EXHIBT 10.6
ESCROW AGREEMENT
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THIS ESCROW AGREEMENT (this "Agreement") is made and entered into as of
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November ___, 2005 NS8 CORPORATION, a Delaware corporation (the "Company"); the
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Buyer(s) listed on the Securities Purchase Agreement, dated the date hereof
(also referred to as the "Investor(s)"), and XXXXX XXXXXXXX, ESQ., as Escrow
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Agent hereunder (the "Escrow Agent").
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BACKGROUND
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WHEREAS, the Company and the Investor(s) have entered into a Securities
Purchase Agreement (the "Securities Purchase Agreement"), dated as of the date
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hereof, pursuant to which the Company proposes to sell secured convertible
debentures (the "Convertible Debentures") which shall be convertible into the
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Company's Common Stock, par value $0.0001 per share (the "Common Stock"), for a
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total purchase price of up to Three Million One Hundred Sixty Three Thousand
Four Hundred Thirty Dollars ($3,163,430). The Securities Purchase Agreement
provides that the Investor(s) shall deposit the purchase amount in a segregated
escrow account to be held by Escrow Agent in order to effectuate a disbursement
to the Company at a closing to be held as set forth in the Securities Purchase
Agreement (the "Closing").
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WHEREAS, the Company intends to sell Convertible Securities (the
"Offering").
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WHEREAS, Escrow Agent has agreed to accept, hold, and disburse the funds
deposited with it in accordance with the terms of this Agreement.
WHEREAS, in order to establish the escrow of funds and to effect the
provisions of the Securities Purchase 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
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when used herein:
a. "Escrow Funds" shall mean the funds deposited with Escrow Agent
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pursuant to this Agreement.
b. "Joint Written Direction" shall mean a written direction executed by
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the Investor(s) 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. "Escrow Period" shall begin with the commencement of the Offering
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and shall terminate upon the earlier to occur of the following dates:
(i) The date upon which Escrow Agent confirms that it has received in
the Escrow Account all of the proceeds of the sale of the Convertible
Debentures;
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(ii) The expiration of twenty (20) days from the date of commencement
of the Offering (unless extended by mutual written agreement between the Company
and the Investor(s) with a copy of such extension to Escrow Agent); or
(iii) The date upon which a determination is made by the Company and
the Investor(s) to terminate the Offering prior to the sale of all the
Convertible Debentures.
During the Escrow Period, the Company and the Investor(s) are aware that
they are not entitled to any funds received into escrow and no amounts deposited
in the Escrow Account shall become the property of the Company or the
Investor(s) or any other entity, or be subject to the debts of the Company or
the Investor(s) or any other entity.
2. Appointment of and Acceptance by Escrow Agent. The Investor(s) and
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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.
a. The Company hereby acknowledges that the Escrow Agent is general
counsel to the Investor(s), a partner in the general partner of the Investor(s),
and counsel to the Investor(s) in connection with the transactions contemplated
and referred herein. The Company agrees that in the event of any dispute
arising in connection with this Escrow Agreement or otherwise in connection with
any transaction or agreement contemplated and referred herein, the Escrow Agent
shall be permitted to continue to represent the Investor(s) and the Company will
not seek to disqualify such counsel.
3. Creation of Escrow Funds. On or prior to the date of the
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commencement of the Offering, the parties shall establish an escrow account with
the Escrow Agent, which escrow account shall be entitled as follows: NS8
Corporation/Cornell Capital Partners, LP Escrow Account for the deposit of the
Escrow Funds. The Investor(s) will instruct subscribers to wire funds to the
account of the Escrow Agent as follows:
Bank: Wachovia, N.A. of New Jersey
Routing #: 000000000
Account #: 2000014931134
Name on Account: Xxxxx Xxxxxxxx Attorney Trust Account
Name on Sub-Account: NS8 Corporation/Cornell Capital Partners, LP Escrow
Account
4. Deposits into the Escrow Account. The Investor(s) agrees that they
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shall promptly deliver funds for the payment of the Convertible Debentures to
Escrow Agent for deposit in the Escrow Account.
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5. Disbursements from the Escrow Account.
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a. The Escrow Agent will continue to hold such funds until Cornell
Capital Partners, LP on behalf of the Investor(s) and Company execute a Joint
Written Direction directing the Escrow Agent to disburse the Escrow Funds
pursuant to Joint Written Direction signed by the Company and the Investor(s).
In disbursing such funds, Escrow Agent is authorized to rely upon such Joint
Written Direction from the Company and the Investor(s) and may accept any
signatory from the Company listed on the signature page to this Agreement and
any signature from the Investor(s) that the Escrow Agent already has on file.
b. In the event Escrow Agent does not receive the amount of the Escrow
Funds from the Investor(s), Escrow Agent shall notify the Company and the
Investor(s). Upon receipt of payment instructions from the Company, Escrow
Agent shall refund to each subscriber without interest the amount received from
each Investor(s), without deduction, penalty, or expense to the subscriber. The
purchase money returned to each subscriber shall be free and clear of any and
all claims of the Company, the Investor(s) or any of their creditors.
c. In the event Escrow Agent does receive the amount of the Escrow
Funds prior to expiration of the Escrow Period, in no event will the Escrow
Funds be released to the Company until such amount is received by Escrow Agent
in collected funds. For purposes of this Agreement, the term "collected funds"
shall mean all funds received by Escrow Agent which have cleared normal banking
channels and are in the form of cash.
6. Collection Procedure. Escrow Agent is hereby authorized to deposit
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the proceeds of each wire in the Escrow Account.
7. Suspension of Performance: Disbursement Into Court. If at any time,
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there shall exist any dispute between the Company and the Investor(s) with
respect to holding or disposition of any portion of the Escrow Funds 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:
a. 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 or until a successor Escrow Agent shall be appointed (as the case may be);
provided however, Escrow Agent shall continue to invest the Escrow Funds in
accordance with Section 8 hereof; and/or
b. petition (by means of an interpleader action or any other
appropriate method) any court of competent jurisdiction in any venue convenient
to Escrow Agent, for instructions with respect to such dispute or uncertainty,
and to the extent required by law, pay into such court, for holding and
disposition in accordance with the instructions of such court, all funds held by
it in the Escrow Funds, after deduction and payment to Escrow Agent of all fees
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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.
c. Escrow Agent shall have no liability to the Company, the
Investor(s), or any person with respect to any such suspension of performance or
disbursement into court, specifically including any liability or claimed
liability that may arise, or be alleged to have arisen, out of or as a result of
any delay in the disbursement of funds held in the Escrow Funds or any delay in
with respect to any other action required or requested of Escrow Agent.
8. Investment of Escrow Funds. Escrow Agent shall deposit the Escrow
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Funds in a non-interest bearing account.
If Escrow Agent has not received a Joint Written Direction at any time that
an investment decision must be made, Escrow Agent shall maintain the Escrow
Funds, or such portion thereof, as to which no Joint Written Direction has been
received, in a non-interest bearing account.
9. Resignation and Removal of Escrow Agent. Escrow Agent may resign
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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(s) 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.
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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
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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 herein, which Escrow Agent shall
in good faith believe to be genuine, to have been signed or presented by the
person or parties purporting to sign the same and conform to the provisions of
this Agreement. In no event shall Escrow Agent be liable for incidental,
indirect, special, and consequential or punitive damages. Escrow Agent shall
not be obligated to take any legal action or commence any proceeding in
connection with the Escrow Funds, any account in which Escrow Funds are
deposited, this Agreement or the Purchase Agreement, or to appear in, prosecute
or defend any such legal action or proceeding. Escrow Agent may consult legal
counsel selected by it in any 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(s) jointly and severally shall promptly
pay, upon demand, the reasonable fees and expenses of any such counsel.
b. 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 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, 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 Escrow Agent complies with any such order, writ,
judgment or decree, it shall not be liable to any of the parties hereto or to
any other person or entity by reason of such compliance even though such order,
writ judgment or decree may be subsequently reversed, modified, annulled, set
aside or vacated.
11. Indemnification of Escrow Agent. From and at all times after the
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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
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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,
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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 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(s) hereunder in writing, and the Investor(s)
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(s) and/or the Company shall be required to pay such fees and expense if
(a) the Investor(s) or the Company agree to pay such fees and expenses, or (b)
the Investor(s) 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(s) 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 the Indemnified Party, the Company and/or the Investor(s) and the
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(s). The Investor(s) and the
Company shall be jointly and severally liable to pay fees and expenses of
counsel pursuant to the preceding sentence, except that any obligation to pay
under clause (a) shall apply only to the party so agreeing. All such fees and
expenses payable by the Company and/or the Investor(s) pursuant to the foregoing
sentence shall be paid from time to time as incurred, both in advance of and
after the final disposition of such action or claim. The obligations of the
parties under this section shall survive any termination of this Agreement, and
resignation or removal of the Escrow Agent shall be independent of any
obligation of Escrow Agent.
The parties agree that neither payment by the Company or the Investor(s) of
any claim by Escrow Agent for indemnification hereunder shall impair, limit,
modify, or affect, as between the Investor(s) and the Company, the respective
rights and obligations of Investor(s), on the one hand, and the Company, on the
other hand.
12. Expenses of Escrow Agent. Except as set forth in Section 11 the
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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. All of the compensation and
reimbursement obligations set forth in this Section shall be payable by the
Company, upon demand by Escrow Agent. The obligations of the Company under this
Section shall survive any termination of this Agreement and the resignation or
removal of Escrow Agent.
13. Warranties.
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a. The Investor(s) makes the following representations and warranties
to Escrow Agent:
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(i) The Investor(s) 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(s), including any necessary approval of the limited partner of the
Investor(s) or necessary corporate approval, as applicable, has been executed by
duly authorized officers of the Investor(s), enforceable in accordance with its
terms.
(iii) The execution, delivery, and performance of the Investor(s) of
this Agreement will not violate, conflict with, or cause a default under any
agreement of limited partnership of Investor(s) or the articles of incorporation
or bylaws of the Investor(s) (as applicable), any applicable law or regulation,
any court order or administrative ruling or degree to which the Investor(s) is a
party or any of its property is subject, or any agreement, contract, indenture,
or other binding arrangement.
(iv) Xxxx Xxxxxx has been duly appointed to act as the representative
of the Investor(s) hereunder and has full power and authority to execute,
deliver, and perform this Escrow 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)'s representative under
this Agreement, all without further consent or direction form, or notice to, the
Investor(s) or any other party.
(v) No party other than the parties hereto and the Investor(s)s 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(s)
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
the Escrow Agent:
(i) The Company is a corporation duly organized, validly existing, and
in good standing under the laws of the State of Delaware and has full power and
authority to execute and deliver this Agreement and to perform its obligations
hereunder.
(ii) This Agreement has been duly approved by all necessary corporate
action of the Company, including any necessary shareholder approval, has been
executed by duly authorized officers of the Company, enforceable in accordance
with its terms.
(iii) The execution, delivery, and performance by the Company of this
Agreement is in accordance with the Securities Purchase 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
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other binding arrangement, including without limitation to the Securities
Purchase Agreement, to which the Company is a party.
(iv) Xxxxxxx Xxxx 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 and the Investor(s)s 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 Company contained
herein are true and complete as of the date hereof and will be true and complete
at the time of any disbursement from the Escrow Funds.
14. Consent to Jurisdiction and Venue. In the event that any party
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hereto commences a lawsuit or other proceeding relating to or arising from this
Agreement, the parties hereto agree that the United States District Court for
the District of New Jersey shall have the sole and exclusive jurisdiction over
any such proceeding. If all such courts lack federal subject matter
jurisdiction, the parties agree that the Superior Court Division of New Jersey,
Chancery Division of Xxxxxx County shall have sole and exclusive jurisdiction.
Any of these courts shall be proper venue for any such lawsuit or judicial
proceeding and the parties hereto waive any objection to such venue. The
parties hereto consent to and agree to submit to the jurisdiction of any of the
courts specified herein and agree to accept the service of process to vest
personal jurisdiction over them in any of these courts.
15. Notice. All notices and other communications hereunder shall be in
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writing and shall be deemed to have been validly served, given or delivered five
(5) days after deposit in the United States mails, by certified mail with return
receipt requested and postage prepaid, when delivered personally, one (1) day
delivered to any overnight courier, or when transmitted by facsimile
transmission and upon confirmation of receipt and addressed to the party to be
notified as follows:
If to Investor(s), to: Cornell Capital Partners, LP
000 Xxxxxx Xxxxxx - Xxxxx 0000
Xxxxxx Xxxx, XX 00000
Attention: Xxxx Xxxxxx
Portfolio Manager
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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If to Escrow Agent, to: Xxxxx Xxxxxxxx, Esq.
000 Xxxxxx Xxxxxx - Xxxxx 0000
Xxxxxx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Company, to: NS8 Corporation
000 Xxxxxxxxxx Xxxxxx - Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to: McGuireWoods, LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Or to such other address as each party may designate for itself by like notice.
16. Amendments or Waiver. This Agreement may be changed, waived,
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discharged or terminated only by a writing signed by the parties hereto. 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
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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
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in accordance with the internal laws of the State of New Jersey without giving
effect to the conflict of laws principles thereof.
19. Entire Agreement. This Agreement constitutes the entire Agreement
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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
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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(s),
the Company, or the Escrow Agent.
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21. Execution of Counterparts. This Agreement and any Joint Written
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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 disbursement of all
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amounts in the Escrow Funds pursuant to Joint Written Directions or the
disbursement of all amounts in the Escrow Funds 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.
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IN WITNESS WHEREOF the parties have hereunto set their hands and seals the
day and year above set forth.
NS8 Corporation
By: /s/ Xxxxxxx Xxxx
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Name: Xxxxxxx Xxxx
Title: CEO
Cornell Capital Partners, LP
By: Yorkville Advisors, LLC
Its: General Partner
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
Title: Portfolio Manager
Escrow Agent
By: /s/ Xxxxx Xxxxxxxx, Esq.
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Name: Xxxxx Xxxxxxxx, Esq.
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