ESCROW AGREEMENT
Exhibit
10.1
Execution
Copy
THIS
ESCROW AGREEMENT,
dated as
of July 18, 2008 (this “Escrow Agreement”), is by and among iCAD,
Inc.,
a
Delaware corporation (“iCAD”); 3TP
LLC (“Seller”)
and
U.S. BANK NATIONAL ASSOCIATION, a
national banking association, as Escrow Agent hereunder (“Escrow
Agent”).
BACKGROUND
A. iCAD
and
Seller have entered into an Asset Purchase Agreement (the “Underlying
Agreement”), dated as of June 20, 2008, between iCAD and Seller, pursuant to
which Seller
has
agreed to sell and iCAD has agreed to purchase substantially all of the assets
of Seller. The Underlying Agreement provides that iCAD shall deposit the Escrow
Shares (defined below) in a segregated escrow account to be held by Escrow
Agent.
B. Escrow
Agent has agreed to accept, hold, and disburse the Escrow Shares deposited
with
it in accordance with the terms of this Escrow Agreement.
C. In
order
to establish the escrow of the Escrow Shares and to effect the provisions of
the
Underlying Agreement, the parties hereto have entered into this Escrow
Agreement.
STATEMENT
OF AGREEMENT
NOW
THEREFORE,
for good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, for themselves, their successors and assigns,
hereby agree as follows:
1. Definitions.
The
following terms shall have the designated meanings when used
herein:
(a) “Business
Day” shall mean any day on which banks are not required, or are authorized, to
close in the City of New York, New York.
(b) “Claim”
shall mean a claim for indemnification by iCAD pursuant to the Underlying
Agreement.
(c) “Claim
Amount” shall mean the amount designated by iCAD to be the amount (to the extent
then known) of any Claim for which a Claim Notice has been delivered.
(d) “Claim
Notice” shall mean a written notification signed by iCAD and delivered which
shall specify the representation or agreement in the Underlying Agreement with
respect to which a Claim is being made, the facts giving rise to and the alleged
basis for such Claim, the Claim Amount of such Claim, the date of such Claim
Notice, and the aggregate Claim Amounts of all Claims as to which Claim Notices
have been delivered, and shall attach copies of all material written evidence
of
such Claim. Each Claim Notice also shall include a certification by iCAD that
the Claim is being made pursuant to the Underlying Agreement and this Escrow
Agreement.
(e) “Claim
Response” shall mean a written notification, signed by Seller, which shall set
forth whether or not Seller disputes any matter with respect to a Claim Notice
or the Claim described therein.
(f) “Escrow
Shares” shall mean the 271,740 shares of common stock, par value $0.01 per
share, of iCAD deposited with Escrow Agent pursuant to Section
3
of this
Agreement.
(g) “Joint
Written Direction” shall mean a written direction executed by iCAD and Seller
and directing Escrow Agent to disburse all or a portion of the Escrow Shares
or
to take or refrain from taking an action pursuant to this Escrow
Agreement.
2. Appointment
of and Acceptance by Escrow Agent.
iCAD
and Seller hereby appoint Escrow Agent to serve as escrow agent hereunder.
Escrow Agent hereby accepts such appointment and, upon receipt of the Escrow
Shares in accordance with Section
3
below,
agrees to hold and disburse the Escrow Shares in accordance with this Escrow
Agreement.
3. Commencement
of Duties.
iCAD,
on the date hereof, simultaneously with the execution and delivery of this
Escrow Agreement, shall deliver to the Escrow Agent the Escrow Shares.
4. Disbursements
of Escrow Shares.
The
Escrow Shares shall be distributed by the Escrow Agent in accordance with the
following:
(a) On
or
promptly after the six month anniversary of the date hereof, Escrow Agent shall
disburse
to iCAD 181,160 Escrow Shares less (A) any Escrow Shares previously distributed
to iCAD pursuant to Section
5
of this
Agreement and (B) such
number of Escrow Shares with a value (as calculated in accordance with
Section
4(c))
equal
to an amount sufficient to satisfy in full all Claim Amounts, if any, that
have
not been resolved at such time and any amount due under Section
5
hereof
which has been determined but not yet distributed, if any.
(b) On
or
promptly after the one year anniversary of the date hereof, Escrow Agent shall:
(A) retain such number of Escrow Shares with a value (as calculated in
accordance with Section
4(c))
sufficient to satisfy in full all Claim Amounts, if any, that have not been
resolved at such time and any amount due under Section
5
hereof
which has been determined but not yet distributed; and (B) distribute, as
promptly as practicable, the balance of the Escrow Shares to
Seller.
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(c) The
calculation for determining the number of Escrow Shares which shall be
distributed at any time under this Agreement shall be the quotient of (A) the
dollar amount of the amount to be indemnified or otherwise in question divided
by (B) $2.76.
5. Indemnification
Claims.
(a) During
the term of this Agreement, iCAD shall deliver each Claim Notice to Seller
and
Escrow Agent, such delivery to be in accordance with the notice provisions
of
this Escrow Agreement.
(b) Upon
receipt of any Claim Notice, Escrow Agent shall promptly make entries or
notations in the Escrow Account records relating to the Escrow Shares,
indicating that Escrow Shares with a value (as calculated in accordance with
Section
4(c))
in the
amount of the Claim Amount are reserved to satisfy such Claim, and identifying
the date and number of such Claim Notice.
(c) Within
twenty (20) days of receipt by Seller of any Claim Notice, Seller shall deliver
a Claim Response to iCAD and Escrow Agent, such delivery to be in accordance
with the notice provisions of this Escrow Agreement. If, in connection with
a
Claim Notice, Seller fails to deliver a Claim Response by the end of the
twentieth (20th) day following receipt by Seller of a Claim Notice, Escrow
Agent
shall distribute to iCAD out of the Escrow Account Escrow Shares with a value
(as calculated in accordance with Section
4(c))
equal
to the lesser of the Claim Amount or the number of Escrow Shares remaining
in
the Escrow Account. Any such distribution shall be made on or before the third
(3rd) Business Day following the expiration of such twenty (20) day period.
Escrow Agent shall continue to hold any Escrow Shares remaining in the Escrow
Account following the distribution of any Escrow Shares pursuant to any Claim
Notice in accordance with the terms of this Escrow Agreement.
(d) If
Seller
delivers a timely Claim Response with respect to all or any portion of a Claim
Notice, Escrow Agent shall not disburse, and shall continue to hold in the
Escrow Account, the Escrow Shares with a value (as calculated in accordance
with
Section
4(c))
equal
to the Claim Amount or the disputed portion thereof, as the case may be, pending
receipt of either (i) a Joint Written Direction or (ii) a notice from either
iCAD or Seller stating that such Claim Notice has been submitted to a court
of
competent jurisdiction for judgment and that a judgment with respect to such
matters has been rendered (a “Judgment Notice”) which is accompanied by a copy
of a final order of such court, pursuant to which such court has determined
whether and to what extent iCAD is entitled to the amount requested in the
Claim
Notice. Upon receipt of a Joint Written Direction or a Judgment Notice, as
applicable, Escrow Agent shall thereafter act in accordance with Section
5(e),
or
Section
5(f)
below,
as applicable.
(e) Upon
receipt by Escrow Agent of a Joint Written Direction, if such Joint Written
Direction indicates that iCAD is entitled to a distribution of Escrow Shares
in
respect of all or any portion of the Claim Notice, then Escrow Agent shall
release from the Escrow Account and distribute to iCAD the number of Escrow
Shares with a value (as calculated in accordance with Section
4(c))
equal
to the amount indicated in such Joint Written Direction (up to a maximum of
the
number of the Escrow Shares then remaining in the Escrow Account). Such
distribution shall be made on or before the third (3rd) Business Day following
the date on which such Joint Written Direction is received by Escrow Agent.
If
such Joint Written Direction indicates that iCAD is not entitled to all or
any
portion of the amount claimed in such Claim Notice (a “Discharge Notice”), then
the Escrow Agent shall (i) distribute to iCAD that number of Escrow Shares,
if
any, with a value (as calculated in accordance with Section
4(c))
equal
to the amount claimed in such Claim Notice that Escrow Agent is instructed
to
distribute to iCAD pursuant to such Joint Written Direction (as set forth in
the
foregoing sentence) and (ii) continue to hold Escrow Shares with a value (as
calculated in accordance with Section
4(c))
equal
to which iCAD was determined not to be entitled in accordance with the terms
of
the Joint Written Direction until such Escrow Shares are to be disbursed in
accordance with the terms of this Escrow Agreement.
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(f) If
Escrow
Agent has received a Judgment Notice with respect to any Claim Notice, then
Escrow Agent shall release from the Escrow Account and distribute to iCAD Escrow
Shares with a value (as calculated in accordance with Section
4(c))
equal
to the amount due iCAD, as explicitly set forth in such Judgment Notice (up
to a
maximum of the Escrow Shares then remaining in the Escrow Account). Such
distribution will be made on or before the third (3rd) Business Day following
the date on which Escrow Agent receives such Judgment Notice. If such Judgment
Notice indicates that iCAD is not entitled to all or any portion of the Escrow
Shares with a value (as calculated in accordance with Section
4(c))
equal
to the amount claimed in the Claim Notice, then Escrow Agent shall continue
to
hold the Escrow Shares with a value (as calculated in accordance with
Section
4(c))
equal
the amount to which iCAD was determined not to be entitled in accordance with
the Judgment Notice until such Escrow Shares are to be disbursed in accordance
with the terms of this Escrow Agreement.
6. Suspension
of Performance; Disbursement Into Court.
If, at
any time, (i) there shall exist any dispute between iCAD and Seller with respect
to the holding or disposition of all or any portion of the Escrow Shares or
any
other obligations of Escrow Agent hereunder, (ii) Escrow Agent is unable to
determine, to Escrow Agent’s sole but reasonable satisfaction, the proper
disposition of all or any portion of the Escrow Shares or Escrow Agent’s proper
actions with respect to its obligations hereunder, or (iii) iCAD and Seller
have
not within thirty (30) days of the furnishing by Escrow Agent of a notice of
resignation pursuant to Section
7
hereof,
appointed a successor Escrow Agent to act hereunder, then Escrow Agent may,
in
its sole discretion, take either or both of the following actions:
(a) suspend
the performance of any of its obligations (including without limitation any
disbursement obligations) under this Escrow Agreement until such dispute or
uncertainty shall be resolved to the sole but reasonable satisfaction of Escrow
Agent or until a successor Escrow Agent shall have been appointed (as the case
may be).
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(b) petition
(by means of an interpleader action or any other appropriate method), at the
joint and several expense of iCAD and Seller, any court of competent
jurisdiction in any venue convenient to Escrow Agent, for instructions with
respect to such dispute or uncertainty, and to the extent required or permitted
by law, pay into such court, for holding and disposition in accordance with
the
instructions of such court, all Escrow Shares, after deduction and payment
to
Escrow Agent of all fees and expenses (including court costs and attorneys’ fees
and expenses) payable to, incurred by, or expected to be incurred by Escrow
Agent in connection with the performance of its duties and the exercise of
its
rights hereunder.
The
Escrow Agent shall have no liability to Seller, iCAD, its shareholders or
members or any other person with respect to any such suspension of performance
or disbursement into court, specifically including any liability or claimed
liability that may arise, or be alleged to have arisen, out of or as a result
of
any delay in the disbursement of the Escrow Shares or any delay in or with
respect to any other action required or requested of Escrow Agent.
7. Resignation
of Escrow Agent.
Escrow
Agent may resign and be discharged from the performance of its duties hereunder
at any time by giving thirty (30) days prior written notice to iCAD and Seller
specifying a date when such resignation shall take effect. Upon any such notice
of resignation, iCAD and Seller jointly shall appoint a successor Escrow Agent
hereunder prior to the effective date of such resignation. The retiring Escrow
Agent shall transmit all records pertaining to the Escrow Shares and shall
deliver all Escrow Shares to the successor Escrow Agent, after making copies
of
such records as the retiring Escrow Agent deems advisable and after deduction
and payment to the retiring Escrow Agent of all fees and expenses (including
court costs and attorneys’ fees and expenses) payable to or incurred by the
retiring Escrow Agent in connection with the performance of its duties and
the
exercise of its rights hereunder. After any retiring Escrow Agent’s resignation,
the provisions of this Escrow Agreement shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Escrow Agent under
this
Escrow Agreement. Any corporation or association into which the Escrow Agent
may
be merged or converted or with which it may be consolidated, or any corporation
or association to which all or substantially all of the escrow business of
the
Escrow Agent’s corporate trust line of business may be transferred, shall be the
Escrow Agent under this Escrow Agreement without further act.
8. Liability
of Escrow Agent.
The
Escrow Agent undertakes to perform only such duties as are expressly set forth
herein and no duties or obligations shall be implied. The Escrow Agent shall
have no liability under and no duty to inquire as to the provisions of any
agreement other than this Escrow Agreement. The Escrow Agent shall not be liable
for any action taken or omitted by it in good faith except to the extent that
a
court of competent jurisdiction determines that the Escrow Agent’s gross
negligence or willful misconduct was the cause of any loss to iCAD or Seller.
Escrow Agent’s sole responsibility shall be for the safekeeping and disbursement
of the Escrow Shares in accordance with the terms of this Escrow Agreement.
Escrow Agent shall not be charged with knowledge or notice of any fact or
circumstance not specifically set forth herein. Escrow Agent may conclusively
rely upon any notice, instruction, request or other instrument, not only as
to
its due execution, validity and effectiveness, but also as to the truth and
accuracy of any information contained therein, which Escrow Agent shall
reasonably believe to be genuine and to have been signed or presented by the
person or parties purporting to sign the same. In no event shall Escrow Agent
be
liable for incidental, indirect, special, consequential or punitive damages
(including, but not limited to lost profits), even if the Escrow Agent has
been
advised of the likelihood of such loss or damage and regardless of the form
of
action. Escrow Agent shall not be obligated to take any legal action or commence
any proceeding in connection with the Escrow Shares, this Escrow Agreement
or
the Underlying Agreement, or to appear in, prosecute or defend any such legal
action or proceeding. Escrow Agent may consult legal counsel selected by it
in
the event of any dispute or question as to the construction of any of the
provisions hereof or of any other agreement or of its duties hereunder, or
relating to any dispute involving any party hereto, and shall incur no liability
and shall be fully indemnified from any liability whatsoever in acting in
accordance with the opinion or instruction of such counsel. iCAD and Seller,
jointly and severally, shall promptly pay, upon demand, the reasonable fees
and
expenses of any such counsel. Escrow Agent shall have no liability or
responsibility to question or determine the accuracy or reasonableness of any
Claim Amount.
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The
Escrow Agent is authorized, in its sole but reasonable discretion, to comply
with orders issued or process entered by any court with respect to the Escrow
Shares, without determination by the Escrow Agent of such court’s jurisdiction
in the matter. If any portion of the Escrow Shares is at any time attached,
garnished or levied upon under any court order, or in case the payment,
assignment, transfer, conveyance or delivery of any such property shall be
stayed or enjoined by any court order, or in case any order, judgment or decree
shall be made or entered by any court affecting such property or any part
thereof, then and in any such event, the Escrow Agent is authorized, in its
sole
discretion, to conclusively rely upon and comply with any such order, writ,
judgment or decree which it is advised by legal counsel selected by it is
binding upon it without the need for appeal or other action; and if the Escrow
Agent complies with any such order, writ, judgment or decree, it shall not
be
liable to any of the parties hereto or to any other person or entity by reason
of such compliance even though such order, writ, judgment or decree may be
subsequently reversed, modified, annulled, set aside or vacated.
9. Indemnification
of Escrow Agent.
From
and at all times after the date of this Escrow Agreement, iCAD and Seller,
jointly and severally, shall, to the fullest extent permitted by law, defend,
indemnify and hold harmless Escrow Agent and each director, officer, employee,
attorney, agent and affiliate of Escrow Agent (collectively, the “Indemnified
Parties”) against any and all actions, claims (whether or not valid), losses,
damages, liabilities, costs and expenses of any kind or nature whatsoever
(including without limitation reasonable attorneys’ fees, costs and expenses)
incurred by or asserted against any of the Indemnified Parties from and after
the date hereof, whether direct, or indirect, as a result of or arising from
or
in any way relating to any claim, demand, suit, action or proceeding by any
person, including without limitation iCAD or Seller, whether threatened or
initiated, asserting a claim for any legal or equitable remedy against any
person under any statute or regulation, including, but not limited to, any
federal or state securities laws, or under any common law or equitable cause
or
otherwise, arising from or in connection with the performance or failure of
performance of this Escrow Agreement or any transactions contemplated herein,
whether or not any such Indemnified Party is a party to any such action,
proceeding, suit or the target of any such inquiry or investigation;
provided,
however,
that no
Indemnified Party shall have the right to be indemnified hereunder for any
liability finally determined by a court of competent jurisdiction, subject
to no
further appeal, to have resulted from the gross negligence or willful misconduct
of such Indemnified Party. Each Indemnified Party shall have the right to select
and employ counsel with respect to any action or claim brought or asserted
against it, and the reasonable fees and expenses of such counsel shall be paid
upon demand by each of iCAD and Seller, jointly and severally. The obligations
of iCAD and Seller under this Section
9
shall
survive any termination of this Escrow Agreement and the resignation or removal
of Escrow Agent.
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The
parties agree that neither the payment by iCAD or Seller of any claim by Escrow
Agent for indemnification hereunder nor the disbursement of any Escrow Shares
to
Escrow Agent from the in respect of a claim by Escrow Agent for indemnification
shall impair, limit, modify, or affect, as between iCAD and Seller, the
respective rights and obligations of iCAD, on the one hand, and Seller, on
the
other hand, under the Underlying Agreement.
10. Fees
and Expenses of Escrow Agent.
iCAD
and Seller shall compensate Escrow Agent for its services hereunder in
accordance with Schedule
A
attached
hereto and, in addition, shall reimburse Escrow Agent for all of its reasonable
out-of-pocket expenses, including attorneys’ fees and expenses, travel expenses,
telephone and facsimile transmission costs, postage (including express mail
and
overnight delivery charges), copying charges and the like. The additional
provisions and information set forth on Schedule
A
are
hereby incorporated by this reference, and form a part of this Escrow Agreement.
The compensation and reimbursement obligations set forth in this Section
10
shall be
payable by iCAD and Seller, jointly and severally upon demand by Escrow Agent.
The obligations of iCAD and Seller under this Section
10
shall
survive any termination of this Escrow Agreement and the resignation or removal
of Escrow Agent. Escrow Agent is authorized to, and may, disburse to itself
from
the Escrow Shares, from time to time, Escrow Shares equal to the value (as
calculated in accordance with Section
4(c))
of any
compensation and reimbursement of out-of-pocket expenses due and payable
hereunder (including any amount to which Escrow Agent or any Indemnified Party
is entitled to seek indemnification pursuant to Section
9
hereof).
Escrow Agent shall notify iCAD and Seller of any disbursement from the Escrow
Shares to itself or any Indemnified Party in respect of any compensation or
reimbursement hereunder and shall furnish to iCAD and Seller copies of all
related invoices and other statements. Seller and iCAD hereby grant to Escrow
Agent and the Indemnified Parties a security interest in and lien upon the
Escrow Shares to secure all obligations with respect to the right to offset
the
amount of any compensation or reimbursement due any of them hereunder (including
any claim for indemnification pursuant to Section
9
hereof)
against the Escrow Shares. If for any reason the value (as calculated in
accordance with Section
4(c))
of the
Escrow Shares are insufficient to cover such compensation and reimbursement,
iCAD and Seller shall promptly pay, on a joint and several basis, such amounts
to Escrow Agent or any Indemnified Party upon receipt of an itemized invoice.
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11. Representations
and Warranties.
Each of
iCAD and Seller respectively makes the following representations and warranties
to Escrow Agent:
(a) As
applicable, it is duly organized, validly existing, and in good standing under
the laws of the state of its incorporation or organization, and has full power
and authority to execute and deliver this Escrow Agreement and to perform its
obligations hereunder.
(b) This
Escrow Agreement has been duly approved by all necessary action, including
any
necessary shareholder or membership approval, has been executed by its duly
authorized officers, and constitutes its valid and binding agreement enforceable
in accordance with its terms.
(c) As
applicable, the execution, delivery, and performance of this Escrow Agreement
is
in accordance with the Underlying Agreement and will not violate, conflict
with,
or cause a default under its articles of incorporation, certificate of
formation, articles of organization, bylaws, limited liability company
agreement, management agreement or other organizational document, as applicable,
any applicable law or regulation, any court order or administrative ruling
or
decree to which it is a party or any of its property is subject, or any
agreement, contract, indenture, or other binding arrangement, including without
limitation the Underlying Agreement, to which it is a party or any of its
property is subject.
(d) No
party
other than the parties hereto has, or shall have, any lien, claim or security
interest in the Escrow Shares or any part thereof. No financing statement under
the Uniform Commercial Code is on file in any jurisdiction claiming a security
interest in or describing (whether specifically or generally) the Escrow Shares
or any part thereof.
(e) All
of
its representations and warranties contained herein are true and complete as
of
the date hereof and will be true and complete at the time of any disbursement
of
the Escrow Shares.
12. Identifying
Information.
iCAD
and Seller acknowledge that a portion of the identifying information set forth
on Schedule
A
is being
requested by the Escrow Agent in connection with the USA Patriot Act,
Pub.L.107-56 (the “Act”). To help the government fight the funding of terrorism
and money laundering activities, federal law requires all financial institutions
to obtain, verify, and record information that identifies each person who opens
an account. For a non-individual person such as a business entity, a charity,
a
trust, or other legal entity, the Escrow Agent may ask for documentation to
verify its formation and existence as a legal entity. The Escrow Agent may
also
ask to see financial statements, licenses, identification and authorization
documents from individuals claiming authority to represent the entity or other
relevant documentation. iCAD and Seller agree to provide any additional
information requested by the Escrow Agent in connection with the Act or any
similar legislation or regulation to which Escrow Agent is subject, in a timely
manner. iCAD and Seller each represent that all identifying information set
forth on Schedule
A,
including without limitation its Taxpayer Identification Number assigned by
the
Internal Revenue Service or any other taxing authority, is true and complete
on
the date hereof and will be true and complete at the time of any disbursement
of
the Escrow Shares.
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13. Consent
to Jurisdiction and Venue; Waiver of Jury Trial.
In the
event that any party hereto commences a lawsuit or other proceeding relating
to
or arising from this Escrow Agreement, the parties hereto agree that the
Southern District of New York shall have the sole and exclusive jurisdiction
over any such proceeding. If such court lacks federal subject matter
jurisdiction, the parties agree that the any state court within New York County,
City of New York, New York shall have sole and exclusive jurisdiction. Any
of
these courts shall be proper venue for any such lawsuit or judicial proceeding
and the parties hereto waive any objection to such venue. The parties hereto
consent to and agree to submit to the jurisdiction of any of the courts
specified herein and agree to accept service of process to vest personal
jurisdiction over them in any of these courts. THE PARTIES HERETO HEREBY WAIVE
A
TRIAL BY JURY OF ANY AND ALL ISSUES ARISING IN ANY ACTION OR PROCEEDING BETWEEN
THEM OR THEIR SUCCESSORS OR ASSIGNS, UNDER OR IN CONNECTION WITH THIS ESCROW
AGREEMENT OR ANY OF ITS PROVISIONS OR ANY NEGOTIATIONS IN CONNECTION
HEREWITH.
14. Notice.
All
notices, approvals, consents, requests, and other communications hereunder
shall
be in writing (including facsimile) and shall be deemed to have been given
when
actually received if delivered personally, sent by registered mail, return
receipt requested, postage prepaid to, or if sent by facsimile to, the address
or facsimile number set forth on Schedule A
hereto,
or to such other address as each party may designate for itself by like
notice.
15. Amendment
or Waiver.
This
Escrow Agreement may be changed, waived, discharged or terminated only by a
writing signed by iCAD and Seller and Escrow Agent. No delay or omission by
any
party in exercising any right with respect hereto shall operate as a waiver.
A
waiver on any one occasion shall not be construed as a bar to, or waiver of,
any
right or remedy on any future occasion.
16. Severability.
To the
extent any provision of this Escrow Agreement is prohibited by or invalid under
applicable law, such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of such provision
or the remaining provisions of this Escrow Agreement.
17. Governing
Law.
This
Escrow Agreement shall be construed and interpreted in accordance with the
internal laws of the State of New York without giving effect to the conflict
of
laws principles thereof.
18. Entire
Agreement.
This
Escrow Agreement and the Underlying Agreement constitute the entire agreement
between the parties relating to the holding, investment and disbursement of
the
Escrow Shares and sets forth in their entirety the obligations and duties of
Escrow Agent with respect to the Escrow Shares.
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19. Binding
Effect.
All of
the terms of this Escrow Agreement, as amended from time to time, shall be
binding upon, inure to the benefit of and be enforceable by the respective
successors and assigns of iCAD, Seller and Escrow Agent.
20. Execution
in Counterparts.
This
Escrow Agreement and any Joint Written Direction may be executed in two or
more
counterparts, which when so executed shall constitute one and the same agreement
or direction.
21. Termination.
Upon
the disbursement of all Escrow Shares pursuant to Joint Written Direction or
the
disbursement of all the Escrow Shares into court pursuant to Section
5
or
Section 7
hereof,
this Escrow Agreement shall terminate and Escrow Agent shall have no further
obligation or liability whatsoever with respect to this Escrow Agreement or
the
Escrow Shares.
22. Dealings.
The
Escrow Agent and any stockholder, director, member, manager, officer or employee
of the Escrow Agent may buy, sell, and deal in any of the securities of iCAD
or
Seller and become pecuniarily interested in any transaction in which iCAD or
Seller may be interested, and contract and lend money to iCAD or Seller and
otherwise act as fully and freely as though it were not Escrow Agent under
this
Agreement. Nothing herein shall preclude the Escrow Agent from acting in any
other capacity for iCAD or Seller or for any other entity.
23. Certain
Tax Matters.
Each
of
iCAD and Seller agree to provide the Escrow Agent with such information as
the
Escrow Agent may reasonably request in order for it to comply with any
information reporting and withholding obligations imposed by applicable laws
or
regulations, if any. Except to the extent otherwise required pursuant to a
“determination” (within the meaning of Section 1313(a) of the Internal Revenue
Code of 1986, as amended), the parties hereto will treat iCAD as owning the
Escrow Shares for U.S. federal income tax purposes.
24. Force
Majeure.
The
Escrow Agent shall not be responsible for delays or failures in performance
resulting from acts beyond its control, such as (but not limited to) acts of
God, riots, wars, strikes, epidemics, governmental regulations
superimposed after the fact, fire, communication line failures, computer
viruses, power failures, earthquakes or other disasters.
[REMAINDER
OF PAGE INTENTIONALLY BLANK]
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IN
WITNESS WHEREOF, the parties hereto have caused this Escrow Agreement to be
executed as of the date first above written.
| iCAD, INC. | |||
| By: |
/s/
Xxxxxxx Xxxxx
|
||
| Title: |
CEO
|
||
| 3TP LLC | |||
| By: |
/s/
Xxxxxxx X. Xxxxxx
|
||
| Title: |
Chief
Executive Officer
|
||
| U.S. BANK NATIONAL ASSOCIATION, | |||
| as Escrow Agent | |||
| By: |
/s/
Xxxxxx Xxxxx
|
||
| Title: |
Vice
President
|
||
SCHEDULE
A
| 1. |
Escrow
Shares.
|
Escrow
Shares: 271,740
| 2. |
Escrow
Agent Fees.
|
| Acceptance Fee: | $ | |
| Annual Escrow Fee: | $ | 5,000 |
| Out-of-Pocket Expenses: | $ | |
| Transactional Costs: | $ | |
| Other Fees/Attorney, etc.: | $ | |
|
TOTAL
|
$ |
The
Acceptance Fee and the Annual Escrow Fee are payable upon execution of the
escrow documents. In the event the escrow is not funded, the Acceptance Fee
and
all related expenses, including attorneys’ fees and expenses, remain due and
payable, and if paid, will not be refunded. Annual fees cover a full year in
advance, or any part thereof, and thus are not pro-rated in the year of
termination.
The
fees
quoted in this schedule apply to services ordinarily rendered in the
administration of an Escrow Account and are subject to reasonable adjustment
based on final review of documents, or when the Escrow Agent is called upon
to
undertake unusual duties or responsibilities, or as changes in law, procedures,
or the cost of doing business demand. Services in addition to and not
contemplated in this Agreement, including, but not limited to, document
amendments and revisions, non-standard cash and/or investment transactions,
calculations, notices and reports, and legal fees and expenses, will be billed
as extraordinary expenses.
Unless
otherwise indicated, the above fees relate to the establishment of one escrow
account. Additional sub-accounts governed by the same Escrow Agreement may
incur
an additional charge. Transaction costs include charges for wire transfers,
checks, internal transfers and securities transactions.
|
3.
|
Taxpayer
Identification Numbers.
|
iCAD: 00-0000000
Seller: 00-0000000
|
4.
|
[Reserved.]
|
|
5.
|
[Reserved.]
|
A-1
| 6. |
Notice
Addresses.
|
If
to
iCAD at:
iCAD,
Inc.
00
Xxxx
Xxxxx Xxxx, Xxxxx 000
Xxxxxx,
Xxx Xxxxxxxxx 00000
Attention:
Xxxxxxx Xxxxx, President and Chief Executive Officer
Facsimile:
(000) 000-0000
With
a
required copy to:
Blank
Rome LLP
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxxx X. Xxxxxxx, Esq.
Facsimile:
(000) 000-0000
If
to
Seller at:
3TP
LLC
0
Xxxxxxx
Xxxx Xxxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
Facsimile:
(000) 000-0000
With
a
required copy to:
Xxxxx
& Xxx Xxxxxx LLP
0
Xxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxxxx X. XxXxxx, Esq.
If
to the
Escrow
| Agent at: |
U.S.
Bank National Association, as Escrow
Agent
|
000
Xxxx
Xxxxxx, 00xx
xxxxx
Xxx
Xxxx,
XX 00000
ATTENTION:
Corporate Trust Services
Facsimile:
000-000-0000
A-2
