Exhibit 10.3
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this "Agreement") is made and entered into as of
March __, 2004 by AMERICAN CONSOLIDATED MANAGEMENT GROUP INC., a Utah
corporation (the "Company"); CORNELL CAPITAL PARTNERS, LP, a Delaware limited
partnership (the "Investor"); and XXXXXX XXXXXXXX LLP (the "Escrow Agent").
BACKGROUND
WHEREAS, the Company and the Investor have entered into an Standby Equity
Distribution Agreement (the "Standby Equity Distribution Agreement") dated as of
the date hereof, pursuant to which the Investor will purchase the Company's
Common Stock, par value $.01 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 Ten Million Dollars
($10,000,000). 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, Escrow Agent has 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 this Agreement.
WHEREAS, in order to establish the escrow of funds and shares to effect the
provisions of the Standby Equity Distribution Agreement, the parties hereto have
entered into this Agreement.
NOW THEREFORE, in consideration of the foregoing, it is hereby agreed as
follows:
1. Definitions. The following terms shall have the following meanings when used
herein:
a. "Escrow Funds" shall mean the 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.
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b. 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, other
than for acts of gross negligence or willful acts of misconduct by the
Escrow Agent, 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: American Consolidated Management Group
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 #: 2020000659170
Name on Account: Xxxxxx Xxxxxxxx LLP as Escrow Agent
Name on Sub-Account: American Consolidated Management Group Inc./Cornell
Capital Partners, LP Escrow account
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 #: 56797702
DTC #: 0632
Name on Account: Xxxxxx Xxxxxxxx LLP 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
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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 Agent. In the event the Escrow Agent
has not received the Escrow Funds pursuant to an Advance Notice from
the Company, in no event will the Common Stock to be purchased by the
Investor be released to the Investor until such Escrow Funds are
received by the Escrow Agent. 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.
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, to Escrow Agent's sole satisfaction, the
proper disposition of any portion of the Escrow Funds or Escrow
Agent's proper actions with respect to its obligations hereunder, or
if the parties have not within thirty (30) days of the furnishing by
Escrow Agent of a notice of resignation pursuant to Section 9 hereof,
appointed a successor Escrow Agent to act hereunder, then Escrow Agent
may, in its sole discretion, take either or both of the following
actions:
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 Escrow Agent oruntil 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) the Superior Courts of the State of New
Jersey sitting Xxxxxx County and/or the United States Federal
District Court for the District of New Jersey sitting in Newark
New Jersey, 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 other than for reasons of gross negligence or willful
misconduct.
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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) and 13b.(iv), below, jointly shall appoint a successor Escrow
Agent hereunder, which shall be a commercial bank, trust company or other
financial institution with a combined capital and surplus in excess of
$10,000,000.00. Upon the acceptance in writing of any appointment of Escrow
Agent hereunder by a successor Escrow Agent, such successor Escrow Agent
shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Escrow Agent, and the retiring Escrow
Agent shall be discharged from its duties and obligations under this Escrow
Agreement, but shall not be discharged from any liability for actions taken
as Escrow Agent hereunder prior to such succession. After any retiring
Escrow Agent's resignation or removal, the provisions of this Escrow
Agreement shall inure to its benefit as to any actions taken or omitted to
be taken by it while it was Escrow Agent under this Escrow Agreement. The
retiring Escrow Agent shall transmit all records pertaining to the Escrow
Funds and shall pay all funds held by it in the Escrow Funds to the
successor Escrow Agent, after making copies of such records as the retiring
Escrow Agent deems advisable and after deduction and payment to the
retiring Escrow Agent of all fees and expenses (including court costs and
attorneys' fees) payable to, incurred by, or expected to be incurred by the
retiring Escrow Agent in connection with the performance of its duties and
the exercise of its rights hereunder.
10. Liability of Escrow Agent.
a. Escrow Agent shall have no liability or obligation with respect to the
Escrow Funds except for Escrow Agent's willful misconduct or gross
negligence. Escrow Agent's sole responsibility shall be for the
safekeeping, investment, and disbursement of the Escrow Funds in
accordance with the terms of this Agreement. Escrow Agent shall have
no implied duties or obligations and shall not be charged with
knowledge or notice or any fact or circumstance not specifically set
forth herein. Escrow Agent may rely upon any instrument, not only as
to its due execution, validity and effectiveness, but also as to the
truth and accuracy of any information contained 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
to conform to the provisions of this Agreement. In no event shall
Escrow Agent be liable for incidental, indirect, special, and
consequential or punitive damages other than for reasons of gross
negligence or willful misconduct. 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.
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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 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 Escrow Agent, without the need for appeal or other action; and if
the Escrow Agent complies with any such order, writ, judgment or
decree in accordance with it's legal counsel's interpretation of said
order, writ 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 .
a. 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 primarily 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 and the Investor 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 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 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 pursuant to the foregoing sentence shall
be paid from time to time as incurred, both in advance of and after
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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.
b. From and at all times after the date of this Agreement, the Escrow
Agent shall, to the fullest extent permitted by law and to the extent
provided herein, indemnify and hold harmless the Company and the
Investor and each director, officer, employee, attorney, agent and
affiliate of Company and the Investor (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 primarily 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 Escrow Agent in writing,
and the Escrow Agent may 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 in the
defense thereof, and the fees and expenses of such counsel shall be
paid by such Indemnified Party, except that the Escrow Agent may be
required to pay such fees and expense if (a) Escrow Agent agrees to
pay such fees and expenses, or (b) the Escrow Agent 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 Escrow Agent is 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 Escrow Agent 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 Escrow Agent. The Escrow Agent shall be 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 Escrow Agent 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.
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.
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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.
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 Utah, 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, and is 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. Xxxxxxxx Xxxxxx has been duly appointed to act as the
representative of the Company hereunder and has full power and
authority to execute, deliver, and perform this Agreement, to
execute and deliver any Joint Written Direction, to amend, modify
or waive any provision of this Agreement and to take all other
actions as the Company's Representative under this Agreement, all
without further consent or direction from, or notice to, the
Company or any other party.
v. No party other than the parties hereto 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.
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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.
This Agreement shall be governed by and interpreted in accordance with the
laws of the State of Utah without regard to the principles of conflict of
laws. The parties further agree that any action between them shall be heard
in Xxxxxx County, New Jersey, and expressly consent to the jurisdiction and
venue of the Superior Court of New Jersey, sitting in Xxxxxx County, New
Jersey and the United States District Court of New Jersey, sitting in
Newark, New Jersey, for the adjudication of any civil action asserted
pursuant to this paragraph. 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. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE,
AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE
HEREUNDER OR IN CONNECTION HEREWITH OR ARISING OUT OF THIS AGREEMENT OR ANY
TRANSACTION CONTEMPLATED HEREBY.
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 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: Xxxxxx Xxxxxxxx LLP
0000 Xxxxxx Xxxxxx - Xxxxx 000
Xxxxx, Xxx Xxxxxx 00000
Attention: Xxxxx Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
If to Company, to: American Consolidated Management Group Inc.
00 Xxxx Xxxxxx Xxxxx Xx - Xxxxx X
Xxxxxx, XX 00000
Attention: Xxxxxxxx Xxxxxx
Facsimile: (000) 000-0000
With a copy to: Xxxxxxx Xxxxxx, Esq.
0000 Xxxx Xxxx Xxxxx - Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxxxxx 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.
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16. 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.
17. Severability.
To the extent any provision of this Agreement is prohibited by or invalid
under applicable law, such provision shall be ineffective to the extent of
such prohibition, or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
18. Governing Law.
This Agreement shall be construed and interpreted in accordance with the
internal laws of the State of Utah without giving effect to the conflict of
laws principles thereof.
19. Entire Agreement.
This Agreement constitutes the entire Agreement between the parties
relating to the holding, investment, and disbursement of the Escrow Funds
and sets forth in their entirety the obligations and duties of the Escrow
Agent with respect to the Escrow Funds.
20. Binding Effect.
All of the terms of this Agreement, as amended from time to time, shall be
binding upon, inure to the benefit of and be enforceable by the respective
heirs, successors and assigns of the Investor, the Company, or the Escrow
Agent.
21. Execution of Counterparts.
This Agreement and any Joint Written Direction may be executed in counter
parts, which when so executed shall constitute one and same agreement or
direction.
22. Termination.
Upon the first to occur of the 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.
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IN WITNESS WHEREOF the parties have hereunto set their hands and seals the
day and year above set forth.
AMERICAN CONSOLIDATED MANAGEMENT GROUP INC.
By: /s/ Xxxxxxxx Xxxxxx
----------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Chief Executive Officer
CORNELL CAPITAL PARTNERS, LP
By: Yorkville Advisors, LLC
Its: General Partner
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Portfolio Manager
XXXXXX XXXXXXXX LLP
By: /s/ Xxxxx Xxxxxxxx
----------------------------------
Name: Xxxxx Xxxxxxxx, Esq.
Title: Partner
10
