EXHIBIT 10.28
ESCROW AGREEMENT
ESCROW AGREEMENT (this "Agreement"), dated as of MaY 7, 1998,
by and among USCI, Inc. (the "Company"), JNC Opportunity Fund Ltd. (the
"Purchaser") and Xxxxxxxx Xxxxxxxxx Xxxxxx Xxxxxxxx & Xxxxxx LLP (the
"Escrow Agent").
Recitals
Simultaneously with the execution of this Agreement, the Company
and the Purchaser have previously entered into a Convertible Preferred
Stock Purchase Agreement, dated as of March 24, 1998 (the "Purchase
Agreement"), pursuant to which the Company is currently selling to the
Purchaser 500 shares of 6% Series A Convertible Preferred Stock, par value
$.01 per share (the "Preferred Stock") and a certain common stock purchase
warrant of the Company (the "Warrant"). Capitalized terms that are used
and not otherwise defined in this Agreement that are defined in the
Purchase Agreement shall have the meaning set forth in the Purchase
Agreement.
B. The Escrow Agent is willing to act as escrow agent
pursuant to the terms of this Agreement with respect to the receipt and
then delivery of the Series B Purchase Price to be paid for the
Preferred Stock pursuant to Section 1.3(b)(ii) of the Purchase Agreement
less any amounts the Purchaser is to be reimbursed by the Company under
the Purchase Agreement (the "Purchase Price") and the delivery of the
Preferred Stock and the Warrant, together with the Ancillary Closing
Documents (as defined below) and the Purchase Price (collectively, the
"Consideration").
C. Upon the closing of the transaction contemplated by the
Purchase Agreement (the "Closing") and the occurrence of an event
described in Section 2 below, the Escrow Agent shall cause the
distribution of the Consideration in accordance with the terms of this
Agreement.
NOW, THEREFORE, IT IS AGREED:
1. Deposit of Consideration.
a. Concurrently with the execution of this Agreement,
the Purchaser shall deposit with the Escrow Agent the portion of the
Purchase Price due for the Preferred Stock and the Warrant to be
purchased by it at the Closing in accordance with Section 1.3(a) of the
Purchase Agreement and the Company shall deliver to the Escrow Agent the
shares of Preferred Stock and the Warrant, registered in the name of the
Purchaser, in accordance with Section 1.3(a) of the Purchase Agreement
and wiring instructions for transfer of the Purchase Price by the Escrow
Agent into an account specified by the Company for such purpose. In
addition, the Purchaser and the Company shall deposit with the Escrow
Agent all other certificates and other documents required under the
Purchase Agreement to be delivered by them at the Closing (such
certificates and other documents being hereinafter referred to as the
"Ancillary Closing Documents").
(i) The Purchase Price shall be delivered by the
Purchaser to the Escrow Agent by wire transfer to the following account:
Citibank, N.A.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
ABA No.: 000-000-000
For the Account of
Xxxxxxxx Xxxxxxxxx Xxxxxx Xxxxxxxx
& Xxxxxx LLP
Attorney Trust Account
Account No.: 00-000-000
Attention: Xxxxxx Xxxxxxxxxx
Reference: USCI, Inc. (10739- 19)
(ii) The Preferred Stock, Warrant and the
Ancillary Documents shall be delivered to the Escrow Agent at its
address for notice indicated in Section 5(a).
b. Until termination of this Agreement as set forth
in Section 2, all additional Consideration paid by or which becomes
payable between the Company and the Purchaser shall be deposited with
the Escrow Agent.
c. The Purchaser and the Company understand that all
Consideration delivered to the Escrow Agent pursuant to Section 1(a)
hereof shall be held in escrow in the Escrow Agent's interest bearing
business account until the Closing. After the Purchase Price has been
received by the Escrow Agent and all other conditions of Closing are
met, the parties hereto hereby authorize and instruct the Escrow Agent
to promptly effect the Closing.
d. At the Closing, Escrow Agent is authorized and
directed to deduct from the Purchase Price (i) $300,000 which will be
paid to Xxxxxxx Capital Partners, Ltd. ("Xxxxxxx") in accordance with
the engagement letter between the Company and Xxxxxxx relating to the
transactions contemplated by the Purchase Agreement (the "Engagement
Letter"), for remittance to Xxxxxxx in accordance with its instructions,
(ii) $15,000 which will be retained by the Escrow Agent in accordance
with the Purchase Agreement and (iii) $5,000, which will be remitted to
or as directed by the Purchaser pursuant to the Purchase Agreement. In
addition, the portion of the Purchase Price released to the Company
hereunder shall be reduced by all wire transfer fees incurred in
connection with the wire transfers contemplated hereby.
2. Terms of Escrow.
a. The Escrow Agent shall hold the Consideration in
escrow until the earlier to occur of (i) the receipt by the Escrow Agent
of the Purchase Price, the Preferred Stock, the Warrant and the
Ancillary Closing Documents and a writing instructing the Closing and
(ii) the receipt by the Escrow Agent of a written notice, executed by
the Company or the Purchaser, stating that the Purchase Agreement has
been terminated in accordance with its terms and instructing the Escrow
Agent with respect to the Purchase Price, the Preferred Stock, the
Warrant and the Ancillary Closing Documents.
b. If the Escrow Agent receives the items referenced
in clause (i) of Section 2(a) prior to its receipt of the notice
referenced in clause (ii) of Section 2(a), then, promptly thereafter,
the Escrow Agent shall deliver (i) the Preferred Stock, the Warrant, any
interest earned on account of the Purchase Price through the Closing and
the amounts payable to the Purchaser pursuant to Section 1(d), (ii) the
Purchase Price (net of amounts described under Section 1(d)) to the
Company, (ii) the amounts payable to Xxxxxxx under the Engagement Letter
to Xxxxxxx or in accordance with its instructions and (iv) the Ancillary
Closing Documents to the party entitled to receive the same. In
addition, the Escrow Agent shall retain $15,000 of the Purchase Price on
account of its fees pursuant to the Purchase Agreement.
c. If the Escrow Agent receives the notice referenced
in clause (ii) of Section 2(a) prior to its receipt of the items
referenced in clause (i) of Section 2(a), then the Escrow Agent shall
promptly upon receipt of such notice return (i) the Purchase Price
(together with any interest earned thereon through such date) to the
Purchaser, (ii) the Preferred Stock and Warrant to the Company and (iii)
the Ancillary Closing Documents to the party that delivered the same.
d. If the Escrow Agent, prior to delivering or
causing to be delivered the Consideration in accordance herewith,
receives notice of objection, dispute, or other assertion in accordance
with any of the provisions of this Agreement, the Escrow Agent shall
continue to hold the Consideration until such time as the Escrow Agent
shall receive (i) written instructions jointly executed by the Purchaser
and the Company, directing distribution of such Consideration, or (ii) a
certified copy of a judgment, order or decree of a court of competent
jurisdiction, final beyond the right of appeal, directing the Escrow
Agent to distribute said Consideration to any party hereto or as such
judgment, order or decree shall otherwise specify (including any such
order directing the Escrow Agent to deposit the Consideration into the
court rendering such order, pending determination of any dispute between
any of the parties). In addition, the Escrow Agent shall have the right
to deposit any of the Consideration with a court of competent
jurisdiction pursuant to Section 1006 of the New York Civil Practice Law
and Rules without liability to any party if said dispute is not resolved
within 30 days of receipt of any such notice of objection, dispute or
otherwise.
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 duties are as a depositary
only, and the Escrow Agent shall incur no liability whatsoever, except
as a direct result of its willful misconduct.
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 the Purchaser and the Company
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 the Purchaser and the Company,
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 by each of the Purchaser and the Company, and agreed to in
writing by the Escrow Agent.
d. In the event that 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
Considerations held in escrow until it shall jointly be directed
otherwise in writing by the Purchaser and the Company 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.
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 which may be instituted against it or in
respect of the Consideration.
g. If the Escrow Agent at any time, in its sole
discretion, deems it necessary or advisable to relinquish custody of the
Consideration, it may do so by giving five (5) days written notice to
the parties of its intention and thereafter delivering the Consideration
to any other escrow agent mutually agreeable to the Purchaser and the
Company and, if no such escrow agent shall be selected within three days
of the Escrow Agent's notification to the Purchaser and the Company of
its desire to so relinquish custody of the Consideration, then the
Escrow Agent may do so by delivering the Consideration (a) to any bank
or trust company in the Borough of Manhattan, City and State of New
York, which is willing to act as escrow agent thereunder in place and
instead of the Escrow Agent, or (b) to the clerk or other proper officer
of a court of competent jurisdiction as may be permitted by law within
the State, County and City of New York. The fee of any such bank or
trust company or court officer shall be borne one-half by the Purchaser
and one-half by the Company. Upon such delivery, the Escrow Agent shall
be discharged from any and all responsibility or liability with respect
to the Consideration and the Company and the Purchaser 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 pursuant to paragraph (i) below.
h. This Agreement shall not create any fiduciary duty
on the Escrow Agent's part to the Purchaser or the Company, nor
disqualify the Escrow Agent from representing either party hereto in any
dispute with the other, including any dispute with respect to the
Consideration. The Company understands that the Escrow Agent has acted
and will continue to act as counsel to the Purchaser.
i. The reasonable out-of-pocket expenses paid or
incurred by the Escrow Agent in the administration of its duties
hereunder, including, but not limited to, all counsel and advisors' and
agents' fees and all taxes or other governmental charges, if any, shall
be paid by one-half by the Purchaser and one-half by the Company.
4. Indemnification. The Purchaser and the Company,
jointly and severally, hereby indemnify and hold the Escrow Agent, its
employees, partners, members and representatives harmless from and
against any and all losses, damages, taxes, liabilities and expenses
that may be incurred, directly or indirectly, by the Escrow Agent and/or
any such person, 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 and any such person
incurred defending itself against any claim or liability in connection
with its performance hereunder and the costs of recovery of amounts
pursuant to this Section 4.
5. Miscellaneous.
a. All notices, requests, demands and other
communications hereunder shall be in writing, with copies to all the
other parties hereto, and shall be deemed to have been duly given when
(i) if delivered by hand, upon receipt, (ii) if sent by facsimile, upon
receipt of proof of sending thereof, (iii) if sent by nationally
recognized overnight delivery service (receipt requested), the next
business day or (iv) if mailed by first-class registered or certified
mail, return receipt requested, postage prepaid, four days after posting
in the U.S. mails, in each case if delivered to the following addresses:
If to the Company: 0000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attn: Xxxxxx X. Xxxxxxxxxx
With copies to: The Law Firm of Xxxxxxx X. Xxxxx,
P.A.
00 Xxxxxxx Xxxxxx, X.X. Xxx 000
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attn: Xxxxxxx X. Xxxxx, Esq.
If to the
Purchaser: JNC Opportunity Fund Ltd.
Olympia Capital (Cayman) Ltd.
Xxxxxxxx Xxxxx, 00 Xxxx Xxxxxx
Xxxxxxxx XX00, Xxxxxxx
Facsimile No.: (000) 000-0000
Attn: Director
With copies to: Encore Capital Management, L.L.C.
00000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attn: Managing Member
-and-
Xxxxxxxx Xxxxxxxxx Xxxxxx
Xxxxxxxx &
Xxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000
Attn: Xxxx X. Xxxxx, Esq.
If to the Escrow Agent Xxxxxxxx Xxxxxxxxx Xxxxxx
Xxxxxxxx &
(the Escrow Agent shall Xxxxxx LLP
receive copies of all 1290 Avenue of the Americas
communications under Xxx Xxxx, XX 00000
this Agreement) Facsimile No.: (212) 541-
4630
Attn: Xxxx X. Xxxxx, Esq.
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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have caused this
Escrow Agreement to be signed the day and year first above written.
USCI, INC.
By: ___________________________
Name:
Title:
JNC OPPORTUNITY FUND LTD.
By: ___________________________
Name:
Title:
XXXXXXXX XXXXXXXXX XXXXXX
ARONSOHN & XXXXXX LLP
By: ___________________________
A Member of the Firm
