ESCROW AGREEMENT
THIS
ESCROW AGREEMENT (this “Agreement”)
is
made as of August , 2006, by and among Xxxxxx Partners LP, a Delaware limited
liability company (the “Purchaser”),
Tricell, Inc., a Nevada corporation (the “Company”), and Sichenzia Xxxx Xxxxxxxx
Xxxxxxx LLP, with an address at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx
Xxxx
00000 (the “Escrow
Agent”).
WITNESSETH:
WHEREAS,
pursuant to a securities purchase agreement (the “Agreement”) dated the date of
this Agreement by and between the Purchaser and the Company, the Company will
purchasing from the Company shares of its series A preferred stock and common
stock purchase warrants (the “Securities”); and
WHEREAS,
the Company and the Purchaser have requested that the Escrow Agent hold the
purchase price of the Securities 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
Purchaser is purchasing the Securities for a purchase price of $1,700,000.
Payment shall be made to the Escrow Agent by wire
transfers to the Escrow Agent shall be made as follows:
HSBC
Bank
USA
000
Xxxxx
Xxxxxx
Xxx
Xxxx,
XX 00000
A/C
of
Sichenzia Xxxx Xxxxxxxx Xxxxxxx LLP, XXXX
A/C#
629034125
ABA#
000000000
Remark:
XXXXXX
—
TRICELL
1.2. The
Escrow Agent shall advise the Company upon its receipt of such
funds.
1.3. The
Escrow Agent shall deliver the funds in accordance with Exhibit A to this
Agreement, upon receipt of authorization from Purchaser, which may be by e-mail,
to release the funds.
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 to the addresses set forth on the signature page of this
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 (who may be attorneys who are partners or members of,
of counsel to or employed by the Escrow Agent) 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 this Agreement or any documents or papers deposited
or
called for hereunder in the absence of gross negligence, fraud and willful
misconduct.
2.11 The
Escrow Agent shall be entitled to employ such legal counsel (including attorneys
who are partners or members of, of counsel to or employed by the Escrow Agent)
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.
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
Purchaser. In the event of any such resignation, the Purchaser 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 stock certificates or other
documents or the escrow funds held by the Escrow Agent hereunder or in the
event
that the Escrow Agent shall, for any reason, be uncertain as to its obligations
under this Agreement, 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 stock certificates and other
documents and the escrow funds and certificates for the Shares 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
stock certificates or other documents held by the Escrow Agent hereunder
to a
state or Federal court having competent subject matter jurisdiction and located
in the City, County and State of New York in accordance with the applicable
procedure therefore
2.15 The
Company and Purchaser agree jointly and severally to indemnify and hold harmless
the Escrow Agent and its partners, employees, agents, counsel 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 Subscription
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.
[Signatures
on following page]
IN
WITNESS WHEREOF, the parties hereto have executed this Escrow Agreement as
of
date first written above.
| Purchaser: |
000
Xxxxx Xxxxxx, 00xx
xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
|
|||
| XXXXXX PARTNERS, LP | ||||
| By: | Xxxxxx Capital Advisors, LLC, its General Partner | |||
| By: | /s/ Xxxxxx Xxxxxx | |||
|
Xxxxxx
Xxxxxx Xxxxxx
President
|
||||
| TRICELL, INC. | ||||
| By: | /s/ Xxxxx Xxxx |
0
Xxxxxx Xxxxx
Xxxxxxx
Xxxxxx-xx-Xxxxx
Xxxxxxxxxxxxx
XX0 0XX
|
||
|
Xxxxx
Xxxx, CEO
|
United
Kingdom
|
|||
| SICHENZIA XXXX XXXXXXXX XXXXXXX LLP | ||||
| By: | /s/ Xxxxxx Xxxx | |||
|
Name:
Xxxxxx Xxxx
Title:
Partner
|
||||
Schedule
A
|
Name
|
Payment
|
|||
|
Xxxxx
Xxxx
|
$
|
337,250.00
|
||
|
Xxxx
Xxxxxxx
|
337,250.00
|
|||
|
Xxxx
Xxxxxxx
|
337,250.00
|
|||
|
Xxxx
Xxxxxxx
|
337,250.00
|
|||
|
Sichenzia
Xxxx Xxxxxxxx Xxxxxxx LLP
|
96,000.00
|
|||
|
Xxxxxx
Partners LP
|
85,000.00
|
|||
|
Westcap
|
170,000.00
|
|||
|
$
|
1,700,000.00
|
|||
