ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this "Escrow Agreement") is made as of November 18,
2005 (the "Closing Date"), by and among Xxxxxxx Xxxxxxxx and Xxxxx X. Xxxxx ,
Xxxxxxxxxx & Xxxxx, LLP, with an address at 00000 Xxxxxxxx Xxxx., Xxxxx 000, Xxx
Xxxxxxx, XX 00000 (the "Escrow Agent"), and Detto Technologies, Inc. ("DETTO").
Xxxxxxx Xxxxxxxx, Xxxxx X. Xxxxx, the Escrow Agent, and DETTO collectively
referred to herein as the "Parties."
RECITALS
WHEREAS, Xxxxxxx Xxxxxxxx, Xxxxx X. Xxxxx and DETTO are parties to that
certain Purchase Agreement of even date herewith (the "Purchase Agreement");
WHEREAS, pursuant to Section 2.3 of the Purchase Agreement, Xxxxxxx
Xxxxxxxx has agreed to the deposit in escrow 1,400,000 shares of DETTO
restricted common stock ("Xxxxxxxx Escrowed Shares") that he received as part of
the consideration for DETTO's purchase from Xxxxxxx Xxxxxxxx of his shares of
the common stock of WhiteCanyon, Inc. (the "WhiteCanyon Stock");
WHEREAS, pursuant to Section 2.3 of the Purchase Agreement, Xxxxx X. Xxxxx
has agreed to the deposit in escrow 600,000 shares of DETTO's restricted common
stock ("Xxxxx Escrowed Shares") that he received as part of the consideration
for DETTO's purchase from Xxxxx X. Xxxxx of his shares of the common stock of
Channel Access, Inc. ("Channel Access Stock");
WHEREAS, pursuant to Section 2.3 of the Purchase Agreement, DETTO has
agreed to deposit in escrow the WhiteCanyon Stock and Channel Access Stock
("DETTO Escrowed Shares") that it is purchasing from Xxxxxxx Xxxxxxxx and Xxxxx
X. Xxxxx until the Convertible Notes issued to Xxxxxxx Xxxxxxxx and Xxxxx X.
Xxxxx pursuant to Section 2.2(b) of the Purchase Agreement are either paid in
full by DETTO or converted in full into shares of DETTO's restricted common
stock;
WHEREAS, pursuant to Section 8.8 of the Purchase Agreement, Xxxxxxx
Xxxxxxxx and Xxxxx X. Xxxxx have agreed to indemnify DETTO and each of their
officers, agents and directors and pursuant to Section 2.2(e) of the Purchase
Agreement, Xxxxxxx Xxxxxxxx and Xxxxx X. Xxxxx have agreed that the shares of
DETTO's restricted common stock that they are to receive as part of the
consideration for DETTO's purchase of the WhiteCanyon Stock and the Channel
Access Stock shall be deposited in escrow together with any other shares of
capital stock or equity securities of DETTO which may be issued to the Xxxxxxx
Xxxxxxxx and Xxxxx X. Xxxxx by reason of any stock dividend, stock split,
reverse stock split, combination, recapitalization, reclassification or
otherwise as security for such indemnification;
WHEREAS, the Parties have requested that the Escrow Agent hold the
Escrowed Shares.
AGREEMENT
NOW, THEREFORE, the Parties agree as follows:
1. Defined Terms. Capitalized terms used and not otherwise defined in this
Escrow Agreement shall have the meanings assigned to them in the Purchase
Agreement.
2. Escrow.
2.1 Shares And Stock Powers To Be Placed In Escrow.
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(a) DETTO shall deposit the DETTO Escrowed Shares along with
executed Stock Powers giving the Escrow Agent power to sell, assign and transfer
such DETTO Escrowed Shares with appropriate signature guarantees (as required by
DETTO's transfer agent). The DETTO Escrowed Shares shall be held by the Escrow
Agent in this escrow in accordance with the provisions of this Escrow Agreement
and shall not be subject to any lien, attachment, trustee process or any other
judicial process of any creditor of any party hereto.
(b) Xxxxxxx Xxxxxxxx shall deposit the Xxxxxxxx Escrowed Shares and
Xxxxx X. Xxxxx shall deposit the Xxxxx Escrowed Shares along with respective
executed Stock Powers giving the Escrow Agent power to sell, assign and transfer
such DETTO Escrowed Shares with appropriate signature guarantees (as required by
DETTO's transfer agent). Such shares of stock shall be held by the Escrow Agent
in this escrow in accordance with the provisions of this Escrow Agreement and
shall not be subject to any lien, attachment, trustee process or any other
judicial process of any creditor of any party hereto.
2.2 Release of Shares from Escrow Upon Rescission of Purchase Agreement.
If the Purchase Agreement is rescinded pursuant to Section 2.3(c) of the
Purchase Agreement, the DETTO Escrowed Shares shall be released from escrow and
delivered by the Escrow Agent to Xxxxxxx Xxxxxxxx (respect to the WhiteCanyon
Stock) and to Xxxxx X. Xxxxx (with respect to the Channel Access Stock) and both
the Xxxxxxxx Escrowed Shares and the Xxxxx Escrowed Shares shall be released
from escrow and delivered by the Escrow Agent to DETTO.
2.3 Release of DETTO Escrowed Shares. When the Convertible Notes issued to
Xxxxxxx Xxxxxxxx and Xxxxx X. Xxxxx pursuant to Section 2.2(b) of the Purchase
Agreement are either paid in full by DETTO or converted in full into shares of
DETTO's restricted common stock, the DETTO Escrowed Shares shall be released
from escrow and delivered by the Escrow Agent to DETTO.
2.4 Indemnification. If the Escrowed Shares are not released pursuant to
Section 2.2 above, the Xxxxxxxx Escrowed Shares and the Xxxxx Escrowed Shares
shall be held in escrow during the twelve (12) month period starting from the
Closing Date. The Xxxxxxxx Escrowed Shares shall secure Xxxxxxx Xxxxxxxx'x
indemnification obligations to DETTO as set forth in Section 8.8 of the Purchase
Agreement and the Xxxxx Escrowed Shares shall secure Xxxxx X. Xxxxx'x
indemnification obligations to DETTO as set forth in Section 8.8 of the Purchase
Agreement. The Xxxxxxxx Escrowed Shares and the Xxxxx Escrowed Shares are
subject to release to DETTO or other Indemnified Party (as defined in the
Purchase Agreement) upon the terms set forth in Section 3 herein.
2.5 Voting Of Shares. Xxxxxxx Xxxxxxxx and Xxxxx X. Xxxxx, respectively,
shall be entitled to vote their respective proportionate amount of the
unreleased Xxxxxxxx Escrowed Shares and the Xxxxx Escrowed Shares.
2.6 Dividends, Etc. Any cash, securities or other property distributable
(whether by way of dividend, stock split or otherwise) in respect of or in
exchange for any of the Xxxxxxxx Escrowed Shares or the Xxxxx Escrowed Shares
shall not be distributed to Xxxxxxx Xxxxxxxx and Xxxxx X. Xxxxx , but rather
shall be deposited with the Escrow Agent to be held in this escrow. At the time
any Xxxxxxxx Escrowed Shares or Xxxxx Escrowed Shares are required to be
released from this escrow to any person pursuant to this Escrow Agreement, any
cash, securities or other property previously distributed in respect of or in
exchange for the Xxxxxxxx Escrowed Shares or the Xxxxx Escrowed Shares shall be
released from this escrow to such person.
2.7 Transferability. The interests of the Xxxxxxx Xxxxxxxx and Xxxxx X.
Xxxxx in this escrow and in the Xxxxxxxx Escrowed Shares or the Xxxxx Escrowed
Shares shall not be assignable or transferable, other than by operation of law.
No transfer of any of such interests by operation of law shall be recognized or
given effect until DETTO shall have received written notice of such transfer.
The interests of DETTO in this escrow and in the DETTO Escrowed Shares shall not
be assignable or transferable, other than by operation of law.
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3. Claim Procedures
3.1 Claim Notice. During the twelve month period from the Closing Date, if
any Indemnified Party determines in good faith that there is or has been an
event giving rise to an indemnification obligation under Section 8.8 of the
Purchase Agreement (collectively, an "Indemnification Event"), and such
Indemnified Party wishes to make a claim against the Xxxxxxxx Escrowed Shares or
Xxxxx Escrowed Shares, respectively, with respect to such possible
Indemnification Event, then such Indemnified Party may deliver to Xxxxxxx
Xxxxxxxx and/or Xxxxx X. Xxxxx and the Escrow Agent (in accordance with Section
9.2 hereof) a written notice of such possible Indemnification Event (a "Claim
Notice") setting forth (i) a brief description of the circumstances supporting
such Indemnified Party's belief that such possible Indemnification Event exists
or has occurred; and (ii) a non-binding, preliminary estimate of the aggregate
dollar amount of all damages that have arisen and may arise as a direct or
indirect result of such possible Indemnification Event (such aggregate amount
being referred to as the "Claim Amount").
3.2 Response Notice. Within 15 days after the delivery of a Claim Notice
to Xxxxxxx Xxxxxxxx and/or Xxxxx X. Xxxxx, Xxxxxxx Xxxxxxxx and/or Xxxxx X.
Xxxxx shall deliver to the Escrow Agent a written notice (the "Response Notice")
containing: (i) instructions to the effect that Escrowed Shares having a Fair
Market Value (as defined in Section 5 hereof) equal to the entire Claim Amount
set forth in such Claim Notice are to be released from the Escrow to such
Indemnified Party; OR (ii) instructions to the effect that Escrowed Shares
having a Fair Market Value equal to a specified portion (but not the entire
amount) of the Claim Amount set forth in such Claim Notice are to be released
from this escrow to such Indemnified Party, together with a statement that the
remaining portion of such Claim Amount is being disputed; OR (iii) a statement
that the entire Claim Amount set forth in such Claim Notice is being disputed.
If no Response Notice is received by the Escrow Agent from either Xxxxxxx
Xxxxxxxx and/or Xxxxx X. Xxxxx within 30 days after the delivery of a Claim
Notice to Xxxxxxx Xxxxxxxx and/or Xxxxx X. Xxxxx, then both Xxxxxxx Xxxxxxxx
and/or Xxxxx X. Xxxxx shall be deemed to have given instructions to the Escrow
Agent that Escrowed Shares having a Fair Market Value equal to the entire Claim
Amount set forth in such Claim Notice are to be released to such Indemnified
Party from this escrow.
3.3 Release Of Escrow Shares To Indemnitees.
(a) If Xxxxxxx Xxxxxxxx and/or Xxxxx X. Xxxxx gives (or is deemed to
have given) instructions that Escrowed Shares having a Fair Market Value equal
to the entire Claim Amount set forth in a Claim Notice are to be released from
this escrow to an Indemnified Party, then the Escrow Agent hereby is authorized
to transfer to such Indemnified Party, from this escrow, the Xxxxxxxx Escrowed
Shares and/or the Xxxxx Escrowed Shares, respectively, having a Fair Market
Value equal to such respective Claim Amount.
(b) If a Response Notice delivered by either Xxxxxxx Xxxxxxxx and/or
Xxxxx X. Xxxxx in response to a Claim Notice contains instructions to the effect
that Escrowed Shares having a Fair Market Value equal to a specified portion
(but not the entire amount) of the Claim Amount set forth in such Claim Notice
are to be released from this escrow to an Indemnified Party, then (i) the Escrow
Agent is hereby authorized to transfer to such Indemnified Party, from this
escrow, the Xxxxxxxx Escrowed Shares and/or the Xxxxx Escrowed Shares,
respectively, having a Fair Market Value equal to such specified portion of such
respective Claim Amount, and (ii) the procedures set forth in Section 3.3(c)
hereof shall be followed with respect to the remaining portion of such
respective Claim Amount.
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(c) If a Response Notice delivered by Xxxxxxx Xxxxxxxx and/or Xxxxx
X. Xxxxx in response to a Claim Notice contains a statement that all or a
portion of the Claim Amount set forth in such Claim Notice is being disputed
(such Claim Amount or the disputed portion thereof being referred to as the
"Disputed Amount"), then, notwithstanding anything contained in Section 4
hereof, the Escrow Agent shall continue to hold in this escrow the Xxxxxxxx
Escrowed Shares and/or Xxxxx Escrowed Shares, respectively, having a Fair Market
Value equal to 125% of the Disputed Amount. Such Xxxxxxxx Escrowed Shares and/or
Xxxxx Escrowed Shares shall continue to be held in this escrow until such time
as (i) the applicable Indemnified Party and Xxxxxxx Xxxxxxxx and/or Xxxxx X.
Xxxxx execute a settlement agreement containing instructions regarding the
release of such shares, or (ii) the Escrow Agent receives a copy of a court
order containing instructions to the Escrow Agent regarding the release of such
Xxxxxxxx Escrowed Shares and/or Xxxxx Escrowed Shares. The Escrow Agent shall
thereupon release such shares from this escrow in accordance with the
instructions set forth in such settlement agreement or court order. (The parties
acknowledge that it is appropriate to retain more than 100% of the Claim Amount
in this escrow in recognition of the fact that the Indemnified Party may have
underestimated the aggregate amount of the actual and potential damages arising
from a particular Indemnification Event, and to cover interest on such Claim
Amount.)
4. Release Of Shares To Xxxxxxx Xxxxxxxx and Xxxxx X. Xxxxx. On the date 12
months after the Closing Date (the "Scheduled Escrow Termination Date"), the
Escrow Agent shall release to Xxxxxxx Xxxxxxxx and Xxxxx X. Xxxxx from this
escrow all Xxxxxxxx Escrowed Shares and Xxxxx Escrowed Shares, respectively,
then held in this escrow, other than any Xxxxxxxx Escrowed Shares and/or Xxxxx
Escrowed Shares that are to be retained in this escrow in accordance with
Section 3.3(c) hereof. Any release of shares pursuant to this Section 4 hereof
may be effected by mailing the stock certificate to Xxxxxxx Xxxxxxxx and Xxxxx
X. Xxxxx, respectively, certified mail, return receipt requested along with any
Stock Power executed by Xxxxxxx Xxxxxxxx or Xxxxx X. Xxxxx..
5. Valuation Of Shares Held In Escrow. For purposes of this Escrow Agreement,
the "Fair Market Value" of the shares held in this escrow (the "Escrowed
Shares") shall be deemed to be equal to the number of Escrowed Shares multiplied
by the stock price of DETTO's common stock (adjusted as appropriate to reflect
any stock split, reverse stock split, stock dividend or similar transaction
effected by DETTO after the Closing Date), determined as follows: for any date,
the price is determined by the first of the following clauses that applies: (a)
if DETTO common stock is then listed or quoted on a Trading Market (as defined
below), the daily volume weighted average price of such common stock for such
date (or the nearest preceding date) on the primary Trading Market on which such
common stock is then listed or quoted as reported by Bloomberg Financial L.P.
(based on a trading day from 9:30 a.m. ET to 4:02 p.m. Eastern Time); (b) if
such common stock is not then listed or quoted on a Trading Market and if prices
for such common stock are then reported in the "Pink Sheets" published by the
National Quotation Bureau Incorporated (or a similar organization or agency
succeeding to its functions of reporting prices), the most recent bid price per
share of such common stock so reported; or (c) in all other cases, the fair
market value of a share of such common stock as determined by a nationally
recognized-independent appraiser selected in good faith by the board of
directors of DETTO. For purposes of this Section 5, the term Trading Market
means the following markets or exchanges on which DETTO's common stock is listed
or quoted for trading on the date in question: the OTC Bulletin Board, the
American Stock Exchange, the New York Stock Exchange, the Nasdaq National Market
or the Nasdaq SmallCap Market.
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6. Escrow Agent Fees & Expenses. The Escrow Agent shall receive a fee for the
discharge of its duties under this Escrow Agreement. In addition, in the event
that the conditions of this Escrow Agreement are not fulfilled, or the Escrow
Agent renders any material service not contemplated by the Agreement, or there
is any assignment of interest in the subject matter of this Escrow Agreement, or
any material modification thereof, or if any material controversy arises
hereunder, or the Escrow Agent is made a party or justifiably intervenes in any
litigation pertaining to this Escrow Agreement, or the subject matter hereof,
the Escrow Agent shall be additionally and reasonably compensated for such
extraordinary expenses, including reasonable attorneys' fees, occasioned by any
delay, controversy, litigation or event, and the same may be recoverable jointly
and severally from all other Parties. Detto will be responsible for the escrow
fees and expenses.
7. Limitation Of Escrow Agent's Liability.
7.1 Limitation. The Escrow Agent shall incur no liability with respect to
any action taken or suffered by it in reliance upon any notice, direction,
instruction, consent, statement or other documents believed by it to be genuine
and duly authorized, nor for other action or inaction except its own willful
misconduct or negligence. The Escrow Agent shall not be responsible for the
validity or sufficiency of this Agreement. In all questions arising under the
Escrow Agreement, the Escrow Agent may rely on the advice of counsel, and for
anything done, omitted or suffered in good faith by the Escrow Agent based on
such advice the Escrow Agent shall not be liable to anyone. The Escrow Agent
shall not be required to take any action hereunder involving any expense unless
the payment of such expense is made or provided for in a manner reasonably
satisfactory to it. The Escrow Agent may conclusively rely on, and shall be
protected when it acts in good faith upon, any statement, certificate, notice,
request, consent, order, or other document which it believes to be genuine and
signed by the proper Party. The Escrow Agent shall have no duty or liability to
verify any such statement, certificate, notice, request, consent, order or other
document and its sole responsibility shall be to act only as set forth in this
Escrow Agreement. The Escrow Agent shall be under no obligation to institute or
defend any action, suit, or proceeding in connection with this Escrow Agreement
unless it is indemnified to its satisfaction.
7.2 Escrow Agent as Depository Only. The Escrow Agent acts hereunder as a
depository only, and it is not responsible or liable in any manner whatsoever
for the sufficiency, correctness, genuineness or validity of any instrument
deposited with it hereunder, or with respect to the form or execution of the
same, or the identity, authority or rights of any person, executing the same.
The Escrow Agent shall not be required to take or be bound by notice of any
default of any person, or to take any action with respect to such default
involving any expense or liability, unless notice in writing is given to an
officer of the Escrow Agent of such default by the undersigned or any of them,
and unless it is indemnified in a manner satisfactory to it against any expense
or liability arising therefrom. The Escrow Agent shall not be liable for acting
upon any notice, request, waiver, consent, receipt or other papers or documents
not believed by the Escrow Agent to be genuine and to have been signed by the
proper Party or Parties.
7.3 No Liability for Error of Judgment. The Escrow Agent shall not be
liable for any error of judgment or for any act done or step taken or omitted by
it in good faith, or for any mistake of fact or law, or for anything which it
may do or refrain from doing in connection herewith except its own willful
misconduct. The Escrow Agent shall not be answerable for the default or
misconduct of any agent, attorney or employee appointed by it if such agent,
attorney or employee shall have been selected with reasonable care. The Escrow
Agent may consult with legal counsel in the event of any dispute hereunder, and
the Escrow Agent shall incur no liability and shall be fully protected in acting
in accordance with the opinion and instructions of any such counsel.
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7.4 Further Rights of Escrow Agent. Except as otherwise specifically for
in this Escrow Agreement, in the event of any disagreement between the
undersigned or any of them, or the person or persons named in the foregoing
instructions, or any other person, resulting in adverse claims or demands being
made in connection with or for any papers, money or property involved herein or
affected hereby, the Escrow Agent shall be entitled at its option to refuse to
comply with any such claim or demand, so long as such disagreement shall
continue, and in so refusing, the Escrow Agent shall not be or become liable to
the undersigned or any of them or to any person named in the foregoing
instructions for the failure or refusal to comply with such conflicting or
adverse demands, and the Escrow Agent shall be entitled to continue to do,
refrain or refuse to act until: (a) the rights of adverse claimants have been
finally adjudicated in a court assuming and having jurisdiction of the Parties
and the money, papers and property involved herein or affected hereby; or (b)
all differences shall have been adjusted by agreement and the Escrow Agent shall
have been notified thereof in writing signed by all of the persons interested;
and (c) Escrow Agent shall have the right, at any time, to commence interpleader
at the expense of all other Parties to this Escrow Agreement
7.5 Indemnification Of Escrow Agent. All parties to this Escrow Agreement
(other than the Escrow Agent) jointly and severally, hereby indemnifies the
Escrow Agent for, and hold it harmless against, any loss, liability or expense
incurred without negligence or willful misconduct on the part of Escrow Agent,
arising out of or in connection with its carrying out of its duties hereunder.
8. Successor Escrow Agent. In the event the Escrow Agent becomes unavailable or
unwilling to continue in its capacity herewith, the Escrow Agent may resign and
be discharged from its duties or obligations hereunder by giving resignation to
the parties to this Escrow Agreement, specifying not less than 60 days' prior
written notice of the date when such resignation shall take effect. DETTO may
appoint a successor Escrow Agent without the consent of either Xxxxxxx Xxxxxxxx
or Xxxxx X. Xxxxx so long as such successor is a bank, and may appoint any other
successor Escrow Agent with the consent of either Xxxxxxx Xxxxxxxx or Xxxxx X.
Xxxxx, which consent shall not be unreasonably withheld. If, within such notice
period, DETTO provides to the Escrow Agent written instructions with respect to
the appointment of a successor Escrow Agent and directions for the transfer of
any Escrowed Shares then held by the Escrow Agent to such successor, the Escrow
Agent shall act in accordance with such instructions and promptly transfer such
Escrow Shares to such designated successor.
9. General
9.1 Other Agreements. Nothing in this Escrow Agreement is intended to
limit any of the Parties or any Indemnified Party's rights, or any obligation of
the Parties, under the Purchase Agreement or under any other agreement entered
into in connection with the transactions contemplated by the Purchase Agreement.
9.2 Notices. Any notice or other communication required or permitted to be
delivered to any party under this Escrow Agreement shall be in writing and shall
be deemed properly delivered, given and received when delivered (by hand, by
registered mail, by courier or express delivery service or by facsimile) to the
address or facsimile telephone number set forth beneath the name of such party
below (or to such other address or facsimile telephone number as such party
shall have specified in a written notice given to the other parties hereto):
if to the Escrow Agent:
Xxxxx X. Xxxxx
Xxxxxxxxxx & Xxxxx LLP
00000 Xxxxxxxx Xxxx. Xxxxx 000
Xxx Xxxxxxx, XX 00000
Facsimile: 000-000-0000]
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if to DETTO:
with a copy to:
Xxxxx Xxxxx
Xxxxxxxxxx & Xxxxx LLP
00000 Xxxxxxxx Xxxx. Xxxxx 000
Xxx Xxxxxxx, XX 00000
Facsimile: 000-000-0000
if to Xxxxxxx Xxxxxxxx
WhiteCanyon, Inc.
000 Xxxx Xxxxxxx Xxxxx
Xxxxxxx, XX 00000
if to Xxxxx X. Xxxxx:
Channel Access, Inc.
000 Xxxx 0000 Xxxxx
Xxxx, Xxxx 00000
9.3 Counterparts. This Escrow Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same instrument.
9.4 Headings. The underlined headings contained in this Escrow Agreement
are for convenience of reference only, shall not be deemed to be a part of this
Escrow Agreement and shall not be referred to in connection with the
construction or interpretation of this Escrow Agreement.
9.5 Governing Law; Venue. This Escrow Agreement shall have the same
governing law and venue as the Purchase Agreement.
9.6 Successors And Assigns; Parties In Interest. Subject to Section 2.7
hereof, this Escrow Agreement shall be binding upon: DETTO and its successors
and assigns (if any); Xxxxxxx Xxxxxxxx and Xxxxx X. Xxxxx and their respective
estates, successors and assigns (if any). This Escrow Agreement shall inure to
the benefit of: DETTO, Xxxxxxx Xxxxxxxx, Xxxxx X. Xxxxx, the other Indemnified
Parties; and their respective successors (if any) of the foregoing.
9.7 Waiver.
(a) Except as specifically set forth in this Escrow Agreement, no
failure on the part of any person to exercise any power, right, privilege or
remedy under this Escrow Agreement, and no delay on the part of any person in
exercising any power, right, privilege or remedy under this Escrow Agreement,
shall operate as a waiver of such power, right, privilege or remedy; and no
single or partial exercise of any such power, right, privilege or remedy shall
preclude any other or further exercise thereof or of any other power, right,
privilege or remedy.
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(b) Except as specifically set forth in this Escrow Agreement, no
person shall be deemed to have waived any claim arising out of this Escrow
Agreement, or any power, right, privilege or remedy under this Escrow Agreement,
unless the waiver of such claim, power, right, privilege or remedy is expressly
set forth in a written instrument duly executed and delivered on behalf of such
person; and any such waiver shall not be applicable or have any effect except in
the specific instance in which it is given.
9.8 Amendments. This Escrow Agreement may not be amended, modified,
altered or supplemented other than by means of a written instrument duly
executed and delivered on behalf of all of the parties to this Escrow Agreement.
9.9 Severability. In the event that any provision of this Escrow
Agreement, or the application of any such provision to any person or set of
circumstances, shall be determined to be invalid, unlawful, void or
unenforceable to any extent, the remainder of this Escrow Agreement, and the
application of such provision to persons or circumstances other than those as to
which it is determined to be invalid, unlawful, void or unenforceable, shall not
be impaired or otherwise affected and shall continue to be valid and enforceable
to the fullest extent permitted by law.
9.10 Entire Agreement. This Escrow Agreement and the Purchase Agreement
and the other agreements contemplated in the Purchase Agreement set forth the
entire understanding of the parties relating to the subject matter hereof and
thereof and supersede all prior agreements and understandings among or between
any of the parties relating to the subject matter hereof and thereof.
9.11 Construction.
(a) For purposes of this Escrow Agreement, whenever the context
requires: the singular number shall include the plural, and vice versa; the
masculine gender shall include the feminine and neuter genders; the feminine
gender shall include the masculine and neuter genders; and the neuter gender
shall include the masculine and feminine genders.
(b) The parties hereto agree that any rule of construction to the
effect that ambiguities are to be resolved against the drafting party shall not
be applied in the construction or interpretation of this Escrow Agreement.
(c) As used in this Escrow Agreement, the words "include" and
"including," and variations thereof, shall not be deemed to be terms of
limitation, but rather shall be deemed to be followed by the words "without
limitation."
(d) Except as otherwise indicated, all references in this Escrow
Agreement to "Sections" are intended to refer to Sections of this Escrow
Agreement.
9.12 Facsimile Signatures. In the event that any signature is delivered by
facsimile transmission, such signature shall create a valid and binding
obligation of the party executing (or on whose behalf such signature is
executed) with the same force and effect as if such facsimile signature page
were an original thereof.
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IN WITNESS WHEREOF, the parties have executed this Escrow Agreement as of
the date first above written.
DETTO: ESCROW AGENT:
Detto Technologies, Xxxxxxxxxx & Xxxxx LLP,
a Washington corporation a California limited liability
partnership
By: ______________________________ By: ________________________________
Name: Xxxxx Mana'o Name: Xxxxx Xxxxx
Title: President Title: Partner
------------------------------------
Xxxxxxx Xxxxxxxx
------------------------------------
Xxxxx X. Xxxxx
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