EXHIBIT 10.7
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ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this "Agreement") is made and entered into as of
January 6, 2006, by and among XXXXXX PHARMACETICALS, INC., a New Jersey
corporation (the "Company"); IVOICE, INC., a New Jersey corporation (the
"Investor"); and Meritz & Xxxxx LLP ( "Escrow Agent").
BACKGROUND
WHEREAS, the Company was formed by the merger (the "Merger") of Xxxxxx
Pharmaceuticals Ltd., a New York corporation ("TPL"), with and into Xxxxxx
Pharmaceuticals, Ltd. (f/k/a iVoice Acquisition Corp.), a New Jersey corporation
("iVoice Acquisition"), pursuant to the terms of that certain Agreement and Plan
of Merger, by and among Investor, iVoice Acquisition, TPL and the then
Shareholders of TPL, dated as of the date hereof (the "Merger Agreement"), and
pursuant to the Merger Agreement and the Transaction Documents (as defined
therein), (i) the then Shareholders of TPL (the "Series A Preferred
Shareholders") acquired and now hold one hundred percent (100%) of the
outstanding shares of Series A Preferred Stock of the Company, no par value per
share (the "Series A Preferred Stock"), and (ii) iVoice acquired and will
acquire up to seven hundred and fifty (750) shares of the Series B Preferred
Stock of the Company, no par value per share (the "Series B Preferred Stock"),
and (B) one hundred (100) shares of the Common Stock of the Company, no par
value per share.
WHEREAS, (i) Immediately prior to the merger, iVoice Acquisition issued
to Investor (A) three hundred twenty five (325) shares of the Company's Series B
Preferred Stock, no par value per share (the "Series B Preferred Stock"), (B) a
purchased convertible debenture in the principal amount of Three Hundred Sixty
Thousand Dollars ($360,000) and (C) an convertible debenture issued as payment
for the agreement to provide certain administrative services in the principal
amount of One Hundred Thousand Dollars ($100,000) (together, the "Initial
Convertible Debentures"), each of which were converted into securities of the
Company on the same terms and conditions they were issued by iVoice Acquisition
immediately prior to the merger, and (ii) pursuant to the terms of the Merger
Agreement, iVoice has agreed to purchase (A) additional convertible debentures
in an aggregate principal amount of up to Four Hundred Twenty Five Thousand
Dollars ($425,000) at par (together with the Initial Convertible Debentures, the
"Convertible Debentures"), an (B) four hundred twenty five additional shares of
Series B Preferred Stock (all such securities of the Company being referred to
herein as the "Convertible Securities"), each convertible into shares of the
Company's common stock, no par value per share (the "Common Stock"). Capitalized
terms not defined herein shall have the meaning ascribed to them in the
Convertible Debentures.
WHEREAS, the Company and the Investor have agreed that, at the time
that a Form SB-2 filed by the Company with the Securities and Exchange
Commission ("SEC") with respect to the Spin-Off Transactions (as such term is
defined in the Shareholders' Agreement (as defined in the Merger Agreement)) is
deemed effective by the SEC, the Company shall deposit 1,000,000,000 shares of
Common Stock in a segregated escrow account to be held by Escrow
Agent (the "Escrow Shares"), which shall be made available for disbursement to
Investor upon receipt by Escrow Agent of the Convertible Securities, together
with an executed conversion form thereto fully completed and executed by the
Investor with respect to any Convertible Securities;
WHEREAS, Escrow Agent has agreed to accept, hold, and disburse the
Escrow Shares deposited with it in accordance with the terms of this Agreement.
NOW THEREFORE, in for good and valuable consideration, the receipt and
sufficiency of which is acknowledged, the parties hereto agree as follows:
1. Appointment of and Acceptance by Escrow Agent.
a. The Investor and the Company hereby appoint the Escrow Agent to
serve as the holder of the Escrow Shares, which shall be issued upon the
conversion of the Convertible Securities in accordance with their respective
terms. The Escrow Agent hereby accepts such appointment and, upon receipt via
D.W.A.C or the certificates representing the Escrow Shares in accordance with
Section 3 below, agrees to hold and disburse the Escrow Shares in accordance
with this Agreement.
b. 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 for such reason.
2. Creation of Escrow Account/Common Stock Account.
a. On or prior to the date of this Agreement, the Escrow Agent shall
establish an account for the receipt of physical stock certificates of the
Escrow Shares. The Company, on or prior to the date that a Form SB-2 filed by
the Company with the SEC with respect to the Spin-Off Transactions is deemed
effective by the SEC, will deliver certificates for 1,000,000,000 share of
Common Stock, to be held by the Escrow Agent for the account of the Company as
Escrow Shares and released pursuant to the terms of this Agreement.
3. Disbursements from the Escrow Account.
a. At such time as Escrow Agent has received a notice from the Investor
stating that the Convertible Securities, or any part thereof are being converted
(the "Conversion Notice") together with the Convertible Securities referred to
in such Conversion Notice, the Escrow Agent shall immediately notify the Company
and the Shareholder Representative under the Merger Agreement of receipt of such
Conversion Notice. No later than two (2) business days following receipt of
Conversion Notice, the Escrow Agent will release to the Investor one or more
certificates evidencing the number of Escrow Shares specified in the Conversion
Notice, which number shall not exceed the number of Escrow Shares. In releasing
such Escrow Shares to the Investor the Escrow Agent is authorized to rely upon
such Conversion Notice from the
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Investor and may accept any signatory from the Investor listed on the signature
page to this Agreement and any other signature from the Investor that the Escrow
Agent has on file.
b. Following receipt of all of the Convertible Securities and
Conversion Notices with respect to the full and complete conversion of all
Convertible Securities (or proof to the reasonable satisfaction of the Escrow
Agent that the obligations of the Company under the Convertible Securities have
been satisfied other than through conversion), the Escrow Agent shall release
the remaining Escrow Shares to the Company, and, following such release, the
obligations of the Escrow Agent under this Agreement shall terminate.
c. Upon the conversion of one or more of the Convertible Securities,
the Escrow Agent shall deliver to the Company such Convertible Securities for
cancellation; provided, however, in the event that such Convertible Securities
have not been fully converted, the Escrow Agent shall request from the Company
new Convertible Securities representing the unconverted portions or such
partially converted Convertible Securities and, upon receipt from the Company,
shall deliver to Investor such replacement Convertible Securities and to the
Company the partially converted Convertible Securities.
d. As compensation for its services under this Agreement, the Escrow
Agent shall receive a transaction fee of five hundred dollars ($500), payable by
the Company, for each transaction or series of transactions undertaken pursuant
to a Conversion Notice received by the Escrow Agent.
4. 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 Shares 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 Shares 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 5 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:
i. 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 the Escrow Agent or until a successor Escrow
Agent shall be appointed (as the case may be); 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, the Escrow Shares.
b. Liability of Escrow Agent. 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
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be alleged to have arisen, out of or as a result of any delay in the
disbursement of Escrow Shares or any delay in with respect to any other action
required or requested of Escrow Agent.
5. 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 9(a)(iv) and 9(b)(iv), below, jointly shall appoint a
successor Escrow Agent hereunder. 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 and remain obligations of such Escrow
Agent, as the case may be, 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 Shares and shall deliver all
Escrow Shares to the successor Escrow Agent, after making copies of such records
as the retiring Escrow Agent deems advisable
6. Liability of Escrow Agent.
a. Escrow Agent shall have no liability or obligation with respect to
the Escrow Shares except for Escrow Agent's willful misconduct or gross
negligence. Escrow Agent's sole responsibility shall be for the safekeeping and
disbursement of the Escrow Shares 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 any account in which Escrow Shares are deposited, or this 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 shall promptly pay, upon demand, the reasonable fees and
expenses of any such counsel.
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 Shares, without determination by the Escrow Agent of such court's
jurisdiction in the matter. If any portion of
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the Escrow Shares 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, 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.
7. 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, whereupon Escrow Agent shall promptly
reimburse the Company for any and all expenses paid to the Escrow Agent in
respect of such claims. If any indemnifiable 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
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legal defenses available to it which are different from or additional to those
available to the Company or the Investor. The Company shall be liable to pay
fees and expenses of counsel pursuant to the preceding sentence, except for any
fees or expenses the Investor agrees to pay under clause (a) above, which shall
be paid by Investor. All such fees and expenses payable by the Company and/or
the Investor 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
8. Expenses of Escrow Agent. The Company shall reimburse Escrow Agent
for all of its reasonable out-of-pocket expenses, including 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.
9. Warranties.
a. The Investor makes the following representations and warranties to
the Escrow Agent:
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 and has been executed by duly authorized
officers of the Investor, 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
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. Xxxxxx Xxxxxxx 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 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 Shares 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 Shares or any part
thereof.
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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
Shares.
b. The Company makes the following representations and warranties to
Escrow Agent and the Investor:
i. The Company 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 Transaction Documents 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. Xxxxxx X. Xxxxxx, Xx. has been duly appointed to act as the
representative of the Company hereunder and as the Shareholder Representative
and has full power and authority to execute, deliver, and perform this
Agreement, 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 Shares 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 Shares 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 Shares.
10. 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.
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11. Notice. All notices and other communications given or made pursuant
hereto shall be in writing and shall be deemed to have been duly given or made
if and when delivered personally, against written receipt thereof, or by
overnight courier to the parties at the following addresses or sent by
electronic transmission, with confirmation received, to the telecopy numbers
specified below (or at such other address or telecopy number for a party as
shall be specified by like notice):
If to Investor, to: iVoice, Inc.
000 xxxxx 00
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
If to Escrow Agent, to: Meritz & Xxxxx LLP
0000 X Xxxxxx, XX
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxx, Esq.
Telephone: 000-000-0000
Facsimile: 000-000-00000
If to Company, to: Xxxxxx Pharmaceuticals, Inc
c/o iVoice, Inc.
000 Xxxxx 00
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
Or to such other address as each party may designate for itself by like
notice.
12. 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.
13. 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.
14. 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.
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15. Entire Agreement. This Agreement constitutes the entire Agreement
between the parties relating to the holding, investment, and disbursement of the
Escrow Shares and sets forth in their entirety the obligations and duties of the
Escrow Agent with respect to the Escrow Shares.
16. 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.
17. Execution of Counterparts. This Agreement may be executed in
counter parts, which when so executed shall constitute one and same agreement or
direction.
18. Termination. Upon the disbursement of all Escrow Shares in the
Escrow Account, this Agreement shall terminate and Escrow Agent shall have no
further obligation or liability whatsoever with respect to this Agreement or the
Escrow Shares.
IN WITNESS WHEREOF the parties have hereunto set their hands and seals
the day and year above set forth.
IVOICE INC.
By: _____________________________
Name: Xxxxxx X. Xxxxxxx
Title: President and Chief Executive Officer
XXXXXX PHARMACEUTICALS, INC.
By: _____________________________
Name: Xxxxxx X. Xxxxxx, Xx.
Title: Chief Executive Officer
ESCROW AGENT
By: _____________________________
Name:
Title:
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