ESCROW AGREEMENT
Exhibit 4.6
FORM
OF
This ESCROW AGREEMENT (the “Escrow Agreement”) is
dated as of this ___th day
of _____ 2010, by and among ____________ (the “Investor”),
____________ (the “Company”),
___________, an affiliate of the Company (the “Affiliate” and
together with the Company and the Investor, the “Parties”), and
____________ (the “Escrow
Agent”). All capitalized terms not otherwise defined herein
shall have the same meaning ascribed to them in that certain securities purchase
agreement, dated of even date herewith (the “Securities Purchase
Agreement”).
W
I
T
N
E
S
S
E
T
H:
WHEREAS, the Company has
authorized the sale and issuance of the Debenture, the Warrant, and common stock
issuable upon exercise of the Warrant and full or partial satisfaction of the
Debenture as provided in the Securities Purchase Agreement and the Transaction
Documents;
WHEREAS, the Investor has
agreed to deliver to the Company at Closing the total of: (i) $_________ in
cash; and (ii) ___________ $_____________ Investor Notes;
and
WHEREAS, as
an inducement to the Investor to enter into the Securities Purchase Agreement,
the Affiliate has also agreed to the pledge ___________ shares of Common Stock
issued to the Affiliates with an aggregate market value of $___________, which
shall have been issued _________ months or more prior to the
Closing.
NOW, THEREFORE, in
consideration of the covenants, promises and representations set forth herein,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. Appointment. The
Parties hereby appoint the Escrow Agent as each party’s respective escrow agent
for the purposes set forth herein, and the Escrow Agent hereby accepts such
appointment.
2. Escrow. Concurrently
with the closing of the Securities Purchase Agreement and in accordance with the
terms and provisions of that certain pledge agreement (the “Pledge Agreement”),
the Affiliate shall deliver to the Escrow Agent a total of __________ shares of
Common Stock of the Company, with not less than three (3) stock powers executed
in blank, medallion signature guaranteed, or in other form and substance
acceptable for transfer. Pursuant to the Securities Purchase Agreement, the
Investor shall deliver the Investor Notes. The Escrow Agent shall not
be under any duty or obligation to solicit the deposit of the Escrow Property to
the Escrow. The foregoing property received by the Escrow Agent, less
any property released in accordance with this Escrow Agreement, is collectively
referred to herein as the “Escrow
Property.”
3. Investment of Escrow
Property. During the term of this Escrow Agreement, the Escrow
Agent shall not invest or liquidate the Escrow Property and any distribution of
all or part of the Escrow Property shall be conducted in accordance with Section 4
below.
4. Distribution of Escrow
Property. The Escrow Agent shall release the relevant Escrow
Property upon receipt of notice from the Investor or the Company, as may be
applicable of the satisfaction of the terms of the Transaction Documents.
Promptly upon delivery by the Investor or Company to the Escrow Agent of
notice that an Event of Default (as defined in the Investor Note or the
Debenture) has occurred or that the conditions to the release of
Investor Note or Debenture, as may be relevant have been met, the
Escrow Agent shall, upon three (3) business days prior written notice to all
other parties, release or deliver the Escrow Property to the respective
parties in accordance with the instructions set forth in such notice, unless a
court of competent jurisdiction shall have enjoined or stayed such release or
delivery.
5. Termination. Unless
the Escrow Agent earlier resigns, this Escrow Agreement shall terminate, subject
to the provisions of Section 8 hereof,
upon final distribution of all property in the Escrow Property by the
Escrow Agent.
6. Escrow
Agent.
(a) The
Escrow Agent undertakes to perform only those duties expressly set forth herein
and no duties shall be implied.
(b) The
Escrow Agent shall have no liability under and no duty to inquire as to the
provisions of any agreement of the Affiliate and/or the Investor other than this
Escrow Agreement.
(c) The
Escrow Agent may rely upon and shall not be liable for acting or refraining from
acting upon any written notice, instruction or request furnished to it hereunder
and believed by it to be genuine and to have been signed or presented by the
proper party or parties.
(d) The
Escrow Agent shall be under no duty to inquire into or investigate the validity,
accuracy or content of any document.
(e) The
Escrow Agent shall not be liable for any action taken or omitted by it in good
faith except to the extent that a court of competent jurisdiction determines
that the Escrow Agent’s gross negligence or willful misconduct was the primary
cause of any loss to the Affiliate.
(f)
The Escrow Agent may consult with legal counsel of its choosing as to any matter
relating to this Escrow Agreement and the Escrow Agent shall not incur any
liability in acting in good faith in accordance with advice from such
counsel.
(g) Anything
in this Escrow Agreement to the contrary notwithstanding, in no event shall the
Escrow Agent be liable for special, indirect or consequential loss or damage of
any kind whatsoever (including but not limited to lost profits and/or savings),
even if the Escrow Agent has been advised of the likelihood of such loss or
damage and regardless of the form of action.
(h) The
Escrow Agent may resign at any time by giving the Affiliate and the Investor
thirty (30) calendar days’ prior written notice thereof.
(i) In
the event Escrow Agent shall be uncertain as to its duties or rights hereunder
or receive instructions, claims or demands which, in its opinion, are in
conflict with any of the provisions of this Escrow Agreement, it shall be
entitled to refrain from taking any action, other than keep safely the Escrow
Shares, until it shall be jointly directed otherwise by the parties hereto or by
a determination by a court of competent jurisdiction which order or decree is
not subject to appeal.
(j) The
Escrow Agent shall not be obligated to institute legal proceedings of any kind
and shall not be required to defend any legal proceeding instituted against it
or in respect to the Escrow Property.
7. Fees. The
Company agrees to pay or reimburse the Escrow Agent upon request for all
reasonable expenses, disbursements and advances, including reasonable attorneys’
fees and expenses, incurred or made by it in connection with the preparation
execution, delivery, performance, modification and/or termination of this Escrow
Agreement. This Section 7 shall
survive the termination of this Escrow Agreement and the resignation of the
Escrow Agent.
8. Indemnity. The
Company will indemnify and hold the Investor and their directors, officers,
shareholders, partners, employees and agents (each, an “Investor Party”)
harmless from any and all losses, liabilities, obligations, claims,
contingencies, damages, costs and expenses, including all judgments, amounts
paid in settlements, court costs and reasonable attorneys’ fees and costs of
investigation (collectively, “Losses”) that the
Investor may suffer or incur as a result of or relating to any
misrepresentation, breach or inaccuracy of any representation, warranty,
covenant or agreement made by the Company in any of the Transaction
Documents.
9.
Taxes. It
is understood that the Escrow Agent shall be responsible for income reporting
only with respect to income earned on the Escrow Property and will not be
responsible for any other reporting.
10. Notices. Any
communication, notice or document required or permitted to be given under this
Escrow Agreement shall be given in writing and shall be deemed received
(i) when personally delivered to the relevant party at such party’s address
as set forth below, (ii) if sent by mail (which must be certified or
registered mail, postage prepaid) or overnight courier, when received or
rejected by the relevant party at such party’s address indicated below, or
(iii) if sent by facsimile, when confirmation of delivery is received by
the sending party:
If to the
Affiliate or the Company:
With a copy to (which shall not
constitute notice):
If to the
Investor:
With a copy (which shall not
constitute a notice) to:
If to the Escrow
Agent:
11. Miscellaneous
(a) The
provisions of this Escrow Agreement may be waived, altered, amended or
supplemented, in whole or in part, only by a writing signed by all of the
parties hereto. This Escrow Agreement and the rights and obligations
hereunder of the parties may not be assigned except with the prior written
consent of the other parties hereto.
(b) The
covenants and provisions of this Escrow Agreement by or for the benefit of the
Affiliates, the Investor or the Escrow Agent shall bind and inure to the benefit
of their respective successors and permitted assigns
hereunder.
(c) Governing
Law. This Escrow Agreement shall be governed by, and construed
in accordance with, the internal laws of the State of New York, without
reference to the choice of law provisions thereof.
(d) This
Escrow Agreement may be executed by each of the parties hereto by facsimile
signature and in any number of counterparts, each of which counterpart, when so
executed and delivered, shall be deemed to be an original and all such
counterparts shall together constitute one and the same
agreement.
(e) The
headings contained in this Escrow Agreement are for convenience of reference
only and shall have no effect on the interpretation or operation
hereof.
(g) If
any term or other provision of this Escrow Agreement is invalid, illegal or
incapable of being enforced by any rule of law, or public policy, all other
conditions and provisions of this Escrow Agreement shall nevertheless remain in
full force and effect so long as the economic or legal substance of this Escrow
Agreement is not affected in any manner materially adverse to any
party. Upon such determination that any term or other provision is
invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Escrow Agreement so as to effect the
original intent of the parties as closely as possible in a mutually acceptable
manner in order that the terms of this Escrow Agreement remain as originally
contemplated to the fullest extent possible.
[The remainder of the page is
intentionally left blank]
IN WITNESS WHEREOF, each of
the parties hereto has executed this Escrow Agreement by the authorized person
named below.
INVESTOR:
By: ________________________________________
Name: ______________________________________
Its: ______________________________________
Dated: _____________________________________
THE
COMPANY:
By: _____________________________________
Name: _____________________________________
Its: _____________________________________
Dated: _____________________________________
____________________________________________
Name: ______________________________________
Dated: _____________________________________
ESCROW
AGENT
By: _______________________________________
Name:_______________________________________
Title: _______________________________________
Dated:_______________________________________
