{"id":43413,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/form-of-escrow-agreement-digital-angel-corp-and-wells-fargo.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"form-of-escrow-agreement-digital-angel-corp-and-wells-fargo","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/planning\/form-of-escrow-agreement-digital-angel-corp-and-wells-fargo.html","title":{"rendered":"Form of Escrow Agreement – Digital Angel Corp. and Wells Fargo Bank, NA"},"content":{"rendered":"<\/p>\n<\/p>\n<\/p>\n<\/p>\n

Form of E<\/strong>SCROW AGREEMENT<\/strong><\/p>\n

\n<\/p>\n

\n<\/p>\n

by and among<\/strong><\/p>\n

\n<\/p>\n

______________,<\/strong><\/p>\n

\n<\/p>\n

______________,<\/strong><\/p>\n

\n<\/p>\n<\/p>\n

and<\/strong><\/p>\n

\n<\/p>\n

WELLS FARGO BANK, NATIONAL ASSOCIATION, as Escrow
\nAgent<\/strong><\/p>\n

\n<\/p>\n

Dated as of _______________, 2011<\/strong><\/p>\n

\n

\n<\/p>\n
\n<\/p>\n

ESCROW AGREEMENT<\/strong><\/p>\n

\n

This Escrow Agreement (“Escrow Agreement<\/strong>“), dated as of
\n_______________, 2011, is made by and among: ______________<\/strong>
\n(“Purchaser<\/strong>“); ______________<\/strong>
\n(“Seller<\/strong>“); and Wells Fargo Bank, National
\nAssociation<\/strong>, a national banking association, as escrow agent
\n(“Escrow Agent<\/strong>“). Capitalized terms used in this Escrow
\nAgreement but not otherwise defined herein shall have the meanings given them in
\nthe Purchase Agreement (as defined below), a copy of which has been furnished to
\nEscrow Agent solely to allow it to reference such meanings.<\/p>\n<\/p>\n

WHEREAS, the Seller and Purchaser have entered into a Stock Purchase
\nAgreement, dated as of _______________, 2011 (the “Purchase
\nAgreement<\/strong>“), providing for, among other things, the purchase by
\nPurchaser of the shares of capital stock of Destron Fearing Corporation;<\/p>\n<\/p>\n

WHEREAS, pursuant to Section 2.1(b) of the Purchase Agreement, the Seller has
\nagreed that Purchaser shall deposit an aggregate of three million seven hundred
\nthousand dollars ($3,700,000) of the Purchase Price, one million two hundred
\nthousand ($1,200,000) of which is referred to as the Adjustment Escrow Amount in
\nthe Purchase Agreement, and two million five hundred thousand ($2,500,000) of
\nwhich is referred to as the Escrow Amount in the Purchase Agreement, into escrow
\nto be held and released pursuant to this Escrow Agreement; and<\/p>\n<\/p>\n

WHEREAS, Purchaser and Seller hereto acknowledge that the Escrow Agent is not
\na party to, is not bound by, and has no duties or obligations under, the
\nPurchase Agreement, that all references in this Escrow Agreement to the Purchase
\nAgreement are for convenience, and that the Escrow Agent shall have no implied
\nduties beyond the express duties set forth in this Escrow Agreement.<\/p>\n<\/p>\n

For good and valuable consideration, the receipt and sufficiency of which are
\nhereby acknowledged, the parties hereto, intending to be legally bound, hereby
\nagree as follows:<\/p>\n<\/p>\n\n\n\n
\n

1.<\/p>\n<\/td>\n

\n

Establishment of Escrow; Investment of Escrow Fund.<\/u><\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

(a) Purchaser shall deposit with Escrow Agent on the date hereof via wire
\ntransfer of immediately available funds an aggregate of three million seven
\nhundred thousand dollars ($3,700,000) (the “Escrow Amount<\/strong>“),
\nwhich amount, as reduced by any disbursements or investment losses and as
\nincreased by investment gains, interest, dividends and other distributions
\nthereon, shall be hereinafter referred to as the “Escrow
\nFund<\/strong>“. Escrow Agent shall acknowledge receipt of the Escrow Amount.<\/p>\n<\/p>\n

(b) Escrow Agent hereby agrees to act as escrow agent and to hold, safeguard,
\ninvest and disburse the Escrow Fund pursuant to the terms and conditions hereof.\n<\/p>\n<\/p>\n

\n

(c) Except as Purchaser and Seller may from time to time jointly instruct
\nEscrow Agent in writing, the Escrow Fund shall initially be invested in the
\nWells Fargo Money Market Deposit Account (MMDA) as directed in Exhibit
\nA<\/strong>, during the period of this escrow. Purchaser and Seller acknowledge
\nthat they have read and understand Exhibit A. Escrow Agent may invest the Escrow
\nFund in alternative investments in accordance with written instructions in the
\nform of Exhibit A to this Escrow Agreement as may from time to time be provided
\nto Escrow Agent and jointly signed by Purchaser and Seller. Any interest
\nreceived by Escrow Agent with respect to the Escrow Fund, including reinvested
\ninterest, shall become part of the Escrow Fund. If such investment can be
\nregistered, it shall be registered in the name of the Escrow Agent for the
\nbenefit of Seller and held by the Escrow Agent. The Escrow Agent may act as
\npurchaser or agent in the making or disposing of any investments. The Escrow
\nAgent shall have no responsibility or liability for any diminution of the funds
\nheld in the Escrow Account which may result from any investment made pursuant to
\nthis Escrow Agreement, including any losses on any investment required to be
\nliquidated prior to maturity in order to make a payment or distribution required
\nhereunder. Such investments will be made as soon as possible following the
\navailability of such funds to the Escrow Agent for investment, taking into
\nconsideration the regulations and requirements (including cut-off times) of the
\nFederal Reserve wire system, the investment provider and the Escrow Agent, and
\ncompliance with standard operating procedures of such parties. Escrow Agent is
\nauthorized to liquidate in accordance with its customary procedures any portion
\nof the Escrow Fund consisting of investments to provide for payments required to
\nbe made under this Escrow Agreement. Purchaser and Seller acknowledge that the
\nEscrow Agent is not providing investment supervision, recommendations, or
\nadvice.<\/p>\n<\/p>\n\n\n\n
\n

2.<\/p>\n<\/td>\n

\n

Claims.<\/u><\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

(a) At any time and from time to time prior to 5:00 P.M., Dallas time, on or
\nbefore _______________, 2012 (the “General<\/strong> Release
\nDate<\/strong>“), Purchaser may in good faith give a written notice (a
\n“Notice<\/strong>“) to Seller (with a copy to Escrow Agent) setting forth
\na reasonably detailed explanation of an alleged claim, and the dollar amount of
\nany such claim, it may have by or against Seller under or relating to the
\nPurchase Agreement (a “Claim<\/strong>“). If Seller gives notice to
\nPurchaser (with a copy to Escrow Agent) disputing all or a portion of such Claim
\n(a “Counter Notice<\/strong>“) within thirty (30) calendar days following
\nreceipt by Seller of the Notice regarding such Claim, then such Claim shall be
\nresolved as provided in Section 2(b) of this Escrow Agreement. If no Counter
\nNotice is received by Escrow Agent within such thirty (30) calendar day period,
\nthen the amount claimed by Purchaser in the Notice shall be deemed established
\nfor purposes of this Escrow Agreement and, after the end of such thirty (30)
\ncalendar day period, Escrow Agent shall pay to Purchaser as soon as reasonably
\npracticable from the Escrow Fund the amount claimed in the Notice.<\/p>\n<\/p>\n

(b) If a Counter Notice is given to Purchaser with respect to a Claim, Escrow
\nAgent shall make payment to Purchaser as soon as reasonably practicable from the
\nEscrow Fund with respect to any dollar amount not disputed in the Counter
\nNotice. With respect to the amount disputed under such Counter Notice (the
\n“Disputed Amount<\/strong>“), Escrow Agent shall disburse funds only in
\naccordance with (i) joint written instructions of Purchaser and Seller, or (ii)
\na certified copy of a final order or judgment of a court of competent
\njurisdiction which judgment either has been affirmed through all permitted
\nappeals or as to which the time to make any such appeal has expired without an
\nappeal being made (a “Judgment<\/strong>“). The Escrow Agent shall be
\nentitled to receive and may conclusively rely upon an opinion of counsel for the
\npresenting side to the effect that the Judgment has been affirmed through all
\npermitted appeals or as to which the time to make any such appeal has expired
\nwithout an appeal being made. The Escrow Agent shall be entitled to rely on such
\nwritten instructions or Judgment without further duty of inquiry.<\/p>\n<\/p>\n

2<\/p>\n

\n

\n

(c) In the event that Seller and Purchaser reach a settlement with respect to
\nany Disputed Amount pursuant to this Section 2, Seller and Purchaser shall
\njointly deliver written notice of such settlement to Escrow Agent, including (if
\napplicable) instructions to Escrow Agent to disburse funds and to pay within
\nfive (5) business days from the Escrow Fund the amounts specified in such joint
\nwritten notice, and Escrow Agent shall act in accordance with such instructions.\n<\/p>\n<\/p>\n\n\n\n
\n

3.<\/p>\n<\/td>\n

\n

Termination of Escrow.<\/u><\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

(a) On the General Release Date, Escrow Agent shall, within five (5) business
\ndays, disburse the Escrow Fund to Seller, by wire transfer of immediately
\navailable funds to such account(s) as may be specified in writing by Seller;
\nprovided<\/u>, however<\/u>, that if, as of the General Release Date,
\nDisputed Amount or Claims continue to be pending (each, a “Pending
\nClaim<\/strong>“), Escrow Agent shall exclude from such disbursement to the
\nSeller, and shall continue to hold in escrow, a portion of the Escrow Fund equal
\nto the amount of all such Pending Claims.<\/p>\n<\/p>\n

(b) From and after the General Release Date, upon the resolution of any
\nPending Claim in accordance with Section 2 hereof, Escrow Agent shall pay the
\namounts (if any) resolved in favor of Purchaser to Purchaser, with all remaining
\namounts related to such Claim distributed to Seller.<\/p>\n<\/p>\n\n\n\n
\n

4.<\/p>\n<\/td>\n

\n

Duties of Escrow Agent and Other Terms and Conditions of the Escrow
\nAgency.<\/u><\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

(a) Duties and Responsibilities<\/u>.<\/p>\n<\/p>\n

The duties, responsibilities and obligations of Escrow Agent shall be limited
\nto those expressly set forth herein and no duties, responsibilities or
\nobligations shall be inferred or implied. Under no circumstance will the Escrow
\nAgent be deemed to be a fiduciary to any party or any other person under this
\nEscrow Agreement. The Escrow Agent will not be responsible or liable for the
\nfailure of any other party to perform in accordance with this Escrow Agreement.
\nEscrow Agent shall not be subject to, nor required to comply with, any other
\nagreement between or among Purchaser and Seller or to which either Purchaser or
\nSeller is a party, even though reference thereto may be made herein, or to
\ncomply with any direction or instruction (other than those contained herein or
\ndelivered in accordance with this Escrow Agreement) from Purchaser or Seller or
\nany entity acting on their respective behalf. Escrow Agent shall not be required
\nto, and shall not, expend or risk any of its own funds or otherwise incur any
\nfinancial liability in the performance of any of its duties hereunder.<\/p>\n<\/p>\n

(b) Exclusive Benefit of the Parties<\/u>.<\/p>\n<\/p>\n

This Escrow Agreement is for the exclusive benefit of the parties hereto and
\nshall not be deemed to give, either express or implied, any legal or equitable
\nright, remedy, or claim to any other entity or person whatsoever.<\/p>\n<\/p>\n

3<\/p>\n

\n

\n

(c) Judicial Orders, Judgments, Decrees, Writs or other Process<\/u>.<\/p>\n<\/p>\n

If at any time Escrow Agent is served with any judicial or administrative
\norder, judgment, decree, writ or other form of judicial or administrative
\nprocess which in any way affects the Escrow Fund (including but not limited to
\norders of attachment or garnishment or other forms of levies or injunctions or
\nstays relating to the transfer of Escrow Fund), Escrow Agent is authorized to
\ncomply therewith in any reasonable manner as it or its legal counsel of its own
\nchoosing reasonably and in good faith deems appropriate; and if Escrow Agent
\ncomplies with any such judicial or administrative order, judgment, decree, writ
\nor other form of judicial or administrative process, Escrow Agent shall not be
\nliable to any of the parties hereto or to any other person or entity even though
\nsuch order, judgment, decree, writ or process may be subsequently modified or
\nvacated or otherwise determined to have been without legal force or effect.<\/p>\n<\/p>\n

(d) Limitations on Liability of Escrow Agent<\/u>.<\/p>\n<\/p>\n

(i) Escrow Agent shall not be liable for any action taken or omitted or for
\nany loss resulting from its actions or its performance or lack of performance of
\nits duties hereunder in the absence of gross negligence or willful misconduct on
\nits part. In no event shall Escrow Agent be liable (i) for acting in accordance
\nwith or relying upon any joint written instruction from Purchaser and the Seller
\ngiven pursuant to Section 2(b)(i), Section 2(c), Section 3(a) or Section 3(d),
\n(ii) DIRECTLY OR INDIRECTLY, FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL LOSSES
\nOR DAMAGES OF ANY KIND WHATSOEVER (INCLUDING WITHOUT LIMITATION LOST PROFITS),
\nEVEN IF THE ESCROW AGENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR
\nDAMAGES AND REGARDLESS OF THE FORM OF ACTION, (iii) for the acts or omissions of
\nits nominees, correspondents, designees, subagents or subcustodians, or (iv) for
\nan amount in excess of the value of the Escrow Amount, valued as of the date of
\ndeposit.<\/p>\n<\/p>\n

(ii) Upon prior written notice to Purchaser and Seller, Escrow Agent may
\nconsult with legal counsel at the joint expense of Seller and Purchaser as to
\nany matter relating to this Escrow Agreement, and Escrow Agent shall not incur
\nany liability in acting in good faith in accordance with any advice from such
\ncounsel. Any such expense of Escrow Agent153s legal counsel shall be paid one-half
\nby Seller and one-half by Purchaser.<\/p>\n<\/p>\n

(iii) Escrow Agent shall not incur any liability for not performing any act
\nor fulfilling any duty, obligation or responsibility hereunder by reason of any
\noccurrence beyond the control of Escrow Agent (including but not limited to any
\nact or provision of any present or future law or regulation or governmental
\nauthority, any act of God or war, or the unavailability of the Federal Reserve
\nBank wire or telex or other wire or communication facility).<\/p>\n<\/p>\n

(e) Monthly Statements<\/u>.<\/p>\n<\/p>\n

Escrow Agent shall provide to Purchaser and Seller monthly statements
\nidentifying transactions, transfers or holdings of the Escrow Fund and each such
\nstatement shall be deemed to be correct and final upon receipt thereof by
\nPurchaser and Seller unless Escrow Agent is notified in writing to the contrary
\nwithin thirty (30) business days of the date of such statement.<\/p>\n<\/p>\n

(f) Genuineness of Documents<\/u>.<\/p>\n<\/p>\n

Escrow Agent shall not be responsible in any respect for the form, execution,
\nvalidity, value or genuineness of documents, or for any description therein, or
\nfor the identity, authority or rights of persons executing or delivering or
\npurporting to execute or deliver any such document.<\/p>\n<\/p>\n

4<\/p>\n

\n

\n

(g) Effectiveness of Notices<\/u>.<\/p>\n<\/p>\n

Notices, instructions or other communications shall be in writing and shall
\nbe given to the addresses set forth in Section 7 hereof (or to such other
\naddress as may be substituted therefor by written notification to Escrow Agent
\nand the other parties hereto). Notices to Escrow Agent shall be deemed to be
\ngiven when actually received by Escrow Agent153s Corporate Trust and Escrow
\nServices Division. Escrow Agent is authorized to comply with and rely upon any
\nnotices, instructions or other communications believed by it to have been sent
\nor given by either Purchaser or Seller or by a person or persons authorized by
\neither such party. Whenever under the terms hereof the time for giving a notice
\nor performing an act falls upon a Saturday, Sunday, or banking holiday, such
\ntime shall be extended to the next day on which Escrow Agent is open for
\nbusiness.<\/p>\n<\/p>\n

(h) Indemnification of Escrow Agent<\/u>.<\/p>\n<\/p>\n

Purchaser and Seller, jointly and severally, shall be liable for and shall
\nreimburse and indemnify Escrow Agent and hold Escrow Agent harmless from and
\nagainst any and all claims, losses, liabilities, costs, damages or expenses
\n(including reasonable attorneys153 fees and expenses) (collectively,
\n“Losses<\/strong>“) arising from or in connection with or related to this
\nEscrow Agreement or being Escrow Agent hereunder (including but not limited to
\nLosses incurred by Escrow Agent in connection with its successful defense, in
\nwhole or in part, of any claim of gross negligence or willful misconduct on its
\npart), provided, however, that nothing contained herein shall require Escrow
\nAgent to be indemnified for Losses finally determined to have been primarily
\ncaused by its gross negligence or willful misconduct. The provisions of this
\nSection 4(h) shall survive the resignation or removal of the Escrow Agent and
\nthe termination of this Escrow Agreement.<\/p>\n<\/p>\n

(i) Removal of Escrow Agent; Resignation of Escrow Agent<\/u>.<\/p>\n<\/p>\n

(i) By joint written instruction, Purchaser and the Seller may remove Escrow
\nAgent at any time by giving to Escrow Agent thirty (30) calendar days153 prior
\nnotice in writing signed by Purchaser and Seller. Escrow Agent may resign at any
\ntime by giving to Purchaser and Seller fifteen (15) calendar days153 prior written
\nnotice thereof.<\/p>\n<\/p>\n

(ii) Within ten (10) calendar days after giving the foregoing notice of
\nremoval to Escrow Agent or receiving the foregoing notice of resignation from
\nEscrow Agent, Purchaser, and Seller shall jointly agree on and appoint a
\nsuccessor escrow agent. If a successor escrow agent has not accepted such
\nappointment by the end of such 10-day period, Escrow Agent may apply to a court
\nof competent jurisdiction for the appointment of a successor escrow agent. The
\ncosts and expenses (including reasonable attorneys153 fees and expenses) incurred
\nby Escrow Agent in connection with such proceeding shall be paid by, and be paid
\none-half by Seller and one-half by Purchaser.<\/p>\n<\/p>\n

(iii) Upon receipt of the identity of the successor escrow agent, Escrow
\nAgent shall either deliver the Escrow Fund then held hereunder to the successor
\nescrow agent, and Purchaser and Seller shall each remain obligated for fifty
\npercent (50%) of any remaining fees, costs and expenses or other obligations
\nowed to Escrow Agent.<\/p>\n<\/p>\n

5<\/p>\n

\n

\n

(iv) Upon delivery of the Escrow Fund to successor escrow agent, Escrow Agent
\nshall have no further duties, responsibilities or obligations hereunder.<\/p>\n<\/p>\n

(j) Ambiguities; Conflicting Instructions<\/u>.<\/p>\n<\/p>\n

(i) In the event of any ambiguity or uncertainty hereunder or in any notice,
\ninstruction or other communication received by Escrow Agent hereunder, Escrow
\nAgent may, in its sole discretion, refrain from taking any action other than
\nretaining possession of the Escrow Fund, unless Escrow Agent receives written
\ninstructions, signed by Purchaser and Seller, which eliminates such ambiguity or
\nuncertainty.<\/p>\n<\/p>\n

(ii) In the event of any dispute between or conflicting claims by or among
\nPurchaser and Seller, and\/or any other person or entity with respect to the
\nEscrow Fund, Escrow Agent shall be entitled, in its sole discretion, to refuse
\nto comply with any and all claims, demands or instructions with respect to the
\nEscrow Fund so long as such dispute or conflict shall continue, and Escrow Agent
\nshall not be or become liable in any way to either Purchaser or Seller for
\nfailure or refusal to comply with such conflicting claims, demands or
\ninstructions. To the extent reasonably practicable, the parties agree to pursue
\nany redress or recourse in connection with any dispute without making the Escrow
\nAgent a party to the same. Escrow Agent shall be entitled to refuse to act
\nuntil, in its sole discretion, either (i) such conflicting or adverse claims or
\ndemands shall have been determined by a final order, judgment or decree of a
\ncourt of competent jurisdiction, which order, judgment or decree is not subject
\nto appeal, or settled by agreement between the conflicting parties as evidenced
\nin a writing satisfactory to Escrow Agent or (ii) Escrow Agent shall have
\nreceived security satisfactory to it sufficient to hold it harmless from and
\nagainst any and all Losses which it may incur by reason of so acting. Escrow
\nAgent may, in addition, elect, in its sole discretion, to commence an
\ninterpleader action or seek other judicial relief or orders as it may deem, in
\nits sole discretion, necessary. The costs and expenses (including reasonable
\nattorneys153 fees and expenses) incurred in connection with such proceeding shall
\nbe paid by one-half by Purchaser and one-half by Seller.<\/p>\n<\/p>\n

(k) Governing Law<\/u>.<\/p>\n<\/p>\n

This Escrow Agreement shall be interpreted, construed, enforced and
\nadministered in accordance with the internal substantive laws (and not the
\nchoice of law rules) of the State of Delaware.<\/p>\n<\/p>\n

(l) Amendments and Modifications<\/u>.<\/p>\n<\/p>\n

Except as otherwise permitted herein, this Escrow Agreement may be modified
\nonly by a written amendment signed by all the parties hereto, and no waiver of
\nany provision hereof shall be effective unless expressed in a writing signed by
\nthe party to be charged.<\/p>\n<\/p>\n

(m) Cumulative Rights and Remedies<\/u>.<\/p>\n<\/p>\n

The rights and remedies conferred upon the parties hereto shall be
\ncumulative, and the exercise or waiver of any such right or remedy shall not
\npreclude or inhibit the exercise of any additional rights or remedies. The
\nwaiver of any right or remedy hereunder shall not preclude the subsequent
\nexercise of such right or remedy.<\/p>\n<\/p>\n

6<\/p>\n

\n

\n

(n) Representations<\/u>.<\/p>\n<\/p>\n

Purchaser and Seller each, as to itself only and not as to the others party
\nhereto, represents and warrants (a) that this Escrow Agreement has been duly
\nauthorized, executed and delivered on its or his behalf and constitutes its
\nlegal, valid and binding obligation and (b) that the execution, delivery and
\nperformance of this Escrow Agreement by such Person do not and will not violate
\nany applicable law or regulation.<\/p>\n<\/p>\n

(o) Invalidity, Illegality; Unenforceability<\/u>.<\/p>\n<\/p>\n

The invalidity, illegality or unenforceability of any provision of this
\nEscrow Agreement shall in no way affect the validity, legality or enforceability
\nof any other provision; and if any provision is held to be enforceable as a
\nmatter of law, the other provisions shall not be affected thereby and shall
\nremain in full force and effect.<\/p>\n<\/p>\n

(p) Termination<\/u>.<\/p>\n<\/p>\n

This Escrow Agreement shall terminate upon the distribution of the entire
\nEscrow Fund. The provisions of this Section 4 shall survive termination of this
\nEscrow Agreement and\/or the resignation or removal of the Escrow Agent.<\/p>\n<\/p>\n

(q) Reliance.<\/p>\n<\/p>\n

The Escrow Agent shall not be liable for any action taken or not taken by it
\nin accordance with the written direction or consent of both Purchaser and Seller
\nor their respective agents, representatives, successors, or assigns, given in
\naccordance with the provisions hereof. The Escrow Agent shall not be liable for
\nacting or refraining from acting upon any notice, request, consent, direction,
\nrequisition, certificate, order, affidavit, letter, or other paper or document
\nbelieved by it to be genuine and correct and to have been signed or sent by the
\nproper person or persons, without further inquiry into the person153s or persons153
\nauthority. Concurrent with the execution of this Escrow Agreement, the parties
\nshall deliver to the Escrow Agent authorized signers153 forms in the form of
\nExhibit B-1 and Exhibit B-2 to this Escrow Agreement.<\/p>\n<\/p>\n\n\n\n
\n

5.<\/p>\n<\/td>\n

\n

Compensation.<\/u><\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

The Escrow Agent shall be entitled to compensation for its services as stated
\nin the fee schedule attached hereto as Exhibit C<\/u>, which compensation
\nshall be borne equally by Purchaser, and Seller. The fee agreed upon for the
\nservices rendered hereunder is intended as full compensation for the Escrow
\nAgent’s services as contemplated by the Escrow Agreement; provided<\/u>,
\nhowever<\/u>, that in the event that the conditions for the disbursement of
\nfunds under the Escrow Agreement are not fulfilled, or the Escrow Agent renders
\nany material service not contemplated in the Escrow Agreement, or there is any
\nassignment of interest in the subject matter of the Escrow Agreement, or any
\nmaterial modification hereof, or if any material controversy arises hereunder,
\nor the Escrow Agent is made a party to any litigation pertaining to the Escrow
\nAgreement, or the subject matter hereof, then the Escrow Agent shall be
\nreasonably compensated for such extraordinary services and reimbursed for all
\ncosts and expenses, including reasonable attorney’s fees, occasioned by any
\ndelay, controversy, litigation or event, and the same shall be recoverable from
\nPurchaser and Seller. If any amount due to the Escrow Agent hereunder is not
\npaid within thirty (30) calendar days of the date due, the Escrow Agent in its
\nsole discretion may charge interest on such amount up to the highest rate
\npermitted by applicable law. The Escrow Agent shall have, and is hereby granted,
\na prior lien upon the Escrow Fund with respect to its unpaid fees,
\nnon-reimbursed expenses and unsatisfied indemnification rights, superior to the
\ninterests of any other persons or entities and is hereby granted the right to
\nset off and deduct any unpaid fees, non-reimbursed expenses and unsatisfied
\nindemnification rights from the Escrow Fund.<\/p>\n<\/p>\n

7<\/p>\n

\n

\n<\/p>\n\n\n\n
\n

6.<\/p>\n<\/td>\n

\n

Ownership for Tax Purposes.<\/u><\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

Seller agrees that, for purposes of federal and other taxes based on income,
\nSeller will be treated as the owner of the Escrow Fund, and Seller will report
\nall income, if any, that is earned on, or derived from, the Escrow Fund as its
\nincome, in the taxable year or years in which such income is properly includible
\nand pay any taxes attributable thereto. Prior to closing, Seller shall provide
\nthe Escrow Agent with certified tax identification numbers by furnishing
\nappropriate form W-9 or W-8 and other forms and documents that the Escrow Agent
\nmay reasonably request. Seller and Purchaser understand that if such tax
\nreporting documentation is not so certified to the Escrow Agent, the Escrow
\nAgent may be required by the Internal Revenue Code of 1986, as amended, to
\nwithhold a portion of any interest or other income earned on the investment of
\nmonies or other property held by the Escrow Agent pursuant to this Escrow
\nAgreement. To the extent that the Escrow Agent becomes liable for the payment of
\nany taxes in respect of income derived from the investment of funds held or
\npayments made hereunder, the Escrow Agent shall satisfy such liability to the
\nextent possible from the Escrow Fund. Purchaser and Seller agree to indemnify
\nand hold the Escrow Agent harmless from and against any taxes, additions for
\nlate payment, interest, penalties and other expenses that may be assessed
\nagainst the Escrow Agent on or with respect to any payment or other activities
\nunder this Escrow Agreement unless any such tax, addition for late payment,
\ninterest, penalties and other expenses was directly caused by the gross
\nnegligence or willful misconduct of the Escrow Agent. The indemnification
\nprovided by this Section 6 is in addition to the indemnification provided in
\nSection 4(h) and shall survive the resignation or removal of the Escrow Agent
\nand the termination of this Escrow Agreement.. Seller and Purchaser agree to
\ntreat the payment of any of the amounts held in the Escrow Fund to Purchaser as
\nadjustments to the deemed purchase price treated as exchanged for the assets of
\nthe company for all United States federal, state, local and foreign income tax
\npurposes unless otherwise required by applicable law.<\/p>\n<\/p>\n\n\n\n
\n

7.<\/p>\n<\/td>\n

\n

Notices.<\/u><\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

All notices, consents, waivers and other communications under this Escrow
\nAgreement must be in writing and will be deemed to have been duly given when (a)
\ndelivered by hand , (b) sent by telecopier or electronic mail (email) (with
\nwritten confirmation of receipt) provided that a copy is mailed by registered
\nmail, return receipt requested, or (c) when received by the addressee, if sent
\nby a nationally recognized overnight delivery service, in each case to the
\nappropriate addresses and telecopier numbers set forth below (or to such other
\naddresses and telecopier numbers as a party may designate by notice to the other
\nparties):<\/p>\n<\/p>\n

8<\/p>\n

\n

\n

(a) If to Seller:<\/p>\n<\/p>\n<\/p>\n

______________<\/p>\n<\/p>\n

______________<\/p>\n<\/p>\n

______________<\/p>\n<\/p>\n

______________<\/p>\n<\/p>\n

______________<\/p>\n<\/p>\n<\/p>\n

with a copy to (which shall not constitute notice):<\/p>\n<\/p>\n<\/p>\n

Winthrop & Weinstine, P.A.<\/p>\n<\/p>\n

Capella Tower, Suite 3500<\/p>\n<\/p>\n

225 South Sixth Street<\/p>\n<\/p>\n

Minneapolis, MN 55402<\/p>\n<\/p>\n

Attention: Philip T. Colton, Esq.<\/p>\n<\/p>\n

Facsimile No.: (612) 604-6929<\/p>\n<\/p>\n<\/p>\n

(b) If to Purchaser:<\/p>\n<\/p>\n<\/p>\n

______________<\/p>\n<\/p>\n

______________<\/p>\n<\/p>\n<\/p>\n<\/p>\n

with a copy to (which shall not constitute notice):<\/p>\n<\/p>\n<\/p>\n

Hunton & Williams LLP<\/p>\n<\/p>\n

1445 Ross Avenue<\/p>\n<\/p>\n

Suite 3700<\/p>\n<\/p>\n

Dallas, TX 75202<\/p>\n<\/p>\n

Attention: T. Allen McConnell, Esq.<\/p>\n<\/p>\n

Fax no.: (214) 880-0011<\/p>\n<\/p>\n

E-mail address: amcconnell@hunton.com<\/p>\n<\/p>\n<\/p>\n

(c) If to Escrow Agent:<\/p>\n<\/p>\n<\/p>\n

Wells Fargo Bank, National Association<\/p>\n<\/p>\n

625 Marquette Avenue, 11th Floor<\/p>\n<\/p>\n

Minneapolis, MN 55479<\/p>\n<\/p>\n

Attention: Lynn Lean, N9311-115<\/p>\n<\/p>\n

Fax no.: (612) 667-2160<\/p>\n<\/p>\n

E-mail address: lynn.lean@welllsfargo.com<\/p>\n<\/p>\n

9<\/p>\n

\n

\n<\/p>\n<\/p>\n\n\n\n
\n

8.<\/p>\n<\/td>\n

\n

Counterparts.<\/u><\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

This Escrow Agreement may be executed in one or more counterparts, each of
\nwhich will be deemed to be an original and all of which, when taken together,
\nwill be deemed to constitute one and the same.<\/p>\n<\/p>\n\n\n\n
\n

9.<\/p>\n<\/td>\n

\n

Section Headings.<\/u><\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

The headings of sections in this Escrow Agreement are provided for
\nconvenience only and will not affect its construction or interpretation.<\/p>\n<\/p>\n

[Signature page follows]<\/strong><\/p>\n

\n

10<\/p>\n

\n

\n

IN WITNESS WHEREOF<\/strong>, the parties have executed and delivered
\nthis Escrow Agreement as of the date first written above.<\/p>\n<\/p>\n\n\n\n\n
\n

PURCHASER:<\/strong><\/p>\n

______________<\/strong><\/p>\n

By: _______________________________<\/p>\n

Name:_____________________________<\/p>\n

Its: _______________________________<\/p>\n

ESCROW AGENT:<\/strong><\/p>\n

Wells Fargo Bank, National Association,<\/strong><\/p>\n

as Escrow Agent<\/p>\n

By: _______________________________<\/p>\n

Name:_____________________________<\/p>\n

Its: _______________________________<\/p>\n<\/td>\n

\n

SELLER:<\/strong><\/p>\n

______________<\/strong><\/p>\n

By: _________________________________<\/p>\n

Name: _______________________________<\/p>\n

Its: _________________________________<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

[Signature Page to Escrow Agreement]<\/p>\n

\n

\n

EXHIBIT A<\/p>\n

\n<\/p>\n

Agency and Custody Account Direction<\/strong><\/p>\n

\n

For Cash Balances<\/strong><\/p>\n

\n

Wells Fargo Money Market Deposit Accounts<\/strong><\/p>\n

\n<\/p>\n

Direction to use the following Wells Fargo Money Market Deposit Accounts for
\nCash Balances for the escrow account or accounts (the “Account”) established
\nunder the Escrow Agreement to which this Exhibit A is attached.<\/p>\n<\/p>\n<\/p>\n

You are hereby directed to deposit, as indicated below, or as I shall direct
\nfurther in writing from time to time, all cash in the Account in the following
\nmoney market deposit account of Wells Fargo Bank, National Association:<\/p>\n<\/p>\n<\/p>\n<\/p>\n

Wells Fargo Money Market Deposit Account (MMDA)<\/p>\n

\n<\/p>\n<\/p>\n

I understand that amounts on deposit in the MMDA are insured, subject to the
\napplicable rules and regulations of the Federal Deposit Insurance Corporation
\n(FDIC), in the basic FDIC insurance amount of $250,000 per depositor, per
\ninsured bank. This includes principal and accrued interest up to a total of
\n$250,000.<\/p>\n<\/p>\n<\/p>\n

I acknowledge that I have full power to direct investments of the Account.\n<\/p>\n<\/p>\n<\/p>\n

I understand that I may change this direction at any time and that it shall
\ncontinue in effect until revoked or modified by me by written notice to you.<\/p>\n<\/p>\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n
\n

______________________________________<\/p>\n<\/td>\n

<\/td>\n\n

[___________________________________]<\/u><\/p>\n<\/td>\n<\/tr>\n

\n

Authorized Representative<\/p>\n<\/td>\n

<\/td>\n\n

[Authorized Representative]<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

______________________________________<\/p>\n<\/td>\n

<\/td>\n\n

[___________________________________]<\/u><\/p>\n<\/td>\n<\/tr>\n

\n

Date<\/p>\n<\/td>\n

<\/td>\n\n

[Date]<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

____________________________________<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n\n

[<\/u>Authorized Representative]<\/u><\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

____________________________________<\/p>\n<\/td>\n<\/tr>\n

\n

______________________________________<\/p>\n<\/td>\n

<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

______________________________________<\/p>\n<\/td>\n

<\/td>\n\n

[___________________________________]<\/u><\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n\n

[Date]<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

2<\/p>\n

\n

\n

EXHIBIT B-1<\/u><\/p>\n

\n

CERTIFICATE AS TO AUTHORIZED SIGNATURES<\/p>\n

\n<\/p>\n

The specimen signatures shown below are the specimen signatures of the
\nindividuals who have been designated as authorized representatives of
\n[________]. and are authorized to initiate and approve transactions of all types
\nfor the escrow account or accounts established under the Escrow Agreement to
\nwhich this Exhibit B-1 is attached, on behalf of [_____________].<\/p>\n<\/p>\n\n\n\n\n\n\n\n\n\n\n
\n

Name \/ Title<\/p>\n<\/td>\n

\n

Specimen Signature<\/u><\/p>\n<\/td>\n<\/tr>\n

\n

________________________________<\/p>\n

Name<\/p>\n

________________________________<\/p>\n

Title<\/p>\n<\/td>\n

\n

________________________________<\/p>\n

Signature<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/tr>\n
\n

________________________________<\/p>\n

Name<\/p>\n

________________________________<\/p>\n

Title<\/p>\n<\/td>\n

\n

________________________________<\/p>\n

Signature<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/tr>\n
\n

________________________________<\/p>\n

Name<\/p>\n

________________________________<\/p>\n

Title<\/p>\n<\/td>\n

\n

________________________________<\/p>\n

Signature<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/tr>\n
\n

________________________________<\/p>\n

Name<\/p>\n

________________________________<\/p>\n

Title<\/p>\n<\/td>\n

\n

________________________________<\/p>\n

Signature<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n

3<\/p>\n

\n

\n<\/p>\n

EXHIBIT B-2<\/u><\/p>\n

\n

CERTIFICATE AS TO AUTHORIZED SIGNATURES<\/p>\n

\n<\/p>\n

The specimen signatures shown below are the specimen signatures of the
\nindividuals who have been designated as authorized representatives of
\n[__________] and are authorized to initiate and approve transactions of all
\ntypes for the escrow account or accounts established under the Escrow Agreement
\nto which this Exhibit B-2 is attached, on behalf of [_________________]<\/p>\n<\/p>\n\n\n\n\n\n\n\n\n\n\n
\n

Name \/ Title<\/p>\n<\/td>\n

\n

Specimen Signature<\/u><\/p>\n<\/td>\n<\/tr>\n

\n

_______________________________<\/p>\n

Name<\/p>\n

_______________________________<\/p>\n

Title<\/p>\n<\/td>\n

\n

________________________________<\/p>\n

Signature<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/tr>\n
\n

________________________________<\/p>\n

Name<\/p>\n

________________________________<\/p>\n

Title<\/p>\n<\/td>\n

\n

________________________________<\/p>\n

Signature<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/tr>\n
\n

________________________________<\/p>\n

Name<\/p>\n

________________________________<\/p>\n

Title<\/p>\n<\/td>\n

\n

________________________________<\/p>\n

Signature<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/tr>\n
\n

________________________________<\/p>\n

Name<\/p>\n

________________________________<\/p>\n

Title<\/p>\n<\/td>\n

\n

________________________________<\/p>\n

Signature<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n<\/p>\n

4<\/p>\n

\n

\n<\/p>\n

EXHIBIT C<\/u><\/strong><\/p>\n

\n

Fee Schedule<\/strong><\/p>\n

\n<\/p>\n\n\n\n
\n

Acceptance Fee:<\/u><\/strong><\/p>\n<\/td>\n

\n

Waived<\/strong><\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

Initial Fees as they relate to Wells Fargo Bank acting in the capacity of
\nEscrow Agent : includes review of the Escrow Agreement; acceptance of the Escrow
\nappointment; setting up of Escrow Account(s) and accounting records; and
\ncoordination of receipt of funds for deposit to the Escrow Account(s).<\/p>\n<\/p>\n

Acceptance Fee payable at time of Escrow Agreement
\nexecution.<\/strong><\/p>\n<\/p>\n\n\n\n
\n

Escrow Agent Annual Administration Fee:<\/u><\/strong><\/p>\n<\/td>\n

\n

$[____].00<\/strong><\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

For ordinary administrative services by Escrow Agent : includes daily routine
\naccount management; investment transactions; cash transaction processing
\n(including wire and check processing); monitoring claim notices pursuant to the
\nagreement; disbursement of funds in accordance with the agreement; and mailing
\nof trust account statements to all applicable parties. Additionally, a sweep fee
\nof 20 basis points will be assessed by the Escrow Agent on the average monthly
\nbalance for Money Market (sweep) Investments. Float credit received by the bank
\nfor receiving funds that remain uninvested are deemed part of the Paying
\nAgent\/Escrow Agent153s compensation.<\/p>\n<\/p>\n

Tax reporting is included for up to Two (2) entities. Should additional
\nreporting be necessary, a $25 per reporting charge will be assessed.<\/p>\n<\/p>\n

This fee is payable in advance, with the first year fee due upon
\nopening of the account.<\/strong> The Annual Fee covers a full year or any part
\nthereof, and therefore will not be prorated or refunded in the year of early
\ntermination.<\/p>\n<\/p>\n

Wells Fargo153s bid is based on the following
\nassumptions:<\/em><\/strong><\/p>\n<\/p>\n\n\n\n\n
\n

– <\/strong><\/p>\n<\/td>\n

\n

Number of Escrow Accounts to be established: One (1)<\/p>\n<\/td>\n<\/tr>\n

\n

– <\/strong><\/p>\n<\/td>\n

\n

Number of Deposits to Escrow Account: One (1)<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n\n
\n

– <\/strong><\/p>\n<\/td>\n

\n

Number of Withdrawals from Escrow Fund: various<\/p>\n<\/td>\n<\/tr>\n

\n

– <\/strong><\/p>\n<\/td>\n

\n

Term of Escrow: approximately 2 years<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n\n
\n

– <\/strong><\/p>\n<\/td>\n

\n

APPOINTMENT SUBJECT TO RECEIPT OF REQUESTED DUE DILIGENCE INFORMATION
\nAS PER THE USA PATRIOT ACT<\/strong><\/p>\n<\/td>\n<\/tr>\n

\n

– <\/strong><\/p>\n<\/td>\n

\n

THIS PROPOSAL ASSUMES THAT BALANCES IN THE ACCOUNT WILL BE INVESTED
\nIN MONEY MARKET FUNDS<\/strong><\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n\n
\n

– <\/strong><\/p>\n<\/td>\n

\n

ALL FUNDS WILL BE RECEIVED FROM OR DISTRIBUTED TO A DOMESTIC OR AN
\nAPPROVED FOREIGN ENTITY<\/strong><\/p>\n<\/td>\n<\/tr>\n

\n

– <\/strong><\/p>\n<\/td>\n

\n

IF THE ACCOUNT(S) DOES NOT OPEN WITHIN THREE (3) MONTHS OF THE DATE
\nSHOWN BELOW, THIS PROPOSAL WILL BE DEEMED TO BE NULL AND VOID<\/strong><\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n

5<\/p>\n

\n

\n\n\n\n
\n

Out-of Pocket Expenses:<\/u><\/strong><\/p>\n<\/td>\n

\n

At Cost<\/strong><\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

We will charge for out-of-pocket expenses in response to specific tasks
\nassigned by the client or provided for in the escrow agreement. Possible
\nexpenses would be, but are not limited to, express mail and messenger charges,
\ntravel expenses to attend closing or other meetings. There are no charges for
\nindirect out-of- pocket expenses.<\/p>\n<\/p>\n

This fee schedule is based upon the assumptions listed above
\nwhich pertain to the responsibilities and risks involved in Wells Fargo
\nundertaking the role of Escrow Agent. These assumptions are based on information
\nprovided to us as of the date of this fee schedule. Our fee schedule is subject
\nto review and acceptance of the final documents. Should any of the assumptions,
\nduties or responsibilities change, we reserve the right to affirm, modify or
\nrescind our fee schedule. Extraordinary services (services other than the
\nordinary administration services of Escrow Agent described above) are not
\nincluded in the annual administration fee and will be billed as incurred at the
\nrates in effect from time to time<\/em><\/strong><\/p>\n<\/p>\n

6<\/p>\n

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