ESCROW AGREEMENT
This ESCROW AGREEMENT (this "Escrow Agreement") dated as of September
1, 1999 (the "Effective Date") by and among Lernout & Hauspie Speech Products
N.V., a Belgian corporation (the "Buyer"), Fonix Corporation, a Delaware
corporation (the "Seller") and State Street Bank and Trust Company, as escrow
agent only (along with any and all successor escrow agents, the "Escrow Agent").
WHEREAS, pursuant to an Asset Purchase Agreement dated May 19, 1999
(the "Purchase Agreement") by and among the Buyer, the Seller and Fonix/ASI
Corporation ("ASI"), a former subsidiary of Seller which has been merged with
and into Seller prior to the date hereof (the "Merger"), the Buyer has purchased
and the Seller has sold certain assets of the Seller;
WHEREAS, pursuant to the Merger, the Seller has succeeded to all
rights and obligations of ASI pursuant to the Purchase Agreement;
WHEREAS, the Buyer has delivered to the Seller all of the Purchase
Price (as defined in the Purchase Agreement) pursuant to the terms of Section
1.3 of the Purchase Agreement, other than the Earnout Payment (as defined in the
Purchase Agreement) and the sum of Two Million Five Hundred Thousand Dollars
($2,500,000.00) (the "Escrow Amount");
WHEREAS, under the terms of the Purchase Agreement, the Seller has
agreed to indemnify the Buyer against certain matters including, but not limited
to, breaches of representations, warranties, covenants and agreements made by
them thereunder;
WHEREAS, the Buyer has agreed to deliver the Escrow Amount to the
Escrow Agent to be held, subject to the terms and conditions hereinafter set
forth, to satisfy any claims for indemnification against the Seller;
WHEREAS, the parties have agreed that, to the extent that the Escrow
Amount is not required to satisfy any such indemnification claims, any balance
of the Escrow Amount shall be paid to the Seller as part of the Purchase Price
subject to and in accordance with the terms and conditions hereinafter set
forth; and
WHEREAS, the Escrow Agent has agreed to act as Escrow Agent hereunder
in accordance with the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual promises of the parties
and other good and valuable consideration, the parties agree as follows:
Section 1. Appointment of Escrow Agent. The Seller and the Buyer hereby
mutually appoint and designate the Escrow Agent as escrow agent to receive, hold
and disburse the Escrow Fund (as such term is defined in Section 2), and the
Escrow Agent hereby accepts such appointment and designation.
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Section 2. Establishment of Escrow Fund. The Buyer shall deposit with
the Escrow Agent and, upon receipt, the Escrow Agent shall acknowledge receipt
of the Escrow Amount (such amount, together with investment income earned
thereon pursuant to the terms hereof, collectively, the "Escrow Fund"). The
Escrow Fund shall be segregated from other assets of the Escrow Agent. The
Escrow Agent agrees to hold and administer the Escrow Fund subject to the terms
of this Escrow Agreement.
Section 3. Investment of Escrow Fund. The Escrow Agent shall invest the
Escrow Fund as directed in writing by the Seller received by the Escrow Agent
from time to time, only in one or more of the following: (a) direct, short-term
obligations of the United States Government or its instrumentalities; (b) mutual
funds which invest all or substantially all of their assets in direct,
short-term obligations of the United States Government (including those offered
by the Escrow Agent); (c) variable rate certificates of deposit (including those
of the Escrow Agent); (d) short-term investments in money market accounts of one
or more United States banks (which may include the Escrow Agent if it is a bank)
having total assets in excess of One Hundred Million Dollars ($100,000,000), in
each case having maturities of not more than ninety (90) days; or (e) municipal
or corporate bonds having a credit rating of A (Moody's or Standard & Poors) or
better; provided that the maximum maturity of any single issue will not exceed
ninety (90) days. The total amount of income which is credited to the Escrow
Fund from the date of the establishment of the Escrow Fund shall be referred to
as the "Accumulated Income." The Escrow Agent shall have no liability for any
investment losses on investments permitted under this Section 3, including any
losses on any investment required to be liquidated prior to maturity in order to
make a payment required hereunder. Investments pursuant to such investment
instructions described above shall in all instances be subject to availability
(including any time-of-day requirements). In no instance shall the Escrow Agent
have any obligation to provide investment advice of any kind. Absent its receipt
of any written investment instruction from the Seller, the Escrow Agent shall
invest the Escrow Fund in the Evergreen Select Treasury Money Market Fund. All
Accumulated Income shall be credited to, and shall become a part of the Escrow
Fund (and any losses on such investments shall be debited to the Escrow Fund).
Section 4. Payments from Escrow Fund; Actions on Escrow Assets.
(a) At any time or times subsequent to the Closing Date (as defined in
the Purchase Agreement) and prior to the Termination Date (as defined in Section
5 hereof), the Buyer may make claims against the Escrow Fund for reimbursement
for claims pursuant to Article 8 of or otherwise under the Purchase Agreement.
Such claims shall be made by the Buyer by giving written notice to the Seller
and the Escrow Agent of each such claim, specifying in reasonable detail the
amount and basis thereof (a "Notice of Claim").
(b) If the Seller shall dispute such claim (or a portion thereof) (a
"Disputed Claim"), it shall give written notice of such objection to the Escrow
Agent and the Buyer at any time within ten (10) business days after the Buyer's
giving of the Notice of Claim (a "Dispute Notice"). All such notices shall be
delivered as provided in Section 14 hereof. Absent the Seller giving a Dispute
Notice to a Disputed Claim and the receipt by the Escrow Agent thereof within
such time period, such claim shall be deemed to have been approved as a valid
claim in the full amount thereof (an "Accepted Claim").
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(c) If the Seller shall dispute a claim (or portion thereof) of the
Buyer as above provided, then the Escrow Agent shall retain a portion of the
Escrow Fund sufficient to pay said Disputed Claim in full, together with the
Allocable Income Amount (as that term is hereinafter defined) and shall make no
distribution thereof (except for the amount of any Accepted Claim as set forth
above) unless and until the Escrow Agent receives joint written instructions
from the Buyer and the Seller or a final court order indicating the amount and
recipient of such distribution, at which point such Disputed Claim shall be
deemed an "Accepted Claim" for purposes of this Escrow Agreement.
(d) All Accepted Claims shall be paid promptly from the Escrow Fund;
provided, however, that the Escrow Agent shall not be obligated to release or
distribute amounts sooner than two (2) business days after the Escrow Agent has
received the requisite notice or paperwork in good form. All payments shall be
made by the Escrow Agent to the Buyer by delivery of an amount equal to the sum
of: (i) the amount of the applicable Accepted Claim (the "Subject Amount"); plus
(ii) the Allocable Income Amount earned to the last day of the month preceding
the month in which payment is made. However, in no event shall the total amount
of payments (the aggregate of the Subject Amounts and the Allocable Income
Amounts) to the Buyer on all Accepted Claims exceed the amount originally
deposited in the Escrow Fund and the Accumulated Income at the date of such
release or distribution. For purposes of this Escrow Agreement, the term
"Allocable Income Amount" with respect to a claim, distribution, or any amounts
to be retained in escrow pursuant to Section 4(c) shall mean the amount of
income (including reinvestment income), if any, that has been earned on the
amount of any such payment (equal to the Subject Amount) from the date of the
commencement of the Escrow Fund.
Section 5. Release and Termination of Escrow Fund.
(a) This Escrow Agreement shall terminate eighteen months following the
Closing Date (as defined in the Purchase Agreement) with such Closing Date
certified in writing to the Escrow Agent by the Buyer and the Seller (the
"Termination Date"); provided, however, that if there are otherwise outstanding
claims on the Termination Date made pursuant to the terms of the Purchase
Agreement and as to which the Escrow Agent has before such date received a
Notice of Claim pursuant to Section 4 of this Escrow Agreement, this Escrow
Agreement shall continue in effect until all such claims shall have been
resolved. As of the Termination Date, an amount adequate to cover the sum of
amounts specified in all Notices of Claim received by the Escrow Agent prior to
the Termination Date and which remain outstanding without having been paid or
otherwise resolved will be held by the Escrow Agent together with the Allocable
Income Amount with respect thereto (the "Holdback") to the extent such amount
remains available, and, the Escrow Agent shall distribute the balance of the
Escrow Fund, if any, to the Seller, as the Seller shall direct in writing
promptly following the Termination Date. At such time as all such remaining
claims hereunder have been paid or otherwise resolved pursuant to Section 4
(unless the Aggregate Amount of such pending claims not paid or otherwise
resolved exceeds the Holdback), the Escrow Agent shall distribute the remaining
Escrow Fund, if any, (or such excess portion of the Holdback, as the case may
be) to the Seller, as provided above.
(b) Notwithstanding anything herein to the contrary, the Escrow Agent
shall promptly dispose of all or any part of the Escrow Fund as directed by a
writing signed jointly by the Seller and the Buyer. The Escrow Agent shall be
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entitled to rely on the instructions received from the Seller and the Buyer,
jointly, and shall have no liability to the Seller or the Buyer for any and all
payments made in accordance with such instructions.
Section 6. Duties and Responsibilities of Escrow Agent.
(a) Seller and Buyer acknowledge and agree that the Escrow Agent: (i)
shall not be responsible for any of the agreements (other than those agreements
made by Escrow Agent) referred to herein (including without limitation the
Purchase Agreement) but shall be obligated only for the performance of such
duties as are specifically set forth in this Escrow Agreement on its part to be
performed, each of which are ministerial (and shall not be construed to be
fiduciary) in nature, and no implied duties or obligations shall be read into
this Agreement against or on the part of the Escrow Agent; (ii) shall not be
obligated to take any legal or other action hereunder which might in its
judgment involve any expense or liability unless it shall have been furnished
with indemnification acceptable to it in its sole discretion; (iii) may rely on
and shall be protected in acting or refraining from acting upon any written
notice, instruction (including, without limitation, wire transfer instructions,
whether incorporated herein or provided in a separate written instruction),
instrument, statement, request or document furnished to it hereunder and
believed by it to be genuine and to have been signed or presented by the proper
person, and shall have no responsibility for determining the accuracy thereof;
and (iv) may consult counsel satisfactory to it, including in-house counsel, if
it reasonably determines that such consultation is necessary and the opinion or
advice of such counsel in any instance shall be full authorization and
protection in respect of any action taken, suffered or omitted by the Escrow
Agent in good faith and in accordance with the opinion or advice of such
counsel.
(b) Neither the Escrow Agent nor any of its directors, officers or
employees shall be liable to anyone for any action taken or omitted to be taken
by it or any of its directors, officers, or employees hereunder except in the
case of gross negligence, bad faith or willful misconduct. Seller and Buyer,
jointly and severally, covenant and agree to indemnify the Escrow Agent (and its
directors, officers and employees) and hold it (and its directors, officers and
employees) harmless without limitation from and against any claim, loss,
liability or expense of any nature incurred by the Escrow Agent arising out of
or in connection with this Agreement or with the administration of its duties
hereunder, including but not limited to reasonable legal fees and other costs
and expenses of defending or preparing to defend against any claim or liability
hereunder, and payment of any legal fees and expenses incurred by the Escrow
Agent in connection with resolution of any claim by any party hereunder, unless
such loss, liability or expense shall be caused by the Escrow Agent's gross
negligence, bad faith, or willful misconduct. In no event shall the Escrow Agent
be liable for indirect, punitive, special or consequential damages.
(c) The Escrow Agent shall have no responsibility or liability on
account of any action or omission of any book-entry depository or subescrow
agent employed by the Escrow Agent, except to the extent that such action or
omission of any book-entry depository or subescrow agent was caused by the
Escrow Agent's own gross negligence, bad faith or willful misconduct.
(d) The Buyer and the Seller each agree, jointly and severally, to pay
or reimburse the Escrow Agent for legal fees incurred in connection with the
preparation of this Escrow Agreement and to pay the Escrow Agent's reasonable
compensation for its normal services hereunder in accordance with the fee
schedule attached hereto as Schedule 6, except that the Seller shall pay any per
trade fees related to the Escrow Fund. The Escrow Agent shall be entitled to
reimbursement by the Buyer and the Seller (and the Buyer and the Seller hereby
agree, jointly and severally to pay) on demand for all reasonable costs and
expenses incurred in connection with the administration of this Escrow Agreement
or the Escrow Fund created hereby which are in excess of its compensation for
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normal services. Without altering or limiting the joint and several liability of
the Buyer and the Seller to the Escrow Agent hereunder, the Buyer and the Seller
each agree that any fees, expenses or reimbursements to be paid to the Escrow
Agent, shall be shared equally by the Buyer and the Seller.
(e) The provisions of this Section 6 shall survive termination of this
Escrow Agreement as well as resignation or removal of the Escrow Agent.
Section 7. Resignation of Escrow Agent. The Escrow Agent may resign at
any time upon giving sixty (60) days written notice to the other parties hereto.
The Buyer and the Seller agree that they will jointly appoint a successor escrow
agent within thirty (30) days after receipt of such notice, and the Escrow Agent
hereby agrees that, upon receiving joint written instructions from the Buyer and
the Seller, it shall turn over and deliver to such successor Escrow Agent the
Escrow Fund and other amounts held by it pursuant to this Escrow Agreement in
accordance with the terms of such written instructions (as well as all
applicable records and a list of disbursements) and render an accounting as
required by Section 10 hereof. If a successor Escrow Agent is not appointed by
the Buyer and the Seller within such thirty (30) day period, the Escrow Agent
may tender the Escrow Fund to the Buyer and the Seller a check or checks payable
jointly in an amount equal to the balance of the Escrow Fund, as a result of
which the Escrow Agent herein shall be fully relieved of any liabilities under
this Escrow Agreement to any and all parties.
Section 8. Removal of Escrow Agent. The Buyer and the Seller together
shall have the right to remove the Escrow Agent hereunder by giving notice in
writing to the Escrow Agent, specifying the date upon which such removal shall
take effect and executed by both the Buyer and the Seller. In the event of such
removal, the Buyer and the Seller agree that they will jointly appoint a
successor Escrow Agent within thirty (30) days after the giving of such notice,
and the Escrow Agent hereby agrees that, upon receiving joint written
instructions from the Buyer and the Seller it shall turn over and deliver to
such successor Escrow Agent the Escrow Fund and other amounts held by it
pursuant to this Escrow Agreement in accordance with the terms of such written
instructions (as well as all applicable records and a list of disbursements) and
render an accounting as required by Section 10 hereof.
Section 9. Successor Escrow Agent. Upon receipt of the Escrow Fund
pursuant to this Escrow Agreement, the successor Escrow Agent shall thereupon be
bound by all of the provisions hereof and the term "Escrow Agent" as used herein
shall mean such a successor Escrow Agent.
Section 10. Accounting. In the event of the resignation or removal of
the Escrow Agent, upon the termination of the Escrow Fund or the termination of
this Escrow Agreement or upon written request by either the Buyer or the Seller
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under reasonable circumstances, the Escrow Agent shall render to the Buyer and
the Seller and to the successor Escrow Agent, if any, a written accounting of
its management of the Escrow Fund and all distributions thereof.
Section 11. Tax Matters.
(a) The parties agree that, for tax reporting purposes, all Accumulated
Income earned from the investment of the Escrow Fund in any Tax Year shall: (i)
to the extent such interest or other income is distributed by the Escrow Agent
to any person or entity pursuant to the terms of this Escrow Agreement during
such Tax Year, be allocated to the person or entity receiving such interest or
other income; and (ii) otherwise be allocated to the Seller.
(b) The parties hereto agree to provide the Escrow Agent with a
certified tax identification number by signing and returning a Form W-9 (or Form
W-8, in case of non-U.S. persons) to the Escrow Agent within 30 days from the
date hereof. The parties understand that, in the event their tax identification
numbers are not certified to the Escrow Agent, the Internal Revenue Code, as
amended from time to time, may require withholding of a portion of any
Accumulated Income earned on the investment of the Escrow Fund.
(c) Tax Indemnification. Each of the Seller and the Buyer agrees,
jointly and severally: (i) to assume any and all obligations imposed now or
hereafter by any applicable tax law with respect to any payment or distribution
of the Escrow Funds or performance of other activities under this Escrow
Agreement; (ii) to instruct the Escrow Agent in writing with respect to the
Escrow Agent's responsibility for withholding and other taxes, assessments or
other governmental charges, and to instruct the Escrow Agent with respect to any
certifications and governmental reporting that may be required under any laws or
regulations that may be applicable in connection with its acting as Escrow Agent
under this Escrow Agreement; and (iii) to indemnify and hold the Escrow Agent
harmless for and from any liability or obligation on account of taxes,
assessments, additions for late payment, interest, penalties, and other
governmental charges that may be or become due, or that may be assessed or
asserted against the Escrow Agent (other than in respect of its own income from
compensation paid to it hereunder, and other than arising from its gross
negligence or willful misconduct), in connection with or relating to any payment
made or other activities performed under the terms of this Escrow Agreement,
including without limitation any liability for the withholding or deduction (or
the failure to withhold or deduct) of the same, and any liability for failure to
obtain proper certifications or to report properly to governmental authorities
in connection with this Escrow Agreement, including costs and expenses (and
including reasonable legal fees and expenses), interest and penalties. The
foregoing indemnification and agreement to hold harmless shall survive the
termination of this Agreement.
Section 12. Assignability. This Escrow Agreement may not be assigned
other than by operation of law: (i) by the Buyer without the prior written
consent of the Seller; or (ii) by the Seller without the prior written consent
of the Buyer, except that any successor to the Escrow Agent on merger or
consolidation or any corporation which acquires all or substantially all of the
corporate assets or business of the Escrow Agent shall become Escrow Agent
hereunder. This Escrow Agreement shall inure to the benefit of and be binding
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upon the parties hereto and their respective heirs, legal representatives,
successors and permitted assigns. Nothwithstanding the foregoing, the Buyer may
assign any or all of its rights hereunder as provided for in Section 11.7 of the
Purchase Agreement.
Section 13. Law Governing. This Escrow Agreement shall be
governed by and construed in accordance with the laws of the Commonwealth of
Massachusetts (other than choice of law provisions thereof).
Section 14. Notices.
(a) Any notice or other communication in connection with this Escrow
Agreement shall be deemed to be delivered if in writing (or in the form of a
telegram or facsimile transmission, receipt telephonically communicated)
addressed as provided below and if either: (i) actually delivered electronically
or physically at said address (provided that if said address is a business,
delivery is made during normal business hours); or (ii) in the case of a letter,
three (3) business days shall have elapsed after the same shall have been
deposited in the United States mail, postage prepaid and registered or
certified, return receipt requested; or (iii) forty eight (48) hours shall have
elapsed after the same shall have been sent by nationally recognized overnight
receipted courier:
If to the Escrow Agent:
Mailing Address:
State Street Bank and Trust Company
Global Investor Services Group
Corporate Trust Division
X.X. Xxx 000
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Attention: Lernout/Seller Escrow
Fax: (000) 000-0000
Courier Address:
0 Xxxxxx xx Xxxxxxxxx -0xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
If to the Buyer:
Lernout & Hauspie Speech Products X.X.
Xxxxxxxx Xxxxxxxx Xxxxxx 00
X-0000 Xxxxx, Xxxxxxx
Telephone: 000-00-00-000-000
Facsimile: 011-32-57-219-661
Attn: Legal Department
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with a copy to:
Brown, Rudnick, Freed & Gesmer
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xxxxxx X. Xxxxx, Esquire
If to the Seller:
Fonix Corporation
0000 Xxxxx Xxxx Tower
00 Xxxx Xxxxx Xxxxxx Xxxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xxxxxx X. Xxxxxxx, President
with a copy to:
Durham, Xxxxx & Xxxxxxx
00 Xxxxx Xxxx Xxxxxx
Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xxxxxxx Xxxxx, Esquire
or to such other address which any party may be certified or registered mail
notify the other.
(b) Wiring Instructions. Any funds to be paid to or by the Escrow Agent
hereunder shall be sent by wire transfer pursuant to the following instructions
(or by such method of payment and pursuant to such instruction as may have been
given in advance and in writing to or by the Escrow Agent, as the case may be,
in accordance with Section 14(a) above):
If to the Buyer:
Bank: Artesia Bank Belgie NV
Xxxxxxxxxx 00
X-0000 Xxxxxxxxx, XXXXXXX
A/C #: 000-0000000-00
Swift Code: XXXXXXXX
Ref: Lernout & Hauspie Speech Products N.V.
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If to Seller:
Bank: Key Bank of Utah
ABA #: 000000000
A/C #: 4450-1000-1292
Account: Durham, Xxxxx & Xxxxxxx
If to the Escrow Agent:
Bank: State Street Bank and Trust Company
ABA #: 0110 0002 8
A/C #: 0000-000-0
Ref: Lernout/Seller Escrow
Section 15. Counterparts. This Agreement may be executed in
multiple counterparts, each which shall be an original, but all of which
together shall constitute one and the same agreement.
Section 16. Dispute Resolution. It is understood and agreed that should
any dispute arise with respect to the delivery, ownership, right of possession,
and/or disposition of the Escrow Fund, or should any claim be made upon the
Escrow Agent or the Escrow Fund by a third party, the Escrow Agent upon receipt
of notice of such dispute or claim is authorized and shall be entitled (at its
sole option and election) to retain in its possession, without liability to
anyone, all or any of said Escrow Fund until such dispute shall have been
settled either by the mutual written agreement of the parties involved or by a
final order, decree or judgment of a court in the United States of America, the
time for perfection of an appeal of such order, decree or judgment having
expired. The Escrow Agent may, but shall be under no duty whatsoever to,
institute or defend any legal proceedings which relate to the Escrow Fund. To
the extent that the Buyer and the Seller shall be engaged in a dispute between
themselves with respect to the delivery, ownership, right of possession, and/or
distribution of the Escrow Fund: (a) any such dispute shall be adjudicated in
the Superior Court of the Commonwealth of Massachusetts or the United States
District Court, District of Massachusetts located in said Commonwealth; and (b)
the losing party to the dispute shall pay all reasonable costs and expenses
(including, but limited to, attorneys' fees) of the prevailing party.
Section 17. Consent to Jurisdiction and Service. Each of the Buyer and
the Seller hereby absolutely and irrevocably consent and submit to the
jurisdiction of the Superior Court of the Commonwealth of Massachusetts and the
United States District Court, District of Massachusetts located in said
Commonwealth in connection with any actions or proceedings brought against any
of the parties hereto (or each of them) by the Escrow Agent arising out of or
relating to this Escrow Agreement. In any such action or proceeding, the Buyer
and the Seller each hereby absolutely and irrevocably: (i) waives any objection
to jurisdiction or venue; (ii) waives personal service of any summons,
complaint, declaration or other process; and (iii) agrees that the service
thereof may be made by certified or registered first-class mail directed to such
party, as the case may be, at their respective addresses in accordance with
Section 14 hereof.
Section 18. Force Majeure. Neither the Seller nor the Buyer nor the
Escrow Agent shall be responsible for delays or failures in performance
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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.
Section 19. Modifications. This Agreement may not be altered or
modified 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
Escrow 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
Escrow Agreement on one occasion shall not constitute a waiver of the other
terms of this Escrow Agreement, or of such terms and conditions on any other
occasion.
Section 20. 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 any
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.
Section 21. Entire Agreement, Severability and Further Assurances. This
Escrow Agreement together with all schedules hereto constitutes the entire
agreement among the parties, and all promises, representations, undertakings,
warranties and agreements with reference to the subject matter hereof and
inducements to the making of this Escrow Agreement relied upon by any party
hereto, have been expressed herein or in the documents incorporated herein by
reference. The invalidity or unenforceability of any provision of this Escrow
Agreement shall not affect the validity or enforceability of any other provision
hereof. Each of the parties shall, at the reasonable request of another party,
deliver to the requesting party all further documents or other assurances as may
reasonably be necessary or desirable in connection with this Escrow Agreement.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have executed this Escrow Agreement or
caused the same to be executed by their duly authorized representatives, as of
the date first stated hereinabove.
ESCROW AGENT:
STATE STREET BANK & TRUST COMPANY
By:/s/
--------------------------------------
Name:Chi C. Me
Title:Vice President
hereunder duly authorized
officer of the Escrow Agent
SELLER:
FONIX CORPORATION
By:/s/
------------------------------------
Xxxxxx X. Xxxxxxx
President and Chief Executive Officer
BUYER:
LERNOUT & HAUSPIE SPEECH PRODUCTS N.V.
By:/s/
------------------------------------
Xxxx Xxxxxxxxx
Chief Financial Officer and Senior
Vice President of Finance
