EXHIBIT 10.4
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this "Agreement") is made as of March
28, 2005, by and among Roaming Messenger, Inc. a Nevada corporation (the
"Company"), Wings Fund, Inc., a Nevada corporation (the "Purchaser"), and
Sichenzia Ross Friedman Ference LLP, with an address at 1065 Avenue of the
Americas, New York, New York 10036 (the "Escrow Agent"). CAPITALIZED TERMS USED
BUT NOT DEFINED HEREIN SHALL HAVE THE MEANINGS SET FORTH IN THE SECURITIES
PURCHASE AGREEMENT REFERRED TO IN THE FIRST RECITAL.
W I T N E S S E T H:
WHEREAS, the Purchaser will be purchasing from the Company, in
the aggregate, up to $500,000 in the aggregate, of the common stock, $0.001 par
value per share (the "Common Stock") of the Company as set forth in the
Securities Purchase Agreement (the "Purchase Agreement") dated the date hereof
between the Purchaser and the Company, which securities will be issued under the
terms contained herein and in the Purchase Agreement; and
WHEREAS, it is intended that the purchase of the securities be
consummated in accordance with the requirements set forth in Regulation D
promulgated under the Securities Act of 1933, as amended; and
WHEREAS, the Company and the Purchaser have requested that the
Escrow Agent hold the Subscription Amounts in escrow until the Escrow Agent has
received the Release Notice in the form attached hereto from the Company and the
Purchaser;
NOW, THEREFORE, in consideration of the covenants and mutual
promises contained herein and other good and valuable consideration, the receipt
and legal sufficiency of which are hereby acknowledged and intending to be
legally bound hereby, the parties agree as follows:
ARTICLE 1
TERMS OF THE ESCROW
1.1. The parties hereby agree to establish an escrow account with the
Escrow Agent whereby the Escrow Agent shall hold the funds for the purchase of
up to $500,000, in the aggregate, of shares of Common Stock as contemplated by
the Purchase Agreement.
1.2. Upon the Escrow Agent's receipt of the Subscription Amount for the
Closing into its master escrow account, together with executed counterparts of
this Agreement, the Purchase Agreement and the Registration Rights Agreement it
shall telephonically advise the Company, or the Company's designated attorney or
agent, of the amount of funds it has received into its master escrow account.
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1.3. Wire transfers to the Escrow Agent shall be made as follows:
HSBC Bank USA
950 Third Avenue
New York, NY 10022
A/C of Sichenzia Ross Friedman Ference LLP, IOLA
A/C# 629034125
ABA# 021001088
1.4 The Company, promptly following being advised by the Escrow Agent
that the Escrow Agent has received the Subscription Amount for the Closing along
with facsimile copies of the stock certificate representing the Common Stock
purchased by Purchaser and counterpart signature pages of the Purchase
Agreement, the Registration Rights Agreement, the Periodic Equity Investment
Agreement and this Agreement from Purchaser, shall deliver to the Escrow Agent:
(a) the Company's executed counterpart of the Purchase Agreement;
(b) the Company's executed counterpart of the Registration Rights
Agreement;
(c) the Company's original executed counterpart of this Escrow
Agreement;
(d) the Company's original executed counterpart of the Periodic
Investment Agreement; and
(d) a copy of the certificate representing the shares of Common Stock
to be issued to the Purchaser.
1.5 In the event that the foregoing items are not in the Escrow Agent's
possession within five (5) Trading Days of the Escrow Agent notifying the
Company that the Escrow Agent has custody of the Subscription Amount for the
Closing, then Purchaser shall have the right to demand the return of the
Subscription Amount.
1.6 Once the Escrow Agent receives a Release Notice, in the form
attached hereto as Exhibit X, (the "Release Notice") executed by the Company and
Purchaser, it shall wire the escrow funds pursuant to the Release Notice.
1.7 Wire transfers to the Company shall be made pursuant to written
instructions from the Company provided to the Escrow Agent on the Closing Date.
1.8 Once the funds (as set forth above) have been sent per the
Company's instructions, the Company shall issue the Common Stock to the
Investor.
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ARTICLE II
MISCELLANEOUS
2.1 No waiver or any breach of any covenant or provision herein
contained shall be deemed a waiver of any preceding or succeeding breach
thereof, or of any other covenant or provision herein contained. No extension of
time for performance of any obligation or act shall be deemed an extension of
the time for performance of any other obligation or act.
2.2 All notices or other communications required or permitted hereunder
shall be in writing, and shall be sent as set forth in the Purchase Agreement.
2.3 This Escrow Agreement shall be binding upon and shall inure to the
benefit of the permitted successors and permitted assigns of the parties hereto.
2.4 This Escrow Agreement is the final expression of, and contains the
entire agreement between, the parties with respect to the subject matter hereof
and supersedes all prior understandings with respect thereto. This Escrow
Agreement may not be modified, changed, supplemented or terminated, nor may any
obligations hereunder be waived, except by written instrument signed by the
parties to be charged or by its agent duly authorized in writing or as otherwise
expressly permitted herein.
2.5 Whenever required by the context of this Escrow Agreement, the
singular shall include the plural and masculine shall include the feminine. This
Escrow Agreement shall not be construed as if it had been prepared by one of the
parties, but rather as if all parties had prepared the same. Unless otherwise
indicated, all references to Articles are to this Escrow Agreement.
2.6 The parties hereto expressly agree that this Escrow Agreement shall
be governed by, interpreted under and construed and enforced in accordance with
the laws of the State of New York. Any action to enforce, arising out of, or
relating in any way to, any provisions of this Escrow Agreement shall only be
brought in a state or Federal court sitting in New York City.
2.7 The Escrow Agent's duties hereunder may be altered, amended,
modified or revoked only by a writing signed by the Company, Purchaser and the
Escrow Agent.
2.8 The Escrow Agent shall be obligated only for the performance of
such duties as are specifically set forth herein and may rely and shall be
protected in relying or refraining from acting on any instrument reasonably
believed by the Escrow Agent to be genuine and to have been signed or presented
by the proper party or parties. The Escrow Agent shall not be personally liable
for any act the Escrow Agent may do or omit to do hereunder as the Escrow Agent
while acting in good faith and in the absence of gross negligence, fraud and
willful misconduct, and any act done or omitted by the Escrow Agent pursuant to
the advice of the Escrow Agent's attorneys-at-law shall be conclusive evidence
of such good faith, in the absence of gross negligence, fraud and willful
misconduct.
2.9 The Escrow Agent is hereby expressly authorized to disregard any
and all warnings given by any of the parties hereto or by any other person or
corporation, excepting only orders or process of courts of law and is hereby
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expressly authorized to comply with and obey orders, judgments or decrees of any
court. In case the Escrow Agent obeys or complies with any such order, judgment
or decree, the Escrow Agent shall not be liable to any of the parties hereto or
to any other person, firm or corporation by reason of such decree being
subsequently reversed, modified, annulled, set aside, vacated or found to have
been entered without jurisdiction.
2.10 The Escrow Agent shall not be liable in any respect on account of
the identity, authorization or rights of the parties executing or delivering or
purporting to execute or deliver the Purchase Agreement or any documents or
papers deposited or called for thereunder in the absence of gross negligence,
fraud and willful misconduct.
2.11 The Escrow Agent shall be entitled to employ such legal counsel
and other experts as the Escrow Agent may deem necessary properly to advise the
Escrow Agent in connection with the Escrow Agent's duties hereunder, may rely
upon the advice of such counsel, and may pay such counsel reasonable
compensation; provided that the costs of such compensation shall be borne by the
Escrow Agent.
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 documents
or the escrow funds held by the Escrow Agent hereunder, the Escrow Agent is
authorized and directed in the Escrow Agent's sole discretion (1) to retain in
the Escrow Agent's possession without liability to anyone all or any part of
said documents or the escrow funds until such disputes shall have been settled
either by mutual written agreement of the parties concerned by a final order,
decree or judgment or a court of competent jurisdiction after the time for
appeal has expired and no appeal has been perfected, but the Escrow Agent shall
be under no duty whatsoever to institute or defend any such proceedings or (2)
to deliver the escrow funds and any other property and documents held by the
Escrow Agent hereunder to a state or Federal court having competent subject
matter jurisdiction and located in the City of New York in accordance with the
applicable procedure therefore
2.15 The Company and Purchaser agree jointly and severally to indemnify
and hold harmless the Escrow Agent and its partners, employees, agents and
representatives from any and all claims, liabilities, costs or expenses in any
way arising from or relating to the duties or performance of the Escrow Agent
hereunder or the transactions contemplated hereby or by the Purchase Agreement
other than any such claim, liability, cost or expense to the extent the same
shall have been determined by final, unappealable judgment of a court of
competent jurisdiction to have resulted from the gross negligence, fraud or
willful misconduct of the Escrow Agent.
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IN WITNESS WHEREOF, the parties hereto have executed this Escrow
Agreement as of date first written above.
ROAMING MESSENGER, INC.
By:__________________________________________
Name:
Title:
WINGS FUND, INC.
By: ________________________________________
Name:
Title:
ESCROW AGENT:
SICHENZIA ROSS FRIEDMAN FERENCE LLP
By:__________________________________________
Name:
Title:
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Exhibit X to
Escrow Agreement
RELEASE NOTICE
THE UNDERSIGNED, pursuant to the Escrow Agreement, dated as of March
28, 2005, among Roaming Messenger, Inc., the Purchaser signatory thereto and
Sichenzia Ross Friedman Ference LLP, as Escrow Agent (the "Escrow Agreement";
capitalized terms used herein and not defined shall have the meaning ascribed to
such terms in the Escrow Agreement), hereby notify the Escrow Agent that each of
the conditions precedent to the purchase and sale of the Common Stock set forth
in the Securities Purchase Agreement have been satisfied. The Company and the
undersigned Purchaser hereby confirm that all of their respective
representations and warranties contained in the Purchase Agreement remain true
and correct and authorize the release by the Escrow Agent of the funds, pursuant
to the attached disbursement memo, and any documents to be released at the
Closing as described in the Escrow Agreement. This Release Notice shall not be
effective until executed by the Company and the Purchaser.
This Release Notice may be signed in one or more counterparts, each of
which shall be deemed an original.
IN WITNESS WHEREOF, the undersigned have caused this Release Notice to
be duly executed and delivered as of this __ day of March 2005.
ROAMING MESSENGER, INC.
By:__________________________________________
Name:
Title:
WINGS FUND, INC.
By: _________________________________________
Name:
Title:
DISBURSEMENT MEMO
Attention: Escrow Agent:
These instructions are given to you pursuant to the Escrow Agreement
among Roaming Messenger, Inc. (the "Company"), Wings Fund, Inc. and Sichenzia
Ross Friedman Ference LLP as Escrow Agent. Subject to the terms set forth below,
you are instructed to disburse $500,000 of the Purchaser's funds received by you
on the Company's behalf as follows:
1. $480,000 - Roaming Messenger, Inc. pursuant to the following wire
instructions:
Bank: Bank of America
5892 Calle Real
Santa Barbara, CA 93117
Account Name: Roaming Messenger Inc.
Account No: 04164-08495
ABA Routing: 121000358
Swift Number:
2. $20,000 -Sichenzia Ross Friedman Ference LLP (legal fees), pursuant
to the following wire instructions:
HSBC Bank USA
950 Third Avenue
New York, NY 10022
A/C of Sichenzia Ross Friedman Ference LLP
A/C# 629034133
ABA# 021001088