EXHIBIT 10.43
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ESCROW AGREEMENT
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THIS ESCROW AGREEMENT (this "Agreement") is made and entered into as of
August ___, 2001, by VERTICAL COMPUTER SYSTEMS, INC., a Delaware corporation
(the "Company"); YORKVILLE ADVISORS MANAGEMENT LLC, a Delaware limited liability
company (the "Consultant"); and FIRST UNION NATIONAL BANK, a national banking
association, as Escrow Agent hereunder (the "Escrow Agent").
BACKGROUND
WHEREAS, the Company and the Consultant have entered into a Consulting
Agreement (the "Consulting Agreement"), dated as of the date hereof, pursuant to
which the Company proposes to sell convertible debentures (the "Convertible
Debentures") which shall be convertible into the Company's Common Stock, par
value $0.00001 per share (the "Common Stock"), at a price per share equal to the
Purchase Price, as that term is defined in the Securities Purchase Agreement
dated the date hereof between the Company and the Investors named therein (the
"Purchase Agreement"). The Securities Purchase Agreement provides that the
Investors shall deposit the purchase amount in a segregated escrow account to be
held by Escrow Agent in order to effectuate a disbursement to the Company at a
closing to be held as set forth in the Securities Purchase Agreement (the
"Closing").
WHEREAS, the Company intends to sell Convertible Securities (the
"Offering").
WHEREAS, Escrow Agent has agreed to accept, hold, and disburse the funds
deposited with it in accordance with the terms of this Agreement.
WHEREAS, in order to establish the escrow of funds and to effect the
provisions of the Securities Purchase 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 funds deposited with Escrow Agent
pursuant to this Agreement.
b. "Joint Written Direction" shall mean a written direction executed by
the Consultant and the Company directing 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. "Escrow Period" shall begin with the commencement of the Offering
and shall terminate upon the earlier to occur of the following dates:
(i) The date upon which Escrow Agent confirms that it has received
in the Escrow Account all of the proceeds of the sale of the Convertible
Debentures;
(ii) The expiration of twenty (20) days from the date of
commencement of the Offering (unless extended by mutual written agreement
between the Company and the Consultant with a copy of such extension to Escrow
Agent); or
(iii) The date upon which a determination is made by the Company and
the Consultant to terminate the Offering prior to the sale of all the
Convertible Debentures.
1. During the Escrow Period, the Company and the Consultant are aware that
they are not entitled to any funds received into escrow and no amounts deposited
in the Escrow Account shall become the property of the Company or the Consultant
or any other entity, or be subject to the debts of the Company or the Consultant
or any other entity.
2. APPOINTMENT OF AND ACCEPTANCE BY ESCROW AGENT. The Consultant 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.
3. CREATION OF ESCROW FUNDS. On or prior to the date of the commencement
of the Offering, the parties shall establish an escrow account with the Escrow
Agent, which escrow account shall be entitled as follows: Vertical Computer
Systems, Inc./Yorkville Advisors Management LLC Escrow Account for the deposit
of the Escrow Funds. The Consultant will instruct subscribers to wire funds to
the account of the Escrow Agent as follows:
BANK: First Union National Bank of New Jersey
ROUTING #: ▇▇▇▇▇▇▇▇▇
ACCOUNT #: 2020000659170
NAME ON ACCOUNT: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP/First Union as Escrow Agent
NAME ON SUB-ACCOUNT: Vertical Computer Systems, Inc./Yorkville
Advisors Management LLC Escrow account
REFERENCE SUB-ACCOUNT #: 1567-01
ATTN: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
NOTE: Only wire transfers shall be accepted
4. DEPOSITS INTO THE ESCROW ACCOUNT. The Consultant agrees that they shall
promptly deliver all monies received from subscribers for the payment of the
Convertible Debentures to Escrow Agent for deposit in the Escrow Account.
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5. DISBURSEMENTS FROM THE ESCROW ACCOUNT.
a. The Escrow Agent will continue to hold such funds until the
Consultant and Company execute a Joint Written Direction directing the Escrow
Agent to disburse the Escrow Funds pursuant to Joint Written Direction signed by
the Company and the Consultant. In disbursing such funds, Escrow Agent is
authorized to rely upon such Joint Written Direction from the Company and the
Consultant and may accept any signatory from the Company listed on the signature
page to this Agreement and any signature from the Consultant that the Escrow
Agent already has on file.
b. In the event Escrow Agent does not receive the amount of the Escrow
Funds from the Investors, Escrow Agent shall notify the Company and the
Consultant. Upon receipt of payment instructions from the Company, Escrow Agent
shall refund to each subscriber without interest the amount received from each
Investor, without deduction, penalty, or expense to the subscriber. The purchase
money returned to each subscriber shall be free and clear of any and all claims
of the Company, the Consultant or any of their creditors.
c. In the event Escrow Agent does receive the amount of the Escrow
Funds prior to expiration of the Escrow Period, in no event will the Escrow
Funds be released to the Company until such amount is received by Escrow Agent
in collected funds. For purposes of this Agreement, the term "collected funds"
shall mean all funds received by Escrow Agent which have cleared normal banking
channels and are in the form of cash.
6. COLLECTION PROCEDURE. Escrow Agent is hereby authorized to forward each
wire for collection and, upon collection of the proceeds of each wire deposit
the collected proceeds in the Escrow Account.
Any wires returned unpaid to Escrow Agent shall be returned to the
Consultant and/or the Subscriber. In such cases, Escrow Agent will promptly
notify the Company of such return.
If the Company rejects any subscription for which the Escrow Agent has
already collected funds, Escrow Agent shall promptly issue a refund check or
wire to the rejected subscriber. If the Company rejects any subscription for
which Escrow Agent has not yet collected funds but has submitted the
subscriber's wire for collection, Escrow Agent shall promptly issue a check or
wire the amount of the subscriber's wire to the rejected subscriber after Escrow
Agent has cleared such funds. If Escrow Agent has not yet submitted a rejected
subscriber's wire for collection, Escrow Agent shall promptly remit the
subscriber's wire directly to the subscriber. The Company shall provide payment
instructions to Escrow Agent.
7. SUSPENSION OF PERFORMANCE: DISBURSEMENT INTO COURT. If at any time,
there shall exist any dispute between the Company and the Consultant with
respect to holding or disposition of any portion of the Escrow Funds 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
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may, in its sole discretion, take either or both of the following actions:
a. 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
b. 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.
c. Escrow Agent shall have no liability to the Company, the Consultant,
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. 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 shall invest the Escrow
Funds, or such portion thereof, as to which no Joint Written Direction has been
received, in investments described above. The foregoing investments shall be
made by Escrow Agent. Notwithstanding anything to the contrary contained, Escrow
Agent may, without notice to the parties, sell or liquidate any of the foregoing
investments at any time if the proceeds thereof are required for any release of
funds permitted or required hereunder, and Escrow Agent shall not be liable or
responsible for any loss, cost or penalty resulting from any such sale or
liquidation. With respect to any funds received by Escrow Agent for deposit into
the Escrow Funds or any Joint Written Direction received by Escrow Agent with
respect to investment of any funds in the Escrow Funds after ten o'clock, a.m.,
New Jersey time, Escrow Agent shall not be required to invest such funds or to
effect such investment instruction until the next day upon which banks in New
Jersey are open for business.
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 a Joint Written Direction to Escrow
Agent, at any time by the giving of ten (10) days' prior written notice to
Escrow Agent as provided herein below. Upon any such notice of resignation or
removal, the representatives of the Consultant and the Company identified in
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Sections 13a.(iv) and 13b.(iv), below, jointly shall appoint a successor Escrow
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 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 herein, 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, any account in which Escrow Funds are deposited, this
Agreement or the Purchase Agreement, or to appear in, prosecute or defend any
such legal action or proceeding. Escrow Agent may consult legal counsel selected
by it in any 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 Consultant
jointly and severally shall promptly pay, upon demand, the reasonable fees and
expenses of any such counsel.
b. 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 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 be made or
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entered by any court affecting such property or any part thereof, then and in
any such event, Escrow Agent is authorized, in its sole discretion, to rely upon
and comply with any such order, writ judgment or decree which it is advised by
legal counsel selected by it, binding upon it, without the need for appeal or
other action; and if 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 and severally, 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 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 Consultant hereunder in writing, and the Consultant
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
Consultant and/or the Company shall be required to pay such fees and expense if
(a) the Consultant or the Company agree to pay such fees and expenses, or (b)
the Consultant 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 Consultant 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 the Indemnified Party, the Company and/or the Consultant and the
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 Consultant. The Consultant and the Company
shall be jointly and severally 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
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payable by the Company and/or the Consultant 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.
The parties agree that neither payment by the Company or the Consultant of
any claim by Escrow Agent for indemnification hereunder shall impair, limit,
modify, or affect, as between the Consultant and the Company, the respective
rights and obligations of Consultant, on the one hand, and the Company, on the
other hand, under the Placement Agency Agreement.
12. EXPENSES OF ESCROW AGENT. Except as set forth in Section 11 the
Company shall reimburse Escrow Agent for all of its reasonable out-of-pocket
expenses, including attorneys' fees, travel expenses, telephone and facsimile
transmission costs, postage (including express mail and overnight delivery
charges), copying charges and the like. 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 Consultant makes the following representations and warranties to
Escrow Agent:
(i) The Consultant 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 Consultant, including any necessary shareholder
approval, has been executed by duly authorized officers of the Consultant,
enforceable in accordance with its terms.
(iii) The execution, delivery, and performance of the Consultant of
this Agreement will not violate, conflict with, or cause a default under the
certificate of incorporation or bylaws of the Consultant, any applicable law or
regulation, any court order or administrative ruling or degree to which the
Consultant 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 Consultant hereunder and has full power and authority to
execute, deliver, and perform this Escrow 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 Consultant's
representative under this Agreement, all without further consent or direction
form, or notice to, the Consultant or any other party.
(v) No party other than the parties hereto and the Investors 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
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specifically or generally) the Escrow Funds or any part thereof.
(vi) All of the representations and warranties of the Consultant
contained herein are true and complete as of the date hereof and will be true
and complete at the time of any disbursement from the Escrow Funds.
b. The Company makes the following representations and warranties to
the Escrow Agent:
(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, enforceable in
accordance with its terms.
(iii) The execution, delivery, and performance by the Company of
this Agreement is in accordance with the Securities Purchase Agreement and will
not violate, 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, including without limitation to the Securities
Purchase Agreement, to which the Company is a party.
(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 and the Investors 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 Company
contained herein are true and complete as of the date hereof and will be true
and complete at the time of any disbursement from the Escrow Funds.
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 Essex County shall have sole and exclusive jurisdiction.
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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.
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 mails, by certified mail with return
receipt requested and postage prepaid, when delivered personally, one (1) day
delivered to any overnight courier, or when transmitted by facsimile
transmission and upon confirmation of receipt and addressed to the party to be
notified as follows:
If to Consultant, to: Yorkville Advisors Management LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇)▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With Copy to: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Company, to: Vertical Computer Systems, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇
President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ - ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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If to Escrow Agent, to: First Union National Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
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 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.
18. GOVERNING LAW. This Agreement shall be construed and interpreted in
accordance with the internal laws of the State of New Jersey without giving
effect to the conflict of laws principles thereof.
19. ENTIRE AGREEMENT. This Agreement constitutes 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 Consultant, the Company,
or the Escrow Agent.
21. EXECUTION OF COUNTERPARTS. This Agreement and any Joint Written
Direction may be executed in counter parts, which when so executed shall
constitute one and same agreement or direction.
22. TERMINATION. Upon the first to occur of the disbursement of all
amounts in the Escrow Funds pursuant to Joint Written Directions or the
disbursement of all amounts in the Escrow Funds 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.
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IN WITNESS WHEREOF the parties have hereunto set their hands and seals the
day and year above set forth.
VERTICAL COMPUTER SYSTEMS, INC.
By: ________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: President
FIRST UNION NATIONAL BANK
By: ________________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: As Escrow Agent
YORKVILLE ADVISORS MANAGEMENT LLC
By: ________________________________
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: President
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP
By: ________________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Partner
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