EACH
PURCHASER AT EACH CLOSING TOGETHER WITH:
(A)
THE COMPANY'S EXECUTED COUNTERPART OF THE
PURCHASE AGREEMENT;
(B)
THE COMPANY'S EXECUTED COUNTERPART OF THE
REGISTRATION RIGHTS AGREEMENT;
(C)
THE EXECUTED OPINION OF COMPANY COUNSEL, IN
THE FORM OF EXHIBIT D TO THE PURCHASE AGREEMENT; AND
(D)
THE COMPANY'S ORIGINAL EXECUTED COUNTERPART
OF THIS ESCROW AGREEMENT.
1.5
IN THE EVENT THAT THE FOREGOING ITEMS ARE
NOT IN THE ESCROW AGENT'S POSSESSION WITHIN FIVE (5) TRADING DAYS OF THE ESCROW
AGENT NOTIFYING THE COMPANY THAT THE ESCROW AGENT HAS CUSTODY OF THE
SUBSCRIPTION AMOUNT FOR EACH CLOSING, THEN EACH PURCHASER SHALL HAVE THE RIGHT
TO DEMAND THE RETURN OF THEIR PORTION OF THE SUBSCRIPTION AMOUNT.
1.6
ONCE THE ESCROW AGENT RECEIVES A RELEASE
NOTICE IN THE FORM ATTACHED HERETO AS EXHIBIT X (THE "RELEASE NOTICE") EXECUTED
BY THE COMPANY AND INDIGO IT SHALL WIRE THE AGGREGATE SUBSCRIPTION AMOUNTS PER
THE WRITTEN INSTRUCTIONS OF THE COMPANY AND INDIGO CONTAINED IN THE RELEASE
NOTICE.
1.7
WIRE TRANSFERS TO THE COMPANY SHALL BE MADE
PURSUANT TO WRITTEN INSTRUCTIONS FROM THE COMPANY PROVIDED TO THE ESCROW AGENT
ON THE DATE OF THE PURCHASE AGREEMENT.
1.8
ONCE THE FUNDS (AS SET FORTH ABOVE) HAVE
BEEN SENT PER THE RELEASE NOTICE INSTRUCTIONS, THE ESCROW AGENT SHALL THEN
ARRANGE TO HAVE THE PURCHASE AGREEMENT, THE DEBENTURES, THE REGISTRATION RIGHTS
AGREEMENT, THE ESCROW AGREEMENT, THE WARRANTS, AND THE OPINION OF COUNSEL
DELIVERED TO THE APPROPRIATE PARTIES.
2
ARTICLE II
MISCELLANEOUS
2.1
NO WAIVER OR 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
ALL NOTICES OR OTHER COMMUNICATIONS REQUIRED
OR PERMITTED HEREUNDER SHALL BE IN WRITING, AND SHALL BE SENT AS SET FORTH IN
THE PURCHASE AGREEMENT.
2.3
THIS ESCROW AGREEMENT SHALL BE BINDING UPON
AND SHALL INURE TO THE BENEFIT OF THE PERMITTED SUCCESSORS AND PERMITTED ASSIGNS
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 ITS AGENT 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 ALL PARTIES HAD PREPARED
THE SAME.
UNLESS OTHERWISE INDICATED, ALL REFERENCES TO ARTICLES ARE TO THIS
ESCROW AGREEMENT.
2.6
THE PARTIES HERETO EXPRESSLY AGREE THAT THIS
ESCROW AGREEMENT SHALL BE