ex10_2.htm


    
      

    

    Exhibit
      10.2

     

    ESCROW
      AGREEMENT

     

    This
      ESCROW AGREEMENT (the “Agreement”) is dated as of July 10, 2007, by and
      among 24/7 MARKETING, LLC, a Nevada limited liability company and its successors
      and assigns (“Buyer”), OSM SUBSCRIBER MANAGEMENT INC., a duly registered
      Philippine corporation (“OSM”) and THOMAS TITLE & ESCROW, LLC, an
      Arizona limited liability company (the “Escrow Agent”).

     

    RECITALS

     

    A.           Buyer,
      OSM and George Yang, of legal age, Filipino, and with a postal address at 88
      Panay Avenue, Quezon City (“Designated Shareholder”) are parties to that
      certain Asset Purchase Agreement dated as of the date hereof (the “Purchase
      Agreement”), pursuant to which Buyer will (i) purchase from OSM its Business
      and the Acquired Assets and (ii) assume certain enumerated Liabilities that
      are
      directly related to the Business and the Acquired Assets.  Capitalized
      terms used herein, which are not otherwise defined herein, shall have the
      meanings ascribed to them in the Purchase Agreement.

     

    B.           Pursuant
      to Article VII of the Purchase Agreement, OSM and Designated Shareholder are
      to
      indemnify Buyer and its Affiliates against Losses if certain events
      occur.

     

    C.           The
      parties desire to establish an escrow account as collateral security for the
      indemnification obligations under Article VII of the Purchase
      Agreement.

     

    NOW,
      THEREFORE, for good and valuable consideration, the sufficiency and receipt
      of
      which are hereby acknowledged, the parties hereto, intending to be legally
      bound, hereby agree as follows:

     

    1.           Concurrently
      with the execution hereof, and pursuant to Section 2.6 of the Purchase
      Agreement, Buyer has withheld $450,000 (U.S. Dollars) as such amount may be
      reduced by charges thereto and payments and setoffs therefrom to compensate
      or
      reimburse Escrow Agent for amounts owing to it pursuant hereto, the
“Deposit” from the Purchase Price and placed it in Escrow Agent’s escrow
      account (the “Escrow Account”) to be administered by the Escrow Agent
      under the terms and conditions of this Agreement.

     

    (a)           Subject
      to and in accordance with the terms and conditions hereof, the Escrow Agent
      hereby agrees to act as escrow agent and to hold, safeguard, invest and reinvest
      and release or distribute the Deposit pursuant to the terms and conditions
      hereof.  It is hereby expressly stipulated and agreed that all
      interest and other earnings on the Deposit shall become a part of the Deposit
      for all purposes, and that losses resulting from the investment or reinvestment
      thereof from time to time and all amounts charged thereto to compensate or
      reimburse the Escrow Agent from time to time for amounts owing to it hereunder
      shall from the time of such loss or charge no longer constitute part of the
      Deposit.  It is hereby further stipulated and agreed all interest and
      other earnings on the Deposit shall be available for satisfaction of Indemnity
      Claims (as defined below), however in the absence of an Indemnity Claim, shall
      be distributed to OSM subject to and in accordance with the terms of Section
      3 of this Agreement.  It shall treat the Escrow Account as a trust
      fund in accordance with the terms of this Agreement and not as the property
      of
      Buyer.  Escrow Agent’s duties hereunder shall cease upon its
      distribution of the entire Escrow Account in accordance with this
      Agreement.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    (b)           Escrow
      Agent shall invest the Deposit in a money-market interest bearing account at
      a
      depository institution insured by the Federal Deposit Insurance Corporation,
      unless otherwise instructed in writing by Buyer.  It is expressly
      agreed and understood by the parties hereto that Escrow Agent shall not in
      any
      way whatsoever be liable for losses on any investments, including, but now
      limited to, losses from market risks due to premature liquidation or resulting
      from other actions taken pursuant to this Escrow Agreement.  Receipt
      and investment of the Deposit shall be confirmed by Escrow Agent as soon as
      practicable by account statement, and any discrepancies in any such account
      statement shall be noted by Buyer or OSM to Escrow Agent within 30 calendar
      days
      after receipt thereof.  Failure to inform Escrow Agent in writing of
      any discrepancies in any such account statement within said 30-day period shall
      conclusively be deemed confirmation of such account statement in its entirety.
      For purposes of this paragraph, each account statement shall be deemed to have
      been received by the party to whom directed on the earlier to occur of actual
      receipt thereof and three Business Days after the deposit thereof in the United
      States Mail, postage prepaid.

     

    (c)           Buyer
      hereby agrees to pay the Escrow Agent for its services hereunder in accordance
      with Escrow Agent’s fee schedule as attached as Schedule I hereto as in effect
      from time to time and to pay all expenses incurred by the Escrow Agent in
      connection with the performance of its rights hereunder and otherwise in
      connection with the preparation, operation, administration and enforcement
      of
      this Agreement, including, without limitation, attorneys’ fees, brokerage costs
      and related expenses, incurred by the Escrow Agent.  Each of the
      parties hereby grants to Escrow Agent a lien upon, and security interest in,
      all
      its right, title and interest in and to all of the Deposit as security for
      the
      payment and performance of its obligations owing to Escrow Agent hereunder
      including without limitation, its obligations of payment, indemnity and
      reimbursement provided for hereunder, which lien and security interest may
      be
      enforced by Escrow Agent without notice by charging and setting-off and paying
      from, the Deposit any and all amounts then owing to it pursuant to this Escrow
      Agreement or by appropriate foreclosure proceedings.

     

    (d)           If
      requested by the Escrow Agent, each of the parties shall provide Escrow Agent
      with its taxpayer identification number documented by an appropriate Form W-8
      or
      Form W-9 upon execution of this Escrow Agreement.  Failure so to
      provide such forms may prevent or delay disbursements from the Deposit and
      may
      also result in the assessment of a penalty and Escrow Agent’s being required to
      withhold tax on any interest or other income earned on the
      Deposit.  Any payments of income shall be subject to applicable
      withholding regulations then in force in the United States or any other
      jurisdiction, as applicable.

     

    2.           Buyer
      may make a claim for indemnification pursuant to Article VII of the Purchase
      Agreement (an “Indemnity Claim”) against the Deposit by giving written
      notice to OSM or Designated Shareholder, as applicable, with a copy to the
      Escrow Agent, specifying in reasonable detail the amount and basis thereof,
      which may be updated by written notice at a later time (a “Notice of
      Claim”).

     

    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

    


    (a)           OSM
      or Designated Shareholder may object to any Indemnity Claim (making such claim
      a
“Disputed Claim”) by giving written notice of such objection (a
“Dispute Notice”) to Buyer, with a copy to the Escrow Agent, at any time
      within 20 days after Buyer’s delivery of the Notice of Claim.  If
      neither of OSM or Designated Shareholder provides a Dispute Notice within that
      period, Buyer’s Indemnity Claim will be deemed to have been approved as a valid
      claim in the full amount thereof (an “Accepted Claim”).

     

    (b)           Promptly
      after an Indemnity Claim becomes an Accepted Claim, Buyer shall deliver a notice
      to the Escrow Agent certifying to Escrow Agent that the Indemnity Claim has
      become an Accepted Claim and directing the Escrow Agent to pay to Buyer, and
      the
      Escrow Agent shall pay to Buyer, an amount equal to the full amount of the
      Accepted Claim (or, if at such time there remains in the Escrow Account less
      than the full amount so payable, the full amount remaining in the Escrow
      Account). In the event funds transfer instructions are given (other than in
      writing at the time of execution of the Escrow Agreement), whether in writing,
      by facsimile, or otherwise, the Escrow Agent is authorized, but not required,
      to
      seek confirmation of such instructions by telephone call-back to the person
      or
      person designated on Schedule II hereto, and the Escrow Agent may rely upon
      the
      confirmations of anyone purporting to be the person or persons so
      designated.  If the Escrow Agent is unable to contact any of the
      authorized representatives identified in Schedule II, the Escrow Agent is hereby
      authorized to seek confirmation of such instructions by telephone call-back
      to
      any one or more of the respective party’s executive officers (“Executive
      Officers”), as the Escrow Agent may select. Such “Executive Officer” shall
      deliver to the Escrow Agent a fully executed Incumbency Certificate, and the
      Escrow Agent may rely upon the confirmation of anyone purporting to be any
      such
      officer.  The persons and telephone numbers for call-backs may be
      changed only in writing actually received and acknowledged by the Escrow
      Agent.

     

    (c)           In
      the event that an Indemnity Claim becomes a Disputed Claim, the Escrow Agent
      shall retain in the Escrow Account an amount equal to the full amount of the
      Disputed Claim and not make any distribution with respect thereto until (i)
      the
      Escrow Agent receives written instructions from either OSM or Designated
      Shareholder that the Disputed Claim has become an Accepted Claim and should
      be
      paid to Buyer, or (ii) a final award of the arbitrators rendered pursuant to
      the
      Purchase Agreement has been issued indicating the amount and recipient of such
      award, in which case the Escrow Agent shall release from the Escrow Account
      an
      amount consistent with such award.

     

    3.           On
      the first Business Day after the first anniversary of the Closing Date, upon
      written instruction from Buyer, the Escrow Agent shall distribute and pay to
      OSM
      the amount remaining in the Escrow Account, unless at such time there are any
      Indemnity Claims with respect to which Notices of Claims have been received
      but
      that have not been resolved pursuant to Section 2 hereof (“Pending
      Claims”), and which, if resolved or finally determined in favor of Buyer,
      would result in a payment to Buyer, in which case the Escrow Agent shall retain,
      and the total amount of the distribution to OSM shall be reduced by, the
“Pending Claims Reserve” (as defined below).  Thereafter, if
      any Pending Claim becomes an Accepted Claim, the Escrow Agent shall promptly
      pay
      to Buyer an amount in respect thereof determined in accordance with paragraph
      2(b) above, and to OSM the amount by which the remaining portion of the Escrow
      Account exceeds the then Pending Claims Reserve (determined as set forth
      below).  If any Pending Claim is resolved against Buyer, the Escrow
      Agent shall promptly pay to OSM the amount by which the remaining portion of
      the
      Escrow Account exceeds the then Pending Claims Reserve.  Upon
      resolution of all Pending Claims, the Escrow Agent shall pay to OSM the
      remaining portion of the Escrow Account.  As used herein, the
“Pending Claims Reserve” at any time shall mean an amount equal to the
      sum of the aggregate dollar amounts claimed to be due with respect to all
      Pending Claims (as shown in the Notices of Claims).

     

    
      
        
        

      

      
        3

        
          

        

      

      
        
        

      

    


    4.            The
      Escrow Agent shall cooperate in all respects with the parties hereto in the
      calculation of any amounts determined to be payable to Buyer in accordance
      with
      this Agreement.

     

    5.            (a)           The
      Escrow Agent undertakes to perform only such duties as are expressly set forth
      herein.  It is understood that the Escrow Agent is not a trustee or
      fiduciary and is acting hereunder merely in a ministerial capacity.

     

    (b)           The
      Escrow Agent shall not be liable for any action taken or omitted by it in good
      faith and in the exercise of its own best judgment, and may rely conclusively
      and shall be protected in acting upon any order, notice, demand, certificate,
      opinion or advice of counsel (including counsel chosen by the Escrow Agent),
      statement, instrument, report or other paper or document (not only as to its
      due
      execution and the validity and effectiveness of its provisions, but also as
      to
      the truth and acceptability of any information therein contained) which is
      believed by the Escrow Agent to be genuine and to be signed or presented by
      the
      proper person or persons.  The Escrow Agent shall not be bound by any
      notice or demand, or any waiver, modification, termination or rescission of
      this
      Agreement unless evidenced by a writing delivered to the Escrow Agent signed
      by
      the proper party or parties and, if the duties or rights of the Escrow Agent
      are
      affected, unless it shall have given its prior written consent
      thereto.

     

    (c)           The
      Escrow Agent’s sole responsibility upon receipt of any notice requiring any
      payment to Buyer pursuant to the terms of this Agreement or, if such notice
      is
      disputed by OSM or Designated Shareholder, the settlement with respect to any
      such dispute, whether by virtue of joint resolution, mediation, arbitration
      or
      determination of a court of competent jurisdiction, is to pay to Buyer the
      amount specified in such notice, and the Escrow Agent shall have no duty to
      determine the validity, authenticity or enforceability of any specification
      or
      certification made in such notice.

     

    (d)           The
      Escrow Agent shall not be liable for any action taken by it in good faith and
      believed by it to be authorized or within the rights or powers conferred upon
      it
      by this Agreement, and may consult with counsel of its own choice and shall
      have
      full and complete authorization and protection for any action taken or suffered
      by it hereunder in good faith and in accordance with the opinion of such
      counsel.

     

    (e)           Escrow
      Agent may resign hereunder upon 10 days’ prior notice to the Buyer and
      OSM.  If the parties fail to designate a substitute escrow agent
      within 30 days after the giving of such notice, Escrow Agent may institute
      a
      petition for interpleader.  Escrow Agent’s sole responsibility after
      such 30-day notice period expires shall be to hold the Deposit (without any
      obligation to reinvest the same) and to deliver the same to a designated
      substitute escrow agent, if any, or in accordance with the directions of a
      final
      order or judgment of a court of competent jurisdiction, at which time of
      delivery Escrow Agent’s obligations hereunder shall cease and
      terminate.

     

    
      
        
        

      

      
        4

        
          

        

      

      
        
        

      

    


    (f)           In
      the event of a dispute between the parties as to the proper disposition of
      the
      Deposit, the Escrow Agent shall be entitled (but not required) to deliver the
      Escrow Account into the United States District Court for the District of Arizona
      and, upon giving notice to the parties hereto of such action, shall thereupon
      be
      relieved of all further responsibility and liability.

     

    (g)           The
      Escrow Agent shall be indemnified and held harmless by Buyer from and against
      any expenses, including counsel fees and disbursements, or loss suffered by
      the
      Escrow Agent in connection with any action, suit or other proceeding involving
      any claim which in any way, directly or indirectly, arises out of or relates
      to
      this Agreement, the services of the Escrow Agent hereunder, or the Escrow
      Account held by it hereunder, other than expenses or losses arising from the
      gross negligence or willful misconduct of the Escrow Agent.  Promptly
      after the receipt by the Escrow Agent of notice of any demand or claim or the
      commencement of any action, suit or proceeding, the Escrow Agent shall notify
      the other parties hereto in writing.  In the event of the receipt of
      such notice, the Escrow Agent, in its sole discretion, may commence an action
      in
      the nature of interpleader in an appropriate court to determine ownership or
      disposition of the Deposit or it may deposit the Deposit with the clerk of
      any
      appropriate court or it may retain the Deposit pending receipt of a final,
      non-appealable order of a court having jurisdiction over all of the parties
      hereto directing to whom and under what circumstances the Deposit is to be
      disbursed and delivered.

     

    (h)           The
      Escrow Agent shall be entitled to reasonable compensation from Buyer for all
      services rendered by it hereunder.  The Escrow Agent shall also be
      entitled to reimbursement from Buyer for all expenses paid or incurred by it
      in
      the administration of its duties hereunder including, but not limited to, all
      counsel, advisors’ and agents’ fees and disbursements and all taxes or other
      governmental charges.  The Escrow Agent may consult with its counsel
      or other counsel satisfactory to it concerning any question relating to its
      duties or responsibilities hereunder or otherwise in connection herewith and
      shall not be liable for any action taken, suffered or omitted by it in good
      faith upon the advice of such counsel.

     

    (i)           From
      time to time on and after the date hereof, the parties hereto shall deliver
      or
      cause to be delivered to the Escrow Agent such further documents and instruments
      and shall do or cause to be done such further acts as the Escrow Agent shall
      reasonably request to carry out more effectively the provisions and purposes
      of
      this Agreement, to evidence compliance herewith or to assure itself that it
      is
      protected in acting hereunder.

     

    (j)           Notwithstanding
      anything herein to the contrary, the Escrow Agent shall not be relieved from
      liability hereunder for its own gross negligence or its own willful
      misconduct.

     

    (k)           The
      Escrow Agent shall not have any duties, responsibilities or
      obligations except those expressly set forth in this Agreement, and no
      implied covenants, responsibilities, duties, obligations or liabilities shall
      be
      interpreted into this Escrow Agreement.  Without limiting the generality of
      the foregoing, Escrow Agent: (i) shall not be subject to implied
      covenants, including but not limited to the covenant of good faith and fair
      dealing; and (ii) shall not have any duty to take any discretionary action
      or
      exercise any discretionary powers.

     

    
      
        
        

      

      
        5

        
          

        

      

      
        
        

      

    


    6.           This
      Agreement expressly sets forth all the duties of the Escrow Agent with respect
      to any and all matters pertinent hereto.  The Escrow Agent shall not
      be bound by the provisions of any agreement among the parties hereto except
      this
      Agreement and shall have no duty to inquire into the terms and conditions of
      any
      agreement made or entered into in connection with this Agreement, including,
      without limitation, the Purchase Agreement.

     

    7.           This
      Agreement shall inure to the benefit of and be binding upon the parties and
      their respective heirs, successors, assigns and legal representatives. This
      Escrow Agreement shall not be assigned by any of the parties (other that to
      an
      Affiliate) without the prior written consent of Escrow Agent, which may not
      be
      unreasonably withheld. This Agreement and the transactions contemplated hereby,
      and all disputes between the parties under or relating to this Agreement or
      the
      facts and circumstances leading to its execution, whether in contract, tort
      or
      otherwise, shall be governed by the laws of the State of Arizona, without
      reference to conflict of laws principles that would require the application
      of
      any other law.  This Agreement cannot be amended, modified or
      terminated except by a writing signed by Buyer, OSM and the Escrow
      Agent.

     

    8.           Buyer
      and OSM each hereby consents to the exclusive jurisdiction of Arizona and
      federal courts sitting in Maricopa County with respect to any claim or
      controversy arising out of this Agreement, subject in all respects to the
      dispute resolution provisions set forth in Section 2.  Service of
      process in any action or proceeding brought against Buyer or OSM in respect
      of
      any such claim or controversy may be made upon it by registered mail, postage
      prepaid, return receipt requested, at the address for notice specified in the
      Purchase Agreement.

     

    9.           All
      notices and other communications under this Agreement shall be in writing and
      shall be deemed given if given by hand or delivered by nationally recognized
      overnight carrier, or if given by telecopier and confirmed by mail (registered
      or certified mail, postage prepaid, return receipt requested), to the respective
      parties as follows:

     

    


     

    (a)           If
      to Buyer, to it at:

     

    24/7
      Marketing, LLC

    4840
      East
      Jasmine Street, Suite 105

    Mesa,
      Arizona 85205

    FAX:  (480)
      654-9727

    Attn.:  Daniel
      L. Coury, Sr.

     

    with
      a
      copy to:

     

    Snell
      & Wilmer L.L.P.

    One
      Arizona Center

    Phoenix,
      Arizona 85004

    FAX:  (602)
      382-6070

    Attn.:  Daniel
      M. Mahoney


    
      
        
        

      

      
        6

        
          

        

      

      
        
        

      

    


    (b)           If
      to OSM, to it at:

     

    Oncall
      Subscriber Management Inc.

    88
      Panay
      Avenue Suite 11007

    Quezon
      City, Metro Manila Philippines

    FAX:  (632)
      722-2382

    eMail:
      georgeyang18@gmail.com

    Attn.:  George
      Yang

    


    with
      a
      copy to:

    


    Attorney
      Caesar A. Guerzon

    Philippine
      Stock Exchange Center U-2701

    East
      Tower, Exchange Road, Ortigas Center

    Pasig
      City Philippines

    FAX:  (632)
      634-6958

    


    (c)           If
      to the Escrow Agent, to it at:

     

    Thomas
      Title & Escrow, LLC

    14500
      North Northsight Boulevard, Suite 133

    Scottsdale,
      Arizona 85260

    Attn:  Escrow
      Department

    Facsimile
      No.: (480) 222-1117

    Telephone
      No.: (480) 222-1116

     

    or
      to
      such other person or address as any of the parties hereto shall specify by
      notice in writing to all the other parties hereto.

     

    10.           (a)           If
      this Agreement requires a party to deliver any notice or other document, and
      such party refuses to do so, the matter shall be resolved in the same manner
      as
      provided in Section 8.5 of the Purchase Agreement.

     

    (b)           All
      notices delivered to the Escrow Agent shall refer to the provision of this
      Agreement under which such notice is being delivered and, if applicable, shall
      clearly specify the aggregate dollar amount due and payable to
      Buyer.

     

    (c)           This
      Agreement may be executed in any number of counterparts, each of which shall
      be
      deemed to be an original instrument and all of which together shall constitute
      a
      single agreement, and this Agreement may be executed by facsimile provided
      that
      the parties deliver the original signature pages within 48 hours of
      execution.

     

    [Signature
      Page Follows]


    
      
        
        

      

      
        7

        
          

        

      

      
        
        

      

    

    


    IN
      WITNESS WHEREOF, the parties have caused this Escrow Agreement to be executed
      as
      of the date above first written.

     

    
      	 	
              BUYER:

            
	 	 
	 	
              24/7
                MARKETING, LLC, a Nevada limited liability company

            
	 	 	 
	 	
              By:
                YP CORP., a Nevada corporation, its manager

            
	 	 	 
	 	 
	 	
              By:

            	
              /s/Daniel
                L. Coury, Sr.

            
	 	
              Name:
                Daniel L. Coury, Sr.

            
	 	
              Title:   Chief
                Executive Officer

            
	 	 	 
	 	 	 
	 	
              OSM:

            
	 	 	 
	 	
              ONCALL
                SUBSCRIBER MANAGEMENT INC., a Philippine corporation

            
	 	 	 
	 	
              /s/George
                Yang

            
	 	
              By:
                George Yang

            
	 	
              Title:
                President

            
	 	 	 
	 	 	 
	 	
              ESCROW
                AGENT:

            
	 	 	 
	 	
              THOMAS
                TITLE & ESCROW, LLC, an Arizona limited liability
                company

            
	 	 	 
	 	
              /s/
                Frank W. Busch III

            
	 	
              By:    Frank
                W. Busch III

            
	 	
              Title:
                President

            


    

     

    [Signature
      Page - Escrow Agreement]

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    Schedule
      I

    


    Escrow
      Agent Fees

     

    
      	
              Description
                of Service

            	
              Fee

            
	
              Base
                fee for escrow up to $500,000

            	
              $1,500,
                payable upon execution of Escrow Agreement

            
	
              Interest
                Bearing Account set up

            	
              $100

            
	
              Disbursements
                of Deposit pursuant to Section 2(b) and 2(c)

            	
              $25.00
                per disbursement

            
	
              Disbursements
                of Deposit pursuant to Section 3

            	
              Initial
                Disbursement is included in base escrow fee; $25.00 per disbursement
                thereafter

            
	
              Additional
                Work Requested (requires consent of OSM)

            	
              $100
                per hour

            


    

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    Schedule
      II

    


    Telephone
      Number(s) for Call-backs and Person(s)

    Designated
      to Confirm Funds Transfer Instructions

    


    


    If
      to
      24/7 Marketing, LLC:

    


    
      	
              Name

            	
              Telephone
                Number

            
	 	 
	
              1.
                John Raven

            	
              480-654-9646

            
	
              2.
                Gary Perschbacher

            	
              480-654-9646

            


    

    


    


    If
      to
      Oncall Subscriber Management Inc.:

    


    
      	
              Name

            	
              Telephone
                Number

            
	 	 
	
              1.
                George Yang

            	
              (63)
                917-813-6719

            


    

    


    


    Telephone
      call-backs shall be made to either party if joint instructions are required
      pursuant to the Escrow Agreement.