ESCROW AGREEMENT
EXHIBIT
10.4
THIS
ESCROW AGREEMENT
(the
“Agreement”) made as of May 10, 2006, by and among FastFunds Financial
Corporation (“FastFunds”), Equitex, Inc. (“EQTX”) and MBC Global, LLC, an
Illinois limited liability company (“MBC”), Corporate Capital, Inc. a Minnesota
corporation, Xxxxxxx Companies, a Colorado corporation, Xxxxx Investments,
Inc.,
an Illinois corporation, Xxxx X. Xxxxx, Xxxxx Xxxxx, Xxxxx X. Xxxxx, as Trustee
of the Xxxxx X. Xxxxx June 1992 Non-Exempt Trust, European American Perinvest
Group Bermuda., a British Virgin Island corporation, Xxxxx Xxxxxxx Xxxx Xxxx
Xxxxxx, Xxxxx X. Xxxxxx, Xxxxxx Xxxxxxxx, Xxxx Xxxxxx and Xxxxxx Xxxxxx
(collectively referred to as the “Shareholders or Shareholder”) and Xxxx and
Xxxxxxxxx, P.C. (the “Escrow Agent”).
Recitals
Settlement
Agreement
WHEREAS,
FastFunds, Equitex and the Shareholders have entered into a Settlement Agreement
dated May 10, 2006 (the “Settlement
Agreement”);
WHEREAS,
pursuant to the terms of the Settlement
Agreement
the
Shareholder received shares of common stock of the Company;
WHEREAS,
the Shareholder shall initially receive a total of 180,000 shares of the
Company’s common stock, or such greater amount as determined by the Settlement
Agreement ( “Shareholder’s Stock”) as allocated under Exhibit 1;
and
WHEREAS,
FastFunds, EQTX and the Shareholders propose to enter into an Escrow Agreement
whereby the Escrow Agent shall hold certain of the certificates of EQTX pursuant
to the terms and conditions of the Settlement
Agreement, a
copy of
which is attached hereto and made a part hereof; and
WHEREAS,
the
Escrow Agent has agreed to hold said certificates pursuant to the terms and
conditions of the Settlement
Agreement;
NOW,
THEREFORE,
in
consideration of the premises and mutual covenants herein contained, the parties
hereto hereby agree as follows:
Agreement
1.
Holding
of Document..
The
Escrow Agent shall hold those certificates delivered to it under the terms
and
conditions of the Settlement
Agreement. EQTX
will
be
delivering to the Escrow Agent three (3) certificates of EQTX of each
Shareholder in equal amounts. See Exhibit I attached which sets forth the Stock
Ownership.
2.
Rights,
Duties and Responsibilities of Escrow Agent.
It is
understood and agreed that the duties of the Escrow Agent are purely ministerial
in nature, and that:
2.1 The
Escrow Agent shall notify EQTX and Shareholders of receipt of the certificates
as set forth in the Settlement
Agreement.
2.2
The Escrow
Agent shall release one certificate of the three originally received every
thirty days to each Holder. The first certificate shall be released within
two
business days upon receipt of the certificates. The certificates shall be
delivered to each Holder at the address provided, via overnight
delivery.
2.3
The
Escrow Agent shall not be responsible for or be required to enforce any of
the
terms or conditions of the Settlement
Agreement
or any
other agreement between FastFunds, EQTX and Shareholders nor shall the Escrow
Agent be responsible for the performance by EQTX or Shareholders of their
respective obligations under the Settlement
Agreement.
2.4
The
Escrow Agent shall not be required to keep records of any information except
for
acknowledgement of receipt and disbursements of the various certificates as
described in the Settlement
Agreement.
2.5
The
Escrow Agent shall be entitled to rely upon the accuracy, act in reliance upon
the contents, and assume the genuineness of any notice, instruction,
certificate, signature, instrument or other document which is given to the
Escrow Agent pursuant to this Agreement without the necessity of the Escrow
Agent verifying the truth or accuracy thereof. The Escrow Agent shall not be
obligated to make any inquiry as to the authority, capacity, existence or
identity of any person purporting to give any such notice or instructions or
to
execute any such certificate, instrument or other document.
2.6 If
the
Escrow Agent is uncertain as to its duties or rights hereunder or shall receive
instructions with respect to the documents delivered to it by EQTX and/or
Shareholders which, in its sole determination, are in conflict either with
other
instructions received by it or with any provision of this Agreement, it shall
be
entitled to hold the Escrowed Documents pending the resolution of such
uncertainty to the Escrow Agent’s sole satisfaction, by final judgment of a
court or courts of competent jurisdiction or otherwise.
2.8
The
Escrow Agent shall not be liable for any action taken or omitted hereunder,
or
for the misconduct of any employee, agent or attorney appointed by it, except
in
the case of willful misconduct or gross negligence. The Escrow
Agent
shall
be
entitled to consult with counsel of its own choosing and shall not be liable
for
any action taken, suffered or omitted by it in accordance with the advice of
such counsel.
3. Amendment;
Resignation or Removal of Escrow Agent.
This
Agreement may be altered or amended only with the written consent of EQTX,
the
Shareholders and the Escrow Agent. The Escrow Agent may resign and be discharged
from its duties hereunder at any time by giving written notice of such
resignation to EQTX and the Shareholders specifying a date when such resignation
shall take effect and upon delivery of the Documents to the successor escrow
agent. Such successor escrow agent shall become the Escrow Agent hereunder
upon
the resignation date specified in such notice. The Escrow Agent shall continue
to serve until its successor accepts the escrow and receives the Fund. EQTX
and
the Shareholders shall have the right at any time to remove the Escrow Agent
and
substitute a new escrow agent by giving notice thereof to the Escrow Agent
then
acting. Upon its resignation and delivery of the Fund as set forth in this
Section 4, the Escrow Agent shall be discharged of and from any and all further
obligations arising in connection with the escrow contemplated by this
Agreement.
4.
Escrow
Agent’s Fees.
The
Escrow Agent shall be entitled to receive from EQTX a fee of Three Thousand
Five
Hundred Dollars ($3,500.00) as compensation for its basic services hereunder.
Such fee is intended as full compensation for the Escrow Agent’s services as
contemplated by this Agreement; provided, if the Escrow Agent renders any
material service not contemplated in this Agreement, or there is any assignment
of any interest in the subject matter of this Agreement, or any material
modification hereof, of if any material controversy arises hereunder, or the
Escrow Agent is a made a party to or justifiably intervenes in any litigation
pertaining to this Agreement, or the subject matter hereof, the Escrow Agent
shall be reasonably compensated by EQTX for such extraordinary services and
be
reimbursed for all costs and expenses occasioned by any delay, controversy,
litigation or event, and the same may be recoverable from FastFunds
only.
5.
Indemnification
and Contribution.
5.1
EQTX
agrees to indemnify the Escrow Agent and its officers, directors, employees,
agents and shareholders (collectively referred to as the “Indemnitees”) against,
and hold them harmless of and from, any and all loss, liability, cost, damage
and expense, including without limitation, reasonable counsel fees, which the
Indemnitees may suffer or incur by reason of any action, claim or proceeding
brought against the Indemnitees arising out of or relating in any way to this
Agreement or any transaction to which this Agreement relates, unless such
action, claim or proceeding is the result of the willful misconduct or gross
negligence of the Indemnitees.
5.2
If
the
indemnification provided for in Section 5.1 is applicable, but for any reason
is
held to be unavailable, EQTX shall contribute such amounts as are just and
equitable to pay, or to reimburse the Indemnitees for, the aggregate of any
and
all
losses,
liabilities, costs, damages and expenses, actually incurred by the Indemnitees
as a result of or in connection with, and any amount paid in settlement of,
any
action, claim or proceeding arising out of or relating in any way to any actions
or omissions of the Indemnitors.
5.3
The
provisions of this Article 5 shall survive any termination of this Agreement,
whether by disbursement of the Fund, resignation of the Escrow Agent or
otherwise.
6. Termination
of Agreement.
This
Agreement shall terminate on the final delivery of the various documents
deposited with the Escrow Agent by EQTX and the Shareholders, pursuant to the
terms and conditions of the Settlement
Agreement,
provided that the rights of the Escrow Agent and the obligations of the other
parties hereto under Section 5 shall survive the termination hereof and the
resignation or removal of the Escrow Agent.
7.
Governing
Law and Assignment.
This
Agreement shall be construed in accordance with and governed by the laws of
the
State of Colorado, without regard to the conflicts of laws principles thereof,
and shall be binding, upon the parties hereto and their respective successors
and assigns; provided,
however,
that
any assignment or transfer by any party of its rights under this Agreement
or
with respect to the Escrow Amounts or the Fund shall be void as against the
Escrow Agent unless (a) written notice thereof shall be given to the Escrow
Agent; and (b) the Escrow Agent shall have consented in writing to such
assignment or transfer.
8
Notices.
All
notices, requests, demands, and other communications under the Escrow Agreement
shall be in writing and shall be deemed to have been duly given (a) on the
date
of service if served personally on the party to whom notice is to be given,
(b)
on the day of transmission if sent by facsimile/email transmission to the
facsimile number/email address given below, and telephonic confirmation of
receipt is obtained promptly after completion of transmission, or (c) on the
day
after delivery to Federal Express or similar overnight courier or the Express
Mail service maintained by the United States Postal Service, to the parties
as
follows:
If
to
EQTX
Equitex,
Inc.
Attention:
Xxxxx Xxxx, Chairman
0000
Xxxx
Xxxxxxxx Xxxxxx
Xxxxxxxxx,
Xxx. 00000
If
to
Shareholders:
Name
and
Addresses of Shareholders are set forth on Exhibit I which is attached hereto
and made a part hereof.
If
to the
Escrow Agent:
Xxxx
and
Xxxxxxxxx, P.C.
Attention:
Xxxxxxxx X. Xxxxxxxxx
000
Xxxxx
Xx.
Xxxxx
000
Xxxxxx,
Xxx. 00000
Phone:
(000) 000-0000
Fax:
(000) 000-0000
9.
Severability.
If any
provision of this Agreement or the application thereof to any person or
circumstance shall be determined to be invalid or unenforceable, the remaining
provisions of this Agreement or the application of such provision to persons
or
circumstances other than those to which it is held invalid or unenforceable
shall not be affected thereby and shall be valid and enforceable to the fullest
extent permitted by law.
10.
Execution
in Several Counterparts.
This
Agreement may be executed in several counterparts or by separate instruments
and
by facsimile transmission, and all of such counterparts and instruments shall
constitute one agreement, binding on all of the parties hereto.
11.
Entire
Agreement.
This
Agreement constitutes the entire agreement between the parties hereto with
respect to the subject matter hereof and supersedes all prior agreements and
understandings (written or oral) of the parties in connection
therewith.
IN
WITNESS WHEREOF, the undersigned have executed this Agreement as of the day
and
year first above written.
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EQUITEX,
INC.
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By:
/s/ Xxxxx Xxxx
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Name:
Xxxxx Xxxx
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Title:
Chairman
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XXXX
AND XXXXXXXXX, P.C.
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By:
/s/ Xxxxxxxx X. Xxxxxxxxx
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Name:
Xxxxxxxx X. Xxxxxxxxx
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MBC
GLOBAL, LLC:
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By:
/S/
XXX XXXX XXXXXX
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Its: COO
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CORPORATE
CAPITAL, INC.:
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By: /S/
XXXX XXXXXX
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Its:
PRESIDENT
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XXXXXXX
COMPANIES:
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By: /S/
XXXXXXXX X. XXXXXXXXX
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Its: PRINCIPAL
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XXXXX
INVESTMENTS, INC.:
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By: /S/
XXXX X. XXXXX
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Its:
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XXXX
X. XXXXX
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/S/
XXXX X. XXXXX
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XXXXX
XXXXX
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/S/
XXXXX XXXXX
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XXXXX
X. XXXXX JUNE 1992 NON-EXEMPT TRUST:
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By: /S/
XXXXX X. XXXXX
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Its
Trustee
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EUROPEAN
AMERICAN PERINVEST GROUP BERMUDA
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By: /S/
XXXXXXXX X. XXXXXXXXX
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Its: SHAREHOLDER
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XXX
XXXX XXXXXX
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/S/
XXX XXXX XXXXXX
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XXXXX
X. XXXXXX
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/S/
XXXXX X. XXXXXX
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XXXXXX
XXXXXXXX
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/S/
XXXXXX XXXXXXXX
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XXXX
XXXXXX
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/S/
XXXX XXXXXX
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XXXXXX
XXXXXX
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/S/
XXXXXX XXXXXX
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