EXHIBIT 10.14
PERFORMANCE EARN-OUT AGREEMENT
THIS PERFORMANCE EARN-OUT AGREEMENT, made effective on February 12, 2002, by and
between:
CONCENTRAX, INC., a Nevada corporation having its executive office at 000 Xxx
Xxxx, Xxxxxxx, Xxxxx 00000 (hereinafter referred to as "COMPANY")
AND
PJC ASSOCIATES, having its principal place of business at 0000 Xxx Xxxxxxx Xxxx,
#000X, Xxxxxxxx, Xxx Xxxx 00000 (hereinafter "PJC").
WITNESSETH THAT:
WHEREAS, PJC has expert knowledge and experience in the area of identifying and
making presentations to brokerage firms, individual brokers, investors,
Investment Bankers, public companies and can advise and prepare Research Reports
as well as provide general PR for the company
WHEREAS, PJC is being issued shares of the Common Stock of COMPANY for providing
such services to COMPANY;
WHEREAS, the number of shares being issued has been based upon projected ongoing
market support which projections and calculations have been accepted by COMPANY
and PJC as reasonable;
WHEREAS, COMPANY and PJC desire to protect investors and other stockholders of
COMPANY from excessive dilution in the event that such projections and
calculation are determined, by actual events, to be (or to have been )
erroneous;
WHEREAS, the parties have agreed upon a procedure of the escrowing of a portion
of the shares with ESCROW AGENT with shares to be released from escrow upon
achievement by COMPANY of specified volumes of activity;
NOW, THEREFORE, intending to be legally bound, and in consideration for the
issuance by COMPANY of the shares to PJC in consideration of its contributions,
the parties agree as follows:
1. COMPANY shall issue to PJC, and PJC accepts as full compensation for its
contributions, 500,000 shares of Common Stock of COMPANY, subject nevertheless
to the terms and conditions of this Agreement.
2. COMPANY and PJC hereby appoint and designate Xxxxxx Xxxxxxx, Esq., with
offices at 00 Xxxxxxxxxxx Xxxx, Xxxxxxxx, XX 00000 as "ESCROW AGENT" hereunder
for the purpose set forth herein and ESCROW AGENT accepts such appointment.
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3. COMPANY shall immediately issue a certificate for 400,000 shares to PJC (or 4
certificates for 100,000 shares each) for services already rendered, and shall
deliver 1 certificates for 100,000 shares, with an issuance date of February 12,
2002, to the ESCROW AGENT.
4. (a) The COMPANY and PJC authorize ESCROW AGENT to act pursuant to the terms
of this Agreement. In the event of the disability, death, inability to act or
resignation of ESCROW AGENT, PJC and the COMPANY shall select a bank, trust
company or other appropriate person to act as substitute escrow agent hereunder.
In such event, COMPANY shall be liable for any service fees and costs
notwithstanding Paragraph 8(a) below.
(b) The term "ESCROW AGENT" as used herein is used merely for convenience as PJC
recognizes and agrees that the ESCROW AGENT is acting as agent for the COMPANY
for the protection of investors and PJCs.
(c) The COMPANY and PJC hereby agree to deposit the 100,000 shares (hereinafter
"SHARES") with the ESCROW AGENT.
(d) ESCROW AGENT shall hold and dispose of the SHARES in accordance with the
terms and provisions of this Agreement.
(e) ESCROW AGENT shall keep and preserve the SHARES pending delivery to PJC or
the return of the SHARES to the COMPANY as provided below or until tender into
court as provided in Paragraph 6 below.
(f) Upon delivery and/or return of all of the SHARES as provided in Paragraph 4
above, all obligations between PJC and the COMPANY on the one hand, and ESCROW
AGENT on the other, shall cease.
5. The 400,000 shares being issued and delivered to PJC shall be deemed vested
and fully-owned by PJC and such shares shall not be subject to return or
cancellation or to the terms and conditions of the Agreement.
6. (a) The 100,000 shares being issued to PJC and delivered to the ESCROW AGENT
shall be subject to return and cancellation unless such shares are earned-out
pursuant to the terms and conditions of this Agreement.
(b) The number of shares of the escrowed (100,000 shares, or 1 certificate for
100,000 shares) of COMPANY's Common Stock to be released to PJC by ESCROW AGENT
based upon a determination of COMPANY in accordance of subparagraph (c) of this
paragraph with such determinations commencing with the month ended July 31,
2002.
(c) An authorization letter stating the COMPANY's determination shall be
prepared, in the form of letter attached hereto as Exhibit "A", in order for the
shares to be released for each authorization letter must be executed by no fewer
than two of COMPANY's Directors and sent to the offices of ESCROW AGENT via
facsimile or regular mail within three (3) business days of the end of the
month.
(d) Upon receipt of such authorization letter ESCROW AGENT shall immediately
release that month's certificate to PJC.
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(e) In the event that any shares have not been released and delivered following
release by the Directors of their authorization letter, the ESCROW AGENT shall
deliver the remaining shares to the COMPANY for cancellation and return to the
status of authorized and unissued shares.
7. In the event of a merger, acquisition, reorganization or recapitalization of
COMPANY, the shares and all other consideration received in respect to the
SHARES shall be delivered and, or in the alternative, paid to ESCROW AGENT. Upon
receipt of such consideration in full, ESCROW AGENT shall release and deliver
the SHARES to PJC or other persons entitled thereto under the circumstances and
ESCROW AGENT shall hold the substituted shares and other consideration pursuant
to the terms of this Agreement.
8. (a) There shall be no fee or service charge payable to the ESCROW AGENT for
serving in that capacity under the terms of this Agreement.
(b) PJC and the COMPANY jointly and severally hereby agree to indemnify and hold
harmless ESCROW AGENT against any and all losses, claims, damages, liabilities
and expenses, including reasonable costs of investigation and counsel fees and
disbursements, which may be imposed upon ESCROW AGENT or incurred by ESCROW
AGENT in connection with his acceptance of appointment as ESCROW AGENT
hereunder, or the performance of his duties hereunder, including any litigation
arising from this Agreement or involving the subject matter hereof.
9. (a) In performing any of its duties hereunder, ESCROW AGENT shall not incur
any liability to anyone for damages, losses or expenses, except for willful
default or breach of trust, and it shall accordingly not incur any such
liability with respect (i) to any action taken or omitted in good faith upon
advice of its counsel or counsel for the parties given with respect to any
questions relating to its duties and responsibilities as ESCROW AGENT under this
Agreement, or (ii) to any action taken or omitted in reliance upon any
instrument, including any written notice or instruction provided for in this
Agreement, not only as to its due execution and the validity and effectiveness
of its provisions but also to the truth and accuracy of any information
contained therein, which ESCROW AGENT shall in good faith believe to be genuine,
to have been signed or presented by a proper person or persons, and to conform
with the provisions of this Agreement.
(b) In the event of a dispute between any of the parties hereto sufficient in
the discretion of the ESCROW AGENT to justify its doing so, ESCROW AGENT shall
be entitled to tender into the registry or custody of any court of competent
jurisdiction, the shares and all money or other property in his hands under this
Agreement, together with such legal pleadings as he deems appropriate, and
thereupon be discharged from all further duties and liabilities under this
Agreement. Any such legal action may be brought in such court as ESCROW AGENT
shall determine has jurisdiction thereof.
10. (a) Until ESCROW AGENT shall have proceeded to release and/or return the
shares as provided in Paragraph 4 above, PJC shall be entitled to: vote the
shares and to transfer, assign and otherwise have and exercise all rights of
ownership therein; but always subject to the terms and conditions of this
Agreement. Stock dividends shall be forthwith delivered to ESCROW AGENT.
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(b) All dividends and distributions with respect to the shares, including stock
dividends, shall be paid to the ESCROW AGENT who shall hold such subject to the
terms and conditions of this Agreement and dispose of such as otherwise provided
for the shares themselves.
11. All notices required hereunder shall be sent by certified mail, return
receipt requested, or by registered mail to PJC, the COMPANY or ESCROW AGENT (as
may be applicable) at the addresses listed on page 1 hereof or to such other
address as has been previously furnished in writing.
12. This Agreement shall be binding upon and shall inure to the benefit of the
parties and their successors, assigns, heirs, legal representatives, executors
and administrators.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year
first above written.
WITNESS:
CONCENTRAX, INC.
/S/ XXXX XXXXXXX
-----------------------------
XXXX XXXXXXX, PRESIDENT
PJC ASSOCIATES, INC.
/S/ XXXX XXXXXX
-----------------------------
XXXX XXXXXX
ATTEST:
BY: /S/ XXXX XXXXX
------------------
/S/ ILLEGIBLE
-------------
SECRETARY
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EXHIBIT A
TO PERFORMANCE EARN-OUT AGREEMENT
Concentrax, Inc.
000 Xxx Xxxx
Xxxxxxx, Xxxxx 00000
Xxxxxx Xxxxxxx, Esq.
Escrow Agent for CTRX and PJC
00 Xxxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
SENT VIA FACSIMILE TO (000) 000-0000
Dear Xxxxxx:
Based upon our review of the performance of PJC Associates, Inc., we, as
Directors of Concentrax, Inc., with the authority vested in by the Performance
Earn Out Agreement of February 12, 2002, hereby approve the release of
certificate number ______, representing shares earned for June 2002 to PJC
Associates, Inc.
This execution and mailing of this letter to you, our Escrow Agent, indicates
our satisfaction with the performance of PJC Associates, Inc. for the month. To
be valid, the letter must be signed by two of the Company's active Directors.
Upon your receipt of this letter, you are authorized to release certificate
number _____ to PJC Associates, Inc. via overnight courier to the following
address:
PJC Associated, Inc.
0000 Xxx Xxxxxxx Xxxx, #000X
Xxxxxxxx, Xxx Xxxx 00000
Date:
WITNESS:
CONCENTRAX, INC.
XXXX XXXXXXX, PRESIDENT, AND DIRECTOR
__________________________, Director
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