ESCROW AGREEMENT
Exhibit
10.5
This
Agreement is dated as of the 12th
day of
September, 2007 Virtualscopics, Inc., a Delaware corporation (the "Company"),
the
Buyers identified on Schedule A hereto (each a “Buyer”
and
collectively “Buyers”),
and
the law firm of Xxxxx Xxxxxx Xxxxxx LLP (the "Escrow
Agent"):
WITNESSETH:
WHEREAS,
the Company and Buyers have entered into a Securities Purchase Agreement (the
“Securities
Purchase Agreement”)
as of a
date even herewith, calling for the sale by the Company to the Buyer of Series
B
Preferred Stock (“Preferred
Stock”)
and
Warrants for a minimum aggregate purchase price of $4,000,000 and a maximum
of
$6,000,000 in the amounts set forth on Schedule A hereto; and
WHEREAS,
the parties hereto require the Company to deliver the Preferred Stock and
Warrants against payment therefor, with such Preferred Stock, Warrants and
the
Escrowed Funds to be delivered to the Escrow Agent to be held in escrow and
released by the Escrow Agent in accordance with the terms and conditions of
this
Agreement; and
WHEREAS,
the Escrow Agent is willing to serve as escrow agent pursuant to the terms
and
conditions of this Agreement;
NOW
THEREFORE, the parties agree as follows:
ARTICLE
I
INTERPRETATION
1.1. Definitions.
Capitalized terms used and not otherwise defined herein that are defined in
the
Securities Purchase Agreement shall have the meanings given to such terms in
the
Securities Purchase Agreement. Whenever used in this Agreement, the following
terms shall have the following respective meanings:
· "Agreement"
means this Agreement and all amendments made hereto and thereto by written
agreement between the parties;
·
“Buyer’s
Pro Rata Portion,” as to each Buyer, the Purchase Price of the Buyer’s Preferred
Stock divided by the aggregate Purchase Price of all Preferred Stock issued
in
the Offering.
· “Closing
Date” shall have the meaning set forth in Section 1(b)(iii) of the Securities
Purchase Agreement;
· “Irrevocable
Written Consents” shall have the meaning set forth in the Securities Purchase
Agreement.
1
· “Lead
Investor Fee” means the $35,000 fee to the Lead Investor described in Section
4(q) of the Securities Purchase Agreement;
· "Escrowed
Payment" means an aggregate cash payment of up to $6,000,000 which is the
purchase price for the Preferred Stock and accompanying
Warrants;
· "Initial
Conversion Price" shall have the meaning set forth in the Certificate of
Designation of Rights and Preferences of Series B Convertible Preferred
Stock.
· "Initial
Warrant Exercise Price" shall have the same meaning as in the Securities
Purchase Agreement.
·
“Lead
Investor” shall mean BridgePointe Master Funds Ltd.
·
“Legal
Opinion” means the original signed legal opinion referred to in Section 6 of the
Securities Purchase Agreement;
·
“Preferred
Stock” shall have the meaning set forth in the Securities Purchase
Agreement;
· “Purchase
Price” shall mean the amount invested by each Buyer, which amount is delivered
against the purchase and delivery of a corresponding Stated Value of Preferred
Stock and accompanying Warrants;
"Securities
Purchase Agreement" shall have the meaning set forth in the Recitals to this
Agreement;
· “Shareholder
Approval Holdback Amount” shall have the meaning set forth in Section 1(b)(iii)
of the Securities Purchase Agreement.
·
“Reduced
Shareholder Approval Holdback Amount” shall have the meaning set forth in
Section 1(b)(iii) of the Securities Purchase Agreement.
· “Related
Preferred Stock and Warrants” shall have the meaning set forth in Section
1(b)(iii) of the Securities Purchase Agreement.
·
“Warrants”
shall have the meaning set forth in Section 3 of the Securities Purchase
Agreement;
1.2. Entire
Agreement.
This
Agreement along with the Company Documents and the Buyer Documents constitute
the entire agreement between the parties hereto pertaining to the Company
Documents and Buyer Documents and supersedes all prior agreements,
understandings, negotiations and discussions, whether oral or written, of the
parties. There are no warranties, representations and other agreements made
by
the parties in connection with the subject matter hereof except as specifically
set forth in this Agreement, the Company Documents and the Buyer
Documents.
1.3. Extended
Meanings.
In this
Agreement words importing the singular number include the plural and vice versa;
words importing the masculine gender include the feminine and neuter genders.
The word "person" includes an individual, body corporate, partnership, trustee
or trust or unincorporated association, executor, administrator or legal
representative.
2
1.4. Waivers
and Amendments.
This
Agreement may be amended, modified, superseded, cancelled, renewed or extended,
and the terms and conditions hereof may be waived, only by a written instrument
signed by all parties, or, in the case of a waiver, by the party waiving
compliance. Except as expressly stated herein, no delay on the part of any
party
in exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any waiver on the part of any party of any right, power
or
privilege hereunder preclude any other or future exercise of any other right,
power or privilege hereunder.
1.5. Headings.
The
division of this Agreement into articles, sections, subsections and paragraphs
and the insertion of headings are for convenience of reference only and shall
not affect the construction or interpretation of this Agreement.
1.6. Law
Governing this Agreement.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York without regard to conflicts
of laws
principles that would result in the application of the substantive laws of
another jurisdiction. Any action brought by either party against the other
concerning the transactions contemplated by this Agreement shall be brought
only
in the state courts of New York or in the federal courts located in the state
of
New York. Both parties and the individuals executing this Agreement and other
agreements on behalf of the Company agree to submit to the jurisdiction of
such
courts and waive trial by jury. The prevailing party (which shall be the party
which receives an award most closely resembling the remedy or action sought)
shall be entitled to recover from the other party its reasonable attorney's
fees
and costs. In the event that any provision of this Agreement or any other
agreement delivered in connection herewith is invalid or unenforceable under
any
applicable statute or rule of law, then such provision shall be deemed
inoperative to the extent that it may conflict therewith and shall be deemed
modified to conform with such statute or rule of law. Any such provision which
may prove invalid or unenforceable under any law shall not affect the validity
or enforceability of any other provision of any agreement.
1.7. Specific
Enforcement, Consent to Jurisdiction.
The
Company and Buyer acknowledge and agree that irreparable damage would occur
in
the event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the parties shall be entitled to an injuction or
injunctions to prevent or cure breaches of the provisions of this Agreement
and
to enforce specifically the terms and provisions hereof or thereof, this being
in addition to any other remedy to which any of them may be entitled by law
or
equity. Subject to Section 1.6 hereof, each of the Company and Buyer hereby
waives, and agrees not to assert in any such suit, action or proceeding, any
claim that it is not personally subject to the jurisdiction of such court,
that
the suit, action or proceeding is brought in an inconvenient forum or that
the
venue of the suit, action or proceeding is improper. Nothing in this Section
shall affect or limit any right to serve process in any other manner permitted
by law.
3
ARTICLE
II
DELIVERIES
TO THE ESCROW AGENT
2.1. Company
Deliveries.
On or
before the Closing Date, the Company shall deliver documents the Company is
required to deliver at Closing pursuant to Section 1(b)(v) of the Securities
Purchase Agreement (the “Company Documents”) to the Escrow Agent.
2.2. Buyer
Deliveries.
On or
before the Closing Date, each Buyer shall deliver to the Escrow Agent such
Buyer’s Purchase Price and the executed Securities Purchase Agreement and
Registration Rights Agreement and Form W-9, as required pursuant to Section
1(b)(v) of the Securities Purchase Agreement (“Buyer Documents”). The Escrowed
Payment will be delivered pursuant to the following wire transfer
instructions:
M&T
Bank
One
M&T Xxxxx
Xxxxxxx,
XX 00000
For
Credit to: Xxxxx Xxxxxx Xxxxxx LLP (Trust Account)
Account
Number: 0000000000
ABA
Number: 000000000
2.3. Intention
to Create Escrow Over Company Documents and Buyer Documents.
The
Buyer and Company intend that the Company Documents and Buyer Documents shall
be
held in escrow by the Escrow Agent pursuant to this Agreement for their benefit
as set forth herein.
2.4. Escrow
Agent to Deliver Company Documents and Buyer Documents.
The
Escrow Agent shall hold and release the Company Documents and Buyer Documents
only in accordance with the terms and conditions of this Agreement.
ARTICLE
III
RELEASE
OF COMPANY DOCUMENTS AND BUYER DOCUMENTS
3.1. Release
of Escrow.
Subject
to the provisions of Section 4.2, the Escrow Agent shall release the Company
Documents and Buyer’s Purchase Price and Buyer Documents following the Closing
as follows:
(a) On
the
Closing Date, subject to the satisfaction or waiver of the terms and conditions
of this Agreement and the Securities Purchase Agreement, the Closing with
respect to all Buyers shall occur when Buyer funds representing the Minimum
Amount are transmitted by wire transfer of immediately available funds by all
Buyers to the Escrow Agent. The Escrow Agent will simultaneously release the
Company Documents to the Buyer and release the Buyer Documents and the Buyer’s
Purchase Price to the Company except that: (i) the Lead Investor Fee will be
released to the Lead Investor, and (ii) an amount of each Buyer’s Purchase Price
equal to the Buyer’s Pro Rata Portion of the Shareholder Approval Holdback
Amount (the “Withheld
Cash”)
and a
number of shares of Preferred Stock having an aggregate Stated Value equal
to
the Buyer’s Pro Rata Portion of the Shareholder Approval Holdback Amount, along
with a corresponding number of Warrants, subject to Section 3.1(h) based upon
the Warrant Amount corresponding to the withheld shares of Preferred Stock,
as
described in the Securities Purchase Agreement (the “Withheld
Securities”),
shall
be held back by the Escrow Agent following the Closing. If the Closing as to
at
least the Minimum Amount has not occurred by September 13, 2007, then within
three (3) Business Days thereafter, the Escrow Agent shall return the Buyer’s
Purchase Price and Buyer Documents to the Buyer, and shall return the Company
Documents to the Company.
4
(b) If,
anytime following the Closing and prior to the Shareholder Approval Deadline,
the Escrow Agent receives (and the Lead Investor confirms receipt of) copies
of
Irrevocable Written Consents of stockholders of the Company representing a
majority of the Company’s outstanding voting shares as of the Trading Day
immediately preceding the Original Issue Date, then within three (3) Business
Days thereafter, the Escrow Agent shall (x) release to the Company the balance
of the Shareholder Approval Holdback Amount, except for the Reduced Shareholder
Approval Holdback Amount, which the Escrow Agent shall continue to retain,
and
(y) subject to Section 3.1(h), release to the Buyer the Related Preferred Stock
Certificates and Warrants (a “First
Partial Release”);
(c) If,
anytime following the Closing and prior to the Shareholder Approval Deadline,
the Escrow Agent receives (and the Lead Investor confirms receipt of) written
notice from the Company that the shareholders of the Company affirmatively
approved of the Offering (“Shareholder
Approval Notification”),
then
within three (3) Business Days thereafter, the Escrow Agent shall deliver all
of
the remaining Withheld Cash to the Company and all of the Withheld Securities
to
the Buyer.
(d) If,
as of
the Shareholder Approval Deadline, the Escrow Agent has not received Shareholder
Approval Notification (notwithstanding whether or not the Escrow Agent has
received copies of the Irrevocable Written Consents referred to above), then
within five (5) Business Days thereafter, the Escrow Agent shall deliver all
of
Buyer’s remaining Withheld Cash to the Buyer, toward the redemption price for an
Exchange Cap Redemption, and shall return the corresponding Withheld Securities
to the Company.
(e) All
funds
to be delivered to the Company shall be delivered pursuant to the wire
instructions to be provided in writing by the Company to the Escrow Agent.
(f) Notwithstanding
the above, upon receipt by the Escrow Agent of joint written instructions
("Joint
Instructions")
signed
by the Company and the Buyer, it shall deliver the Company Documents and Buyer
Documents in accordance with the terms of the Joint Instructions.
(g) Notwithstanding
the above, upon receipt by the Escrow Agent of a final and non-appealable
judgment, order, decree or award of a court of competent jurisdiction (a
"Court
Order"),
the
Escrow Agent shall deliver the Company Documents and Buyer Documents in
accordance with the Court Order. Any Court Order shall be accompanied by an
opinion of counsel for the party presenting the Court Order to the Escrow Agent
(which opinion shall be satisfactory to the Escrow Agent) to the effect that
the
court issuing the Court Order has competent jurisdiction and that the Court
Order is final and non-appealable.
5
(h) Whenever
the release of Warrants is to be made under this Agreement, if less than all
of
Buyer's Warrants are to be released, half of the Warrants to be released shall
have an Initial Exercise Price of 100% of the Initial Conversion Price, and
the
remaining half shall have an Initial Exercise Price of 115% of the Initial
Conversion Price.
3.2. Acknowledgement
of Company and Buyer; Disputes.
The
Company and the Buyer acknowledge that the only terms and conditions upon which
the Company Documents and Buyer Documents are to be released are set forth
in
Sections 3 and 4 of this Agreement. The Company and the Buyer reaffirm their
agreement to abide by the terms and conditions of this Agreement with respect
to
the release of the Company Documents and Buyer Documents. Any dispute with
respect to the release of the Company Documents and Buyer Documents shall be
resolved pursuant to Section 4.2 or by agreement between the Company and
Buyer.
ARTICLE
IV
CONCERNING
THE ESCROW AGENT
4.1. Duties
and Responsibilities of the Escrow Agent.
The
Escrow Agent's duties and responsibilities shall be subject to the following
terms and conditions:
(a) The
Buyer
and Company acknowledge and agree that the Escrow Agent (i) shall not be
responsible for or bound by, and shall not be required to inquire into whether
either the Buyer or Company is entitled to receipt of the Company Documents
and
Buyer Documents pursuant to, any other agreement or otherwise; (ii) shall be
obligated only for the performance of such duties as are specifically assumed
by
the Escrow Agent pursuant to this Agreement; (iii) may rely on and shall be
protected in acting or refraining from acting upon any written notice,
instruction, instrument, statement, request or document furnished to it
hereunder and believed by the Escrow Agent in good faith to be genuine and
to
have been signed or presented by the proper person or party, without being
required to determine the authenticity or correctness of any fact stated therein
or the propriety or validity or the service thereof; (iv) may assume that any
person believed by the Escrow Agent in good faith to be authorized to give
notice or make any statement or execute any document in connection with the
provisions hereof is so authorized; (v) shall not be under any duty to give
the
property held by Escrow Agent hereunder any greater degree of care than Escrow
Agent gives its own similar property; and (vi) may consult counsel satisfactory
to Escrow Agent, the opinion of such counsel to be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by Escrow Agent hereunder in good faith and in accordance with the opinion
of
such counsel.
(b) The
Buyer
and Company acknowledge that the Escrow Agent is acting solely as a stakeholder
at their request and that the Escrow Agent shall not be liable for any action
taken by Escrow Agent in good faith and reasonably believed by Escrow Agent
to
be authorized or within the rights or powers conferred upon Escrow Agent by
this
Agreement. The Buyer and Company, jointly and severally, agree to indemnify
and
hold harmless the Escrow Agent and any of Escrow Agent's partners, employees,
agents and representatives for any action taken or omitted to be taken by Escrow
Agent or any of them hereunder, including the fees of outside counsel and other
costs and expenses of defending itself against any claim or liability under
this
Agreement, except in the case of gross negligence or willful misconduct on
Escrow Agent's part committed in its capacity as Escrow Agent under this
Agreement. The Escrow Agent shall owe a duty only to the Buyer and Company
under
this Agreement and to no other person.
6
(c) The
Buyer
and Company jointly and severally agree to reimburse the Escrow Agent for
outside counsel fees, to the extent authorized hereunder and incurred in
connection with the performance of its duties and responsibilities
hereunder.
(d) The
Escrow Agent may at any time resign as Escrow Agent hereunder by giving five
(5)
days prior written notice of resignation to the Buyer and the Company. Prior
to
the effective date of the resignation as specified in such notice, the Buyer
and
Company will issue to the Escrow Agent a Joint Instruction authorizing delivery
of the Company Documents and Buyer Documents to a substitute Escrow Agent
selected by the Buyer and Company. If no successor Escrow Agent is named by
the
Buyer and Company, the Escrow Agent may apply to a court of competent
jurisdiction in the State of New York for appointment of a successor Escrow
Agent, and to deposit the Company Documents and Buyer Documents with the clerk
of any such court.
(e) The
Escrow Agent does not have and will not have any interest in the Company
Documents and Buyer Documents, but is serving only as escrow agent, having
only
possession thereof. The Escrow Agent shall not be liable for any loss resulting
from the making or retention of any investment in accordance with this Escrow
Agreement.
(f) This
Agreement sets forth exclusively the duties of the Escrow Agent with respect
to
any and all matters pertinent thereto and no implied duties or obligations
shall
be read into this Agreement.
(g) The
Escrow Agent shall be permitted to act as counsel for the Company in any dispute
as to the disposition of the Company Documents and Buyer Documents, in any
other
dispute between the Buyer and Company, whether or not the Escrow Agent is then
holding the Company Documents and Buyer Documents and continues to act as the
Escrow Agent hereunder.
(h) The
provisions of this Section 4.1 shall survive the resignation of the Escrow
Agent
or the termination of this Agreement.
4.2. Dispute
Resolution: Judgments.
Resolution of disputes arising under this Agreement shall be subject to the
following terms and conditions:
(a) If
any
dispute shall arise with respect to the delivery, ownership, right of possession
or disposition of the Company Documents and Buyer Documents, or if the Escrow
Agent shall in good faith be uncertain as to its duties or rights hereunder,
the
Escrow Agent shall be authorized, without liability to anyone, to (i) refrain
from taking any action other than to continue to hold the Company Documents
and
Buyer Documents pending receipt of a Joint Instruction from the Buyer and
Company, or (ii) deposit the Company Documents and Buyer Documents with any
court of competent jurisdiction in the State of New York, in which event the
Escrow Agent shall give written notice thereof to the Buyer and the Company
and
shall thereupon be relieved and discharged from all further obligations pursuant
to this Agreement. The Escrow Agent may, but shall be under no duty to,
institute or defend any legal proceedings which relate to the Company Documents
and Buyer Documents. The Escrow Agent shall have the right to retain counsel
if
it becomes involved in any disagreement, dispute or litigation on account of
this Agreement or otherwise determines that it is necessary to consult
counsel.
7
(b) The
Escrow Agent is hereby expressly authorized to comply with and obey any Court
Order. In case the Escrow Agent obeys or complies with a Court Order, the Escrow
Agent shall not be liable to the Buyer and Company or to any other person,
firm,
corporation or entity by reason of such compliance.
ARTICLE
V
GENERAL
MATTERS
5.1. Termination.
This
escrow shall terminate upon the release of all of the Company Documents and
Buyer Documents or at any time upon the agreement in writing of the Buyer and
Company.
5.2. Notices.
All
notices, demands, requests, consents, approvals, and other communications
required or permitted hereunder shall be in writing and, unless otherwise
specified herein, shall be (i) personally served, (ii) deposited in the mail,
registered or certified, return receipt requested, postage prepaid, (iii)
delivered by reputable air courier service with charges prepaid, or (iv)
transmitted by hand delivery, telegram, or facsimile, addressed as set forth
below or to such other address as such party shall have specified most recently
by written notice. Any notice or other communication required or permitted
to be
given hereunder shall be deemed effective (a) upon hand delivery or delivery
by
facsimile, with accurate confirmation generated by the transmitting facsimile
machine, at the address or number designated below (if delivered on a business
day during normal business hours where such notice is to be received), or the
first business day following such delivery (if delivered other than on a
business day during normal business hours where such notice is to be received)
or (b) on the second business day following the date of mailing by express
courier service, fully prepaid, addressed to such address, or upon actual
receipt of such mailing, whichever shall first occur. The addresses for such
communications shall be:
| (a) |
If
to the Company, to:
|
Attn:
Xxxxx Xxxxxxxxx, CFO
000
Xxxxxx Xxxx
Xxxxxxxxx,
XX 00000
Phone:
000-000-0000
Fax:
000-000-0000
With
copy by telecopier only to:
Attn:
Xxxxxxx X. Xxxxxxx, Esq.
Xxxxx
Xxxxxx Xxxxxx LLP
000
Xxxxxxxxxx Xxxxxxxx, 0 Xxxxx Xxxxxx
Xxxxxxxxx,
Xxx Xxxx 00000
Phone:
(000) 000-0000
Fax:
(000) 000-0000
8
| (b) |
If
to the Buyers, to: the addresses and fax numbers listed on Schedule
A
hereto
|
| (c) |
If
to the Escrow Agent, to:
|
Attn:
Xxxxxxx X. Xxxxxxx, Esq.
Xxxxx
Xxxxxx Xxxxxx LLP
000
Xxxxxxxxxx Xxxxxxxx, 0 Xxxxx Xxxxxx
Xxxxxxxxx,
Xxx Xxxx 00000
Phone:
(000) 000-0000
Fax:
(000) 000-0000
or
to
such other address as any of them shall give to the others by notice made
pursuant to this Section 5.2.
5.3. Interest.
The
Escrowed Payment shall be deposited in an interest bearing account within a
reasonable time after the Closing. In the event any portion of a Buyer's
Purchase Price is released to the Company pursuant to Section 3.1, any accrued
interest thereon shall be paid to the Company, minus any expenses in maintaining
such account. In the event, any portion of the Buyer's Purchase Price is
released to such Buyer pursuant to Section 3.1, any accrued interest thereon
shall be paid to the Buyer, but only if the Escrow Agent receives from such
Buyer the Buyer’s United States taxpayer identification number and other
requested information and forms.
5.4. Assignment;
Binding Agreement.
Neither
this Agreement nor any right or obligation hereunder shall be assignable by
any
party without the prior written consent of the other parties hereto. This
Agreement shall enure to the benefit of and be binding upon the parties hereto
and their respective legal representatives, successors and assigns.
5.5. Invalidity.
In the
event that any one or more of the provisions contained herein, or the
application thereof in any circumstance, is held invalid, illegal, or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be in any way impaired thereby, it being
intended that all of the rights and privileges of the parties hereto shall
be
enforceable to the fullest extent permitted by law.
5.6. Counterparts/Execution.
This
Agreement may be executed in any number of counterparts and by different
signatories hereto on separate counterparts, each of which, when so executed,
shall be deemed an original, but all such counterparts shall constitute but
one
and the same instrument. This Agreement may be executed by facsimile
transmission and delivered by facsimile transmission.
5.7. Agreement.
Each of
the undersigned states that he has read the foregoing Escrow Agreement and
understands and agrees to it.
9
IN
WITNESS WHEREOF, the undersigned have executed this Funds Escrow Agreement
as of
the date first written above.
| COMPANY:
|
BUYER:
|
||
|
By:
/s/
Xxxxx Xxxxxxxxx
Name:
Xxxxx Xxxxxxxxx
Title:
Chief Financial Officer
|
By:
Name:
Title:
|
||
|
ADDRESS:
|
ADDRESS:
|
||
|
000
Xxxxxx Xxxx
Xxxxxxxxx,
Xxx Xxxx 00000
Phone:
(000) 000-0000
Fax:
(000) 000-0000
|
Phone:
Fax:
|
||
|
ESCROW
AGENT:
Xxxxx
Xxxxxx Xxxxxx LLP
|
|||
|
/s/
Xxxxxxx X. Xxxxxxx
Print
Name: Xxxxxxx
X. Xxxxxxx
Title:
Partner
|
10
SCHEDULE
A TO FUNDS ESCROW AGREEMENT
|
Buyer
|
|
Buyer’s
Subscription Amount
|
Address
and
Facsimile
Number
|
|
|
Legal
Representative’s
Address
and
Facsimile
Number
|
|
|
Bridgepointe
Master Fund Ltd.
|
$2,000,000
|
0000
Xxxxxxxxx Xxxxxxx
Xxxxx
000
Xxxxxxxxxx,
XX 00000
Facsimile:
000-000-0000
|
P.
Xxxxxxxx Xxxxxxx, Esq.
Roswell
Capital Partners, LLC
0000
Xxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx,
XX 00000
Facsimile:
000-000-0000
|
||||
|
BayStar
Capital III Investment Fund, L.P..
|
$500,000
|
c/o
Xxxxxx Xxxxxx
00
X. Xxx Xxxxxxx Xxxxx Xxxx.
Xxxxx
0X
Xxxxxxxx,
XX 00000
Facsimile:
000-000-0000
|
Xxxx
X’Xxxxx, Esq.
Collette,
Erickson, Xxxxxx & X’Xxxxx
000
Xxxx Xxxxx
Xxxxx
0000
Xxx
Xxxxxxxxx, XX 00000
Facsimile:
000-000-0000
|
||||
|
Crescent
International, Ltd.
|
$400,000
|
℅
Xxxxxxx (Switzerland) S.A.
00
Xxxxxx Xxxxx-Xxxxx
XX-0000
Xxxxxxxx/Xxxxxx
Xxxxxxxxxxx
Facsimile:
x00 00 0000000
|
Xxxxxxx
Xxxxxxxxx & Xxxxx LLP
The
Graybar Building
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx
00000-0000
Facsimile:
(000) 000-0000
|
||||
|
Gemini
Master Fund, Ltd.
|
$400,000
|
℅
Gemini Strategies, LLC
00000
Xx Xxxxxx Xxxx
Xxxxx
000
Xxx
Xxxxx, XX 00000
Facsimile:
(000) 000-0000
|
Xxxxxx
Xxxxxxx
℅
Gemini Strategies, LLC
00000
Xx Xxxxxx Xxxx
Xxxxx
000
Xxx
Xxxxx, XX 00000
Facsimile:
(000) 000-0000
|
||||
|
Bristol
Investment Fund, Ltd.
|
$350,000
|
℅
Bristol Capital Advisors, LLC
00000
Xxxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxx
Xxxxxxx, XX 00000
Facsimile:
(000) 000.0000
|
Xxx
Xxxx, Esq.
℅
Bristol Capital Advisors, LLC
00000
Xxxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxx
Xxxxxxx, XX 00000
Facsimile:
(000) 000.0000
|
||||
|
Xxxxxx
X. Xxxxxxxxxxx
|
$100,000
|
00
Xxxxxxxx Xxxx
Xxxxxxx
Xxxxx, XX 00000
|
00
Xxxxxxxx Xxxx
Xxxxxxx
Xxxxx, XX 00000
|
||||
|
SRK
Management Co.
|
$500,000
|
000
Xxxxxxx Xxxxxx
00xx
Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
|
000
Xxxxxxx Xxxxxx
00xx
Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
|
||||
|
EGATNIV,
LLC
|
$100,000
|
000
Xxxx 00xx Xxxxxx
0xx
Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Facsimile:
(000) 000-0000
|
Xxxxxx
Xxxxxxxxx
000
Xxxx 00xx Xxxxxx
0xx
Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Facsimile:
(000) 000-0000
|
||||
|
Total:
|
$4,350,000
|
11
AMENDMENT
AND WAIVER
This
Amendment and Waiver to that certain Escrow Agreement dated as of the
12th
day of
September, 2007 between VirtualScopics, Inc., a Delaware corporation (the
"Company"),
the
Buyers identified on Schedule A thereto (each a “Buyer”
and
collectively “Buyers”),
and
the law firm of Xxxxx Xxxxxx Xxxxxx LLP (the "Escrow
Agent")
is made
as of the 13th
day of
September, 2007. Capitalized terms not otherwise defined herein shall have
the
meanings ascribed thereto in the Escrow Agreement.
WHEREAS,
Section
3.1(a) of the Escrow Agreement provides that if the Closing as to at least
the
Minimum Amount has not occurred by September 13, 2007, then within three (3)
Business Days thereafter, the Escrow Agent shall return the Buyer’s Purchase
Price and Buyer Documents to the Buyer, and shall return the Company Documents
to the Company; and
WHEREAS,
the
undersigned parties to the Escrow Agreement now contemplate that the Closing
will take place on September 14, 2007, and wish to amend the Escrow Agreement
to
extend the date required for the Closing to occur.
NOW
THEREFORE,
for
good and valuable consideration, receipt of which is hereby acknowledged, the
parties agree as follows:
1. The
last
sentence of Section 3.1(a) of the Escrow Agreement is hereby amended to provide
as follows: “If the Closing as to at least the Minimum Amount has not occurred
by September 14, 2007, then within three (3) Business Days thereafter, the
Escrow Agent shall return the Buyer’s Purchase Price and Buyer Documents to the
Buyer, and shall return the Company Documents to the Company.”
2. The
undersigned hereby waives compliance with Section 3.1(a) as in effect prior
to
this Amendment and Waiver, insofar as it requires that the Escrow Agent return
the Buyer’s Purchase Price and Buyer Documents to the Buyer, and return the
Company Documents to the Company, if the Closing has not occurred by September
13, 2007.
3. This
Amendment and Waiver may be executed in any number of counterparts and by
different signatories hereto on separate counterparts, each of which, when
so
executed, shall be deemed an original, but all such counterparts shall
constitute but one and the same instrument. This Agreement may be executed
by
facsimile transmission and delivered by facsimile transmission. This Waiver
and
Amendment shall be governed by and construed in accordance with the laws of
the
State of New York without regard to conflicts of laws principles that would
result in the application of the substantive laws of another jurisdiction.
[SIGNATURE
PAGE FOLLOWS]
12
[SIGNATURE
PAGE TO AMENDMENT AND WAIVER TO ESCROW AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have executed this Amendment and Waiver as
of
the date first written above.
|
COMPANY:
|
BUYER:
|
||
|
By:
/s/
Xxxxx Xxxxxxxxx
Name:
Xxxxx Xxxxxxxxx
Title:
Chief Financial Officer
|
By:
Name:
Title:
|
||
|
ESCROW
AGENT:
Xxxxx
Xxxxxx Xxxxxx LLP
|
|
||
|
/s/
Xxxxxxx X. Xxxxxxx
Print Name: Xxxxxxx X. Xxxxxxx Title:
Partner
|
|
13
