ESCROW AGREEMENT
Exhibit
16.2
THIS
ESCROW AGREEMENT (this “Escrow
Agreement”)
is
entered into as of this 5th
day of
December, 2006, by and among NeoMedia Technologies, Inc., a Delaware corporation
(“NeoMedia”),
FMS
Group, Inc., a Delaware corporation (“Newco”),
Mobot, Inc., a Delaware corporation (“Mobot”)
and
Xxxxxxxxxxx & Xxxxxxxx Xxxxxxxxx Xxxxxx LLP (the “Escrow
Agent”).
All
capitalized terms not defined herein shall have those meanings ascribed thereto
in that certain Agreement dated of even date herewith by and between NeoMedia
and Newco (the “Agreement”).
RECITALS:
A. Pursuant
to the Agreement, NeoMedia shall transfer to Newco all of the Mobot Shares
in
exchange for the issuance by Newco to NeoMedia of certain shares of capital
stock of Newco, including 12,000 shares of nonvoting common stock, $0.01 par
value per share, of Newco (subject to equitable adjustment in the event of
any
stock dividend, stock split, combination, reclassification of shares or other
similar event) which are to be held in escrow pursuant to the terms of this
Escrow Agreement (the “Escrow
Shares”).
B. Pursuant
to Section 2.5 of the Agreement, the Escrow Shares are being held by the Escrow
Agent as security for the obligations of NeoMedia to Mobot under the Note.
C. Pursuant
to the Note, at the option of Mobot, upon the occurrence of an Event of Default
(as defined in the Note) by NeoMedia under the Note, Mobot shall have the right
to direct that the Escrow Shares be transferred to Newco (and NeoMedia shall
forfeit all rights thereto) as liquidated damages.
D. The
Escrow Agent has agreed to hold the Escrow Shares as Escrow Agent pursuant
to
the terms of this Escrow Agreement.
AGREEMENT:
NOW,
THEREFORE, in consideration of the mutual covenants and agreements contained
herein, and for other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties hereto, each intending to be
legally bound, hereby agree as follows:
1. Recitals.
The
above recitals are true and correct and are hereby incorporated, in their
entirety, by this reference.
2. Appointment.
NeoMedia and Newco hereby appoint the Escrow Agent, and the Escrow Agent hereby
accepts appointment as the Escrow Agent under the terms and subject to the
conditions of this Agreement.
3. Term.
The
term (the “Term”)
of
this Agreement commences on the date of its execution and continues until such
time as the Escrow Agent disburses the Escrow Shares in accordance with the
provisions of Section 6 hereof or upon the earlier resignation of the Escrow
Agent pursuant to Section 7(d) hereof.
4. The
Escrow Shares.
On the
date hereof, Newco shall deliver to the Escrow Agent a stock certificate
representing the Escrow Shares.
5. Notices.
(a) In
the
event that NeoMedia shall claim that it has satisfied all of its obligations
under the Note, NeoMedia shall deliver to the Escrow Agent and Mobot a written
notification (a “Payment
Notice”)
which
contains a description of the date and amount of payment made by NeoMedia under
the Note. In the event that Mobot objects to such claim and asserts that
NeoMedia has not satisfied all of its obligations under the Note, Mobot shall
deliver to the Escrow Agent and NeoMedia a written notification (a “Payment
Objection Notice”)
which
contains a description of the basis for such objection.
(b) In
the
event that Mobot shall claim that an Event of Default (as defined in the Note)
shall have occurred under the Note and in connection therewith shall elect
to
direct that the Escrow Shares be transferred to Newco as liquidated damages,
Mobot shall deliver to the Escrow Agent and NeoMedia a written notification
(a
“Claim
Notice”)
which
contains a description of the basis for such claim. In the event that NeoMedia
objects to such claim and asserts that an Event of Default has not occurred,
NeoMedia shall deliver to the Escrow Agent and Mobot a written notification
(a
“Claim
Objection Notice”)
which
contains a description of the basis for such objection.
6. Disbursements.
(a) General
Rule for Disbursement.
The
Escrow agent shall release the Escrow Shares only in accordance with (i) a
written instrument delivered to the Escrow Agent that is executed by both
NeoMedia and Mobot and that instructs the Escrow Agent as to the distribution
of
some or all of the Escrow Shares, (ii) an order of a court of competent
jurisdiction, a copy of which is delivered to the Escrow Agent by either
NeoMedia or Mobot, that instructs the Escrow Agent as to the distribution of
some or all of the Escrow Shares, or (iii) the provisions of Section 6(b),
(c),
(d) or (e) below.
(b) Release
Based Upon Payment Notice.
The
Escrow Agent shall release the Escrow Shares to NeoMedia at the end of a period
of twenty (20) days following its receipt of a Payment Notice unless within
such
twenty (20) day period the Escrow Agent receives a Payment Objection Notice
from
Mobot.
(c) Release
Based Upon Claim Notice.
The
Escrow Agent shall release the Escrow Shares to Newco at the end of a period
of
twenty (20) days following its receipt of a Claim Notice unless within such
twenty (20) day period the Escrow Agent receives a Claim Objection Notice from
NeoMedia.
(d) Release
On Release Date.
The
Escrow Agent shall release the Escrow Shares to NeoMedia on January 15, 2007
(the “Release
Date”),
provided that if Mobot has previously delivered to the Escrow Agent a copy
of a
Claim Notice and the Escrow Agent has not received written notice executed
by
both NeoMedia and Mobot of the resolution of the claim covered thereby (an
“Open
Claim”),
the
Escrow Agent shall retain all of the Escrow Shares in escrow after the Release
Date. The Escrow Agent shall release such retained Escrow Shares only in
accordance with clauses (i) or (ii) of Section 6(a).
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(e) Release
Upon Court Order.
If the
Escrow Agent retains the Escrow Shares after the Release Date pursuant to
Section 6(d), and the Escrow Agent thereafter releases to Newco a portion of
such Escrow Shares upon an order of a court of competent jurisdiction that
has
resolved such Open Claim, then the Escrow Agent shall thereupon release to
NeoMedia the remaining Escrow Shares (unless there is one or more other Open
Claims, in which case the Escrow Agent shall retain the remaining Escrow Shares
in escrow and shall release them only in accordance with clauses (i) or (ii)
of
Section 6(a)).
(f) Cancellation
of Certificates.
Upon
any release of the Escrow Shares to Newco pursuant to the terms of this
Agreement, NeoMedia shall forfeit all rights in such Escrow Shares and Newco
shall be authorized to cancel the certificate or certificates representing
such
Escrow Shares registered in the name of NeoMedia (whereupon NeoMedia shall
cease
to be the owner of the shares represented by such certificate or certificates
for all purposes) and issue a new certificate or certificates representing
such
Escrow Shares registered in the name of Newco.
7. Escrow
Agent.
(a) Duties.
The
Escrow Agent’s duties and obligations under this Escrow Agreement are entirely
nondiscretionary and ministerial in nature. The Escrow Agent shall be required
to act in respect of the Escrow Shares only as specifically provided hereunder.
This Agreement sets forth all of the duties and obligations of the Escrow Agent
with respect to any and all matters relating to the Escrow Shares as
contemplated hereunder, and no additional obligations of the Escrow Agent shall
be implied from the terms of this Agreement or any other agreements, including,
without limitation, the Agreement. The Escrow Agent, in its actions pursuant
to
this Agreement, shall be fully protected in every reasonable exercise of its
discretion.
(b) Resolution
of Doubt.
If the
Escrow Agent is in doubt as to its duties and liabilities under this Agreement,
then the Escrow Agent may, in its sole discretion, continue to hold the Escrow
Shares until all parties concerned mutually agree to the release thereof, or
until a judgment of a court of competent jurisdiction determines the rights
of
the parties with respect to the Escrow Shares, or may deposit the Escrow Shares
then held under this Agreement with the Clerk of the Court having jurisdiction
over any disputes and, upon notifying all parties concerned of such action,
all
liability on the part of the Escrow Agent shall fully cease and
terminate.
(c) Reliance
on Documents.
The
Escrow Agent may act in good faith reasonable reliance upon (i) any document,
instrument or signature, including any statement or assertion made in any such
document or instrument and (ii) any notice or instructions that the Escrow
Agent
reasonably believes to be authorized under this Agreement. In the event that
the
Escrow Agent acts in good faith reasonable reliance upon any document,
instrument, signature, statement or assertion made in any such document or
instrument, or any notice or instructions that it reasonably believes to be
authorized under this Agreement, the Escrow Agent shall not be liable for the
sufficiency, accuracy or authenticity of such document or instrument and its
duties shall be limited to those set forth in this Agreement.
(d) Resignation.
The
Escrow Agent may resign at any time upon giving NeoMedia and Mobot ten (10)
days’ prior written notice. In such event, the Escrow Agent shall deliver the
Escrow Shares in its possession to a successor escrow agent which shall be
selected by Mobot, and approved by NeoMedia. If no successor is appointed and
acting hereunder within ten (10) days after such resignation notice is given,
the Escrow Agent may pay and deliver the Escrow Shares to a court of competent
jurisdiction. Upon its resignation and delivery of the Escrow Shares as set
forth in this Section 8(d), the Escrow Agent shall be discharged of and
from any and all further obligations or liabilities arising in connection with
or under this Agreement.
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(e) Fees
and Expenses.
Notwithstanding anything to the contrary contained herein, and without limiting
the generality of any other provision contained herein, NeoMedia shall be liable
for the payment of all reasonable fees and expenses of the Escrow Agent
(including, without limitation, reasonable attorneys’ fees and expenses) for its
actions hereunder.
(f) Liabilities
and Indemnification.
Notwithstanding anything to the contrary contained herein, and without limiting
the generality of any other provision contained herein, the Escrow Agent shall
not be liable for any damages, or have any obligations other than the duties
prescribed herein in carrying out or executing the purposes and intent of this
Agreement. The Escrow Agent shall not be liable to any party hereto or to any
third party as a result of any action or omission taken or made by the Escrow
Agent in good faith. Mobot and NeoMedia, jointly and severally, covenant and
agree that they shall reimburse the Escrow Agent upon receipt of written demand
for, and shall indemnify and hold the Escrow Agent harmless from, against and
with respect to, any and all loss, liability, damage, or expense (including,
without limitation, attorneys’ fees and costs) that the Escrow Agent may suffer
or incur in connection with this Agreement and the performance of the Escrow
Agent’s obligations hereunder or otherwise in connection herewith, except where
any such loss, liability, damage or expense is the result of the Escrow Agent’s
gross negligence or willful misconduct.
(g) No
Warranties.
The
Escrow Agent shall not be liable in any manner for the sufficiency or
correctness as to form, manner and execution, or validity of any instrument
deposited with the Escrow Agent, nor as to the identity, authority, or right
of
any person executing the same.
8. Distribution
and Voting Rights.
Until
Escrow Shares are released to NeoMedia in accordance with the terms of this
Agreement, NeoMedia shall not be entitled to receive any dividends or
distributions paid with respect to the Escrow Shares and shall not have any
voting rights incident to the Escrow Shares.
9. Miscellaneous
Provisions.
(a) Entire
Agreement.
This
Agreement constitutes the entire agreement among the parties pertaining to
the
subject matter hereof, and supersedes and revokes any and all prior or existing
agreements, written or oral, relating to the subject matter hereof, and this
Agreement shall be solely determinative of the subject matter hereof.
(b) Amendments.
This
Agreement may not be amended, modified, superseded, canceled, or terminated,
except by a written instrument executed by the parties hereto.
(c) Counterparts.
This
Agreement may be executed in one or more counterparts, and any such counterpart
shall, for all purposes, be deemed an original, but all such counterparts
together shall constitute but one and the same instrument. All parties
acknowledge that a facsimile copy of this Agreement may be executed and shall
have the same binding force and effect, and in such case each party agrees
to
execute the appropriate original agreement thereafter if requested.
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(d) Severability.
The
invalidity or unenforceability of any provision hereunder (or any portion of
such a provision) shall not affect the validity or enforceability of the
remaining provisions (or remaining portions of such provisions) of this
Agreement.
(e) Waiver.
Neither
party may, at any time or times, waive (in whole or in part) any rights or
privileges to which he or it may be entitled hereunder. However, no waiver
by
any party of any condition or of the breach of any term contained in this
Agreement, in any one or more instances, shall be deemed to be or construed
as a
further continuing waiver of any other condition or of any breach of any other
terms contained in this Agreement, and no waiver shall be effective unless
it is
in writing and signed by the waiving party and to the extent required, any
other
prerequisites to a waiver under this Agreement are satisfied.
(f) Binding
Effect and Agreement.
This
Agreement shall be binding upon the parties hereto and their respective heirs,
personal or other legal representatives, successors, and permitted
assigns.
(g) Governing
Law; Jurisdiction; Venue; Consent to Service.
The
validity and effect of this Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Florida, without regard
to
principles of conflicts of laws thereof. Any dispute, controversy or question
of
interpretation arising under, out of, in connection with or in relation to
this
Agreement or any amendments hereof, or any breach or default hereunder, shall
be
litigated in the state or federal courts in the State of Florida. Each of the
parties hereby irrevocably submits to the jurisdiction of any state or federal
court sitting in the State of Florida. Each party hereby irrevocably waives,
to
the fullest extent it may effectively do so, the defense of an inconvenient
forum to the maintenance of any such action in the State of
Florida.
(h) Enforcement
Costs.
If any
legal action or other proceedings is brought for the enforcement of this
Agreement, or because of an alleged dispute, breach, default or
misrepresentation in connection with any provision of this Agreement, the
prevailing party shall be entitled to recover reasonable attorneys’ fees, court
costs and all expenses incurred in that action or proceeding, in addition to
any
other relief to which such party may be entitled.
(i) Notice.
All
notices, requests, consents and other communications required or permitted
under
this Agreement shall be in writing and shall be (as elected by the person giving
such notice) hand delivered by messenger or nationally recognized courier
service, addressed to the address set forth below:
| If to NeoMedia: | NeoMedia Technologies, Inc. | |
| 0000 Xxxxxx Xxxxxx, Xxxxx 000 | ||
| Xxxx Xxxxx, XX 00000 | ||
| Attn: Xxxxxxx X. Xxxxxx | ||
| Copy to: | Xxxxxxxxxxx & Xxxxxxxx Xxxxxxxxx Xxxxxx LLP | |
| 000 Xxxxx Xxxxxxxx Xxxx. | ||
| Xxxxx 0000, Xxxxx Xxxxxx | ||
| Xxxxx, XX 00000 | ||
| Attn: Xxxxxxx X. Xxxxxx, Esq. | ||
| If to Newco: | FMS Group, Inc. | |
| 00 Xxxxxxx Xxxxxx | ||
| Xxxxxxxxx, XX 00000 | ||
| Attn: Xxxxxxx Xxxxx |
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|
If
to Mobot:
|
Mobot,
Inc.
|
|
| 00 Xxxxxxx Xxxxxx | ||
| Xxxxxxxxx, XX 00000 | ||
| Attn: Xxxxxxx Xxxxx | ||
| Copy to: | Van Xxxx, Xxxxxx & Xxxxxx, P.C. | |
| 000 Xxxxxx Xxxxxx | ||
| Xxxxxxx, XX 00000 | ||
| Attn: Xxxxxxx X. Xxxxxx, Esq. | ||
| If to Escrow Agent: | Xxxxxxxxxxx & Xxxxxxxx Xxxxxxxxx Xxxxxx LLP | |
| 000 Xxxxx Xxxxxxxx Xxxx. | ||
| Xxxxx 0000, Xxxxx Xxxxxx | ||
| Xxxxx, XX 00000 | ||
| Attn: Xxxxxxx X. Xxxxxx, Esq. |
or
to
such other address as may be designated by notice complying with the terms
of
this Section. Each such notice shall be deemed delivered: (a) on the date
delivered if by personal delivery; or (b) one (1) business day after being
sent, if delivered by a nationally recognized courier (i.e., Federal Express,
United Parcel Service, DHL).
(j) Waiver
of Jury Trial.
AS AN
INDUCEMENT FOR EACH PARTY TO ENTER INTO THIS AGREEMENT, EACH PARTY HERETO HEREBY
KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVES THE RIGHT EACH MAY HAVE TO
A
JURY TRIAL WITH RESPECT TO ANY LITIGATION OR ACTION BASED HEREON, ARISING OUT
OF, UNDER, OR IN CONNECTION WITH THIS AGREEMENT, OR ANY COURSE OF CONDUCT,
COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN), OR ACTIONS OF ANY
PARTY TO THIS AGREEMENT OR ANY AGREEMENTS EXECUTED IN CONNECTION
HEREWITH.
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IN
WITNESS WHEREOF, the parties hereto have duly executed this Escrow Agreement
as
of the date first above written.
| NEOMEDIA TECHNOLOGIES, INC. | ||
| |
|
|
| By: | /s/ Xxxxx X. Dodge | |
|
Title: Chief Financial Officer |
||
| FMS GROUP, INC. | ||
| |
|
|
| By: | /s/ Xxxxxxx Xxxxx | |
|
Title: CEO |
||
| MOBOT, INC. | ||
| |
|
|
| By: | /s/ Xxxxx X. Dodge | |
|
Title: Secretary and Treasurer |
||
| XXXXXXXXXXX & XXXXXXXX XXXXXXXXX XXXXXX LLP | ||
| |
|
|
| By: | /s/ Xxxxxx Xxxxxxxx | |
|
Title: Partner |
||
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