ESCROW AGREEMENT
Exhibit 10.3
This Escrow Agreement (this “Escrow Agreement”), dated as of September 21, 2009, by and
among QuikByte Software, Inc., a Colorado corporation (“Parent”), Xxxxxxx Xxxxxxxx, an
individual, as the Stockholders’ Agent hereunder, Xxxxx Xxxxxxx, an individual, as the Parent
Representative hereunder, and Bank of America, N.A., as escrow agent (“Escrow Agent”).
Capitalized terms used in this Agreement and not otherwise defined shall have the meanings given to
them in the Merger Agreement (as defined below), a copy of which has been delivered to the Escrow
Agent solely to enable it to reference such meanings.
RECITALS
Whereas, Parent, Sorrento Therapeutics, Inc., a Delaware corporation
(‘Sorrento”), Sorrento Merger Corp., Inc., a Delaware corporation and wholly-owned
subsidiary of Parent (“Merger Sub”), Xxxxxxx Xxxxxxxx, as the representative of the holders
of Sorrento Securities (the “Stockholders”), and Xxxxx Xxxxxxx, as Parent Representative
thereunder, have entered into a Merger Agreement, dated as of July 14, 2009 (the “Merger
Agreement”), attached hereto as Exhibit A, pursuant to which, among other things,
Merger Sub will merge with and into Sorrento, with the result that Sorrento survives the merger and
becomes a wholly-owned subsidiary of Parent in a transaction in which the consideration to the
Stockholders is common shares of Parent, par value $0.0001 per share (the “Parent Shares”);
Whereas, the Merger Agreement contemplates that Parent shall deposit the Sorrento
Escrowed Shares to secure the indemnification obligations of Sorrento under the Merger Agreement;
Whereas, the Stockholders have appointed the Stockholders’ Agent as their
representative for purposes of this Escrow Agreement and as attorney-in-fact and agent for and on
behalf of each Stockholder with respect to the subject matter of this Escrow Agreement (provided,
however, that such Stockholders are not, and are not intended to be, parties to this Escrow
Agreement) and the taking by the Stockholders’ Agent of any and all actions and the making of any
decision required or permitted to be taken or made by them under this Escrow Agreement;
Whereas, Parent appointed the Parent Representative as its representative for
purposes of this Escrow Agreement and as attorney-in-fact and agent for and on behalf of Parent
with respect to the subject matter of this Escrow Agreement and the taking by the Parent
Representative of any and all actions and the making of any decision required or permitted to be
taken or made by Parent under this Escrow Agreement; and
Whereas, the parties hereto desire to set forth further terms and conditions in
addition to those set forth in the Merger Agreement relating to the operation of the Escrow Fund
(as defined below).
AGREEMENT
The parties hereto, in consideration of the mutual covenants contained herein, and intending
to be legally bound, hereby agree as follows:
Section 1. Establishment of Escrow Fund.
1.1 Deposit of Consideration Shares. The Sorrento Escrowed Securities shall be
deposited into an escrow fund (the “Escrow Fund”) and held by the Escrow Agent in
accordance with the terms hereof. The Escrow Agent agrees to hold the Escrow Fund in a separate
and distinct account which is hereby established. The Sorrento Escrowed Securities comprising the
Escrow Fund shall be referred to herein as the “Escrow Shares.” The Escrow Shares shall be
issued in the name of “Bank of America, N.A., as escrow agent for the Escrow Agreement, dated
September 21, 2009, by and among QuikByte Software, Inc., Xxxxxxx Xxxxxxxx, an individual, as the
Stockholders’ Agent thereunder, Xxxxx Xxxxxxx, an individual, as the Parent Representative
thereunder, and Bank of America, N.A.” and Parent shall deliver to Escrow Agent a stock certificate
representing the Escrow Shares of each Stockholder in each such Stockholder’s proportionate
interest in the Escrow Fund as set forth on Exhibit B, attached hereto. The Escrow Fund
shall be held as collateral to secure the rights of Parent as provided for in Article IX of the
Merger Agreement.
1.2 Appointment of Escrow Agent. Parent, the Parent Representative, and the
Stockholders’ Agent appoint the Escrow Agent to serve as escrow agent, and Escrow Agent hereby
agrees to act as escrow agent hereunder and to hold, safeguard and disburse the Escrow Fund
pursuant to the terms and conditions hereof. The Escrow Agent shall have no interest in the Escrow
Shares other than possession or control of the certificates representing such Escrow Shares and
related stock powers.
1.3 Transferability. The interests of the Stockholders in the Escrow Fund shall not
be assignable or transferable, other than by operation of law (in which case, the portion of the
Escrow Fund so assigned or transferred shall continue to be bound by the terms of this Escrow
Agreement) or by descent or distribution. No assignment or transfer of any of such interests by
operation of law shall be recognized or given effect until Parent and the Escrow Agent shall have
received written notice of such assignment or transfer.
1.4 Distribution. Any securities comprising the Escrow Fund, including, but not
limited to, any property distributable in respect of or in exchange for any Escrow Shares (any such
distribution shall be referred to herein as “Additional Property”) as a result of a stock split,
stock dividend, recapitalization, merger, asset purchase, sale of assets or similar transaction
shall, upon receipt by the Stockholder, be promptly distributed to and held by Escrow Agent as part
of the Escrow Fund and any such Additional Property shall become part of the Escrow Fund for
purposes of this Escrow Agreement. At any time any Escrow Shares are required to be released from
the Escrow Fund to the Stockholders pursuant to this Escrow Agreement, any Additional Property
previously received by Escrow Agent in respect of or in exchange for such Escrow Shares shall be
released from the Escrow Fund to the Stockholders.
1.5 Escrow Fund. The Escrow Fund shall not be subject to any lien, attachment,
trustee process or any other judicial process of any creditor of any Stockholder or of any party
hereto. The Escrow Agent shall hold and safeguard the Escrow Fund until it is released in
accordance with Section 3 below; provided, however, that if the Escrow Agent has received
from Parent Representative a Claim Notice (as defined below) setting forth a claim that has not
been resolved by the Termination Date (as defined below), then the Escrow Agent shall
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hold and safeguard that portion of the Escrow Fund equal to 100% of the amount claimed as
Losses in the Claim Notice (the “Retained Amount”), and promptly after the resolution
thereof that portion of the Escrow Fund held back shall be released in accordance with this Escrow
Agreement.
1.6 Voting of Escrow Shares. The Stockholders shall have the right, in their sole
discretion, to exercise any voting rights pertaining to the Escrow Shares, and if required Escrow
Agent shall comply with, and be entitled to rely on, any applicable Stockholder written
instructions. At every annual, special or adjourned meeting of the stockholders of Parent and in
every written consent of the stockholders of Parent in lieu of any such meeting, in the absence of
written instructions from any individual Stockholder (directly or through a proxy), Escrow Agent
shall not vote any of the Escrow Shares being held in the Escrow Fund on behalf of that individual
Stockholder. The Stockholders shall further have the right, in their sole discretion, to direct
Escrow Agent in writing to cause the tender of such Escrow Shares in a tender offer for Common
Stock.
Section 2. Administration of Escrow Fund. Except as otherwise provided herein, the
Escrow Agent shall administer the Escrow Fund as follows:
2.1 If Parent has or claims to have incurred or suffered Losses for which it is or may be
entitled to indemnification under Article IX of the Merger Agreement, Parent Representative shall
promptly deliver to the Stockholders’ Agent and the Escrow Agent a written claim notice (a
“Claim Notice”). Each Claim Notice shall contain a reasonably detailed summary of the
basis for the claim, the provision or provisions of the Merger Agreement alleged to have been
inaccurate or breached and, if known, the estimated amount of the Losses incurred or reasonably
expected to be incurred by Parent as a result of such inaccuracy or breach under which such
indemnification is sought (the “Claimed Amount”).
2.2 Within fifteen (15) calendar days after receipt by the Stockholders’ Agent of a Claim
Notice, the Stockholders’ Agent may deliver to Parent Representative and to the Escrow Agent a
written response (the “Response Notice”) in which the Stockholders’ Agent: (a) agrees that
an amount of Escrow Shares equal to the full Claimed Amount may be released from the Escrow Fund to
Parent; (b) agrees that an amount of Escrow Shares equal to part, but not all, of the Claimed
Amount (the “Agreed Amount”) may be released from the Escrow Fund to Parent; or (c)
indicates that no part of the Escrow Fund may be released from the Escrow Fund to Parent in respect
of the Claimed Amount. Any part of the Claimed Amount that is not agreed to be released to Parent
pursuant to the Response Notice, which determination shall be made in good faith by the
Stockholders’ Agent, shall be the “Contested Amount.” If a Response Notice is not received
by the Escrow Agent within such fifteen (15) day period, then the Stockholders’ Agent shall be
conclusively deemed to have agreed that an amount of Escrow Shares equal to the full Claimed Amount
may be released to Parent from the Escrow Fund and the Escrow Agent shall release such amount to
Parent as provided in Section 2.3. The Escrow Agent may assume that any Claim Notice
required to be delivered to the Escrow Agent and the Stockholders’ Agent has been received by the
Stockholders’ Agent on the date it has been received by the Escrow Agent, but the Escrow Agent need
not inquire into or verify such receipt.
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2.3 If the Stockholders’ Agent delivers a Response Notice agreeing that an amount of Escrow
Shares equal to the full Claimed Amount may be released from the Escrow Fund to Parent, or if the
Stockholders’ Agent does not deliver a Response Notice on a timely basis in accordance with
Section 2.2, the Escrow Agent shall within two (2) Business Days following the receipt of
such Response Notice (or, if the Escrow Agent has not received a Response Notice, within two (2)
Business Days following the expiration of the fifteen (15) day period referred to in Section
2.2), submit to Parent’s transfer agent an amount of Escrow Shares equal to the full Claimed
Amount.
2.4 If the Stockholders’ Agent delivers a Response Notice agreeing that an amount equal to
less than the full Claimed Amount may be released from the Escrow Fund to Parent, the Escrow Agent
shall, within two (2) Business Days following the receipt of such Response Notice, submit to
Parent’s transfer agent an amount of Escrow Shares equal to the Agreed Amount. Such payment shall
not be deemed to be made in full satisfaction of the claim described in such Claim Notice and the
remaining amount shall be the Contested Amount as provided in Section 2.2.
2.5 If the Stockholders’ Agent delivers a Response Notice indicating that there is a Contested
Amount, the Stockholders’ Agent and Parent Representative shall attempt in good faith to resolve
the dispute related to the Contested Amount within fifteen (15) calendar days of Parent
Representative’s receipt of such Response Notice (the “Negotiation Period”). If Parent
Representative and the Stockholders’ Agent resolve such dispute, such written resolution shall be
binding on all of the Stockholders and Parent, and a settlement agreement shall be signed by Parent
Representative and the Stockholders’ Agent and sent to the Escrow Agent, which shall, upon receipt
thereof, if applicable, release Escrow Shares from the Escrow Fund in accordance with such
agreement. Unless and until the Escrow Agent receives written notice that any such dispute has
been resolved by Parent Representative and the Stockholders’ Agent, the Escrow Agent may assume
without inquiry that such dispute has not been resolved. If Parent Representative and the
Stockholders’ Agent fail to reach agreement by the end of the Negotiation Period, each party shall
be entitled to its legal remedies in accordance with this Escrow Agreement and the Merger
Agreement.
2.6 The Escrow Agent shall submit to Parent’s transfer agent the Escrow Shares from the Escrow
Fund in connection with any Contested Amount within two (2) Business Days after the delivery to it
of: (i) a copy of a settlement agreement executed by Parent Representative and the Stockholders’
Agent setting forth instructions to the Escrow Agent as to the amount of Escrow Shares to be
released from the Escrow Fund, with respect to such Contested Amount; or (ii) a certified copy of a
final and non-appealable binding order, decree or judgment issued or rendered by a court of
competent jurisdiction or a certified copy of a final arbitration award, accompanied by joint
written instructions from Parent Representative and the Stockholders’ Agent instructing the Escrow
Agent as to the resulting disbursement of the Escrow Fund specified therein.
2.7 At any time that a payment, distribution or holdback is required to be made pursuant to
this Escrow Agreement, the payment, distribution or holdback shall be from or to each Stockholder
in the same proportion as such Stockholder’s proportionate interest in the Escrow Fund as set forth
on Exhibit B attached hereto. Notwithstanding anything herein to the
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contrary, any and all calculations required to be made pursuant to a disbursement request
shall be made in accordance with the following sentence and shall be provided to the Escrow Agent
in a writing signed by Parent Representative and the Stockholders’ Agent. The aggregate number of
Escrow Shares to be delivered to Parent in satisfaction of (i) the full Claimed Amount under
Section 2.3; (ii) the Agreed Amount under Section 2.4; or (iii) in connection with
any Contested Amount under Section 2.6, shall be determined by dividing the amount of the
applicable indemnifiable Losses as fully and finally determined to be due, by the volume weighted
average closing price of Parent Common Stock over the 30 trading-day period ending on the date
immediately preceding the date of any payment in satisfaction of such indemnification obligation,
as reported on the Eligible Market or other applicable exchange, as applicable.
2.8 Parent Representative may submit a Claim Notice at any time prior to 11:59 p.m. Pacific
Time on the date that is the first-year anniversary of the Closing Date (the “Termination
Date”).
Section 3. Release of Escrow Fund. Within two (2) Business Days after the Termination
Date, the Escrow Agent shall submit to Parent’s transfer agent for distribution to the
Stockholders, in accordance with a spreadsheet to be provided to the Escrow Agent by the
Stockholders’ Agent within seven (7) calendar days prior to the Termination Date, which such
spreadsheet shall be consistent with Exhibit B, the Escrow Shares held in the Escrow Fund,
to the extent not otherwise distributed to Parent pursuant to Section 2 or the
Stockholders’ Agent pursuant to Section 4.2 or retained in the Escrow Fund pursuant to
Section 1.5. Notwithstanding the foregoing, if prior to the Termination Date, Parent
Representative has properly given a Claim Notice containing a claim which has not been resolved
prior to such date in accordance with Section 2, the Escrow Agent shall retain in the
Escrow Fund after the Termination Date the Retained Amount.
Section 4. Fees and Expenses.
4.1 The Escrow Agent shall be entitled to receive from time to time fees in accordance with
Exhibit C attached hereto. In accordance with Exhibit C, the Escrow Agent will
also be entitled to reimbursement for reasonable and documented out-of-pocket expenses incurred by
the Escrow Agent in the performance of its duties hereunder and the execution and delivery of this
Escrow Agreement. Parent shall pay the fees and expenses of the Escrow Agent.
4.2 The Stockholders’ Agent shall be entitled to receive from the Stockholders from time to
time reimbursement for reasonable documented out-of-pocket expenses incurred by the Stockholders’
Agent after the date first set forth above in the performance of his duties hereunder (the
“Agent’s Expenses”). Subject to any rights of Parent to receive distributions from the
Escrow Fund pursuant hereto, to the extent that there are sufficient funds in the Escrow Fund as of
the Termination Date (excluding any Retained Amount), all such fees and expenses shall be
reimbursed to Stockholders’ Agent by the Escrow Agent from the Escrow Fund after receipt by the
Escrow Agent of a written request for reimbursement, which shall include the Stockholders’ Agent’s
certification that such out-of-pocket expenses are supported by written documentation (upon which
the Escrow Agent shall conclusively rely) and the calculations for determining the number of Escrow
Shares to be delivered to the Stockholders’ Agent in satisfaction of the Agent’s Expenses and which
such documentation shall be attached thereto. Within two (2)
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Business Days after receipt of such request, the Escrow Agent shall submit to Parent’s
transfer agent for distribution to the Stockholders’ Agent, an amount of Escrow Shares equal to the
Agent’s Expenses, which such shares shall not be subject to the Lock-up Agreement executed by the
Stockholders’ Agent. Notwithstanding anything herein to the contrary, any and all calculations
required to be made pursuant to a reimbursement request by the Stockholders’ Agent shall be made in
accordance with the following sentence and shall be provided to the Escrow Agent in a writing
signed by the Stockholders’ Agent. The aggregate number of Escrow Shares to be delivered to the
Stockholders’ Agent as reimbursement for the Agent’s Expenses shall be determined by dividing the
amount of the applicable Agent’s Expenses, by the volume weighted average closing price of Parent
Common Stock over the 30 trading-day period ending on the date immediately preceding the date of
any payment in satisfaction of such indemnification obligation, as reported on the Eligible Market
or other applicable exchange, as applicable.
Section 5. Limitation of Escrow Agent’s Liability.
5.1 The Escrow Agent undertakes to perform such duties as are specifically set forth in this
Escrow Agreement only and shall have no duty under any other agreement or document and no implied
covenants or obligations shall be read into this Escrow Agreement against the Escrow Agent. The
Escrow Agent shall incur no liability with respect to any action taken by it or for any inaction on
its part in reliance upon any notice, direction, instruction, consent, statement or other document
believed by it in good faith to be genuine and duly authorized, nor for any other action or
inaction except for its own gross negligence or willful misconduct. In all questions arising under
this Escrow Agreement, the Escrow Agent may rely on the advice of counsel (whether such counsel
shall be regularly retained or specifically employed), and for anything done, omitted or suffered
in good faith by the Escrow Agent based upon such advice the Escrow Agent shall not be liable to
anyone.
5.2 Parent agrees to indemnify the Escrow Agent and its officers, directors, employees and
agents for, and hold it and them harmless against, any loss, liability, attorney’s fees (whether
such attorneys shall be regularly retained or specifically employed) or expense incurred without
gross negligence or willful misconduct on the part of Escrow Agent, arising out of or in connection
with the Escrow Agent carrying out its duties hereunder. The costs and expenses of enforcing this
right of indemnification shall also be paid by Parent. This right of indemnification shall survive
the termination of this Escrow Agreement, and the resignation or removal of the Escrow Agent.
5.3 The escrow account shall be maintained in accordance with applicable laws, rules and
regulations and policies and procedures of general applicability to escrow accounts established by
Escrow Agent. The Escrow Agent shall not be personally liable for any act that it may do or omit
to do hereunder in good faith and in the exercise of its own best judgment nor for any damages not
directly resulting from its gross negligence or willful misconduct. Without limiting the
generality of the foregoing sentence, it is hereby agreed that in no event will the Escrow Agent be
liable for any lost profits or other indirect, special, incidental or consequential damages which
the parties may incur or experience by reason of having entered into or relied on this Escrow
Agreement or arising out of or in connection with the Escrow Agent’s duties hereunder,
notwithstanding that the Escrow Agent was advised or otherwise made
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aware of the possibility of such damages; nor shall the Escrow Agent be liable for acts of
God, acts of war, breakdowns or malfunctions of machines or computers, interruptions or
malfunctions of communications or power supplies, labor difficulties, actions of public
authorities, or any other similar cause or catastrophe beyond the Escrow Agent’s reasonable
control. Any act done or omitted to be done by the Escrow Agent pursuant to the advice of its
attorneys shall be conclusively presumed to have been performed or omitted in good faith by the
Escrow Agent.
5.4 In the event the Escrow Agent is notified of any dispute, disagreement or legal action
relating to or arising in connection with the escrow, the Escrow Fund, or the performance of the
Escrow Agent’s duties under this Escrow Agreement, the Escrow Agent will not be required to
determine the controversy or to take any action regarding it. The Escrow Agent may hold all
documents and funds and may wait for settlement of any such controversy by final appropriate legal
proceedings, arbitration, or other means as, in the Escrow Agent’s discretion, it may require. In
such event, the Escrow Agent will not be liable for interest or damage. Furthermore, the Escrow
Agent may, at its option, file an action of interpleader requiring the parties to answer and
litigate any claims and rights among themselves. The Escrow Agent is authorized, at its option, to
deposit with the court in which such action is filed, all documents and funds held in escrow,
except all costs, expenses, charges, and reasonable attorneys’ fees incurred by the Escrow Agent
due to the interpleader action and which Parent agrees to pay. Upon initiating such action, the
Escrow Agent shall be fully released and discharged of and from all obligations and liability
imposed by the terms of this Escrow Agreement.
Section 6. Termination. The terms of this Escrow Agreement shall terminate on the
earlier of (i) the Termination Date, (ii) the date of a Change of Control, or (iii) upon the
release by the Escrow Agent of the entire Escrow Fund in accordance with this Escrow Agreement;
provided, however, that if on or prior to the Termination Date, the Stockholders’ Agent and the
Escrow Agent have received from Parent Representative a Claim Notice in accordance with the terms
and requirements set forth in Section 2.1 and elsewhere herein, setting forth a claim that
has not been resolved by the Termination Date, then this Escrow Agreement shall continue in full
force and effect with respect to that portion of the Escrow Fund necessary to resolve such claim
for the purpose of resolving such unresolved claim until such claim has been resolved and the
Retained Amount released in accordance with this Escrow Agreement. Notwithstanding the foregoing,
in no event shall this Escrow Agreement cease to remain in full force and effect until such time as
all assets deposited hereunder have been distributed by the Escrow Agent per its terms.
Section 7. Successor Escrow Agent. In the event the Escrow Agent becomes unavailable
or unwilling to continue as escrow agent under this Escrow Agreement, the Escrow Agent may resign
and be discharged from its duties and obligations hereunder by giving its written resignation to
the parties to this Escrow Agreement; provided, however, that no such resignation or removal shall
become effective until a successor escrow agent has been appointed. Such resignation shall take
effect not less than thirty (30) calendar days after it is given to all parties hereto. In such
event, the Stockholders’ Agent may, with the consent of Parent Representative, which consent shall
not be unreasonably withheld, conditioned or delayed, appoint a successor Escrow Agent that will be
a financial institution that is an unrelated third party with respect to
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each of Parent, the Parent Representative and the Stockholders’ Agent. If the Stockholders’
Agent fails to appoint a successor Escrow Agent within ten (10) calendar days after receiving the
Escrow Agent’s written resignation, the Escrow Agent shall have the right at the expense of Parent
to petition any court of general jurisdiction sitting in Xxxx County, Illinois for the appointment
of a successor escrow agent. The successor Escrow Agent shall execute and deliver to the Escrow
Agent (or the court, as the case may be) an instrument accepting such appointment, and the
successor Escrow Agent shall, without further acts, be vested with all the estates, property
rights, powers and duties of the predecessor Escrow Agent as if originally named as Escrow Agent
herein. The Escrow Agent shall act in accordance with written instructions from Parent
Representative and the Stockholders’ Agent as to the transfer of the Escrow Fund to a successor
escrow agent. Parent shall pay the Escrow Agent any outstanding fees and expenses prior to
transferring the Escrow Fund to a successor escrow agent.
Section 8. Stockholders’ Agent.
8.1 Each Stockholder has approved the indemnification and escrow terms set forth in the Merger
Agreement and the appointment of the Stockholders’ Agent to give and receive notices and
communications, to authorize delivery to Parent of Escrow Shares from the Escrow Fund, to object to
such deliveries, to agree to, negotiate, enter into settlements and compromises of and comply with
orders of courts and awards of arbitrator(s) with respect to claims of Parent hereunder, and to
take all actions necessary or appropriate in the reasonable judgment of the Stockholders’ Agent for
the accomplishment of the foregoing.
8.2 If the Stockholders’ Agent or his successor shall die, become disabled or otherwise be
unable to fulfill his responsibilities as agent of the stockholders of Sorrento, then a
majority-in-interest of the Stockholders (calculated based upon their respective contributions to
the Escrow Fund pursuant to the Merger Agreement) shall, within ten (10) calendar days after such
death or disability, appoint a successor representative reasonably satisfactory to Parent
Representative. Unless and until Parent, Parent Representative and the Escrow Agent shall have
received written notice of the appointment of a successor Stockholders’ Agent, Parent, Parent
Representative and the Escrow Agent shall be entitled to rely on, and shall be fully protected in
relying on, the power and authority of the Stockholders’ Agent to act on behalf of the
Stockholders.
Section 9. Parent Representative.
9.1 Parent has approved the indemnification and escrow terms set forth in the Merger Agreement
and the appointment of Parent Representative to give and receive notices and communications, to
authorize delivery to Parent of Escrow Shares from the Escrow Fund, to agree to, negotiate, enter
into settlements and compromises of and comply with orders of courts and awards of arbitrator(s)
with respect to claims of Parent hereunder, and to take all actions necessary or appropriate in the
reasonable judgment of the Stockholders’ Agent for the accomplishment of the foregoing.
9.2 If Parent Representative or his successor shall die, become disabled or otherwise be
unable to fulfill his responsibilities as agent of Parent, then a majority-in-interest of those
persons who comprise the board of directors of Parent as of the date of the Merger
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Agreement (the “Requisite Original Directors”) shall, within ten (10) calendar days
after such death or disability (the “Initial Appointment Period”), appoint a successor
representative reasonably satisfactory to the Stockholders’ Agent; provided however that if the
Requisite Original Directors have not made such appointment within such ten (10) day period, then a
majority-in-interest of those persons who comprise the board of directors of Parent as of the date
of the Parent Representative’s or his successor’s death or disability shall, within ten (10)
calendar days after the Initial Appointment Period, appoint a successor representative reasonably
satisfactory to the Stockholders’ Agent. Unless and until the Stockholders’ Agent and the Escrow
Agent shall have received written notice of the appointment of a successor Parent Representative,
the Stockholders’ Agent and the Escrow Agent shall be entitled to rely on, and shall be fully
protected in relying on, the power and authority of Parent Representative to act on behalf of
Parent.
Section 10. Reports
10.1 Confirmation of Deposits and Disbursements. The Escrow Agent shall provide to
each of Parent, Parent Representative and the Stockholders’ Agent on-line access to Escrow Fund
account records.
10.2 Statements. The Escrow Agent shall deliver to each of Parent, Parent
Representative and the Stockholders’ Agent a monthly report setting forth (x) the amount of the
Escrow Fund as of the date of such report and (y) a summary of all deposits and disbursements with
respect to the Escrow Fund since the Closing Date.
Section 11. Miscellaneous.
11.1 Attorneys’ Fees. If any legal action or other legal proceeding relating to this
Escrow Agreement or the enforcement of any provision of this Escrow Agreement is brought against
any party hereto, the prevailing party shall be entitled to recover reasonable attorneys’ fees,
costs and disbursements (in addition to any other relief to which the prevailing party may be
entitled).
11.2 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 reputable overnight
courier or express delivery service or by confirmed 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). The effective date of any notice or other communication shall be the date of personal
delivery, the date on which successful facsimile transmission is confirmed or the date actually
delivered by a reputable overnight courier or express delivery service, as the case may be, in each
case properly addressed as provided herein and with all charges prepaid. Notices and other
communications required or permitted to be delivered to parties under this Escrow Agreement shall
be delivered to all applicable parties using the same delivery method.
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| If to Escrow Agent: | Bank of America, N.A. | |||
| 000 Xxxxx XxXxxxx Xxxxxx | ||||
| XX0-000-00-00 | ||||
| Xxxxxxx, Xxxxxxxx 00000 | ||||
| Attention: Xxxx X. XxXxxxxx | ||||
| Telephone: (000) 000-0000 | ||||
| Fax: (000) 000-0000 | ||||
| If to Parent: | QuikByte Software, Inc. | |||
| 0000 Xxxxxxxx Xxxx., Xxxxx 000 | ||||
| Xxxxx, XX 00000 | ||||
| Attn: Xxxxx X. Xxxxxxx, CEO | ||||
| Tel.: (000) 000-0000 | ||||
| Fax: (000) 000-0000 | ||||
| with a copy to: | Xxxxxxxxx Xxxxxxx, P.A. | |||
| 0000 Xxxxxxxx Xxxxxx | ||||
| Xxxxx, Xxxxxxx 00000 | ||||
| Attn: Xxxxxx X. Xxxxxxxx, Esq. | ||||
| xxxxxxxxx@xxxxx.xxx | ||||
| Tel: (000) 000-0000 | ||||
| Fax: (000) 000-0000 | ||||
| If to Parent | Xxxxx X. Xxxxxxx | |||
| Representative: | 0000 Xxxxxxxx Xxxx., Xxxxx 000 | |||
| Xxxxx, XX 00000 | ||||
| Tel.: (000) 000-0000 | ||||
| Fax: (000) 000-0000 | ||||
| with a copy to: | Xxxxxxxxx Traurig, P.A. | |||
| 0000 Xxxxxxxx Xxxxxx | ||||
| Xxxxx, XX 00000 | ||||
| Attn: Xxxxxx X. Xxxxxxxx, Esq. | ||||
| Tel.: (000) 000-0000 | ||||
| Fax: (000) 000-0000 | ||||
| If to Stockholders’ | Xxxxxxx Xxxxxxxx | |||
| Agent: | 000 Xxxxx Xx., Xxxx 000 | |||
| Xxx Xxxxx XX 00000 | ||||
| Tel.: (000) 000-0000 | ||||
| with a copy to: | Paul, Hastings, Xxxxxxxx & Xxxxxx, LLP | |||
| 0000 Xxxxxxxxx Xxxxx, 00xx Xxxxx | ||||
| Xxx Xxxxx, XX 00000 | ||||
| Attn: Xxxx X. Xxxxxxx, Esq. | ||||
| Tel.: (000) 000-0000 | ||||
| Fax: (000) 000-0000 |
The Escrow Agent may assume that any Claim Notice, Response Notice or other notice of any kind
required to be delivered to the Escrow Agent and any other Person has been received by such other
Person on the date it has been received by the Escrow Agent, but the Escrow Agent need not inquire
into or verify such receipt.
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11.3 Headings. The 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 Agreement.
11.4 Governing Law. This Escrow Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, regardless of the laws that might otherwise
govern under applicable principles of conflicts of laws thereof.
11.5 Successors and Assigns. This Escrow Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and permitted assigns (if
any).
11.6 Waiver.
(a) 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.
(b) 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.
11.7 Amendment. 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 hereto; provided, however, that any amendment executed and delivered by the
Stockholders’ Agent shall be deemed to have been approved by and duly executed and delivered by all
of the Stockholders.
11.8 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.
11.9 Parties in Interest. Except as expressly provided herein, none of the provisions
of this Escrow Agreement, express or implied, is intended to provide any rights or remedies to any
Person other than the parties hereto and their respective successors and assigns, if any. It is the
intention of the parties hereto that this Escrow Agreement may not be enforced on a third party
beneficiary or any similar basis.
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11.10 Entire Agreement. This Escrow Agreement and the other agreements referred to
herein set forth the entire understanding of the parties hereto relating to the subject matter
hereof and supersede all prior agreements and understandings among or between any of the parties
relating to the subject matter hereof.
11.11 Waiver of Jury Trial. Each of the parties hereto hereby irrevocably waives any
and all right to trial by jury in any action arising out of or related to this Escrow Agreement or
the transactions contemplated hereby.
11.12 Tax Reporting Information and Certification of Tax Identification Numbers.
Stockholders’ Agent shall provide the Escrow Agent with certified tax identification numbers of the
Stockholders by furnishing appropriate original Forms W-9 (or Forms W-8, in the case of non-U.S.
persons) and other forms and documents that the Escrow Agent may reasonably request (collectively,
“Tax Reporting Documentation”) to the Escrow Agent within thirty (30) calendar days of the
date of receipt of the Escrow Fund by the Escrow Agent. The parties hereto understand that, if
such Tax Reporting Documentation is not so certified to the Escrow Agent, the Escrow Agent shall be
required by the Internal Revenue Code, as it may be amended from time to time, to withhold a
portion of any interest or other income earned on the investment of monies or other property held
by the Escrow Agent pursuant to this Escrow Agreement. To the extent that the Escrow Agent is not
in receipt of Tax Reporting Documentation, tax withholding will apply to funds due to the
Stockholders as well as funds due to Parent. The parties agree that, for tax reporting purposes,
all interest and other income from investment of the Escrow Fund shall, as of the end of each
calendar year and to the extent required by the Internal Revenue Service, be reported as having
been earned by Stockholders, whether or not such income was disbursed during such calendar year.
The escrow account shall not be opened unless Parent and Stockholders’ Agent provide to the Escrow
Agent properly completed and signed applicable tax certification. In the case of a Person that is
a “United States person” within the meaning of Section 7701(a)(30) of the Code, an Internal Revenue
Service Form W-9 (or applicable successor form) should be provided.
11.13 Cooperation. Each of Parent and the Stockholders’ Agent agrees to cooperate
fully with one another and the Escrow Agent and to execute and deliver such further documents,
certificates, agreements and instruments and to take such other actions as may be reasonably
requested by the other or the Escrow Agent to evidence or reflect the transactions contemplated by
this Escrow Agreement and to carry out the intent and purposes of this Escrow Agreement.
11.14 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 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.
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(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” and
“Exhibits” are intended to refer to Sections of this Escrow Agreement and Exhibits to this Escrow
Agreement.
(e) All fractions, quotients and the product of any other computations contemplated in this
Escrow Agreement shall be rounded to the fourth decimal point.
11.15 Counterparts. This Escrow Agreement may be executed in several counterparts,
and be delivered by facsimile or other electronic transmission, each of which shall constitute an
original and all of which, when taken together, shall constitute one agreement.
11.16 Business Days. As used in this Escrow Agreement, “Business Day” means a day
other than a Saturday, Sunday, or other day when banking institutions in Chicago, Illinois are
authorized or required by law or executive order to be closed.
11.17 Arbitration. Any claim against Escrow Agent arising out of or relating to this
Escrow Agreement shall be settled by arbitration in accordance with commercial rules of the
American Arbitration Association. Arbitration proceedings conducted pursuant to this Escrow
Agreement shall be held in the State of Delaware.
[Remainder of Page Intentionally Left Blank; Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have made and entered into this Escrow Agreement the
day and year first above written.
| PARENT: QuikByte Software, Inc., a Colorado corporation |
||||
| By: | /s/ Xxxxx Xxxxxxx | |||
| Name: | Xxxxx Xxxxxxx | |||
| Title: | President & Chief Executive Officer | |||
| PARENT REPRESENTATIVE: Xxxxx Xxxxxxx |
||||
| /s/ Xxxxx Xxxxxxx | ||||
| Xxxxx Xxxxxxx | ||||
| STOCKHOLDERS’ AGENT: Xxxxxxx Xxxxxxxx |
||||
| /s/ Xxxxxxx Xxxxxxxx | ||||
| Xxxxxxx Xxxxxxxx | ||||
| ESCROW AGENT: Bank of America, N.A., solely as Escrow Agent hereunder and not in its individual capacity |
||||
| By: | /s/ Xxxx X. XxXxxxxx | |||
| Name: | Xxxx X. XxXxxxxx | |||
| Title: | Vice President | |||
[Signature Page to Escrow Agreement]
