EXHIBIT 4.12
ESCROW AGREEMENT
THIS AGREEMENT is made as of the 4th day of June, 1998 by and between
STORM TECHNOLOGY, INC., with its principal office at 0000 Xxxxxxxxxx Xxxx,
Xxxxxxxx Xxxx, XX 00000 (hereinafter the "Company"), the entities listed on
Schedule A (hereinafter collectively referred to as the "Purchaser" or the
"Purchasers") and GOLDSTEIN, GOLDSTEIN, & XXXX, LLP, 00 Xxxxxxxx, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000 (hereinafter the "Escrow Agent").
W I T N E S S E T H:
WHEREAS, pursuant to the Securities Purchase Agreement dated June 4,
1998 (the " Securities Purchase Agreement"), Purchasers will be purchasing
shares of Preferred Stock, and Common Stock of the Company (collectively, the
"Securities") at a purchase price as set forth in the Securities Purchase
Agreement, signed by the Company and Purchasers; and
WHEREAS, the Company has requested that the Escrow Agent hold the
funds of Purchasers in escrow until the Escrow Agent has received the Securities
and had the opportunity to speak with the Company to confirm their issuance.
The Escrow Agent will then immediately wire transfer or otherwise deliver at the
Company's direction immediately available funds to the Company or the Company's
account and arrange for delivery of the Securities to Purchaser per the
Purchaser's written instructions; and
WHEREAS, the parties hereby agree to establish an escrow account with
the Escrow Agent whereby the Escrow Agent shall hold the funds from the
Purchasers for the purchase of the Securities.
NOW, THEREFORE, in consideration of the covenants and mutual promises
contained herein and other good and valuable consideration, the receipt and
legal sufficiency of which are hereby acknowledged and intending to be legally
bound hereby, the parties agree as follows:
ARTICLE 1
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TERMS OF THE ESCROW FOR THE PREFERRED STOCK
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1.1 Upon Escrow Agent's receipt of cleared funds into his attorney
trustee account of the purchase price for the Preferred Stock the Escrow Agent
shall notify the Company, or the Company's designated attorney or agent, of the
amount of funds it has received into its account.
1.2 The Company, upon receipt of said notice and acceptance of
Purchaser's
Securities Purchase Agreement, as evidenced by the Company's execution thereof,
shall deliver to the Escrow Agent the shares of Preferred Stock being purchased
on the Closing Date. Escrow Agent shall then communicate with the Company to
confirm the validity of its issuance.
1.3 Once Escrow Agent reasonably confirms the validity of the
issuance of the Preferred Stock, it shall immediately wire. that amount of funds
necessary to purchase the Preferred Stock per the written instructions of the
Company. The Company will furnish Escrow Agent with a "Net Letter" directing
payment of one percent (1%) of the purchase price of the Preferred Stock to
Xxxxxxxxx, Xxxxxxxxx & Xxxx, LLP for legal, administrative and escrow fees.
Such fees are to be remitted in accordance with wire instructions that will be
sent to Escrow Agent from the Company, with the net balance payable to the
Company. Once the funds (as set forth above) have been received per the
Company's instructions, the Escrow Agent shall then arrange to have the
Securities delivered as per instructions from each of the Purchasers.
ARTICLE 2
TERMS OF THE ESCROW FOR THE DRIP SHARES
2.1 Upon Escrow Agent's (i) receipt of confirmation in writing that
the Company (a) has properly served a Call For Proceeds in accordance with the
Securities Purchase Agreement, and (b) satisfied each of the conditions set
forth in the Securities Purchase Agreement, and (ii) received the Purchase Price
for the Drip Shares into its attorney trustee account, it shall notify the
Company, or the Company's designated attorney or agent, of the amount of funds
it has received into its account.
2.2 The Company, upon receipt of said notice, and acceptance by the
Purchasers, shall deliver to the Escrow Agent the Drip Shares being purchased.
Escrow Agent shall then communicate with the Company to confirm the validity of
their issuance.
2.3 Once Escrow Agent confirms the validity of the issuance of the
Drip Shares, he shall immediately wire that amount of funds necessary to
purchase of the Drip Shares per the written instructions of the Company. The
Company will furnish Escrow Agent with a "Net Letter" directing payment of one
half of one percent (.5%) of the purchase price of the Drip Shares (up to a
maximum of Twenty Five Hundred ($2,500) Dollars, and a minimum of Five Hundred
($500) Dollars, per Closing of each Call For Proceeds) to Xxxxxxxxx, Xxxxxxxxx &
Xxxx, LLP for legal, administrative and escrow fees. Such fees are to be
remitted in accordance with wire instructions that will be sent to Escrow Agent
from the Company, with the net balance payable to the Company. Once the funds
have been received per the Company's instructions, the Escrow Agent shall then
arrange to have the Securities delivered as per instructions from the Investors.
ARTICLE 3
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MISCELLANEOUS
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3.1 This Agreement may be altered or amended only with the consent
of all of the parties hereto. Should the Company, or any Purchaser, attempt to
change this Agreement in a manner which, in the Escrow Agent's discretion, shall
be undesirable, the Escrow Agent may resign as Escrow Agent by notifying the
Company and the Purchasers in writing. In the case of the Escrow Agent's
resignation or removal pursuant to the foregoing, his only duty, until receipt
of notice from the Company and the Purchaser or its agent that a successor
escrow agent shall have been appointed, shall be to hold and preserve the
Securities and/or funds. Upon receipt by the Escrow Agent of said notice from
the Company and the Purchasers of the appointment of a successor escrow agent,
the name of a successor escrow account and a direction to transfer the
Securities and/or funds, the Escrow Agent shall promptly thereafter transfer all
of the Securities and/or funds held in escrow to said successor escrow agent.
Immediately after said transfer of Securities, the Escrow Agent shall furnish
the Company and the Purchaser with proof of such transfer. The Escrow Agent is
authorized to disregard any notices, requests, instructions or demands received
by it from the Company or the Purchasers after notice of resignation or removal
shall have been given, unless the same shall be the aforementioned notice from
the Company and the Purchasers to transfer the Securities and funds to a
successor escrow agent or to return same to the respective parties.
3.2 The Escrow Agent shall be reimbursed by the Company and the
Purchasers for any reasonable expenses incurred in the event there is a conflict
between the parties and the Escrow Agent shall deem it necessary to retain
counsel.
3.3 The Escrow Agent shall not be liable for any action taken or
omitted by him in good faith in accordance with the advice of the Escrow Agent's
counsel; and in no event shall the Escrow Agent be liable or responsible except
for the Escrow Agent's own gross negligence or willful misconduct.
3.4 The Company and the Purchasers warrant to and agree with the
Escrow Agent that, unless otherwise expressly set forth in this Agreement:
(i) there is no security interest in the Securities or any part
thereof;
(ii) no financing statement under the Uniform Commercial Code is on
file in any jurisdiction claiming a security interest or in
describing (whether specifically or generally) the Securities or
any part thereof; and
(iii) the Escrow Agent shall have no responsibility at any time to
ascertain whether or not any security interest exists in the
Securities or any part thereof or to file any financing
statement under the Uniform Commercial Code with respect to the
Securities or any part thereof.
3.5 The Escrow Agent has no liability hereunder to either party
other than to hold the Securities and funds and to deliver them under the terms
hereof. Each party hereto
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agrees to indemnify and hold harmless the Escrow Agent from and with respect to
any suits, claims, actions or liabilities arising in any way out of this
transaction including the obligation to defend any legal action brought which in
any way arises out of or is related to this Escrow.
3.6 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 any extension
of the time for performance of any other obligation or act.
3.7 All notices or other communications required or permitted
hereunder shall be in writing, and shall be sent by fax, overnight courier,
registered or certified mail, postage prepaid, return receipt requested, and
shall be deemed received upon receipt thereof, as follows:
(i) Storm Technology, Inc.
0000 Xxxxxxxxxx Xxxx
Xxxxxxxx Xxxx, XX 00000
Attn: Chief Financial Officer
Tel: (000) 000-0000
Fax: (000) 000-0000
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(ii) Xxxxxxxxx, Xxxxxxxxx & Xxxx, LLP
00 Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxxxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
(iii) To the Purchasers at the addresses indicated on Schedule
A.
3.8 This Agreement shall be binding upon and shall inure to the
benefit of the permitted successors and assigns of the parties hereto.
3.9 This 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 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.
3.10 Whenever required by the context of this Agreement, the singular
shall include the plural and masculine shall include the feminine. This
Agreement shall not be construed as if it had been prepared by one of the
parties, but rather as if both parties had prepared the same. Unless otherwise
indicated, all references to Articles are to this Agreement.
3.11 The Company acknowledges and confirms that it is not being
represented in a legal capacity by Xxxxxxxxx, Xxxxxxxxx & Xxxx, LLP and it has
had the opportunity to consult with its own legal advisors prior to the signing
of this Agreement.
3.12 This Agreement will be construed and enforced in accordance with
and governed by the laws of the State of Delaware, except for matters arising
under the Securities Act, without reference to principles of conflicts of law.
Each of the parties consents to the jurisdiction of the federal courts whose
districts encompass any part of the State of Delaware or the state courts of the
State of Delaware in connection with any dispute arising under this Agreement
and hereby waives, to the maximum extent permitted by law, any objection,
including any objection based on forum non conveniens, to the bringing of any
such proceeding in such jurisdiction. Each party hereby agrees that if another
party to this Agreement obtains a judgment against it in such a proceeding, the
party which obtained such judgment may enforce same by summary judgment in the
courts of any country having jurisdiction over the party against whom such
judgment was obtained, and each party hereby waives any defenses available to it
under local law and agrees to the enforcement of such a judgment. Each party to
this Agreement irrevocably consents to the service of process in any such
proceeding by the mailing of copies thereof by registered or certified mail,
postage prepaid, to such party at its address set forth herein. Nothing herein
shall affect the right of any party to serve process in any other manner
permitted by law.
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IN WITNESS WHEREOF, the parties hereto have executed this Escrow Agreement
as of the 4th day of June 1998.
"COMPANY" "PURCHASERS"
STORM TECHNOLOGY, INC. LIBERTYVIEW FUND, LLC
By: ___________________________ BY: ___________________________
Title: ___________________________ Title: ___________________________
Name: ___________________________ Name: ___________________________
LIBERTYVIEW PLUS FUND
By: ___________________________
Title: ___________________________
Name: ___________________________
CPR (USA), INC.
By: ___________________________
Title: ___________________________
Name: ___________________________
XXXXXXXXX, XXXXXXXXX & XXXX, LLP
ESCROW AGENT
By:______________________________
Xxxxx X. Xxxxxxxxx
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