ESCROW AGREEMENT
This ESCROW AGREEMENT (the "Escrow Agreement") is effective as of May 27,
2005 by and between Concentrax, Inc., a Nevada corporation ("Concentrax"),
Pluris Partners, Inc., a Florida Corporation ("Purchaser") and Xxxxxx Law Group,
a California professional corporation, as escrow agent ("Escrow Agent"). Each
of Concentrax, Purchaser and Escrow Agent may be referred to as a "Party" and
collectively as the "Parties".
R E C I T A L S
A. Purchaser desires to purchase from Concentrax and Concentrax desires
to sell to Purchaser a total of 10,000,000 shares of Concentrax common stock
(the "Concentrax Shares") for a total purchase price of $250,000 (the "Purchase
Price"). The parties hereto represent and warrant that Purchaser has already
delivered $125,000 of the Purchase Price to Concentrax and Concentrax has
already delivered 600,000 shares of common stock to Purchaser. As a component
of the transaction, Concentrax has also agreed to issue and deliver to Purchaser
a "Series A Warrant" as defined in that certain Stock Purchase Agreement between
Purchaser and Concentrax dated May 31, 2005 which will consist of a warrant to
purchase up to 1,000,000 shares at a purchase price of 80% of the average bid
price of the common stock for the twenty trading days prior to exercise,
exercisable for five years from the closing date (the "Warrant").
B. Concentrax and Purchaser desire to effectuate the transfer of the
balance of the funds reflecting $125,000 (the "Final Purchase Price") in
consideration for the remaining 9,400,000 shares of common stock (the "Final
Common Stock" and together with the Final Purchase Price and the Warrant, the
"Escrowed Property") through escrow at the Escrow Agent.
NOW THEREFORE, for and in consideration of the foregoing and of the mutual
covenants and agreements hereinafter set forth, the parties hereto hereby agree
as follows:
1. Appointment of Escrow Agent. The Parties hereby mutually appoint
and designate the Escrow Agent to receive, hold and release, as escrow agent,
the Escrowed Property and the Escrow Agent hereby accepts such appointment and
designation.
2. Escrow Delivery. On or before May 31, 2005 Purchaser shall forward by
wire transfer to Escrow the Final Purchase Price. On or before May 31, 2005,
Concentrax shall forward or cause to be forwarded by overnight mail to Escrow
the Final Common Stock and the executed Warrant.
3. Closing.
3.1 Closing. Upon delivery of the Final Purchase Price and the Final
Common Stock and Warrant, the Escrow Agent shall effectuate Closing of the
transaction contemplated by the Stock Purchase Agreement. At the Closing, the
Escrow Agent shall release and deliver the Final Common Stock and the Warrant to
Purchaser and shall deliver by wire transfer the Final Purchase Price to
Concentrax or as otherwise designated in the Purchase Agreement. In the event
the Closing does not occur by June 15, 2005, and provided the Escrow Agent has
not received written instructions to the contrary signed by all of the parties
hereto, Escrow shall return the Final Purchase Price to Purchaser and the Final
Common Stock and Warrant to Concentrax.
3.2 Other Instructions. Escrow Agent shall deliver the Final Purchase
Price, the Final Common Stock and/or the Warrant pursuant to (a) written
instructions executed by each of Purchaser and Concentrax, or (b) any "final
order" of a court of competent jurisdiction, any such order being deemed to be
"final" if (i) such order has not been reserved, stayed, enjoined, set aside,
annulled or suspended, (ii) no request for a stay, suspension or an injunction,
petition for reconsideration or appeal, or sua sponte action with comparable
effect is pending with respect to the order, and (iii) the time for filing any
such request, petition or appeal or further taking of any such sua sponte action
has expired.
3.3 Conflicting Instructions. If a controversy arises between the
Parties concerning the release of any of the escrowed property hereunder, they
shall notify the Escrow Agent. In that event (or, in the absence of such
notification, if in the good faith judgment of the Escrow Agent such controversy
exists), the Escrow Agent shall not be required to resolve such controversy or
take an action but shall be entitled to await resolution of the controversy by
joint instructions from the Parties. The Escrow Agent may institute an
interpleader action in state or federal court in the State of Georgia to resolve
such controversy. If a suit is commenced against the Escrow Agent, it may
answer by way of interpleader and name the Parties as additional parties to such
action, and the Escrow Agent may tender the referenced escrow property into such
court for determination of the respective rights, titles and interests of the
Parties. Upon such tender, the Escrow Agent shall be entitled to receive from
the Parties its reasonable attorneys' fees and expenses incurred in connection
with said interpleader action or in any related action or suit. As between the
Parties, such fees, expenses and other sums shall be paid by the party which
fails to prevail in the proceedings brought to determine the appropriate
distribution of escrowed property. If and when the Escrow Agent shall so
interplead such Parties, or either of them, and deliver the escrowed property to
the clerk of such court, all of its duties hereunder shall cease, and it shall
have no further obligation in this regard. Nothing herein shall prejudice any
right or remedy of the Escrow Agent.
4. Concerning Escrow Agent
4.1 Duties. Escrow Agent undertakes to perform all duties which are
expressly set forth herein; provided, however, that the Escrow Agent shall not
be required to make or be liable in any manner of its failure to make any
determination under any agreement, including whether any of the Parties is
entitled to delivery of the escrowed property.
4.2 Indemnification.
a. Escrow Agent may rely upon and shall be protected in acting or refraining
from acting upon any written notice, instructions or request furnished to it
hereunder and believed by it to be genuine and authorized.
b. Escrow Agent shall not be liable for any action taken by it in good faith
and without gross negligence or willful misconduct, and believed by it to be
authorized or within the rights or powers conferred upon it by this Escrow
Agreement, and may consult with counsel of its own choice and shall have full
and complete authorization and protection for any action taken or suffered by it
hereunder in good faith and in accordance with the opinion of such counsel.
c. The Parties, and each of them, hereby agree, jointly and not severally,
to indemnify the Escrow Agent for, and hold the Escrow Agent harmless against,
any loss, liability or expense incurred without gross negligence or willful
misconduct or bad faith on the part of the Escrow Agent, arising out of or in
connection with the Escrow Agent's entering into this Escrow Agreement and
carrying out the Escrow Agent's duties hereunder, including, without limitation,
costs and expenses of defending the Escrow Agent against any claim or liability
with respect thereto.
d. Escrow Agent shall have no implied obligations or responsibilities
hereunder, nor shall it have any obligation or responsibility to collect funds
or seek the deposit of money or property, nor is the Escrow Agent a party to any
other agreement entered into among the Parties.
4.3 Other Matters. Escrow Agent (and any successor escrow agent or
agents) reserves the right to resign as the Escrow Agent at any time, provided
fifteen (15) days' prior written notice is given to the other parties hereto,
and provided further that a mutually acceptable successor escrow agent(s) is
appointed within such fifteen (15) day period. If a mutually acceptable
successor escrow agent is not appointed within such fifteen (15) day period, the
Escrow Agent may petition any court in the State of Georgia having jurisdiction
to designate a successor escrow agent. The resignation of the Escrow Agent (and
any successor escrow agent or agents) shall be effective only upon delivery of
the Escrowed Property to the successor escrow agent(s). The Parties reserve the
right to jointly remove the Escrow Agent at any time, provided fifteen (15)
days' prior written notice is given to the Escrow Agent. In the event of
litigation or dispute by the Parties in which the performance of the duties of
the Escrow Agent is at issue, the Escrow Agent shall take no action until such
action is agreed in writing by the Parties, or until receipt of any order as set
forth above directing the Escrow Agent with respect to the action which is the
subject of such litigation or dispute. Any successor escrow agent(s) shall be
bound by the terms of this Escrow Agreement, unless the Parties otherwise agree
in writing.
5. Termination. This Escrow Agreement shall be terminated upon the
release of all of the Escrowed Property in accordance with the terms and
conditions of Section 3 hereof, or otherwise by written mutual consent signed by
all parties hereto.
6. Benefit and Assignment. This Escrow Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their respective
successors and assigns as permitted hereunder. No person or entity other than
the parties hereto is or shall be entitled to bring any action to enforce any
provision in this Escrow Agreement against any of the parties hereto, and the
covenants and agreements set forth in this Escrow Agreement shall be solely for
the benefit of, and shall be enforceable only by, the parties hereto or their
respective successors and assigns this Escrow Agreement or any rights hereunder
without the prior written consent of the parties hereto.
7. Entire Agreement; Amendment. This Escrow Agreement, along with any
other agreement executed on the date hereof between the Parties, contains the
entire agreement among the parties with respect to the subject matter hereof and
supersedes all prior oral or written agreements, commitments or understandings
with respect to such matters. This Escrow Agreement may not be changed orally,
but only by an instrument in writing signed by the party against whom
enforcement of any waiver, change, modification, extension or discharge is
sought.
8. Headings. The headings of the sections and subsections contained in this
Escrow Agreement are inserted for convenience only and do not form a part or
affect the meaning, construction or scope thereof.
9. Governing Law; Venue. This Escrow Agreement shall be governed and
constructed under and in accordance with the laws of the State of Georgia (but
not including the conflicts of laws and rules thereof). For purposes of any
action or proceeding involving this Escrow Agreement each of the parties to this
Escrow Agreement expressly submits to the jurisdiction of the federal and state
courts located in the State of Georgia and consents to the service of any
process or paper by registered mail or by personal service within or without the
State of Georgia in accordance with applicable law, provided a reasonable time
for appearance is allowed.
10. Signature in Counterparts. This Escrow Agreement may be executed
in separate counterparts, none of which need contain the signature of all
parties, each of which shall be deemed to be an original and all of which taken
together constitute one and the same instrument. It shall not be necessary in
making proof of this Escrow Agreement to produce or account for more than the
number of counterparts containing the respective signatures of, or on behalf of,
all of the parties hereto.
11. Attorney's Fees. Should any action be commenced between the
parties to this Agreement concerning the matters set forth in this Agreement or
the right and duties of either in relation thereto, the prevailing party in such
action shall be entitled, in addition to such other relief as may be granted, to
a reasonable sum as and for its Attorney's Fees and Costs.
IN WITNESS WHEREOF, each of the parties has caused this Escrow Agreement to
be duly executed and delivered in its name and on its behalf, all as of the date
and year first above written.
CONCENTRAX, INC.
Dated: May 27, 2005
/s/ Xxxx Xxxxxxx
By: Xxxx Xxxxxxx
Its: President
PLURIS PARTNERS, INC.
Dated: May 27, 2005
/s/ Xxxxxxx X' Xxxxxxx
By: Xxxxxxx X'Xxxxxxx
Its: President
XXXXXX LAW GROUP, a Professional law corporation
Dated: May 27, 2005
/s/ M. Xxxxxxx Xxxxxx
By: M. Xxxxxxx Xxxxxx
Its: President
