Unassociated Document


    THROUGHOUT
      THIS AGREEMENT, WHERE INFORMATION HAS BEEN REPLACED BY AN ASTERISK (*), THAT
      INFORMATION HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT
      FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406
      PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THE OMITTED
      INFORMATION HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
      COMMISSION.


    ESCROW
      AGREEMENT

     

    ESCROW
      AGREEMENT (the “Escrow
      Agreement”)
      made
      as of the 27th day of July, 2006, by and among IGIA, Inc., a Delaware
      corporation
      (the
“Company”),
      the
      Purchasers listed on Schedule A attached hereto (each a “Purchaser”
and
      collectively, the “Purchasers”)
      and
      Owen Naccarato, Esquire (the “Escrow
      Agent”).

     

    WITNESSETH:

     

    WHEREAS,
      the Company desires to raise capital in order to finance the growth of its
      business operations and for other general corporate purposes;

     

    WHEREAS,
      the Company and the Purchasers have agreed that, in order to raise capital,
      the
      Company shall issue and sell to the Purchasers debentures (the “Debentures”),
      convertible into shares of the Company’s common stock, par value $.001 per share
      (the “Common
      Stock”),
      and
      Warrants to purchase shares of Common Stock (the “Warrants”) for an aggregate
      purchase price of $500,000;

     

    WHEREAS,
      the Company has entered into a Securities Purchase Agreement dated as of July
      27, 2006 (the “Purchase
      Agreement”)
      with
      the Purchasers; 

     

    WHEREAS,
      the parties have agreed that all funds shall be paid into escrow for the benefit
      of the Company and the Escrow Agent has agreed to receive, hold and pay such
      funds, upon the terms and subject to the conditions hereinafter set
      forth.

     

    NOW,
      THEREFORE, in consideration of the mutual covenants herein contained, and for
      other good and valuable consideration, the receipt and legal sufficiency of
      which is hereby acknowledged, the parties to this Escrow Agreement hereby agree
      as follows: 

     

    1. Defined
      Terms.
      Capitalized terms used and not otherwise defined herein shall have the meanings
      respectively assigned to them in the Purchase Agreement.

     

    2. Escrow
      of Funds.
      On or
      prior to the Closing Date, the following shall occur: the Purchasers shall
      remit
      by wire transfer $395,000 of the Purchase Price to the Escrow Agent pursuant
      to
      this Escrow Agreement (the “Escrow
      Amount”).
      The
      Escrow Agent shall hold the Escrow Amount only in accordance with the terms
      and
      conditions of this Escrow Agreement.

     

    3. Investment
      of Funds.
      The
      Escrow Agent shall invest the monies in the Escrow Amount in an interest bearing
      bank account with, or certificates of deposit or time deposits with, maturities
      of no more than thirty (30) days issued by, a domestic commercial bank or such
      other bank or other financial institution as it normally holds such
      funds.

     

    4. Release
      of Funds.
      The
      Escrow Agent shall release the Escrow Amount in accordance with the disbursement
      instructions on
      Schedule B attached hereto.

     

    5. Further
      Assurances.
      The
      Company and the Purchasers agree to do such further acts and to execute and
      deliver such statements, assignments, agreements, instruments and other
      documents as the Escrow Agent from time to time reasonably may request in
      connection with the administration, maintenance, enforcement or adjudication
      of
      this Escrow Agreement in order (a) to give the Escrow Agent confirmation
      and assurance of the Escrow Agent’s rights, powers, privileges, remedies and
      interests under this Escrow Agreement and applicable law, (b) to better
      enable the Escrow Agent to exercise any such right, power, privilege, remedy
      or
      interest, or (c) to otherwise effectuate the purpose and the terms and
      provisions of this Escrow Agreement, each in such form and substance as may
      be
      reasonably acceptable to the Escrow Agent.

     


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    6. Conflicting
      Demands.
      If
      conflicting or adverse claims or demands are made or notices served upon the
      Escrow Agent with respect to the escrow provided for herein, the Company and
      the
      Purchasers agree that the Escrow Agent shall refuse to comply with any such
      claim or demand and withhold and stop all further performance of this escrow
      so
      long as such disagreement shall continue. In so doing, the Escrow Agent shall
      not be or become liable for damages, losses, costs, expenses or interest to
      any
      or any other person for its failure to comply with such conflicting or adverse
      demands. The Escrow Agent shall be entitled to continue to so refrain and refuse
      to so act until such conflicting claims or demands shall have been finally
      determined by a court or arbitrator of competent jurisdiction or shall have
      been
      settled by agreement of the parties to such controversy, in which case the
      Escrow Agent shall be notified thereof in a notice signed by such parties.
      The
      Escrow Agent may also elect to commence an interpleader or other action for
      declaratory judgment for the purpose of having the respective rights of the
      claimants adjudicated, and may deposit with the court all funds held hereunder
      pursuant to this Escrow Agreement; and if it so commences and deposits, the
      Escrow Agent shall be relieved and discharged from any further duties and
      obligations under this Escrow Agreement.

     

    7. Disputes.
      Each of
      the parties hereto hereby covenants and agrees that the Federal or state courts
      located in the Borough of Manhattan, State of New York shall have jurisdiction
      over any dispute with the Escrow Agent or relating to this Escrow
      Agreement.

     

    8. Expenses
      of the Escrow Agent.
      The
      Company agrees to pay any and all out-of-pocket costs and expenses incurred
      by
      the Escrow Agent in connection with all waivers, releases, discharges,
      satisfactions, modifications and amendments of this Escrow Agreement, the
      administration and holding of the Escrow Amount and the investment of such
      funds, and the enforcement, protection and adjudication of the Escrow Agent’s
      rights hereunder by the Escrow Agent, including, without limitation, the
      out-of-pocket disbursements of the Escrow Agent itself and expenses and costs
      of
      other attorneys it may retain, if any. The Company shall be liable to the Escrow
      Agent for any expenses payable by the Escrow Agent.

     

    9. Reliance
      on Documents and Experts.
      The
      Escrow Agent shall be entitled to rely upon any notice, consent, certificate,
      affidavit, statement, paper, document, writing or communication (which to the
      extent permitted hereunder may be by telegram, cable, telex, telecopier, or
      telephone) reasonably believed by it to be genuine and to have been signed,
      sent
      or made by the proper person or persons, and upon opinions and advice of legal
      counsel (including itself or counsel for any party hereto), independent public
      accountants and other experts selected by the Escrow Agent and mutually
      acceptable to each of the Company and the Purchasers. The Escrow Agent shall
      not
      be responsible to review the Certificate other than to confirm that it has
      been
      signed or to determine the clearance of checks received for the Escrow
      Amount.

     

    10. Status
      of the Escrow Agent, Etc.
      The
      Escrow Agent is acting under this Escrow Agreement as a stakeholder only. No
      term or provision of this Escrow Agreement is intended to create, nor shall
      any
      such term or provision be deemed to have created, any joint venture, partnership
      or attorney-client relationship between or among the Escrow Agent and the
      Company or the Purchasers. This Escrow Agreement shall not be deemed to prohibit
      or in any way restrict the Escrow Agent’s representation of the Company, who may
      be advised by the Escrow Agent on any and all matters pertaining to this Escrow
      Agreement. To the extent the Purchasers have been represented by the Escrow
      Agent, the Purchasers hereby waive any conflict of interest and irrevocably
      authorize and direct the Escrow Agent to carry out the terms and provisions
      of
      this Escrow Agreement fairly as to all parties, without regard to any such
      representation and irrespective of the impact upon the Purchasers. The Escrow
      Agent’s only duties are those expressly set forth in this Escrow Agreement, and
      each of the Company and the Purchasers authorize the Escrow Agent to perform
      those duties in accordance with its usual practices in holding funds of its
      own
      or those of other escrows. The Escrow Agent may exercise or otherwise enforce
      any of its rights, powers, privileges, remedies and interests under this Escrow
      Agreement and applicable law or perform any of its duties under this Escrow
      Agreement by or through its partners, employees, attorneys, agents or
      designees.

     


    
      
        
        

      

      
        -2-

        
          

        

      

      
        
        

      

    


    11. Exculpation.
      The
      Escrow Agent and its designees, and their respective partners, employees,
      attorneys and agents, shall not incur any liability whatsoever for the
      investment or disposition of funds or the taking of any other action in
      accordance with the terms and provisions of this Escrow Agreement, for any
      mistake or error in judgment, for compliance with any applicable law or any
      attachment, order or other directive of any court or other authority
      (irrespective of any conflicting term or provision of this Escrow Agreement),
      or
      for any act or omission of any other person selected with reasonable care and
      engaged by the Escrow Agent in connection with this Escrow Agreement (other
      than
      for such Escrow Agent’s or such person’s own acts or omissions breaching a duty
      owed to the claimant under this Escrow Agreement and amounting to gross
      negligence or willful misconduct as finally determined pursuant to applicable
      law by a governmental authority having jurisdiction); and each of the Company
      and the Purchasers hereby waive any and all claims and actions whatsoever
      against the Escrow Agent and its designees, and their respective partners,
      employees, attorneys and agents, arising out of or related directly or
      indirectly to any and all of the foregoing acts, omissions and circumstances.
      Furthermore, the Escrow Agent and its designees, and their respective partners,
      employees, attorneys and agents, shall not incur any liability (other than
      for a
      person’s own acts or omissions breaching a duty owed to the claimant under this
      Escrow Agreement and amounting to willful misconduct as finally determined
      pursuant to applicable law by a governmental authority having jurisdiction)
      for
      other acts and omissions arising out of or related directly or indirectly to
      this Escrow Agreement or the Escrow Amount; and each of the Company and the
      Purchasers hereby expressly waive any and all claims and actions (other than
      those attributable to a person’s own acts or omissions breaching a duty owed to
      the claimant and amounting to gross negligence or willful misconduct as finally
      determined pursuant to applicable law by a governmental authority having
      jurisdiction) against the Escrow Agent and its designees, and their respective
      partners, employees, attorneys and agents, arising out of or related directly
      or
      indirectly to any and all of the foregoing acts, omissions and circumstances.
      The Escrow Agent’s designees excludes the Purchasers for purposes
      hereof.

     

    12. Indemnification.
      The
      Escrow Agent and its designees (excluding the Purchasers), and their respective
      partners, employees, attorneys and agents, shall be indemnified, reimbursed,
      held harmless and, at the request of the Escrow Agent, defended, by the Company
      from and against any and all claims, liabilities, losses and expenses
      (including, without limitation, the reasonable disbursements, expenses and
      fees
      of their respective attorneys) that may be imposed upon, incurred by, or
      asserted against any of them, arising out of or related directly or indirectly
      to this Escrow Agreement or the Escrow Amount, except such as are occasioned
      by
      the indemnified person’s own acts and omissions breaching a duty owed to the
      claimant under this Escrow Agreement and amounting to willful misconduct as
      finally determined pursuant to applicable law by a governmental authority having
      jurisdiction.

     


    
      
        
        

      

      
        -3-

        
          

        

      

      
        
        

      

    


    13. Notices.
      Any
      notice, request, demand or other communication permitted or required to be
      given
      hereunder shall be in writing, shall be sent by one of the following means
      to
      the addressee at the address set forth below (or at such other address as shall
      be designated hereunder by notice to the other parties and persons receiving
      copies, effective upon actual receipt) and shall be deemed conclusively to
      have
      been given: (a) on the first business day following the day timely
      deposited with Federal Express (or other equivalent national overnight courier)
      or United States Express Mail, with the cost of delivery prepaid; (b) on the
      fifth business day following the day duly sent by certified or registered United
      States mail, postage prepaid and return receipt requested; or (c) when otherwise
      actually delivered to the addressee.  

     

    
      	
              If
                to the Company:

            	
              Igia,
                Inc.

              521
                5th
                Avenue, 20th
                Floor

              New
                York, NY 10175

              Attention:
                President

              Telephone: (212)
                575-0500

              Facsimile:   
                (212)
                354-6380

            
	 	 
	
              with
                a copy to:

            	
              Sichenzia
                Ross Friedman Ference LLP

              1065
                Avenue of the Americas

              New
                York, NY 10018

              Attention:
                Gregory Sichenzia, Esq.

              Telephone:
                (212) 930-9700

              Facsimile:   
                (212) 930-9725

            
	 	 
	
              If
                to any Purchaser:

            	
              At
                the address of such Purchaser set forth on the signature pages to
                the
                Purchase Agreement, with copies to such Purchaser’s counsel as set forth
                in the Purchase Agreement.

            
	 	 
	
              If
                to the Escrow Agent:

            	
              Owen
                Naccarato, Esq.

              Naccarato
                & Associates

              18430
                Von Karman Ave., Suite 430

              Irvine,
                CA 92612

              Telephone:
                (949) 851-9261

              Facsimile:   
                (949) 851-9262

            


    

     

    14. Section
      and Other Headings.
      The
      section and other headings contained in this Escrow Agreement are for
      convenience only, shall not be deemed a part of this Escrow Agreement and shall
      not affect the meaning or interpretation of this Escrow Agreement.

     

    15. Governing
      Law.
      This
      Escrow Agreement shall be governed by, and construed and enforced in accordance
      with, the laws of the State of New York, without regard to principles of
      conflicts of law. Each of the Company and the Purchasers (i) hereby irrevocably
      submit to the jurisdiction of the United States District Court sitting in the
      Southern District of New York for the purposes of any suit, action or proceeding
      arising out of or relating to this Agreement or the Purchase Agreement and
      (ii)
      hereby waive, and agree 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. Each of the Company
      and
      the Purchasers consent to process being served in any such suit, action or
      proceeding by mailing a copy thereof to such party at the address in effect
      for
      notices to it under this Agreement and agrees that such service shall constitute
      good and sufficient service of process and notice thereof. Nothing in this
      Section 15 shall affect or limit any right to serve process in any other manner
      permitted by law.

     


    
      
        
        

      

      
        -4-

        
          

        

      

      
        
        

      

    


    16. Counterparts.
      This
      Escrow Agreement may be executed by the parties hereto in separate counterparts,
      each of which when so executed and delivered shall be an original but all such
      counterparts shall together constitute one and the same agreement.

     

    17. Resignation
      of Escrow Agent.
      The
      Escrow Agent may, at any time, at its option, elect to resign its duties as
      Escrow Agent under this Escrow Agreement by providing notice thereof to each
      of
      the Company and the Purchasers. In such event, the Escrow Agent shall deposit
      the Escrow Amount with a successor independent escrow agent to be appointed
      by
      (a) the Company and the Purchasers within thirty (30) days following the receipt
      of notice of resignation from the Escrow Agent, or (b) the Escrow Agent if
      the
      Company and the Purchasers shall have not agreed on a successor escrow agent
      within the aforesaid 30-day period, upon which appointment and delivery of
      the
      Escrow Amount the Escrow Agent shall be released of and from all liability
      under
      this Escrow Agreement.

     

    18. Successors
      and Assigns; Assignment.
      Whenever in this Escrow Agreement reference is made to any party, such reference
      shall be deemed to include the successors, assigns and legal representatives
      of
      such party, and, without limiting the generality of the foregoing, all
      representations, warranties, covenants and other agreements made by or on behalf
      of each of the Company and the Purchasers in this Escrow Agreement shall inure
      to the benefit of any successor escrow agent hereunder; provided,
      however,
      that
      nothing herein shall be deemed to authorize or permit the Company or the
      Purchasers to assign any of its rights or obligations hereunder to any other
      person (whether or not an affiliate of the Company or the Purchasers) without
      the written consent of each of the other parties nor to authorize or permit
      the
      Escrow Agent to assign any of its duties or obligations hereunder except as
      provided in Section 17 hereof.

     

    19. No
      Third Party Rights.
      The
      representations, warranties and other terms and provisions of this Escrow
      Agreement are for the exclusive benefit of the parties hereto, and no other
      person, including the creditors of the Company or the Purchasers, shall have
      any
      right or claim against any party by reason of any of those terms and provisions
      or be entitled to enforce any of those terms and provisions against any
      party.

     

    20. No
      Waiver by Action, Etc.
      Any
      waiver or consent respecting any representation, warranty, covenant or other
      term or provision of this Escrow Agreement shall be effective only in the
      specific instance and for the specific purpose for which given and shall not
      be
      deemed, regardless of frequency given, to be a further or continuing waiver
      or
      consent. The failure or delay of a party at any time or times to require
      performance of, or to exercise its rights with respect to, any representation,
      warranty, covenant or other term or provision of this Escrow Agreement in no
      manner (except as otherwise expressly provided herein) shall affect its right
      at
      a later time to enforce any such term or provision. No notice to or demand
      on
      either the Company or the Purchasers in any case shall entitle such party to
      any
      other or further notice or demand in the same, similar or other circumstances.
      All rights, powers, privileges, remedies and interests of the parties under
      this
      Escrow Agreement are cumulative and not alternatives, and they are in addition
      to and shall not limit (except as otherwise expressly provided herein) any
      other
      right, power, privilege, remedy or interest of the parties under this Escrow
      Agreement or applicable law.

     


    
      
        
        

      

      
        -5-

        
          

        

      

      
        
        

      

    


    21. Modification,
      Amendment, Etc.
      Each
      and every modification and amendment of this Escrow Agreement shall be in
      writing and signed by all of the parties hereto, and each and every waiver
      of,
      or consent to any departure from, any covenant, representation, warranty or
      other provision of this Escrow Agreement shall be in writing and signed by
      the
      party granting such waiver or consent.

     

    22. Entire
      Agreement.
      This
      Escrow Agreement contains the entire agreement of the parties with respect
      to
      the matters contained herein and supersedes all prior representations,
      agreements and understandings, oral or otherwise, among the parties with respect
      to the matters contained herein.

     

     

    


     

    [REMAINDER
      OF PAGE INTENTIONALLY LEFT BLANK]

     


    
      
        
        

      

      
        -6-

        
          

        

      

      
        
        

      

    


    IN
      WITNESS WHEREOF, the parties hereto have executed this Escrow Agreement on
      the
      date first written above. 

     

    
      	 	
              IGIA,
                Inc.

            
	 	 
	 	
              By:
                /s/ Avi
                Sivan                                                              
                

            
	 	
                   
                Name: Avi Sivan

                   
                Chief Executive Officer

            
	 	 
	 	 
	 	
              By:
                /s/ Owen
                Naccarato                                                   
                

            
	 	
                   
                Owen Naccarato, Esq., as escrow agent

            
	 	 
	 	 
	
               

            	
              AJW
                PARTNERS, LLC

            
	 	
              By:
                SMS Group, LLC

            
	 	 
	 	 
	 	
              By:
                /s/ Corey S.
                Ribotsky                                                  

            
	 	
                   
                Corey S. Ribotsky

                   
                Manager

            
	 	 
	 	 
	 	
              AJW
                OFFSHORE, LTD.

              By:
                First Street Manager II, LLC

               

               

              
                By:
                  /s/ Corey S.
                  Ribotsky                                                  

              

                   
                Corey S. Ribotsky

                   
                Manager

            
	 	
              AJW
                QUALIFIED PARTNERS, LLC

              By:
                AJW Manager, LLC

               

               

              
                By:
                  /s/ Corey S.
                  Ribotsky                                                  

              

              Corey
                S. Ribotsky

              Manager

            
	 	
              NEW
                MILLENNIUM CAPITAL PARTNERS II, LLC

              By:
                First Street Manager II, LLC

               

               

              
                By:
                  /s/ Corey S.
                  Ribotsky                                                  

              

                   
                Corey S. Ribotsky

                   
                Manager

            


    

    


     

    
      
        
        

      

      
        -7-

        
          

        

      

      
        
        

      

    

    


    


     

    SCHEDULE
      A

    


    


    


    Purchasers:

    


    
      	·  	
              AJW
                Partners, LLC

            


    

    
      	·  	
              AJW
                Offshore, Ltd.

            


    

    
      	·  	
              AJW
                Qualified Partners, LLC

            


    

    
      	·  	
              New
                Millennium Capital Partners II, LLC

            


    

    



     

    
      
        
        

      

      
        8

        
          

        

      

      
        
        

      

    

     

    SCHEDULE
      B


    On
      August 15, 2006

    


    1.  $88,750.00
      to Igia, Inc. in accordance with the wire transfer instructions attached as
      Exhibit
      A
      hereto;
      and

     

    2.  $10,000.00
      to Sichenzia Ross Friedman & Ference LLP in accordance with the wire
      transfer instructions attached as Exhibit
      B
      hereto
      (which represents $5,000 for the second of three payments for services provided
      in connection with the Purchase Agreement and $5,000 for general monthly
      corporate representation).

    


    On
      September 15, 2006

    


    3.  $88,750.00
      to Igia, Inc. in accordance with the wire transfer instructions attached as
      Exhibit
      A
      hereto;
      and

     

    4.  $10,000.00
      to Sichenzia Ross Friedman & Ference LLP in accordance with the wire
      transfer instructions attached as Exhibit
      B
      hereto
      (which represents $5,000 for the third of three payments for services provided
      in connection with the Purchase Agreement and $5,000 for general monthly
      corporate representation).

    


    On
      October 15, 2006

    


    5.  $93,750.00
      to Igia, Inc. in accordance with the wire transfer instructions attached as
      Exhibit
      A
      hereto;
      and

     

    6.  $5,000.00
      to Sichenzia Ross Friedman & Ference LLP in accordance with the wire
      transfer instructions attached as Exhibit
      B
      hereto
      (which represents $5,000 for general monthly corporate
      representation).

    


    On
      November 15, 2006

    


    7.  $93,750.00
      to Igia, Inc. in accordance with the wire transfer instructions attached as
      Exhibit
      A
      hereto;
      and

     

    8.  $5,000.00
      to Sichenzia Ross Friedman & Ference LLP in accordance with the wire
      transfer instructions attached as Exhibit
      B
      hereto
      (which represents $5,000 for general monthly corporate
      representation).

     

     

    
      
        
        

      

      
        9

        
          

        

      

      
        
        

      

    

    


      Exhibit
        A

       

      Company:      IGIA,
        Inc.

      


      Account
        Name:        *

      


      Account
        Number:    *

      


      Bank:                         
        Bank
        of
        America

      


      ABA:                         
        021000322

      


      Branch
        Address:      335
        Madison Avenue, New York, NY 10017

      


       


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      


      


       

      Exhibit
        B

       

       

      Bank:   HSBC
        Bank
        USA

      


      Branch
        Address:      950
        Third
        Avenue, New York, New York 10022

      


      Account
        Name:       *

      


      Account
        No.:            
*

      


      ABA
        No.:                   
021001088