ESCROW AGREEMENT
THIS AGREEMENT is made this 29th day of September, 2004, by and between
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ENTECH ENVIRONMENTAL TECHNOLOGIES, INC., a Florida corporation (the "Company"),
XXXXXX X. XXXXXXXX ("Xxxxxxxx"), and XXXXXX X. XXXXXXXX (the "Escrow Agent").
WHEREAS, the company has delivered to Christie 1,000,000 shares of S8 Stock
and 1,833,333 shares of common stock all totaling 2,833,333 shares, pursuant to
the Reorganization agreement.
WHEREAS, the Company and Christie desire to provide for an escrow with
respect to certain shares of the Common Stock owned by Christie as provided in
the Note Purchase Agreement;
NOW, THEREFORE, in consideration of the foregoing and the following mutual
covenants and agreements, the parties agree as follows:
1. Creation of Escrow. Christie shall deliver into escrow with the
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Escrow Agent, the receipt of which is hereby acknowledged by the Escrow Agent,
2,500,000 shares of the Company Common Stock (the "Escrowed Shares"). The escrow
created hereunder shall continue until December 31, 2004 or until such time as
the Board of Directors of the Company has deemed in their sole discretion and
good faith judgment that Christie has cooperated fully with the Company in the
proceedings to liquidate all aspects of the business and operations of
Xxxxxxxx-Xxxxxxxx Development, whichever is the later.
2. Voting Rights. So long as Christie has fully complied with the terms
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of this Agreement, Christie shall have the right to vote all of the Escrowed
Shares, and the Escrow Agent shall on demand execute and deliver an effective
proxy or proxies in favor of Christie, whenever demand is made upon the Escrow
Agent for such proxy or proxies by Christie.
3. Duty of the Escrow Agent. The sole duty of the Escrow Agent, other
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than as hereinafter specified, shall be to receive the Escrowed Shares and hold
them subject to release, in accordance with this Agreement.
4. Release of the Escrowed Shares and Termination. The Escrow Agent
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shall release the Escrowed Shares upon receipt of written notice from the
Company of the satisfaction of all of the terms of this Agreement. Upon the
complete delivery of the Escrowed Shares by the Escrow Agent to Christie in
accordance with the distribution terms hereinabove set forth, the Escrow Agent
shall be relieved of all liabilities in connection with the Escrow Account and
this Agreement shall terminate.
5. Liability of the Escrow Agent. The duties of the Escrow Agent
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hereunder will be limited to observance of the express provisions of this
Agreement. Furthermore, the Escrow Agent is not expected or required to be
familiar with the provisions of any other writing, understanding or agreement,
and shall not be charged with any responsibility or liability in connection with
the observance or non-observance of the provisions of such other writing,
understanding or agreement, and no implied covenant of any type whatsoever shall
be read into this Agreement. The Escrow Agent may rely and act upon any
instrument received by it pursuant to this Agreement which it reasonably
believes to be in conformity with the requirements of this Agreement and the
Escrow Agent shall not be responsible for determining the genuineness,
authenticity of authority from any such instrument or the person signing same.
The Escrow Agent will not be liable for any action taken or not taken by it
under the terms of this Agreement in the absence of fraud or gross negligence on
its part.
The further provisions shall govern the Escrow Agent's liabilities
hereunder:
(a) In receiving the Escrowed Shares, the Escrow Agent acts only as
a depository and thereby assumes no responsibility, except pursuant to the terms
of this Agreement.
(b) The Escrow Agent may act or refrain from acting in respect of
any matter covered by this Agreement in full reliance upon and with the advice
of counsel which may be selected by it, and shall be fully protected in so
acting or in refraining from acting upon the advice of such counsel.
Furthermore, the Escrow Agent may rely and shall be protected in acting upon any
writing that may be submitted to it in connection with its duties
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hereunder without determining the genuineness, authenticity or due authority
from any such writing or the person signing same and shall have no liability or
responsibility with respect to the form, content or validity thereof.
(c) The Escrow Agent shall have no responsibility or liability for
any act or omission on its part, notwithstanding any demand or notice to the
contrary by the Company or any other person or entity, all subject to the sole
limitation that the Escrow Agent exercises its best judgment. Except as herein
expressly provided, none of the provisions of this Agreement shall require the
Escrow Agent to expend or risk its own funds or otherwise incur financial
liability or expense in the performance of any of its duties hereunder.
(d) The Escrow Agent is hereby authorized to comply with and obey all
orders, judgments, decrees or writs entered or issued by any court, and in the
event the Escrow Agent obeys or complies with any such order, judgment, decree
or writ, in whole or in part, it shall not be liable to the Company and Christie
or any other parties to this Agreement, or to any other person or entity, by
reason or such compliance, notwithstanding that it shall be determined that any
such order, judgment, decree or writ be entered without jurisdiction or be
invalid for any reason or be subsequently reversed, modified, annulled,
satisfied or vacated.
(e) The Escrow Agent shall not be required to institute or defend
any action or legal process involving any matter referred to herein which in any
manner affects its duties or liabilities hereunder to take any other action with
reference to the Escrowed Shares not specifically agreed to herein, and the
Escrow Agent shall not be responsible for any act or failure to act on its part
except in the case of its own fraud or gross negligence.
(f) Should any controversy arise between the Escrow Agent, the
Company, or Christie or between any other person or entity with respect to this
Agreement, or with respect to the ownership of or the right to receive the
Escrowed Shares, the Escrow Agent shall have the right to institute a plea of
interpleader in any court of competent jurisdiction to determine the rights of
the parties. Should a plea of interpleader be instituted, or should the Escrow
Agent become involved in litigation in any manner whatsoever connected with or
pertaining to this Agreement or the Escrowed Shares, the Company and Christie
hereby agree to pay the Escrow Agent, on demand, in addition to any charge made
hereunder for acting as Escrow Agent, reasonable attorneys' fees incurred by the
Escrow Agent, and any other disbursements, expenses, losses, costs, and damages
in connection with or resulting from such litigation.
6. Indemnification. The Company and Christie hereby agree to
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indemnify and hold the Escrow Agent harmless from and against any and all
claims, loses, liabilities, costs, damages, fees charges and expenses (including
attorneys' fees) which the Escrow Agent may incur or sustain by reason of its
acting as Escrow Agent under this Agreement, unless same shall result from the
fraud or gross negligence of the Escrow Agent.
7. Resignation. The Escrow Agent may resign as Escrow Agent at any time by
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giving the Company and Christie at least 10 days' prior written notice of such
resignation. If, on the effective date of such resignation, the Escrow Agent has
not received written instructions of appointment of a successor Escrow Agent,
the Escrow Agent may thereupon deposit the Escrowed Shares and stock powers into
the registry of a court of competent jurisdiction. The parties hereto intend
that a substitute Escrow Agent will be appointed to fulfill the duties of the
Escrow Agent hereunder for the remaining term of this Agreement in the event of
the Escrow Agent's resignation, and the Company and Christie will use their best
efforts to promptly appoint a substitute Escrow Agent who shall be bound by the
terms and provisions of this Agreement.
8. Termination and Amendment. This Agreement shall remain in effect
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until the Escrowed Shares are released in accordance herewith; provided that any
Escrow Agent hereunder who resigns in accordance with the terms hereof shall no
longer be bound by this Agreement, but this Agreement shall remain in effect,
notwithstanding such resignation, for purposes of determining the rights and
duties of the Company and Christie and any successor Escrow Agent. No amendment
or modification to this Agreement shall be in force or effect unless signed by
the parties hereto.
9. No Trusteeship. The Company and Christie agree that the Escrow
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Agent is acting solely as an escrowee hereunder and not as a trustee and that
the Escrow Agent has no fiduciary duties, obligations or liabilities under this
Agreement.
10. Attorneys' Fees. In the event that it should become necessary for
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any party entitled hereunder to bring suit against any other party to this
Agreement for a breach of this Agreement, the parties hereby covenant and
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agree that the party who is found to be in breach of this Agreement shall also
be liable for all reasonable attorneys' fees and costs of court incurred by the
other parties.
11. Benefit. All the terms and provisions of this Agreement shall be
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binding upon and inure to the benefit of and be enforceable by the parties
hereto, and their respective heirs, executors, administrators, personal
representatives, successors and permitted assigns.
12. Notices. All notices, requests, demands, and other communications
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hereunder shall be in writing and delivered personally or sent by registered or
certified United States mail, return receipt requested with postage prepaid, by
facsimile, or by e-mail, if to the Company, addressed to Xx. Xxxx Xxxxxxxx at
000 Xxxx Xxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxx 00000, telecopier (000) 000-0000,
and e-mail xxxx.xxxxxxxx@xxxxxxx.xxx; and if to Christie, addressed to Xx.
Xxxxxx X. Xxxxxxxx at 0000 Xxxxxxxxx Xxxxxx, Xxxxxx Xxxxxxxxx, Xxxxxxxxxx 00000,
telecopier (000) 000-0000, and e-mail xxx@xxxxxxxxxxxxxx.xxx; and if to the
Escrow Agent, addressed to Xxxxxx X. Xxxxxxxx, Esq. at 000 Xxxxxx Xxxxxx, Xxxxx
0000, Xxxxxxx, Xxxxx 00000, telecopier (000) 000-0000, and e-mail
xxxxxxxxx@xxx-xxx.xxx. Any party may change its address for purposes of
receiving notices pursuant to this Agreement upon 10 days written notice.
13. Construction. Words of any gender used in this Agreement shall be
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held and construed to include any other gender, and words in the singular number
shall be held to include the plural, and vice versa, unless the context requires
otherwise. In addition, the pronouns used in this Agreement shall be understood
and construed to apply whether the party referred to is an individual,
partnership, joint venture, corporation or an individual or individuals doing
business under a firm or trade name, and the masculine, feminine and neuter
pronouns shall each include the other and may be used interchangeably with the
same meaning.
14. Waiver. No course of dealing on the part of any party hereto or its
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agents, or any failure or delay by any such party with respect to exercising any
right, power or privilege of such party under this Agreement or any instrument
referred to herein shall operate as a waiver thereof, and any single or partial
exercise of any such right, power or privilege shall not preclude any later
exercise thereof or any exercise of any other right, power or privilege
hereunder or thereunder.
15. Cumulative Rights. The rights and remedies of any party under
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this Agreement and the instruments executed or to be executed in connection
herewith, or any of them, shall be cumulative and the exercise or partial
exercise of any such right or remedy shall not preclude the exercise of any
other right or remedy.
16. Invalidity. In the event any one or more of the provisions
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contained in this Agreement shall, for any reason, be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect the other provisions of this Agreement or any
such other instrument.
17. Representations, Warranties and Agreements to Survive. All indemnity
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agreements set forth in this Agreement, as well as all representations,
warranties, covenants and other agreements set forth in this Agreement shall
remain operative and in full force and effect at the termination of this
Agreement, and any successor of the parties shall be entitled to the benefit of
the respective representations, warranties and agreements made herein.
18. Cumulative Rights. The rights and remedies contained in this
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Agreement shall be cumulative and the exercise or partial exercise of any such
right or remedy shall not preclude the exercise of any other right or remedy.
19. Headings. The headings used in this Agreement are for convenience
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and reference only and in no way define, limit, amplify or describe the scope or
intent of this Agreement, and do not effect or constitute a part of this
Agreement.
20. Excusable Delay. The parties shall not be obligated to perform and
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shall not be deemed to be in default hereunder, if the performance of a
non-monetary obligation required hereunder is prevented by the occurrence of any
of the following, other than as the result of the financial inability of the
party obligated to perform: acts of God, strikes, lock-outs, other industrial
disturbances, acts of a public enemy, war or war-like action (whether actual,
impending or expected and whether de jure or de facto), acts of terrorists,
arrest or other restraint of governmental (civil or military), blockades,
insurrections, riots, epidemics, landslides, lightning, earthquakes, fires,
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hurricanes, storms, floods, washouts, sink holes, civil disturbances,
explosions, breakage or accident to equipment or machinery, confiscation or
seizure by any government of public authority, nuclear reaction or radiation,
radioactive contamination or other causes, whether of the kind herein enumerated
or otherwise, that are not reasonably within the control of the party claiming
the right to delay performance on account of such occurrence.
21. No Third-Party Beneficiary. Any agreement to pay an amount and
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any assumption of liability contained in this Agreement, express or implied,
shall be only for the benefit of the undersigned parties and their respective
successors and assigns (as herein expressly permitted), and such agreements and
assumptions shall not inure to the benefit of the obligees or any other party,
whomsoever, it being the intention of the parties hereto that no one shall be or
be deemed to be a third-party beneficiary of this Agreement.
22. Time of the Essence. Time is of the essence of this Agreement.
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23. Multiple Counterparts. This Agreement may be executed in one or
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more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. A facsimile transmission
of this signed Agreement shall be legal and binding on all parties
hereto.
24. Law Governing; Jurisdiction. This Agreement shall be governed by
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and construed in accordance with the laws of the State of Texas without regard
to any conflicts of laws provisions thereof. Each party hereby irrevocably
submits to the personal jurisdiction of the United States District Court located
in Houston, Texas, as well as of the District Courts of the State of Texas in
Houston, Texas over any suit, action or proceeding arising out of or relating to
this Agreement. Each party hereby irrevocably waives, to the fullest extent
permitted by law, any objection which it may now or hereafter have to the laying
of the venue of any such mediation, arbitration, suit, action or proceeding
brought in any such county and any claim that any such mediation, arbitration,
suit, action or proceeding brought in such county has been brought in an
inconvenient forum.
25. Incorporation by Reference. The Note Purchase Agreement or
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any of the Attachments referred to therein, constitute integral parts to this
Agreement and are incorporated into this Agreement by this reference.
26. Entire Agreement. This instrument and the attachments hereto, as
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well as any collateral agreements relating to the subject matter hereto, contain
the entire understanding of the parties with respect to the subject matter
hereof and may not be changed orally, but only by an instrument in writing
signed by the party against whom enforcement of any waiver, change,
modification, extension, or discharge is sought.
IN WITNESS WHEREOF, this Agreement has been executed in multiple
counterparts on the date first written above.
ENTECH ENVIRONMENTAL TECHNOLOGIES,
By /s/ Xxxx Xxxxxxxx, President
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Xxxx Xxxxxxxx, President
/s/ Xxxxxx X. Xxxxxxxx
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XXXXXX X. XXXXXXXX
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XXXXXX X. XXXXXXXX
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