escrowagmt.htm


    Exhibit 10.21

       
 

      


      ESCROW
AGREEMENT

      


      


      This
Escrow Agreement (this “Agreement”) is entered into as of September 29, 2009 by
and among LocatePlus Holdings Corp., a Delaware corporation ( “LP”), Employment
Screening Profiles, Inc., a Florida corporation ( “ESP”), Derrick A. Spatorico,
(the “Shareholder”), and. Geoffrey T. Chalmers, Esq. (in his capacity as escrow
agent, the “Escrow Agent”).

      


      RECITALS

      


      A.
Pursuant to the provisions of that certain Purchase and Sale Agreement dated as
of September 20, 2009  (the “Purchase and Sale Agreement”), among LP
and ESP, and the Shareholder, LP will purchase from the Shareholder all of the
outstanding capital stock of the ESP (1,000 no-par shares) (the “ESP Shares”)
and the consideration therefor will be in the form of 9,000,000 shares of Common
Stock of LP (the “LP Shares”) at a price of $0.1944.

      


      B. Under
the terms of the Agreement, the ESP Shares and the  LP Shares, (
collectively, the “Escrow Corpus”) are to be deposited in escrow  with
the Escrow Agent.

      


      C. The
Agreement provides that the Escrow Agent shall hold and administer the Escrow
Corpus in accordance with the terms of this Escrow Agreement and the Purchase
and Sale Agreement.

      


      D. The
execution and delivery of this Escrow Agreement is a condition of
closing  under the Purchase and Sale Agreement.

      


      ESCROW
TERMS

      


      NOW,
THEREFORE, in consideration of the covenants and conditions set forth herein,
the parties agree as follows.

      


      
        	
                1.  

              	
                Delivery
      of Escrowed Shares

              


      

      


      The ESP
Shares, plus Instruments of Transfer to LP as described in the Purchase and Sale
Agreement,  will be delivered to the Escrow Agent at a closing which
is anticipated to occur on or about October 1, 2009

      


      
        	
                a.  

              	
                Not
      later than September 1, 2010 LP shall deposit  the LP Shares in
      escrow with the Escrow Agent. 1

              


      

      


      
        	
                b.  

              	
                The
      Escrow Corpus will be held and administered in accordance with the terms
      and conditions of this Escrow Agreement and the Purchase and Sale
      Agreement.

              


      

      


      
        	
                2.  

              	
                Administration

              


      

      


      
        	
                a.  

              	
                The
      Escrow Agent shall hold and safeguard the Escrow Corpus, until the
      Termination Date (as defined below), and shall administer, hold and
      dispose of such Escrow Corpus only in accordance with the terms of this
      Escrow Agreement and the Purchase and Sale
  Agreement.

              


      

      


      
        	
                3.  

              	
                Distribution
      of Shares from the Escrow Corpus

              


      

      


      
        	
                a.  

              	
                The
      LP Shares shall be deposited into escrow2
      and the Escrow Agent shall have no right to transfer it except pursuant to
      the provisions of this Escrow Agreement and the Purchase and Sale
      Agreement.

              


      

      


      
        	
                b.  

              	
                The
      ESP Shares shall remain in Escrow until all the LP Shares have been fully
      issued to the Shareholder at which time the certificates for the ESP
      Shares, together with the Instruments of Transfer,  shall be
      delivered to LP.

              


      

      


      
        	
                c.  

              	
                Subject
      to the terms and conditions of the Purchase and Sale Agreement and of this
      Escrow Agreement, the Escrow Agent shall have the obligation to deliver
      all the LP Shares then in escrow to the Shareholder no later than
      September 1, 2011.

              


      

      


      
        	
                d.  

              	
                The
      Shareholder shall have the right at any time after September 1, 2010, but
      not before, to withdraw, at his option, up to four million five hundred
      thousand (4,500,000) of the LP Shares upon notice to the Escrow Agent and
      to LP..

              


      

      


      
        	
                e.  

              	
                LP
      and the Shareholder acknowledge that under the Purchase and sale Agreement
      LP has an obligation to pay an escrow fee to the Shareholder on a
      quarterly basis.  LP and the Shareholder also acknowledge that
      under and subject to the terms of the Purchase and Sale
      Agreement,  the Shareholder has the right to demand to have the
      ESP shares re-delivered to him in the event LP fails to make a payment of
      the escrow fee or upon other specified conditions specified in the
      Purchase and Sale Agreement.

              


      

      


      
        	
                f.  

              	
                In
      the event that the Shareholder notifies the Escrow Agent, in writing with
      a copy to LP that LP is in breach of the Purchase and sale Agreement due
      to failure to make a timely payment and that the Shareholder demands
      re-delivery of the ESP shares, LP will have 30 days to contest that demand
      in writing or file for arbitration. Failing either of these events, the
      Escrow Agent will thereafter return  the ESP Shares plus any
      instruments of transfer to the Shareholder in such form as he may
      designate.

              


      

      


      
        	
                g.  

              	
                This
      Escrow Agreement and all obligations of the Escrow Agent under it shall
      terminate upon the date of final delivery of the Escrow Corpus to the
      appropriate party or parties in accordance with the terms of this Escrow
      Agreement and the Purchase and Sale Agreement (the “Termination
      Date”).

              


      

      


      
        	
                4.  

              	
                Provisions
      Regarding the Escrow Agent

              


      

      


      
        	
                a.  

              	
                Liability
      of the Escrow Agent

              


      

      


      
        	
                i.  

              	
                In
      performing any duties under this Agreement, the Escrow Agent shall not be
      liable to any party for damages, losses, or expenses, except for gross
      negligence or willful misconduct on the part of the Escrow Agent. The
      Escrow Agent shall not incur any liability for (i) any act or failure to
      act made or omitted in good faith or (ii) any action taken or omitted in
      reliance on any instrument, including any written statement or affidavit
      provided for in this Agreement that the Escrow Agent shall, in good faith,
      believe to be genuine, nor will the Escrow Agent be liable or responsible
      for forgeries, fraud, impersonations, or determining the scope of any
      representative authority, provided that the Escrow Agent believed, in good
      faith, that such forgeries, fraud, or impersonations were genuine and
      acted without gross negligence or willful misconduct. In addition, the
      Escrow Agent may consult with legal counsel in connection with the Escrow
      Agent’s duties under this Agreement and shall be fully protected in any
      act taken, suffered, or permitted by it in good faith and in accordance
      with the advice of counsel. The Escrow Agent is not responsible for
      determining and verifying the authority of any person acting or purporting
      to act on behalf of any party to this
Agreement.

              


      

      


      
        	
                b.  

              	
                Fees
      and Expenses

              


      

      


      
        	
                i.  

              	
                LP
      agrees shall pay the Escrow Agent, as compensation for its services
      hereunder: (a) a $1,000 non-refundable start-up fee, payable upon the
      Escrow Agent’s execution of this Agreement; and (b) an annual renewal fee
      of $ 1,000 payable on each anniversary date of this
    Agreement.

              


      

      


      
        	
                c.  

              	
                Controversies

              


      

      


      
        	
                i.  

              	
                If
      any controversy arises between the parties to this Agreement, or with any
      other party, concerning the subject matter of this Agreement, its terms or
      conditions, the Escrow Agent will not be required to determine the
      controversy or to take any action regarding it. The Escrow Agent may hold
      all documents and funds and may wait for settlement of any such
      controversy. The Escrow Agent is authorized to deposit with the arbitrator
      or any court of competent jurisdiction, as applicable, all documents and
      funds held in escrow. Upon initiating such action, the Escrow Agent shall
      be fully released and discharged of and from all obligations and liability
      imposed by the terms of this
Agreement.

              


      

      


      
        
           

        

        
           

          
            

          

        

        
           

        

      

      
        	
                d.  

              	
                Indemnification
      of the Escrow Agent

              


      

      


      
        	
                i.  

              	
                The
      LP and the Shareholder agree, jointly and severally, to indemnify and hold
      the Escrow Agent harmless against any and all losses, claims, damages and
      liabilities, including reasonable costs of investigation, attorneys’ fees,
      and disbursements that may be imposed on the Escrow Agent or incurred by
      the Escrow Agent in connection with the performance of its duties under
      this Agreement, including, but not limited to, any litigation arising from
      this Agreement or involving its subject matter, unless such loss,
      liability, claim or expense shall have been determined by a court of
      competent jurisdiction to be a result of the Escrow Agent’s gross
      negligence or willful misconduct. Anything in this Agreement to the
      contrary notwithstanding, in no event shall the Escrow Agent be liable for
      special, punitive, indirect, or consequential loss or damage of any kind
      whatsoever (including but not limited to lost profits), even if the Escrow
      Agent has been advised of the likelihood of such damages and regardless of
      the form of action. The obligations to indemnify the Escrow Agent under
      this section shall survive termination of this
  Agreement.

              


      

      


      
        	
                e.  

              	
                Resignation
      of the Escrow Agent

              


      

      


      
        	
                i.  

              	
                The
      Escrow Agent may resign at any time upon giving at least thirty (30) days’
      written notice to the parties; provided, however that no such resignation
      shall become effective until the appointment of a successor escrow agent,
      which shall be accomplished as follows: LP and the Shareholder shall use
      their best efforts to mutually agree on a successor escrow agent within
      thirty (30) days after receiving such notice. If the LP and the
      Shareholder fail to agree on a successor escrow agent within such time,
      the Escrow Agent shall have the right to appoint a successor escrow agent
      authorized to do business in the Commonwealth of Massachusetts, which
      successor escrow agent shall be reasonably acceptable to the LP and the
      Shareholder. The successor escrow agent shall execute and deliver an
      instrument accepting such appointment and it shall, without further acts,
      be vested with all the estates, properties, rights, powers, and duties of
      the predecessor escrow agent as if originally named as escrow agent. Upon
      the effective appointment of a successor escrow agent, the Escrow Agent
      shall be discharged from any further duties and liability under this
      Agreement.

              


      

      
 

      
        	
                5.  

              	
                General

              


      

      


      
        	
                a.  

              	
                Assignment

              


      

      


      
        	
                i.  

              	
                The
      Shareholder may assign any of his rights or obligations hereunder. LP may
      not assign any of its rights or obligations hereunder without the prior
      written consent of the Shareholder. This Agreement shall be binding upon
      and inure to the benefit of the parties and their respective heirs, legal
      representatives, successors and
assigns.

              


      

      


      
        	
                b.  

              	
                Entire
      Agreement

              


      

      


      
        	
                i.  

              	
                This
      Agreement embodies and constitutes the entire understanding among the
      parties with respect to the transactions contemplated by this Escrow
      Agreement, and all prior or contemporaneous agreements, understandings,
      representations and statements between the parties, oral or written, are
      merged into this Agreement.

              


      

      


      
        	
                c.  

              	
                Modification
      and Waiver

              


      

      


      
        	
                i.  

              	
                Neither
      this Agreement nor any of its provisions may be modified, amended,
      discharged or terminated except in writing signed by the party against
      which the enforcement of such modification, amendment, discharge or
      termination is sought, and then only to the extent set forth in such
      writing. No failure of a party to insist upon strict performance by the
      other party of any of the terms and conditions of this Agreement shall
      constitute or be deemed to be a waiver of any such term or condition, or
      constitute an amendment or waiver of any such term or provision by course
      of performance, and each party, notwithstanding any failure to insist upon
      strict performance, shall have the right thereafter to insist upon strict
      performance by the other party of any and all of the terms and conditions
      of this Agreement. Any party may, in its sole and absolute discretion,
      waive, only in writing, any condition set forth in this Agreement to such
      party’s obligations under this Agreement which is for the sole benefit of
      the waiving party, in which event the non-waiving party or parties shall
      be obligated to close the transaction upon all of the remaining terms and
      conditions of this Agreement.

              


      

      


      
        	
                d.  

              	
                Notices

              


      

      


      
        	
                i.  

              	
                Any
      notice required or permitted under this Agreement shall be in writing, and
      shall be delivered personally or sent by first class certified mail, or by
      air courier, postage or other charges prepaid, to the parties at the
      following addresses: 

              


      

      
        	
                 
      

              	
                   
         

              


      

      
        	
                 
      

              	
                to
      the Escrow Agent:       
         

              


      

      


      Geoffrey
T. Chalmers, Esq.

      33 Broad
Street, Suite 1100

      Boston,
MA 02109

      (617)
227-3709 (fax)

      


         

      to the
Shareholder:           

      


      Derrick
A. Spatorico

      47
Vineyard Hill

      Fairport,
New York 14450   

      (____)  ____________  (fax)

      


      to
LP:

      


      LocatePLUS
Holdings Corporation

      100
Cummings Center #235M

      Beverly,
MA 01915

      Att:
Geoffrey Lee, CEO

      (978)
524-8887 (fax)        

      


          

      or to
such other address or addresses as the parties may from time to time specify in
writing. Notice shall be provided by air courier and shall be deemed effective
upon the earlier of actual delivery to the recipient or six days after the date
on which such notice was delivered to the courier service. If notice is sent in
any manner other than as provided by this Section 5.4, notice shall be deemed
received when actually received by the party to whom the notice was
delivered.

      


      
        	
                6.  

              	
                Governing
      Law; Severability

              


      

      


      
        	
                a.  

              	
                This
      Agreement shall be governed for all purposes by the laws of the
      Commonwealth of Massachusetts applicable to agreements executed and to be
      wholly performed in Massachusetts. Nothing contained in this Agreement
      shall be construed so as to require the commission of any act contrary to
      law, and whenever there is any conflict between any provision contained in
      this Agreement and any present or future statute or law, ordinance or
      regulation or judicial ruling or governmental decision with the force of
      law contrary to which the parties have no legal right to contract, the
      latter shall prevail, but the provision of the Agreement which is affected
      shall be limited only to the extent necessary to bring it within the
      requirements of such law, ruling or decision without invalidating or
      affecting the remaining provisions of the
  Agreement.

              


      

      


      
        
           

        

        
           

          
            

          

        

        
           

        

      

      
        	
                7.  

              	
                Counterparts

              


      

      


      
        	
                a.  

              	
                This
      Agreement may be executed in counterparts, each of which shall be an
      original, but such documents shall constitute one and the same
      document.

              


      

      


      
        	
                8.  

              	
                Contract
      Interpretation

              


      

      


      
        	
                a.  

              	
                The
      parties acknowledge that they have caused this Agreement to be reviewed
      and approved by legal counsel of their own choice. This Agreement has been
      specifically negotiated, and any presumption that an ambiguity contained
      in this Agreement shall be construed against the party that caused this
      Agreement to be drafted shall not apply to the interpretation of this
      Agreement.

              


      

      


      
        	
                9.  

              	
                Other
      Parties

              


      

      


      
        	
                a.  

              	
                Nothing
      contained in this Agreement shall be construed as giving any person, firm,
      corporation or other entity, other than the parties to this Agreement and
      their successors and permitted assigns, any right, remedy or claim under
      or in respect of this Agreement or any term or condition contained in this
      Agreement.

              


      

      


      
        	
                10.  

              	
                Incorporation
      by Reference

              


      

      


      
        	
                a.  

              	
                All
      attached exhibits are incorporated as terms of this Agreement by this
      reference.

              


      

      


      
        	
                11.  

              	
                Cooperation

              


      

      


      
        	
                a.  

              	
                Each
      party will, at the reasonable request of any other party, from time to
      time execute and deliver such other assignments, transfers, conveyances,
      and other instruments and documents and do and perform such other acts and
      things as may be reasonably necessary or desirable for effecting complete
      consummation of this Agreement and the transactions contemplated
      hereby.

              


      

      


      
        	
                12.  

              	
                Defined
      Terms

              


      

      


      
        	
                a.  

              	
                Capitalized
      terms used herein and not otherwise defined shall have the meaning set
      forth in the Agreement.

              


      

      


      
        	
                13.  

              	
                No
      Conflict

              


      

      


      
        	
                a.  

              	
                In
      the event of any conflict between the terms of this Agreement and the
      Agreement, the terms of this Escrow Agreement shall
    prevail.

              


      

      


      
        	
                14.  

              	
                Arbitration

              


      

      


      
        	
                a.  

              	
                All
      disputes between the Shareholder and/or the LP, on the one hand, the
      Escrow Agent on the other hand, relating to the payment of the Escrow
      Funds and/or the Escrow Agent’s rights, obligations, and liabilities
      arising from or related to this Agreement shall be resolved by mandatory
      binding expedited arbitration under the Commercial Arbitration Rules of
      the American Arbitration Association (“AAA”) in effect as of the date the
      request for arbitration is filed (the “Rules”) before a single, neutral
      arbitrator, selected in accordance with the Rules. Each of the parties may
      initiate such an arbitration pursuant to the Rules. The arbitration shall
      be held in Boston, Massachusetts (such site being herein referred to as
      the “Forum”). The LP, the Shareholder, and the Escrow Agent each agree
      that it will abide by any decision rendered in such arbitration, and that
      any court having jurisdiction may enforce such a decision. Each of the
      parties hereto submits to the non-exclusive personal jurisdiction of the
      courts of the Forum as an appropriate place for compelling arbitration or
      giving legal confirmation of any arbitration award, and irrevocably waives
      any objection which it may now or hereafter have to the venue of any such
      enforcement proceeding brought in any of said courts and any claim of
      inconvenient forum. Each of the parties agrees that service of process for
      all arbitration proceedings may be made in accordance with the Rules and
      shall be deemed effective as provided therein. Any claim or action of any
      kind (including, but not limited to, any claims for breach of contract),
      against the Escrow Agent arising out of or connected with this Agreement
      shall be barred and waived unless asserted by the commencement of an
      arbitration proceeding within 180 days after the accrual of the action or
      claim,. This limitation shall also apply to claims, which might otherwise
      be asserted against the Escrow Agent as a “set-off,” credit,
      cross-complaint, or defense. This section and the forgoing limitation
      shall survive termination of this
Agreement.

              


      

      


      
        	
                15.  

              	
                Filings
      and Resolution

              


      

      
        	
                a.  

              	
                Concurrently
      with its execution and delivery of this Agreement, LP shall deliver to the
      Escrow Agent (a) a copy of its articles of incorporation, (b) corporate
      resolutions, signed by its corporate secretary, authorizing it to enter
      this Agreement, and (c) a completed Certificate of
    Authority.

              


      

       

       

      IN
WITNESS WHEREOF, the parties have caused this Agreement to be duly executed by
their respective representatives hereunto authorized as of the day and year
first above written.

      


      LocatePlus
Holdings Corporation

      


      _____________________________

      By:   
Geoffrey Lee

      Title:
Interim Chief Executive Officer

       

      
 

      Employment
Screening Profiles, Inc.

      dbaTruBackgrounds

      


      ____________________________

      By:           Derrick
A. Spatorico

      Title:        President
& CEO

      


         

       

      Shareholder

      


      _____________________________

      By:           Derrick
A. Spatorico