EXHIBIT 10.23
AMENDED AND RESTATED ESCROW AGREEMENT
THIS AMENDED AND RESTATED ESCROW AGREEMENT (this "Agreement") is made and
entered into as of September 15, 2005 by NEXICON, INC., a Nevada corporation
(the "Company"); CORNELL CAPITAL PARTNERS, LP, a Delaware limited partnership
(the "Investor"); and XXXXX XXXXXXXX, ESQ. (the "Escrow Agent").
RECITALS:
WHEREAS, the Company and the Investor previously entered into an Standby
Equity Distribution Agreement (the "Standby Equity Distribution Agreement")
dated as of June 24, 2005, pursuant to which the Investor will purchase the
Company's Common Stock, par value $0.001 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 Twenty
Million Dollars ($20,000,000);
WHEREAS, 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, the Escrow Agent previously 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 that certain Escrow Agreement, dated as of June 24,
2005, by and among the Company, the Investor and the Escrow Agent (the "Original
Escrow Agreement"); and
WHEREAS, the parties to the Original Escrow Agreement desire to amend and
restate the Original Escrow Agreement such that this Agreement shall replace the
Original Escrow Agreement in its entirety.
NOW THEREFORE, for and in consideration of the foregoing premises and the
mutual agreements and covenants herein contained, the parties hereto hereby
agree 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: "Nexicon, Inc./Cornell Capital Partners, LP" The Investor will wire
funds to the account of the Escrow Agent as follows:
Bank: Wachovia, N.A. of New Jersey
Routing #: 000000000
Account #: ____________
Name on Account: Xxxxx Xxxxxxxx, Esq. as Escrow Agent
Name on Sub-Account: Nexicon, Inc./Cornell Capital Partners, LP
Escrow account
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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:
Brokerage Firm: Crown Financial Group
Clearing House: Fiserv
Account #: ___________
DTC #: 0632
Name on Account: Xxxxx Xxxxxxxx, Esq. Escrow 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 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 Company and the Investor
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 shall 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 Agreement until the Escrow
Agent is notified by the Company and the Investor in writing that such dispute
or uncertainty has been resolved to the satisfaction of both parties 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 identified in
Sections 13a.(iv)
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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. 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
be stayed or enjoined by any court order, or in any case any order judgment or
decree shall be made
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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 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 and/or the Company shall be required to pay such fees and expense 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 both
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 payable by the Company and/or
the Investor
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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.
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.
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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 Nevada 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. Xxxxxxx Xxxxx 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.
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
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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: Xxxxx Xxxxxxxx, Esq.
000 Xxxxxx Xxxxxx - Xxxxx 0000
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Facsimile: (000) 000-0000
If to Company, to: Nexicon, Inc.
000 Xxxx, XX, Xxxxx 0000
Xxxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxxx Xxxxx, President
Telephone: (000) 000-0000
Facsimile: (000) 000 0000
With a copy to: Xxxxxxxxxxx & Xxxxxxxx Xxxxxxxxx Xxxxxx LLP
000 Xxxxx Xxxxxxxx Xxxx., Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, 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. Acknowledgment of Xxxxx Xxxxxxxx, Esq. The Company hereby acknowledges
that Xxxxx Xxxxxxxx, Esq. is general counsel to the Investor(s) and a partner of
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
Agreement or otherwise in connection with any transaction or agreement
contemplated and referred herein, Xxxxx Xxxxxxxx, Esq. shall be permitted to
continue to represent the Investor(s) and the Company will not seek to
disqualify such counsel.
17. 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.
18. 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,
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or invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Agreement.
19. Governing Law. This Agreement shall be construed and interpreted in
accordance with the internal laws of the State of Nevada without giving effect
to the conflict of laws principles thereof.
20. 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.
21. 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.
22. 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.
23. 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.
24. Amended and Restated Agreement. The parties hereto hereby acknowledge
and agree that this Agreement shall be deemed to have amended and restated the
Original Escrow Agreement in its entirety as of the date hereof.
[SIGNATURE PAGE FOLLOWS; REMAINDER OF PAGE INTENTIONALLY BLANK]
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IN WITNESS WHEREOF the parties hereto have executed this Amended and
Restated Escrow Agreement as of the day and year first set forth above.
NEXICON, INC.
By: /s/ Xxxxxxx Xxxxx
--------------------------------
Name: Xxxxxxx Xxxxx
Title: President
CORNELL CAPITAL PARTNERS, LP
By: Yorkville Advisors, LLC
Its: General Partner
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Name: Xxxx X. Xxxxxx
Title: Portfolio Manager
XXXXX XXXXXXXX, ESQ.
/s/ Xxxxx Xxxxxxxx, Esq.
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