Exhibit 10.15
SILVER KEY MINING COMPANY, INC.
A Nevada Corporation
ESCROW AGREEMENT
This Escrow Agreement is entered into effective as of the 22nd day of
October, 2002 by and among Silver Key Mining Company, Inc., a Nevada corporation
(the "Company"), Deluxe Investment Company , a Florida corporation (the
"Stockholder") and Boylan, Brown, Code, Xxxxxx & Xxxxxx LLP, as escrow agent
("Escrow Agent") for the intended benefit of Stanford Venture Capital Holdings,
Inc. ("Stanford").
WITNESSETH:
WHEREAS, the Stockholder beneficially and of record owns, in the
aggregate, 500,000 shares of the Company's common stock, par value $0.001 per
share (the "Common Stock") and;
WHEREAS, the Company has requested that Stanford contemporaneous with
the execution and delivery hereof agree to purchase shares of the Company's
Series A Preferred Stock subject to the terms and conditions of the Securities
Purchase Agreement dated as of the date hereof and entered into by and between
the Company, Stanford and the principal stockholders of the Company listed
therein (the "Securities Purchase Agreement"); and
WHEREAS, Stanford has required, as a condition to purchasing any
securities of the Company, that the Stockholder deposit in escrow hereunder an
aggregate of 500,000 shares of Common Stock of the Company registered in its
name and from time to time any distributions thereon (collectively the "Escrow
Shares") to be surrendered to the Company upon the occurrence of any
"Cancellation Condition" as such term is defined in Section 1.2 herein; and
WHEREAS, the Stockholder has determined that it will benefit from the
purchase of securities of the Company by Stanford; and
WHEREAS, the Stockholder agrees to surrender the Escrow Shares for
cancellation to the Company for no additional consideration upon the occurrence
of any Cancellation Condition.
NOW, THEREFORE, the parties hereby agree as follows:
ARTICLE I
ESCROW SHARES
1.1 Transfer of Escrow.
(a) The Stockholder has provided to Stanford copies of both sides
of each certificate representing the Escrow Shares.
(b) The Stockholder has contemporaneously with the execution of
this Agreement endorsed certificates for an aggregate of
500,000 shares of Common Stock of the Company standing
registered in its name and delivered them to the Escrow Agent,
free and clear of all Liens, as hereinafter defined.
1.2 Agreement to Surrender Escrow Shares. In order to induce Stanford to
purchase shares of the Company's Series A Preferred Stock on the First
Closing Date, which the Stockholder agrees is a benefit to it, the
Stockholder hereby agrees and covenants to surrender, transfer, assign
and convey and deliver all of their right, title and interest in and to
the Escrow Shares, free and clear of any and all liens, encumbrances,
and security interests of any kind (collectively "Liens") to the
Company if any of the following (individually a "Cancellation
Condition") occur:
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(i) the Company shall not, prior to the second
anniversary of the date hereof have either (x)
completed a sale of equity securities of the Company
to persons other than Stanford or its Affiliates for
minimum net proceeds of $3 million, at a pre-money
valuation of at least $25 million (a "Qualifying
Financing"); or (y) completed through the substantial
efforts of the Stockholder a purchase of an entity
(other than Provider Acquisition LLC or another
Affiliate of Stanford) with revenues during the
immediately preceding fiscal year of at least $4
million (a "Qualifying Acquisition"). For purposes of
this Agreement, "Affiliate" shall mean with respect
to any individual, partnership, joint venture,
limited liability company or any other entity, any of
the following: (i) a director or executive officer
(including any advisory director) of such individual,
partnership, joint venture, limited liability company
or other entity; (ii) a spouse, parent, sibling or
descendant of any director or executive officer of
such individual, partnership, joint venture, limited
liability company or other entity) or any trust
created for the sole benefit of such persons; and
(iii) any other individual, partnership, joint
venture, limited liability company or other entity
that, directly or indirectly, controls or is
controlled by or is under common control with such
individual, partnership, joint venture, limited
liability company or other entity. For the purposes
of this definition and the correlative meanings,
the terms "controlling", "controlled by" and "under
common control with" shall mean the possession,
directly or indirectly, of the power to direct or
cause the direction of the management and policies of
such individual, partnership, joint venture, limited
liability company or other entity, whether through
the ownership of voting securities or by contract or
agency or otherwise.
(ii) the Company or its wholly owned subsidiary,
Healthcare Quality Solutions, Inc., a Florida
corporation, shall have breached a representation or
warranty contained in the Securities Purchase
Agreement or in the Agreement and Plan of Merger
between Healthcare Quality Solutions, Inc., and
Provider Acquisition, LLC, a Florida limited
liability company, dated as of October 16, 2002 (a
"Company Breach"); or
(iii) the Stockholder shall have breached any of its
representations or warranties contained herein, in
the Securities Purchase Agreement or in the Merger
Agreement (a "Stockholder Breach").
1.3 Representations and Warranties of the Stockholder. The Stockholder
hereby represents and warrants to the Company and Stanford as
follows:
(a) Ownership of Shares. The Stockholder directly owns and will,
until the time of surrender directly own all of the Escrow
Shares, free and clear of all Liens.
(b) Authority to Perform and Execute; Binding Nature. The
Stockholder warrant that it has all requisite right, power and
authority and full legal capacity to enter into this
Agreement, and to carry out its obligations hereunder and to
consummate the transactions contemplated hereby. This
Agreement has been duly executed and delivered and constitutes
the legal, valid and binding obligations of the Stockholder
enforceable against the Stockholder in accordance with its
terms.
(c) No Conflict. The execution, delivery and performance of this
Agreement do not and will not (i) conflict with or violate any
applicable law or order applicable to the Stockholder, (ii)
result in the creation of any Lien on the Escrow Shares (iii)
result in any breach of, or constitute a default (or event
which with the giving of notice or lapse of time, or both,
would become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation pursuant
to, any note, bond, mortgage, indenture, contract, agreement,
lease, license, permit, franchise or other instrument to which
the Stockholder is a party, or by which any of its assets or
properties may be bound.
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(d) Approvals. The execution, delivery and performance of this
Agreement by the Stockholder does not and will not, require
any approval from any governmental authority. The Stockholder
shall use reasonable efforts to execute, deliver and perform
each of their obligations under this Agreement, including
without limitation, the sale, conveyance, assignment, transfer
and delivery of the Escrow Shares to the Company pursuant to
the terms of this Agreement.
(e) Other Agreements. There are no existing options, warrants,
calls, preemptive rights, rights of first refusal or offer,
subscriptions or other rights, agreements, arrangements or
commitments of any character, relating to the Escrow Shares
and there are no outstanding contractual obligations to
repurchase, redeem or otherwise acquire any of such securities
(collectively, "Rights").
(f) No Liens. The Escrow Shares are and shall remain free and
clear of all Liens.
1.4 Disposition of Escrow Shares.
(a) The Company shall be entitled to the Escrow Shares immediately upon
the first to occur of the following:
(1) a Company Breach;
(2) a Stockholder Breach; or
(3) the second anniversary hereof, if no Qualifying
Financing or Qualifying Acquisition has been completed
prior thereto.
(b) The Stockholder shall be entitled to the Escrow Shares, in the
event that no Company Breach or Stockholder Breach has occurred,
upon the consummation of a Qualifying Financing or a Qualifying
Acquisition.
ARTICLE II
ESCROW PROVISIONS
2.1 Appointment of Escrow Agent; Delivery by Stockholder of Stock Powers
and Shares.
(a) The Stockholder and Stanford do hereby appoint and designate
as Escrow Agent Boylan, Brown, Xxxx, Vidgor & Xxxxxx LLP for
the sole purposes of serving as Escrow Agent under this
Agreement. Escrow Agent hereby accepts such appointment and
agrees to hold the certificates for the Escrow Shares,
together with the stock powers delivered by the Stockholder in
accordance with the terms of this Agreement.
(b) In connection with such appointment, the Stockholder has
delivered, contemporaneously with the execution of this
Agreement, certificates for the Escrow Shares together with
stock powers endorsed in blank by the Stockholder.
2.2 Procedures for Delivery of the Escrow Shares.
(a) Escrow Agent shall hold the Escrow Shares and stock powers
endorsed in blank subject to the terms and conditions of this
Section 2.2.
(b) If, after the execution of this Agreement, the Escrow Agent
receives:
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(1) written notice from:
(i) the Stockholder, or
(ii) Stanford or the Company, and such notice is
identified as a "Request Notice" being delivered
pursuant to Section 2.2 of this Agreement,
advising the Escrow Agent of the occurrence of,
or the failure to satisfy any of the Cancellation
Conditions described in Section 1.2, above; or
(2) conflicting or inconsistent instructions from the
parties regarding the stock certificates held in
escrow, then the Escrow Agent shall send (in the manner
provided for notice hereunder) a copy of such notice to
the Company, the Stockholder and Stanford (the "Sent
Notice"). The Escrow Agent shall refrain from acting on
any notice of instructions or demands in response to
such a Sent Notice which is not executed by Stanford
unless the Escrow Agent receives, within fifteen (15)
days from the date the Escrow Agent furnishes the Sent
Notice, a written consent from Stanford. If, within
such fifteen (15) day period, the Escrow Agent does not
receive a written consent from Stanford or the Escrow
Agent receives a written objection to the instructions
or demands contained in such notice by any of the
Company, the Stockholder or Stanford, or there shall
exist any dispute between Stanford and either the
Company or the Stockholder with respect to the holding
or disposition of the Escrow Shares, or any other
obligations of Escrow Agent hereunder, or if at any
time Escrow Agent is unable to determine, to Escrow
Agent's sole satisfaction, the proper disposition of
the Escrow Shares or Escrow Agent's proper actions with
respect to its obligations hereunder, then Escrow Agent
may, in its sole discretion, take either or both of the
following actions:
(i) suspend the performance of any of its obligations
under this Agreement until such dispute or
uncertainty shall be resolved to the sole
satisfaction of the Escrow Agent, or
(ii) petition (by means of an interpleader action or
any other appropriate method) any court of
competent jurisdiction in Miami-Dade County,
Florida, for instructions with respect to such
dispute or uncertainty, and deposit into such
court the Escrow Shares for holding and
disposition in accordance with the instructions
of such court.
Escrow Agent shall not be required to exercise its own discretion with respect
to any of its duties under this Agreement except for the discretion it may elect
to exercise under this Section 2.2(b) or 2.4(a).
(c) Escrow Agent shall have no liability to the Stockholder,
Stanford, the Company, their respective shareholders, partners
or members or any other person with respect to any such
suspension of performance or disbursement into court,
specifically including any liability or claimed liability that
may arise, or be alleged to have arisen, out of or as a result
of any delay in the disbursement of any securities held by it
hereunder or other items held hereunder or any delay in or
with respect to any other action required or requested of
Escrow Agent.
(d) The Company shall give the Escrow Agent written notice of any
stock split, reorganization, merger or similar event
affecting the common stock of the Company and shall provide
certificates for any securities issued to the Stockholder by
the Company in respect of the Escrow Shares. Such notice shall
be identified on its face as an "Explanatory Notice" and
state that such joint notice is being given pursuant to
Section 2.2(d) of this Agreement. Such notice shall also
explain the effect of the stock split, reorganization or
merger on the number of shares held by the Escrow Agent.
Simultaneously with the giving of such notice to the Escrow
Agent (or thereafter as set forth in and as agreed to in such
notice), the Stockholder and the Company shall forward to the
Escrow Agent any additional or replacement stock certificates
and stock powers endorsed in blank.
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2.3 Rights, Duties, Liabilities and Immunities of Escrow Agent.
(a) The Escrow Agent shall have no liability or obligation with
respect to the Escrow Shares or any other items delivered to
Escrow Agent hereunder except for Escrow Agent's willful
misconduct or gross negligence. The Escrow Agent's sole
responsibility shall be for the safekeeping, and disbursement
of the Escrow Shares in accordance with the terms of this
Agreement. The Escrow Agent shall have no implied duties or
obligations and shall not be charged with knowledge or notice
of any fact or circumstance not specifically set forth herein.
The Escrow Agent may rely upon any instrument, not only as to
its due execution, validity and effectiveness, but also as to
the truth and accuracy of any information contained therein,
which the Escrow Agent shall in good faith believe to be
genuine, to have been signed or presented by the person or
parties purporting to sign the same and to conform to the
provisions of this Agreement. In no event shall the Escrow
Agent be liable for incidental, indirect, special,
consequential or punitive damages. The Escrow Agent shall not
be obligated to take any legal action or commence any
proceeding in connection with the Escrow Shares, any other
items delivered to Escrow Agent hereunder, or this Agreement,
or to appear in, prosecute or defend any such legal action or
proceeding.
(b) The Escrow Agent is authorized, in its sole discretion, to
comply with orders issued or process entered by any court
with respect to the Escrow Shares and any other items
delivered to Escrow Agent hereunder, without determination by
the Escrow Agent of such court's jurisdiction in the matter.
If any portion of the Escrow Shares or any other items
delivered to Escrow Agent hereunder is at any time attached,
garnished or levied upon under any court order, or in case the
payment, assignment, transfer, conveyance or delivery of any
such property shall be stayed or enjoined by any court order,
or in case any order, judgment or decree shall be made or
entered by any court affecting such property or any part
thereof, then and in any such event, the Escrow Agent is
authorized, in its sole discretion, to rely upon and comply
with any such order, writ, judgment or decree which is binding
on Escrow Agent without the need for appeal or other action;
and if the Escrow Agent complies with any such order, writ,
judgment or decree, it shall not be liable to any of the
parties hereto or to any other person or entity by reason of
such compliance even though such order, writ, judgment or
decree may be subsequently reversed, modified, annulled, set
aside or vacated.
2.4 Disbursement Into Court.
(a) If, at any time, there shall exist any dispute between the
Stockholder, the Company, Stanford or any other party with
respect to the holding or disposition of any portion of the
Escrow Shares or any other items delivered to Escrow Agent
hereunder or any other obligations of Escrow Agent hereunder,
or if at any time Escrow Agent is unable to determine, to
Escrow Agent's sole satisfaction, the proper disposition of
any portion of the Escrow Shares or any other items delivered
to Escrow Agent hereunder or Escrow Agent's proper actions
with respect to its obligations hereunder, or if the
Stockholder and Stanford have not within 30 days of the
furnishing by Escrow Agent of a notice of resignation pursuant
to Section 2.7 of this Agreement, appointed a successor Escrow
Agent to act hereunder, then Escrow Agent may, in its sole
discretion, take either or both of the following actions:
(i) suspend the performance of any of its obligations under
this Agreement until such dispute or uncertainty shall
be resolved to the sole satisfaction of Escrow Agent or
until a successor Escrow Agent shall have been
appointed (as the case may be), and/or,
(ii) petition (by means of an interpleader action or any
other appropriate method) any court of competent
jurisdiction in Miami-Dade County, Florida, for
instructions with respect to such dispute or
uncertainty, and pay into such court all funds held by
it and the Escrow Shares and all other items held by
the Escrow Agent hereunder for holding and disposition
in accordance with the instructions of such court.
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(b) Escrow Agent shall have no liability to the Stockholder,
Stanford, the Company, their respective shareholders, partners
or members or any other person with respect to any such
suspension of performance or disbursement into court,
specifically including any liability or claimed liability that
may rise, or be alleged to have arisen, out of or as a result
of any delay in the disbursement of the Escrow Shares or other
items held hereunder or any delay in or with respect to any
other action required or requested of Escrow Agent.
2.5 Indemnification of the Escrow Agent.
(a) From and at all times after the date of this Agreement, the
Stockholder and the Company, jointly and severally,
shall, to the fullest extent permitted by law and to the
extent provided herein, indemnify and hold harmless the
Escrow Agent and each director, officer, employee, attorney,
agent and affiliate of the Escrow Agent (collectively, the
"Indemnified Parties") against any and all actions, claims
(whether or not valid), losses, damages, liabilities, costs
and expenses of any kind or nature whatsoever (including
without limitation reasonable attorneys' fees, costs and
expenses) incurred by or asserted against any of the
Indemnified Parties from and after the date hereof, whether
direct, indirect or consequential, as a result of or arising
from or in any way relating to any claim, demand, suit,
action or proceeding (including any inquiry or investigation)
by any person, whether threatened or initiated, asserting a
claim for any legal or equitable remedy against any person
under any statute or regulation, including, but not limited
to, any federal or state securities laws, or under any common
law or equitable cause or otherwise, arising from or in
connection with the negotiation, preparation, execution,
performance or failure of performance of this Agreement or any
transactions contemplated herein, whether or not any such
Indemnified Party is a party to any such action, proceeding,
suit or the target of any such inquiry or investigation;
provided, however, that no Indemnified Party shall have the
right to be indemnified hereunder for any liability finally
determined by a court of competent jurisdiction, subject to
no further appeal, to have resulted solely from the gross
negligence or willful misconduct of such Indemnified Party.
If any such action or claim shall be brought or asserted
against any Indemnified Party, such Indemnified Party shall
promptly notify the Stockholder and the Company in writing,
and the Stockholder and the Company shall assume the defense
thereof, including the employment of counsel and the payment
of all expenses. Such Indemnified Party shall, in its sole
discretion, have the right to employ separate counsel in any
such action and to participate in the defense thereof, and
the fees and expenses of such counsel shall be paid by such
Indemnified Party unless (a) the Stockholder and the Company
agree to pay such fees and expenses, (b) the Stockholder and
the Company shall fail to assume the defense of such action or
proceeding, or the named parties to any such action or
proceeding (including any impleaded parties) include both
Indemnified Party and the Stockholder or the Company, and
Indemnified Party shall have been advised by counsel that
there may be one or more legal defenses available to it
which are different from or additional to those available
to the Stockholder or the Company. All such fees and expenses
payable by the Stockholder and the Company, jointly and
severally, shall be paid from time to time as incurred by the
Indemnified Parties. All of the foregoing losses, damages,
costs and expenses of the Indemnified Parties shall be payable
by the Stockholder and the Company, jointly and severally,
upon demand by such Indemnified Party. The obligations of the
Stockholder and the Company under this paragraph shall survive
any termination of this Agreement and the resignation or
removal of the Escrow Agent.
(b) The Stockholder and the Company agree that neither the payment
by the Stockholder or Stanford of any claim by Escrow Agent
for indemnification hereunder shall impair, limit, modify, or
affect, as between the Stockholder and the Company, the
respective rights and obligations of the Stockholder, on the
one hand, and the Company and Stanford on the other hand,
under this Agreement.
2.6 Compensation. The Stockholder agrees that, prior to or contemporaneous
with the Escrow Agent's execution of this Agreement and submission by
the Escrow Agent of an invoice therefor, to pay the Escrow Agent the
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sum of $1,500 for all of its fees hereunder. EACH OF THE PARTIES
ACKNOWLEDGES AND AGREES THAT THE ESCROW AGENT'S FEES SET FORTH ABOVE
REPRESENTS COMPENSATION SOLELY FOR SERVING AS ESCROW AGENT PURSUANT TO
THIS AGREEMENT AND DOES NOT RELATE IN ANY WAY TO FEES OR COSTS WHICH
MAY BE OWED BY THE STOCKHOLDER OR THE COMPANY TO ESCROW AGENT, WHICH
ARE NOT WAIVED OR MODIFIED BY THIS AGREEMENT. Except as otherwise
provided for the initial payments in the first sentence of this
subparagraph, such fees and reimbursements of expenses shall be paid
directly to the Escrow Agent promptly upon receipt of periodic invoices
therefor. In the event the Escrow Agent is required by the terms of
this Agreement or otherwise deems it necessary or advisable in
fulfillment of its responsibilities hereunder to take actions beyond
those which are routinely performed by escrow agents under similar
escrow agreements, the Company and the Stockholder will pay the Escrow
Agent its reasonable fees for its services in such regard and will each
reimburse the Escrow Agent its reasonable expenses incurred by the
Escrow Agent in connection therewith, which shall include, but not be
limited to, litigation fees and costs associated with fulfilling its
duties under, or enforcing the provisions of, this Agreement. Such fees
and reimbursements of expenses shall be paid directly to the Escrow
Agent promptly upon receipt of invoices therefor. The obligations of
the Company under this section shall survive any termination of this
Agreement and the resignation or removal of Escrow Agent.
2.7 Resignation and Removal of Escrow Agent.
(a) The Escrow Agent may resign upon thirty (30) days written
notice the Company, the Stockholder and Stanford. In such
event, the Company, the Stockholder and Stanford shall
designate a successor escrow agent. If a successor escrow
agent (hereinafter referred to as the ("Successor Escrow
Agent") is not appointed within this thirty (30) day period,
the Escrow Agent may petition the courts of record in
Miami-Dade County, Florida, to name a Successor Escrow Agent.
Any Successor Escrow Agent shall have the same rights and
obligations under the Agreement as the Escrow Agent; provided,
however, that any Successor Escrow Agent shall not be liable
for any acts or omissions of the Escrow Agent or any prior
Successor Escrow Agent.
(b) The Escrow Agent may be removed as escrow agent hereunder by
the Stockholder and Stanford by giving not less than thirty
(30) days prior written notice thereof to the Escrow Agent,
such notice to be identified on its face as a "Escrow Agent
Removal Notice" and state that it is being given pursuant to
Section 2.7, of this Agreement. Within this thirty (30) day
period, the Stockholder and Stanford shall designate a
Successor Escrow Agent.
(c) As soon as practicable after its resignation, the Escrow Agent
shall turn over to a successor Escrow Agent appointed by the
Stockholder and Stanford the Escrow Shares, all executed stock
powers and any other items held hereunder upon presentation of
the document appointing the new Escrow Agent and its
acceptance thereof, and the retiring Escrow Agent shall be
discharged from its duties and obligations under this
Agreement. After any retiring Escrow Agent's resignation, the
provisions of this Agreement shall inure to its benefit as to
any actions taken or omitted to be taken by it while it was
Escrow Agent under this Agreement. If no new Escrow Agent
is so appointed within the 30-day period following such notice
of resignation, the Escrow Agent may proceed in accordance
with Section 2.4 of this Agreement and shall so notify the
Stockholder and Stanford.
2.8 No Personal Liability. No stipulation, covenant, agreement or
obligation (an "Obligation") contained in this Agreement will be deemed
or construed to be an obligation of any present or future director,
officer, employee or agent of the Escrow Agent, or any incorporator,
director, officer, employee or agent of any successor to the Escrow
Agent, in any persons individual capacity. No person in his/her
individual capacity will be liable personally for any breach or
observance of or for any failure to perform, fulfill or comply with any
Obligation, nor will any recourse be had for any claim based upon any
Obligation, or on any Obligation, against any person, in his/her
individual capacity, either directly or through the Escrow Agent or any
successor to the Escrow Agent, under any rule of law or equity, statute
or constitution or by the enforcement of any assessment or penalty or
otherwise, and all liability of any person in his/her individual
capacity is expressly waived and released.
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2.9 No Endorsement. By serving as Escrow Agent pursuant to this Agreement,
Escrow Agent does not undertake to investigate the underlying
transaction or otherwise attest to its propriety, legality, or quality.
2.10 Dividends, Other Distributions, and Voting Rights in respect of the
Escrow Shares.
(a) All cash dividends and other distributions received by the
Escrow Agent in respect of Escrow Shares held hereunder (but
not dividends or distributions in the form of securities) be
held and furnished to the person ultimately entitled to the
Escrow Shares.
(b) The Stockholder covenants and agrees with Stanford and the
Company to forthwith forward to the Escrow Agent any dividends
or distributions that the Stockholder receive on the Escrow
Shares that are in the form of securities, and the Escrow
Agent shall hold and dispose of such dividends and
distributions in the form of securities ratably with the
Escrow Shares held by the Escrow Agent under this Escrow
Agreement.
(c) The Stockholder and Stanford agree that Stockholder shall have
and retain the sole and exclusive rights to vote and to
provide all consents in lieu of a vote in a meeting with
respect to the Escrow Shares, prior to the earlier of the
occurrence of a breach or default or alleged breach or default
under this Agreement by the Stockholder, or until one or more
of the Cancellation Conditions occur.
2.11 Xxxxxx Xxxxx LLP. The Stockholder and Stanford agree that Xxxxxx Xxxxx
shall not be conflicted from representing Deluxe Investment Company or
any of its affiliates as a result of its performance of duties as
Escrow Agent.
ARTICLE III
MISCELLANEOUS
3.1 Waiver of Jury Trial. Each of the parties, by acceptance hereof, hereby
irrevocably waives trial by jury in connection with any action or
connection with this Agreement, and in connection with any claim,
counterclaim, offset or defense arising in connection with such action
or proceeding, whether arising under statute (including any federal or
state constitution) or under the law of contract or otherwise and
including, without limitation, any challenge to the legality, validity,
binding effect or enforceability of this provision or this Agreement.
3.2 Notices. Any notices, requests, demands and other communications
required or permitted to be given hereunder shall be in writing and
will be deemed to have been duly given when personally delivered or
facsimile transmitted, or three days after deposit in the United States
mail, by certified mail, postage prepaid, return receipt requested, or
one day after deposited with an overnight courier service, next day
delivery guaranteed and fees paid by sender, as follows:
If to the Stockholder to:
Deluxe Investment Company.
0000 Xxxx Xxxxxxx Xxxxx Xxxx
Xxxxx 000-X
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxx Xxxxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
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If to Stanford, to:
Stanford Venture Capital Holdings, Inc.
Stanford Financial Group Building
0000 Xxxxxxxxxx
Xxxxxxx, Xxxxx 00000 XXX
Attention: Xxxxx Xxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Stanford Venture Capital Holdings, Inc.
Stanford Financial Group Building
0000 Xxxxxxxxxx
Xxxxxxx, Xxxxx 00000 XXX
Attention: Xxxxxxxx Xxxxxxxx, General Counsel
Phone: (000) 000-0000
Fax: (000) 000-0000
If to the Company:
Silver Key Mining Company, Inc.
000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxxxxx 000
Xxxxx, Xxxxxxx 00000
Attention: President
Phone: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Xxxxxx & Xxxx, P.A.
0000 Xxxxx Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxxx, Esq.
Phone: (000) 000-0000
Fax: (000) 000-0000
If to the Escrow Agent:
Boylan, Brown, Code, Xxxxxx & Xxxxxx LLP
0000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attention : Xxxxxxx Xxxxxx
Phone: (000) 000-0000 X 000
Fax: (000) 000-0000
or to such other addresses or facsimile numbers as either party hereto may from
time to time give notice of (complying as to delivery with the terms of this
paragraph) to the other. Notwithstanding anything to the contrary set forth
herein, notices, requests, demands and other communications required or
permitted to be given hereunder to the Escrow Agent shall be deemed to have been
duly given only when actually received by Escrow Agent at the address set forth
above in this Section 3.2.
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3.3 Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto and supersedes all prior agreements,
understandings, negotiations and discussions, both written and oral,
between the parties hereto with respect to the subject matter hereof.
3.4 Benefits; Binding Effect; Assignment. This Agreement is for the benefit
of and binding upon the parties hereto, their respective successors
and, where applicable, assigns. None of the parties may assign this
Agreement or any of its rights, interests or obligations hereunder
without the prior approval of the other party.
3.5 Waiver. No waiver of any of the provisions of this Agreement will be
deemed to constitute or will constitute a waiver of any other provision
hereof (whether or not similar), nor shall any such waiver constitute a
continuing waiver unless otherwise expressly so provided.
3.6 Paragraph Headings; Section Headings. The paragraph and other headings
contained in this Agreement are for reference purposes only and shall
not affect the meaning or interpretation of any provisions of this
Agreement.
3.7 Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each
of which will be deemed to be one and the same instrument.
3.8 Litigation. The parties agree that, if any legal action is brought for
the enforcement of this Agreement, or because of an alleged dispute,
breach, default, or misrepresentation in connection with any of the
provisions of this Agreement, then, the successful or prevailing party
or parties shall be entitled to recover reasonable attorney fees,
paralegal fees and other costs incurred in that action or proceeding,
in addition to any other relief to which it or they may be entitled.
3.9 Survival of Covenants and Agreements. The representations, warranties
and covenants of the Stockholder herein shall survive the execution of
this Agreement. In the event of any breach of any representation or
warranty, covenant or agreement the Stockholder will indemnify and hold
the Company harmless from any losses or costs incurred by reason of his
breach of the representation or warranty.
3.10 Best Efforts. Each of the Parties shall use their respective best
efforts to consummate the transactions contemplated by this Agreement,
subject to the terms and conditions set forth herein.
3.11 Further Assurances: Each Party agrees to cooperate fully with the other
parties and to execute such further instruments, documents and
agreements and to give such further written assurances, as may be
reasonable requested by any other party, to better evidence and reflect
the transactions described herein and contemplate hereby, and to carry
into effect the intents and purposes of this Agreement.
3.12 Remedies Cumulative. No remedy made available by any of the provisions
of this Agreement is intended to be exclusive of any other remedy, and
each and every remedy is cumulative and is in addition to every other
remedy given hereunder or now or hereafter existing at law or in
equity.
3.13 Governing Law. This Agreement will be governed by and construed and
enforced in accordance with the internal laws of the State of Florida.
Exclusive jurisdiction and venue in any dispute hereunder shall be in
the courts of competent jurisdiction in Miami-Dade County, Florida.
3.14 Construction. The parties have participated jointly in the negotiation
and drafting of this Agreement. In the event an ambiguity or question
of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties and no presumption or burden of
proof shall arise favoring or disfavoring any party by virtue of the
authorship of any of the provisions of this Agreement. Any reference to
any federal, state, local or foreign statute or law shall be deemed
also to refer to all rules and regulations promulgated thereunder,
unless the context requires otherwise.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
COMPANY:
SILVER KEY MINING COMPANY, INC.
By:
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Name:
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Title:
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STANFORD:
STANFORD VENTURE CAPITAL HOLDINGS, INC.
By:
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Name:
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Title:
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ESCROW AGENT:
BOYLAN, BROWN, CODE, XXXXXX & XXXXXX LLP
By:
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Name:
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Title:
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STOCKHOLDER:
DELUXE INVESTMENT COMPANY
By:
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Name:
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Title:
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11
