ESCROW AGREEMENT
EXHIBIT
10.5
THIS
ESCROW AGREEMENT
(this
“Agreement”)
is
made and entered into as of August 12, 2005 by and among IQ
MEDICAL CORP., a
Colorado corporation (the “Company”);
the
Buyer(s) listed on the Securities Purchase Agreement, dated the date
hereof (also referred to as the “Investor(s)”),
and
XXXXX
XXXXXXXX, ESQ.,
as
Escrow Agent hereunder (the “Escrow
Agent”).
BACKGROUND
WHEREAS,
the
Company and the Investor(s) have entered into a Securities Purchase Agreement
(the “Securities
Purchase Agreement”),
dated
as of the date hereof, pursuant to which the Company proposes to sell secured
convertible debentures (the “Convertible
Debentures”)
which
shall be convertible into the Company’s Common Stock, par value $0.0001 per
share (the “Common
Stock”),
for a
total purchase price of up to Five Hundred Thousand Dollars ($500,000).
The
Securities Purchase Agreement provides that the Investor(s) 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 Investor(s) 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
Investor(s) with a copy of such extension to Escrow Agent); or
(iii) The
date upon which a determination is made by the Company and the Investor(s)
to
terminate the Offering prior to the sale of all the Convertible
Debentures.
During
the Escrow Period, the Company and the Investor(s) 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 Investor(s)
or
any other entity, or be subject to the debts of the Company or the Investor(s)
or any other entity.
2. Appointment
of and Acceptance by Escrow Agent.
The
Investor(s) 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.
a. The
Company hereby acknowledges that the Escrow Agent is general counsel to
the
Investor(s), a partner in the general partner of the Investor(s), and counsel
to
the Investor(s) in connection with the transactions contemplated and referred
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 referred herein, the Escrow Agent
shall be permitted to continue to represent the Investor(s) and the Company
will
not seek to disqualify such counsel.
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: IQ Medical Corp./Cornell Capital Partners, LP Escrow
Account for the deposit of the Escrow Funds. The Investor(s) will instruct
subscribers to wire funds to the account of the Escrow Agent as
follows:
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Bank:
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Wachovia,
N.A. of New Jersey
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Routing
#:
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000000000
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Account
#:
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2000014931134
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Name
on Account:
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Xxxxx
Xxxxxxxx Attorney Trust Account
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Name
on Sub-Account:
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IQ
Medical Corp./Cornell Capital Partners, LP Escrow
Account
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4. Deposits
into the Escrow Account.
The
Investor(s) agrees that they shall promptly deliver funds 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 Cornell Capital Partners,
LP
on behalf of the Investor(s) 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 Investor(s). In disbursing
such
funds, Escrow Agent is authorized to rely upon such Joint Written Direction
from
the Company and the Investor(s) and may accept any signatory from the Company
listed on the signature page to this Agreement and any signature from the
Investor(s) 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
Investor(s), Escrow Agent shall notify the Company and the Investor(s).
Upon
receipt of payment instructions from the Company, Escrow Agent shall refund
to
each subscriber without interest the amount received from each Investor(s),
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 Investor(s) 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 deposit the proceeds of each wire in the
Escrow
Account.
7. Suspension
of Performance: Disbursement Into Court.
If at
any time, there shall exist any dispute between the Company and the Investor(s)
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
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.
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c. Escrow
Agent shall have no liability to the Company, the Investor(s), 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 account.
If
Escrow
Agent has not received a Joint Written Direction at any time that an investment
decision must be made, Escrow Agent shall maintain the Escrow Funds, or
such
portion thereof, as to which no Joint Written Direction has been received,
in a
non-interest bearing 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(s)
and the
Company 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 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 Investor(s)
jointly
and severally shall promptly pay, upon demand, the reasonable fees and
expenses
of any such counsel.
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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 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 Investor(s)
hereunder in writing, and the Investor(s) 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 Investor(s) and/or the Company shall
be
required to pay such fees and expense if (a) the Investor(s) or the Company
agree to pay such fees and expenses, or (b) the Investor(s) 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(s) 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 Investor(s) 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 Investor(s). The Investor(s) 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 payable by the Company
and/or
the Investor(s) 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.
5
The
parties agree that neither payment by the Company or the Investor(s) of
any
claim by Escrow Agent for indemnification hereunder shall impair, limit,
modify,
or affect, as between the Investor(s) and the Company, the respective rights
and
obligations of Investor(s), on the one hand, and the Company, on the other
hand.
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
Investor(s) makes the following representations and warranties to Escrow
Agent:
6
(i) The
Investor(s) 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(s),
including any necessary approval of the limited partner of the Investor(s)
or
necessary corporate approval, as applicable, has been executed by duly
authorized officers of the Investor(s), enforceable in accordance with
its
terms.
(iii) The
execution, delivery, and performance of the Investor(s) of this Agreement
will
not violate, conflict with, or cause a default under any agreement of limited
partnership of Investor(s) or the articles of incorporation or bylaws of
the
Investor(s) (as applicable), any applicable law or regulation, any court
order or administrative ruling or degree to which the Investor(s) is a
party or
any of its property is subject, or any agreement, contract, indenture,
or other
binding arrangement.
(iv) Xxxx
Xxxxxx has been duly appointed to act as the representative of the Investor(s)
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 Investor(s)’s representative under this Agreement, all without
further consent or direction form, or notice to, the Investor(s) or any
other
party.
(v) No
party other than the parties hereto and the Investor(s)s 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 Investor(s) 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 Colorado 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.
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(iv) Xxxxxx
X. Xxxxxx 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 Investor(s)s 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 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.
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:
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If
to Investor(s), to:
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Cornell
Capital Partners, LP
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000
Xxxxxx Xxxxxx - Xxxxx 0000
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Xxxxxx
Xxxx, XX 00000
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Attention:
Xxxx Xxxxxx
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Portfolio
Manager
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Telephone: (000)
000-0000
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Facsimile: (000)
000-0000
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8
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If
to Escrow Agent, to:
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Xxxx
Xxxxx, Esq.
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000
Xxxxxx Xxxxxx - Xxxxx 0000
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Xxxxxx
Xxxx, XX 00000
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Telephone: (000)
000-0000
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Facsimile: (000)
000-0000
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If
to the Company, to:
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IQ
Medical Corp.
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500
Australian Avenue South - Suite 000
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Xxxx
Xxxx Xxxxx, Xxxxxxx 00000
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Attention: Xxxxxx
X. Xxxxxx
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Telephone: (000)
000-0000
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Facsimile: (000)
000-0000
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With
a copy to:
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Xxxxxxx
Xxxxxxx & Xxxxxxx, P.A.
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Broward
Financial Centre - Suite 1400
000
Xxxx Xxxxxxx Xxxx.
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Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
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Attention: Xxxxxx
X. Xxxxx, Xx. Esq.
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Telephone: (000)
000-0000
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Facsimile: (000)
000-0000
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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 Investor(s), the Company, or the Escrow
Agent.
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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.
[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.
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IQ
Medical Corp.
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By: /s/
Xxxxxx X.
Xxxxxx
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Name: Xxxxxx
X. Xxxxxx
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Title: CFO
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Cornell
Capital Partners, LP
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By: Yorkville
Advisors, LLC
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Its: General
Partner
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By: /s/
Xxxx
Xxxxxx
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Name: Xxxx
Xxxxxx
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Title: Portfolio
Manager
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Escrow
Agent
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By: /s/
Xxxxx
Xxxxxxxx
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Name: Xxxxx
Xxxxxxxx, Esq.
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