EXHIBIT 10.4
ESCROW TRANSFER AGREEMENT
ESCROW TRANSFER AGREEMENT (this "Agreement"), dated as of September 9,
2005, between EUROFORTUNE HOLDING, S.A., a Luxembourg company ("Buyer"), HEM
MUTUAL ASSURANCE LLC, a Colorado limited liability company ("Seller"), HERITAGE
WORLDWIDE, INC., a Delaware corporation (the "Company"), GOTTBETTER & PARTNERS,
LLP ("Gottbetter"), and XXXXXXX AND XXXXXX LLP ("EA").
R E C I T A L S :
Buyer is purchasing from Seller the following debentures: (a) the 1%
Convertible Debenture Due October 9, 2008, dated October 9, 2003, with a stated
principal amount of $498,750, issued by the Company's wholly-owned subsidiary
and predecessor in interest, OS MXM, Inc. ("OS"), to Seller, and titled 'First
Debenture A' ("First Debenture A"), (b) the 1% Convertible Debenture Due October
9, 2008, dated October 9, 2003, with a stated principal amount of $500,000,
issued by the Company's wholly-owned subsidiary and predecessor in interest, OS,
to Seller, and titled 'First Debenture B' ("First Debenture B"), and (c) the 1%
Convertible Debenture Due October 9, 2008, dated October 9, 2003, with a stated
principal amount of $1,250, issued by the Company's wholly-owned subsidiary and
predecessor in interest, OS, and titled 'Second Debenture' ("Second Debenture"
and together with First Debenture A and First Debenture B, the "Debentures"),
pursuant to the terms and conditions of the Debenture Purchase Agreement (the
"Debenture Purchase Agreement") dated as of September 9, 2005 between Buyer,
Seller and the Company.
Seller, the Company and Gottbetter, as escrow agent, entered into an Escrow
Agreement dated as of October 9, 2003 (the "Escrow Agreement") pursuant to which
shares of the Company's capital stock were issued to Seller and placed into
escrow for the potential conversion of the Debentures in accordance therewith
into such shares (the "Escrow Shares"). As a condition to Buyer's purchase of
the Debentures under the Debenture Purchase Agreement, the Escrow Shares,
whether or not they currently are held in escrow, must be returned to the
Company's transfer agent. The Escrow Shares will then be reissued to Buyer and
placed in escrow and held pursuant to the terms and conditions of the Escrow
Agreement. Also, as a condition to Buyer's purchase of the Debentures under the
Debenture Purchase Agreement, Gottbetter must resign as escrow agent under the
Escrow Agreement and terminate all powers of attorney granted to Gottbetter by
the Company or its predecessors in interest (including, without limitation, OS
MXM, Inc. ("OS")). Buyer and the Company have agreed that EA will become the
successor escrow agent under the Escrow Agreement.
NOW, THEREFORE, in consideration of the mutual promises and agreements set
forth herein, the parties hereto hereby agree as follows:
1. Immediately prior to the closing of the Debenture Purchase Agreement,
Seller and Gottbetter agree to transfer all of the Escrow Shares (including any
shares that have been released from escrow after the date of the Escrow
Agreement), which Escrow Shares shall represent no less than 10,000,000 shares
of the Company's common stock, to the Company for delivery to the Company's
transfer agent, together with (a) a letter instructing the transfer agent to
reissue such shares at the direction of the Company (if the Company wishes to
reissue such shares) to such persons and with such legends as the Company may
direct, and (b) any stock powers (including stock powers with a medallion
guaranty) that the Company's transfer agent requires to make such transfer.
2. Seller, the Company and Gottbetter hereby agree and acknowledge that the
Escrow Agreement replaced and superseded in all respects the Escrow Agreement
dated as of October 2003 between Seller, OS and Gottbetter and included as
Exhibit F to the Convertible Debenture Purchase Agreement dated as of October 9,
2003 between OS and Seller.
3. Effective as of the closing of the Debenture Purchase Agreement, (a)
Gottbetter resigns as escrow agent under the Escrow Agreement and all of its
rights and duties thereunder shall be terminated, (b) the parties hereto shall
be deemed to accept such resignation and termination and (c) if Buyer and the
Company so request, EA shall be appointed as successor escrow agent. EA and any
successor escrow agent shall be entitled to rely on Section 3 and 4 of the
Certificate provided by Gottbetter to Buyer and the Company pursuant to Section
4(c) of the Debenture Purchase Agreement in performing its duties thereunder.
4. Seller and Gottbetter agree that any conversions of, and pending notices
to convert, any portion of a Debenture into the Company's capital stock is
rescinded and of no effect (including, without limitation, the attempt to
convert under the conversion notice dated June 2, 2005). Pursuant to the
Debenture Purchase Agreement, Seller has revoked any such conversion notices,
unwound all prior conversions and has returned to the escrow agent an equal
number of shares of the Company's common stock (100,000 shares) that it had
received in connection with such prior conversions. Such shares of common stock
are included in the shares transferred in Section 1.3 of the Debenture Purchase
Agreement.
5. Effective as of the closing of the Debenture Purchase Agreement, the
Company and Gottbetter agree that all powers of attorney granted by the Company
or its subsidiaries (including, without limitation, OM) to Gottbetter shall
terminate and be of no further force or effect.
6. Effective as of the closing of the Debenture Purchase Agreement, Seller
shall have no further rights under (and Gottbetter shall have no further
obligations under) the Escrow Agreement.
7. This Agreement shall be governed by, and construed in accordance with,
the laws of the State of New York applicable to a contract executed and
performed in such State without giving effect to the conflicts of laws
principles thereof.
8. The parties irrevocably agree that all actions arising under or relating
to this Agreement and the transactions contemplated hereby shall be brought
exclusively in any United States District Court or New York State Court located
in New York, New York having subject matter jurisdiction over such matters, and
each of the parties hereby consents and agrees to such personal jurisdiction,
and waives any objection as to the venue, of such courts for purposes of such
action.
9. This Agreement contains the entire understanding of the parties and
supersedes all prior agreements and understandings relating to the subject
matter hereof and this Agreement shall not be amended or waived (in full or in
part) except by a written instrument hereafter signed by all of the parties
hereto.
10. None of the parties hereto may assign its rights or delegate its
obligations under this Agreement without the written consent of the other
parties hereto. This Agreement and all of the provisions hereof shall be binding
upon and inure only to the benefit of the parties hereto and their respective
heirs, executors, personal representatives and successors.
11. This Agreement may be executed in multiple counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument, and the different parties to this Agreement need not
execute the same counterpart. This Agreement shall be effective upon delivery of
original signature pages or facsimile copies thereof executed by each of the
parties.
12. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY WAIVES TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY OR AGAINST IT ON ANY
MATTERS WHATSOEVER, IN CONTRACT OR IN TORT, ARISING OUT OF OR IN ANY WAY
CONNECTED WITH THIS AGREEMENT.
IN WITNESS WHEREOF, and intending to be legally bound thereby, the parties
hereto have caused this Agreement to be duly executed and delivered by their
duly authorized officers as of the date and year first above written.
EUROFORTUNE HOLDING, S.A.
By: /s/ Alain Sereyjol-Garros
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Name: Alain Sereyjol-Garros
Title: Director
HEM MUTUAL ASSURANCE LLC
By: /s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
Title: Manager
HERITAGE WORLDWIDE, INC.
By: /s/ Xxxx Xxxxxx Mas
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Name: Xxxx Xxxxxx Mas
Title: Chairman of the Board
GOTTBETTER & PARTNERS, LLP
By: /s/ Xxxx Xxxxxxxxxx
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Name: Xxxx Xxxxxxxxxx
Title: Managing Partner
XXXXXXX & XXXXXX LLP
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Partner
