ESCROW AGREEMENT
ESCROW AGREEMENT (the “Escrow Agreement”) dated as of
March 26, 2010, by and between Willing Holding, Inc., a Florida corporation
(“WHDX”), 11i Solutions,
Inc. a Georgia corporation (“11i”) and Xxxxxxxxx Xxxxxxxxxx
& Beilly LLP, a Florida limited liability partnership (the “Escrow Agent”).
WITNESSETH
WHEREAS, WHDX and 11i are
parties to a Purchase Agreement of even date herewith (the “Purchase Agreement”);
and
WHEREAS, the Purchase
Agreement provides that 11i will purchase and acquire from WHDX (the “Share Purchase”) an aggregate
of Twenty-Five Million (25,000,000) shares of WHDX common stock, par value of
$0.001 per share (the “WHDX
Shares”) for an aggregate purchase price of Two Hundred Twenty-Five
Thousand Dollars ($225,000.00) (the “Price"); and
WHEREAS, THE Purchase
Agreement provides that the Price and WHDZ Shares shall be delivered in three
installment over the next ninety (90) days pursuant to the terms and conditions
of this Escrow Agreement, and
WHEREAS, WHDZ and 11i desire
to engage the Escrow Agent to hold the Price and the WHDX Shares following the
closing of the Purchase Agreement and to facilitate delivery thereof to the
respective parties pursuant to and upon the terms and conditions hereinafter set
forth; and
WHEREAS, the Escrow Agent has
agreed to act as escrow agent, upon the terms and conditions set forth in this
Escrow Agreement.
NOW, THEREFORE, for good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged by each of the parties hereto, the parties hereto hereby agree as
follows:
1. Appointment
of Escrow Agent. WHDX and 11i hereby appoint Xxxxxxxxx
Xxxxxxxxxx & Beilly LLP as escrow agent upon the terms and conditions set
forth herein, and the Escrow Agent hereby accepts such appointment.
2. Delivery
of Escrow Property. As provided in the Purchase Agreement (a)
WHDX shall deposit with the Escrow Agent within three (3) business days from the
execution of this Escrow Agreement the WHDX Shares represented by three (3)
stock certificates in the denominations of 8,300,000 shares, 8,300,000 shares
and 8,400,000 shares (the “WHDX’s Escrow Property”) each
in the name of 11i Solutions, Inc., and (b) 11i shall deposit with the Escrow
Agent (“11i’s Escrow
Property”) funds which in the aggregate are equal to Two Hundred
Twenty-Five Thousand Dollars ($225,000.00), in installments as follows: $75,000
(“First Installment”)
within five (5) business days from the execution of this Escrow Agreement;
$75,000 (“Second
Installment”) within sixty (60) days of the execution of this Escrow
Agreement, or ninety (90) days of the execution of this Escrow Agreement in the
event WHDX delivers to the Escrow Agent prior to the sixtieth day written notice
that the Second Installment payment date has been extended (“Extended”) to ninety (90) days
from the execution of this Escrow Agreement; and $75,000 within ninety (90) days
of the execution of this Escrow Agreement (“Third Installment”)
.. WHDX’s Escrow Property and 11i’s Escrow Property as deposited with
the Escrow Agent are sometimes hereinafter referred to as the “Escrow
Property”. The Escrow Property shall be maintained on deposit
by the Escrow Agent in accordance with the terms and conditions
hereof. This Escrow Agreement and the escrow created hereunder shall
not become effective unless and until the Escrow Property has been deposited
with the Escrow Agent.
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In the
event that the WHDX Escrow Property is not deposited (“Escrow Account”) by WHDX
with the Escrow Agent within three (3) business days following the execution of
this Escrow Agreement or the First Installment of the 11i Escrow Property in the
amount of $75,000 is not deposited in the Escrow Account by 11i with the Escrow
Agent within five (5) business days following the execution of this Escrow
Agreement, the Escrow Agent shall return all Escrow Property it received to the
party it received the Escrow Property from, and this Escrow Agreement shall be
deemed null and void and no further action shall be required on the part of the
Escrow Agent.
The Funds
shall be delivered by (a) cashiers or bank check of immediately available funds
payable to “Escrow Account of Xxxxxxxxx Xxxxxxxxxx & Beilly LLP as Escrow
Agent” or (b) wire transfer to the special account of the Escrow Agent at the
following coordinates:
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Bank:
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Sabadell
United Bank
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ABA:
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000000000
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Acct
No.:
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0225002500
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Address:
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0000
Xxxxx Xxxxxxxx Xxxxx
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Xxxx
Xxxxx, XX 00000
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To
the benefit of:
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Xxxxxxxxx
Xxxxxxxxxx & Beilly LLP as escrow agent for WHDX and
11i
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WHDX and 11i understand that the Escrow
Account shall not bear interest and no investment of the Escrow Property shall
be made while held by the Escrow Agent.
3. Release
of Escrow Property. The Escrow Agent shall disburse the Escrow
Property, as follows:
(a) In
the event the WHDX Escrow Property and the First Installment of the 11i Escrow
Property is deposited with the Escrow Agent within five (5) business days
following the execution of this Escrow Agreement, the Escrow Agent shall within
three (3) business days (i) deliver that part of the WHDX Escrow Property
represented by a certificate in the amount of 8,300,000 shares to 11i, and (ii)
deliver the funds represented by the First Installment of 11i Escrow Property to
the persons, at the location coordinates and in the amounts set forth on Exhibit
A attached hereto, under the column titled “Amount Paid, 1st”.
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(b) In
the event the Escrow Agent does not receive the Second Installment of the 11i
Escrow Property within sixty (60) days of the execution of this Escrow
Agreement, or ninety (90) days in the event WHDX Extended the payment date to
ninety (90) days , within three (3) business days from said sixtieth (60) day,
or ninetieth (90) day, as the case may be, (i) the Escrow Agent shall return the
remaining WHDX Escrow Property represented by a certificate for 8,300,000 shares
and 8,400,000 shares to WHDX and this Escrow Agreement shall be deemed
terminated and no further action shall be required on the part of the Escrow
Agent.
(c) In
the event the Escrow Agent receives the Second Installment of the 11i Escrow
Property within sixty (60) days of the execution of this Escrow Agreement, or
ninety (90) days, as the case may be if Extended, , within three (3) business
days from said sixtieth (60) day , or ninetieth (90) day as the case may be if
Extended, the Escrow Agent shall (i) deliver that portion of the WHDX’s Escrow
Property represented by a certificate for 8,300,000 shares to 11i’s, and (ii)
deliver the funds represented by the Second Installment of 11i Escrow Property
to the persons, at the location coordinates and in the amounts set forth on
Exhibit A attached hereto, under the column titled “Amount Paid, 2nd”.
(d) In
the event the Escrow Agent does not receive the Third Installment of the 11i
Escrow Property within ninety (90) days of the execution of this Escrow
Agreement, within three (3) business days from said ninetieth (90) day (i) the
Escrow Agent shall return the remaining WHDX Escrow Property represented by a
certificate for 8,400,000 shares to WHDX and this Escrow Agreement shall be
deemed terminated and no further action shall be required on the part of the
Escrow Agent.
(e) In
the event the Escrow Agent receives the Third Installment of the 11i Escrow
Property within ninety (90) days of the execution of this Escrow Agreement,
within three (3) business days from said ninetieth (90) day, the Escrow Agent
shall (i) deliver that portion of the WHDX’s Escrow Property represented by a
certificate for 8,400,000 shares to 11i’s, and (ii) deliver the funds
represented by the Third Installment of 11i Escrow Property to the persons, at
the location coordinates and in the amounts set forth on Exhibit A attached
hereto, under the column titled “Amount Paid, 3rd”. Upon disbursement
of the Third Installment as described herein, this Escrow Agreement shall be
deemed terminated and no further action shall be required on the part of the
Escrow Agent.
(f) Upon
disbursement of the Escrow Property as set forth in this Section 3, the
obligations of the Escrow Agent under this Escrow Agreement shall
terminate.
4. Disbursement
Into Court. At any time, the Escrow Agent, in its sole
discretion, may commence an action in the nature of interpleader in any court it
deems appropriate, to determine ownership or disposition of the Escrow Property
or it may deposit the Escrow Property with the clerk of any appropriate court or
it may retain the Escrow Property pending receipt of a final, non-appealable
order of a court having jurisdiction over all of the parties hereto directing to
whom and under what circumstances the Escrow Property are to be disbursed and
delivered. During the pendency of any such action, the Escrow Agent
may 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). The Escrow Agent shall have no
liability to WHDX, 11i 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 Account or
any delay in or with respect to any other action required or requested of Escrow
Agent.
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5. Limitation
of Responsibility and Liability and Duties of the Escrow
Agent. The acceptance by the Escrow Agent of its duties as
such under this Escrow Agreement is subject to the following terms and
conditions, which all parties to this Escrow Agreement hereby agree shall govern
and control with respect to the rights, duties, liabilities and immunities of
the Escrow Agent:
(a) The
Escrow Agent shall not be liable for any error in judgment or mistake of law or
fact, or for any action taken or omitted to be taken by it, or any action
suffered by it to be taken or omitted by it, in good faith and in the exercise
of its own best judgment. The Escrow Agent shall not be liable for
any delay in delivering Escrow Property as required hereby, absent its own
negligence or willful misconduct.
(b) The
Escrow Agent may rely conclusively and shall be protected in acting upon any
order, notice, demand, certificate, opinion or advice of counsel (including
counsel chosen by the Escrow Agent other than itself), statement, instrument,
report or other paper or document (not only as to its due execution and validity
and effectiveness of its provisions, but also as to the truth and acceptability
of any information therein contained) which is believed by the Escrow Agent to
be genuine and to be signed or presented by the proper person or
persons.
(c) The
Escrow Agent shall not be bound by any notice or demand, or any waiver,
modification, termination or rescission of this Escrow Agreement unless
evidenced by a writing delivered to the Escrow Agent signed by WHDX and 11i and,
if the duties or rights of the Escrow Agent are affected by any such
modification of or waiver under this Escrow Agreement, unless the Escrow Agent
shall have given its prior written consent thereto.
(d) The
Escrow Agent acts hereunder as a depositary only, and shall not be responsible
for the sufficiency or accuracy, the form of, or the execution, validity, value
or genuineness of any document or property received, held or delivered by it
hereunder, or of any signature or endorsement thereon, or for any lack of
endorsement thereon, or for any description therein, nor shall the Escrow Agent
be responsible or liable in any respect on account of the identity, authority or
rights of the persons executing or delivering or purporting to execute or
deliver any document or property paid or delivered by the Escrow Agent pursuant
to the provisions hereof.
(e) The
Escrow Agent shall have the right to assume, in the absence of written notice to
the contrary from WHDX and 11i that a fact or an event by reason of which an
action would or might be taken by the Escrow Agent does not exist or has not
occurred, without incurring liability for any action taken or omitted, in good
faith and in the exercise of its own best judgment, in reliance upon such
assumption.
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(f) The
Escrow Agent shall be indemnified and held harmless by WHDX and 11i upon demand
by the Escrow Agent, from and against any claims, demands, losses, damages,
liabilities, costs and expenses, including counsel fees and disbursements,
(collectively, “Damages”) suffered by the
Escrow Agent in connection with any action, suit or other proceeding involving
any claim, or in connection with any claim or demand, which in any way directly
or indirectly arises out of or relates to this Escrow Agreement, the services of
the Escrow Agent hereunder, the monies or other property held by it hereunder or
any such Damages, unless such claim arises from an improper disbursement
pursuant to Section 3 (c) of this Escrow Agreement. Promptly
after the receipt by the Escrow Agent of notice of any demand or claim or the
commencement of any action, suit or proceeding, the Escrow Agent shall, if a
claim in respect thereof shall be made against the other parties hereto, notify
such parties thereof in writing; but the failure by the Escrow Agent to give
such notice shall not relieve any party from any liability which such party may
have to the Escrow Agent hereunder, except to the extent of actual prejudice
demonstrated by such party. The obligations of WHDX and 11i under
this Section 5(f) shall survive any termination of this Escrow Agreement and the
resignation or removal of the Escrow Agent.
(g) From
time to time on and after the date hereof, the parties shall deliver or cause to
be delivered to the Escrow Agent such further documents and instruments and
shall do or cause to be done such further acts as the Escrow Agent shall
reasonably request (it being understood that the Escrow Agent shall have no
obligation to make such request) to carry out more effectively the provisions
and purposes of this Escrow Agreement, to evidence compliance herewith or to
assure itself that it is protected in acting hereunder.
(h) The
Escrow Agent may resign at any time and be discharged from its duties as Escrow
Agent hereunder by its giving the other parties hereto prior written notice of
at least seven (7) business days. As soon as practicable after its
resignation, the Escrow Agent shall turn over to a successor escrow agent
appointed by the other parties hereto, jointly, all of the Escrow Property held
hereunder upon presentation of the document appointing the new escrow agent and
its acceptance thereof. If no new escrow agent is so appointed within
the 20 day period following the giving of such notice of resignation, the Escrow
Agent may deposit the Escrow Property with any court it deems
appropriate.
(i) The
Escrow Agent may consult with, and obtain advice from, legal counsel in the
event of any dispute or question as to the construction of any of the provisions
hereof or its duties hereunder, and it shall incur no liability and shall be
fully protected in acting in good faith in accordance with the opinion and
instructions of such counsel, other than itself.
(j) 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 Property, without
determination by the Escrow Agent of such court’s jurisdiction in the
matter. If any portion of the Escrow Property 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 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, writ, judgment or
decree which it is advised by legal counsel selected by it (other than itself)
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.
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(k) The
parties acknowledge that the Escrow Agent has provided limited legal
representation to WHDX in the transactions contemplated by the Purchase
Agreement consisting of the review of the Purchase Agreement on behalf of
WHDX and has prepared this Escrow Agreement, and may act as counsel
to WHDX during and following the term of this Escrow Agreement. All
parties to this Escrow Agreement waive any conflicts that exist or may arise by
reason of such representation; provided, however, that the Escrow Agent shall
ensure that the Escrow Account is under the sole control of the Escrow
Agent.
6. Fees of
Escrow Agent. The fees of the Escrow Agent shall be paid by
WHDX on the Closing of the Purchase Agreement out of funds of the First
Installment, as set forth on Exhibit A attached hereto. However, the fees
incurred by 11i in connection with the preparation of this Escrow Agreement in
the amount of Seven Hundred Fifty Dollars ($750.00) shall be born by WHDX and
will be payable to Brinen & Associates, LLC on behalf of 11i. In the event
that the conditions of this Escrow Agreement are not promptly fulfilled, or if
the Escrow Agent renders any service not provided for in this Escrow Agreement,
or if the parties request a substantial modification of its terms, or if any
controversy arises, or if the Escrow Agent is made a party to, or intervenes in,
any litigation pertaining to this escrow or its subject matter, the Escrow Agent
shall be reasonably compensated for such extraordinary services and reimbursed
for all costs, attorney’s fees, including costs of counsel, and expenses
occasioned by such default, delay, controversy or litigation and the Escrow
Agent shall have the right to retain all documents and/or other things of value
at any time held by the Escrow Agent in this escrow until such compensation,
fees, costs, and expenses are paid. WHDX promises to pay these sums
upon demand. WHDX is responsible for payment of all of the Escrow Agent’s
usual charges. The Escrow Agent shall have a first lien on the Escrow Property
and papers held under this Escrow Agreement for such compensation and
expenses. The obligations under this Section 6 shall survive any
termination of this Escrow Agreement and the resignation or removal of Escrow
Agent.
7. Governing
Law; Jurisdiction, Venue. This Escrow Agreement shall be
governed by and construed and enforced in accordance with the law (other than
the law governing conflict of law questions) of the State of
Florida. Except as otherwise set forth herein, any suit, action or
proceeding arising out of or relating to this Escrow Agreement shall be brought
in State Circuit Court or Federal District Court located in Palm Beach County,
Florida, and the parties hereby (a) submit to the exclusive jurisdiction of such
courts, (b) waive any objection to the laying of venue in such courts, and (c)
agree that service of process in any such suit, action or proceeding, in
addition to any other method permitted by applicable law, may be effected by
certified mail, return receipt requested, to a party at its address set forth in
Section 8 hereof.
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8. Notices. All
notices and communications shall be deemed to have been duly given at the time:
(a) delivered by hand, if personally delivered; (b) when received, if deposited
in the mail, postage prepaid, addressed as provided below; (c) when transmission
is verified, if telecopied; and (d) on the next business day, if timely
delivered to a courier service guaranteeing overnight delivery; provided that
the Escrow Agent shall have no obligation hereunder unless notice is actually
received by it;
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If
to WHDX:
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00000
Xx. Xxxxxxx Xxxx. #000
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Xxxx
Xxxxx, XX 00000
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Phone:
(000) 000-0000
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Fax:
(000) 000-0000
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Attention:
Xxxxxx X. XxXxxxxxx III
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If
to 11i:
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11i
Solutions, Inc.
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0000
Xxxxxxx Xxxx
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Xxxxx
000
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Xxxxxxxx,
XX 00000
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Office
Phone: (000) 000-0000
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Office
Fax: (000) 000-0000
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Attention:
Xxxxxxx Xxxxxx
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Office
Fax: (000) 000-0000
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With
Copy to:
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Brinen
& Associates, LLC
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0
Xxx Xxxxxx, Xxxxx 0000
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Xxx
Xxxx, Xxx Xxxx 00000
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Phone:
(000) 000-0000
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Fax:
(000) 000-0000
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Attention:
Xxxxxx X. Xxxxxx
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If
to the Escrow Agent:
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Xxxxxxx
X. Xxxxxx, Esq.
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Xxxxxxxxx
Xxxxxxxxxx & Beilly LLP
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0000
Xxxxxxxxx Xxxx., XX
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Xxxxx
000
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Xxxx
Xxxxx, Xxxxxxx 00000
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Fax:
(000)
000-0000
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Any party
may change its address by providing written notice of such change to the other
parties hereto. All notices and communications provided by WHDX
and/or 11i to the Escrow Agent shall be signed by duly authorized persons of
each.
9. Termination
of Escrow Agreement. The Escrow Agent’s responsibilities
hereunder shall terminate upon the earliest to occur of (a) the termination or
rescission of this Escrow Agreement by mutual consent of WHDX,11i and the Escrow
Agent, (b) the disbursement of the Escrow Property, including into court under
Section 4 hereof, and (c) the resignation of the Escrow Agent under Section 5(h)
hereof.
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10. Entire
Escrow Agreement. This Escrow Agreement (and the exhibits
attached hereto) contains the entire understanding by and among the parties
hereto with respect to the subject matter hereof; there are no promises,
agreements, understandings, representations or warranties, other than as herein
set forth. No change or modification of this Escrow Agreement shall
be valid or effective unless the same is in writing and is signed by all of the
parties hereto.
11. Counterparts. This
Escrow Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which shall constitute one and the same
agreement.
12. Attorney
Advice. WHDX and 11i each represent and warrant that they have had
adequate and ample opportunity to review this Escrow Agreement with the advisors
of their choice, including legal counsel, that they have read and understand the
Escrow Agreement, and that they have signed all documents freely, knowingly and
voluntarily.
IN WITNESS WHEREOF, the
parties hereto have caused their respective hands to be set hereto with the
intention of being bound effective in all respects as of the date and year first
hereinabove written.
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By:
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Xxxxxx
X. XxXxxxxxx, III, President
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11i
Solutions, Inc.
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By:
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Xxxxxxx
Xxxxxx, President
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XXXXXXXXX
XXXXXXXXXX & BEILLY LLP
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By:
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Xxxxxxx
X. Xxxxxx,
Member
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8
Exhibit
A
9
