EXHIBIT 10.41
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ESCROW AGREEMENT
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ESCROW AGREEMENT (this "AGREEMENT"), dated as of November 16, 2001,
by and among IVP Technology Corporation (the "COMPANY"), Xxxxx XxxXxxxxx, a
former shareholder of ITM ("Xx. XxxXxxxxx"), Xxxxx Xxxxxxxx, a former
shareholder of ITM ("Xx. Xxxxxxxx"), Xxxxx Xxxxx, a former shareholder of ITM
("Xx. Xxxxx") Xxxxxx Xxxxxxx, a former shareholder of ITM (Xx. Xxxxxxx") and
Xxxx Xxxxxxxx, a former shareholder of ITM ("Xx. Xxxxxxxx" and together with Xx.
XxxXxxxxx, Xx. Xxxxxxxx, and Xx. Xxxxx and Xx. Xxxxxxx, the "ITM Shareholders"),
and Ruffa & Ruffa, P.C. (the "ESCROW AGENT").
RECITALS
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A. The Company and the ITM Shareholders are party to an agreement
dated September 17, 2001 (the "Stock Purchase Agreement"), pursuant to which the
ITM Shareholders sold their shares of capital stock in International Technology
Marketing Inc. ("ITM") to the Company and in consideration of the issuance of up
to 50,000,000 shares of the Company's Common Stock (the "Shares"), all of which
shares are to be held in escrow and released to the ITM Shareholders in
accordance with the provisions of Section 2.01(a) of the Stock Purchase
Agreement. Capitalized terms that are used and not otherwise defined in this
Agreement that are defined in the Stock Purchase Agreement shall have the
meaning set forth in said agreement.
B. The Escrow Agent is willing to act as escrow agent to hold and
disburse the Shares pursuant to the terms of this Agreement.
NOW, THEREFORE, IT IS AGREED:
1. DEPOSIT OF SHARES.
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a. Concurrently with the execution of this Agreement, the
Company shall deposit with the Escrow Agent 50 million shares of the Company's
Common Stock, representing the maximum number the shares of Common Stock that
the ITM Shareholders may be entitled to receive under the terms of the Stock
Purchase Agreement.
2. TERMS OF ESCROW.
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a. The Escrow Agent shall hold the Shares in escrow until the
receipt by the Escrow Agent of instructions from the President of the Company
and the Company's independent auditors as described in Section 3(a).
b. If the Escrow Agent, prior to delivering or causing to be
delivered the Shares in accordance herewith, receives notice of objection,
dispute, or other assertion in accordance with any of the provisions of this
Agreement or the Stock Purchase Agreement, the Escrow Agent shall continue to
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hold the Shares until such time as the Escrow Agent shall receive (i) the
notices provided in Section 3 in form and substance satisfactory to the Escrow
Agent, directing distribution of the Shares, or (ii) a certified copy of a
judgment, order or decree of a court of competent jurisdiction, final beyond the
right of appeal, directing the Escrow Agent to distribute the Shares to any
party hereto or as such judgment, order or decree shall otherwise specify
(including any such order directing the Escrow Agent to deposit the Shares into
the court rendering such order, pending determination of any dispute between any
of the parties). In addition, if, 30 after having received the objection to the
disposition of Shares referenced above, the Escrow Agent not have received the
items delineated in items (i) or (ii), above, the Escrow Agent shall have the
right to deposit the Shares with a court of competent jurisdiction pursuant to
Section 1006 of the New York Civil Practice Law and Rules without liability to
any party if said dispute is not resolved within 30 days of receipt of any such
notice of objection, dispute or otherwise.
3. RELEASE OF SHARES. At each such time as the Company has
achieved a milestone delineated in Section 2.01(a)(i)-(v) of the Stock Purchase
Agreement, the President of the Company shall provide the Escrow Agent with
written notice (such a notice, a "Company Notice") that (i) indicates the
particular section of the Stock Purchase Agreement upon which the ITM
Shareholders are relying in connection with the release of the Shares in
question, (ii) states that the Company has achieved cumulative revenues
attributable to the sale of PowerAudit software required under said section
since September 17, 2001, the date of the Stock Purchase Agreement (the
"Effective Date") to warrant release of the Shares in question, and (iii)
indicates where the certificates evidencing the Shares to be released from
Escrow are to be delivered. The Company Notice shall be accompanied by an
originally executed letter from the certified public accountants responsible for
auditing the Company's books and records indicating that the milestone
referenced in the Notice has been achieved (the "Auditor's Notice"). The
Auditor's Notice shall be addressed to the Escrow Agent and shall set forth the
amount of gross revenues attributable to the sale of PowerAudit software since
the Effective Date
4. DUTIES AND OBLIGATIONS OF THE ESCROW AGENT.
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a. The parties hereto agree that the duties and obligations of
the Escrow Agent are only such as are herein specifically provided and no other.
The Escrow Agent's duties are as a depositary only, and the Escrow Agent shall
incur no liability whatsoever, except as a direct result of its willful
misconduct.
b. The Escrow Agent may consult with counsel of its choice, and
shall not be liable for any action taken, suffered or omitted by it in
accordance with the advice of such counsel.
c. The Escrow Agent shall not be bound in any way by the terms
of any other agreement to which the ITM Shareholder and the Company are parties,
whether or not it has knowledge thereof, and the Escrow Agent shall not in any
way be required to determine whether or not any other agreement has been
complied with by the ITM Shareholders and the Company, or any other party
thereto. The Escrow Agent shall not be bound by any modification, amendment,
termination, cancellation, rescission or supersession of this Agreement unless
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the same shall be in writing and signed by the ITM Shareholders and the Company,
and agreed to in writing by the Escrow Agent.
d. In the event that the Escrow Agent shall be uncertain as to
its duties or rights hereunder or shall receive instructions, claims or demands
which, in its opinion, are in conflict with any of the provisions of this
Agreement, it shall be entitled to refrain from taking any action, other than to
keep safely, the Shares then held in escrow until it shall jointly be directed
otherwise in writing by the ITM Shareholders and the Company or by a final
judgment of a court of competent jurisdiction.
e. The Escrow Agent shall be fully protected in relying upon
any written notice, demand, certificate or document which it, in good faith,
believes to be genuine. The Escrow Agent shall not be responsible for the
sufficiency or accuracy of the form, execution, validity or genuineness of
documents or securities now or hereafter deposited hereunder, or of any
endorsement thereon, or for any lack of endorsement thereon, or for any
description therein; nor shall the Escrow Agent be responsible or liable in any
respect on account of the identity, authority or rights of the persons executing
or delivering or purporting to execute or deliver any such document, security or
endorsement.
f. The Escrow Agent shall not be required to institute legal
proceedings of any kind and shall not be required to defend any legal
proceedings which may be instituted against it or in respect of the Shares.
g. If the Escrow Agent at any time, in its sole discretion,
deems it necessary or advisable to relinquish custody of the Shares, it may do
so by giving five (5) days written notice to the parties of its intention and
thereafter delivering the consideration to any other escrow agent mutually
agreeable to the ITM Shareholders and the independent members of the Board of
Directors of the Company, if any, and, if no such escrow agent shall be selected
within three days of the Escrow Agent's notification to the ITM Shareholders and
the Company of its desire to so relinquish custody of the Shares, then the
Escrow Agent may do so by delivering the Shares it then holds (a) to any bank or
trust company in the Borough of Manhattan, City and State of New York, which is
willing to act as escrow agent thereunder in place and instead of the Escrow
Agent, or (b) to the clerk or other proper officer of a court of competent
jurisdiction as may be permitted by law within the State, County and City of New
York. The fee of any such bank or trust company or court officer shall be borne
by the Company. Upon such delivery, the Escrow Agent shall be discharged from
any and all responsibility or liability with respect to the Shares and the
Company shall promptly pay to the Escrow Agent all monies which may be owed it
for its services hereunder, including, but not limited to, reimbursement of its
out-of-pocket expenses pursuant to paragraph (i) below.
h. This Agreement shall not create any fiduciary duty on the
Escrow Agent's part to ITM Shareholders or the Company, nor disqualify the
Escrow Agent from acting on behalf of the Company, including any dispute with
respect to the Shares.
i. The reasonable out-of-pocket expenses paid or incurred by
the Escrow Agent in the administration of its duties hereunder, including, but
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not limited to, all counsel and advisors' and agents' fees and all taxes or
other governmental charges, if any, shall be paid by the Company.
5. INDEMNIFICATION. The ITM Shareholders and the Company, jointly
and severally, hereby indemnify and hold the Escrow Agent, its employees,
partners, members and representatives harmless from and against any and all
losses, damages, taxes, liabilities and expenses that may be incurred, directly
or indirectly, by the Escrow Agent and/or any such person, arising out of or in
connection with its acceptance of appointment as the Escrow Agent hereunder
and/or the performance of its duties pursuant to this Agreement, including, but
not limited to, all legal costs and expenses of the Escrow Agent and any such
person incurred defending itself against any claim or liability in connection
with its performance hereunder and the costs of recovery of amounts pursuant to
this Section 5.
6. FEES. In consideration for serving as the escrow agent, the
Company shall pay to the Escrow Agent a fee equal to $2,500 per annum. Payment
of the first year's fees shall be made within 120 days of the date hereof and
payment for each subsequent year's fees shall be made on the anniversary date of
this Escrow Agreement.
7. MISCELLANEOUS.
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a. All notices, requests, demands and other communications
hereunder shall be in writing, with copies to all the other parties hereto, and
shall be deemed to have been duly given when (i) if delivered by hand, upon
receipt, (ii) if sent by facsimile, upon receipt of proof of sending thereof,
(iii) if sent by nationally recognized overnight delivery service (receipt
requested), the next business day or (iv) if mailed by first-class registered or
certified mail, return receipt requested, postage prepaid, four days after
posting in the U.S. mails, in each case if delivered to the following addresses:
If to the Company: IVP Technology Corporation
Xxxxx 000
0000 Xxxxxxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxx X0X 0X0_Xxxxxx
Facsimile No.: (000) 000-0000
Attn: President
With copies to: Ruffa & Ruffa, P.C.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000
Attn: Xxxxxxx X. Xxxxx, Esq.
If to the ITM Shareholders
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or at such other address as any of the parties to this Agreement may hereafter
designate in the manner set forth above to the others.
b. This Agreement shall be governed by and construed and
enforced in accordance with the internal laws of the State of New York without
regard to the principles of conflicts of law thereof. Each party hereby
irrevocably submits to the exclusive jurisdiction of the state and federal
courts sitting in the City of New York, borough of Manhattan, for the
adjudication of any dispute hereunder or in connection herewith or with any
transaction contemplated hereby or discussed herein and hereby irrevocably
waives, and agrees not to assert in any suit, action or proceeding, any claim
that it is not personally subject to the jurisdiction of any such court, that
such suit, action or proceeding is improper. Each party hereby irrevocably
waives personal service of process and consents to process being served in any
such suit, action or proceeding by mailing a copy thereof to such party at the
address in effect for notices to it under this Agreement and agrees that such
service shall constitute good and sufficient service of process and notice
thereof. Nothing contained herein shall be deemed to limit in any way any right
to serve process in any manner permitted by law.
c. This Agreement may be executed in two or more counterparts,
all of which when taken together shall be considered one and the same agreement
and shall become effective when counterparts have been signed by each party and
delivered to the other party, it being understood that both parties need not
sign the same counterpart. 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) the same with the same force and effect as if such facsimile signature
page were an original thereof.
d. In case any one or more of the provisions of this Agreement
shall be invalid or unenforceable in any respect, the validity and
enforceability of the remaining terms and provisions of this Agreement shall not
in any way be affecting or impaired thereby and the parties will attempt to
agree upon a valid and enforceable provision which shall be a reasonable
substitute therefor, and upon so agreeing, shall incorporate such substitute
provision in this Agreement.
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IN WITNESS WHEREOF, THE PARTIES HERETO HAVE CAUSED THIS ESCROW
AGREEMENT TO BE SIGNED THE DAY AND YEAR FIRST ABOVE WRITTEN.
IVP TECHNOLOGY CORPORATION
[Seal] By: ___________________________
Title:
Attest:
_________________________
Title:
ITM SHAREHOLDERS:
_________________________ __________________________
Xxxxx XxxXxxxxx Xxxxx Xxxxxxxx
_________________________ ___________________________
Xxxxx Xxxxx Xxxxxx Xxxxxxx
_________________________
Xxxx Xxxxxxxx
RUFFA & RUFFA, P.C.
By:_______________________
Xxxxxxx X. Xxxxx
