EXHIBIT 10.17
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this "Agreement") is made and entered into as of
July 7, 2003 by BSI2000, INC., a Delaware corporation (the "Company"); CORNELL
CAPITAL PARTNERS, LP, a Delaware limited partnership (the "Investor"); and LAW
OFFICES OF ERIC S. HUTNER & ASSOCIATES (the "Investor's Counsel" and or the
"Escrow Agent").
BACKGROUND
WHEREAS, the Company and the Investor have entered into an Equity Line of
Credit Agreement (the "Equity Line of Credit Agreement") dated as of the date
hereof, pursuant to which the Investor will purchase the Company's Common Stock,
par value $0.001 per share (the "Common Stock"), at a price per share equal to
the Purchase Price, as that term is defined in the Equity Line of Credit
Agreement, for an aggregate price of up to Fifteen Million Dollars
($15,000,000). The Equity Line of Credit Agreement provides that on each Advance
Date the Investor, as that term is defined in the Equity Line of Credit
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 Equity Line of Credit 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 Equity Line of Credit 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 Equity Line of Credit 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.
b. The Investor and the Company hereby appoint the Escrow Agent to
serve as the holder of the shares of the 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 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 to 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: BSI2000, Inc./Cornell Capital Partners, LP. The Investor will wire
funds to the account of the Escrow Agent as follows:
Bank: Citibank
Routing #: 021000089
Account #: 95758251
Name on Account: Eric S. Hutner, Esq. Attorney Escrow Account
Name on Sub-Account: BSI2000, Inc./Cornell Capital Partners, LP
Escrow Account
Reference Sub-Account #: _________
Note: Only wire transfers shall be accepted.
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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:
Account #:
DTC #:
Name on Account: Eric S. Hutner, Esq. Attorney 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 Equity Line of Credit Agreement, the Escrow Agent shall notify the Company
and the Investor. The Escrow Agent will continue to hold such funds and Common
Stock until the Investor and Company execute and deliver a Joint Written
Direction directing the Escrow Agent (1) to disburse the Escrow Funds, at which
time the Escrow Agent shall wire the Escrow Funds to the Company, and (2) to
release via D.W.A.C. to the Investor the shares of the Company's Common Stock.
In disbursing such funds and releasing such shares of Common Stock, Escrow Agent
is authorized to rely upon such Joint Written Direction from the Company and the
Investor 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 has
on file.
b. 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.
c. 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
Agreement. 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 Equity Line of Credit 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. 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
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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 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
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, 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.
b. 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.
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
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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
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 the Escrow Funds, any account in which Escrow Funds are deposited, this
Agreement or the Equity Line of Credit 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.
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 it, without
the need for appeal or other action; and if the Escrow Agent complies with any
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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 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. 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
Investor 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 and 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 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 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
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resignation or removal of the Escrow Agent shall be independent of any
obligation of Escrow Agent.
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 Equity
Line of Credit 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.
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. Mark A. Angelo 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.
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b. The Company makes the following representations and warranties to
Escrow Agent, the Investor and Investor's Counsel:
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
Escrow Agreement is in accordance with the Equity Line of Credit 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. Jack Harper 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.
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 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 such court lacks federal subject matter jurisdiction,
the parties agree that the Superior Court of New Jersey, Chancery Division,
sitting in Hudson 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
writing and shall be deemed to have been validly served, given or delivered (a)
five (5) days after deposit in the United States mails, by certified mail with
return receipt requested and postage prepaid, (b) when delivered personally, (c)
one (1) day after delivery to any overnight courier with proper instructions to
deliver by the next business day, or (d) when transmitted by facsimile
transmission, and addressed to the party to be notified as follows:
If to Investor, to: Cornell Capital Partners, LP
101 Hudson Street - Suite 3606
Jersey City, New Jersey 07302
Attention: Mark Angelo
Facsimile: (201) 985-8266
If to Escrow Agent, to: Law Offices of Eric S. Hutner & Associates
1065 Avenue of the Americas, Suite 2100
New York, New York 10018
Attention: Eric Hutner, Esq.
Telephone: (212) 391-9235
Facsimile: (212) 391-9236
If to Company, to: BSI2000, Inc.
12600 W. Colfax Ave., B410
Lakewood, Colorado 80215
Attention: Jack Harper, President
Telephone: (303) 231-9095
Facsimile: (303) 231-9002
With a copy to: Kirkpatrick & Lockhart LLP
201 South Biscayne Boulevard - Suite 2000
Miami, FL 33131-2399
Attention: Clayton E. Parker, Esq.
Telephone: (305) 539-3300
Facsimile: (305) 358-7095
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,
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 Delaware without giving effect
to the conflict of laws principles thereof.
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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 Equity
Line of Credit 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.
BSI2000, INC.
By: /s/ Jack Harper
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Name: Jack Harper
Title: President
CORNELL CAPITAL PARTNERS, LP
By: Yorkville Advisors, LLC
Its: General Partner
By: /s/ Mark A. Angelo
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Name: Mark A. Angelo
Title: Portfolio Manager
LAW OFFICES OF ERIC S. HUTNER & ASSOCIATES
By: /s/ Eric s. Hutner
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Name: Eric S. Hutner, Esq.
Title: Principal
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