Attached files
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| 8-K - World Surveillance Group Inc. | v197934_8k.htm |
ESCROW AND STOCK PURCHASE
AGREEMENT
This Escrow Agreement (“Agreement”) is
entered into by and between Sanswire Corporation, a Delaware Corporation, 17501
Biscayne Blvd., Suite 430, Aventura, Florida 33160 (“Sanswire”), Michael
K. Clark, 157 Beach 135 Street, Belle Harbor, New York 11694, and Hinshaw &
Culbertson LLP, an Illinois limited liability partnership, 780 Third Avenue,
4th
Floor, New York, New York 10017 (“Escrow Agent”), on this 29th day of September
2010 as follows:
WHEREAS, the Securities and Exchange
Commission (“SEC”) has filed the consolidated action against Sanswire and
several of its former officers and directors, Case No. 0:07-cv-61693-JAL,
alleging violations of federal securities laws (“SEC Action”);
WHEREAS, the SEC and Sanswire wish to
resolve the claims against Sanswire in the SEC Action through
settlement;
WHEREAS, Sanswire desires to offer to
pay the SEC $300,000 (“Settlement Funds”) as a material term of the settlement
of the SEC Action;
WHEREAS, Sanswire and Michael K. Clark
recognize that Sanswire does not readily have the necessary cash to make the
full $300,000 offer to the SEC;
WHEREAS, Michael K. Clark desires to
provide $250,000 to Sanswire on the terms stated herein so that Sanswire can
offer the Settlement Funds to the SEC;
WHEREAS, Sanswire will provide the
remaining $50,000 for the Settlement Funds;
WHEREAS, the Escrow Agent represents
Sanswire in the SEC Action; and
WHEREAS, the parties desire to have the
Escrow Agent hold the Settlement Funds in escrow to be used for the purposes of
settlement with the SEC.
NOW THEREFORE, for the mutual covenants
and agreements contained herein and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties
represent, warrant, covenant and agree as follows:
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1. Recitals. The
foregoing recitals are true and correct.
2. Escrow
Agent. The parties hereby appoint Hinshaw & Culbertson LLP
as Escrow Agent hereunder. The parties hereby agree that the Escrow Agent
is acting solely as an escrow holder at the parties’ request and
convenience. Escrow Agent assumes no obligations or responsibilities under
this Agreement other than to faithfully follow the instructions contained in
this Agreement and as may be required by applicable law. Escrow Agent
shall not be required to use its discretion with respect to any matter that is
the subject of this Agreement or with respect to any notices received pursuant
to this Agreement. Escrow Agent may conclusively rely on and shall be
protected in acting or refraining from acting on any notice, instrument, or
other writing believed by Escrow Agent in good faith to be genuine and signed or
presented by the proper party or parties.
3. Waiver of Conflict of
Interests.
The parties acknowledge a potential conflict of interest related to the
Escrow Agent’s representation of Sanswire in the SEC Action. The parties
hereby waive any such conflicts or potential conflicts of interests and Escrow
Agent shall not be prevented from representing Sanswire in anyway whatsoever.
The parties acknowledge that by acting as Escrow Agent pursuant hereto, Escrow
Agent is not acting as the attorney for any of the parties.
4. Escrow
Agreement. The parties agree that the Settlement Funds are to be
escrowed as follows:
a. Sanswire
will transmit $50,000 to the Escrow Agent’s trust account to be held in trust to
use for the SEC settlement;
b. Michael
K. Clark will transmit $250,000 to the Escrow Agent’s trust account to be held
in trust to use for the SEC settlement;
c. in
the event that the SEC accepts the offer of the Settlement Funds in a written
settlement agreement, Michael K. Clark will instruct the Escrow Agent to release
the Settlement Funds to the SEC, and Escrow agent will transmit the $300,000 to
the SEC; and
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d. in
the event that the SEC does not accept the offer of the Settlement Funds in a
written settlement agreement, the Escrow Agent will return $50,000 to Sanswire
on the instruction of Michael K. Clark or Glenn Estrella and will return
$250,000 to Michael K. Clark on the instruction of Michael K.
Clark.
5. Stock Purchase
Agreement. In the event that Sanswire enters into a written
settlement agreement using the Settlement Funds, the $250,000 contributed by
Michael K. Clark and remitted by the Escrow Agent will be deemed to be an equity
investment for the purchase of Sanswire shares, and Michael K. Clark and
Sanswire will enter into a Stock Purchase Agreement whereby Michael K. Clark
will receive in exchange for his $250,000 contribution to the settlement
4,000,000 shares of common stock of Sanswire, par value $0.00001, restricted
pursuant to Rule 144 promulgated under the Securities Act of 1933 (as
amended).
6. Modification. This
agreement may be modified or amended only by a writing signed by all
parties.
7. Notices. All
notices, requests, demands, and other communications under this agreement shall
be in writing and shall be sent by Certified U.S. Mail as follows:
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a.
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to
Sanswire:
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Sanswire
Corp.
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c/o
Glenn Estrella
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17501
Biscayne Blvd.
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Ste.
430
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Aventura,
FL 33160
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b.
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to
Michael K. Clark:
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157
Beach 135 Street
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Belle
Harbor
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New
York 11694; and
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c.
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to
Escrow Agent:
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Hinshaw
& Culbertson LLP
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c/o
Maranda E. Fritz, Esquire
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780
Third Avenue
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4th
Floor
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New
York, New York
10017
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8. Jurisdiction. The
parties agree that the exclusive and sole venue for any legal action arising out
of or related to this agreement shall be the Circuit Court in Orange County,
Florida, and Parties hereby voluntarily consent to such court exercising
jurisdiction over them.
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9. Choice of
Law. The parties agree that this Agreement shall be governed by the
laws of the State of Florida, without regard to its choice of law
provisions.
10. General Representations and
Warranties. The parties represent, warrant and agree
that:
a. such
party has read this Agreement, has had adequate time to consider it, has
consulted with its/her attorney prior to executing this Agreement, understands
the meaning and application of this Agreement and signs this Agreement
knowingly, voluntarily and of its/her own free will with the intent of being
bound by it;
b. such
party has not been subjected to any duress, undue influence or inequality of
bargaining power in connection with the negotiation or execution of this
Agreement;
c. except
for statements, representations and promises expressly set forth in this
Agreement, such Party has not relied upon any statement, representation or
promise of any other party (or of any employee, attorney or other representative
of any other party or of any affiliated entity) in executing this Agreement, and
no other Party has made any statements, representations or promises regarding a
fact relied upon by it in entering into this Agreement; and
d. such
party has the full right and authority to enter into this Agreement, and the
person executing this Agreement has the full right and authority to do so, and
fully to commit and bind such Party to this Agreement.
11. Severability. If
any provision of this Agreement shall be found invalid or unenforceable in whole
or in part, then such provision shall be deemed to be modified or restricted to
the extent and in the manner necessary to render the same valid and enforceable
or shall be deemed excised from this Agreement as such circumstances may
require, and this Agreement shall be construed and enforced to the maximum
extent permitted by law as if such provision had been originally incorporated
herein as so modified or restricted or as if such provision had not been
originally incorporated herein, as the case may be.
12. Successors and
Assigns. This Agreement shall be binding upon, and inure to
the benefit of, and be enforceable by the Parties hereto and their respective
successors and assigns.
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13. Entire
Agreement. This Agreement is the final written expression, and
the complete and exclusive statement, of all of the agreements, conditions,
promises and covenants among the parties with respect to the subject matter
hereof. This Agreement supersedes all prior or contemporaneous
agreements, negotiations, representations, understandings and discussions
between the parties or their respective counsel, or both, with respect to the
subject matter covered hereby.
14. Headings. The
headings used herein are for reference only and shall not affect the
construction or interpretation of this Agreement.
15. Counterparts. This
Escrow Agreement may be executed in counterparts, each of which so executed
shall be deemed as original, and said counterparts together shall constitute one
and the same instrument.
/s/
Michael K. Clark Dated: September 29,
2010
Michael
K. Clark
SANSWIRE
CORPORATION
/s/ Glenn
Estrella Dated: September
22, 2010
Glenn
Estrella, CEO
Hinshaw
& Culbertson LLP
/s/
Maranda Fritz Dated: September 28,
2010
Maranda
Fritz
Its:_____________________________
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