INSIDER PLEDGE AND ESCROW AGREEMENT
THIS INSIDER PLEDGE AND ESCROW AGREEMENT (the "Agreement") is made and
entered into as of December ___, 2005 (the "Effective Date") by and among
XXXXXXXX XXX (the "Pledgor"), CORNELL CAPITAL PARTNERS, LP (the "Pledgee"),
ROAMING MESSENGER, INC., a Nevada corporation (the "Company"), and XXXXX
XXXXXXXX, ESQ., as escrow agent ("Escrow Agent").
RECITALS:
WHEREAS, the Company shall issue and sell to the Pledgee, as provided
in the Securities Purchase Agreement of even date herewith between the Company
and the Pledgee (the "Securities Purchase Agreement"), and the Pledgee shall
purchase up to One Million Two Hundred Thousand Dollars ($1,200,000) of secured
convertible debentures (the "Convertible Debentures"), which shall be
convertible into shares of the Company's common stock, par value $0.001 per
share (the "Common Stock") (as converted, the "Conversion Shares");
WHEREAS, to induce the Pledgee to enter into the transaction
contemplated by the Securities Purchase Agreement, the Convertible Debentures,
the Investor Registration Rights Agreement of even date herewith between the
Company and the Pledgee (the "Investor Registration Rights Agreement"), the
Pledge and Escrow Agreement of even date herewith among the Company, the Pledgee
and the Escrow Agent (the "Pledge Agreement"), the Escrow Agreement of even date
herewith among the Company, the Pledgee, and the Escrow Agent (the "Escrow
Agreement"), and the Irrevocable Transfer Agent Instructions among the Company,
the Pledgee, the Transfer Agent, and the Escrow Agent (the "Transfer Agent
Instructions") (collectively referred to as the "Transaction Documents"), the
Pledgor has agreed to irrevocably pledge to the Pledgee Two Million (2,000,000)
shares (the "Pledged Shares") of Common Stock beneficially owned by the Pledgor
in accordance with this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, agreements,
warranties, and representations herein contained, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
TERMS AND CONDITIONS
1. Obligations Secured. The obligations secured hereby are any and all
obligations of the Company now existing or hereinafter incurred to the Pledgee,
whether oral or written and whether arising before, on or after the date hereof
but only to the extent that such obligations arise under the Transaction
Documents (collectively, the "Obligations").
2. Pledge and Transfer of Pledged Shares. The Pledgor hereby grants to Pledgee
an irrevocable, first priority security interest in all Pledged Shares as
security for the Company's Obligations. Simultaneously with the execution of the
Transaction Documents, the Pledgor shall deliver to the Escrow Agent stock
certificates made out in favor of the Pledgor representing the Pledged Shares,
together with duly executed stock powers or other appropriate transfer documents
with medallion bank guarantees and executed in blank by the Pledgor (the
"Transfer Documents"), and such stock certificates and Transfer Documents shall
be held by the Escrow Agent until the full payment of all Obligations due to the
Pledgee, including the repayment of all amounts owed by the Company to the
Pledgee under the Convertible Debentures (whether outstanding principal,
interest, legal fees, or any other amounts owed to the Pledgee by the Company).
3. Rights Relating to Pledged Shares. Upon the occurrence of an Event of Default
(as defined herein), the Pledgee shall be entitled to vote the Pledged Shares,
receive dividends and other distributions thereon, and enjoy all other rights
and privileges incident to the ownership of the number of Pledged Shares
actually released from escrow in accordance with Section 6.1 hereof.
4. Release of Pledged Shares from Pledge. Upon the full payment of all
Obligations due to the Pledgee under the Transaction Documents, including the
repayment of all amounts owed by the Company to the Pledgee under the
Convertible Debentures (whether outstanding principal, interest, legal fees, and
any other amounts owed to the Pledgee by the Company), the parties hereto shall
notify the Escrow Agent to such effect in writing. Promptly upon receipt of such
written notice, the Escrow Agent shall return to the Pledgor the Transfer
Documents and the certificates representing the Pledged Shares (collectively the
"Pledged Materials"), whereupon any and all rights of Pledgee in the Pledged
Materials shall be terminated.
5. Event of Default. An "Event of Default" shall be deemed to have occurred
under this Agreement upon an Event of Default under the Convertible Debentures.
6. Remedies.
a. Upon and anytime after the occurrence of an Event of Default, the
Pledgee shall have the right to provide written notice of such Event of Default
(the "Default Notice") to the Escrow Agent, with a copy to the Pledgor. As soon
as practicable after receipt of the Default Notice, the Escrow Agent shall
deliver to Pledgee the Pledged Materials held by the Escrow Agent hereunder.
Upon receipt of the Pledged Materials, the Pledgee shall have the right to (i)
sell the Pledged Shares and to apply the proceeds of such sales, net of any
selling commissions, to the Obligations owed to the Pledgor by the Company under
the Transaction Documents, including, without limitation, outstanding principal,
interest, legal fees, and any other amounts owed to the Pledgee, and exercise
all other rights and (ii) any and all remedies of a secured party with respect
to such property as may be available under the Uniform Commercial Code as in
effect in the State of New Jersey. To the extent that the net proceeds received
by the Pledgee are insufficient to satisfy the Obligations in full, the Pledgee
shall be entitled to a deficiency judgment against the Pledgor or the Company
for such amount. The Pledgee shall have the absolute right to sell or dispose of
the Pledged Shares in any manner it sees fit and shall have no liability to the
Pledgor, the Company or any other party for selling or disposing of such Pledged
Shares even if other methods of sales or dispositions would or allegedly would
result in greater proceeds than the method actually used. The Escrow Agent shall
have the absolute right to disburse the Pledged Shares to the Pledgee in batches
not to exceed 9.9% of the outstanding capital of the Company (which limit may be
waived by the Pledgee providing not less than 65 days' prior written notice to
the Escrow Agent). The Pledgee shall return any Pledged Shares released to it
and remaining after the Pledgee has applied the net proceeds to all amounts owed
to the Pledgee.
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b. Each right, power and remedy of the Pledgee provided for in this
Agreement or any other Transaction Document shall be cumulative and concurrent
and shall be in addition to every other such right, power or remedy. The
exercise or beginning of the exercise by the Pledgee of any one or more of the
rights, powers or remedies provided for in this Agreement or any other
Transaction Document or now or hereafter existing at law or in equity or by
statute or otherwise shall not preclude the simultaneous or later exercise by
the Pledgee of all such other rights, powers or remedies, and no failure or
delay on the part of the Pledgee to exercise any such right, power or remedy
shall operate as a waiver thereof. No notice to or demand on the Pledgor in any
case shall entitle it to any other or further notice or demand in similar or
other circumstances or constitute a waiver of any of the rights of the Pledgee
to any other further action in any circumstances without demand or notice. The
Pledgee shall have the full power to enforce or to assign or contract is rights
under this Agreement to a third party
c. The Pledgee agrees to exhaust its rights against the Pledged Shares
before it may exercise any of its other rights against Pledgor hereunder.
7. Representations, Warranties and Covenants.
a. The Pledgor represents, warrants and covenants that:
(i) Pledgor is, and at the time when pledged hereunder will be, the
legal, beneficial and record owner of, and has (and will have) good and valid
title to, all Pledged Shares pledged hereunder, subject to no pledge, lien,
mortgage, hypothecation, security interest, charge, option or other encumbrance
whatsoever;
(ii) Pledgor has full power, authority and legal right to pledge all
the Pledged Shares pledged pursuant to this Agreement; and
(iii) all the Pledged Shares have been duly and validly issued, are
fully paid and non-assessable and are subject to no options to purchase or
similar rights.
b. The Pledgor covenants and agrees to take all reasonable steps to
defend the Pledgee's right, title and security interest in and to the Pledged
Shares and the proceeds thereof against the claims and demands of all persons
whomsoever (other than the Pledgee and the Escrow Agent); and the Pledgor
covenants and agrees that it will have like title to and right to pledge any
other property at any time hereafter pledged to the Pledgee as Collateral
hereunder and will likewise take all reasonable steps to defend the right
thereto and security interest therein of the Pledgee.
c. The Pledgor covenants and agrees to take no action which would
violate or be inconsistent with any of the terms of any Transaction Document, or
which would have the effect of impairing the position or interests of the
Pledgee under any Transaction Document.
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d. The Pledgor represents, warrants and covenants that (i) the Pledgor
has been the beneficial owner of the Pledged Shares for a period of not less
than two (2) years as computed in accordance with Rule 144(d) promulgated under
the Securities Act of 1933, as amended, and (ii) this Agreement is made with
recourse. Upon an Event of Default, the Pledgee shall be deemed to have acquired
the Pledged Shares on the date they were acquired by the Pledgor. The Pledgor is
an "affiliate" of the Company, as such term is defined in Rule 144(a)
promulgated under the Securities Act of 1933, as amended.
8. Concerning the Escrow Agent.
a. The Escrow Agent undertakes to perform only such duties as are
expressly set forth herein and no implied duties or obligations shall be read
into this Agreement against the Escrow Agent.
b. The Escrow Agent may act in reliance upon any writing or instrument
or signature which it, in good faith, believes to be genuine, may assume the
validity and accuracy of any statement or assertion contained in such a writing
or instrument, and may assume that any person purporting to give any writing,
notice, advice or instructions in connection with the provisions hereof has been
duly authorized to do so. The Escrow Agent shall not be liable in any manner for
the sufficiency or correctness as to form, manner, and execution, or validity of
any instrument deposited in this escrow, nor as to the identity, authority, or
right of any person executing the same; and its duties hereunder shall be
limited to the safekeeping of such certificates, monies, instruments, or other
document received by it as such escrow holder, and for the disposition of the
same in accordance with the written instruments accepted by it in the escrow.
c. Pledgee and the Pledgor hereby agree, to defend and indemnify the
Escrow Agent and hold it harmless from any and all claims, liabilities, losses,
actions, suits, or proceedings at law or in equity, or any other expenses, fees,
or charges of any character or nature which it may incur or with which it may be
threatened by reason of its acting as Escrow Agent under this Agreement; and in
connection therewith, to indemnify the Escrow Agent against any and all
expenses, including attorneys' fees and costs of defending any action, suit, or
proceeding or resisting any claim (and any costs incurred by the Escrow Agent
pursuant to Sections 6.4 or 6.5 hereof). The Escrow Agent shall be vested with a
lien on all property deposited hereunder, for indemnification of attorneys' fees
and court costs regarding any suit, proceeding or otherwise, or any other
expenses, fees, or charges of any character or nature, which may be incurred by
the Escrow Agent by reason of disputes arising between the makers of this escrow
as to the correct interpretation of this Agreement and instructions given to the
Escrow Agent hereunder, or otherwise, with the right of the Escrow Agent,
regardless of the instructions aforesaid, to hold said property until and unless
said additional expenses, fees, and charges shall be fully paid. Any fees and
costs charged by the Escrow Agent for serving hereunder shall be paid by the
Pledgor.
d. If any of the parties shall be in disagreement about the
interpretation of this Agreement, or about the rights and obligations, or the
propriety of any action contemplated by the Escrow Agent hereunder, the Escrow
Agent may, at its sole discretion deposit the Pledged Materials with the Clerk
of the United States District Court of New Jersey, sitting in Newark, New
Jersey, and, upon notifying all parties concerned of such action, all liability
on the part of the Escrow Agent shall fully cease and terminate. The Escrow
Agent shall be indemnified by the Pledgor, the Company and Pledgee for all
costs, including reasonable attorneys' fees in connection with the aforesaid
proceeding, and shall be fully protected in suspending all or a part of its
activities under this Agreement until a final decision or other settlement in
the proceeding is received.
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e. The Escrow Agent may consult with counsel of its own choice (and the
costs of such counsel shall be paid by the Pledgor and Pledgee) and shall have
full and complete authorization and protection for any action taken or suffered
by it hereunder in good faith and in accordance with the opinion of such
counsel. The Escrow Agent shall not be liable for any mistakes of fact or error
of judgment, or for any actions or omissions of any kind, unless caused by its
willful misconduct or gross negligence.
f. The Escrow Agent may resign upon ten (10) days' written notice to
the parties in this Agreement. If a successor Escrow Agent is not appointed
within this ten (10) day period, the Escrow Agent may petition a court of
competent jurisdiction to name a successor.
9. Conflict Waiver. The Pledgor hereby acknowledges that the Escrow Agent is
general counsel to the Pledgee, a partner in the general partner of the Pledgee,
and counsel to the Pledgee in connection with the transactions contemplated and
referred herein. The Pledgor agrees that in the event of any dispute arising in
connection with this Agreement or otherwise in connection with any transaction
or agreement contemplated and referred herein, the Escrow Agent shall be
permitted to continue to represent the Pledgee and the Pledgor will not seek to
disqualify such counsel and waives any objection Pledgor might have with respect
to the Escrow Agent acting as the Escrow Agent pursuant to this Agreement.
10. Notices. Unless otherwise provided herein, all demands, notices, consents,
service of process, requests and other communications hereunder shall be in
writing and shall be delivered in person or by overnight courier service, or
mailed by certified mail, return receipt requested, addressed:
If to the Company, to: Roaming Messenger, Inc.
00 Xxxxxxxxx Xxxxx - Xxxxx X
Xxxxx Xxxxxxx, XX 00000
Attention: Xxxxxxxx Xxx, CEO
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to: Sichenzia Xxxx Xxxxxxxx Xxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx - 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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If to the Pledgee: Cornell Capital Partners LP
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With copy to: Cornell Capital Partners, LP
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx Xxxx, XX 00000
Attention: Xxxx Xxxxx Xxxxx Xxxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Pledgor, to: Xxxxxxxx Xxx
00 Xxxxxxxxx Xxxxx - Xxxxx X
Xxxxx Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Any such notice shall be effective (a) when delivered, if delivered by hand
delivery or overnight courier service, or (b) five (5) days after deposit in the
United States mail, as applicable.
11. Binding Effect. All of the covenants and obligations contained herein shall
be binding upon and shall inure to the benefit of the respective parties, their
successors and assigns.
12. Governing Law; Venue; Service of Process. The validity, interpretation and
performance of this Agreement shall be determined in accordance with the laws of
the State of New Jersey applicable to contracts made and to be performed wholly
within that state except to the extent that Federal law applies. The parties
hereto agree that any disputes, claims, disagreements, lawsuits, actions or
controversies of any type or nature whatsoever that, directly or indirectly,
arise from or relate to this Agreement, including, without limitation, claims
relating to the inducement, construction, performance or termination of this
Agreement, shall be brought in the state superior courts located in Xxxxxx
County, New Jersey or Federal district courts located in Newark, New Jersey, and
the parties hereto agree not to challenge the selection of that venue in any
such proceeding for any reason, including, without limitation, on the grounds
that such venue is an inconvenient forum. The parties hereto specifically agree
that service of process may be made, and such service of process shall be
effective if made, pursuant to Section 8 hereto.
13. Enforcement Costs. If any legal action or other proceeding is brought for
the enforcement of this Agreement, or because of an alleged dispute, breach,
default or misrepresentation in connection with any provisions of this
Agreement, the successful or prevailing party or parties shall be entitled to
recover reasonable attorneys' fees, court costs and all expenses even if not
taxable as court costs (including, without limitation, all such fees, costs and
expenses incident to appeals), incurred in that action or proceeding, in
addition to any other relief to which such party or parties may be entitled.
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14. Remedies Cumulative. No remedy herein conferred upon any party is intended
to be exclusive of any other remedy, and each and every such remedy shall be
cumulative and shall be in addition to every other remedy given hereunder or now
or hereafter existing at law, in equity, by statute, or otherwise. No single or
partial exercise by any party of any right, power or remedy hereunder shall
preclude any other or further exercise thereof.
15. Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute the same instrument.
16. No Penalties. No provision of this Agreement is to be interpreted as a
penalty upon any party to this Agreement.
17. JURY TRIAL. EACH OF THE PLEDGEE AND THE PLEDGOR HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES THE RIGHT WHICH IT MAY HAVE TO A TRIAL BY
JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION BASED HEREON, OR ARISING
OUT OF, UNDER OR IN ANY WAY CONNECTED WITH THE DEALINGS BETWEEN PLEDGEE AND
PLEDGOR, THIS PLEDGE AND ESCROW AGREEMENT OR ANY DOCUMENT EXECUTED IN CONNECTION
HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL
OR WRITTEN) OR ACTIONS OF ANY PARTY HERETO OR THERETO IN EACH CASE WHETHER NOW
EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY OR
OTHERWISE.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Insider
Pledge and Escrow Agreement as of the date first above written.
CORNELL CAPITAL PARTNERS, LP
By: Yorkville Advisors, LLC
Its: General Partner
By: _______________________________
Name: Xxxx Xxxxxx
Title: Portfolio Manager
PLEDGOR
By: _______________________________
Name: Xxxxxxxx Xxx
ROAMING MESSENGER, INC.
By: _______________________________
Name:
Title:
ESCROW AGENT
By: _______________________________
Name: Xxxxx Xxxxxxxx, Esq.
FOR VALUE RECEIVED, the Pledgor hereby unconditionally and absolutely
guarantees the Company's Obligations (as defined above). This Agreement is made
with recourse.
By: _______________________________
Name: Xxxxxxxx Xxx
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