EXHIBIT 1.2
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this "Agreement") is made and entered into as of
the 1st day of October, 2007, by and among XxxxxXxx Technologies, Inc., a
Delaware corporation (the "Buyer"), Xxxxx Products, Inc., an Iowa corporation
(the "Company"), the shareholders of the Company (each individually, a "Seller"
and collectively, the "Sellers") who are parties hereto and listed on Exhibit A
to this Agreement, Xxxxx X. Xxxxxx, as representative of the Sellers (the
"Sellers' Representative"), and Xxxxxx, Xxxxxxx and Xxxxxx, P.C. (the "Escrow
Agent").
WHEREAS, the Buyer, the Company and the Sellers have entered into a Share
Exchange Agreement dated as of October 1, 2007 (the "Exchange Agreement"),
pursuant to which the Sellers are selling to the Buyer all of the shares of the
Voting Common Stock, Type A, without par value, of the Company owned by them to
the Buyer in exchange for the issuance by the Buyer of up to an aggregate of
8,000,000 shares (the "XxxxxXxx Shares") of the Buyer's common stock, par value
$0.01 per share (the "Buyer's Common Stock");
WHEREAS, the Exchange Agreement contemplates the establishment of an
escrow arrangement to secure rights to indemnification of the Buyer under the
Exchange Agreement; and
WHEREAS, pursuant to Section 7.1 of this Agreement, Xxxxx X. Xxxxxx has
been irrevocably appointed to serve as the Sellers' Representative for, among
other things, administration of the provisions of this Agreement and of Article
VI of the Exchange Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual covenants,
agreements and provisions set forth in this Agreement, the parties hereto agree
as follows:
ARTICLE I
DEFINED TERMS
Section 1.1 Defined Terms. Capitalized terms used in this Agreement and
not otherwise defined shall have the meanings given to them in the Exchange
Agreement.
ARTICLE II
ESCROW AND INDEMNIFICATION
Section 2.1 Shares Placed in Escrow. At the Closing, and in accordance
with the Exchange Agreement, the Buyer shall issue and deliver to the transfer
agent for the Buyer's Common Stock (the "Transfer Agent") irrevocable
instructions to issue to the Escrow Agent a certificate representing 800,000
XxxxxXxx Shares (the "Escrow Shares"), such Shares to be held in escrow on
behalf of the Sellers in accordance with this Agreement. Each Seller shall be
deemed to be the beneficial owner of that number of Escrow Shares which is set
forth opposite such Seller's name on Exhibit A hereto. Exhibit A may be amended
from time to time pursuant to the terms of this Agreement. The Escrow Shares
shall collectively constitute an escrow fund (the "Escrow Fund") with respect to
the indemnification rights of Buyer under the Exchange Agreement. The Escrow
Agent agrees to accept delivery of the Escrow Fund and to hold the Escrow Fund
in an escrow account (the "Escrow Account"), subject to the terms and conditions
of this Agreement.
Section 2.2 Voting of Escrow Shares. The Escrow Agent shall have no duty
to exercise any voting rights with respect to the Escrow Shares unless and until
it shall have been instructed in writing by one or more Sellers. In the event
that one or more Sellers provides written instructions with respect to the
voting of the Escrow Shares beneficially owned by such Seller(s) (as set forth
on Exhibit A) with respect to any matter that may be submitted to a vote of the
Buyer's stockholders, the Escrow Agent shall use its reasonable commercial
efforts to vote the Escrow Shares beneficially owned by such Seller(s) in
accordance with such written instructions.
Section 2.3 Dividends, Etc.
(a) Ordinary cash dividends, if any, paid to the Escrow Agent in
respect of the Escrow Shares may, at the direction of the Sellers'
Representative, be distributed to the respective Sellers in accordance with each
Seller's percentage interest in the Escrow Fund as set forth on Exhibit A from
time to time, free and clear of any rights of the Buyer created by this
Agreement.
(b) The parties agree that any shares of the Buyer's Common Stock or
other property (other than ordinary cash dividends) distributable or issuable
(whether by way of dividend, stock split or otherwise) in respect of or in
exchange for any Escrow Shares (including pursuant to or as a part of a merger,
consolidation, acquisition of property or stock, reorganization or liquidation
involving the Buyer) shall not be distributed or issued to the beneficial owners
of such Escrow Shares, but rather shall be distributed or issued to and held by
the Escrow Agent in the Escrow Account as part of the Escrow Fund. Any
securities or other property received by the Escrow Agent in respect of any
Escrow Shares held in escrow as a result of any stock split or combination of
shares of the Buyer's Common Stock, payment of a stock dividend or other stock
distribution in or on shares of the Buyer's Common Stock, or change of the
Buyer's Common Stock into any other securities pursuant to or as a part of a
merger, consolidation, acquisition of property or stock, reorganization or
liquidation involving Buyer, or otherwise, shall be held by the Escrow Agent as,
and shall be included within the definition of, Escrow Shares.
Section 2.4 Transferability. The interests of the Sellers in the Escrow
Fund and in the Escrow Shares shall not be assignable or transferable, other
than by operation of law. No assignment or transfer of any of such interests by
operation of law shall be recognized or given effect until the Buyer and the
Escrow Agent shall have received written notice of such assignment or transfer.
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Section 2.5 Fractional Shares. No fractional shares of the Buyer's Common
Stock or other securities shall be retained in or released from the Escrow
Account pursuant to this Agreement. In connection with any release of Escrow
Shares from the Escrow Account, the Buyer and the Escrow Agent shall be
permitted to "round down" or to follow such other rounding procedures as the
Buyer reasonably determines to be appropriate in order to avoid retaining any
fractional shares in the Escrow Account and in order to avoid releasing any
fractional shares from the Escrow Account.
Section 2.6 Trust Fund. The Escrow Fund shall be held as a trust fund and
shall not be subject to any lien, attachment, trustee process or any other
judicial process of any creditor of any Seller or of any party hereto. The
Escrow Agent shall hold and safeguard the Escrow Fund until the Warranty
Termination Date; provided, however, that if the Escrow Agent has received from
the Buyer a Claim Notice (as such term is defined below) setting forth a claim
that has not been resolved by the Warranty Termination Date, then the Escrow
Agent shall hold and safeguard the Escrow Fund until the claim has been resolved
and the Escrow Fund has been released in accordance with this Agreement.
ARTICLE III
ADMINISTRATION OF ESCROW ACCOUNT
Except as otherwise provided herein, the Escrow Agent shall administer the
Escrow Account as follows:
Section 3.1 Claim Notice. If the Buyer has or claims to have incurred or
suffered damages for which it is or may be entitled to indemnification under
Section 6.1, 6.2 or 6.3 of the Exchange Agreement, the Buyer may, on or prior to
the first anniversary of the Closing Date (the "Warranty Termination Date"),
deliver a claim notice (a "Claim Notice") to the Sellers' Representative and to
the Escrow Agent. Each Claim Notice shall (a) allege the existence of an
inaccuracy in or breach of a representation, warranty or covenant contained in
the Exchange Agreement, (b) contain a brief description of the circumstances
supporting the Buyer's belief that there is or has been such an inaccuracy or
breach, and (c) to the extent possible, contain a good faith, non-binding,
preliminary estimate of the amount of the damages the Buyer claims to have so
incurred or suffered (the "Claimed Amount").
Section 3.2 Response Notice. Within 30 days after receipt by the Sellers'
Representative of a Claim Notice, the Sellers' Representative may deliver to the
Buyer and to the Escrow Agent a written response (the "Response Notice") in
which the Sellers' Representative either: (a) agrees that Escrow Shares (or
other property held in the Escrow Account) collectively having a "Stipulated
Value" (as defined below) equal to the full Claimed Amount may be released from
the Escrow Account to the Buyer; (b) agrees that Escrow Shares (or other
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property held in the Escrow Account) collectively having a Stipulated Value
equal to part, but not all, of the Claimed Amount (the "Agreed Amount") may be
released from the Escrow Account to the Buyer; or (c) indicates that no part of
the Escrow Fund may be released from the Escrow Account to the Buyer in respect
of the Claimed Amount. Any part of the Claimed Amount that is not agreed to be
released to the Buyer pursuant to the Response Notice shall be the "Contested
Amount." If a Response Notice is not received by the Escrow Agent within such
30-day period, then the Sellers' Representative shall be conclusively deemed to
have agreed that Escrow Shares (or other property held in the Escrow Account)
collectively having a Stipulated Value equal to the full Claimed Amount may be
released to the Buyer from the Escrow Account.
Section 3.3 Release of Shares. If the Sellers' Representative delivers a
Response Notice agreeing that Escrow Shares (or other property held in the
Escrow Account) collectively having a Stipulated Value equal to the full Claimed
Amount may be released from the Escrow Account to the Buyer, or if the Sellers'
Representative does not deliver a Response Notice on a timely basis in
accordance with Section 3.2, the Escrow Agent shall within ten business days
following the receipt of such Response Notice (or, if the Escrow Agent has not
received a Response Notice, within ten business days following the expiration of
the 30-day period referred to in Section 3.2), deliver to the Buyer such Escrow
Shares (or other property). Such payment shall be deemed to be made in full
satisfaction of the claim described in such Claim Notice.
Section 3.4 Partial Release. If the Sellers' Representative delivers a
Response Notice agreeing that Escrow Shares (or other property held in the
Escrow Account) collectively having a Stipulated Value equal to less than the
full Claimed Amount may be released from the Escrow Account to the Buyer, the
Escrow Agent shall, within ten business days following the receipt of such
Response Notice, deliver to the Buyer Escrow Shares (or other property held in
the Escrow Account) collectively having a Stipulated Value 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, but shall count toward the satisfaction of
the claim described in such Claim Notice.
Section 3.5 Contested Amounts. If the Sellers' Representative delivers a
Response Notice indicating that there is a Contested Amount, the Sellers'
Representative and the Buyer shall attempt in good faith to resolve the dispute
related to the Contested Amount. If the Buyer and the Sellers' Representative
resolve such dispute, such resolution shall be binding on all of the Sellers and
the Buyer and a settlement agreement shall be signed by the Buyer and the
Sellers' Representative and sent to the Escrow Agent, which shall, upon receipt
thereof, if applicable, release Escrow Shares (or other property held in the
Escrow Account) from the Escrow Account in accordance with such agreement.
Unless and until the Escrow Agent shall receive written notice that any such
dispute has been resolved by the Buyer and the Sellers' Representative, the
Escrow Agent may assume without inquiry that such dispute has not been resolved.
Section 3.6 Arbitration. If the Sellers' Representative and the Buyer are
unable to resolve the dispute relating to any Contested Amount within 60 days
after the delivery of the Claim Notice (the "Initial Resolution Period"), then
the claim described in the Claim Notice shall be settled by binding arbitration
in accordance with the provisions of Section 7.5 of the Exchange Agreement.
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Arbitration will be conducted by a single arbitrator, mutually selected by the
Buyer and the Sellers' Representative; provided, however, that if the Buyer and
the Sellers' Representative fail to mutually select an arbitrator within ten
business days following the expiration of the Initial Resolution Period, then
arbitration will be conducted by three arbitrators: one selected by the Buyer;
one selected by the Sellers' Representative; and the third selected by the first
two arbitrators. If the Buyer or the Sellers' Representative fails to select an
arbitrator within 10 business days following the expiration of the Initial
Resolution Period, then the other shall be entitled to select the second
arbitrator. The decision of the arbitrator(s) shall relate solely: (a) to
whether the Buyer is entitled to recover the Contested Amount (or a portion
thereof), and the portion of such Contested Amount the Buyer is entitled to
recover; and (b) to the determination of the non-prevailing party as provided
below. The final decision of the arbitrator(s) shall be furnished to the
Sellers' Representative, the Buyer and the Escrow Agent in writing and shall
constitute a conclusive determination of the issue(s) in question, binding upon
the Sellers' Representative, the Sellers, the Buyer and the Escrow Agent and
shall not be contested by any of them. The non-prevailing party in any
arbitration shall pay the reasonable expenses (including attorneys' fees) of the
prevailing party, any additional reasonable fees and expenses (including
reasonable attorneys' fees) of the Escrow Agent, and the fees and expenses
associated with the arbitration (including the arbitrators' fees and expenses).
For purposes of this Section 3.6, the non-prevailing party shall be determined
solely by the arbitrator(s). Any amounts payable by the Sellers shall be paid
out of Escrow Shares (or other property held in the Escrow Account) pursuant to
the written decision of the arbitrator(s).
Section 3.7 Release Following Resolution of Arbitration. The Escrow Agent
shall release Escrow Shares (or other property held in the Escrow Account) from
the Escrow Account in connection with any Contested Amount within ten business
days after the delivery to it of: (a) a copy of a settlement agreement executed
by the Buyer and the Sellers' Representative setting forth instructions to the
Escrow Agent as to the number of Escrow Shares (or other property held in the
Escrow Account), if any, to be released from the Escrow Account, with respect to
such Contested Amount; or (b) a copy of the award of the arbitrator(s) referred
to and as provided in Section 3.6 setting forth instructions to the Escrow Agent
as to the number of Escrow Shares (or other property held in the Escrow
Account), if any, to be released from the Escrow Account, with respect to such
Contested Amount.
Section 3.8 Pro Rata Reduction; Exceptions.
(a) Any Escrow Shares released from the Escrow Account as a result
of a Claim Notice with respect to a claim for indemnification under Section 6.2
of the Exchange Agreement shall be deemed to reduce the Escrow Shares pro rata
with respect to each Seller in accordance with each Seller's percentage interest
in the Escrow Fund as set forth on Exhibit A.
(b) Any Escrow Shares released from the Escrow Account as a result
of a Claim Notice with respect to a claim for indemnification under Section 6.1
of the Exchange Agreement shall be deemed to reduce the Escrow Shares
beneficially owned by the particular Seller or Sellers from whom indemnification
is sought, and shall not reduce the Escrow Shares beneficially owned by any
other Seller.
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(c) Any Escrow Shares released from the Escrow Account as a result
of a Claim Notice with respect to a claim for indemnification under Section 6.3
of the Exchange Agreement shall be deemed to reduce the Escrow Shares
beneficially owned by the PlayTribe Sellers pro rata with respect to each
PlayTribe Seller in accordance with each PlayTribe Seller's percentage interest
in the Escrow Fund as set forth on Exhibit A, and shall not reduce the Escrow
Shares beneficially owned by any other Seller.
(d) Upon each distribution of Escrow Shares pursuant to Section 3.8,
the Buyer shall deliver to the Sellers' Representative and the Escrow Agent a
revised version of Exhibit A, setting forth the new number of Escrow Shares held
in the Escrow Fund, the new number of Escrow Shares beneficially owned by each
Seller, and each Seller's new percentage interest in the Escrow Fund.
ARTICLE IV
RELEASE OF ESCROW SHARES
Section 4.1 Release Following Warranty Termination Date. Within 20
business days after the Warranty Termination Date, the Escrow Agent shall
distribute or cause to be distributed to each of the Sellers at such Seller's
address set forth on Exhibit A such Seller's pro-rata portion of the Escrow
Shares (or other property held in the Escrow Account), if any, then held in
escrow based on the percentage interests in the Escrow Fund set forth on Exhibit
A (as revised from time to time pursuant to Section 3.8); provided, however,
that if prior to the Warranty Termination Date, the Buyer has given a Claim
Notice containing a claim that has not been resolved prior to the Warranty
Termination Date in accordance with Article III, the Escrow Agent shall retain
in the Escrow Account after the Warranty Termination Date Escrow Shares
collectively having a Stipulated Value equal to 120% of the Claimed Amount or
Contested Amount, as the case may be, with respect to all claims that have not
then been resolved. The parties acknowledge that it is appropriate to retain
more than 100% of the Claimed Amount in the Escrow Account in recognition of the
fact that the Buyer may have underestimated the aggregate amount of the actual
and potential damages arising from a particular breach or other matter.
Section 4.2 Delivery to Transfer Agent.
(a) Whenever a distribution of Escrow Shares is to be made from the
Escrow Account, the Escrow Agent shall deliver to the Transfer Agent one or more
stock certificates, representing collectively at least that number of Escrow
Shares which is to be released, together with written instructions for the
Transfer Agent to (i) register the appropriate numbers of Escrow Shares in the
name(s) of the appropriate person(s) and to deliver the new certificate(s) to
such person(s), and (ii) register the balance, if any, of the Escrow Shares
represented by such surrendered certificates in the name of the Escrow Agent and
to deliver the new certificate representing such balance to the Escrow Agent.
For purposes of this Agreement, the Escrow Agent shall be deemed to have
delivered Escrow Shares to the person entitled to them when the Escrow Agent has
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delivered such certificate(s) to the Transfer Agent with the foregoing
instructions. Distributions of Escrow Shares shall be made to Buyer or the
Sellers, as appropriate, at the addresses set forth on Exhibit A. Whenever a
distribution is to be made to the Sellers, pro rata distributions shall be made
to each of them based on the percentage interests in the Escrow Fund and at
their addresses set forth on Exhibit A (as revised from time to time pursuant to
Section 3.8).
(b) As of the date of this Agreement, the Transfer Agent is American
Stock Transfer & Trust Company, Inc. and the mailing address of the Transfer
Agent is 00 Xxxxxx Xxxx, Xxxxx Xxxxx, Xxx Xxxx, XX 00000. The Buyer will not
change transfer agents without giving the Escrow Agent and the Sellers'
Representative 30 days' prior written notice of such change.
ARTICLE V
VALUATION OF ESCROW SHARES, ETC.
Section 5.1 Stipulated Value. For purposes of this Agreement, and except
as provided in Section 5.2, the "Stipulated Value" of the Escrow Shares shall be
deemed to be $0.32 per Escrow Share, irrespective of the actual fair market
value of such Escrow Shares. The Stipulated Value of any non-cash property
(other than Escrow Shares) received by the Escrow Agent in exchange for Escrow
Shares and held in the Escrow Account shall be equal to the Stipulated Value of
the Escrow Shares for which such property was exchanged.
Section 5.2 Stock Splits. All numbers contained in, and all calculations
required to be made pursuant to, this Agreement with respect to the Escrow
Shares shall be adjusted as appropriate to reflect any stock split, reverse
stock split, stock dividend or similar transaction effected by the Buyer after
the date hereof; provided, however, that the Escrow Agent shall have received
notice of such stock split or other action and shall have received the
appropriate number of additional shares of the Buyer's Common Stock or other
property pursuant to Section 2.3. In the event of any such stock split or other
similar occurrence, the Buyer shall deliver to the Sellers' Representative and
the Escrow Agent a revised Exhibit A setting forth the new number of Escrow
Shares held in the Escrow Fund, the new number of Escrow Shares beneficially
owned by each Seller, and each Seller's new percentage interest in the Escrow
Fund. Unless and until the Escrow Agent receives the certificates representing
additional shares of the Buyer's Common Stock or other property pursuant to
Section 2.3, the Escrow Agent may assume without inquiry that no such stock or
other property has been or is required to be issued with respect to Escrow
Shares.
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ARTICLE VI
CONCERNING THE ESCROW AGENT
Section 6.1 Fees and Expenses.
(a) The Escrow Agent will be entitled to reasonable compensation for
its ordinary services under this Agreement, such services to be charged at
hourly rates for its legal professionals not in excess of those hourly rates
which it charged the Company prior to the execution of this Agreement. The
Escrow Agent shall not be entitled to compensation or reimbursement for
administrative services performed by secretaries or other non-lawyer personnel,
but shall be entitled to reimbursement for reasonable and documented
out-of-pocket expenses (not to exceed $500 in the aggregate without the prior
consent of the Buyer) incurred in the performance of its duties hereunder. All
such fees and expenses shall be paid by the Buyer.
(b) In the event that the Escrow Agent renders any services jointly
requested by the Buyer and the Sellers' Representative that are not provided for
in this Agreement or there is any assignment of any interest in the subject
matter of this escrow or modification of any interest, the Escrow Agent will be
reasonably compensated for such extraordinary services (to be charged at its
then-prevailing standard hourly rates for legal services), and will be
reimbursed for all reasonable costs, third-party, unaffiliated attorneys' fees
and expenses occasioned thereby, which compensation, costs, fees and expenses
shall be paid by the party requesting such additional service or whose interest
is assigned or modified.
Section 6.2 Responsibility of the Escrow Agent.
(a) If any party to this Agreement disagrees on anything connected
with this escrow, (i) the Escrow Agent will not have to settle the matter, (ii)
the Escrow Agent may wait for a settlement by appropriate legal proceedings or
other means it may require, and in such event it will not be liable for interest
or damages, and (iii) the Escrow Agent is entitled to hold the assets deposited
in the Escrow Account pending settlement of the disagreement by any of the above
means.
(b) The Escrow Agent is to act as a depository agent only and is
hereby relieved of any liability in connection with any representations made by
the other parties hereto or any of their agents.
Section 6.3 Limitation of Escrow Agent's Liability.
(a) The Escrow Agent undertakes to perform such duties as are
specifically set forth in this Agreement only and shall have no duty under any
other agreement or document (other than the Exchange Agreement), and no implied
covenants or obligations shall be read into this 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
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inaction except for its own gross negligence or willful misconduct. In all
questions arising under this 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 upon such advice the Escrow Agent shall not be liable to
anyone. In no event shall the Escrow Agent be liable for incidental, punitive or
consequential damages.
(b) The Buyer, the Company, the Sellers and the Sellers'
Representative hereby agree to indemnify the Escrow Agent and its shareholders,
officers, directors, employees and agents for, and hold it and them harmless
against, any loss, liability or expense arising under this Agreement, including,
but not limited to reasonable attorneys fees and expenses, unless such loss,
liability or expense is due to the gross negligence or willful misconduct on the
part of the Escrow Agent. This right of indemnification shall survive the
termination of this Agreement and the resignation of the Escrow Agent.
Section 6.4 Acknowledgement and Waiver of Potential Conflict. The Buyer,
the Company, the Sellers' Representative and the Sellers each acknowledge and
agree that (a) the Escrow Agent has served as legal counsel to the Company and
certain Sellers in connection with the negotiation and execution of the Exchange
Agreement and the other agreements and documents executed in connection
therewith and the transactions contemplated thereby; (b) the Escrow Agent may be
deemed to have a conflict of interest in serving as Escrow Agent hereunder; and
(c) the Escrow Agent has agreed to serve as Escrow Agent hereunder at the mutual
request of, and as an accommodation to, the Buyer, the Company, the Sellers'
Representative and the Sellers. Accordingly, the Buyer, the Company, the
Sellers' Representative and the Sellers each (i) irrevocably waive any such
conflict, and any objection thereto, to the fullest extent of the law, and (ii)
agree not to raise any objection to the existence of such conflict of interest
in connection with the performance of this Escrow Agreement or any dispute among
the parties with respect thereto.
Section 6.5 Successor Escrow Agent. In the event the Escrow Agent becomes
unavailable or unwilling to continue as escrow agent under this Agreement, the
Escrow Agent may resign and be discharged from its duties and obligations
hereunder by giving its written resignation to the Buyer and the Sellers'
Representative. Such resignation shall take effect not less than 30 days after
such notice is given. In such event, the Buyer may appoint a successor Escrow
Agent. If the Buyer fails to appoint a successor Escrow Agent within 15 days
after receiving the Escrow Agent's written resignation, the Escrow Agent shall
have the right to apply to a court of competent jurisdiction for the appointment
of a successor Escrow Agent. The successor Escrow Agent shall execute and
deliver to the Escrow Agent 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 the Buyer as to the transfer of the
Escrow Fund to a successor escrow agent.
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ARTICLE VII
CONCERNING THE SELLERS' REPRESENTATIVE
Section 7.1 Appointment of Sellers' Representative. The Sellers hereby
approve the indemnification and escrow terms set forth in the Exchange Agreement
and this Agreement and the appointment of Xxxxx X. Xxxxxx as the Sellers'
Representative, to give and receive notices and communications, to authorize
delivery to the Buyer of Escrow Shares or other property from the Escrow Fund,
to object to such deliveries, to agree to, negotiate, enter into settlements and
compromises of, and demand dispute resolution pursuant to Article III and comply
with orders of courts and awards of arbitrator(s) with respect to claims of the
Buyer hereunder, and to take all actions necessary or appropriate in the
reasonable judgment of the Sellers' Representative for the accomplishment of the
foregoing.
Section 7.2 Limitation of Sellers' Representative's Liability.
(a) The Sellers' Representative shall incur no liability with
respect to any action taken by him or for any inaction on his part except for
his own gross negligence or willful misconduct.
(b) The Sellers hereby agree to indemnify the Sellers'
Representative for, and hold him harmless against, any loss, liability or
expense arising under this Agreement or otherwise, including, but not limited to
reasonable attorneys fees and expenses, unless such loss, liability or expense
is due to the gross negligence or willful misconduct on the part of the Sellers'
Representative. This right of indemnification shall survive the termination of
this Agreement.
Section 7.3 Successor Sellers' Representatives. If the Sellers'
Representative or any successor shall die, resign or become unable to act as the
Sellers' Representative, a replacement (who shall be reasonably satisfactory to
the Buyer) shall promptly be appointed by a writing signed by Sellers who hold a
majority in interest of the Escrow Fund. The Buyer and the Escrow Agent shall be
notified promptly in writing of such appointment. Unless and until the Buyer and
the Escrow Agent shall have received written notice of the appointment of a
successor Sellers' Representative, the Buyer and the Escrow Agent shall be
entitled to rely on, and shall be fully protected relying on, the power and
authority of the Sellers' Representative to act on behalf of the Sellers.
ARTICLE VIII
GENERAL PROVISIONS; ADDITIONAL AGREEMENTS
Section 8.1 Termination. This Agreement shall terminate on the Warranty
Termination Date or, if earlier, upon the release by the Escrow Agent of the
entire Escrow Fund in accordance with this Agreement; provided, however, that if
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the Escrow Agent has received from the Buyer a Claim Notice setting forth a
claim that has not been resolved by the Termination Date, then this Agreement
shall continue in full force and effect until the claim has been resolved and
the Escrow Fund released in accordance with this Agreement.
Section 8.2 Notices. All notices, requests, demands, claims and other
communications required or permitted to be given hereunder shall be in writing
and shall be sent by (a) personal delivery (effective upon delivery), (b)
facsimile (effective on the next day after transmission), (c) recognized
overnight delivery (effective on the next day after delivery to the service) or
(d) registered or certified mail, return receipt requested and postage prepaid
(effective on the third day after being so mailed), in each case addressed to
the intended recipient as set forth below:
If to the Buyer:
XxxxxXxx Technologies, Inc.
0 Xxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xx. Xxxxxxx X. Xxxxx
Facsimile: (000) 000-0000
With a copy (which shall not constitute notice) to:
Xxxxx, Xxxxxx-Xxxxx & Xxxxxxxxx, P.C.
Reservoir Place
0000 Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxx
Facsimile: (000) 000-0000
If to the Sellers:
To their respective addresses set forth on Exhibit A hereto.
With a copy (which shall not constitute notice) to:
Xxxxxx, Xxxxxxx and Xxxxxx, P.C.
000 Xxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxxx, Xxxx 00000
Attention: Xxxx X. Xxxxxxx
Facsimile: (000) 000-0000
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If to the Sellers' Representative:
Xxxxx X. Xxxxxx
0000 X.X. 00xx Xxxxx
Xxxx Xxxx, Xxxx 00000
Facsimile: (000) 000-0000
With a copy (which shall not constitute notice) to:
Xxxxxx, Xxxxxxx and Xxxxxx, P.C.
000 Xxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxxx, Xxxx 00000
Attention: Xxxx X. Xxxxxxx
Facsimile: (000) 000-0000
If to the Escrow Agent:
Xxxxxx, Xxxxxxx and Xxxxxx, P.C.
000 Xxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxxx, Xxxx 00000
Attention: Xxxx X. Xxxxxxx
Facsimile: (000) 000-0000
Any party may change its address for receiving notices by giving written notice
of such change to the other party in accordance with this Section 8.2.
Section 8.3 Waiver of Jury Trial. If this Agreement is found to be not
subject to arbitration, each party irrevocably agrees that all legal proceedings
will be tried in a court of competent jurisdiction by a judge without a jury.
Each party waives any right to a jury trial in any such proceeding and agrees to
take, or not to take, such action as is appropriate to give effect to this
provision.
Section 8.4 Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall constitute one in the same instrument.
Section 8.5 Amendment; Waiver. This Agreement may be amended, modified or
supplemented by a writing signed by the parties against whom enforcement of any
amendment is sought. Any party hereto may, by a written signed instrument,
extend the time for or waive the performance of any of the obligations of any
other party hereto or waive compliance by such other party with any of the
covenants or conditions contained herein. Any amendment, modification,
supplement or waiver executed and delivered by the Sellers' Representative shall
be deemed to have been approved by and duly executed and delivered by all of the
Sellers.
12
Section 8.6 Entire Agreement. This Agreement, together with the Exchange
Agreement, constitutes the entire agreement among the parties, and there are no
agreements, understandings, restrictions, warranties, or representations between
the parties other than those set forth or provided for in this Agreement
relating to the subject matter hereof.
Section 8.7 Succession and Assignment. This Agreement shall be binding
upon and inure to the benefit of the parties named herein and their respective
successors and permitted assigns. Except as expressly set forth in this
Agreement, no party may assign either this Agreement or any of its rights,
interests, or obligations hereunder without the prior written approval of the
Buyer and the Sellers' Representative; provided, however, that the Buyer may (i)
assign any or all of its rights and interests hereunder to one or more of its
Affiliates and (ii) designate one or more of its Affiliates to perform its
obligations hereunder (in any or all of which cases the Buyer nonetheless shall
remain responsible for the performance of all of its obligations hereunder).
Section 8.8 Headings. The bold-faced headings contained in this Agreement
are for convenience of reference only, shall not be deemed to be a part of this
Agreement and shall not be referred to in connection with the construction or
interpretation of this Agreement.
Section 8.9 Severability. If any term or other provision of this Agreement
is invalid, illegal or incapable of being enforced by any law or public policy,
all other conditions and provisions of this Agreement shall nevertheless remain
in full force and effect so long as the economic or legal substance of the
transactions contemplated hereby is not affected in any manner adverse to any
party. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in a mutually acceptable manner in order that the
transactions contemplated hereby be consummated as originally contemplated to
the greatest extent possible.
Section 8.10 Governing Law. This Agreement shall be governed in all
respects, including validity, interpretation and effect, by the internal laws of
the Commonwealth of Massachusetts without regard to principles of conflicts of
laws.
Section 8.11 No Presumption. This Agreement shall be construed without
regard to any presumption or rule requiring construction or interpretation
against the party drafting or causing any instrument to be drafted.
Section 8.12 No Third-Party Beneficiaries. This Agreement shall not confer
any rights or remedies upon any person other than the parties and their
respective successors and permitted assigns.
Section 8.13 Tax Reporting Information and Certification of Tax
Identification Numbers.
(a) The parties hereto agree that, for tax reporting purposes, all
interest on or other income, if any, attributable to the Escrow Fund or any
other amount held in escrow by the Escrow Agent pursuant to this Agreement shall
be allocable to the Sellers in accordance with their percentage interests in the
Escrow Fund set forth on Exhibit A as it may be revised from time to time.
13
(b) The Buyer and each of the Sellers agree to provide the Escrow
Agent with certified tax identification numbers for each of them by furnishing
appropriate forms W-9 (or Forms W-8, in the case of non-U.S. persons) and any
other forms and documents that the Escrow Agent may reasonably request
(collectively, "Tax Reporting Documentation") to the Escrow Agent within 30 days
after the date hereof. The parties hereto understand that, if such Tax Reporting
Documentation is not so furnished to the Escrow Agent, the Escrow Agent shall be
required by the Code 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 Agreement, and to immediately remit such withholding to the
Internal Revenue Service.
[The remainder of this page has intentionally been left blank.]
14
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed under seal as of the date first written above.
THE BUYER:
XXXXXXXX TECHNOLOGIES, INC.
By: /s/ Xxxx Xxxxxx
Xxxx Xxxxxx, President and C.E.O.
STATE OF IOWA, POLK COUNTY, SS:
On this 1 day of October, 2007, before me, the undersigned, a Notary
Public in and for said County and State, personally appeared Xxxx Xxxxxx, to be
personally known, who being by me duly sworn, did say that he is the President
and CEO of said corporation; that said instrument was signed on behalf of said
corporation by authority of its Board of Directors; and that the said Xxxx
Xxxxxx as such officer, acknowledged the execution of said instrument to be the
voluntary act and deed of said corporation by it and by them voluntarily
executed.
/s/ Xxxx Xxxxxxx
NOTARY PUBLIC IN AND FOR THE
STATE OF IOWA
THE COMPANY:
XXXXX PRODUCTS, INC.
By: /s/ Xxxxx Xxxxxx
Xxxxx X. Xxxxxx, President
STATE OF IOWA, POLK COUNTY, SS:
On this 27 day of Sept., 2007, before me, the undersigned, a Notary Public
in and for said County and State, personally appeared Xxxxx X. Xxxxxx, to be
personally known, who being by me duly sworn, did say that he is the President
of said corporation; that said instrument was signed on behalf of said
corporation by authority of its Board of Directors; and that the said Xxxxx X.
Xxxxxx as such officer, acknowledged the execution of said instrument to be the
voluntary act and deed of said corporation by it and by them voluntarily
executed.
/s/ Xxxx Xxxxxxx
NOTARY PUBLIC IN AND FOR THE
STATE OF IOWA
THE SELLERS' REPRESENTATIVE:
/s/ Xxxxx Xxxxxx
Xxxxx X. Xxxxxx
STATE OF IOWA, POLK COUNTY, SS:
On this 27 day of Sept., 2007, before me, a Notary Public in and for the
State of Iowa, personally appeared Xxxxx X. Xxxxxx, to me known to be the same
person described in and who executed the foregoing instrument, and acknowledged
that he has executed the same as his voluntary act and deed.
/s/ Xxxx Xxxxxxx
NOTARY PUBLIC IN AND FOR THE
STATE OF IOWA
THE ESCROW AGENT:
XXXXXX, XXXXXXX AND XXXXXX, P.C.
By: /s/ Xxxx Xxxxxxx
Xxxx X. Xxxxxxx, Vice President
STATE OF IOWA, POLK COUNTY, SS:
On this 27 day of Sept., 2007, before me, the undersigned, a Notary Public
in and for said County and State, personally appeared Xxxx X. Xxxxxxx, to be
personally known, who being by me duly sworn, did say that he is the VP of said
corporation; that said instrument was signed on behalf of said corporation by
authority of its Board of Directors; and that the said Xxxx X. Xxxxxxx as such
officer, acknowledged the execution of said instrument to be the voluntary act
and deed of said corporation by it and by them voluntarily executed.
/s/ Xxxxxx X. Twist
NOTARY PUBLIC IN AND FOR THE
STATE OF IOWA
[Notarial Seal]
THE SELLERS:
FIRST CONTINENTAL FINANCIAL, L.L.C.
By: /s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx, Manager
STATE OF IOWA, POLK COUNTY, SS:
On this 27 day of Sept., 2007, before me, the undersigned, a Notary Public
in and for said County and State, personally appeared Xxxxx X. Xxxxxx, to be
personally known, who being by me duly sworn, did say that he is the Manager of
said limited liability company; that said instrument was signed on behalf of
said limited liability company by authority of its Board of Directors; and that
the said Xxxxx X. Xxxxxx as such officer, acknowledged the execution of said
instrument to be the voluntary act and deed of said limited liability company by
it and by them voluntarily executed.
/s/ Xxxx Xxxxxxx
NOTARY PUBLIC IN AND FOR THE
STATE OF IOWA
/s/ Xxxxxx Block
Xxxxxx Block
STATE OF IOWA, POLK COUNTY, SS:
On this 27 day of Sept., 2007, before me, a Notary Public in and for the
State of Iowa, personally appeared Xxxxxx Block, to me known to be the same
person described in and who executed the foregoing instrument, and acknowledged
that he has executed the same as his voluntary act and deed.
/s/ Xxxx Xxxxxxx
NOTARY PUBLIC IN AND FOR THE
STATE OF IOWA
/s/ Xxx Block
Xxx Block
STATE OF IOWA, POLK COUNTY, SS:
On this 27 day of Sept., 2007, before me, a Notary Public in and for the
State of Iowa, personally appeared Xxx Block, to me known to be the same person
described in and who executed the foregoing instrument, and acknowledged that
she has executed the same as her voluntary act and deed.
/s/ Xxxx Xxxxxxx
NOTARY PUBLIC IN AND FOR THE
STATE OF IOWA
/s/ X. X. Xxxxxxx
Xxxxxxx Xxxxxxx
STATE OF IL, XXXXXXX COUNTY, SS:
On this 27 day of Sept., 2007, before me, a Notary Public in and for the
State of IL, personally appeared Xxxxxxx Xxxxxxx, to me known to be the same
person described in and who executed the foregoing instrument, and acknowledged
that he has executed the same as his voluntary act and deed.
/s/ Xxxxx Xxxxxxxx
NOTARY PUBLIC IN AND FOR THE
STATE OF IL
[Notarial Seal]
/s/ Xxxxxxx X Xxxxx
Xxxxxxx X. Xxxxx
STATE OF IOWA, POLK COUNTY, SS:
On this 25 day of September, 2007, before me, a Notary Public in and for
the State of Iowa, personally appeared Xxxxxxx X. Xxxxx, to me known to be the
same person described in and who executed the foregoing instrument, and
acknowledged that he has executed the same as his voluntary act and deed.
/s/ Xxxx Xxxxx
NOTARY PUBLIC IN AND FOR THE
STATE OF IOWA
[Notarial Seal]
/s/ XxXxxx Xxxxxxx
XxXxxx Xxxxxxx
STATE OF IOWA, POLK COUNTY, SS:
On this 1st day of Oct., 2007, before me, a Notary Public in and for the
State of Iowa, personally appeared XxXxxx Xxxxxxx, to me known to be the same
person described in and who executed the foregoing instrument, and acknowledged
that he has executed the same as his voluntary act and deed.
/s/ Xxxxxxx X. Xxxxxxx
NOTARY PUBLIC IN AND FOR THE
STATE OF IOWA
[Notarial Seal]
MODERN BUILDERS, INC.
By: /s/ Xxxx Xxxxxxxxx
Xxxx Xxxxxxxxx, Its President
STATE OF IOWA, XXXXXX COUNTY, SS:
On this 28th day of September, 2007, before me, the undersigned, a Notary
Public in and for said County and State, personally appeared Xxxx Xxxxxxxxx, to
be personally known, who being by me duly sworn, did say that he is the
President of said corporation; that said instrument was signed on behalf of said
corporation by authority of its Board of Directors; and that the said Xxxx
Xxxxxxxxx as such officer, acknowledged the execution of said instrument to be
the voluntary act and deed of said corporation by it and by them voluntarily
executed.
/s/ Xxx Xxxxx
NOTARY PUBLIC IN AND FOR THE
STATE OF IOWA
[Notarial Seal]
OLGLESBY CREATIVE GROUP, L.L.C.
By: /s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx, Its President
STATE OF IOWA, POLK COUNTY, SS:
On this 1st day of October, 2007, before me, the undersigned, a Notary
Public in and for said County and State, personally appeared Xxxxx Xxxxxxx, to
be personally known, who being by me duly sworn, did say that he is the Manager
of said limited liability company; that said instrument was signed on behalf of
said company by authority of its Board of Directors; and that the said
___________________ as such officer, acknowledged the execution of said
instrument to be the voluntary act and deed of said company by it and by them
voluntarily executed.
/s/ Xxxxxxx X. Xxxxxxx
NOTARY PUBLIC IN AND FOR THE
STATE OF IOWA
[Notarial Seal]
XXXXXX FAMILY, L.L.C.
By: /s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx, Manager
STATE OF IOWA, POLK COUNTY, SS:
On this 27 day of Sept., 2007, before me, the undersigned, a Notary Public
in and for said County and State, personally appeared Xxxxx X. Xxxxxx, to be
personally known, who being by me duly sworn, did say that he is the Manager of
said limited liability company; that said instrument was signed on behalf of
said company by authority of its Board of Directors; and that the said Xxxxx X.
Xxxxxx as such officer, acknowledged the execution of said instrument to be the
voluntary act and deed of said company by it and by them voluntarily executed.
/s/ Xxxx Xxxxxxx
NOTARY PUBLIC IN AND FOR THE
STATE OF IOWA
RTN INVESCO, L.C.
By: /s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx, Its Manager
STATE OF MISSOURI, XXXXXX COUNTY, SS:
On this 26th day of September, 2007, before me, the undersigned, a Notary
Public in and for said County and State, personally appeared Xxxxxx X. Xxxxx, to
be personally known, who being by me duly sworn, did say that he is the Manager
of said limited liability company; that said instrument was signed on behalf of
said company by authority of its Board of Directors; and that the said Xxxxxx X.
Xxxxx as such officer, acknowledged the execution of said instrument to be the
voluntary act and deed of said company by it and by them voluntarily executed.
/s/ Xxxx X. X'Xxxxxx
NOTARY PUBLIC IN AND FOR THE
STATE OF MISSOURI
[Notarial Seal]
XXXXX X. XXXXX TRUST:
By: /s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx, Trustee
STATE OF MISSOURI, XXXXXX COUNTY, SS:
On this 26th day of September, 2007, before me, a Notary Public in and for
the State of Missouri, personally appeared Xxxxx X. Xxxxx, to me known to be
known to be the identical person named in and who executed the foregoing
instrument, and acknowledged that the person, as the fiduciary, executed the
instrument as the voluntary act and deed of the person and of the fiduciary.
/s/ Xxxx X. X'Xxxxxx
NOTARY PUBLIC IN AND FOR THE
STATE OF MISSOURI
[Notarial Seal]
/s/ Xxxxx Xxxxxx
Xxxxx Xxxxxx
STATE OF IOWA, POLK COUNTY, SS:
On this 27 day of September, 2007, before me, a Notary Public in and for
the State of Iowa, personally appeared Xxxxx Xxxxxx, to me known to be the same
person described in and who executed the foregoing instrument, and acknowledged
that he has executed the same as his voluntary act and deed.
/s/ Xxxxx Xxxxx
NOTARY PUBLIC IN AND FOR THE
STATE OF IOWA
[Notarial Seal]
XXXXX X. XXXXXX TRUST:
By: /s/ Xxxxx Xxxxxx
Xxxxx X. Xxxxxx, Trustee
STATE OF IOWA, POLK COUNTY, SS:
On this 27 day of Sept., 2007, before me, a Notary Public in and for the
State of Iowa, personally appeared Xxxxx X. Xxxxxx, to me known to be known to
be the identical person named in and who executed the foregoing instrument, and
acknowledged that the person, as the fiduciary, executed the instrument as the
voluntary act and deed of the person and of the fiduciary.
/s/ Xxxx Xxxxxxx
NOTARY PUBLIC IN AND FOR THE
STATE OF IOWA
XXXXXXX M.E. XXXXXX TRUST:
By: /s/ Xxxxxxx M.E. Xxxxxx
Xxxxxxx M.E. Xxxxxx, Trustee
STATE OF IOWA, POLK COUNTY, SS:
On this 28th day of September, 2007, before me, a Notary Public in and for
the State of Iowa, personally appeared Xxxxxxx M.E. Xxxxxx, to me known to be
known to be the identical person named in and who executed the foregoing
instrument, and acknowledged that the person, as the fiduciary, executed the
instrument as the voluntary act and deed of the person and of the fiduciary.
/s/ Xxxxxxx Xxxxxxxxx
NOTARY PUBLIC IN AND FOR THE
STATE OF IOWA
[Notarial Seal]
QTIP TRUST B OF THE
XXXXX FAMILY TRUST DATED
APRIL 5, 1999:
By: /s/ Xxxxxxxx X. Xxxxx
Xxxxxxxx X. Xxxxx, Trustee
STATE OF ARIZONA, MARICOPA COUNTY, SS:
On this 27th day of September, 2007, before me, a Notary Public in and for
the State of Iowa, personally appeared Xxxxxxxx X. Xxxxx, to me known to be
known to be the identical person named in and who executed the foregoing
instrument, and acknowledged that the person, as the fiduciary, executed the
instrument as the voluntary act and deed of the person and of the fiduciary.
/s/ Xxxxxxx X. Xxxxxxxxx
NOTARY PUBLIC IN AND FOR THE
STATE OF ARIZONA
[Notarial Seal]
/s/ Xxxxxxx X. XxXxxxx
Xxxxxxx X. XxXxxxx
STATE OF MISSOURI, XXXXXXX COUNTY, SS:
On this 2nd day of October, 2007, before me, a Notary
Public in and for the State of Missouri, personally appeared Xxxxxxx X.
XxXxxxx, to me known to be the same person described in and who executed the
foregoing instrument, and acknowledged that he has executed the same as his
voluntary act and deed.
/s/ Xx X. Xxxxxxx
NOTARY PUBLIC IN AND FOR THE
STATE OF MISSOURI
[Notarial Seal]
/s/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
STATE OF MISSOURI, XXXXXXX COUNTY, SS:
On this 26th day of September, 2007, before me, a Notary Public in and for
the State of MO, personally appeared Xxxxxxx X. Xxxxxx, to me known to be the
same person described in and who executed the foregoing instrument, and
acknowledged that he has executed the same as his voluntary act and deed.
/s/ Xxxxxx X. Xxxxxxx
NOTARY PUBLIC IN AND FOR THE
STATE OF MISSOURI
[Notarial Seal]
/s/ Xxxxxxx Xxxxxxxxxx
Xxxxxxx Xxxxxxxxxx
STATE OF MO, XXXXXXX COUNTY, SS:
On this 25th day of September, 2007, before me, a Notary Public in and for
the State of MO, personally appeared Xxxxxxx Xxxxxxxxxx, to me known to be the
same person described in and who executed the foregoing instrument, and
acknowledged that he has executed the same as his voluntary act and deed.
/s/ Xxxxx Xxxx
NOTARY PUBLIC IN AND FOR THE
STATE OF MO
[Notarial Seal]
/s/ Xxxxx X. Xxxxxxxxxx
Xxxxx X. Xxxxxxxxxx,
Successor Trustee of the
Xxxxxx X. Xxxxxxxxxx Trust
dated April 30, 1991, as amended
STATE OF MISSOURI, XXXXXXX COUNTY, SS:
On this 4th day of October, 2007, before me, a Notary Public in and for
the State of Missouri, personally appeared Xxxxx X. Xxxxxxxxxx, Successor
Trustee of the Xxxxxx X. Xxxxxxxxxx Trust dated April 30, 1991, as amended, to
me known to be the same person described in and who executed the foregoing
instrument, and acknowledged that he has executed the same as his voluntary act
and deed.
/s/ Xxx X. Xxxxxxx
NOTARY PUBLIC IN AND FOR THE
STATE OF MISSOURI
[Notarial Seal]
/s/ Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxxx
STATE OF KANSAS, XXXXXXX COUNTY, SS:
On this 25 day of Sept., 2007, before me, a Notary Public in and for the
State of KS, personally appeared Xxxxxxx X. Xxxxxxxx, to me known to be the same
person described in and who executed the foregoing instrument, and acknowledged
that he has executed the same as his voluntary act and deed.
/s/ Xxxxxx X. Xxxxxxx
NOTARY PUBLIC IN AND FOR THE
STATE OF KS
[Notarial Seal]
/s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
STATE OF MISSOURI, CLAY COUNTY, SS:
On this 26th day of Sept., 2007, before me, a Notary Public in and for the
State of Missouri, personally appeared Xxxxxx X. Xxxxxxx, to me known to be the
same person described in and who executed the foregoing instrument, and
acknowledged that he has executed the same as his voluntary act and deed.
/s/ Xxxxx X. Xxxxxxxxx
NOTARY PUBLIC IN AND FOR THE
STATE OF MISSOURI
[Notarial Seal]
XXXXXXX FAMILY TRUST:
By: /s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx, Trustee
STATE OF MISSOURI, CLAY COUNTY, SS:
On this 26th day of Sept., 2007, before me, a Notary Public in and for the
State of Missouri, personally appeared Xxxxxx X. Xxxxxxx, to me known to be
known to be the identical person named in and who executed the foregoing
instrument, and acknowledged that the person, as the fiduciary, executed the
instrument as the voluntary act and deed of the person and of the fiduciary.
/s/ Xxxxx X. Xxxxxxxxx
NOTARY PUBLIC IN AND FOR THE
STATE OF MISSOURI
[Notarial Seal]
/s/ Xxxxxxx Xxxxxxx
Xxxxxxx Xxxxxxx
STATE OF ILLINOIS, XXXXXXX COUNTY, SS:
On this 27th day of September, 2007, before me, a Notary Public in and for
the State of Illinois, personally appeared Xxxxxxx Xxxxxxx, to me known to be
the same person described in and who executed the foregoing instrument, and
acknowledged that he has executed the same as his voluntary act and deed.
/s/ Xxxxxx X. Xxxxxxx
NOTARY PUBLIC IN AND FOR THE
STATE OF ILLINOIS
[Notarial Seal]
/s/ Xxxx X. Xxxxx
Xxxx X. Xxxxx
STATE OF IOWA, POLK COUNTY, SS:
On this 27 day of Sept., 2007, before me, a Notary Public in and for the
State of Iowa, personally appeared Xxxx X. Xxxxx, to me known to be the same
person described in and who executed the foregoing instrument, and acknowledged
that he has executed the same as his voluntary act and deed.
/s/ Xxxx Xxxxxxx
NOTARY PUBLIC IN AND FOR THE
STATE OF IOWA
/s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
STATE OF IOWA, POLK COUNTY, SS:
On this 27 day of Sept., 2007, before me, a Notary Public in and for the
State of Iowa, personally appeared Xxxxx X. Xxxxxx, to me known to be the same
person described in and who executed the foregoing instrument, and acknowledged
that he has executed the same as his voluntary act and deed.
/s/ Xxxx Xxxxxxx
NOTARY PUBLIC IN AND FOR THE
STATE OF IOWA
XXXXXX X. XXXXX TRUST:
By: /s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx, Trustee
STATE OF MISSOURI, XXXXXX COUNTY, SS:
On this 26th day of September, 2007, before me, a Notary Public in and for
the State of Missouri, personally appeared Xxxxxx X. Xxxxx, to me known to be
known to be the identical person named in and who executed the foregoing
instrument, and acknowledged that the person, as the fiduciary, executed the
instrument as the voluntary act and deed of the person and of the fiduciary.
/s/ Xxxx X. X'Xxxxxx
NOTARY PUBLIC IN AND FOR THE
STATE OF MISSOURI
[Notarial Seal]
/s/ Xxxxxxx Xxxxxxxxx, Xx.
Xxxxxxx Xxxxxxxxx, Xx.
STATE OF IOWA, POLK COUNTY, SS:
On this 26 day of September, 2007, before me, a Notary Public in and for
the State of Iowa, personally appeared Xxxxxxx Xxxxxxxxx, Xx., to me known to be
the same person described in and who executed the foregoing instrument, and
acknowledged that he has executed the same as his voluntary act and deed.
/s/ Xxxx Xxxxxxx
NOTARY PUBLIC IN AND FOR THE
STATE OF IOWA
/s/ Xxxxx Xxxxxxx Xxxxxx, Xx.
Xxxxx Xxxxxxx Xxxxxx, Xx.
STATE OF IOWA, POLK COUNTY, SS:
On this 9/28/07 day of Sept., 2007, before me, a Notary Public in and for
the State of Iowa, personally appeared Xxxxx Xxxxxxx Xxxxxx, Xx., to me known to
be the same person described in and who executed the foregoing instrument, and
acknowledged that he has executed the same as his voluntary act and deed.
/s/ Xxxx Xxxxxxx
NOTARY PUBLIC IN AND FOR THE
STATE OF IOWA
/s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
STATE OF IOWA, POLK COUNTY, SS:
On this 29 day of September, 2007, before me, a Notary Public in and for
the State of Iowa, personally appeared Xxxxxx X. Xxxxx, to me known to be the
same person described in and who executed the foregoing instrument, and
acknowledged that he has executed the same as his voluntary act and deed.
/s/ Xxxxxx X. Xxxxxxxx
NOTARY PUBLIC IN AND FOR THE
STATE OF IOWA
[Notarial Seal]
QUEST CAPITAL ALLIANCE II, L.L.C.
By: /s/ Xxxxxx X. Xxx
Xxxxxx X. Xxx, General Manager
STATE OF MISSOURI, XXXXXX COUNTY, SS:
On this 27th day of September, 2007, before me, the undersigned, a Notary
Public in and for said County and State, personally appeared Xxxxxx X. Xxx, to
be personally known, who being by me duly sworn, did say that he is the General
Manager of said limited liability company; that said instrument was signed on
behalf of said limited liability company by authority of its Board of Directors;
and that the said Xxxxxx X. Xxx as such officer, acknowledged the execution of
said instrument to be the voluntary act and deed of said limited liability
company by it and by them voluntarily executed.
/s/ Xxxxx XxXxxxx
NOTARY PUBLIC IN AND FOR THE
STATE OF MISSOURI
[Notarial Seal]
/s/ Xxxx Xxxx Kan
Kwai Xxxx Xxx
STATE OF IOWA, POLK COUNTY, SS:
On this ___________ day of ___________________, 2007, before me, a Notary
Public in and for the State of Iowa, personally appeared Kwai Xxxx Xxx, to me
known to be the same person described in and who executed the foregoing
instrument, and acknowledged that he has executed the same as his voluntary act
and deed.
__________________________________________
NOTARY PUBLIC IN AND FOR THE
STATE OF IOWA
/s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
STATE OF MISSOURI, ST. LOUIS COUNTY, SS:
On this 27th day of September, 2007, before me, a Notary Public in and for
the State of Missouri, personally appeared Xxxxxx X. Xxxxxx, to me known to be
the same person described in and who executed the foregoing instrument, and
acknowledged that he has executed the same as his voluntary act and deed.
/s/ Xxxxxxx X. Xxxxxxxxxx
NOTARY PUBLIC IN AND FOR THE
STATE OF MISSOURI
[Notarial Seal]
/s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
STATE OF MISSOURI, TANEY COUNTY, SS:
On this 28th day of September, 2007, before me, a Notary Public in and for
the State of Missouri, personally appeared Xxxxx X. Xxxxx, to me known to be the
same person described in and who executed the foregoing instrument, and
acknowledged that he has executed the same as his voluntary act and deed.
/s/ Xxxxx Xxxxxxxx
NOTARY PUBLIC IN AND FOR THE
STATE OF MISSOURI
[Notarial Seal]
