ESCROW AGREEMENT
Exhibit
10.28
THIS ESCROW AGREEMENT, dated as
of _________________, 2009 (the “Escrow Agreement”),
by and among Xxx Xxxxxxxxx, an individual with an address c/o Amber Ready, Inc.,
000 Xxxxxxxxx Xxxxx, 0xx
Xxxxx, Xxxxxxxx, XX 00000 (“Pledgor”), Xxxx
Xxxxxx Financial, Inc., a New York corporation having an office at 00 Xxxx
Xxxxxx, 0xx
Xxxxx, Xxx Xxxx, XX 00000 (“JTF”) and Xxxxxxx
Xxxxxx & Fein LLP, a New York limited liability partnership having an office
at 2 Grand Central Tower, 000 Xxxx 00xx
Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (“Escrow
Agent”).
RECITALS
A. The
Pledgor is the Chief Executive Officer and a principal stockholder of Amber
Alert Safety Centers, Inc., a Nevada corporation (the “Company”).
B. The
Company is desirous of concluding a private offering of its secured three year
convertible promissory notes (the “Convertible Notes”)
to a number of “accredited investors” (the “Investors”), as such
term is defined in Rule 501 of Regulation D under the Securities Act of 1933, as
amended.
C. To induce
the Investors to purchase the Convertible Notes, the Pledgor has agreed to
guarantee the attainment by the Company of a certain customer and revenue target
(the “Target”),
pursuant to a guarantee of even date herewith (the “Guarantee”) and to
grant a security interest, pursuant to a Pledge and Security Agreement of even
date herewith (the “Pledge Agreement”)
(capitalized terms used and not otherwise defined herein shall have the meanings
ascribed to such terms in the Pledge Agreement), in 13,814,000 shares (the
“Pledged
Securities”) of the common stock, $0.0001 per share, of the Company owned
by Pledgor, to secure the attainment of the Target.
D. Upon the
execution and delivery of the Pledge Agreement, Pledgor is required to deliver
to the Escrow Agent all certificates evidencing the Pledged Securities (the
“Certificates”)
and stock powers with respect to the Pledged Securities duly endorsed in blank
(together with the certificates, the “Escrow Documents”);
and
E. The
parties hereto hereby agree that their respective rights to the escrow documents
will be governed by the terms hereof.
NOW, THEREFORE, in consideration of the
mutual covenants and agreements contained in the Agreement herein, the parties
agree as follows:
1. Concurrently
with or prior to the execution of this Escrow Agreement, Pledgor has delivered
the Escrow Documents to Escrow Agent.
2. The
Escrow Documents shall be held in escrow by Escrow Agent at such location as
Escrow Agent shall select until delivered to JTF or Pledgor in accordance with
the terms hereof.
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3. (a) Upon
receipt of a written notice from JTF and Pledgor to release the Escrow
Documents, or a portion thereof, to either JTF or Pledgor, or as otherwise
jointly directed by JTF and Pledgor, the Escrow Agent shall promptly thereafter
deliver the Escrow Documents, or a portion thereof, as directed by JTF and
Pledgor.
(b) If
the Escrow Agent receives notice from JTF (“JTF Notice”)
requesting release of the Escrow Documents, or a portion thereof, Escrow Agent
shall promptly forward the JTF Notice to Pledgor. If the Escrow Agent
does not receive written notice from Pledgor contesting the instructions
provided in the JTF Notice within ten (10) days after Pledgor’s receipt thereof
from the Escrow Agent, the Escrow Agent shall deliver the Escrow Documents, or a
portion thereof, in accordance with the instructions provided for in the JTF
Notice.
(c) If
the Escrow Agent receives notice from Pledgor (“Pledgor Notice”)
requesting release of the Escrow Documents, or a portion thereof, Escrow Agent
shall promptly forward the Pledgor Notice to JTF. If the Escrow Agent
does not receive written notice from JTF contesting the instructions provided in
the Pledgor Notice within ten (10) days after JTF’s receipt thereof from the
Escrow Agent, the Escrow Agent shall deliver the Escrow Documents, or a portion
thereof, in accordance with the instructions provided for in the Pledgor
Notice.
4. Should
any party (other than Escrow Agent) institute any action or proceeding to
enforce this Agreement or any provision hereof, or for damages by reason of any
alleged breach of this Escrow Agreement or of any provision hereof, or for a
declaration of rights hereunder, the prevailing party in any such action or
proceeding shall be entitled to receive from the other party all costs and
expenses, including reasonable attorneys’ fees, incurred by the prevailing party
in connection with such action or proceeding and the enforcement of any judgment
issued in connection therewith or settlement thereof. This provision
is not intended to be applicable to Escrow Agent or payment of its counsel’s
fees, which are specifically addressed in other provisions of this Escrow
Agreement.
5. Notwithstanding
any other provision herein, Escrow Agent shall have the right but not the
obligation to consult counsel and to require and receive such written
certifications or instructions from any party hereto as Escrow Agent reasonably
deems necessary or appropriate before taking any action hereunder.
6. If any
dispute concerning (a) receipt or disbursement of the Escrow Documents then held
hereunder and/or (b) this Escrow Agreement arises between any of the parties
hereto, or if Escrow Agent is uncertain as to Escrow Agent’s obligations
hereunder, Escrow Agent shall have the right but not the obligation to refrain
from taking any action other than to continue to hold the Escrow Documents then
held hereunder in escrow until otherwise directed by a final order or judgment
of a New York State Court or by a written agreement signed by the parties
hereto.
7. Escrow
Agent may assume the genuineness of any document or signature which appears to
Escrow Agent to be genuine (whether or not original or
photocopy). Escrow Agent shall have no obligations other than those
specifically set forth herein. Escrow Agent shall have no liability
to any party hereto except with respect to actions or omissions taken or
suffered by Escrow Agent in willful disregard of this Escrow Agreement or
involving gross negligence.
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8. Escrow
Agent shall not be obligated to, but may, institute legal proceedings of any
kind that it deems in its reasonable judgment to be necessary or appropriate,
including but not limited to a legal proceeding or action in a court of
competent jurisdiction to determine Escrow Agent’s obligations hereunder or to
seek permission to surrender the Escrow Documents in court and be relieved of
all further obligations hereunder.
9. The
signatories hereto acknowledge that Escrow Agent is acting solely as a
stakeholder at their request and for their convenience; that Escrow Agent shall
not be deemed to be the agent of any of the parties; and that Escrow Agent shall
not be liable to any of the parties hereto for any act or omission on Escrow
Agent’s part unless taken or suffered in willful disregard of this Escrow
Agreement or involving gross negligence.
10. Any
notice or other communication hereunder shall be sent by registered or certified
mail, return receipt requested, or sent by an overnight express delivery service
(e.g. Federal Express) or by messenger (requiring the signature of the recipient
thereof), to the party for which intended at the address first stated above for
that party or at such other address of which that party gives notice as provided
herein with copies simultaneously sent by like delivery or fax to Escrow Agent.
Notices shall be deemed given on the date said notice is
received. Escrow Agent’s address for serving any notice or other
communication hereunder on Escrow Agent is as first stated above (Attention:
Xxxxxxxx Xxxxxxxx, Esq.) and any such notice or communication shall be sent as
provided in the preceding sentence.
11. Escrow
Agent may resign hereunder (i) upon 10 days’ written notice to the parties
hereto, subject to the appointment of a substitute escrow agent by the parties
hereto and the acceptance by the substitute escrow agent of such appointment, or
(ii) following the petitioning of a court of competent jurisdiction seeking the
appointment of a substitute escrow agent, upon the appointment by such court of
a substitute escrow agent and the acceptance by such court appointed substitute
escrow agent of such appointment, or (iii) upon the surrender of the Escrow
Documents then held by Escrow Agent with any court having
jurisdiction.
12. This
Escrow Agreement shall terminate upon Escrow Agent’s delivery of all of the
Escrow Documents held hereunder or the transfer of such Escrow Documents to a
substitute escrow agent or a court of competent jurisdiction, in either case,
pursuant to the terms and conditions of this Escrow Agreement, whether to the
parties provided for herein, or in the case of the transfer of the Escrow
Documents then held hereunder, to a substitute escrow agent or a court of
competent jurisdiction or to such other persons as shall be lawfully entitled to
same, whereupon Escrow Agent’s obligations, responsibilities and liability
hereunder shall terminate.
13. The
signatories hereto acknowledge the fact that Escrow Agent, as a law firm,
represents JTF, and Pledgor irrevocably waives any conflict of interest arising
therefrom, and hereby consents to Xxxxxxx Xxxxxx & Fein LLP acting as
attorney on behalf of JTF, its principals and/or the Escrow Agent, including in
a dual capacity, in any dispute as to the delivery of any of the Escrow
Documents or any other dispute between the parties relating to this Escrow
Agreement, or otherwise, whether or not Escrow Agent is then in possession of
the Escrow Documents.
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14. JTF and
Pledgor, jointly and severally, hereby agree to indemnify the Escrow Agent for,
and to hold it harmless against, any loss, liability or expense incurred by
Escrow Agent, including reasonable attorneys’ fees, arising out of or in
connection with any actions taken by it or any omission by it in connection with
its duties pursuant to this Escrow Agreement, including attorneys’ fees, costs
and expenses (in all cases, including legal fees at Xxxxxxx Xxxxxx & Xxxx
LLP’s then normal time rates attributable to defending itself) against any claim
of liability hereunder or in bringing any action or proceeding (including,
without limitation, the enforcement of any judgment issued in connection
therewith or settlement thereof) required or permitted to be brought by it
hereunder, except if incurred by reason of the gross negligence or willful
misconduct of Escrow Agent. The provisions of this Section 14 shall
survive the termination of this Escrow Agreement. Escrow Agent shall
be entitled to compensation at its customary rates for all services and
disbursements rendered or incurred by it under this Escrow
Agreement.
15. This
Escrow Agreement may not be changed, modified or terminated, nor may any
provision hereof be waived, except by an agreement in writing executed by all of
the parties hereto. This Escrow Agreement constitutes the entire
understanding and agreement among the parties hereto in connection with the
particular subject matter hereof, notwithstanding any prior understandings or
agreements, oral or written, with respect to such subject matter.
16. If any
term or provision of this Escrow Agreement or the application thereof to any
person or circumstance shall to any extent be held invalid or unenforceable by a
court of competent jurisdiction, such invalidity shall not affect any other
provision of this Escrow Agreement or the application of the invalid provision
in circumstances in which same would be valid, it being agreed that the
provisions of this Escrow Agreement are severable.
17. THIS
ESCROW AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAWS
PRINCIPLES THEREOF. THE PARTIES HERETO EACH HEREBY IRREVOCABLY SUBMIT
TO THE EXCLUSIVE JURISDICTION AND VENUE OF THE STATE AND FEDERAL COURTS OF THE
STATE OF NEW YORK, COUNTY OF NEW YORK, FOR THE PURPOSES OF ANY SUIT, ACTION OR
OTHER PROCEEDING ARISING OUT OF OR BASED UPON THIS ESCROW AGREEMENT OR THE
SUBJECT MATTER HEREOF. EACH PARTY HERETO CONSENTS TO THE SERVICE OF
PROCESS IN ANY SUIT, ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF TO
SUCH PARTY AT ANY TIME AT ITS ADDRESS TO WHICH NOTICES ARE TO BE GIVEN PURSUANT
TO SECTION 10. EACH PARTY HERETO, TO THE EXTENT IT MAY LEGALLY DO SO,
HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION,
CAUSE OF ACTION, OR PROCEEDING ARISING UNDER OR WITH RESPECT TO THIS ESCROW
AGREEMENT, OR IN ANY WAY CONNECTED WITH, OR RELATED TO, OR INCIDENTAL TO, THE
DEALINGS OF THE PARTIES HERETO WITH RESPECT TO THIS ESCROW AGREEMENT OR THE
TRANSACTIONS RELATED HERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER
ARISING, AND IRRESPECTIVE OF WHETHER SOUNDING IN CONTRACT, TORT, OR
OTHERWISE. EACH PARTY HERETO, TO THE EXTENT IT MAY LEGALLY DO SO,
HEREBY AGREES THAT ANY SUCH CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION, OR
PROCEEDING SHALL BE DECIDED BY A COURT TRIAL WITHOUT A JURY AND THAT ANY PARTY
HERETO MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 17 WITH ANY
COURT AS WRITTEN EVIDENCE OF THE CONSENT OF ANY OTHER PARTY HERETO TO THE WAIVER
OF ITS RIGHT TO TRIAL BY JURY.
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18. This
Escrow Agreement shall be binding upon and inure to the benefit of the parties
hereto, their respective legal representatives, successors and
assigns.
19. This
Escrow Agreement may be executed in one or more counterparts, each of which
shall be deemed to be an original but, when taken together, shall constitute one
agreement.
[Signature
Page Follows]
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IN WITNESS WHEREOF, the parties hereto
have executed this Escrow Agreement as of the day and year first above
written.
| "PLEDGOR" | |||
| XXX XXXXXXXXX | |||
|
|
By:
|
/s/ XXX XXXXXXXXX | |
| Name | |||
| Title | |||
| "JTF" | |||
| XXXX XXXXXX FINANCIAL, INC. | |||
|
|
By:
|
/s/ XXXXXX XXXXXXX | |
| Xxxxxx Xxxxxxx | |||
| Chief Executive Officer | |||
|
XXXXXXX
XXXXXX & FEIN LLP,
as
Escrow Agent
|
|||
|
|
By:
|
/s/ XXXXXXX XXXXXXXX | |
| Name: Xxxxxxxx Xxxxxxxx, Esq. | |||
| Title: Partner | |||
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