Exhibit 10.15


 


FUNDS ESCROW AGREEMENT


 


This Agreement is dated as of the 16th day of February, 2006
among Aegis Assessments, Inc., a Delaware corporation (the “Company”), the
Subscribers identified on Schedule A hereto (each a “Subscriber” and
collectively “Subscribers”), and Grushko & Mittman, P.C. (the “Escrow
Agent”):


 


W I
T  N  E  S  S  E  T  H:


 


WHEREAS, the
Company and Subscribers have entered into a Subscription Agreement calling for
the sale by the Company to the Subscribers of Notes and Warrants for an aggregate
purchase price of up to $500,000 in the amounts set forth on Schedule A
hereto; and


 


WHEREAS, the
parties hereto require the Company to deliver the Notes and Warrants against
payment therefor, with such Notes, Warrants and the Escrowed Payment to be
delivered to the Escrow Agent to be held in escrow and released by the Escrow
Agent in accordance with the terms and conditions of this Agreement; and


 


WHEREAS, the
Escrow Agent is willing to serve as escrow agent pursuant to the terms and
conditions of this Agreement;


 


NOW THEREFORE,
the parties agree as follows:


 


ARTICLE I


 


INTERPRETATION


 


1.1.                              Definitions.  Capitalized terms used and not otherwise
defined herein that are defined in the Subscription Agreement shall have the
meanings given to such terms in the Subscription Agreement.  Whenever used in this Agreement, the
following terms shall have the following respective meanings:


 


(a)                                  “Agreement”
means this Agreement and all amendments made hereto and thereto by written
agreement between the parties;


 


(b)                                 “Closing Date” shall have the
meaning set forth in Section 1 of the Subscription Agreement;


 


(c)                                  “Collateral Agent Agreement”
shall have the meaning set forth in Section 3 of the Subscription
Agreement;


 


(d)                                 “Escrowed Payment” means an
aggregate payment of $500,000, representing the Aggregate Purchase Price (as
defined in the Subscription Agreement);


 


(e)                                  “Legal Fees” shall have the meaning set forth in Section 8(c) of
the Subscription Agreement;


 


(f)                                    “Legal Opinion” means the original signed legal
opinion referred to in Section 6 of the Subscription Agreement;


 


(g)                                 “Notes”
shall have the meaning set forth in Section 1 of the Subscription
Agreement;


 


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(h)                                 “Placement
Agent” shall have the meaning set forth in Section 8(a) of the
Subscription Agreement;


 


(i)                                     “Placement
Agent Fee” shall have the meaning set forth in Section 8(a) of the
Subscription Agreement and as more fully described on Schedule 8 to the
Subscription Agreement;


 


(j)                                     “Security
Agreement” shall have the meaning set forth in Section 3 of the
Subscription Agreement;


 


(k)                                  “Subscription Agreement” means the Subscription
Agreement (and the exhibits thereto) entered into or to be entered into by the
Company and Subscribers in reference to the sale and purchase of the Notes and
Warrants;


 


(l)                                     “Warrants” shall have the meaning set forth in
the recitals to the Subscription Agreement;


 


(m)                               Collectively, the executed
Subscription Agreement, Notes, Legal Opinion, Warrants, Collateral Agent
Agreement, and Security Agreement are referred to as “Company Documents”; and


 


(n)                                 Collectively,
the Escrowed Payment and the executed Subscription Agreement are referred to as
“Subscriber Documents”.


 


1.2.                              Entire
Agreement.  This Agreement along with
the Company Documents and the Subscriber Documents constitute the entire
agreement between the parties hereto pertaining to the Company Documents and
Subscriber Documents and supersedes all prior agreements, understandings,
negotiations and discussions, whether oral or written, of the parties.  There are no warranties, representations and
other agreements made by the parties in connection with the subject matter
hereof except as specifically set forth in this Agreement, the Company Documents
and the Subscriber Documents.


 


1.3.                              Extended
Meanings.  In this Agreement words
importing the singular number include the plural and vice versa; words
importing the masculine gender include the feminine and neuter genders.  The word “person” includes an individual,
body corporate, partnership, trustee or trust or unincorporated association,
executor, administrator or legal representative.


 


1.4.                              Waivers
and Amendments.  This Agreement may be
amended, modified, superseded, cancelled, renewed or extended, and the terms
and conditions hereof may be waived, only by a written instrument signed by all
parties, or, in the case of a waiver, by the party waiving compliance.  Except as expressly stated herein, no delay
on the part of any party in exercising any right, power or privilege hereunder
shall operate as a waiver thereof, nor shall any waiver on the part of any
party of any right, power or privilege hereunder preclude any other or future
exercise of any other right, power or privilege hereunder.


 


1.5.                              Headings.  The division of this Agreement into articles,
sections, subsections and paragraphs and the insertion of headings are for
convenience of reference only and shall not affect the construction or
interpretation of this Agreement.


 


1.6.                              Law
Governing this Agreement. 
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York without regard to conflicts of laws principles that would result in
the application of the substantive laws of another jurisdiction.  Any action brought by either party against the
other concerning the transactions contemplated by this Agreement shall be


 


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brought only in the state courts of New
York or in the federal courts located in the state of New York.  Both parties and the individuals executing
this Agreement and other agreements on behalf of the Company agree to submit to
the jurisdiction of such courts and waive trial by jury.  The prevailing party (which shall be the
party which receives an award most closely resembling the remedy or action
sought) shall be entitled to recover from the other party its reasonable
attorney’s fees and costs.  In the event
that any provision of this Agreement or any other agreement delivered in
connection herewith is invalid or unenforceable under any applicable statute or
rule of law, then such provision shall be deemed inoperative to the extent
that it may conflict therewith and shall be deemed modified to conform with
such statute or rule of law.  Any
such provision which may prove invalid or unenforceable under any law shall not
affect the validity or enforceability of any other provision of any agreement.


 


1.7.                              Specific
Enforcement, Consent to Jurisdiction. 
The Company and Subscribers acknowledge and agree that irreparable
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms or were otherwise
breached.  It is accordingly agreed that
the parties shall be entitled to an injuction or injunctions to prevent or cure
breaches of the provisions of this Agreement and to enforce specifically the
terms and provisions hereof or thereof, this being in addition to any other
remedy to which any of them may be entitled by law or equity.  Subject to Section 1.6 hereof, each of
the Company and the Subscribers hereby waives, and agrees not to assert in any
such suit, action or proceeding, any claim that it is not personally subject to
the jurisdiction of such court, that the suit, action or proceeding is brought
in an inconvenient forum or that the venue of the suit, action or proceeding is
improper.  Nothing in this Section shall
affect or limit any right to serve process in any other manner permitted by
law.


 


ARTICLE II


 


DELIVERIES TO THE ESCROW AGENT


 


2.1.                              Company
Deliveries.  On or before the Closing
Date, the Company shall deliver the Company Documents to the Escrow Agent.


 


2.2.                              Subscriber
Deliveries.  On or before the Closing
Date, each Subscriber shall deliver to the Escrow Agent such Subscriber’s
portion of the Aggregate Purchase Price and the executed Subscription
Agreement.  The Escrowed Payment will be
delivered pursuant to the following wire transfer instructions:


 


Citibank,
N.A.


1155 6th
Avenue


New York,
NY 10036, USA


ABA
Number: 0210-00089


For
Credit to: Grushko & Mittman, IOLA Trust Account


Account
Number: 45208884


 


2.3.                              Intention
to Create Escrow Over Company Documents and Subscriber Documents.  The Subscribers and Company intend that the
Company Documents and Subscriber Documents shall be held in escrow by the Escrow
Agent pursuant to this Agreement for their benefit as set forth herein.


 


2.4.                              Escrow
Agent to Deliver Company Documents and Subscriber Documents.  The Escrow Agent shall hold and release the
Company Documents and Subscriber Documents only in accordance with the terms
and conditions of this Agreement.


 


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ARTICLE III


 


RELEASE OF COMPANY DOCUMENTS AND SUBSCRIBER DOCUMENTS


 


3.1.                              Release
of Escrow.  Subject to the provisions
of Section 4.2, the Escrow Agent shall release the Company Documents and
Subscriber Documents as follows:


 


(a)                                  On
the Closing Date, the Escrow Agent will simultaneously release the Company
Documents to the Subscribers and release the Subscriber Documents to the
Company except that: (i) the Placement Agent Fee will be released to the
recipient identified on Schedule 8 to the Subscription Agreement; (ii) the
Legal Fees will be released to the Subscriber’s attorneys; and (iii) the
Security Agreement and Collateral Agent Agreement will also be released to the
Collateral Agent.


 


(b)                                 All funds to be delivered to the Company shall be
delivered pursuant to the wire instructions to be provided in writing by the
Company to the Escrow Agent.


 


(c)                                  Notwithstanding the above, upon
receipt by the Escrow Agent of joint instructions (“Joint Instructions”) signed
by the Company and the Subscribers, it shall deliver the Company Documents and
Subscriber Documents in accordance with the terms of the Joint Instructions.


 


(d)                                 Notwithstanding
the above, upon receipt by the Escrow Agent of a final and non-appealable
judgment, order, decree or award of a court of competent jurisdiction (a “Court
Order”), the Escrow Agent shall deliver the Company Documents and Subscriber
Documents in accordance with the Court Order. 
Any Court Order shall be accompanied by an opinion of counsel for the
party presenting the Court Order to the Escrow Agent (which opinion shall be
satisfactory to the Escrow Agent) to the effect that the court issuing the
Court Order has competent jurisdiction and that the Court Order is final and
non-appealable.


 


3.2.                              Acknowledgement
of Company and Subscriber; Disputes. 
The Company and the Subscribers acknowledge that the only terms and
conditions upon which the Company Documents and Subscriber Documents are to be
released are set forth in Sections 3 and 4 of this Agreement.  The Company and the Subscribers reaffirm
their agreement to abide by the terms and conditions of this Agreement with
respect to the release of the Company Documents and Subscriber Documents.  Any dispute with respect to the release of
the Company Documents and Subscriber Documents shall be resolved pursuant to Section 4.2
or by agreement between the Company and Subscriber.


 


ARTICLE IV


 


CONCERNING THE ESCROW AGENT


 


4.1.                              Duties
and Responsibilities of the Escrow Agent. 
The Escrow Agent’s duties and responsibilities shall be subject to the
following terms and conditions:


 


(a)                                  The
Subscribers and Company acknowledge and agree that the Escrow Agent (i) shall
not be responsible for or bound by, and shall not be required to inquire into
whether either the Subscribers or Company is entitled to receipt of the Company
Documents and Subscriber Documents pursuant to, any other agreement or
otherwise; (ii) shall be obligated only for the performance of such duties
as are specifically assumed by the Escrow Agent pursuant to this Agreement; (iii) may
rely on and shall be protected in acting or refraining from acting upon any
written notice, instruction, instrument, statement, request or document
furnished to it hereunder and believed by the Escrow Agent in good faith to be
genuine and to have been signed or presented by the proper person or party,
without being required to determine the authenticity or correctness of any fact
stated therein or the propriety or validity or the


 


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service thereof; (iv) may assume that
any person believed by the Escrow Agent in good faith to be authorized to give
notice or make any statement or execute any document in connection with the
provisions hereof is so authorized; (v) shall not be under any duty to
give the property held by Escrow Agent hereunder any greater degree of care
than Escrow Agent gives its own similar property; and (vi) may consult
counsel satisfactory to Escrow Agent, the opinion of such counsel to be full
and complete authorization and protection in respect of any action taken,
suffered or omitted by Escrow Agent hereunder in good faith and in accordance
with the opinion of such counsel.


 


(b)                                 The Subscribers and Company
acknowledge that the Escrow Agent is acting solely as a stakeholder at their
request and that the Escrow Agent shall not be liable for any action taken by
Escrow Agent in good faith and believed by Escrow Agent to be authorized or
within the rights or powers conferred upon Escrow Agent by this Agreement.  The Subscribers and Company, jointly and
severally, agree to indemnify and hold harmless the Escrow Agent and any of
Escrow Agent’s partners, employees, agents and representatives for any action
taken or omitted to be taken by Escrow Agent or any of them hereunder, including
the fees of outside counsel and other costs and expenses of defending itself
against any claim or liability under this Agreement, except in the case of
gross negligence or willful misconduct on Escrow Agent’s part committed in its
capacity as Escrow Agent under this Agreement. 
The Escrow Agent shall owe a duty only to the Subscribers and Company
under this Agreement and to no other person.


 


(c)                                  The
Subscribers and Company jointly and severally agree to reimburse the Escrow
Agent for outside counsel fees, to the extent authorized hereunder and incurred
in connection with the performance of its duties and responsibilities
hereunder.


 


(d)                                 The Escrow Agent may at any time resign as
Escrow Agent hereunder by giving five (5) days prior written notice of
resignation to the Subscribers and the Company. 
Prior to the effective date of the resignation as specified in such
notice, the Subscribers and Company will issue to the Escrow Agent a Joint
Instruction authorizing delivery of the Company Documents and Subscriber
Documents to a substitute Escrow Agent selected by the Subscribers and
Company.  If no successor Escrow Agent is
named by the Subscribers and Company, the Escrow Agent may apply to a court of
competent jurisdiction in the State of New York for appointment of a successor
Escrow Agent, and to deposit the Company Documents and Subscriber Documents
with the clerk of any such court.


 


(e)                                  The
Escrow Agent does not have and will not have any interest in the Company
Documents and Subscriber Documents, but is serving only as escrow agent, having
only possession thereof.  The Escrow
Agent shall not be liable for any loss resulting from the making or retention
of any investment in accordance with this Escrow Agreement.


 


(f)                                    This
Agreement sets forth exclusively the duties of the Escrow Agent with respect to
any and all matters pertinent thereto and no implied duties or obligations
shall be read into this Agreement.


 


(g)                                 The
Escrow Agent shall be permitted to act as counsel for the Subscribers in any
dispute as to the disposition of the Company Documents and Subscriber
Documents, in any other dispute between the Subscribers and Company, whether or
not the Escrow Agent is then holding the Company Documents and Subscriber
Documents and continues to act as the Escrow Agent hereunder.


 


(h)                                 The
provisions of this Section 4.1 shall survive the resignation of the Escrow
Agent or the termination of this Agreement.


 


4.2.                              Dispute
Resolution: Judgments. 
Resolution of disputes arising under this Agreement shall be subject to
the following terms and conditions:


 


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(a)                                  If any
dispute shall arise with respect to the delivery, ownership, right of
possession or disposition of the Company Documents and Subscriber Documents, or
if the Escrow Agent shall in good faith be uncertain as to its duties or rights
hereunder, the Escrow Agent shall be authorized, without liability to anyone,
to (i) refrain from taking any action other than to continue to hold the
Company Documents and Subscriber Documents pending receipt of a Joint
Instruction from the Subscribers and Company, or (ii) deposit the Company
Documents and Subscriber Documents with any court of competent jurisdiction in
the State of New York, in which event the Escrow Agent shall give written
notice thereof to the Subscribers and the Company and shall thereupon be
relieved and discharged from all further obligations pursuant to this
Agreement.  The Escrow Agent may, but
shall be under no duty to, institute or defend any legal proceedings which
relate to the Company Documents and Subscriber Documents.  The Escrow Agent shall have the right to
retain counsel if it becomes involved in any disagreement, dispute or litigation
on account of this Agreement or otherwise determines that it is necessary to
consult counsel.


 


(b)                                 The
Escrow Agent is hereby expressly authorized to comply with and obey any Court
Order.  In case the Escrow Agent obeys or
complies with a Court Order, the Escrow Agent shall not be liable to the
Subscribers and Company or to any other person, firm, corporation or entity by
reason of such compliance.


 


ARTICLE V


 


GENERAL MATTERS


 


5.1.                              Termination.  This escrow shall terminate upon the release
of all of the Company Documents and Subscriber Documents or at any time upon
the agreement in writing of the Subscribers and Company.


 


5.2.                              Notices.   All notices, demands, requests, consents,
approvals, and other communications required or permitted hereunder shall be in
writing and, unless otherwise specified herein, shall be (i) personally
served, (ii) deposited in the mail, registered or certified, return
receipt requested, postage prepaid, (iii) delivered by reputable air
courier service with charges prepaid, or (iv) transmitted by hand
delivery, telegram, or facsimile, addressed as set forth below or to such other
address as such party shall have specified most recently by written
notice.  Any notice or other
communication required or permitted to be given hereunder shall be deemed
effective (a) upon hand delivery or delivery by facsimile, with accurate
confirmation generated by the transmitting facsimile machine, at the address or
number designated below (if delivered on a business day during normal business
hours where such notice is to be received), or the first business day following
such delivery (if delivered other than on a business day during normal business
hours where such notice is to be received) or (b) on the second business
day following the date of mailing by express courier service, fully prepaid,
addressed to such address, or upon actual receipt of such mailing, whichever
shall first occur.  The addresses for
such communications shall be:


 


(a)                                  If to the
Company, to:


 


Aegis Assessments, Inc.


7975 N. Hayden Road, Suite D363


Scottsdale, Arizona 85258


Attn: Eric D. Johnson, CEO


Fax: (480) 778-1310


 


With a copy by telecopier only to:


 


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Rogers & Theobald LLP

The Camelback Esplanade


2425 East Camelback Road, Suite 850


Phoenix, Arizona 85016


Attn: Daniel M. Mahoney, Esq.


Fax: (602) 852-5570


 


(b)                                 If to the
Subscribers, to: the addresses and fax numbers listed on Schedule A hereto


 


(c)                                  If to the
Escrow Agent, to:


 


Grushko &
Mittman, P.C.


551 Fifth
Avenue, Suite 1601


New York, New
York 10176


Fax: 212-697-3575


 


or to such other address as any of them
shall give to the others by notice made pursuant to this Section 5.2.


 


5.3.                              Interest.  The Escrowed Payment shall not be held in an
interest bearing account nor will interest be payable in connection
therewith.  In the event the Escrowed
Payment is deposited in an interest bearing account, each Subscriber shall be
entitled to receive its pro  rata portion of any accrued interest
thereon, but only if the Escrow Agent receives from such Subscriber the
Subscriber’s United States taxpayer identification number and other requested
information and forms.


 


5.4.                              Assignment;
Binding Agreement.  Neither this Agreement
nor any right or obligation hereunder shall be assignable by any party without
the prior written consent of the other parties hereto.  This Agreement shall enure to the benefit of
and be binding upon the parties hereto and their respective legal
representatives, successors and assigns.


 


5.5.                              Invalidity.  In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal, or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions contained herein shall not be in any
way impaired thereby, it being intended that all of the rights and privileges
of the parties hereto shall be enforceable to the fullest extent permitted by
law.


 


5.6.                              Counterparts/Execution.  This Agreement may be executed in any number
of counterparts and by different signatories hereto on separate counterparts,
each of which, when so executed, shall be deemed an original, but all such
counterparts shall constitute but one and the same instrument.  This Agreement may be executed by facsimile
transmission and delivered by facsimile transmission.


 


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5.7.                              Agreement.  Each of the undersigned states that he has
read the foregoing Funds Escrow Agreement and understands and agrees to it.


 


	
   

  	
  AEGIS ASSESSMENTS, Inc.

  
	
   

  	
  the “Company”

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/
  Richard Reincke

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   /s/ Konrad
  Ackerman

  	
   

  	
   /s/
  Harborview Master Fund LP

  	
   

  
	
  ALPHA CAPITAL AKTIENGESELLSCHAFT

  	
  HARBORVIEW MASTER FUND LP

  
	
  “Subscriber”

  	
  “Subscriber”

  
	
   

  	
   

  
	
   

  	
   

  
	
   /s/ DKR
  Soundshore Oasis Holding Fund Ltd.

  	
   

  	
   

  
	
  DKR SOUNDSHORE OASIS HOLDING FUND LTD.

  	
   

  
	
  “Subscriber”

  	
   

  
	
   

  	
   

  
	
   

  	
  ESCROW AGENT:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   /s/
  Barbara Mittman

  	
   

  
	
   

  	
  GRUSHKO & MITTMAN, P.C.

  



 


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SCHEDULE A TO FUNDS ESCROW AGREEMENT


 


	
  SUBSCRIBER

  	
   

  	
  PURCHASE

  PRICE

  	
   

  	
  CLASS A

  WARRANTS

  	
   

  	
  CLASS B

  WARRANTS

  	
   

  
	
  ALPHA CAPITAL

  AKTIENGESELLSCHAFT

  Pradafant 7

  9490 Furstentums

  Vaduz, Lichtenstein

  Fax: 011-42-32323196

  	
   

  	
  $

  	
  250,000.00

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  HARBORVIEW
  MASTER FUND LP

  850- Third Avenue Suite 1801

  New York, NY 10022

  Fax: (646) 218-1401

  	
   

  	
  $

  	
  125,000.00

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  DKR SOUNDSHORE
  OASIS

  HOLDING FUND LTD.

  C/o DKR Capital Partners, L.P.

  1281 East Main Street

  Stamford, CT 06902

  Fax: (203) 674-4737

  	
   

  	
  $

  	
  125,000.00

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TOTAL

  	
   

  	
  $

  	
  500,000.00

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


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