ESCROW AGREEMENT
Exhibit
4.8
THIS
ESCROW AGREEMENT (this “Agreement”) is made
as of November 4, 2008, by and among Hague Corp., a Nevada corporation (the
“Company”), the
purchasers signatory hereto (each investor a “Purchaser” and
together with all other investors, the “Purchasers”), and
Sichenzia Xxxx Xxxxxxxx Xxxxxxx LLP, with an address at 00 Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 (the “Escrow
Agent”). Capitalized terms used but not
defined herein shall have the meanings set forth in the Purchase Agreement
referred to in the first recital.
W I T N E
S S E T H:
WHEREAS,
the Purchasers will be purchasing from the Company, severally and not jointly
with the other Purchasers, in the aggregate, up to $1,500,000 of Debentures and
Restricted Shares (such amount, the “Subscription Amounts”
or the “Escrowed
Funds”) on the Closing Date as set forth in the Purchase Agreement (the
“Purchase
Agreement”) dated the date hereof between the Purchasers and the Company,
which securities will be issued under the terms contained herein and in the
Purchase Agreement; and
WHEREAS,
it is intended that the purchase of the securities be consummated in accordance
with the requirements set forth in Regulation D promulgated under the Securities
Act of 1933, as amended; and
WHEREAS,
the Company and the Purchasers have requested that the Escrow Agent hold the
Subscription Amounts in escrow upon the terms set forth herein;
NOW,
THEREFORE, in consideration of the covenants and mutual promises contained
herein and other good and valuable consideration, the receipt and legal
sufficiency of which are hereby acknowledged and intending to be legally bound
hereby, the parties agree as follows:
ARTICLE
1
TERMS OF
THE ESCROW
1.1. The
parties hereby agree to establish an escrow account with the Escrow Agent
whereby the Escrow Agent shall hold the funds for the purchase of up to
$1,500,000 in the aggregate, of Securities of the Company as contemplated by the
Purchase Agreement.
1.2. Upon the
Escrow Agent’s receipt of the aggregate Subscription Amounts for the Closing
into its master escrow account, together with executed counterparts of this
Agreement, and the Purchase Agreement, it shall telephonically advise the
Company, or the Company’s designated attorney or agent, of the amount of funds
it has received into its master escrow account.
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1.3. Wire
transfers to the Escrow Agent shall be made as follows:
Citibank
New York, NY
A/C of Sichenzia Xxxx Xxxxxxxx Xxxxxxx
LLP
A/C#: 92883436
ABA#: 021000089
SWIFT
Code: XXXXXX00
REMARK: HAGUE
CORP./[PURCHASERNAME]
1.4
The Company, promptly following being advised by the Escrow Agent that the
Escrow Agent has received the Subscription Amounts from the Purchasers along
with facsimile copies of counterpart signature pages of the Purchase Agreement,
and this Agreement from each Purchaser, shall deliver to the Escrow Agent the
Debentures and the Restricted Shares to be issued to each Purchaser at the
Closing together with:
(a) the
Company’s executed counterpart of the Purchase Agreement;
(b) the
Company’s executed counterpart of this Escrow Agreement;
(c) originally
executed Debentures;
(d) the
Restricted Shares; and
(e) the other
deliverables as per the Purchase Agreement.
1.5 In the
event that the foregoing items are not in the Escrow Agent’s possession within
five (5) Business Days of the Escrow Agent notifying the Company that the Escrow
Agent has custody of the Subscription Amount for the Closing, then each
Purchaser shall have the right to demand the return of their portion of the
Subscription Amount.
1.6 Once the Escrow
Agent receives $1,375,000 in Escrowed Funds, a Release Notice, in the form
attached hereto as Exhibit A, (the
“Release
Notice”) may be executed by the Company and the Purchasers which Release
Notice shall instruct the Escrow Agent to wire the aggregate Subscription
Amounts for the Debentures and the Restricted Shares per the joint disbursement
instructions of the Company and the Purchasers.
1.7 Wire transfers to the
Company shall be made pursuant to written instructions from the Company provided
to the Escrow Agent and attached to the Release Notice on the Closing
Date.
1.8 Upon
receipt by the Escrow Agent of the fully executed Release Notice, the Escrow
Agent shall deliver the Purchase Agreement, the Debentures, the Restricted
Shares, the Escrow Agreement and the other Transaction Documents, to the
appropriate parties.
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ARTICLE
II
MISCELLANEOUS
2.1 No waiver
or any breach of any covenant or provision herein contained shall be deemed a
waiver of any preceding or succeeding breach thereof, or of any other covenant
or provision herein contained. No extension of time for performance
of any obligation or act shall be deemed an extension of the time for
performance of any other obligation or act.
2.2 All
notices or other communications required or permitted hereunder shall be in
writing, and shall be sent as set forth in the Purchase Agreement.
2.3 This
Escrow Agreement shall be binding upon and shall inure to the benefit of the
permitted successors and permitted assigns of the parties hereto.
2.4 This
Escrow Agreement is the final expression of, and contains the entire agreement
between, the parties with respect to the subject matter hereof and supersedes
all prior understandings with respect thereto. This Escrow Agreement
may not be modified, changed, supplemented or terminated, nor may any
obligations hereunder be waived, except by written instrument signed by the
parties to be charged or by its agent duly authorized in writing or as otherwise
expressly permitted herein.
2.5 Whenever
required by the context of this Escrow Agreement, the singular shall include the
plural and masculine shall include the feminine. This Escrow
Agreement shall not be construed as if it had been prepared by one of the
parties, but rather as if all parties had prepared the same. Unless
otherwise indicated, all references to Articles are to this Escrow
Agreement.
2.6 The
parties hereto expressly agree that this Escrow Agreement shall be governed by,
interpreted under and construed and enforced in accordance with the laws of the
State of New York. Any action to enforce, arising out of, or relating
in any way to, any provisions of this Escrow Agreement shall only be brought in
a state or Federal court sitting in New York City.
2.7 The
Escrow Agent’s duties hereunder may be altered, amended, modified or revoked
only by a writing signed by the Company, each Purchaser and the Escrow
Agent.
2.8 The
Escrow Agent shall be obligated only for the performance of such duties as are
specifically set forth herein and may rely and shall be protected in relying or
refraining from acting on any instrument reasonably believed by the Escrow Agent
to be genuine and to have been signed or presented by the proper party or
parties. The Escrow Agent shall not be personally liable for any act
the Escrow Agent may do or omit to do hereunder as the Escrow Agent while acting
in good faith and in the absence of gross negligence, fraud and willful
misconduct, and any act done or omitted by the Escrow Agent pursuant to the
advice of the Escrow Agent’s attorneys-at-law shall be conclusive evidence of
such good faith, in the absence of gross negligence, fraud and willful
misconduct.
2.9 The
Escrow Agent is hereby expressly authorized to disregard any and all warnings
given by any of the parties hereto or by any other person or corporation,
excepting only orders or process of courts of law and is hereby expressly
authorized to comply with and obey orders, judgments or decrees of any
court. In case the Escrow Agent obeys or complies with any such
order, judgment or decree, the Escrow Agent shall not be liable to any of the
parties hereto or to any other person, firm or corporation by reason of such
decree being subsequently reversed, modified, annulled, set aside, vacated or
found to have been entered without jurisdiction.
2.10 The
Escrow Agent shall not be liable in any respect on account of the identity,
authorization or rights of the parties executing or delivering or purporting to
execute or deliver the Purchase Agreement or any documents or papers deposited
or called for thereunder in the absence of gross negligence, fraud and willful
misconduct.
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2.11 The
Escrow Agent shall be entitled to employ such legal counsel and other experts as
the Escrow Agent may deem necessary properly to advise the Escrow Agent in
connection with the Escrow Agent’s duties hereunder, may rely upon the advice of
such counsel, and may pay such counsel reasonable compensation; provided that
the costs of such compensation shall be borne by the Escrow
Agent. The Escrow
Agent has acted as legal counsel for one of the Purchasers and may continue to
act as legal counsel for said Purchaser, from time to time, notwithstanding its
duties as the Escrow Agent hereunder. The Company and the Purchasers
consent to the Escrow Agent in such capacity as legal counsel for said Purchaser
and waives any claim that such representation represents a conflict of interest
on the part of the Escrow Agent. The Purchasers understand that the
Purchasers and the Escrow Agent are relying explicitly on the foregoing
provision in entering into this Escrow Agreement.
2.12 The
Escrow Agent’s responsibilities as escrow agent hereunder shall terminate if the
Escrow Agent shall resign by giving written notice to the Company and the
Purchasers. In the event of any such resignation, the Purchasers and
the Company shall appoint a successor Escrow Agent and the Escrow Agent shall
deliver to such successor Escrow Agent any escrow funds and other documents held
by the Escrow Agent.
2.13 If the
Escrow Agent reasonably requires other or further instruments in connection with
this Escrow Agreement or obligations in respect hereto, the necessary parties
hereto shall join in furnishing such instruments.
2.14 It is
understood and agreed that should any dispute arise with respect to the delivery
and/or ownership or right of possession of the documents or the escrow funds
held by the Escrow Agent hereunder, the Escrow Agent is authorized and directed
in the Escrow Agent’s sole discretion (1) to retain in the Escrow Agent’s
possession without liability to anyone all or any part of said documents or the
escrow funds until such disputes shall have been settled either by mutual
written agreement of the parties concerned by a final order, decree or judgment
or a court of competent jurisdiction after the time for appeal has expired and
no appeal has been perfected, but the Escrow Agent shall be under no duty
whatsoever to institute or defend any such proceedings or (2) to deliver the
escrow funds and any other property and documents held by the Escrow Agent
hereunder to a state or Federal court having competent subject matter
jurisdiction and located in the City of New York in accordance with the
applicable procedure therefore
2.15 The
Company and each Purchaser agree jointly and severally to indemnify and hold
harmless the Escrow Agent and its partners, employees, agents and
representatives from any and all claims, liabilities, costs or expenses in any
way arising from or relating to the duties or performance of the Escrow Agent
hereunder or the transactions contemplated hereby or by the Purchase Agreement
other than any such claim, liability, cost or expense to the extent the same
shall have been determined by final, unappealable judgment of a court of
competent jurisdiction to have resulted from the gross negligence, fraud or
willful misconduct of the Escrow Agent.
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IN
WITNESS WHEREOF, the parties hereto have executed this Escrow Agreement as of
date first written above.
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By:__________________________________________
Name:
Xxxxxxx Xxxxxxx
Title:
Chief Executive Officer
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With
a copy to (which shall not constitute notice):
Xxxxxx
Xxxxx, Esq.
Xxxxx
& Xxxxx, PLLC
0000
Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx,
XX 00000
Facsimile:
(000) 000-0000
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ESCROW
AGENT:
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SICHENZIA
XXXX XXXXXXXX XXXXXXX LLP
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By:__________________________________________
Name: Xxxx
Xxxx, Esq.
Title:
Partner
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[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE
PAGES FOR PURCHASERS FOLLOW]
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[SIGNATURE
PAGE OF PURCHASERS TO HAGUE CORP. ESCROW]
Name of
Purchaser: MKM
Opportunity Master Fund, Ltd.
Signature of
Purchaser:
______________________________________________________
Name of
Authorized
Signatory: Xxxxx
Xxxxxxxx
Title of
Authorized
Signatory: Portfolio
Manager
[SIGNATURE
PAGES CONTINUE]
6
[SIGNATURE
PAGE OF PURCHASERS TO HAGUE CORP. ESCROW]
Name of
Purchaser: Xxxxxx
Xxxxxx Irrevocable Trust u/t/a Dated 06/17/65
Signature of
Purchaser: ______________________________________________________
Name of
Authorized
Signatory: Xxxxxx
Xxxxxx
Title of
Authorized
Signatory: Trustee
Signature of
Purchaser: ______________________________________________________
Name of
Authorized
Signatory: Xxxxxx
Xxxxxx
Title of
Authorized
Signatory: Trustee
[SIGNATURE
PAGES CONTINUE]
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[SIGNATURE
PAGE OF PURCHASERS TO HAGUE CORP. ESCROW]
Name of
Purchaser: MKM
SP1, LLC
Signature of
Purchaser: ______________________________________________________
Name of
Authorized
Signatory: Xxxxx
Xxxxxxxx
Title of
Authorized
Signatory: Portfolio
Manager
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Exhibit
A
RELEASE
NOTICE
The
UNDERSIGNED, pursuant to the Escrow Agreement, dated as of November 4, 2008,
among Hague Corp., the purchasers signatory hereto (each investor a “Purchaser” and
together with all other investors, the “Purchasers”) and
Sichenzia Xxxx Xxxxxxxx Xxxxxxx LLP, as Escrow Agent (the “Escrow Agreement”;
capitalized terms used herein and not defined shall have the meaning ascribed to
such terms in the Escrow Agreement), hereby notify the Escrow Agent that each of
the conditions precedent to the purchase and sale of the Securities set forth in
the Purchase Agreement have been satisfied. The Company and the
Purchasers hereby confirm that all of their respective representations and
warranties contained in the Purchase Agreement remain true and correct and
authorize the release by the Escrow Agent of the funds and documents to be
released at the Closing as described in the Escrow Agreement. This Release
Notice shall not be effective until executed by the Company and the
Purchasers.
This
Release Notice may be signed in one or more counterparts, each of which shall be
deemed an original.
IN
WITNESS WHEREOF, the undersigned have caused this Release Notice to be duly
executed and delivered as of this __ day of October. 2008.
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By:__________________________________________
Name:
Xxxxxxx Xxxxxxx
Title:
Chief Executive Officer
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[SIGNATURE
PAGE OF PURCHASERS TO HAGUE CORP. RELEASE]
Name of
Purchaser: MKM
Opportunity Master Fund, Ltd.
Signature of
Purchaser: ______________________________________________________
Name of
Authorized
Signatory: Xxxxx
Xxxxxxxx
Title of
Authorized
Signatory: Portfolio
Manager
[SIGNATURE
PAGES CONTINUE]
10
[SIGNATURE
PAGE OF PURCHASERS TO HAGUE CORP. RELEASE]
Name of
Purchaser: Xxxxxx
Xxxxxx Irrevocable Trust u/t/a Dated 06/17/65
Signature of
Purchaser: ______________________________________________________
Name of
Authorized
Signatory: Xxxxxx
Xxxxxx
Title of
Authorized
Signatory: Trustee
Signature of
Purchaser: ______________________________________________________
Name of
Authorized
Signatory: Xxxxxx
Xxxxxx
Title of
Authorized
Signatory:
Trustee
[SIGNATURE
PAGES CONTINUE]
11
[SIGNATURE
PAGE OF PURCHASERS TO HAGUE CORP. RELEASE]
Name of
Purchaser: MKM
SP1, LLC
Signature of
Purchaser: ______________________________________________________
Name of
Authorized
Signatory: Xxxxx
Xxxxxxxx
Title of
Authorized
Signatory: Portfolio
Manager
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