EXHIBIT 10.24
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this "Agreement") is made and entered into as of
March 26, 2004 by CONSORTIUM SERVICE MANAGEMENT GROUP INC., a Texas corporation
(the "Company"); CORNELL CAPITAL PARTNERS, LP, a Delaware limited partnership
(the "Investor"); and XXXXXX XXXXXXXX LLP (the "Escrow Agent").
BACKGROUND
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 $.001 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 Ten
Million Dollars ($10,000,000). 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 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 Investor's
Counsel 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 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: Consortium Service Management Group Inc/Cornell Capital
Partners, LP. The Investor will wire funds to the account of the Escrow Agent as
follows:
BANK:
ROUTING #:
ACCOUNT #:
NAME ON ACCOUNT:
NAME ON SUB-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:
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BROKERAGE FIRM:
CLEARING HOUSE:
ACCOUNT #:
DTC #:
NAME ON 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 such 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 and any
signature from the Escrow Agent has on file.
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 the Common Stock to
be purchased by the Investor from the Company, in no event will the Escrow Funds
be released to the Company until such shares are received by the Escrow
Agreement. 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
deposit the wire transfer proceeds 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 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 Investor and the Company
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identified in 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 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, 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 and Escrow
Agent is hereby authorized to pay such fees and expenses from funds held in
escrow.
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
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be stayed or enjoined by any court order, or in any case any order judgment or
decree shall 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
which it is advised by legal counsel selected by it, 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 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 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 Investor 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 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 expenses 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 the 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 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 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. 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 as outlined in Section 12.4 of the
Standby Equity Distribution Agreement dated the date hereof. 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. Xxxx X. Xxxxxx 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.
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vi. All of the representations and warranties of
the Investor 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 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 Texas, 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 Escrow Agreement is in accordance with the Standby Equity
Distribution 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.
iv. Xxxxxx X. Xxxxxxx 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 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 Xxxxxx 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) day delivery 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
000 Xxxxxx Xxxxxx - Xxxxx 0000
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Attention: Xxxx Xxxxxx
Facsimile: (000) 000-0000
If to Escrow Agent, to: Xxxxxx Xxxxxxxx LLP
0000 Xxxxxx Xxxxxx - Xxxxx 000
Xxxxx, Xxx Xxxxxx 00000
Attention: Xxxxx Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
If to Company, to: Consortium Service Management Group Inc.
000 Xxxxx Xxxxxxxxx - Xxxxx 000 Xxxxx Xxxxx
Xxxxxx Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to: Xxxxxx Xxxxxx LLP
0000 Xxxxxxxxxxx Xxxxxx, X.X. - Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxx Xxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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 of the Escrow
Agent. 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 Texas 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 Investor, 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 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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF the parties have hereunto set their hands and seals
the day and year above set forth.
CONSORTIUM SERVICE MANAGEMENT
GROUP INC.
By: /s/
-----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President and CEO
CORNELL CAPITAL PARTNERS, LP
By: Yorkville Advisors, LLC
Its: General Partner
By: /s/
-----------------------------
Name: Xxxx X. Xxxxxx
Title: Portfolio Manager
XXXXXX XXXXXXXX LLP
By: /s/
-----------------------------
Name: Xxxxx Xxxxxxxx, Esq.
Title: Partner
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