delivery, and performance by the
Company of this Escrow Agreement is in accordance with the Standby Equity
Distribution Agreement and will not violate, in any material respects, 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.
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 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 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 in all
material respects and will be true and complete at the time of any disbursement
from the Escrow Funds in all material respects.
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 ▇▇▇▇▇▇ 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.
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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 mail, by certified
mail with return receipt requested and postage prepaid, when delivered
personally, one (1) after deposit to any overnight courier, or when transmitted
by facsimile transmission and addressed to the party to be notified as follows:
If to Investor, to: Cornell Capital Partners, LP
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to Escrow Agent, to: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to Company, to: Capital Solutions I, Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇ - ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇.
Attention: ▇▇▇▇▇ ▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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 each of 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.
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18. GOVERNING LAW. This Agreement shall be construed and
interpreted in accordance with the internal laws of the State of Delaware
without giving effect to the conflict of laws principles thereof.
19. ENTIRE AGREEMENT. This Agreement, the Standby Equity
Distribution Agreement, the Registration Rights Agreement and the Placement
Agent Agreement together constitute 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 Investor, the
Company, or the Escrow Agent.
21. EXECUTION OF COUNTERPARTS. This Agreement and any Joint
Written Direction or Common Stock Written Direction may be executed in
counterparts, which when so executed shall constitute one and same agreement or
direction.
22. TERMINATION. Upon the first to occur of the termination of the
Standby Equity Distribution Agreement dated the date hereof or the disbursement
of all amounts in the Escrow Funds and Common Stock 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 or Common Stock.
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IN WITNESS WHEREOF the parties have hereunto set their hands and seals
as of August 26, 2004.
CAPITAL SOLUTIONS I, INC.
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Executive Officer
CORNELL CAPITAL PARTNERS, LP
By: Yorkville Advisors, LLC
Its: General Partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Portfolio Manager
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
Title: Partner
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