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EXECUTION COPY
EXHIBIT 10.49
ESCROW AGREEMENT
This ESCROW AGREEMENT, dated as of March 30, 2001 ("ESCROW AGREEMENT")
is by and between XXXXXX TECHNOLOGIES, INC., a Delaware corporation (the
"COMPANY"); SunTrust Bank, a Georgia banking corporation, as Escrow Agent
hereunder ("ESCROW AGENT"); and the purchasers named on Exhibit A hereto (the
"ESCROW PURCHASERS").
BACKGROUND
A. The Company is offering for sale (i) an aggregate of 247,882
shares (the "SHARES") of its Series F Convertible Preferred Stock, $.01 par
value per share (the "SERIES F PREFERRED"), and (ii) warrants (collectively, the
"WARRANTS") to purchase an aggregate of 99,153 additional shares of Series F
Preferred at an exercise price of $166.41 per share (the "WARRANT SHARES"),
pursuant to the Securities Purchase Agreement (the "PURCHASE AGREEMENT"), dated
as of March 30, 2001, by and among the Company and the purchasers identified in
Exhibit A attached thereto.
B. In accordance with the Purchase Agreement, the Escrow
Purchasers will be required to submit full payment for their respective
investments at the time they enter into the Purchase Agreement.
C. Pursuant to the MarketPlace Rules of the Nasdaq National
Market (the "NNM"), and the Delaware General Corporation Law, the Company is
required to obtain stockholder approval for the issuance and sale of Series F
Preferred and Warrants (i) to the extent such shares of Series F Preferred and
Warrant Shares are convertible into a number of shares of Common Stock equal to
20% or more of the outstanding shares of Common Stock on the date hereof, (ii)
to certain affiliates of the Company and (iii) to the extent that the issuance
and sale of the Series F Preferred and Warrants constitute a change of control
under the MarketPlace Rules. Additionally, the Company will be required to amend
its Certificate of Incorporation to authorize, create and designate the Series F
Preferred and to increase the total number of shares of stock and the total
number of shares of Common Stock authorized to be issued in order to have a
sufficient number of shares of authorized Common Stock for issuance upon
conversion of all of the Series F Preferred. Pursuant to the Delaware General
Corporation law, the amendment to the Certificate of Incorporation to authorize,
create and designate the Series F Preferred and to increase the number of
authorized shares requires the approval of the stockholders of the Company (such
stockholder approval, together with the stockholder approval required by the
MarketPlace Rules of The Nasdaq National Market, hereinafter are referred to
collectively as the "REQUISITE STOCKHOLDER APPROVAL"). As a result, the Company
and those Escrow Purchasers identified on Exhibit A hereto have agreed to the
terms of the Purchase Agreement pursuant to which all of the Escrow Purchase
Price (as hereinafter defined) payable by such Escrow Purchasers and
certificates representing the Series F Shares and warrants shall be placed in
escrow pending the Company's receipt of the Requisite Stockholder Approval.
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D. In order to establish the escrow of funds, the parties hereto
have entered into this Escrow 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 following meanings when
used herein:
"CLOSING DATE" shall be March 30, 2001.
"ESCROW CERTIFICATES" shall have the meaning set forth in Section 3(b)
hereof.
"ESCROW FUNDS" shall mean the entirety of the Escrow Purchase Price
deposited with the Escrow Agent pursuant to this Escrow Agreement by the Escrow
Purchasers, together with any interest and other income thereon.
"ESCROW PURCHASE PRICE" shall mean the funds in the respective amounts
set forth opposite each Escrow Purchaser's name under the column "ESCROW
PURCHASE PRICE" on Exhibit A hereto.
"ESCROW PURCHASER" or "ESCROW PURCHASERS" shall have the meaning set
forth in the first paragraph of this Escrow Agreement.
"ESCROW WARRANTS" shall have the meaning set forth in Section 3 hereof.
"EXPIRATION DATE" shall mean July 30, 2001, or such later date as shall
be agreed to in writing by the Company and the Escrow Purchasers.
"MAJORITY OF ESCROW PURCHASERS" shall mean the Escrow Purchasers that
have deposited a majority of the Escrow Funds in the escrow.
"PRO RATA BASIS" with respect to the allocation among Escrow Purchasers
of interest and other earnings held in the Escrow Funds which derive solely from
the Escrow Funds, shall mean, for each Escrow Purchaser, the Escrow Purchaser's
Escrow Purchase Price multiplied by the number of days the Purchase Price of
such Escrow Purchaser was held in interest-bearing investments pursuant to
Section 5 hereof, multiplied by the average yield earned on the Escrow Funds
during such period of days.
"REQUISITE STOCKHOLDER APPROVAL" shall have the meaning set forth in
the section of this Escrow Agreement titled "Background".
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2. APPOINTMENT OF AND ACCEPTANCE BY ESCROW AGENT. The Company and the
Escrow Purchasers hereby appoint Escrow Agent to serve as escrow agent
hereunder, and Escrow Agent hereby accepts such appointment in accordance with
the terms of this Escrow Agreement.
3. DEPOSITS INTO ESCROW.
a. Deposit of Escrow Funds. On the Closing Date, each
Escrow Purchaser shall deposit with the Escrow Agent in the following account
the full amount of the Escrow Purchase Price set forth opposite such Escrow
Purchaser's name on Exhibit A hereto:
SunTrust Bank
Corporate Trust Department
Center #008
A/C #9088000008
ABA # 000000000
ATTN: Xxxxxxx Xxxxxxx
Re: Xxxxxx Technologies, Inc. - Escrow Account.
Such Escrow Purchase Price shall be paid in United States dollars in immediately
available funds by wire transfer to such account.
The Escrow Purchase Price deposited by each Escrow Purchaser shall be
accompanied by the following documents:
(1) a report containing such Escrow Purchaser's name,
taxpayer identification number, address and other
information required for withholding purposes; and
(2) a copy of the Purchase Agreement and this Escrow
Agreement, in each case signed by such Escrow
Purchaser as delivered to the Company.
ALL FUNDS SO DEPOSITED SHALL REMAIN THE PROPERTY OF THE ESCROW
PURCHASERS ACCORDING TO THEIR RESPECTIVE INTERESTS AND SHALL NOT BE SUBJECT TO
ANY LIEN OR CHARGE BY ESCROW AGENT OR BY JUDGMENT OR CREDITORS' CLAIMS AGAINST
THE COMPANY UNTIL RELEASED TO THE COMPANY IN ACCORDANCE WITH SECTION 4(a)
HEREOF.
b. Deposit of Escrow Certificates. On the Closing Date,
the Company shall deposit with the Escrow Agent (x) undated certificates in the
name of each Escrow Purchaser (collectively, the "ESCROW CERTIFICATES")
representing the number of Shares that will, upon receipt of the Requisite
Stockholder Approval, be issued to each Escrow Purchaser as set forth opposite
each such Escrow Purchasers name on Exhibit A hereto and (y) undated warrants
(the "ESCROW WARRANTS") representing the number of Warrant Shares that will,
upon receipt of the Requisite Stockholder Approval, be issued to each Escrow
Purchaser. The Escrow Certificates and Escrow Warrants shall be held and
distributed by the Escrow Agent, in accordance with the terms and conditions of
this Escrow Agreement. The parties hereto acknowledge and agree that
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the Shares to be represented by the Escrow Certificates and the Escrow Warrants
shall not be issued, or be deemed to have been issued, by the Company until
receipt of the Requisite Stockholder Approval and the disbursement of the Escrow
Funds to the Company pursuant to Section 4 hereof.
c. On the Closing Date, and in connection with the
deposit of Escrow Certificates and Escrow Warrants as set forth in Section 3(b)
hereof, the Company shall deliver to the Escrow Agent, irrevocable instructions
set forth in Exhibit B attached hereto (the "IRREVOCABLE INSTRUCTIONS") which
instruct the Transfer Agent, upon the receipt thereof, without any further
instruction or direction from the Company, to date and deliver final definitive
Escrow Certificates and Escrow Warrants pursuant to the provisions of Section
4(a) hereof.
d. Upon receipt, Escrow Agent shall hold the (i) Escrow
Funds, (ii) Escrow Certificates, (iii) Escrow Warrants, and (iv) the Irrevocable
Instructions until disbursed in accordance with Section 4 hereof.
4. DISBURSEMENT OF ESCROW FUNDS.
a. Disbursement Upon Receipt of Requisite Stockholder
Approval. Subject to the provisions of Section 10 hereof, Escrow Agent shall pay
to the Company the liquidated value of the Escrow Funds, less the Placement
Agent Fee (as defined below), by wire transfer to the Company's account set
forth on Exhibit C hereto (or such other account as the Company shall give
written notice), no later than two (2) business days following receipt by the
Escrow Agent of a certificate signed by an officer of the Company (the "NOTICE
OF DISBURSEMENT") certifying that the Company has obtained Requisite Stockholder
Approval on or before the Expiration Date. Simultaneously therewith, the Escrow
Agent shall pay to Xxxxxxxxx Xxxxxxxx, Inc. (the "PLACEMENT AGENT") $1,218,750
(the "PLACEMENT AGENT FEE") from the Escrow Funds by wire transfer to the
Placement Agent's account set forth on Exhibit F hereto (or such other account
as the Company shall give written notice). No later than the business day
following the Company's delivery of the Notice of Disbursement to the Escrow
Agent, the Company shall deliver by overnight courier or facsimile transmission
to each Escrow Purchaser a copy of the Notice of Disbursement.
Simultaneously with wiring to the Company Escrow Funds, less the
Placement Agent Fee, pursuant to this Section 4(a), Escrow Agent shall (x)
deliver to the Transfer Agent (i) the Escrow Certificates, (ii) the Escrow
Warrants, and (iii) Irrevocable Instructions to issue to each Escrow Purchaser
the number of Shares represented by each Escrow Purchaser's Escrow Certificate
and such Escrow Purchaser's Escrow Warrants in accordance with the Irrevocable
Instructions. Thereafter, the Company shall take all action necessary to cause
the Transfer Agent to cause the Shares to be issued on the books and records of
the Company and to deliver to each Escrow Purchaser the Escrow Certificate in
definitive form and dated representing such Escrow Purchaser's Shares as
indicated opposite such Escrow Purchaser's name on Exhibit A hereto, duly
executed on behalf of the Company and registered in the name of such Escrow
Purchaser, and (y) such Escrow Purchaser's Escrow Warrants to purchase the
number of Warrant Shares set
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forth opposite such Escrow Purchaser's name on Exhibit A hereto, duly executed
on behalf of the Company and registered in the name of such Escrow Purchaser.
b. Expiration of Escrow. (i) Notwithstanding anything to
the contrary contained herein, if Escrow Agent shall not have received a Notice
of Disbursement on or before the Expiration Date, Escrow Agent shall, within two
(2) business days after the Expiration Date without further instructions or
directions from the Company or the Escrow Purchasers, (x) return to each Escrow
Purchaser, by wire transfer of immediately available funds to such Escrow
Purchaser's Account set forth on Exhibit D hereto, the Escrow Purchase Price
deposited with the Escrow Agent by such Escrow Purchaser and such Escrow
Purchaser's share of income, if any, earned on the Escrow Funds, each such share
of income to be calculated on a Pro Rata Basis and (y) return to the Company the
Escrow Certificates and Escrow Warrants.
(ii) In the event that prior to the Expiration Date, the
Company holds a stockholders meeting at which a stockholder vote is actually
taken on the proposal or proposals to approve the Transaction Documents and the
transactions contemplated thereby and the Company does not obtain the Requisite
Stockholder Approval (the "STOCKHOLDER DISAPPROVAL"), the Company shall, within
two (2) business days after the Stockholder Disapproval notify each of the
Escrow Purchasers and the Escrow Agent of such Stockholder Disapproval (the
"DISAPPROVAL NOTICE"). Notwithstanding the foregoing, a stockholder vote on the
Transaction Documents and the transactions contemplated thereby shall not be
deemed to be a Stockholder Disapproval unless and until such vote is final and
the Company is not legally able to adjourn or otherwise postpone the stockholder
meeting for the purpose of reconsidering or revoting on such proposal.
Additionally, there shall be no Stockholder Disapproval if the Company adjourns
or postpones a stockholders meeting for any reason prior to the stockholders
vote on a proposal to approve the Transaction Documents and the transactions
contemplated thereby, or if there is otherwise not a full and final vote by the
stockholders on the Proposal that results in a Stockholder Disapproval. The
Escrow Agent shall, within two (2) business days after receipt of a Disapproval
Notice, without further instructions or directions from the Company or the
Escrow Purchasers, (x) return to each Escrow Purchaser, by wire transfer of
immediately available funds to such Escrow Purchaser's Account set forth on
Exhibit D hereto, the Escrow Purchase Price deposited with the Escrow Agent by
such Escrow Purchaser and such Escrow Purchaser's share of income, if any,
earned on the Escrow Funds, each such share of income to be calculated on a Pro
Rata Basis and (y) return to the Company the Escrow Certificates and Escrow
Warrants.
5. INVESTMENT OF FUNDS. Escrow Agent shall invest the Escrow Funds in a
separate and distinct STI Classic U.S. Treasury Securities Money Market Fund
deposit account bearing interest at a rate customary for like accounts offered
by the Escrow Agent.
Escrow Agent shall in no event be liable in connection with its
investment or reinvestment of the Escrow Funds held by it hereunder in good
faith, in accordance with the terms hereof, including, but not limited to, any
liability for any delays (not resulting from its gross negligence or willful
misconduct) in the investment or reinvestment of the Escrow Funds, or any loss
of interest incident to any such delays.
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6. SUSPENSION OF PERFORMANCE OR DISBURSEMENT INTO COURT. If, at any time,
there shall exist any dispute between the Company, Escrow Agent, any Escrow
Purchaser or any other person with respect to the holding or disposition of any
portion of the Escrow Funds or any other obligations of Escrow Agent hereunder,
or if at any time Escrow Agent is unable to determine, to Escrow Agent's sole
satisfaction, the proper disposition of any portion of the Escrow Funds or
Escrow Agent's proper actions with respect to its obligations hereunder, or if
the Company and a Majority of the Escrow Purchasers has not within 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
under this Escrow Agreement until such dispute or uncertainty shall be resolved
to the sole satisfaction of Escrow Agent or until a successor Escrow Agent shall
have been appointed (as the case may be); provided, however, that Escrow Agent
shall continue to invest the Escrow Funds in accordance with Section 5 hereof;
and/or
b. petition (by means of an interpleader action or any
other appropriate method) any court of competent jurisdiction in Georgia for
instructions with respect to such dispute or uncertainty, and pay into such
court all funds held by it in the Escrow Funds for holding and disposition in
accordance with the instructions of such court.
Escrow Agent shall have no liability to the Company, any
Escrow Purchaser 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 funds held in the Escrow Funds or any
delay in or with respect to any other action required or requested of Escrow
Agent.
7. RESIGNATION AND REMOVAL OF ESCROW AGENT. Escrow Agent may resign from
the performance of its duties hereunder at any time, for any reason, by giving
thirty (30) days' prior written notice to the Company and the Escrow Purchasers
or may be removed, with or without cause, by either the Company or a Majority of
the Escrow Purchasers, at any time by the giving of thirty (30) days' prior
written notice to Escrow Agent. Such resignation or removal shall take effect
upon the appointment of a successor Escrow Agent as provided below. Upon any
such notice of resignation, or removal, the Company and the Majority of the
Escrow Purchasers shall appoint a successor Escrow Agent hereunder, which shall
be a company bank, trust company or other financial institution with a combined
capital and surplus in excess of $100,000,000. Upon the acceptance in writing of
any appointment as Escrow Agent hereunder by a successor Escrow Agent, such
successor Escrow Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Escrow Agent, and the
retiring Escrow Agent shall be discharged from its duties and obligations under
this Escrow Agreement, but shall not be discharged from any liability for
actions taken as escrow agent hereunder prior to such succession. Upon removal
or resignation, Escrow Agent shall deliver all Escrow Funds, Escrow Certificates
and Escrow Warrants in its possession under this Escrow Agreement to any
successor Escrow Agent appointed by the Company and a Majority of the Escrow
Purchasers or,
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if no successor Escrow Agent has been appointed upon the effective date of such
resignation, to any court of competent jurisdiction. After any retiring Escrow
Agent's resignation or removal, 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, except that such resignation
shall not prevent Escrow Agent from receiving its compensation earned prior
thereto subject to Section 10 hereof.
8. LIABILITY OF ESCROW AGENT.
a. Escrow Agent shall have no liability or obligation
with respect to the Escrow Funds, the Escrow Certificates and the Escrow
Warrants except for Escrow Agent's willful misconduct or gross negligence.
Escrow Agent's sole responsibility shall be for the safekeeping, investment, and
disbursement of the Escrow Funds in accordance with the terms of this Escrow
Agreement. Escrow Agent shall have no implied duties or obligations and shall
not be charged with knowledge or notice of any fact or circumstance not
specifically set forth herein. Escrow Agent may rely upon any 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
in good faith believe to be genuine, to have been signed or presented by the
person or parties purporting to sign the same and to conform to the provisions
of this Escrow Agreement. Escrow Agent shall not be obligated to take any legal
action or commence any proceedings in connection with the Escrow Funds or any
account in which Escrow Funds are deposited or this Escrow Agreement or to
appear in, prosecute or defend any such legal action or proceeding which would
or might involve Escrow Agent in any cost, expense, loss or liability unless
indemnification shall be furnished. Without limiting the generality of the
foregoing, Escrow Agent shall not be responsible for or required to enforce any
of the terms or conditions of any Purchase Agreement with any Escrow Purchaser
or any other agreement between the Company and/or any Escrow Purchaser. Escrow
Agent shall not be responsible or liable in any manner for the performance by
the Company or any Escrow Purchaser of their respective obligations under any
Purchase Agreement nor shall Escrow Agent be responsible or liable in any manner
for the failure of the Company or any third party (including any Escrow
Purchaser) to honor any of the provisions of this Escrow Agreement. 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, and shall incur no liability and shall be fully
indemnified from any liability whatsoever in acting in good faith and in
accordance with the opinion or instruction of such counsel. The Company shall
promptly pay, upon demand, the reasonable fees and expenses of any such counsel.
b. The Escrow Agent is authorized, in its sole
discretion, to comply with orders issued or process entered by any court with
respect to the Escrow Funds, without determination by the Escrow Agent of such
court's jurisdiction in the matter. If any portion of the Escrow Funds 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 rely upon and comply with any such order,
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writ, judgment or decree which it is advised by legal counsel selected by its 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, the Company shall, to the fullest extent permitted by
law, indemnify and hold harmless the 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, indirect or consequential, as a
result of or arising from or in any way relating to any claim, demand, suit,
action or proceeding (including any inquiry or investigation) by any person,
including without limitation the Company, 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 negotiation, preparation, execution,
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 any Indemnified Party. If any such
action or claim shall be brought or asserted against any Indemnified Party, such
Indemnified Party shall promptly notify the Company in writing, and the Company
shall assume the defense thereof, including the employment of counsel and the
payment of all expenses. Such Indemnified Party shall, in its sole discretion,
have the right to employ separate counsel (who may be selected by such
Indemnified Party in its sole discretion) in any such action and to participate
in the defense, and the fees and expenses of such counsel shall be paid by such
Indemnified Party, except that the Company shall be required to pay such fees
and expenses if (a) the Company agrees to pay such fees and expenses, or (b) the
Company shall fail to assume the defense of such action or proceeding or shall
fail, in the reasonable discretion of such Indemnified Party, to employ counsel
satisfactory to the Indemnified Party in any such action or proceeding, (c) the
Company is the plaintiff in any such action or proceeding, or (d) the named
parties to any such action or proceeding (including any impleaded parties)
include both Indemnified Party and the Company, and Indemnified Party shall have
been advised by counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the Company.
The Company shall be liable to pay reasonable fees and expenses of counsel
pursuant to the preceding sentence. All such fees and expenses payable by the
Company pursuant to the forgoing sentence shall be paid from time to time as
incurred, both in advance of and after the final disposition of such action or
claim. The obligations of the Company under this Section 9 shall survive any
termination of this Escrow Agreement and the resignation or removal of Escrow
Agent.
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10. COMPENSATION TO ESCROW AGENT. The Company shall compensate Escrow Agent
for its services hereunder in accordance with the fee schedule for the Escrow
Agent attached as Exhibit E hereto. The foregoing compensation shall be payable
by the Company upon demand by Escrow Agent. The obligations of the Company under
this Section 10 shall survive any termination of this Escrow Agreement and the
resignation or removal of Escrow Agent.
11. REPRESENTATIONS AND WARRANTIES. (a) The Company makes the following
representations and warranties to Escrow Agent.
(i) The Company is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Delaware and has
full power and authority to execute and deliver this Escrow Agreement and to
perform its obligations hereunder;
(ii) This Escrow Agreement has been duly approved by all
necessary action of the Company, has been executed by duly authorized officers
of the Company, and constitutes a valid and binding agreement of the Company,
enforceable in accordance with its terms.
(iii) The execution, delivery, and performance by the
Company of this Escrow Agreement will not violate, conflict with, or cause a
default under the organizational documents of the Company, any applicable law or
regulation, any court order or administrative ruling or decree to which the
Company is a party or any of its property is subject, or any agreement,
contract, indenture, or other binding arrangement to which the Company is a
party or any of its property is subject.
(iv) No party other than the parties hereto and the
prospective Escrow Purchasers have, or shall have, any lien, claim or security
interest in the Escrow Funds 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 Funds
or any part thereof.
(v) The Company hereby acknowledges that the status of
Escrow Agent is that of agent only for the limited purposes set forth herein,
and hereby represents and covenants that no representation or implication shall
be made that the Escrow Agent has investigated the desirability or advisability
of investment in the Shares or has approved, endorsed or passed upon the merits
of the investment therein and that the name of the Escrow Agent has not and
shall not be used in any manner in connection with the offer or sale of the
Shares other than to state that the Escrow Agent has agreed to serve as escrow
agent for the limited purposes set forth herein. The Company further agrees to
allow Escrow Agent to review any sales literature in which Escrow Agent's name
appears and which is used in connection with this offering.
(vi) All of the representations and warranties of the
Company contained herein are true and complete as of the date hereof and will be
true and complete at the time of any deposit to or disbursement from the Escrow
Funds.
(b) Each Escrow Purchaser, severally and not jointly, makes the
following representations and warranties to Escrow Agent.
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(i) The Escrow Purchaser is duly organized, validly
existing, and in good standing under the laws of the state of its organization
and has full power and authority to execute and deliver this Escrow Agreement
and to perform its obligations hereunder;
(ii) This Escrow Agreement has been duly approved by all
necessary action of the Escrow Purchaser, has been executed by the Escrow
Purchaser, and constitutes a valid and binding agreement of the Escrow
Purchaser, enforceable in accordance with its terms.
(iii) The execution, delivery, and performance by the
Escrow Purchaser of this Escrow Agreement will not violate, conflict with, or
cause a default under the organizational documents of the Escrow Purchaser, any
applicable law or regulation, any court order or administrative ruling or decree
to which the Escrow Purchaser is a party or any of its property is subject, or
any agreement, contract, indenture, or other binding arrangement to which the
Escrow Purchaser is a party or any of its property is subject.
(iv) The Escrow Purchaser shall not have any lien or
security interest in the Escrow Purchase Price 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 Purchase Price or any part thereof.
(v) The Escrow Purchaser hereby acknowledges that the
status of Escrow Agent is that of agent only for the limited purposes set forth
herein, and hereby represents and covenants that no representation or
implication shall be made that the Escrow Agent has investigated the
desirability or advisability of investment in the Shares or Warrants or has
approved, endorsed or passed upon the merits of the investment therein.
12. NOTICE. All notices and other communications hereunder shall be in
writing and shall be deemed to have been validly served, given or delivered five
(5) days after deposit in the United States mails, by certified mail with return
receipt requested and postage prepaid, when delivered personally, one (1) day
after deliver to any overnight courier, or when transmitted by facsimile
transmission facilities, and addressed to the party to be notified as follows:
If to the Company at:
Xxxxxx Technologies, Inc.
0000 Xxxxx Xxxxx Xxxx
Xxxx Xxxxx, Xxxxxxx 00000
Telephone Number: (000) 000-0000
Facsimile Number: (000) 000-0000
Attn: Xxxxx Xxxxxx, Chief Financial Officer
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If to the Escrow Agent at:
SunTrust Bank
00 Xxxx Xxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Xxxxxxx Xxxxxxx
Telephone Number: (000) 000-0000
Facsimile Number: (000) 000-0000
or to such other address as each party may designate for itself by like notice.
A party shall not be charged with knowledge of any fact, including but not
limited to performance or non-performance of any condition, unless such party
has actually received notice thereof in accordance with this section.
13 AMENDMENT OR WAIVER. This Escrow Agreement may be changed, waived,
discharged or terminated only by a writing signed by the Company, the Escrow
Purchasers 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.
14 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.
15. GOVERNING LAW. This Escrow Agreement shall be construed and interpreted
in accordance with the internal laws of the State of Georgia without giving
effect to the conflict of laws principles thereof.
16. ENTIRE AGREEMENT. This Escrow Agreement constitutes the entire
agreement between the parties relating to the acceptance, collection, holding,
investment and disbursement of the Escrow Funds and sets forth in their entirety
the obligations and duties of the Escrow Agent with respect to the Escrow Funds
and supersedes all prior agreements or understandings, written or oral, between
the parties with respect thereto.
17. 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 the Company and Escrow
Agent.
18. EXECUTION IN COUNTERPARTS. This Escrow Agreement may be executed in two
or more counterparts, which when so executed shall constitute one and the same
agreement.
19. TERMINATION. Upon the first to occur of the disbursement of all amounts
in the Escrow Funds or deposit of all amounts in the Escrow Funds into court
pursuant to Section 6 hereof, this
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Escrow Agreement shall terminate and Escrow Agent shall have no further
obligation or liability whatsoever with respect to this Escrow Agreement or the
Escrow Funds.
20. DEALINGS.
a. The Escrow Agent and any stockholder, director,
officer or employee of the Escrow Agent may buy, sell, and deal in any of the
securities of the Company and become pecuniarily interested in any transaction
in which the Company may be interested, and contract and lend money to the
Company 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 the Company or any other entity.
b. The Company shall provide Escrow Agent with its
Employer Identification Number as assigned by the Internal Revenue Service.
Additionally, the Company shall complete and return to Escrow Agent any and all
tax forms or reports required to be maintained or obtained by Escrow Agent. In
the event that Escrow Funds are returned to Escrow Purchasers pursuant to
Section 4 hereof, Escrow Agent shall, based upon the information available to
it, file with the Internal Revenue Service and send to each Escrow Purchaser a
Form 1099-INT with respect to contributions of interest to Escrow Purchasers.
All interest or other income earned under this Escrow Agreement which is payable
to the Company pursuant to Section 4 hereof shall be allocated and paid as
directed by the Company and reported to the Internal Revenue Service as having
been so allocated and paid.
c. The Company's and Escrow Agent's signatures hereto
shall signify their consent that a signed copy hereof may be filed with the
various regulatory authorities of the State of Georgia and with any Federal
Government agencies or regulatory authorities.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have caused this Escrow
Agreement to be executed under seal as of the date first above written.
XXXXXX TECHNOLOGIES, INC.
By: /s/ Xxxxx Xxxxxx
------------------------------------------
Name: Xxxxx Xxxxxx
Title: Chairman and Chief Executive Officer
ATTEST:
/s/ Xxxxxxx X. Xxxxxx
------------------------------
Secretary
[CORPORATE SEAL]
SUNTRUST BANK
as Escrow Agent
By: /s/ Xxxxxxx Xxxxxxx
------------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Assistant Vice President
[PLACEMENT AGENT SIGNATURE ON NEXT PAGE]
14
[SIGNATURE PAGE TO XXXXXX ESCROW AGREEMENT]
PLACEMENT AGENT:
XXXXXXXXX XXXXXXXX, INC.
By: /s/ Illegible
------------------------------------------
Name:
Title: Managing Director
[ESCROW PURCHASERS SIGNATURES BEGIN ON NEXT PAGE]
15
[SIGNATURE PAGE TO XXXXXX ESCROW AGREEMENT]
PURCHASERS:
HARBOURVEST PARTNERS VI - DIRECT FUND L.P.
By: HVP VI-DIRECT ASSOCIATES, L.L.C.
Its General Partner
By: HARBOURVEST PARTNERS, LLC
Its General Partner
By: /s/ Xxxx Xxxxxxxxxx
------------------------------------------
Xxxx Xxxxxxxxxx, Managing Director
[SIGNATURES CONTINUED ON NEXT PAGE]
16
[SIGNATURE PAGE TO XXXXXX ESCROW AGREEMENT]
SAIC VENTURE CAPITAL CORPORATION
By: /s/ Xxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
[SIGNATURES CONTINUED ON NEXT PAGE]
17
[SIGNATURE PAGE TO XXXXXX ESCROW AGREEMENT]
ROYAL XXXXX VENTURES, LLC
By: /s/ Xxxxxx X. Xxxx
------------------------------------------
Name: Xxxxxx X. Xxxx
Title: Managing Member
[SIGNATURES CONTINUED ON NEXT PAGE]
18
[SIGNATURE PAGE TO XXXXXX ESCROW AGREEMENT]
ST. XXXX VENTURE CAPITAL VI, LLC
By: SPVC MANAGEMENT VI, LLC
Its: Managing Member
By: /s/ Xxxxxxx X. Xxxx
------------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Senior Managing Director
[SIGNATURES CONTINUED ON NEXT PAGE]
19
[SIGNATURE PAGE TO XXXXXX ESCROW AGREEMENT]
ABS VENTURES IV, L.P.
By: XXXXXXX CAPITAL, LLC
Its: General Partner
By: /s/ Xxxxx Xxxxxxx
------------------------------------------
Xxxxx Xxxxxxx, its manager
ABX FUND, L.P.
By: XXXXXXX CAPITAL II, LLC
Its: General Partner
By: /s/ Xxxxx Xxxxxxx
------------------------------------------
Xxxxx Xxxxxxx, its manager
[SIGNATURES CONTINUED ON NEXT PAGE]
20
[SIGNATURE PAGE TO XXXXXX ESCROW AGREEMENT]
HALIFAX FUND, L.P.
By: /s/ Xxxxxxx Xxxxxx
------------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Managing Director
[SIGNATURES CONTINUED ON NEXT PAGE]
21
[SIGNATURE PAGE TO XXXXXX ESCROW AGREEMENT]
BAYSTAR CAPITAL, L.P.
By: /s/ Xxxxx Xxxxxxxx
------------------------------------------
Name: Xxxxx Xxxxxxxx
Title:
BAYSTAR INTERNATIONAL LTD.
By: /s/ Xxxxx Xxxxxxxx
------------------------------------------
Name: Xxxxx Xxxxxxxx
Title:
[SIGNATURES CONTINUED ON NEXT PAGE]
22
[SIGNATURE PAGE TO XXXXXX ESCROW AGREEMENT]
SPECIAL SITUATIONS PRIVATE
EQUITY FUND, L.P.
By: /s/ Xxxxx Greenhouse
------------------------------------------
Name: Xxxxx Greenhouse
Title: Managing Director
SPECIAL SITUATIONS CAYMEN FUND, L.P.
By: /s/ Xxxxx Greenhouse
------------------------------------------
Name: Xxxxx Greenhouse
Title: Managing Director
