Exhibit 2.2
ESCROW AGREEMENT
THIS ESCROW AGREEMENT ("Escrow Agreement") dated this 5th day of June
2003, in entered into by and between HBOA Holdings, Inc. ("HBOA"), LexSys
Software Corp. ("LexSys"), the shareholders of LexSys listed on the signature
page hereof ("LSC Shareholders") and Xxxxxx & Xxxx, P.A., a Florida professional
association (the "Escrow Agent").
W I T N E S S E T H
WHEREAS, HBOA, Lexsys and the LSC Shareholders are parties to a certain
Agreement and Plan of Merger executed concurrently herewith (the "Merger
Agreement").
WHEREAS, pursuant to the terms of the Merger Agreement, HBOA will issue
1,000,000 shares (the "Shares") of its common stock to the LSC Shareholders and
these Shares will be held in escrow until certain conditions described herein
have been satisfied;
WHEREAS, the Escrow Agent has agreed to facilitate the receipt and
distribution of the Shares upon the terms and conditions set forth in this
Escrow Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged by each of the parties hereto, the
parties hereto hereby agree as follows:
NOW, THEREFORE, in consideration of the promises contained herein and
for other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereto agree as follows:
1. Establishment of Escrow
(a) Within ten (10) business days after the execution and
delivery of this Escrow Agreement, HBOA shall deliver to the Escrow Agent a
certificate representing an aggregate of One Million Shares (1,000,000) shares
of Common Stock of HBOA. Such property is hereinafter referred to as the
"Escrowed Property."
(b) During the Escrow Period (as hereinafter defined), the
Escrow Agent shall not distribute the Escrowed Property except as expressly
provided herein, or pursuant to any lawful order issued to the Escrow Agent by a
tribunal of competent jurisdiction.
2. Disbursements from the Escrow Account.
The Escrow Period ("Escrow Period") shall commence with the execution
of this Agreement and terminate:
(a) When HBOA has received audited financial statements of
LexSys for the periods required by the Securities and Exchange Commission (the
"LexSys Audited Financial Statements"), provided that such financial statements
shall be delivered on or before July 15, 2003. In the event the Escrow Period is
terminated pursuant to this Section 2(a), the Escrowed Property shall be
distributed to the LSC Shareholders.
(b) If the auditor is not able to provide HBOA with Lexsys
Audited Financial Statements by July 15, 2003, then HBOA shall, in its sole
discretion, decide whether it wants to extend the escrow period for an
additional time period to allow the auditors to completed the audit of LexSys's
Financial Statements and it will enter into an amendment at such time.
For the purposes of this Section 2, the Escrow Agent may rely on the
instructions of HBOA with respect to the distribution of the Escrowed Property.
3. Rights, Duties and Responsibilities of the Escrow Agent. It is
understood and agreed by HBOA, LexSys and the LSC Shareholders that the duties
of the Escrow Agent are purely ministerial in nature. All representations,
warranties and covenants made by each LSC Shareholder in this Agreement then
shall be deemed made individually by each LSC Shareholder and such statements
are joint and several. It is further agreed that:
(a) In consideration of its acceptance of the appointment as
the Escrow Agent, HBOA, LexSys and the LSC Shareholders agree to indemnify and
hold the Escrow Agent harmless as to any liability incurred by it to any person,
firm or corporation by reason of the Escrow Agent's having accepted the same or
in carrying out any of the terms hereof in accordance with such terms. HBOA,
LexSys and the LexSys Shareholders agree that the Escrow Agent shall not be
liable to either of them for any actions taken by the Escrow Agent pursuant to
the terms hereof except for actual damages incurred for acts of gross
negligence, fraud or willful misconduct by the Escrow Agent.
(b) Notwithstanding anything to the contrary contained in this
Agreement, the Escrow Agent shall in no case or event be liable for the failure
of any of the conditions of this Agreement or for any other reason except for
its own gross negligence, fraud or willful misconduct, and the Escrow Agent
shall not be liable or responsible for its failure to ascertain the terms or
conditions, or to comply with any of the provisions of any agreement, contract
or other document filed herewith or referred to herein other than this
Agreement.
(c) If any controversy should arise among HBOA, LexSys and the
LSC Shareholder hereto or with, between or among any third person(s) with
respect to the subject matter of this Agreement, or its terms or conditions, the
Escrow Agent shall not be required to determine the same or take any action in
the matter (unless any such controversy alleges the gross negligence, fraud or
willful misconduct of the Escrow Agent), but rather, the Escrow Agent may await
the settlement of any such controversy by a court of competent jurisdiction or
otherwise among HBOA, LexSys and the LSC Shareholder.
(d) The Escrow Agent's duties hereunder are only such as are
herein specifically provided, and as provided by applicable laws, and the Escrow
Agent is not charged with knowledge of any duties or responsibilities in
connection with any other document or agreement.
(e) The Escrow Agent shall not be required to institute legal
proceedings of any kind. The Escrow Agent shall be fully protected in acting in
accordance with any notice or written instruction given to it hereunder and
reasonably believed by it to have been signed or given by the proper party. If
in doubt as to its duties and responsibilities hereunder, the Escrow Agent may
consult with counsel of its choice and shall be protected in any action taken or
omitted in reliance upon the advice or opinion of such counsel; provided,
however, the Escrow Agent shall have advised HBOA, LexSys and the LSC
Shareholder as to such advice or opinion.
(f) The Escrow Agent may execute any of its powers or
responsibilities hereunder and exercise any rights hereunder either directly or
by or through its agents or attorneys. Nothing in this Agreement shall be deemed
to impose upon the Escrow Agent any duty to qualify to do business or to act as
fiduciary or otherwise in any jurisdiction other than the State of Florida.
4. Warranties. HBOA, LexSys and the LSC Shareholders warrant to and
agree with the Escrow Agent that, unless otherwise expressly set forth in this
Agreement, that:
(a) No party other than HBOA, LexSys and the LSC Shareholders
have, or shall have, any lien, claim or security interest in the Escrowed
Property or any part thereof; and
(b) No financing statement under the Uniform Commercial Code
is on file in any jurisdiction claiming a security interest in or describing
(whether specifically or generally) the Escrowed Property or any part thereof.
5. Duties of Escrow Agent. The acceptance by the Escrow Agent of its
duties as such under this Escrow Agreement is subject to the following terms and
conditions, which all parties to this Escrow Agreement hereby agree shall govern
and control with respect to the rights, duties, liabilities and immunities of
the Escrow Agent:
(a) The Escrow Agent shall not be liable for any error in judgment or
mistake of law or fact, or for any action taken or omitted by it, or any action
suffered by it to be taken or omitted by it, in good faith and in the exercise
of its own best judgment, and may rely conclusively and shall be protected in
acting upon any order, notice, demand, certificate, opinion or advice of counsel
(including counsel chosen by the Escrow Agent), statement, instrument, report or
other paper or document (not only as to its due execution and validity and
effectiveness of its provisions, but also as to the truth and acceptability of
any information therein contained) which is believed by the Escrow Agent to be
genuine and to be signed or presented by the proper person or persons. The
Escrow Agent shall not be bound by any notice or demand, or any waiver,
modification, termination or rescission of this Agreement unless evidenced by a
writing delivered to the Escrow Agent signed by the proper party or parties and,
if the duties or rights of the Escrow Agent are affected, unless the Escrow
Agent shall have given its prior written consent thereto.
(b) The Escrow Agent acts hereunder as a depositary only, and shall not
be responsible for the sufficiency or accuracy, the form of, or the execution,
validity, value or genuineness of any document or property received, held or
delivered by it hereunder, or of any signature or endorsement thereon, or for
any lack of endorsement thereon, or for any description therein, nor shall the
Escrow Agent be responsible or liable in any respect on account or the identity,
authority or rights of the persons executing or delivering or purporting to
execute or deliver any document or property paid or delivered by the Escrow
Agent pursuant to the provisions hereof. The Escrow Agent shall not be liable
for any loss which may be incurred by any of the reasons set forth in this
paragraph.
(c) The Escrow Agent shall have the right to assume, in the absence of
written notice to the contrary from the proper person or persons, that a fact or
an event by reason of which an action would or might be taken by the Escrow
Agent does not exist or has not occurred, without incurring liability for any
action taken or omitted, in good faith and in the exercise of its own best
judgment, in reliance upon such assumption.
(d) The Escrow Agent shall be indemnified and held harmless by HBOA,
LexSys and the LSC Shareholder from and against any expenses, including counsel
fees and disbursements, or loss suffered by the Escrow Agent in connection with
any action, suit or other proceeding involving any claim, or in connection with
any claim or demand, which in any way directly or indirectly arises out of or
relates to this Escrow Agreement, the services of the Escrow Agent hereunder,
the monies or other property held by it hereunder or any such expenses or loss.
Promptly after the receipt by the Escrow Agent of notice of any demand or claim
or the commencement of any action, suit or proceeding, the Escrow Agent shall,
if a claim in respect thereof shall be made against the other parties hereto,
notify such parties thereof in writing; but the failure by the Escrow Agent to
give such notice shall not relieve any party from any liability which such party
may have to the Escrow Agent hereunder.
(e) From time to time on and after the date hereof, HBOA, LexSys and
the LSC Shareholders shall deliver or cause to be delivered to the Escrow Agent
such further documents and instruments and shall do or cause to be done such
further acts as the Escrow Agent shall reasonably request (it being understood
that the Escrow Agent shall have no obligation to make such request) to carry
out more effectively the provisions and purposes of this Agreement, to evidence
compliance herewith or to assure itself that it is protected in acting
hereunder.
(f) The Escrow Agent may resign at any time and be discharged from its
duties as Escrow Agent hereunder by its giving HBOA, LexSys and the LSC
Shareholders prior written notice of at least ten (10) business days. As soon as
practicable after its resignation, the Escrow Agent shall turn over to a
successor escrow agent appointed by HBOA, LexSys and the LSC Shareholders,
jointly, all of the Escrowed Property held hereunder upon presentation of the
document appointing the new escrow agent and its acceptance thereof. If no new
escrow agent is so appointed within the thirty (30) day period following the
giving of such notice of resignation, the Escrow Agent may deposit the Escrowed
Property with any court it deems appropriate.
(g) The Escrow Agent may consult with, and obtain advice from, legal
counsel in the event of any dispute or question as to the construction of any of
the provisions hereof or its duties hereunder, and it shall incur no liability
and shall be fully protected in acting in good faith in accordance with the
opinion and instructions of such counsel.
6. Interpleader by Escrow Agent. At any time, the Escrow Agent, in its
sole discretion, may commence an action in the nature of interpleader in an
appropriate court to determine ownership or disposition of the Escrowed Property
or it may deposit the Escrowed Property with the clerk of any appropriate court
or it may retain the Escrowed Property pending receipt of a final,
non-appealable order of a court having jurisdiction over all of the parties
hereto directing to whom and under what circumstances the Escrowed Property is
to be disbursed and delivered.
7. Notices, Etc. All notices and other communications hereunder shall
be in writing and shall be deemed to have been given when (i) transmitted by
facsimile with electronic confirmation of transmission received being retained
by the sender, (ii) personally delivered or (iii) mailed by registered or
certified mail, postage prepaid, and addressed as follows:
If to the Escrow Agent:
Xxxxxx & Xxxx, P.A.
000 Xxxxx Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attn: Xxxxx Xxxx, Esq.
If to LSC or the LSC Shareholders:
If to HBOA:
0000 XX 00xx Xxxxxx, Xxxxx 000
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attn: President
8. Entire Agreement. The parties hereto agree that this Escrow
Agreement contains the entire agreement among the parties with respect to the
subject matter hereof and supersedes all other prior agreements and
understandings between them as to such subject matter; and there are no
restrictions, agreements, arrangements, oral or written, between any or all of
the parties relating to the subject matter hereof which are not fully expressed
or referred to herein or in the Agreements. In the event of a conflict between
the terms and provisions hereof and the Extension Agreement, the terms and
provisions hereof shall govern the rights, obligations and liabilities of the
Escrow Agent.
9. Waivers and Further Agreements. Any waiver of any terms or
conditions of this Escrow Agreement shall not operate as a continuing waiver of
any other breach of such terms or conditions or any other term or condition, nor
shall any failure to enforce any provision hereof operate as a waiver of such
provision or any other provision hereof. Each of the parties hereto agrees to
execute all such further instruments and documents and to take all such further
action as any other party may reasonably require in order to effectuate the
terms and purposes of this Escrow Agreement.
10. Amendments. This Escrow Agreement may not be amended, nor shall any
waiver, change, modification, consent or discharge be effected except by an
instrument in writing executed by or on behalf of the party or parties against
whom enforcement of any amendment, waiver, change, modification, consent or
discharge is sought.
11. Assignment; Successors and Assigns. Except as specifically
permitted herein, this Escrow Agreement shall not be assignable by any party
without the written consent of the others. This Escrow Agreement shall be
binding upon and shall insure to the benefit of the parties hereto and their
respective heirs, executors, legal representatives, successors and permitted
assigns.
12. Governing Law. This Escrow Agreement shall be governed by and
construed and enforced in accordance with the law (other than the law governing
conflict of law questions) of the State of Florida.
13. Counterparts. This Escrow Agreement may be executed in one or more
counterparts, each of which when taken together shall constitute one and the
same agreement.
IN WITNESS WHEREOF, the parties have executed this agreement on the day
and year first above written.
LexSys Software Corp.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx, Xx.
Its: President
HBOA Holdings, Inc.
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
Its: President
Xxxxxx & Xxxx, P.A.
By: /s/ Xxxxx Xxxx
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Name: Xxxxx Xxxx
LSC SHAREHOLDERS:
Xxxxxxx Xxxxxx
/s/ Xxxxxxx X. Xxxxxx
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Xxxxxx Xxx
/s/ Xxxxxx Xxx
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