Unassociated Document


     

    Exhibit
      10.2

    


    ESCROW
      AGREEMENT

     

    THIS
      ESCROW AGREEMENT (this “Agreement”) is made as of November 14, 2007, by and
      among Randy Milby, with an address at 270 Presidential Drive, Wilmington, DE
      19807 (“Milby”), Genesis Holdings, Inc., a Texas corporation with an address at
      10010 San Pedro Avenue, Suite 310, San Antonio, TX 78216 (“Genesis”), Verbena
      Pharmaceuticals Inc., a Delaware corporation with an address at 270 Presidential
      Drive, Wilmington, DE 19807 (the “Company”) and Feldman Weinstein & Smith
      LLP, having an address at 420 Lexington Avenue, Suite 2620, New York, NY 10170
      (the “Escrow Agent”). Capitalized terms used but not defined herein shall have
      the meanings set forth in the Promissory Notes, Common Stock Purchase Agreement
      and Redemption Agreement referred to in the recitals. Hereinafter, Milby,
      Genesis and the Company shall be referred to as the “Parties”, each a
“Party.”

    


    WHEREAS,
      the Escrow Agent has been advised that the Company has sold an aggregate of
      2,500,000 shares (the “Genesis Shares”) of its common stock, par value $.0001
      per share (the “Common Stock”) to Genesis in consideration for $16,700 cash and
      that certain promissory note in the principal amount of $33,300 issued by
      Genesis in favor of the Company (the “Genesis Note”), pursuant to that certain
      common stock purchase agreement, dated as of the date hereof, by and between
      the
      Company and Genesis (the “Common Stock Purchase Agreement”); 

    


    WHEREAS,
      the Escrow Agent also has been advised that the Company has purchased an
      aggregate of 2,500,000 shares (the “Milby Shares” and together with the Genesis
      Shares, the “Shares”) of Common Stock from Milby in consideration for $16,700
      cash and that certain promissory note in the principal amount of $33,300 issued
      by the Company in favor of Milby (the “Milby Note” and together with the Genesis
      Note, the “Notes”), pursuant to that certain redemption agreement, dated as of
      the date hereof, by and between the Company and Milby (the “Redemption
      Agreement”); 

    


    WHEREAS,
      the Parties have requested that the Escrow Agent hold in escrow and then
      distribute the Shares to be released to certain Parties pursuant to this
      Agreement.

     

    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
      I

    TERMS
      OF ESCROW

    


    1.1 
      The
      parties hereby agree to establish an escrow account with the Escrow Agent
      whereby the Escrow Agent shall hold the Shares, as well as blank stock powers
      with respect thereto, pursuant to the terms hereof. The Shares and blank stock
      powers will be held by the Escrow Agent in a secured location. 

     

    1.2 The
      Shares shall be issued to the Parties and released by the Escrow Agent as
      follows:

     

    (a)
       If
      under
      the terms and conditions set forth in the Notes, the Common Stock Purchase
      Agreement and Redemption Agreement, a Party believes that certain Shares may
      be
      released from the Escrow Agent, then such Party (the “Requesting Party”) shall
      send written notice to the Escrow Agent via facsimile at (212) 997-4242 (the
      “Request Notice”). Such Request Notice shall constitute irrevocable instructions
      to the Escrow Agent to release and issue the Shares to the Party specified
      in
      the Request Notice.

     

    (b) Upon
      receipt of the Request Notice, the Escrow Agent shall send written notice (the
      “Release Notice”) to all Parties except the Requesting Party (the “Remaining
      Parties”), indicating that it received the Request Notice to release the Shares.
      If the Remaining Parties each do not object in writing within three business
      days of receiving the Release Notice, the Escrow Agent shall release the Shares
      as provided for in the Request Notice.

     

    
      
        
        

      

      
        1

        
          

        

      

      
        
        

      

    

     

    (c) In
      the
      event the Escrow Agent shall receive written objection from either or both
      of
      the Remaining Parties within three business days from such Party’s receipt of
      the Release Notice, the Escrow Agent shall not release the Shares unless and
      until all of the Parties have sent written instruction (the “Instruction”) to
      the Escrow Agent by facsimile at (212) 997-4242 indicating that the Parties
      have
      reached an agreement concerning the Shares and instructing the Escrow Agent
      as
      to the disposition of the Shares. The Escrow Agent shall release the Shares
      in
      such manner as set forth in the Instruction. If the Escrow Agent does not
      receive an Instruction within five business days from the receipt of a written
      objection, Escrow Agent shall have the right, but not the obligation, to deposit
      the Shares with the clerk of a court in New York County, New York State and
      give
      written notice of such deposit to the Parties. Upon such deposit or other
      disbursement in accordance with the terms of this Agreement, Escrow Agent shall
      be relieved and discharged from all further obligations and responsibilities
      hereunder. The Escrow Agent shall not incur any liability whatsoever for acting
      upon any notice, direction, waiver, receipt, consent, certificate,
      authorization, power of attorney or other paper or document purporting and
      believed by the Escrow Agent to be genuine and to be signed and presented by
      the
      proper person or persons.

    


    1.3 The
      parties acknowledge that, although the Escrow Agent is holding the Shares,
      the
      Escrow Agent is acting solely as a stakeholder at their request and for their
      convenience and that Escrow Agent shall not be liable to either party for any
      act or omission on its part unless taken or suffered in bad faith or in willful
      disregard of this contract on the part of Escrow Agent. 

    


    ARTICLE
      II

    MISCELLANEOUS

    


    2.1 No
      waiver
      of 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 Unless
      otherwise specified herein, all notices or other communications required or
      permitted hereunder shall be in writing, and shall be sent by fax, overnight
      courier, registered or certified mail, postage prepaid, return receipt
      requested, and shall be deemed properly given and received as set forth in
      the
      Note.

     

    2.3 This
      Escrow Agreement shall be binding upon and shall inure to the benefit of the
      permitted successors, assigns, heirs and legatees 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 their respective agents 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
      both parties had prepared the same. Unless otherwise indicated, all references
      to Articles are to this Escrow Agreement.

     

    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

    

     

    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. 

     

    2.7 The
      Escrow Agent’s duties hereunder may be altered, amended, modified or revoked
      only by a writing signed by the Company, Genesis, Milby 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, excepting only its own gross negligence or willful misconduct, and any
      act done or omitted by the Escrow Agent pursuant to the advice of the Escrow
      Agent’s attorneys-at-law (other than Escrow Agent itself) shall be conclusive
      evidence of such good faith.

     

    2.9 The
      Escrow Agent is hereby expressly authorized to disregard any and all warnings
      given by any of the parties hereto or by any other person or corporation,
      excepting only orders or process of courts of law and is hereby expressly
      authorized to comply with and obey orders, judgments or decrees of any court.
      In
      case the Escrow Agent obeys or complies with any such order, judgment or decree,
      the Escrow Agent shall not be liable to any of the parties hereto or to any
      other person, firm or corporation by reason of such decree being subsequently
      reversed, modified, annulled, set aside, vacated or found to have been entered
      without jurisdiction.

     

    2.10 The
      Escrow Agent shall not be liable in any respect on account of the identity,
      authorization or rights of the parties executing or delivering or purporting
      to
      execute or deliver the Common Stock Purchase Agreement, Redemption Agreement
      or
      any documents or papers deposited or called for thereunder or
      hereunder.

     

    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 therefor.
The
      Escrow Agent has acted as legal counsel for the Company, and may continue to
      act
      as legal counsel for the Company from time to time, notwithstanding its duties
      as the Escrow Agent hereunder. Each of the parties hereto consents to the Escrow
      Agent in such capacity as legal counsel for the Company and waives any claim
      that such representation represents a conflict of interest on the part of the
      Escrow Agent. The Company understands that the Company and the Escrow Agent
      are
      relying explicitly on the foregoing provision in entering into this Escrow
      Agreement.

     

    2.12 The
      Escrow Agent’s responsibilities as escrow agent hereunder shall terminate if the
      Escrow Agent shall resign by written notice to the Company, Milby and Genesis.
      In the event of any such resignation, the Company, Milby and Genesis shall
      appoint a successor 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 Shares held by the Escrow Agent
      hereunder, the Escrow Agent is authorized and directed in the Escrow Agent’s
      sole discretion (i) to retain in the Escrow Agent’s possession without liability
      to anyone all or any part of said Shares until such disputes shall have been
      settled either by mutual written agreement of the parties concerned by a final
      order, decree or judgment of a board of arbitration 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 (ii) to deliver the Shares 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 State
      and
      City of New York in accordance with the applicable procedure
      therefor.

     

    
      
        
        

      

      
        3

        
          

        

      

      
        
        

      

    

     

    2.15 The
      Company, Milby and Genesis 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
      (including reasonable attorneys’ fees) 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 Common Stock Purchase Agreement and Note other
      than any such claim, liability, cost or expense to the extent the same shall
      have been determined by final, nonappealable judgment of a court of competent
      jurisdiction to have resulted from the willful misconduct of the Escrow
      Agent.

     

    2.16
       This
      Agreement and any amendment or modification of this Agreement may be executed
      in
      several counterparts or by separate instruments and all of such counterparts
      and
      instruments shall constitute one agreement, binding on all of the parties
      hereto.

    


    [Remainder
      of Page Intentionally Left Blank]

    


     

    
      
        
        

      

      
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    IN
      WITNESS WHEREOF, the parties hereto have executed this Escrow Agreement as
      of
      this 14th
      day of
      November, 2007.

     

    PARTIES:

    


     

    RANDY
      MILBY

    


    


    


    By:
       /s/
      Randy
      Milby 
      
        
          

        

      

    

    Randy
      Milby 

    


    


    


    GENESIS
      HOLDINGS, INC.

    


    


    


    By:
       /s/
      Pamela Morse 

    
      
        

      

    

    
    

    Pamela
      Morse, Acting Chief Executive Officer

    


    


    VERBENA
      PHARMACEUTICALS INC.

    


    


    


    By:
       /s/
      Randy
      Milby

    
      
        

      

    

    
    

    Randy
      Milby, President

    


     

    ESCROW
      AGENT:

     

    FELDMAN
      WEINSTEIN & SMITH LLP

    


    


    


    By:
       /s/
      David
      N. Feldman

    
      
        

      

    

    David
      N.
      Feldman, Partner

    


    
      
        
        

      

      
        5