AMENDED AND RESTATED
ESCROW AGREEMENT
THIS AMENDED AND RESTATED ESCROW AGREEMENT (this
"Amended Escrow Agreement") is made and entered into this 25th day of
June 1999, to amend and restate that certain Escrow Agreement dated May
16, 1999, (the "Original Escrow Agreement") by and among SYNERGY
TECHNOLOGIES CORPORATION, a Colorado corporation ("Synergy")
previously known as "Automated Transfer Systems Corporation"; LAXARCO
HOLDING LIMITED, a Company incorporated pursuant to the laws of the
Republic of Cyprus ("Laxarco"); and XXXXXX & ASSOCIATES, a
professional law corporation, (the "Escrow Agent") located at 0000
Xxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxx Xxxxxxx, Xxxxxxxxxx 00000.
WHEREAS, Synergy, Laxarco and certain other parties entered into
a Share Exchange Agreement dated May 5, 1998, and amended as of June
, 1999, (the "First Share Exchange Agreement") whereby 10 million shares
of common stock of Synergy were issued in the name of Laxarco in
exchange for the rights to a certain "gas to liquid" technology, as more
accurately described in the Application for French Patent, Nat'l Reg. No.
9700364, filed January 13, 1997, entitled "CONVERSION OF
HYDROCARBONS ASSISTED BY GLIDING ELECTRIC ARCS IN THE
PRESENCE OF WATER VAPOR AND/OR CARBON DIOXIDE", plus all
other patents which have been or shall be issued in the United States and
all foreign countries on such technology, including but not limited to U.S.
Patent Application Ser. No. 09/005,647, filed January12,1998 and PCT
Patent Application Ser. No. PCT/US98/00393 (the "GTL").
WHEREAS, pursuant to the Original Escrow Agreement the
aforementioned 10 million shares of Synergy (the "Original Synergy Shares")
are held in escrow by the Escrow Agent pending the "successful completion"
of the GTL (as such term is defined in paragraph 1.1(h) in the First Share
Exchange Agreement);
WHEREAS, pursuant to the First Share Exchange the GTL is to be
held in escrow pending the release of the Original Synergy Shares;
WHEREAS, Synergy and Laxarco, concurrent herewith, are entering
into a second Share Exchange Agreement (the "Second Share Exchange
Agreement") whereby 3,000,000 shares of common stock of Synergy are to
be issued to Laxarco (the "Second Synergy Shares" and collectively with the
Original Synergy Shares referred to as the "Synergy Shares"), in exchange
for the Laxarco rights to certain "heavy oil technology" as described therein
(the "CPJ Technology") (the GTL and CPJ Technologies collectively are
referred to herein as the "Technologies").
WHEREAS, the Second Share Exchange Agreement provides that the
Second Synergy Shares are to be held in escrow;
WHEREAS, all of the shareholders of Laxarco have agreed that the
Original Shares are to be released from Escrow upon the occurrence of the
first of the particular events regarding the Technologies as described
hereafter; and
WHEREAS, the parties to this Agreement wish to (a) add the Second
Synergy Shares to the Escrow; (b) confirm the transfer of the Original
Synergy Shares into the Escrow; (c) establish terms, conditions and order
by which the Synergy Shares are to be held and released; and (d) add the
assignment of the GTL from Laxarco to Carbon into the Escrow pending its
release as set forth below.
AGREEMENT
NOW, THEREFORE, the parties hereto agree as follows:
1. (a) Upon execution hereof, Synergy shall deliver, or cause
to be delivered, the Second Synergy Shares, in the name of Laxarco, to
the Escrow Agent. Escrow Agent shall keep the Synergy Shares in
escrow, except as provided herein, until the terms and conditions set forth
herein are satisfied and then shall be released pursuant hereto. Laxarco
shall provide Escrow Agent with an irrevocable voting power of attorney in
favor of the Board of Directors of Synergy to vote the Second Synergy
Shares until such time as the Second Synergy Shares are released from
escrow at which time Escrow Agent shall return to Laxarco the voting
power of attorney.
(b) Upon execution hereof, Laxarco shall deliver, or cause to
be delivered, the assignment of the GTL into the name of Synergy, to the
Escrow Agent. The Escrow Agent shall keep the GTL in escrow until the
terms and conditions set forth herein are satisfied and then shall be
released pursuant hereto.
2. It is hereby agreed by and among Laxarco, Synergy and the
Escrow Agent that the GTL and the Synergy Shares, upon execution
hereof, are to be held in Escrow as well as the voting powers of attorney
and the GTL shares shall be, and hereby are, subject to the terms and
conditions set forth herein.
3. (a) None of the Synergy Shares shall be released from
this escrow, notwithstanding the provisions set forth in paragraphs 4 and
5 below, if at the time during the term hereof: (i) any of the contracts
and/or agreements pursuant to which either of the Technologies have
been transferred to Synergy's subsidiaries in connection with the First
Share Exchange Agreement and/or the Second Share Exchange
Agreement are not in good standing or have been breached by Laxarco,
or any of its subsidiaries; (ii) such breaches have not been cured or
waived; or (iii) if the transfer of legal and equitable title to the
Technologies is not perfected in the name of Synergy or one of its
subsidiaries.
(b) The GTL shall not be released from this escrow,
notwithstanding the provisions set forth in paragraphs 4 and 5 below, if, at
the time during the term hereof, either the First Share Agreement or
Second Share Agreement is not in good standing Synergy or any of its
subsidiaries, is in breach thereof and such breaches have not been cured
or revived, or if the transfer of legal and equitable title to the Synergy
Shares is not perfected in the name of Laxarco at the time of release
hereunder.
4. It is hereby understood and agreed to by and between all
parties to this Agreement that the Original Synergy Shares shall be the
first shares released from Escrow. The Original Synergy Shares shall be
released from Escrow, upon the earliest occurrence of either of the
following events:
(a) The GTL is deemed to have reached "successful
completion" as that term is defined in Section 1.1(h) of the First Share
Exchange Agreement; or
(b) (i) The parties receive a written report from Xxxxxx &
Xxxxx affirming that the CPJ Technology is a competitive process in the
heavy oil industry; AND
(ii) Synergy, or it's assigned subsidiary, has received
legal, equitable and marketable title to the CPJ Technology under the
agreement dated January 6, 1999 by and between Laxarco and Xxxxxx
Xxxxxxxxx.
5. The Second Synergy Shares shall continue to be held in
escrow until the occurrence in time of the second of the events described
in paragraph 4 above. At such time, the Second Synergy Shares shall be
released to Laxarco and the GTL shall be released to Synergy. In order
to complete the release and transfer of Synergy Shares, as contemplated
herein, each party shall deliver to the Escrow Agent medallion, signature
guarantees, and any other documents necessary to affect the transfer of
any of such shares to the appropriate party.
6. The Synergy Shares and the GTL deposited into Escrow
shall remain the property of the named holder and shall not be subject to
any lien or charges by the Escrow Agent, or judgments or creditors' claims
against either respective party until released in the manner provided
herein.
7. It is understood and agreed that the duties of the Escrow
Agent are entirely ministerial being limited to receiving the Synergy and
the GTL, and holding and disbursing such items in accordance with this
Amended Escrow Agreement.
8. The Escrow Agent is not a party to, and is not bound by, any
agreement between Synergy and Laxarco except as may be evidenced by
or arise out of the foregoing instructions.
9. The Escrow Agent acts hereunder as a depository only, and
is not responsible or liable in any manner whatsoever for the sufficiency,
correctness, genuineness, or validity of any instrument deposited with it,
or with respect to the form or execution of the same, or the identity,
authority, or rights of any person executing or depositing the same.
10. The Escrow Agent shall not be required to take or be bound
by notice of any default of any person or to take any action with respect to
such default involving any expense or liability, unless notice in writing is
given to an officer of the Escrow Agent of such default by the undersigned
or any of them, and unless it is indemnified in a manner satisfactory to it
against any expense or liability arising therefrom.
11. The Escrow Agent shall not be liable for acting on any
notice, request, waiver, consent, receipt, or other paper or document
believed by the Escrow Agent to be genuine and to have been signed by
the proper party or parties.
12. The Escrow Agent shall not be liable for any error of
judgment or for any act done or step taken or omitted by it in good faith, or
for any mistake of fact or law, or for anything which it may do or refrain
from doing in connection herewith, except its own willful misconduct.
13. The Escrow Agent shall not be answerable for default or
misconduct of any agent, attorney, or employee appointed by it if such
agent, attorney, or employee shall have been selected with reasonable
care.
14. The Escrow Agent may consult with legal counsel in the
event of any dispute or question as to the construction of the foregoing
instructions or the Escrow Agent's duties hereunder, and the Escrow
Agent shall incur no liability and shall be fully protected in acting in
accordance with the opinion and instructions of such counsel.
15. In the event of any disagreement between the undersigned
or any of them, the person or persons named in the foregoing
instructions, and/or any other person, resulting in adverse claims and/or
demands being made in connection with or for any papers, money, or
property involved herein or affected hereby, the Escrow Agent shall be
entitled at its option to refuse to comply with any such claim, or demand
so long as such disagreement shall continue and, in so refusing, the
Escrow Agent shall not be or become liable to the undersigned or any of
them or to any person named in the foregoing instructions for the failure
or refusal to comply with such conflicting or adverse demands, and the
Escrow Agent shall be entitled to continue to so refrain and refuse to so
act until:
(a) The rights of adverse claimants have been
finally adjudicated in a court assuming and having jurisdiction of the
parties and the money, papers, and property involved herein or affected
hereby; and/or
(b) All differences shall have been adjusted by
agreement and the Escrow Agent shall have been notified thereof in
writing signed by all of the persons interested.
16. The fee of the Escrow Agent is $1,000.00, which shall be
paid by agreement among the parties prior to the earlier of completion or
cancellation of this Escrow. The fee is for services rendered hereunder
and is intended as full compensation for the Escrow Agent's services as
contemplated by this Agreement; however, in the event that the conditions
of this Agreement are not fulfilled, the Escrow Agent renders any material
service not contemplated by this Agreement, there is any assignment of
interest in the subject matter of this Agreement, there is any material
modification hereof, any material controversy arises hereunder, or the
Escrow Agent is made a party to or justifiably intervenes in any litigation
pertaining to this Agreement or the subject matter hereof, the Escrow
Agent shall be reasonably compensated for such extraordinary expenses,
including reasonable attorneys' fees, occasioned by any such delay,
controversy, litigation, or event and the same may be recoverable from
the parties jointly and severally.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective duly authorized officers, as
of the date first above written.
XXXXXX & ASSOCIATES, a professional LAXARCO HOLDING LIMITED
law corporation a corporation organized
under the laws
of the Republic of Cyprus
By: /s/ W. Xxxxx Xxxxxx By: /s/ Panyaiota Pifani
Duly Authorized Officer Name/Title
SYNERGY TECHNOLOGIES
CORPORATION, a Colorado
corporation
By: /s/ Xxxxxxxxxx Xxxxxxxx
Name/Title:
