EXHIBIT 6.4
ESCROW AGREEMENT
THIS ESCROW AGREEMENT dated as of December 23, 1996 is made by and among
INTERNATIONAL COMPUTEX, INC., a Georgia corporation ("ICI"), certain Selling
Shareholders set forth on Schedule I, and Xxxxxxxx & Xxxxx, L.L.P., a Georgia
limited liability partnership (the "Escrow Agent").
WHEREAS, pursuant to Warrants to be executed by and between Selling
Shareholders and each of the Warrantholders to be set forth on Schedule II to be
attached hereto and signed by the parties hereto, Selling Shareholders have
agreed to reserve certain shares for exercise under such Warrants. In
connection therewith: (i) Selling Shareholders have agreed to deposit an
aggregate amount of 250,000 shares of ICI Common Stock in the proportion set
forth on Schedule I (the "Escrowed Shares") in escrow with the Escrow Agent, and
(ii) the Escrow Agent has agreed to act as escrow agent; all in accordance with
the terms of this Agreement.
NOW, THEREFORE, in consideration of the premises, and of the mutual
covenants and agreements herein contained, the parties agree as follows:
1. APPOINTMENT OF ESCROW AGENT. Selling Shareholders and ICI hereby
appoint the Escrow Agent to act as escrow agent in accordance with the terms of
this Agreement, and the Escrow Agent hereby accepts such appointment upon the
terms of this Agreement.
2. DELIVERY OF ESCROWED SHARES. The Selling Shareholders hereby covenant
and agree to tender and deliver the Escrowed Shares to the Escrow Agent no later
than fifteen days after completion of the offering of the Debentures to which
the Warrants are attached. ICI hereby agrees to cause the Escrowed Shares to be
delivered by such date.
3. DISPOSITION OF ESCROWED SHARES.
(A) In the event that the Escrow Agent receives written notification
of exercise of the Warrants by any of the Warrantholders, and upon receipt by
the Escrow Agent of collected funds equal to the exercise price of the Warrant,
then the Escrow Agent shall promptly cause to be delivered, with the assistance
of ICI, the appropriate number of Escrowed Shares to the appropriate
Warrantholder at the address set forth in such Warrantholder's notification of
exercise. The Escrow Agent, in delivering the Escrowed Shares, shall do so
proportionately from among the Escrowed Shares in accordance with the ratio of
shares received initially from the Selling Shareholders as set forth on Schedule
I. The Escrow Agent thereafter shall promptly remit to the Selling Shareholders
the funds received for the exercise price.
(B) To the extent the Escrow Agent has received no written
instructions with respect to all of the Escrowed Shares as contemplated by
Section 3(a) hereof by 5:00 p.m., local time, on the third anniversary of the
date of the Warrants, then the Escrow Agent shall promptly return the Escrowed
Shares, or the remaining Escrowed Shares, to the Selling Shareholders.
(C) The parties acknowledge that ICI is contemplating an Initial
Public Offering ("IPO") and agree that, to the extent there are excess shares
held in escrow as a result of the actual Offering Price, as defined in the
Warrant, the Escrow Agent shall cause to be returned, with the assistance of
ICI, excess shares to the Selling Shareholders.
4. TERMINATION. This Agreement shall terminate upon the earlier of:
(A) the Escrow Agent's delivery of all of the Escrowed Shares to the
respective parties in accordance with Sections 3(a) hereof; or
(B) the Escrow Agent's delivery of all of the Escrowed Shares as
directed by an arbitration award or a final order, decree or judgment of a
court of competent jurisdiction, as contemplated by Section 6 hereof; or
(C) delivery of all of the remaining Escrowed Shares pursuant to
Section 3(b).
Upon termination of this Agreement and disposition of the Escrowed Shares as
herein contemplated, the Escrow Agent shall have no further obligations
hereunder.
5. CONCERNING THE ESCROW AGENT.
(A) The Escrow Agent may resign and be discharged from its duties
hereunder at any time by giving notice of such resignation to Warrantholders and
Selling Shareholders, specifying a date not less than five business days
following the date of the notice when such resignation shall take effect. Upon
such notice, a successor escrow agent shall be jointly selected by a majority of
the Warrantholders and a majority of the Selling Shareholders to become the
Escrow Agent hereunder upon the resignation date specified in such notice. If a
majority of the Warrantholders and a majority of the Selling Shareholders are
unable to agree upon a successor escrow agent within such five business days
after the date of such notice, the Escrow Agent shall be entitled to appoint its
successor. The Escrow Agent shall continue to serve until its successor has
accepted the escrow by executing a counterpart copy of this Agreement, whereupon
the Escrow Agent shall have no further rights or obligations hereunder.
(B) The Escrow Agent undertakes to perform only such duties as are
specifically set forth herein and may conclusively rely on and shall be
protected in acting or refraining from acting on any written notice, instrument
or signature believed by it to be genuine and to have been signed or presented
by the proper party on parties duly authorized so to do. The Escrow Agent shall
have no responsibility for the contents of any writing contemplated herein and
may rely without any liability upon the contents thereof. The Escrow Agent
shall have no obligation to determine if any notice given to any party other
than the Escrow Agent has been timely given. It is acknowledged by
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Warrantholders and Selling Shareholders that the Escrow Agent is bound only by
the terms of this Agreement and that the Escrow Agent may, but shall not be
required to, use its discretion with respect to any matter that is the subject
of this Agreement or with respect to instructions received under this Agreement.
(C) The Escrow Agent shall not be liable for any action taken or
omitted to be taken by it in good faith and believed by it to be authorized
hereby or within the rights or powers conferred upon it hereunder, nor for any
action taken or omitted to be taken by it in good faith and in accordance with
the advice of counsel (which counsel may be of the Escrow Agent's own choosing),
and shall not be liable for any mistakes of fact or errors of judgment or for
any acts or omissions of any kind unless caused by its own willful misconduct or
gross negligence.
(D) ICI shall indemnify and hold harmless the Escrow Agent and its
partners, employees and agents from and against any and all costs, damages,
claims, liabilities, judgments and expenses (including reasonable attorneys'
fees) incurred by it in connection with or arising out of the performance of its
obligations under this Agreement, including without limitation all such costs
and expenses (including reasonable attorneys' fees) incurred by it as
contemplated by Section 6 hereof.
6. SETTLEMENT OF DISPUTES. In the event of a dispute with respect to any
provision of this Agreement or the rights or duties of any party hereto, the
Escrow Agent shall not be required to resolve that dispute or take any action
with respect thereto. The Escrow Agent may continue to hold the Escrowed Shares
and await final resolution of the dispute either:
(A) by mutual agreement of a majority of the Warrantholders and a
majority of the Selling Shareholders (evidenced by appropriate written
instructions to the Escrow Agent, signed by a majority of the
Warrantholders and by a majority of the Selling Shareholders); or
(B) by a final order, decree or judgment of a court of competent
jurisdiction (the time for appeal having expired and no appeal having been
perfected);
provided, however, that if such final order, decree or judgment is served upon
the Escrow Agent, the Escrow Agent shall comply with such final order, decree or
judgment (as the case may be) regardless of what may be instructed by the
parties. The Escrow Agent shall be under no duty whatsoever to institute or
defend any such proceedings. Notwithstanding the foregoing, the Escrow Agent
may at any time deliver the Escrowed Shares to a court of competent jurisdiction
under an appropriate action in interpleader and thereupon be relieved of all
responsibility under this Agreement.
7. COMPENSATION. The Escrow Agent shall be compensated by ICI based upon
actual expenses and time incurred by the Escrow Agent at the then current hourly
rates of attorneys within the Escrow Agent.
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8. THIRD PARTY BENEFICIARY. It is the intention of the parties that the
Warrantholders to be identified on Schedule II, and their permitted assigns and
successors in interest, shall be deemed to be third party beneficiaries of the
covenants contained in this Escrow Agreement and that, upon any Warrantholder's
exercise of his or her rights as set forth in the Warrant and Section 3(a)
hereof, such Warrantholder shall be entitled to enforce the covenants contained
in this Agreement in his or her own name and on his or her own behalf.
9. IN GENERAL.
(A) This Agreement shall be governed by and construed in accordance
with the laws of the State of Georgia applicable to agreements made and to be
performed entirely within such State.
(B) Each notice, demand, waiver, consent and other communication
required or permitted to be given hereunder shall be in writing and shall be
sent either by registered or certified first-class mail, postage prepaid and
return receipt requested, addressed as follows:
If to Selling Shareholders:
c/o International CompuTex, Inc.
Suite 507
0000 Xxxxxxxxxx Xxxxx Xxxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Xxxx X. Xxxxx, Chief Executive Officer
If to International Computex,
Inc: International CompuTex, Inc.
Xxxxx 000
0000 Xxxxxxxxxx Xxxxx Xxxxxxx
Xxxxxxx, Xxxxxxx 30328-4662
Attn: Xxxx X. Xxxxx, Chief Executive Officer
If to the Escrow Agent: Xxxxxxxx & Xxxxx, L.L.P.
Suite 4300
000 Xxxxxxxxx Xxxxxx X.X.
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxx X. Xxxx
Each such notice and other communication shall be deemed to have been given when
it is deposited in the United States mail in the manner specified herein. Any
party may change its address for the purpose hereof by giving notice in
accordance with the provisions of this Section 9(b).
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(C) Except insofar as this Agreement expressly refers to other
instruments and agreements between Warrantholders and Selling Shareholders, this
Agreement constitutes the entire understanding of the parties hereto with
respect to the subject matter hereof, and may not be modified, amended or
supplemented, or any of its provisions waived, except by a writing signed by all
of the parties hereto, or in the case of a waiver, by the party making the same.
No delay or omission by any party in exercising any right or remedy hereunder
shall operate as a waiver thereof or of any other right or remedy, and no single
or partial exercise thereof shall preclude any other or future exercise thereof
or the exercise of any right or remedy.
(D) This Agreement shall inure to the benefit of and shall be binding
upon the parties hereto and their respective successors and legal
representatives. Except as otherwise provided by Section 5(a) hereof, this
Agreement may not be assigned by any party without the written consent of each
of the other parties hereto.
(E) Selling Shareholders recognize that the Escrow Agent represents ICI
and that neither the execution and delivery of this Agreement by Escrow Agent,
nor the compliance by Escrow Agent with any of the provisions contained herein,
creates any agency relationship between the Escrow Agent and the Selling
Shareholders.
(F) Section headings contained in this Agreement have been inserted for
reference purposes only, and shall not be construed as part of this Agreement.
(G) This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
date first written above.
INTERNATIONAL COMPUTEX, INC.
By:
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Its
SELLING SHAREHOLDERS
By:
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Name:
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By:
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Name:
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By:
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Name:
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By:
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Name:
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By:
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Name:
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ESCROW AGENT
XXXXXXXX & XXXXX, L.L.P.
By:
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A Partner
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SCHEDULE I
The following shareholders have agreed to deposit an aggregate amount of
250,000 shares of the Company's Common Stock with Escrow Agent in the amount set
forth opposite their name below:
Xxxx X. Xxxxx 165,585
Xxxxxxx X. Xxxxxx 38,961
Xxxxxxxx Xxxxxxx Salem 32,468
Xxxxx X. XxXxxxxxx, III 6,493
Xxxxx X. Xxxx 6,493
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