Attached files
| file | filename |
|---|---|
| 10-K - 2009 10K - LOCATEPLUS HOLDINGS CORP | annualreport2009.htm |
| EX-10.20 - ESP P&S AGREEMENT - LOCATEPLUS HOLDINGS CORP | espps.htm |
| EX-31.2 - EXHIBIT 31.2 - LOCATEPLUS HOLDINGS CORP | cfocert.htm |
| EX-23.1 - CONSENT - LOCATEPLUS HOLDINGS CORP | consent.htm |
| EX-31.1 - EXHIBIT 31.1 - LOCATEPLUS HOLDINGS CORP | ceocert.htm |
| EX-32.1 - EXHIBIT 32.1 - LOCATEPLUS HOLDINGS CORP | soxcert.htm |
| EX-10.18 - DUTCHESS DEBT CONVERSION AGREEMENT - LOCATEPLUS HOLDINGS CORP | debtconversionagmt.htm |
| EX-10.19 - SERIES A CONVERTIBLE STOCK PURCHASE AGREEMENT - LOCATEPLUS HOLDINGS CORP | stockpurchaseagmt.htm |
Exhibit 10.21
ESCROW
AGREEMENT
This
Escrow Agreement (this “Agreement”) is entered into as of September 29, 2009 by
and among LocatePlus Holdings Corp., a Delaware corporation ( “LP”), Employment
Screening Profiles, Inc., a Florida corporation ( “ESP”), Derrick A. Spatorico,
(the “Shareholder”), and. Geoffrey T. Chalmers, Esq. (in his capacity as escrow
agent, the “Escrow Agent”).
RECITALS
A.
Pursuant to the provisions of that certain Purchase and Sale Agreement dated as
of September 20, 2009 (the “Purchase and Sale Agreement”), among LP
and ESP, and the Shareholder, LP will purchase from the Shareholder all of the
outstanding capital stock of the ESP (1,000 no-par shares) (the “ESP Shares”)
and the consideration therefor will be in the form of 9,000,000 shares of Common
Stock of LP (the “LP Shares”) at a price of $0.1944.
B. Under
the terms of the Agreement, the ESP Shares and the LP Shares, (
collectively, the “Escrow Corpus”) are to be deposited in escrow with
the Escrow Agent.
C. The
Agreement provides that the Escrow Agent shall hold and administer the Escrow
Corpus in accordance with the terms of this Escrow Agreement and the Purchase
and Sale Agreement.
D. The
execution and delivery of this Escrow Agreement is a condition of
closing under the Purchase and Sale Agreement.
ESCROW
TERMS
NOW,
THEREFORE, in consideration of the covenants and conditions set forth herein,
the parties agree as follows.
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1.
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Delivery
of Escrowed Shares
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The ESP
Shares, plus Instruments of Transfer to LP as described in the Purchase and Sale
Agreement, will be delivered to the Escrow Agent at a closing which
is anticipated to occur on or about October 1, 2009
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a.
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Not
later than September 1, 2010 LP shall deposit the LP Shares in
escrow with the Escrow Agent. 1
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b.
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The
Escrow Corpus will be held and administered in accordance with the terms
and conditions of this Escrow Agreement and the Purchase and Sale
Agreement.
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2.
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Administration
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a.
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The
Escrow Agent shall hold and safeguard the Escrow Corpus, until the
Termination Date (as defined below), and shall administer, hold and
dispose of such Escrow Corpus only in accordance with the terms of this
Escrow Agreement and the Purchase and Sale
Agreement.
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3.
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Distribution
of Shares from the Escrow Corpus
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a.
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The
LP Shares shall be deposited into escrow2
and the Escrow Agent shall have no right to transfer it except pursuant to
the provisions of this Escrow Agreement and the Purchase and Sale
Agreement.
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b.
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The
ESP Shares shall remain in Escrow until all the LP Shares have been fully
issued to the Shareholder at which time the certificates for the ESP
Shares, together with the Instruments of Transfer, shall be
delivered to LP.
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c.
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Subject
to the terms and conditions of the Purchase and Sale Agreement and of this
Escrow Agreement, the Escrow Agent shall have the obligation to deliver
all the LP Shares then in escrow to the Shareholder no later than
September 1, 2011.
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d.
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The
Shareholder shall have the right at any time after September 1, 2010, but
not before, to withdraw, at his option, up to four million five hundred
thousand (4,500,000) of the LP Shares upon notice to the Escrow Agent and
to LP..
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e.
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LP
and the Shareholder acknowledge that under the Purchase and sale Agreement
LP has an obligation to pay an escrow fee to the Shareholder on a
quarterly basis. LP and the Shareholder also acknowledge that
under and subject to the terms of the Purchase and Sale
Agreement, the Shareholder has the right to demand to have the
ESP shares re-delivered to him in the event LP fails to make a payment of
the escrow fee or upon other specified conditions specified in the
Purchase and Sale Agreement.
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f.
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In
the event that the Shareholder notifies the Escrow Agent, in writing with
a copy to LP that LP is in breach of the Purchase and sale Agreement due
to failure to make a timely payment and that the Shareholder demands
re-delivery of the ESP shares, LP will have 30 days to contest that demand
in writing or file for arbitration. Failing either of these events, the
Escrow Agent will thereafter return the ESP Shares plus any
instruments of transfer to the Shareholder in such form as he may
designate.
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g.
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This
Escrow Agreement and all obligations of the Escrow Agent under it shall
terminate upon the date of final delivery of the Escrow Corpus to the
appropriate party or parties in accordance with the terms of this Escrow
Agreement and the Purchase and Sale Agreement (the “Termination
Date”).
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4.
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Provisions
Regarding the Escrow Agent
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a.
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Liability
of the Escrow Agent
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i.
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In
performing any duties under this Agreement, the Escrow Agent shall not be
liable to any party for damages, losses, or expenses, except for gross
negligence or willful misconduct on the part of the Escrow Agent. The
Escrow Agent shall not incur any liability for (i) any act or failure to
act made or omitted in good faith or (ii) any action taken or omitted in
reliance on any instrument, including any written statement or affidavit
provided for in this Agreement that the Escrow Agent shall, in good faith,
believe to be genuine, nor will the Escrow Agent be liable or responsible
for forgeries, fraud, impersonations, or determining the scope of any
representative authority, provided that the Escrow Agent believed, in good
faith, that such forgeries, fraud, or impersonations were genuine and
acted without gross negligence or willful misconduct. In addition, the
Escrow Agent may consult with legal counsel in connection with the Escrow
Agent’s duties under this Agreement and shall be fully protected in any
act taken, suffered, or permitted by it in good faith and in accordance
with the advice of counsel. The Escrow Agent is not responsible for
determining and verifying the authority of any person acting or purporting
to act on behalf of any party to this
Agreement.
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b.
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Fees
and Expenses
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i.
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LP
agrees shall pay the Escrow Agent, as compensation for its services
hereunder: (a) a $1,000 non-refundable start-up fee, payable upon the
Escrow Agent’s execution of this Agreement; and (b) an annual renewal fee
of $ 1,000 payable on each anniversary date of this
Agreement.
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c.
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Controversies
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i.
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If
any controversy arises between the parties to this Agreement, or with any
other party, concerning the subject matter of this Agreement, its terms or
conditions, the Escrow Agent will not be required to determine the
controversy or to take any action regarding it. The Escrow Agent may hold
all documents and funds and may wait for settlement of any such
controversy. The Escrow Agent is authorized to deposit with the arbitrator
or any court of competent jurisdiction, as applicable, all documents and
funds held in escrow. Upon initiating such action, the Escrow Agent shall
be fully released and discharged of and from all obligations and liability
imposed by the terms of this
Agreement.
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d.
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Indemnification
of the Escrow Agent
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i.
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The
LP and the Shareholder agree, jointly and severally, to indemnify and hold
the Escrow Agent harmless against any and all losses, claims, damages and
liabilities, including reasonable costs of investigation, attorneys’ fees,
and disbursements that may be imposed on the Escrow Agent or incurred by
the Escrow Agent in connection with the performance of its duties under
this Agreement, including, but not limited to, any litigation arising from
this Agreement or involving its subject matter, unless such loss,
liability, claim or expense shall have been determined by a court of
competent jurisdiction to be a result of the Escrow Agent’s gross
negligence or willful misconduct. Anything in this Agreement to the
contrary notwithstanding, in no event shall the Escrow Agent be liable for
special, punitive, indirect, or consequential loss or damage of any kind
whatsoever (including but not limited to lost profits), even if the Escrow
Agent has been advised of the likelihood of such damages and regardless of
the form of action. The obligations to indemnify the Escrow Agent under
this section shall survive termination of this
Agreement.
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e.
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Resignation
of the Escrow Agent
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i.
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The
Escrow Agent may resign at any time upon giving at least thirty (30) days’
written notice to the parties; provided, however that no such resignation
shall become effective until the appointment of a successor escrow agent,
which shall be accomplished as follows: LP and the Shareholder shall use
their best efforts to mutually agree on a successor escrow agent within
thirty (30) days after receiving such notice. If the LP and the
Shareholder fail to agree on a successor escrow agent within such time,
the Escrow Agent shall have the right to appoint a successor escrow agent
authorized to do business in the Commonwealth of Massachusetts, which
successor escrow agent shall be reasonably acceptable to the LP and the
Shareholder. The successor escrow agent shall execute and deliver an
instrument accepting such appointment and it shall, without further acts,
be vested with all the estates, properties, rights, powers, and duties of
the predecessor escrow agent as if originally named as escrow agent. Upon
the effective appointment of a successor escrow agent, the Escrow Agent
shall be discharged from any further duties and liability under this
Agreement.
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5.
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General
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a.
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Assignment
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i.
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The
Shareholder may assign any of his rights or obligations hereunder. LP may
not assign any of its rights or obligations hereunder without the prior
written consent of the Shareholder. This Agreement shall be binding upon
and inure to the benefit of the parties and their respective heirs, legal
representatives, successors and
assigns.
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b.
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Entire
Agreement
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i.
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This
Agreement embodies and constitutes the entire understanding among the
parties with respect to the transactions contemplated by this Escrow
Agreement, and all prior or contemporaneous agreements, understandings,
representations and statements between the parties, oral or written, are
merged into this Agreement.
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c.
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Modification
and Waiver
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i.
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Neither
this Agreement nor any of its provisions may be modified, amended,
discharged or terminated except in writing signed by the party against
which the enforcement of such modification, amendment, discharge or
termination is sought, and then only to the extent set forth in such
writing. No failure of a party to insist upon strict performance by the
other party of any of the terms and conditions of this Agreement shall
constitute or be deemed to be a waiver of any such term or condition, or
constitute an amendment or waiver of any such term or provision by course
of performance, and each party, notwithstanding any failure to insist upon
strict performance, shall have the right thereafter to insist upon strict
performance by the other party of any and all of the terms and conditions
of this Agreement. Any party may, in its sole and absolute discretion,
waive, only in writing, any condition set forth in this Agreement to such
party’s obligations under this Agreement which is for the sole benefit of
the waiving party, in which event the non-waiving party or parties shall
be obligated to close the transaction upon all of the remaining terms and
conditions of this Agreement.
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d.
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Notices
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i.
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Any
notice required or permitted under this Agreement shall be in writing, and
shall be delivered personally or sent by first class certified mail, or by
air courier, postage or other charges prepaid, to the parties at the
following addresses:
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to
the Escrow Agent:
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Geoffrey
T. Chalmers, Esq.
33 Broad
Street, Suite 1100
Boston,
MA 02109
(617)
227-3709 (fax)
to the
Shareholder:
Derrick
A. Spatorico
47
Vineyard Hill
Fairport,
New York 14450
(____) ____________ (fax)
to
LP:
LocatePLUS
Holdings Corporation
100
Cummings Center #235M
Beverly,
MA 01915
Att:
Geoffrey Lee, CEO
(978)
524-8887 (fax)
or to
such other address or addresses as the parties may from time to time specify in
writing. Notice shall be provided by air courier and shall be deemed effective
upon the earlier of actual delivery to the recipient or six days after the date
on which such notice was delivered to the courier service. If notice is sent in
any manner other than as provided by this Section 5.4, notice shall be deemed
received when actually received by the party to whom the notice was
delivered.
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6.
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Governing
Law; Severability
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a.
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This
Agreement shall be governed for all purposes by the laws of the
Commonwealth of Massachusetts applicable to agreements executed and to be
wholly performed in Massachusetts. Nothing contained in this Agreement
shall be construed so as to require the commission of any act contrary to
law, and whenever there is any conflict between any provision contained in
this Agreement and any present or future statute or law, ordinance or
regulation or judicial ruling or governmental decision with the force of
law contrary to which the parties have no legal right to contract, the
latter shall prevail, but the provision of the Agreement which is affected
shall be limited only to the extent necessary to bring it within the
requirements of such law, ruling or decision without invalidating or
affecting the remaining provisions of the
Agreement.
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7.
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Counterparts
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a.
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This
Agreement may be executed in counterparts, each of which shall be an
original, but such documents shall constitute one and the same
document.
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8.
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Contract
Interpretation
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a.
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The
parties acknowledge that they have caused this Agreement to be reviewed
and approved by legal counsel of their own choice. This Agreement has been
specifically negotiated, and any presumption that an ambiguity contained
in this Agreement shall be construed against the party that caused this
Agreement to be drafted shall not apply to the interpretation of this
Agreement.
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9.
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Other
Parties
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a.
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Nothing
contained in this Agreement shall be construed as giving any person, firm,
corporation or other entity, other than the parties to this Agreement and
their successors and permitted assigns, any right, remedy or claim under
or in respect of this Agreement or any term or condition contained in this
Agreement.
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10.
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Incorporation
by Reference
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a.
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All
attached exhibits are incorporated as terms of this Agreement by this
reference.
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11.
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Cooperation
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a.
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Each
party will, at the reasonable request of any other party, from time to
time execute and deliver such other assignments, transfers, conveyances,
and other instruments and documents and do and perform such other acts and
things as may be reasonably necessary or desirable for effecting complete
consummation of this Agreement and the transactions contemplated
hereby.
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12.
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Defined
Terms
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a.
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Capitalized
terms used herein and not otherwise defined shall have the meaning set
forth in the Agreement.
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13.
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No
Conflict
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a.
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In
the event of any conflict between the terms of this Agreement and the
Agreement, the terms of this Escrow Agreement shall
prevail.
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14.
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Arbitration
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a.
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All
disputes between the Shareholder and/or the LP, on the one hand, the
Escrow Agent on the other hand, relating to the payment of the Escrow
Funds and/or the Escrow Agent’s rights, obligations, and liabilities
arising from or related to this Agreement shall be resolved by mandatory
binding expedited arbitration under the Commercial Arbitration Rules of
the American Arbitration Association (“AAA”) in effect as of the date the
request for arbitration is filed (the “Rules”) before a single, neutral
arbitrator, selected in accordance with the Rules. Each of the parties may
initiate such an arbitration pursuant to the Rules. The arbitration shall
be held in Boston, Massachusetts (such site being herein referred to as
the “Forum”). The LP, the Shareholder, and the Escrow Agent each agree
that it will abide by any decision rendered in such arbitration, and that
any court having jurisdiction may enforce such a decision. Each of the
parties hereto submits to the non-exclusive personal jurisdiction of the
courts of the Forum as an appropriate place for compelling arbitration or
giving legal confirmation of any arbitration award, and irrevocably waives
any objection which it may now or hereafter have to the venue of any such
enforcement proceeding brought in any of said courts and any claim of
inconvenient forum. Each of the parties agrees that service of process for
all arbitration proceedings may be made in accordance with the Rules and
shall be deemed effective as provided therein. Any claim or action of any
kind (including, but not limited to, any claims for breach of contract),
against the Escrow Agent arising out of or connected with this Agreement
shall be barred and waived unless asserted by the commencement of an
arbitration proceeding within 180 days after the accrual of the action or
claim,. This limitation shall also apply to claims, which might otherwise
be asserted against the Escrow Agent as a “set-off,” credit,
cross-complaint, or defense. This section and the forgoing limitation
shall survive termination of this
Agreement.
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15.
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Filings
and Resolution
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a.
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Concurrently
with its execution and delivery of this Agreement, LP shall deliver to the
Escrow Agent (a) a copy of its articles of incorporation, (b) corporate
resolutions, signed by its corporate secretary, authorizing it to enter
this Agreement, and (c) a completed Certificate of
Authority.
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IN
WITNESS WHEREOF, the parties have caused this Agreement to be duly executed by
their respective representatives hereunto authorized as of the day and year
first above written.
LocatePlus
Holdings Corporation
_____________________________
By:
Geoffrey Lee
Title:
Interim Chief Executive Officer
Employment
Screening Profiles, Inc.
dbaTruBackgrounds
____________________________
By: Derrick
A. Spatorico
Title: President
& CEO
Shareholder
_____________________________
By: Derrick
A. Spatorico