EXHIBIT 99.4
INDEMNITY ESCROW AGREEMENT
This Indemnity Escrow Agreement (the "Agreement") is entered into as of
___________, 2002 by and among Xxxxxx Technologies, Inc., a Delaware corporation
("Xxxxxx"), Abiliti Solutions, Inc., a Missouri corporation ("Abiliti"), and
SunTrust Bank, as escrow agent (the "Escrow Agent").
RECITALS
WHEREAS, pursuant to an Asset Purchase Agreement dated October 7, 2002
(the "Asset Purchase Agreement"), by and among Xxxxxx, Xxxxxx Solutions, Inc., a
Delaware corporation ("Acquisition Sub"), and Abiliti, Acquisition Sub is
purchasing substantially all of the assets of Abiliti and assuming certain
liabilities of Abiliti, and in consideration therefor Abiliti is receiving
shares of Xxxxxx Series F convertible preferred stock, $0.01 par value per share
(the "Series F Preferred Stock"), Xxxxxx common stock, $0.01 par value per share
(the "Common Stock") and warrants to purchase additional shares of Common Stock
(the "Warrants"); and
WHEREAS, upon the closing of the transactions contemplated by the Asset
Purchase Agreement, Abiliti has agreed to indemnify Xxxxxx against breaches of
the representations, warranties, covenants and obligations made by Abiliti in
the Asset Purchase Agreement, subject to the terms and conditions thereof; and
WHEREAS, to secure Abiliti's indemnification obligations, pursuant to
Section 12.3 of the Asset Purchase Agreement, Abiliti is depositing into escrow
the Escrow Shares, as set forth on Schedule A, to be held as hereinafter
provided; and
WHEREAS the foregoing recitals are made as representations and
statements of fact by the parties hereto other than the Escrow Agent;
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises of the parties herein contained, and other good and valuable
consideration, receipt and sufficiency of which hereby are acknowledged
conclusively, the parties, intending to be legally bound, agree as follows:
1. Escrow and Escrow Shares. Pursuant to the Asset Purchase Agreement,
Abiliti shall deposit in escrow with the Escrow Agent, as escrow agent, such
amount in Series F Preferred Stock, Common Stock and Warrants (collectively, the
"Escrow Shares" and together with additions to or earnings or distributions on
the same, the "Escrow Deposit"), as set forth on Schedule A, which Escrow Shares
shall be registered in the name of Abiliti (or the permitted assignees of
Abiliti's rights in such shares, as described in Section 5 below) as the
beneficial owner of such shares. The Escrow Shares shall be held and distributed
by the Escrow Agent in accordance with the terms and conditions hereof.
2. Investment of Escrow. Any cash that may from time to time be part of
the Escrow Deposit, and all interest earned thereon shall be invested by the
Escrow Agent at the written direction of an executive officer of Abiliti;
provided, however, that no investment or reinvestment may be made except in the
following:
(a) direct general obligations of, or obligations, the payment of
principal of and interest on which are unconditionally guaranteed by, the United
States of America or any agency thereof, maturing within the earlier of six
months from the date of purchase or _____ 2003;
(b) certificates of deposit or other evidences of indebtedness
issued by any bank or savings
institution which is insured by the Federal Deposit Insurance Corporation,
maturing within the earlier of six months from the date of purchase or _____
2003, provided that such certificates of deposit or evidences of indebtedness,
to the extent they exceed the amounts covered by such insurance, are fully
secured by obligations described in clause (a) above;
(c) prime commercial paper of companies whose commercial paper is
rated A-1 or P-1 by Moody's or Standard & Poor's;
(d) any money market fund substantially all of which is invested
in the foregoing investment categories, such as the STI Classic U.S. Treasury
Securities Money Market Fund; or
(e) an interest bearing trust account of the Escrow Agent insured
by the Federal Deposit Insurance Corporation.
If the Escrow Agent has not received written direction at any time with
respect to the investment of cash, the cash or such portion thereof as to which
no written direction has been received, shall be invested in investments
described in (e) above. If the amount of cash is insufficient to invest, the
cash will be deposited into an interest bearing trust account of the Escrow
Agent.
3. Rights and Obligations of the Parties. The Escrow Agent shall be
entitled to such rights and shall perform such duties of the escrow agent as set
forth herein (collectively, the "Duties"), in accordance with the terms and
conditions of this Agreement. Xxxxxx and Abiliti shall be entitled to their
respective rights and shall perform their respective duties and obligations as
set forth herein, in accordance with the terms hereof.
4. [Intentionally Omitted].
5. Delivery of Escrow Shares to Abiliti. Promptly following the
termination of the Escrow Period as set forth in Section 9 below, the Escrow
Agent shall deliver to Abiliti the number of Escrow Shares and the amount of
other property in the Escrow Deposit which exceed the number of Escrow Shares
and the amount of any other property, including any Set Aside Amount (as defined
below), sufficient to satisfy any unsatisfied claims specified in any notice of
claim delivered to the Escrow Agent and Abiliti prior to the termination of the
Escrow Period with respect to facts and circumstances existing prior to the
expiration of the Escrow Period. As soon as all such claims have been resolved
and the Escrow Agent has received a written notice executed by Xxxxxx and
Abiliti pursuant to Section 8(f), or notification of a determination of the
arbitrators pursuant to Section 8(b) to such effect, the Escrow Agent shall
deliver to Abiliti all of the Escrow Shares and other property remaining in the
Escrow Deposit and not required to satisfy such claims. Abiliti may assign and
transfer, prior to the distribution described in the immediately preceding
sentence and solely in compliance with Section 2.1 of the Asset Purchase
Agreement, its rights in respect of the distribution of such Escrow Shares and
other property to one or more of its creditors, in which event (a) Abiliti shall
provide written instruction to the Escrow Agent (in accordance with Section 14
hereof, and with a copy to Xxxxxx) instructing the Escrow Agent to distribute
such Escrow Shares and other property described in the preceding sentence to
such creditors in such proportions as are set forth in such written instruction,
when and to the extent such Escrow Shares and other property in the aggregate
would have been released to Abiliti pursuant to the preceding sentence and (b)
the Escrow Agent shall be entitled to rely without further investigation or
inquiry on the written instructions so provided in making such distribution;
provided, however, that any such assignee shall, in connection with and as a
condition precedent to such assignment, execute any documents reasonably
requested by either the Escrow Agent or Xxxxxx.
6. Amounts Earned on Escrow Deposit: Tax Matters. All amounts earned, paid
or distributed with
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respect to the Escrow Deposit, if any (whether interest, dividends,
distributions from Xxxxxx with respect to the Escrow Shares or otherwise), shall
become a part of the Escrow Deposit, shall be held hereunder upon the same terms
as the original Escrow Deposit and shall be distributed pursuant to the terms of
this Agreement. The parties agree that the Abiliti will include all amounts
earned on the Escrow Deposit (or allocated or distributed with respect thereto)
in its gross income for federal, state and local income tax purposes and pay any
such income tax resulting therefrom.
7. Claims Against Escrow Deposit.
(a) At any time or from time to time prior to the termination of
the Escrow Period, Xxxxxx or any successor of Xxxxxx may make claims against the
Escrow Deposit for indemnification pursuant to and in accordance with Article
XII of the Asset Purchase Agreement. Xxxxxx shall notify Abiliti and the Escrow
Agent in writing (in accordance with Section 14 hereof) promptly upon its
determination to make a claim, including a summary of the amount (on a good
faith estimated basis, if practicable) of, and bases for, such claim. The Escrow
Agent shall have no duty to ensure the sufficiency of any claim. If Abiliti
disputes such claim, Abiliti shall give written notice thereof to Xxxxxx and to
the Escrow Agent within thirty (30) days after receipt by Escrow Agent of
written notice of Daleen's claim, in which case the Escrow Agent shall continue
to hold the Escrow Deposit in accordance with the terms of this Agreement;
should Abiliti fail to provide such written notice within the foregoing time
period, such claim shall be deemed to have been acknowledged to be payable out
of the Escrow Deposit in the full amount thereof and the Escrow Agent shall use
its best efforts to pay such claim to Xxxxxx within three (3) business days
after expiration of said thirty (30) day period or as soon thereafter as
possible following the determination of the value of the Escrow Shares, as set
forth in Section 7(b)(iii). If the amount of the claim exceeds the value of the
Escrow Deposit, the Escrow Agent shall have no liability or responsibility for
any deficiency.
(b) The Escrow Agent shall follow the procedure below in making
any payment in satisfaction of a claim against the Escrow Deposit:
(i) The Escrow Agent shall make such payment to Xxxxxx
first from cash additions to or earnings on the
Escrow Shares or from the cash initially deposited,
if any, until all cash in the Escrow Deposit has been
exhausted.
(ii) To the extent that any claim exceeds the amount of
cash in the Escrow Deposit, the Escrow Agent shall
make payment to Xxxxxx from the Escrow Shares in such
number of Escrow Shares (computed to the nearest
whole unit) having a value equal to the value of the
claim not satisfied by cash payment. The number of
shares of Common Stock and Series F Preferred Stock
and the number of Warrants to be distributed in
payment of a claim hereunder shall be as follows: (A)
payment shall first be made from the Series F
Preferred Stock (calculated on an as-if-converted to
Common Stock basis) then held in the Escrow Deposit;
(B) to the extent any claim exceeds the amount of
Series F Preferred Stock in the Escrow Deposit,
payment shall then be made from the Common Stock then
held in the Escrow Deposit; and (C) to the extent any
claim exceeds the amount of Common Stock and Series F
Preferred Stock in the Escrow Deposit, payment shall
be made from the Warrants then held in the Escrow
Deposit.
(iii) The value of an Escrow Share for purposes of this
Section shall be determined as follows:
(A) With respect to a share of Series F
Preferred Stock, the value shall be equal to
(I) the Current Market Price Per Share of
Common Stock (as
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defined in (B) below) as of the date of
distribution from the Escrow Deposit
multiplied by (II) the number of shares of
Common Stock then issuable upon conversion
of a single share of Series F Preferred
Stock.
(B) With respect to a share of Common Stock, the
value shall be equal to the Current Market
Price Per Share of Common Stock (as
hereinafter defined) as of the date of
distribution of such share from the Escrow
Deposit. For purposes of this Agreement,
"Current Market Price Per Share of Common
Stock" for any date means the average of the
closing prices of a share of Common Stock
during a period of 20 consecutive Trading
Days (as defined below) ending five trading
days before such date on the principal
national securities exchange or The Nasdaq
Stock Market (including The Nasdaq National
Market and The Nasdaq SmallCap Market, as
the case may be) on which the Common Stock
is then listed or admitted to trading. The
closing price shall be the last reported
sale price, or, in case no such sale takes
place on such day, the average of the
closing bid and asked price, as reported by
said exchange or market or quotation system.
If the Common Stock is not then so listed on
a national securities exchange or in such
market system, the Current Market Price Per
Share of Common Stock shall be deemed to be
the average of the closing bid and asked
prices of the Common Stock in the
over-the-counter market as reported by The
Nasdaq Stock Market, Inc. or other operator
of the applicable over-the-counter market.
If the Common Stock is not then listed on a
national securities exchange, market system
or quoted on an over-the-counter market, the
Current Market Price Per Share of Common
Stock shall be determined in good faith by
the Board of Directors of Xxxxxx. For
purposes of this Agreement, "Trading Day"
shall mean any day on which The Nasdaq Stock
Market is open for trading.
(C) With respect to a Common Stock Warrant, the
value shall be equal to the result obtained
by dividing (I) the aggregate Black-Scholes
value of all of the Warrants then held in
the Escrow Deposit as of the date of
distribution of such warrant from the Escrow
Deposit by (II) the Current Market Price Per
Share of Common Stock as of the date of
distribution.
Xxxxxx shall, in accordance with Section 14, notify Abiliti and the
Escrow Agent in writing of the Current Market Price Per Share of Common Stock.
Additionally, Xxxxxx will deliver to the Escrow Agent and Abiliti written notice
of the number of Escrow Shares that are to be set aside or paid out with respect
to any claim under this Agreement, based on its determination of the Current
Market Price Per Share of Common Stock, and the Escrow Agent is entitled to rely
conclusively and without inquiry on such written notice.
In the event that the Escrow Agent must make payment with a number of
Escrow Shares less than or different from the number of Escrow Shares
represented by a certificate or Warrant agreement in the Escrow Deposit, the
Escrow Agent shall surrender such certificate or Warrant agreement to Xxxxxx and
Xxxxxx shall issue to the Escrow Agent certificates or Warrant agreements of
Xxxxxx identical in form but for the number of Escrow Shares as necessary to
allow for proper payment of the claim, so long as the number of Escrow Shares
represented by the new certificates or Warrant agreements plus the amount of
Escrow Shares used to satisfy such claim shall be equivalent to the total number
of Escrow Shares covered by the surrendered certificate or Warrant agreement.
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8. Disputed Claims.
(a) If Abiliti shall dispute an indemnification claim by Xxxxxx as
above provided, the Escrow Agent shall set aside a portion of the Escrow Deposit
sufficient to pay such claim in full as reasonably determined by Xxxxxx in good
faith (the "Set Aside Amount"). Xxxxxx shall notify the Escrow Agent in writing
of the Set Aside Amount. If Xxxxxx notifies the Escrow Agent in writing that it
has made out-of-pocket expenditures in connection with any such disputed claim
for which it is entitled to be indemnified under the Asset Purchase Agreement
and provides paid receipts for such expenditures, in addition to expenditures
included in the Set Aside Amount, an amount equal to such additional
expenditures shall be added to the Set Aside Amount. The appropriate number of
Escrow Shares in the Set Aside Amount shall be determined by the procedure
described in Section 7(b) above.
(b) If the disputed indemnification claim has not been resolved or
compromised within forty-five (45) days after the Escrow Agent's receipt of
Abiliti's notice of dispute of the same, or in the event of a third-party claim
or suit, within fifteen (15) days after its resolution or compromise, such
indemnification claim shall be referred by Xxxxxx or Abiliti to the American
Arbitration Association (the "Association"), to be settled by binding
arbitration before a panel of three arbitrators in Miami, Florida, in accordance
with the Commercial Dispute Resolution Procedures, as amended and effective July
1, 2002 (or the successor rules thereto) of the Association, with the
Association to provide for purposes of Rule R-13 a list of at least 6 and not
more than 10 proposed names. The fees and expenses of the arbitrators shall be
borne by Xxxxxx. In no event shall the Escrow Agent be responsible for any fee
or expense of any party to any arbitration proceeding or be a participant in any
such arbitration proceeding. The written determination of the arbitrators as to
the amount, if any, of the indemnification claim which is properly allowable
shall be conclusive and binding upon the parties hereto and judgment may be
entered thereon in any court having jurisdiction thereof. The arbitrators shall
have the authority in their discretion to award to the prevailing party
reasonable costs and expenses including attorneys' fees and the cost of
arbitration. The Escrow Agent shall use its best efforts to make payment of such
claim, as and to the extent allowed, to Xxxxxx, of or out of the Set Aside
Amount (or if insufficient, out of the Escrow Deposit) within three (3) business
days following the Escrow Agent's receipt of said written determination or as
soon thereafter as possible.
(c) Notwithstanding Section 8(b), if a disputed indemnification
claim has not been resolved or compromised as of the date of termination of the
Escrow Period, and such claim does not involve a third-party claim or suit,
Xxxxxx and Abiliti shall continue to negotiate in good faith a settlement of
such claims for a period of ten (10) days after the date of termination of the
Escrow Period. If, after the expiration of such ten-day period, such
indemnification claim still has not been resolved or compromised, such claim
shall be settled in accordance with the arbitration provisions set forth in
Section 8(b).
(d) It is understood and agreed that should any dispute arise
under this Section 8, the Escrow Agent, upon receipt of written notice of such
dispute or claim by Abiliti, is authorized and directed to retain in its
possession, without liability to any party, the Set Aside Amount relating to
such dispute plus any expenditures of Xxxxxx made pursuant to Section 8(a) until
such dispute shall have been settled pursuant to this Section 8. The Escrow
Agent may, but shall be under no duty whatsoever to, institute or defend any
legal proceedings which relate to the Escrow Deposit. In case of any dispute or
disagreement with respect to the Escrow Deposit, the Escrow Agent may elect to
deposit the Escrow Deposit into the registry of a court of appropriate
jurisdiction and shall thereupon be relieved of further obligations as Escrow
Agent under this Agreement.
(e) Other than as otherwise provided for in Article XII of the
Asset Purchase Agreement, the Escrow Deposit shall constitute the sole recourse
of Xxxxxx to satisfy its claims pursuant to such Article XII of the Asset
Purchase Agreement.
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(f) Upon resolution of all outstanding claims, Xxxxxx and Abiliti
jointly shall execute a written notice to such effect and deliver such notice to
the Escrow Agent.
9. Termination; Escrow Period. This Agreement shall terminate with respect
to the Escrow Deposit on the earlier of (a) the expiration of 12 months after
the date of this Agreement, or (b) the date on which the Escrow Deposit is
reduced to zero as the result of payments by the Escrow Agent to Xxxxxx in
accordance with the provisions of Section 7 or Section 8 (the "Escrow Period");
if, however, the Escrow Deposit has not been reduced to zero as of the last day
of the Escrow Period, the Escrow Agent shall distribute the amount remaining in
the Escrow Deposit to Abiliti in accordance with Section 5 hereof. After such
payment, this Agreement shall terminate, provided that (a) the provisions of
Sections 10(b) and 10(c) shall survive the termination of this Agreement, and
(b) this Agreement shall continue in effect until all indemnification claims
Xxxxxx has made pursuant to Section 8 hereof on or prior to the date of
termination of the Escrow Period shall have been disposed of.
10. The Escrow Agent.
(a) Direction from Xxxxxx and Abiliti. Notwithstanding anything
herein to the contrary, the Escrow Agent shall promptly dispose of all or any
part of the Escrow Deposit as directed by a writing signed jointly by Xxxxxx and
Abiliti.
(b) Reliance by Escrow Agent; Liability of Escrow Agent. The
Escrow Agent will not be subject to, or be obliged to recognize, any other
agreement between the parties hereto, including but not limited to the Asset
Purchase Agreement, or directions or instructions not specifically set forth
herein. The Escrow Agent will not make any payment or disbursement from or out
of the Escrow Deposit that is not expressly authorized pursuant to this
Agreement. The Escrow Agent undertakes to perform only such duties as are
expressly set forth herein. The Escrow Agent may rely and shall be protected in
acting or refraining from acting upon any written notice, instruction or request
furnished to it hereunder and believed by it to be genuine and to have been
signed or presented by the proper party or parties. The Escrow Agent shall be
under no duty to inquire into or investigate the validity, accuracy or content
of any such document. The Escrow Agent shall have no duty to solicit any payment
that may be due hereunder. The Escrow Agent shall not be liable for any action
taken or omitted by it in good faith, unless a court of competent jurisdiction
determines that the Escrow Agent's gross negligence or wilful misconduct was the
primary cause of any loss to Xxxxxx or Abiliti. In the administration of the
Escrow Deposit hereunder, the Escrow Agent may execute any of its powers and
perform its duties hereunder directly or through agents or attorneys and may
consult with counsel, accountants and other skilled persons to be selected and
retained by it. The Escrow Agent shall not be liable for anything done, suffered
or omitted in good faith by it in accordance with the advice or opinion of any
such counsel, accountants or other skilled persons. Xxxxxx and Abiliti, jointly
and severally, hereby agree to indemnify and hold the Escrow Agent and each of
its directors, officers, agents and employees (collectively, the "Indemnitees")
harmless from and against any and all claims, liabilities, losses, damages,
fines, penalties, and expenses, including out-of-pocket and incidental expenses
and attorneys' fees and expenses ("Losses") that may be imposed on, incurred by,
or asserted against the Indemnitees or any of them for following any
instructions or other directions upon which the Escrow Agent is authorized to
rely pursuant to the terms of this Agreement. In addition to and not in
limitation of the immediately preceding sentence, Xxxxxx and Abiliti also agree,
jointly and severally, to indemnify and hold the Indemnitees and each of them
harmless from and against any and all Losses that may be imposed on, incurred
by, or asserted against the Indemnitees or any of them directly or indirectly in
connection with or arising out of this Agreement, provided that the Indemnitees
have not acted with gross negligence or engaged in wilful misconduct. Anything
in this Agreement to the contrary notwithstanding, in no event shall the Escrow
Agent be liable for special, indirect or consequential losses or damages of any
kind whatsoever. As between Xxxxxx, on the one hand, and Abiliti, on the other
hand, each shall bear equally the indemnification obligations set forth in
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this Section 10(b). The provisions of this Section 10(b) shall survive the
termination of this Agreement and the resignation or removal of the Escrow Agent
for any reason.
(c) Fees and Expenses of the Escrow Agent. All fees of the Escrow
Agent for its services hereunder, together with any expenses reasonably incurred
by the Escrow Agent in connection with this Agreement, shall be paid by Xxxxxx,
as set forth on Schedule B attached hereto. All fees of the Escrow Agent in
connection herewith shall be due upon receipt of an invoice from the Escrow
Agent delivered to Xxxxxx.
(d) Resignation and Removal of Escrow Agent; Successor Escrow
Agent.
(i) The Escrow Agent may resign from its duties hereunder
by giving each of the parties hereto not less than
thirty (30) days prior written notice of the
effective date of such resignation (which effective
date shall be at least thirty (30) days after the
date such notice is given). In addition, the Escrow
Agent may be removed and replaced on a date
designated in a written instrument (which effective
date shall be at least thirty (30) days after the
date such notice is given) signed by Xxxxxx and
Abiliti and delivered to the Escrow Agent. The
parties hereto intend that a successor escrow agent
mutually acceptable to Abiliti and Xxxxxx will be
appointed to fulfill the duties of the Escrow Agent
hereunder for the remaining term of this Agreement in
the event of the Escrow Agent's resignation or
removal. Upon the effective date of such resignation
or removal, the Escrow Agent shall deliver the
property comprising the Escrow Deposit to such
successor escrow agent, together with an accounting
of the investments held by it and all transactions
related to this Agreement, including any
distributions made and such records maintained by the
Escrow Agent in connection with its duties hereunder
and other information with respect to the Escrow
Deposit as such successor may reasonably request. If
on or before the effective date of such resignation
or removal, a successor escrow agent has not been
appointed, the Escrow Agent shall cease its functions
at the expiry of the notice period and (i) may retain
any and all property in its possession hereunder on a
merely safe keeping basis, at a fee to be determined
by the Escrow Agent, acting reasonably, or (ii)
deposit the Escrow Deposit into the registry of a
court of proper jurisdiction and thereupon be
discharged from all duties as Escrow Agent hereunder.
Upon deposit into the registry of a court or upon
written acknowledgement by a successor escrow agent
appointed in accordance with this Agreement to serve
as escrow agent hereunder and the receipt of the
property then comprising the Escrow Deposit, the
Escrow Agent shall be fully released and relieved of
all duties, responsibilities and obligations under
this Agreement, subject to Section 10(b) of this
Agreement, and such successor escrow agent shall for
all purposes hereof be the Escrow Agent.
(ii) Any corporation, association or other entity into
which the Escrow Agent may be converted or merged, or
with which it may be consolidated, or to which it may
sell or otherwise transfer all or substantially all
of its corporate trust business, or any corporation,
association or other entity resulting from any such
merger, conversion, consolidation, sale or other
transfer, shall, ipso facto, be and become the
successor Escrow Agent hereunder, vested with all of
the powers, discretions, immunities, privileges and
all other matters as was its predecessor, without the
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execution or filing of any instrument or any further
act on the part or any of the parties hereto,
anything herein to the contrary notwithstanding.
(e) The Escrow Agent shall have the right to consult with and
obtain advice from legal counsel employed or appointed by it in the event of any
questions as to any of the provisions hereof or its duties hereunder. The cost
of such services shall be reasonable expenses pursuant to Section 10(c) hereof.
(f) The Escrow Agent shall disburse monies hereunder only to the
extent that monies have been deposited with it.
(g) The Escrow Agent shall retain the right not to act and shall
not be held liable for refusing to act unless it has received clear
documentation that complies with the terms of this Agreement. Such documentation
must not require the exercise of any discretion or independent judgment.
(h) The Escrow Agent shall incur no liability with respect to the
delivery or non-delivery of any certificate or certificates whether delivered by
hand, mail or any other means.
(i) [Intentionally omitted.]
(j) None of the provisions contained in this Agreement require the
Escrow Agent to expend or to risk its own funds or otherwise to incur financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers.
11. Abiliti Officer. Abiliti hereby acknowledges and agrees that for
purposes of this Agreement Xxxxxx Quick initially shall be Abiliti's officer
authorized, on behalf of Abiliti, to execute and deliver, and perform or cause
Abiliti to perform, Abiliti's obligations hereunder, and that Xxxxxx and Escrow
Agent shall be entitled to rely upon any document delivered or action taken by
such officer. At any time during the Escrow Period, Abiliti may notify Xxxxxx
and Escrow Agent that it has designated another officer or officers as being
authorized to act on behalf of Abiliti hereunder, provided, that such
notification is in accordance with Section 15 of this Agreement.
12. Governing Law. IT IS THE PARTIES' INTENT THAT THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF
GEORGIA WITHOUT REGARD TO ITS CONFLICTS OF LAWS PRINCIPLES.
13. Counterparts. This Agreement may be executed in one or more
counterparts, all of which together shall be considered one and the same
document.
14. Notices. Any notice or other communication required or permitted
hereunder shall be in writing and shall be deemed to have been given to a party
when (a) delivered to the appropriate address by hand or by nationally
recognized overnight courier service (costs prepaid), (b) sent by facsimile with
confirmation of transmission by the transmitting equipment, or (c) received or
rejected by the addressee, if sent by certificate mail, return receipt
requested, in each case to the following addresses or facsimile numbers and
marked to the attention of the person (by name or title) designated below:
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To Xxxxxx: Xxxxxx Technologies, Inc.
000 Xxxxx Xxxxx Xxxx
Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Legal Department
Telephone No.: (000) 000-0000
Fax: (000) 000-0000
With a copy to: Xxxxxx, Xxxxxxx & Xxxxxx L.L.P.
1600 Atlanta Financial Center
0000 Xxxxxxxxx Xxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Telephone No.: (000) 000-0000
Fax: (000) 000-0000
To Abiliti: Abiliti Solutions, Inc.
000 Xxxxxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Quick, President and CEO
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
With a copy to: Xxxxxxxxxxx & Xxxxxxxx, LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
To Escrow Agent: SunTrust Bank, Atlanta
Corporate Trust Department
00 Xxxx Xxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxxx Xxxxxx
Telephone No.: (000) 000-0000
Fax: (000) 000-0000
Addresses may be changed by written notice given pursuant to this
Section 14. Any notice given hereunder may be given on behalf of any party by
his counsel or other authorized representatives.
15. Force Majeure. Neither Xxxxxx, Abiliti nor the Escrow Agent shall be
responsible for delays or failures in performance under this Agreement resulting
from acts beyond its control. Such acts shall include, but not be limited to,
acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental
regulations superimposed after the fact, fire, communication line failures,
computer viruses, power failures, earthquakes or other disasters.
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16. Modifications. This Agreement may not be altered or modified, nor may
any condition or covenant set forth herein be waived without the express written
consent of the parties hereto. No course of conduct shall constitute a waiver of
any of the terms and conditions of this Agreement, unless such waiver is
specified in writing, and then only to the extent so specified. A waiver of any
of the terms and conditions of this Agreement on one occasion shall not
constitute a waiver of the other terms of this Agreement, or of such terms and
conditions on any other occasion.
17. No Assignment. This Agreement may not be assigned, other than as
provided by and in compliance with Section 5 herein, without the express written
consent of each of the parties hereto, which consent shall not be unreasonably
withheld.
18. Reproduction of Documents. This Agreement and all documents relating
thereto, including, without limitation, (a) consents, waivers and modifications
which may hereafter be executed, and (b) certificates and other information
previously or hereafter furnished, may be reproduced by a photographic,
photostatic, microfilm, optical disk, micro-card, miniature photographic or
other similar process. The parties agree that any such reproduction shall be
admissible in evidence as the original itself in any judicial or administrative
proceeding, whether or not the original is in existence and whether or not such
reproduction was made by a party in the regular course of business, and that any
enlargement, facsimile or further reproduction of such reproduction shall
likewise be admissible in evidence.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the date first written above.
ABILITI:
ABILITI SOLUTIONS, INC.
By:
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Name:
Title:
XXXXXX:
XXXXXX TECHNOLOGIES, INC.
By:
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Name:
Title:
ESCROW AGENT:
SunTrust Bank, Atlanta
By:
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Name:
Title:
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