ESCROW AGREEMENT
Exhibit 10.2
This
Escrow Agreement (this “Agreement”) entered into
on as of July 3, 2018 by and among Issuer Direct Corporation, a
Delaware corporation (“Issuer Direct”),
ACCESSWIRE Canada Ltd., a body corporate incorporated under the
Business Corporations Act
(Alberta) (“ACCESSWIRE Canada”), Xxxx Xxxxxxxx (the
“Seller”) and Quick Law
Group P.C., a Colorado professional corporation (the
“Escrow
Agent”). Issuer Direct and ACCESSWIRE are referred to
collectively herein as the “Buyer.” The Buyer and the
Seller are referred to collectively herein as the
“Parties.”
A.
The Buyer and the Seller
have entered into that certain Stock Purchase Agreement dated as of
an even date herewith and attached as Exhibit A
hereto (the “Purchse
Agreement”);
B.
All terms not otherwise defined herein shall
have the meanings set forth in the Purchase Agreement;
C.
Pursuant to the terms of the Purchase Agreement, the
Parties have agreed to deposit the Escrow Amount with the Escrow
Agent in order to secure certain of the Seller’s obilgations
under Sections 2 and 7 of the Purchase Agreement; and
D.
The
Escrow Agent is willing to serve, and the Parties mutally agree to
have the Escrow Agent serve, as escrow agent pursuant to the terms
and conditions of this Agreement.
AGREEMENT
Now,
therefore, in consideration of the premises and the mutual promises
herein made, and in consideration of the representations,
warranties, and covenants herein contained, the Parties agree as
follows.
ARTICLE I
1.1.
Entire
Agreement.
This Agreement constitutes the entire
agreement between the Parties and the Escrow Agent hereto and
supersedes all prior agreements, understandings, negotiations and
discussions, whether oral or written, of the Parties and the Escrow
Agent relating to the Escrow Fund. There are no warranties,
representations and other agreements made by the Parties and the
Escrow Agent in connection with the subject matter hereof except as
specifically set forth in this Agreement.
1.3.
Waivers
and Amendments. This Agreement
may be amended, modified, superseded, cancelled, renewed or
extended, and the terms and conditions hereof may be waived, only
by a written instrument signed by all Parties and the Escrow Agent,
or, in the case of a waiver, by the party waiving compliance.
Except as expressly stated herein, no delay on the part of any
party in exercising any right, power or privilege hereunder shall
operate as a waiver thereof, nor shall any waiver on the part of
any party of any right, power or privilege hereunder preclude any
other or future exercise of any other right, power or privilege
hereunder.
1.4.
Headings.
The division of this Agreement into articles, sections, subsections
and paragraphs and the insertion of headings are for convenience of
reference only and shall not affect the construction or
interpretation of this Agreement.
1.5.
Law
Governing this Agreement. This
Agreement shall be governed by and construed in accordance with the
laws of the State of Delaware without regard to conflicts of laws principles that would result in the application of
the substantive laws of another jurisdiction. Any action brought by
either the Buyer or the Seller against the other concerning the
transactions contemplated by this Agreement shall be brought only
in the state courts of North Carolina or in the federal courts
located in Raleigh, North Carolina. The Parties agree to submit to
the jurisdiction of such courts and waive trial by jury. For
purposes of clarity, the Escrow Agent does not submit or consent to
North Carolina as to jurisdiction for purposes of this Agreement.
The prevailing party (which shall be the party which receives an
award most closely resembling the remedy or action sought) shall be
entitled to recover from the other party its reasonable attorney's
fees and costs. In the event that any provision of this Agreement
or any other agreement delivered in connection herewith is invalid
or unenforceable under any applicable statute or rule of law, then
such provision shall be deemed inoperative to the extent that it
may conflict therewith and shall be deemed modified to conform with
such statute or rule of law. Any such provision which may prove
invalid or unenforceable under any law shall not affect the
validity or enforceability of any other provision of any
agreement.
1.6.
Specific
Enforcement, Consent to Jurisdiction. The Parties acknowledge and agree that
irreparable damage would occur in the event that any of the
provisions of this Agreement were not performed in accordance with
their specific terms or were otherwise breached. It is accordingly
agreed that the Parties shall be entitled to an injuction or
injunctions to prevent or cure breaches of the provisions of this
Agreement and to enforce specifically the terms and provisions
hereof or thereof, this being in addition to any other remedy to
which any of them may be entitled by law or equity. Nothing in this
Section shall affect or limit any right to serve process in any
other manner permitted by law.
ARTICLE II
TERMS OF ESCROW
2.1.
Terms of
Escrow.
(a) Upon
(i) the exectution of this Agreement by each of the Parties and the
Escrow Agent and (ii) the occurrence of the Closing under the
Purchase Agreement, ACCESSWIRE Canada shall immediately wire the
Escrow Funds to the trust accunt of the Escrow Agent pursuant to
the written wire transfer instructions provided by the Escrow Agent
to ACCESSWIRE Canada.
(b) The
Escrow Agent shall hold the Escrow Funds in escrow until the
earlier of the following: (i) eighteen months from the Closing Date
(the “Release Escrow Funds
Event”) or (ii) a claim
by the Buyer for some or all of the Escrow Funds under either
Sections 2 and/or Section 7 of the Purchase Agreement (a
“Return Escrow Funds
Event”). For purposes of
clarity, a Return Escrow Funds Event shall require the Buyer to
strictly comply with the provisions of Sections 2 and/or 7 of the
Purchase Agreement.
(c) In
the event of the Release Escrow Funds Event, the Escrow Agent shall
within one (1) Business Day, and without further action required by
the Buyer, wire transfer all or any portion of the Escrow Funds
remaining to the Seller pursuant to the written wire transfer
instructions provided by the Seller.
(d) In
the event of a Return Escrow Funds Event, the Escrow Agent shall
within one (1) Business Day, and without further action required by
the Seller except as required in the Purchase Agreement, release
the Escrow Funds to ACCESSWIRE Canada pursuant to the written wire
transfer instructions provided by ACCESSWIRE
Canada.
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2.2. Judicial
Order. Upon receipt by the Escrow Agent of a final and
non-appealable judgment, order, decree or award of a court of
competent jurisdiction (a “Court Order”), the Escrow
Agent shall deliver the Escrow Funds in accordance with the Court
Order. Any Court Order shall be accompanied by an opinion of
counsel for the party presenting the Court Order to the Escrow
Agent (which opinion shall be satisfactory to the Escrow Agent) to
the effect that the court issuing the Court Order has competent
jurisdiction and that the Court Order is final and
non-appealable.
ARTICLE III
CONCERNING THE ESCROW AGENT
3.1.
Duties and
Responsibilities of the Escrow Agent. The Escrow Agent's duties and responsibilities
shall be subject to the following terms and
conditions:
(a) The
Parties acknowledge and agree that the Escrow Agent (i) shall be
obligated only for the performance of such duties as are
specifically assumed by the Escrow Agent pursuant to this
Agreement; (ii) may rely on and shall be protected in acting or
refraining from acting upon any written notice, instruction,
instrument, statement, request or document furnished to it
hereunder and believed by the Escrow Agent in good faith to be
genuine and to have been signed or presented by the proper person
or party, without being required to determine the authenticity or
correctness of any fact stated therein or the propriety or validity
or the service thereof; (iii) may assume that any person believed
by the Escrow Agent in good faith to be authorized to give notice
or make any statement or execute any document in connection with
the provisions hereof is so authorized; (iv) shall not be under any
duty to give the property held by Escrow Agent hereunder any
greater degree of care than Escrow Agent gives its own similar
property; and (v) may consult counsel satisfactory to Escrow Agent,
the opinion of such counsel to be full and complete authorization
and protection in respect of any action taken, suffered or omitted
by Escrow Agent hereunder in good faith and in accordance with the
opinion of such counsel.
(b) The
Parties acknowledge that the Escrow Agent is acting solely as a
stakeholder at their request and that the Escrow Agent shall not be
liable for any action taken by Escrow Agent in good faith and
believed by Escrow Agent to be authorized or within the rights or
powers conferred upon Escrow Agent by this Agreement. The Buyer and
Seller agree, on an equal one-half basis, to indemnify and hold
harmless the Escrow Agent and any of Escrow Agent's partners,
employees, agents and representatives for any action taken or
omitted to be taken by Escrow Agent or any of them hereunder,
including the fees of outside counsel and other costs and expenses
of defending itself against any claim or liability under this
Agreement, except in the case of gross negligence or willful
misconduct on Escrow Agent's part committed in its capacity as
Escrow Agent under this Agreement.
(c) The
Parties agree, on an equal one-half basis to reimburse the Escrow
Agent for outside counsel fees, to the extent authorized hereunder
and incurred in connection with the performance of its duties and
responsibilities hereunder.
(d) The
Escrow Agent may at any time resign as Escrow Agent hereunder by
giving fifteen (15) days prior written notice of resignation to the
Parties. Prior to the effective date of the resignation as
specified in such notice, the Parties will issue to the Escrow
Agent a joint instruction authorizing delivery of the Escrow Funds
to a substitute Escrow Agent selected by the Parties. If no
successor Escrow Agent is named by the Parties, the Escrow Agent
may apply to a court of competent jurisdiction in the State of
Colorado for appointment of a successor Escrow
Agent.
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(e) The
Escrow Agent does not have and will not have any interest in the
Escrow Funds, but is serving only as escrow agent, having only
possession thereof. The Escrow Agent shall not be liable for any
loss of the Escrow Funds which was not the result of Escrow
Agent’s gross negligence or intentional
misconduct..
(f) This
Agreement sets forth exclusively the duties of the Escrow Agent
with respect to any and all matters pertinent thereto and no
implied duties or obligations shall be read into this
Agreement.
(b) The
Escrow Agent is hereby expressly authorized to comply with and obey
any Court Order. In case the Escrow Agent obeys or complies with a
Court Order, the Escrow Agent shall not be liable to the Parties or
to any other person, firm, corporation or entity by reason of such
compliance.
3.2
Escrow
Fees. The Parties shall pay to
the Escrow Agreement a fee of $1,000 for the performance of its
obligations under this Agreement.
ARTICLE IV
GENERAL MATTERS
4.1.
Notices.
All notices, demands, requests, consents, approvals, and other
communications required or permitted hereunder shall be in writing
and, unless otherwise specified herein, shall be (i) personally
served, (ii) deposited in the mail, registered or certified, return
receipt requested, postage prepaid, (iii) delivered by reputable
air courier service with charges prepaid, or (iv) transmitted by
hand delivery, telegram, or facsimile, addressed as set forth below
or to such other address as such party shall have specified most
recently by written notice. Any notice or other communication
required or permitted to be given hereunder shall be deemed
effective (a) upon hand delivery or delivery by facsimile, with
accurate confirmation generated by the transmitting facsimile
machine, at the address or number designated below (if delivered on
a business day during normal business hours where such notice is to
be received), or the first business day following such delivery (if
delivered other than on a business day during normal business hours
where such notice is to be received) or (b) on the second business
day following the date of mailing by express courier service, fully
prepaid, addressed to such address, or upon actual receipt of such
mailing, whichever shall first occur. The addresses for such
communications shall be:
(a)
If
to the Buyer, to:
Issuer
Direct Corporation
ACCESSWIRE
Canada Ltd.
000
Xxxxxxxxx Xxxx Xxxxx
Xxxxx
X
Xxxxxxxxxxx,
Xxxxx Xxxxxxxx 00000
Attention:
Xxxxx X. Xxxxxxxxx
Facsimile
No.:
646.225.7104
(b) If
to the Seller, to:
Xxxx
Xxxxxxxx
000
Xxxxxxxxx Xxx XX
Xxxxxxxx
Xxx, XX X0X 0X0
with
a copy (which shall not constitute notice) to:
Xxxxx
& Xxxxxx Law Firm
Xxxx
000 Xxxxxxxx Xxxxxx
0000
Xxx Xxxxxxx Xxxx. XX
Xxxxxxxx
Xxx, Xxxxxxx X0X 0X0
Attention: Xxxxx X. Xxxxxx
Facsimile No.: 000-000-0000
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(c)
If
to the Escrow Agent, to:
Quick
Law Group PC
0000
Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxx,
XX 00000
Attention:
Xxxxxxx X. Quick
Fax:
000-000-0000
or to such other address as any of them shall give to the others by
notice made pursuant to this Section 5.2.
5.3.
Interest.
The Escrow Payment shall not be held in an interest bearing account
nor will interest be payable in connection therewith. In the event
the Escrow Payment is deposited in an interest bearing account, any
interest accrued will be paid by the Escrow Agent to the
Seller.
5.4.
Assignment; Binding
Agreement. Neither this
Agreement nor any right or obligation hereunder shall be assignable
by any party without the prior written consent of the other parties
hereto. This Agreement shall enure to the benefit of and be binding
upon the parties hereto and their respective legal representatives,
successors and assigns.
5.5.
Invalidity.
In the event that any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held
invalid, illegal, or unenforceable in any respect for any reason,
the validity, legality and enforceability of any such provision in
every other respect and of the remaining provisions contained
herein shall not be in any way impaired thereby, it being intended
that all of the rights and privileges of the parties hereto shall
be enforceable to the fullest extent permitted by
law.
5.6.
Counterparts/Execution.
This Agreement may be executed in any number of counterparts and by
different signatories hereto on separate counterparts, each of
which, when so executed, shall be deemed an original, but all such
counterparts shall constitute but one and the same instrument. This
Agreement may be executed by facsimile transmission and delivered
by facsimile transmission.
5.7.
Agreement.
Each of the Parties and the Escrow Agreement acknowledge that it
has read the foregoing Escrow Agreement and understands and agrees
to it.
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IN
WITNESS WHEREOF, the parties have executed this Escrow Agreement as
of the date first written above.
Buyers:
ISSUER
DIRECT CORPORATION
By:
/s/ Xxxxx X.
Xxxxxxxxx
Name:
Xxxxx X. Xxxxxxxxx
Title: Chief
Executive Officer
ACCESSWIRE CANADA
LTD.
By:
/s/ Xxxxx X.
Xxxxxxxxx
Name:
Xxxxx X. Xxxxxxxxx
Title: Chief
Executive Officer
Seller:
By:
/s/ Xxxx
Xxxxxxxx
Name:
Xxxx Xxxxxxxx
Title:
President
Escrow Agent:
QUICK
LAW GROUP P.C.
By:
/s/ Xxxxxxx X.
Quick
Name:
Xxxxxxx X. Quick
Title:
President
