EXHIBIT 10.2
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this "AGREEMENT") is made on December 24, 2001
by and among INPRIMIS, INC. a Florida corporation (the "COMPANY"), ENER1
HOLDINGS, INC., a Florida corporation (the "BUYER"), and AKERMAN, SENTERFITT &
XXXXXX, P.A. (the "ESCROW AGENT"). Each of the Company, the Buyer, and the
Escrow Agent is referred to sometimes herein, individually, as a "PARTY" and,
collectively, as the "PARTIES." Capitalized terms used herein but not defined
herein shall have the meanings ascribed to such terms in the Securities Purchase
Agreement (as defined below).
RECITALS
A. The Company and the Buyer are parties to that certain Securities
Purchase Agreement dated as of the date hereof (the "SECURITIES PURCHASE
AGREEMENT").
B. Pursuant to the terms of the Securities Purchase Agreement, the
Purchase Price in its entirety shall be held in escrow pursuant to the terms
hereof.
C. Pursuant to the terms of the Securities Purchase Agreement, $120,000
of the Purchase Price along with interest and dividends and other investment
returns accruing thereon subsequent to deposit with the Escrow Agent (the
"INDEMNITY ESCROW FUNDS"), shall be held in escrow as provided herein as
security against which the Buyer may set off and recoup any Indemnifiable
Damages it incurs in accordance with the terms hereof.
D. Pursuant to the terms of the Securities Purchase Agreement, $400,000
of the Purchase Price along with interest and dividends and other investment
returns accruing thereon subsequent to deposit with the Escrow Agent (the
"NON-INDEMNITY ESCROW FUNDS" and, together with the Indemnity Escrow Funds and
the Closing Escrow Funds (as defined below), the "ESCROW FUNDS"), shall be held
in escrow as provided herein until the Escrow Shares have been issued to the
Buyer and the Stockholders' Equity Adjustment Amount, if any, has been paid to
the Buyer.
E. Pursuant to the terms of the Securities Purchase Agreement, $200,000
of the Non-Indemnity Escrow Funds (the "Stockholders' Equity Adjustment Escrow
Funds") shall be held in escrow as provided herein as the sole source of
recovery by the Buyer for the Stockholders' Equity Adjustment Amount as provided
in Section 1.3 of the Securities Purchase Agreement.
F. The Escrow Agent has agreed to serve as escrow agent and to hold and
disburse the Escrow Funds in accordance with the terms, and subject to the
conditions, of this Agreement.
NOW, THEREFORE, in consideration of the foregoing Recitals and the
covenants and conditions set forth below, the Parties hereto agree as follows:
1. CERTAIN DEFINED TERMS. As used in this Agreement, the following
terms shall have the following meanings:
"APPROVAL PERIOD" has the meaning set forth in the Securities
Purchase Agreement.
"BANKRUPTCY EVENT" has the meaning set forth in SECTION 4(e).
"BUYER CLAIM NOTICE" has the meaning set forth in SECTION 5(b)(i).
"CLOSING ESCROW FUNDS" has the meaning set forth in SECTION 5(a).
"COMPANY DISPUTE NOTICE" has the meaning set forth in SECTION
5(b)(i)
"DETERMINATION COMMITTEE" has the meaning set forth in the
Securities Purchase Agreement; provided that, in the event any
member of the Determination Committee as of the Closing of the
Securities Purchase Agreement is removed or resigns or fails to be
re-elected as a director of the Company, then the Determination
Committee shall consist of such Persons that were members of the
Determination Committee as of the Closing of the Securities
Purchase Agreement and are, as of the relevant time, directors of
the Company; further provided that, in the event no such Persons
remain as directors of the Company, the Company shall appoint an
independent trustee to serve on the Determination Committee.
"DETERMINATION DATE" shall mean the date of determination of the
Stockholders' Equity Adjustment Amount in accordance with Section
1.3 of the Securities Purchase Agreement.
"ESCROW ACCOUNT" means the bank account in which the Escrow Funds
are held.
"ESCROW FUNDS" has the meaning set forth in the Recitals.
"ESCROW PARTIES" means the Parties other than the Escrow Agent.
"ESCROW PERIOD" means the period commencing on the date hereof and
terminating upon the release of all of the Escrow Funds pursuant to
the terms hereof (the "TERMINATION DATE"), provided that provisions
hereof that would otherwise continue by their terms, including, but
not limited to, terms providing for obligations to the Escrow
Agent, shall continue after the Termination Date.
"ESCROW SHARES" has the meaning set forth in the Securities
Purchase Agreement.
"FINAL ORDER" has the meaning set forth in SECTION 5(b)(iii)(x).
"HOLDBACK PERIOD" has the meaning set forth in the Securities
Purchase Agreement.
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"INDEMNIFIABLE DAMAGES" has the meaning set forth in the Securities
Purchase Agreement.
"INDEMNITY ESCROW FUNDS" has the meaning set forth in the Recitals.
"JOINT RELEASE CERTIFICATE" has the meaning set forth in SECTION
5(b)(ii).
"NON-INDEMNITY ESCROW FUNDS" has the meaning set forth in the
Recitals.
"ORDER" has the meaning set forth in SECTION 5(b)(iii)(x).
"PARTY" or "PARTIES" has the meaning set forth in the introduction.
"PERMITTED INVESTMENTS" has the meaning set forth in SECTION 4(d).
"PERSON" means any natural person or entity of any kind, including,
but not limited to, a corporation, a limited liability company, a
partnership or an association.
"PURCHASE PRICE" has the meaning set forth in the Securities
Purchase Agreement.
"SECURITIES PURCHASE AGREEMENT" has the meaning set forth in the
Recitals.
"SHARE INCREASE" has the meaning set forth in the Securities
Purchase Agreement.
"SHARE INCREASE NOTICE" has the meaning set forth in Section
5(c)(ii).
"STOCKHOLDERS' EQUITY ADJUSTMENT AMOUNT" has the meaning set forth
in the Securities Purchase Agreement.
"STOCKHOLDERS' EQUITY ADJUSTMENT ESCROW FUNDS" has the meaning set
forth in the Recitals.
"STOCKHOLDERS' EQUITY ADJUSTMENT NOTICE" has the meaning set forth
in Section 5(c)(i).
2. RECITALS. The Recitals are incorporated herein by reference and made
a part of this Agreement.
3. ESCROW AGENT. The Company and the Buyer hereby designate and appoint
Escrow Agent to act as escrow agent in accordance with the terms and conditions
of this Agreement, and Escrow Agent hereby accepts such designation and
appointment.
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4. ESCROW FUNDS.
(a) DEPOSIT OF ESCROW FUNDS. Concurrently with the execution and
delivery of this Agreement, the Buyer shall deliver or cause to be delivered to
the Escrow Agent, in accordance with the terms of the Securities Purchase
Agreement, a wire transfer of immediately available funds in the amount of the
Escrow Funds to be held and disbursed in accordance with the terms hereof. The
Escrow Agent will not make any payment or distribution of the Escrow Funds
except as and in the manner expressly provided for in this Agreement.
(b) RIGHTS TO ESCROW FUNDS. Except as expressly provided herein,
none of the Escrow Parties shall have any right, title or interest in or
possession of any of the Escrow Funds, until released pursuant to the terms
hereof. Therefore, except as otherwise provided in SECTION 4(e) hereof, none of
the Escrow Parties shall have the ability to pledge, convey, hypothecate or
grant a security interest in any portion of the Escrow Funds until disbursed
pursuant to the terms hereof, and until such disbursement the Escrow Agent shall
be in sole possession of the Escrow Funds and will not act or be deemed to act
as custodian for any party for purposes of perfecting a security interest
therein. Accordingly, except as otherwise provided in SECTION 4(e) hereof, no
Person shall have any right to have or to hold any of the Escrow Funds as
collateral for any obligation and no Person shall be able to obtain a security
interest in any assets (tangible or intangible) contained in or relating to any
of the Escrow Funds.
(c) PAYMENT OF ESCROW FUNDS. Any payment of the Escrow Funds to be
made by the Escrow Agent pursuant to this Agreement (whether to the Company or
to the Buyer) shall be made by wire transfer in immediately available funds
(upon receipt of written wire transfer instructions of the recipient).
(d) INVESTMENT OF ESCROW FUNDS. The Escrow Agent will invest the
Escrow Funds in Permitted Investments. As used in this Agreement, "PERMITTED
INVESTMENTS" means (i) direct obligations of the United States or any agency
thereof, or obligations guaranteed by the United States or any agency thereof,
(ii) commercial paper rated at least A-1 by Standard & Poor's Corporation and
P-1 by Xxxxx'x Investors Service, Inc., (iii) time deposits with, including
certificates of deposit issued by, any office located in the United States of
any bank or trust company which is organized under the laws of the United States
or any State thereof and has capital, surplus and undivided profits aggregating
at least $100,000,000 and which issues (or the parent of which issues)
certificates of deposit or commercial paper with a rating described in clause
(ii) above, or (iv) Federated Treasury Obligations Money Market Fund with a
right of redemption on a daily basis and having assets of at least $100,000,000,
substantially all of which assets consist of investments of a type described in
the foregoing clauses; provided in each case that any investment referred to in
clauses (i) through (iii) above matures within 10 days or less from the date of
acquisition thereof by the Escrow Agent.
(e) SECURITY INTERESTS IN ESCROW FUNDS. It is the intent of the
Company and the Buyer that each of their respective interests in the Escrow
Funds is merely a contingent right to payment and that neither a voluntary nor
involuntary case under any applicable bankruptcy, insolvency or similar law nor
the appointment of a receiver, trustee, custodian or similar official in respect
of the Company or the Buyer (any of which is referred to herein as a "BANKRUPTCY
EVENT") shall increase its or his respective interest in the Escrow Funds or
affect, modify, convert or otherwise change the contingent nature of its or his
respective right to payment of the Escrow Funds in accordance with the terms of
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this Agreement. Accordingly, in order to assure the foregoing result even if it
is determined by a court of competent jurisdiction (whether or not in connection
with a Bankruptcy Event) that the Company or the Buyer has an interest in the
Escrow Funds that is greater than a contingent right of payment from the Escrow
Funds payable only in accordance with the provisions hereof, the Parties agree
as follows:
(i) The Company hereby grants the Buyer a first priority
security interest in, and hereby pledges and assigns to the Buyer, all
of its right, title and interest in the Escrow Funds (and any account
in which the Escrow Funds are deposited) to secure the Company's
obligations hereunder and under the Securities Purchase Agreement. The
Escrow Agent hereby agrees to act as bailee and possessory agent on
behalf of the Company in respect thereof. The Escrow Agent shall, upon
receipt of indemnification satisfactory to it from the Company for its
fees and expenses incurred in connection with taking such actions, take
all actions as may be reasonably requested in writing of it by the
Company to further perfect or maintain the security interests created
by the Company hereunder in the Escrow Funds (and any account in which
the Escrow Funds are deposited). Such security interests shall
automatically be released with respect to any Escrow Funds distributed
pursuant to the terms of this Agreement; and
(ii) The Buyer hereby grants the Company a first priority
security interest in, and hereby pledges and assigns to it all of its
right, title and interest in the Escrow Funds (and any account in which
the Escrow Funds are deposited) to secure the Buyer's obligations
hereunder. The Escrow Agent hereby agrees to act as bailee and
possessory agent on behalf of the Buyer in respect thereof. The Escrow
Agent shall, upon receipt of indemnification satisfactory to it from
the Buyer for its fees and expenses incurred in connection with taking
such actions, take all actions as may be reasonably requested in
writing of it by the Buyer to further perfect or maintain the security
interests created by the Buyer in the Escrow Funds (and any account in
which the Escrow Funds are deposited). Such security interests shall
automatically be released with respect to any Escrow Funds distributed
pursuant to the terms of this Agreement.
The parties hereto agree and acknowledge that the establishment and maintenance
of the escrow account hereunder is intended to constitute possession of the
Escrow Funds for the purposes of perfecting the security interests therein
created hereby.
5. CLAIMS; RELEASE OF ESCROW FUNDS. The Escrow Funds shall be held and
disposed of by the Escrow Agent for the benefit of the Buyer and the Company, as
the case may be, as follows:
(a) RELEASE OF CLOSING ESCROW FUNDS AND ESCROW FUNDS. The sum of
$680,000 of the Escrow Funds (the "CLOSING ESCROW FUNDS") shall be held pursuant
to the terms of this Section 5(a). If, at or before 5:00 p.m. on January 10,
2002, the Buyer has received from the Company (i) an opinion of counsel
substantially in the form of EXHIBIT 5(a) attached hereto (the "OPINION"), (ii)
a Schedule 3.7(b) to the Securities Purchase Agreement initialled by the
Company, (iii) evidence reasonably satisfactory to the Buyer that a directors
and officers liability policy providing at least $5.0 million of coverage on
customary terms is in place for the Company, and (iv) evidence satisfactory to
the Buyer, in its reasonable discretion, that that certain Share Exchange
Agreement, dated as of October 12, 2001, by and between the Company and
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Cash Card Communications Corp. Ltd., and all agreements related thereto
(collectively, the "C-4 AGREEMENTS"), and all transactions contemplated in
connection therewith, have been terminated and that no liability will accrue to
the Company, the Buyer or any individuals or entities affiliated with the
Company or the Buyer as a result of such termination or otherwise as a result of
any of the C-4 Agreements or any transactions contemplated thereby (the receipt
of (i), (ii), (iii) and (iv), collectively, the "BUYER SATISFACTION"), then, the
Buyer shall so inform the Company and the Buyer and the Company shall deliver to
the Escrow Agent a jointly executed letter informing the Escrow Agent of the
Buyer Satisfaction (the "BUYER SATISFACTION NOTICE"). The Escrow Agent shall,
within three (3) business days after its receipt of such Buyer Satisfaction
Notice, and provided that the Escrow Agent has received the Refrain Letter
Notice (as defined below) at or before the Cut-off Time (as defined below),
release the Closing Escrow Funds to the Company. In the event that at or before
5:00 p.m. on January 10, 2002, the Escrow Agent has not received such Buyer
Satisfaction Notice, then, notwithstanding anything in this Agreement to the
contrary, within three (3) business days thereafter, the Escrow Agent shall
release to the Buyer the Escrow Funds. If, at or before 5:00 p.m. on December
26, 2001, the Buyer has received from the Company the refrain letters as
referred to in Section 4.9 of the Securities Purchase Agreement (such receipt is
referred to herein as a "REFRAIN LETTER Receipt") then, the Buyer and the
Company shall deliver to the Escrow Agent a jointly executed letter (a "REFRAIN
LETTER NOTICE") informing the Escrow Agent of the Refrain Letter Receipt no
later than 5:00 p.m. on December 27, 2001 (the "CUT-OFF TIME"). In the event the
Refrain Letter Notice is not received by the Escrow Agent by the Cut-off Time,
then, notwithstanding anything to the contrary, the Escrow Agent shall within
three (3) business days thereafter, release the Escrow Funds to the Buyer.
(b) RELEASE OF INDEMNITY ESCROW FUNDS. This Section 5(b) is subject
to the terms of Section 5(a), above.
(i) At any time during the Escrow Period (subject to the terms
of the Securities Purchase Agreement), if the Buyer desires to receive
a disbursement from the Indemnity Escrow Funds as payment, in whole or
in part, for Indemnifiable Damages incurred by the Buyer, Buyer shall
deliver to the Escrow Agent a written notice which shall set forth (x)
the amount of the Indemnifiable Damages, (y) the factual basis
underlying such claim for Indemnifiable Damages and (z) the Section(s)
of the Securities Purchase Agreement pursuant to which such
Indemnifiable Damages are claimed (a "BUYER CLAIM NOTICE"). The Buyer
shall concurrently deliver a copy of such Buyer Claim Notice to the
Determination Committee in accordance with the notice provisions of
this Agreement. Unless the Determination Committee delivers to the
Escrow Agent a written notice stating that the Company objects to all
or any portion of the requested disbursement set forth in a Buyer Claim
Notice within twenty (20) days from the date that such Buyer Claim
Notice is received by the Determination Committee (such written notice
of objection, the "COMPANY DISPUTE NOTICE"), the Escrow Agent shall
disburse to the Buyer within three (3) business days after the end of
such 20-day period from the Indemnity Escrow Funds, that portion of the
Indemnity Escrow Funds equal in value to the Indemnifiable Damages
claimed in such Buyer Claim Notice.
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(ii) If the Determination Committee delivers to the Escrow
Agent a Company Dispute Notice in respect of a Buyer Claim Notice in
accordance with the terms of this Section, the Escrow Agent shall (x)
disburse to the Buyer from the Indemnity Escrow Funds that portion of
the Indemnity Escrow Funds equal in value to the Indemnifiable Damages
claimed in such Buyer Claim Notice and not objected to in such Company
Dispute Notice and (y) make no disbursement of Indemnity Escrow Funds
in respect of Indemnifiable Damages claimed in such Buyer Claim Notice
to the extent objected to in such Company Dispute Notice unless and
until the Escrow Agent has obtained from the Buyer and the
Determination Committee jointly executed instructions in form and
substance reasonably satisfactory to the Escrow Agent (a "JOINT RELEASE
CERTIFICATE") directing the disbursement of Indemnity Escrow Funds in
respect of Indemnifiable Damages claimed in such Buyer Claim Notice and
objected to in such Company Dispute Notice.
(iii) In the event of any disagreement between the
Determination Committee and the Buyer resulting in adverse claims or
demands being made on the Indemnity Escrow Funds, or in the event that
the Escrow Agent in good faith is in doubt as to what action it should
take hereunder, the Escrow Agent shall be entitled to retain that
portion of the Indemnity Escrow Funds for which a disputed claim has
been made until the Escrow Agent:
(x) shall have received a final non-appealable order,
judgment or decree (collectively, an "ORDER") of a court of
competent jurisdiction directing delivery of the disputed
portion of the Indemnity Escrow Funds, which Order shall be
accompanied by an opinion of counsel for the party to whom
such Order directs delivery of all or portion of the Indemnity
Escrow Funds that such Order represents a final adjudication
of the rights of the parties, and that the time for appeal
from such Order has expired without an appeal having been
noticed, filed or perfected (a "FINAL ORDER"), in which event
the Escrow Agent shall disburse the Indemnity Escrow Funds (or
any portion thereof) in accordance with such Final Order; or
(y) shall have received a Joint Release Certificate
directing delivery of the disputed portion of the Indemnity
Escrow Funds, in which event the Escrow Agent shall disburse
the agreed-upon portion of the Indemnity Escrow Funds in
accordance with such Joint Release Certificate; or
(z) shall have filed an interpleader action
concerning the disputed portion of the Indemnity Escrow Funds.
(iv) EXPIRATION OF THE HOLDBACK PERIOD. Upon the expiration of
the Holdback Period, the Escrow Agent shall (i) deliver to the Company
all Indemnity Escrow Funds with respect to which the Escrow Agent has
not as of such time received a Buyer Claim Notice, and (ii) retain all
Indemnity Escrow Funds with respect to which the Escrow Agent has by
then received a Buyer Claim Notice, which funds shall be held in escrow
by the Escrow Agent and only released in accordance with Sections
4(a)(i) - (iii) above.
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(c) RELEASE OF NON-INDEMNITY ESCROW FUNDS. This Section 5(c) is
subject to the terms of Section 5(c) above.
(i) RELEASE OF STOCKHOLDERS' EQUITY ADJUSTMENT ESCROW FUNDS.
Within the three (3) day period immediately following the Determination
Date, the Buyer and the Determination Committee shall deliver to the
Escrow Agent a jointly executed letter in form and substance reasonably
satisfactory to the Escrow Agent instructing the Escrow Agent to
release to the Buyer from the Stockholders' Equity Adjustment Escrow
Funds an amount equal to the Stockholders' Equity Adjustment Amount,
or, if the Stockholders' Equity Adjustment Amount is equal to zero,
notifying the Escrow Agent of such fact and directing that no release
of Stockholders' Equity Adjustment Escrow Funds shall be made pursuant
to this Section 5(c)(i) (an "STOCKHOLDERS' EQUITY ADJUSTMENT NOTICE").
The Escrow Agent shall, within three (3) business days after its
receipt of the Stockholders' Equity Adjustment Notice release to the
Buyer that portion of the Stockholders' Equity Adjustment Escrow Funds
identified as the Stockholders' Equity Adjustment Amount in accordance
with the Stockholders' Equity Adjustment Notice.
(ii) SHARE INCREASE AND ISSUANCE OF ESCROW SHARES.
Notwithstanding anything in this Agreement to the contrary, upon the
earlier of (x) the approval of the Share Increase and the issuance of
the Escrow Shares, and (y) the fifth day following the end of the
Approval Period, the Buyer and the Determination Committee shall
deliver to the Escrow Agent a jointly executed letter in form and
substance reasonably satisfactory to the Escrow Agent (A) stating
whether, as of such time, the Share Increase has been approved or
rejected by the shareholders of the Company and whether the Escrow
Shares have been issued to the Buyer, and (B) instructing the Escrow
Agent to release the appropriate amount of the Non-Indemnity Escrow
Funds, in light of any amounts that may be paid pursuant to Section
5(c)(i) above (as determined by the Escrow Parties and set forth in
such letter), (1) to the Company, if the Share Increase has by then
been approved and the Escrow Shares have by then been issued to the
Buyer, or (2) to the Buyer, if the Share Increase has not by then been
approved or the Escrow Shares have not by then been issued to the Buyer
(the "SHARE INCREASE NOTICE"). The Escrow Agent shall, within three (3)
business days after its receipt of such Share Increase Notice, release
the Non-Indemnity Escrow Funds in accordance with the Share Increase
Notice; provided, however, that notwithstanding anything contained in
this Section 5(c)(ii) to the contrary, the Escrow Agent shall not
release the Stockholders' Equity Adjustment Funds portion of the
Non-Indemnity Escrow Funds to the Company until the Escrow Agent has
received the Stockholders' Equity Adjustment Notice in accordance with
Section 5(c)(i) hereof and disbursed the Stockholders' Equity
Adjustment Funds in accordance with the terms thereof.
(iii) In the event of any disagreement between the
Determination Committee and the Buyer resulting in adverse claims or
demands being made on the Non-Indemnity Escrow Funds, or in the event
that the Escrow Agent in good faith is in doubt as to what action it
should take hereunder, the Escrow Agent shall be entitled to retain
that portion of the Non-Indemnity Escrow Funds for which a disputed
claim has been made until the Escrow Agent:
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(x) shall have received a final non-appealable order,
judgment or decree (collectively, an "ORDER") of a court of
competent jurisdiction directing delivery of the disputed
portion of the Non-Indemnity Escrow Funds, which Order shall
be accompanied by an opinion of counsel for the party to whom
such Order directs delivery of all or portion of the
Non-Indemnity Escrow Funds that such Order represents a final
adjudication of the rights of the parties, and that the time
for appeal from such Order has expired without an appeal
having been noticed, filed or perfected (a "FINAL ORDER"), in
which event the Escrow Agent shall disburse the Non-Indemnity
Escrow Funds (or any portion thereof) in accordance with such
Final Order; or
(y) shall have received a Joint Release Certificate
directing delivery of the disputed portion of the
Non-Indemnity Escrow Funds, in which event the Escrow Agent
shall disburse the agreed-upon portion of the Non-Indemnity
Escrow Funds in accordance with such agreement, within three
(3) business days after its receipt of such Joint Release
Certificate; or
(z) shall have filed an interpleader action
concerning the disputed portion of the Non-Indemnity Escrow
Funds.
(d) FINAL PAYMENT. Upon disbursement of all Escrow Funds, as the
case may be, the Escrow Agent shall be released from any further duty or
obligation hereunder with respect to the Escrow.
(e) RECEIPT OF JOINT RELEASE CERTIFICATE. Notwithstanding anything
in this Agreement to the contrary, in the event Escrow Agent receives a Joint
Release Certificate at any time within the period during which this Agreement is
in effect, the Escrow Agent shall act in accordance with such Joint Release
Certificate.
6. ESCROW AGENTS DUTIES. The Escrow Parties understand and agree that:
(a) ALL DUTIES. This Agreement expressly sets forth all the duties
of the Escrow Agent with respect to any and all matters pertinent hereto. No
implied duties or obligations shall be read into this Agreement against the
Escrow Agent.
(b) NO LIABILITY; INDEMNIFICATION. The Escrow Agent shall not be
liable in connection herewith except to the extent of its proven willful
misconduct or gross negligence. The Escrow Parties shall jointly and severally
indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent)
from and against any and all losses, liabilities, claims, actions, damages and
expenses, including reasonable attorneys fees and disbursements, arising out of
and in connection with this Agreement; provided, however, that in the event of a
dispute among the Escrow Parties, the non-prevailing party shall indemnify and
hold the prevailing party harmless against any and all costs and expenses
(including reasonable attorneys fees) incurred by the prevailing party pursuant
to the provisions hereof.
(c) RELIANCE BY ESCROW AGENT. The Escrow Agent shall be entitled to
rely upon any order, judgment, certification, demand, notice, instrument or
other writing delivered to it hereunder without being required to determine the
authenticity or the correctness of any fact stated therein or the
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propriety or validity of the service thereof. The Escrow Agent may act in
reliance upon any instrument or signature believed by it to be genuine and may
assume that any Person purporting to give receipt or advice or make any
statement or execute any document in connection with the provisions hereof has
been duly authorized to do so.
(d) ADVICE OF COUNSEL. The Escrow Agent may act pursuant to the
advice of counsel with respect to any matter relating to this Agreement and
shall not be liable for any action taken or omitted in accordance with such
advice. The Escrow Agent shall be under no duty to monitor performance by any
party of its or his obligations under any agreement.
(e) INTEREST IN FUNDS. The Escrow Agent does not have any interest
in the Escrow Funds deposited hereunder but is serving as escrow holder only and
having only possession thereof. Escrow Agent shall have no tax reporting duties
with respect to the Escrow Funds or interest thereon, such duties being the
responsibility of the party or parties which receive, or have the right to
receive, any taxable income hereunder. Notwithstanding the foregoing, Escrow
Agent has the authority to comply with the provisions of Section 468B(g) of the
Internal Revenue Code of 1986, as amended, and any regulations promulgated
thereunder. Such authority shall include, without limitation, (i) the filing of
tax returns (including information returns) with respect to the Escrow Funds,
(ii) the payment of any tax, interest or penalties imposed thereon, (iii) the
withholding of any amounts which are required to be withheld and (iv) the
payment over of such withheld amounts to the appropriate taxing authority. The
Escrow Parties shall provide the Escrow Agent with all information necessary to
enable Escrow Agent to comply with the foregoing. Escrow Agent may withdraw from
the Escrow Funds amounts necessary to pay all applicable income or withholding
taxes (plus interest and penalties thereon) that are required to be paid. The
Escrow Parties shall equally pay or reimburse the Escrow Agent upon request for
any transfer taxes or other taxes relating to the Escrow Funds incurred in
connection herewith and shall indemnify and hold harmless the Escrow Agent from
any amounts that it is obligated to pay in the way of such taxes. This SECTION 6
shall survive notwithstanding any termination of this Agreement or the
resignation of the Escrow Agent.
(f) NO REPRESENTATIONS. The Escrow Agent makes no representation as
to the validity, value or genuineness of any security or other document or
instrument held by or delivered to it. The Escrow Agent shall have no liability
for the loss of value of any Escrow Funds.
(g) NO ADVICE REQUIRED. The Escrow Agent, in its role as such,
shall not be called upon to advise any party as to the wisdom in selling or
retaining or taking or refraining from any action with respect to any securities
or other property deposited hereunder.
(h) RESIGNATION OF ESCROW AGENT. The Escrow Agent (and any
successor Escrow Agent) may at any time resign as such by delivering the Escrow
Funds to any successor Escrow Agent jointly designated by the Buyer and the
Company in writing, or to any court of competent jurisdiction, whereupon the
Escrow Agent shall be discharged of and from any and all further obligations
arising in connection with this Agreement. The resignation of the Escrow Agent
will take effect on the earlier of (1) the appointment of a successor (including
a court of competent jurisdiction) or (2) the day which is 10 days after the
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date of delivery of its written notice of resignation to the other parties
hereto. If at that time the Escrow Agent has not received a designation of a
successor Escrow Agent, the Escrow Agent's sole responsibility after that time
shall be (i) to safe keep the Escrow Funds until receipt of a designation of
successor Escrow Agent or a joint written disposition instruction by the other
parties hereto or a final order of a court of competent jurisdiction or (ii) to
deliver such funds to a court of competent jurisdiction.
(i) REIMBURSEMENT. The Escrow Parties jointly and severally agree
to equally reimburse the Escrow Agent for all reasonable expenses, disbursements
and advances incurred or made by the Escrow Agent in performance of its duties
hereunder (including reasonable fees, expenses and disbursements to its counsel
which may include lawyers from its own firm at their standard rates).
(j) NO AGREEMENTS. The Escrow Agent is not a party to, and is not
bound by, any agreement referred to herein or by any other agreement among the
other parties hereto or their respective heirs, administrators, successors or
assigns.
(k) NO ASSIGNMENT BINDING. Subject to Sections 4(e) and 16 hereof,
no assignment of the interest of any of the Escrow Parties or their successors
shall be binding upon the Escrow Agent unless and until written evidence of such
assignment in form satisfactory to the Escrow Agent shall be filed with and
accepted by the Escrow Agent.
(l) DUTY OF CARE. The Escrow Agent shall exercise the same degree
of care toward the Escrow Funds as it exercises towards its own similar property
or similar property held in escrow for the account of others (whichever degree
of care is higher), and shall not be held to any higher standard of care under
this Agreement.
(m) REFRAINING FROM ACTIONS. If the Escrow Agent shall be uncertain
as to its duties or rights hereunder or shall receive instructions from any
Escrow Party which, in the opinion of the Escrow Agent, are in conflict with any
of the provisions of this Agreement, the Escrow Agent shall be entitled to
refrain from taking any action until it shall be directed otherwise by a Joint
Release Certificate or Final Order.
7. NOTICES. Any notices, demands or other communication given in
connection herewith shall be in writing and be deemed given (i) when personally
delivered, (ii) when sent by facsimile transmission and a confirmation of the
transmission is received by the sender or (iii) three (3) days after being
deposited for delivery with a recognized overnight courier, such as FedEx, with
directions to deliver within three (3) days, and addressed or sent, as the case
may be, to the address or facsimile number set forth below or to such other
address or facsimile number as such Party may designate in accordance herewith:
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When the Buyer is the intended recipient:
Ener1 Holdings, Inc.
000 Xxxx Xxxxxxx Xxxxx Xxxx
Xxxxx 000
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attention: Chief Executive Officer
with a copy to:
Xxxxxx X. Xxxxx, Esq.
Akerman, Senterfitt & Xxxxxx, P.A.
SunTrust International Center
00xx Xxxxx
Xxx X.X. 0xx Xxxxxx
Xxxxx, XX 00000-0000
Facsimile: (000) 000-0000
When the Determination Committee is the intended recipient:
Inprimis, Inc.
0000 Xxxxx Xxxxx Xxxx
Xxxx Xxxxx, XX 00000
Attention: Eduard Will
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxx X. Xxxxxxxxx, Esq.
Pillsbury Winthrop LLP
Xxx Xxxxxxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Facsimile: (000) 000-0000
When the Escrow Agent is the intended recipient:
Xxxxxx X. Xxxxx, Esq.
Akerman, Senterfitt & Xxxxxx, P.A.
SunTrust International Center
00xx Xxxxx
Xxx X.X. 0xx Xxxxxx
Xxxxx, XX 00000-0000
Facsimile: (000) 000-0000
8. GOVERNING LAW; VENUE. THIS AGREEMENT WILL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF FLORIDA, WITHOUT
GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICTING PROVISION OR RULE (WHETHER OF
12
THE STATE OF FLORIDA OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE LAWS OF ANY
JURISDICTION OTHER THAN THE STATE OF FLORIDA TO BE APPLIED. IN FURTHERANCE OF
THE FOREGOING, THE INTERNAL LAW OF THE STATE OF FLORIDA WILL CONTROL THE
INTERPRETATION AND CONSTRUCTION OF THIS AGREEMENT, EVEN IF UNDER SUCH
JURISDICTION'S CHOICE OF LAW OR CONFLICT OF LAW ANALYSIS, THE SUBSTANTIVE LAW OF
SOME OTHER JURISDICTION WOULD APPLY. IT IS THE INTENTION OF THE PARTIES TO THIS
AGREEMENT THAT THE SITUS OF THE ESCROW ACCOUNTS CREATED BY THIS AGREEMENT BE,
AND THAT IT BE ADMINISTERED IN, THE STATE IN WHICH IS LOCATED THE PRINCIPAL
OFFICE OF THE ESCROW AGENT FROM TIME TO TIME ACTING HEREUNDER.
9. JURISDICTION AND VENUE. The Parties to this Agreement agree that any
and all actions arising under or in respect of this Agreement shall be litigated
exclusively in any federal or state court of competent jurisdiction located in
the County of Miami-Dade, State of Florida. By execution and delivery of this
Agreement, each party to this Agreement irrevocably submits to the personal and
exclusive jurisdiction of such courts for itself, himself or herself and in
respect of its, his or her property with respect to such action. Each party to
this Agreement agrees that venue would be proper in any of such courts, and
hereby waives any objection that any such court is an improper or inconvenient
forum for the resolution of any such action. The Parties further agree that the
mailing by certified or registered mail, return receipt requested, to the
addresses specified for notice in this Agreement, of any process or summons
required by any such court shall constitute valid and lawful service of process
against them, without the necessity for service by any other means provided by
statute or rule of court.
10. ENTIRE AGREEMENT. This Agreement and the agreements referred to
herein constitute the entire agreement among the Parties pertaining to the
subject matter hereof and supersede all prior agreements, understandings,
negotiations and discussions, whether oral or written, of the Parties.
11. AMENDMENTS AND WAIVERS. No supplement, modification or amendment of
this Agreement, or of any covenant, condition or limitation herein contained,
shall be valid unless made in writing and executed by the Parties hereto and the
Determination Committee. No waiver of any covenant, condition, or limitation
herein contained shall be valid unless made in writing and executed by the party
making the waiver.
12. MULTIPLE COUNTERPARTS. 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.
13. SEVERABILITY. If any one or more of the provisions contained in
this Agreement or in any other instrument referred to herein, shall, for any
reason, be held to be invalid, illegal or unenforceable in any respect, then to
the maximum extent permitted by law, such invalidity, illegality or
unenforceability shall not affect any other provision of this Agreement or any
other such instrument.
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14. NO CONFLICT. Notwithstanding anything in this Agreement to the
contrary, the Parties hereto hereby agree that the fact that Akerman, Senterfitt
& Xxxxxx, P.A. has acted as Escrow Agent hereunder shall not preclude the Escrow
Agent or any member or employee of such firm from providing legal representation
to the Buyer in connection with any matter, including any matter arising from,
or in any way connected with, the transactions contemplated by this Agreement,
the Securities Purchase Agreement or any transactions contemplated hereby or
thereby. The Company acknowledges that Akerman, Senterfitt & Xxxxxx, P.A. has
acted as counsel to the Buyer in connection with the Securities Purchase
Agreement and the transactions contemplated thereby.
15. WAIVER OF JURY TRIAL. To the full extent permitted by law, each of
the Parties hereto hereby knowingly, voluntarily and intentionally waives the
right it may have to a trial by jury in respect to any litigation based hereon,
or arising out of, under or in connection with this Agreement, or any course of
conduct, course of dealing, statements (whether oral or written) or actions of
any party hereto. This provision is a material inducement for the Escrow Agent
to enter into this Agreement.
16. SUCCESSORS AND ASSIGNS. None of the Escrow Parties shall assign or
agree to assign or grant to any other party any rights under this Agreement,
including without limitation any rights in or to the Escrow Funds, without the
prior written consent of the other Parties hereto and the Determination
Committee, and this Agreement shall be binding upon, and inure to the benefit
of, the Parties hereto and their respective heirs, personal representatives,
successors and permitted assigns.
17. SPECIFIC PERFORMANCE. The obligations of the Escrow Parties are
unique in that time is of the essence, and any delay in performance hereunder by
any party will result in irreparable harm to the other Parties hereto.
Accordingly, any party may seek specific performance and/or injunctive relief
before any court of competent jurisdiction, subject to the limitation in SECTION
8 hereof, in order to enforce this Agreement or to prevent violations of the
provisions hereof, and no party shall object to specific performance or
injunctive relief as an appropriate remedy. The Escrow Agent acknowledges that
its obligations, as well as the obligations of the Escrow Parties hereunder, are
subject to the equitable remedy of specific performance and/or injunctive
relief.
18. NO FEES PAYABLE TO DETERMINATION COMMITTEE MEMBERS. No member of
the Determination Committee shall be entitled to any consideration in respect of
such member's service thereon, other than reimbursement by the Company of such
member's reasonable expenses actually incurred in the performance of such
member's duties hereunder and under the Securities Purchase Agreement. The
Company shall pay, as and when incurred, the reasonable fees and expenses of the
Determination Committee arising out of the performance of its duties hereunder
and under the Stock Purchase Agreement, including any fees of legal counsel or
financial advisors engaged by the Determination Committee.
19. WAIVERS. No waiver of any provision of this Agreement shall be
binding upon a Party unless such waiver is expressly set forth in a written
instrument that is executed and delivered by such Party (and, in the case of the
Company, executed on behalf of the Determination Committee). Such waiver shall
be effective only to the extent specifically set forth in such written
instrument. Neither the exercise (from time to time and at any time) by a Party
of, nor the delay or failure (at any time or for any period of time) to
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exercise, any right, power or remedy shall constitute a waiver of the right to
exercise, or impair, limit or restrict the exercise of, such right, power or
remedy or any other right, power or remedy at any time and from time to time
thereafter. No waiver of any right, power or remedy of a Party shall be deemed
to be a waiver of any other right, power or remedy of such Party or shall,
except to the extent so waived, impair, limit or restrict the exercise of such
right, power or remedy.
20. HEADINGS. The headings set forth in this Agreement have been
inserted for convenience of reference only, shall not be considered a part of
this Agreement and shall not limit, modify or affect in any way the meaning or
interpretation of this Agreement.
21. RIGHTS AND REMEDIES. All rights, powers and remedies afforded to a
Party under this Agreement, by law or otherwise, shall be cumulative (and not
alternative) and shall not preclude the assertion, or the seeking by a Party of
any other rights or remedies.
[SIGNATURES ON FOLLOWING PAGE.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
ENER1 HOLDINGS, INC.
a Florida corporation
By: /s/ Xxxxxxx Zoi
------------------------------------
Name: Xxxxxxx Zoi
----------------------------------
Title: President
---------------------------------
INPRIMIS, INC.
a Florida corporation
By: /s/ Eduard Will
------------------------------------
Name: Eduard Will
----------------------------------
Title: Chief Executive Officer
---------------------------------
AKERMAN, SENTERFITT & XXXXXX, P.A.
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Shareholder
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