EXHIBIT 10.22
The brackets ("[ ]") which appear in various places in the following
exhibit indicate areas where confidential information has been redacted by
the Company. Such redacted information is the subject of a request for
confidential treatment and is therefore being filed separately with the
Commission.
ESCROW AGREEMENT
IN RELATION WITH THE OEM AGREEMENT
BETWEEN NU-TECH, INC. AND
IMAGE GUIDED TECHNOLOGIES, INC.
THIS ESCROW AGREEMENT, is entered into and effective as of the date of
the OEM Agreement hereinafter referred to, by and between IMAGE GUIDED
TECHNOLOGIES, INC., a Colorado company located at 5710-B Flatiron Parkway,
Boulder, CO 80301, the owner of certain hardware and software ("Owner"),
Nu-Tech, Inc. (d.b.a. Brewco 360DEG. Collision Repair Systems), a Kentucky
corporation with offices at 601 Front Street, Central City, KY 42330 (mailing
address PO Box 67, Central City, KY) ("Licensee") and NORWEST BANK, Corporate
Trust Department, located at 1740 Broadway, Denver, CO 80274-8693, USA
("Escrow Agent"), with reference to the following:
A. Owner and Licensee desire to enter into an Escrow Agreement pursuant
to the terms and conditions of the OEM Agreement between Owner and Licensee
(the "OEM Agreement").
B. Owner desires to provide for the availability of the source code on a
3 1/2 inch floppy disk and 8mm data tape for all IGT Software and the
availability of the entire IGT Hardware electrical and mechanical design
drawings and specifications (as defined in the OEM Agreement; such disk and
tape, and hardware electrical and mechanical design drawings and
specifications, and the calibration procedures being referred to hereinafter
as the "Escrowed Material"), to Licensee under certain conditions as set
forth below.
C. Escrow Agent desires to hold the Escrowed Material and deliver it to
Licensee or Owner, as appropriate, in accordance with the provisions set
forth in this Escrow Agreement.
NOW, THEREFORE, based upon the premises and respective promises and
obligations contained herein, the parties agree as follows:
1. DELIVERY OF ESCROWED MATERIAL. Within fifteen days of the signing
this Escrow Agreement, Owner shall deposit with Escrow Agent, and from time
to time shall deposit upgrades to, the Escrowed Material. Within seven (7)
days after any deposit of additional Escrowed Material with Escrow Agent
subsequent to the original deposit of the Escrowed Material, the Escrow Agent
shall give written notice of receipt to Owner and Licensee. All costs
associated with the preparation and delivery of the Escrowed Material shall
be borne by Licensee; such costs not to exceed U.S. $1,250.00 per deposit.
2. TERMINATION. This Escrow Agreement shall remain in effect until the
first of the following events occur: (a) the Escrowed Material is delivered
to Owner or Licensee in accordance with Section 3 of this Escrow Agreement;
(b) Licensee fails to pay Escrow
Agent's fees after thirty (30) days' notice, as described in Paragraph 6, in
which case Escrow Agent shall deliver all Escrowed Material to Owner; or (c)
ten (10) days after Owner and Licensee deliver to Escrow Agent written notice
of their mutual intent to terminate the Escrow Agreement, in which case
Escrow Agent shall deliver all Escrowed Material as provided in such written
notice. Owner and Licensee agree to terminate this Escrow Agreement in
accordance with subparagraph (c) above (i) if, at the date of the first
anniversary of the OEM Agreement, other than for a reason of force majeure
applicable to Owner or Licensee, the number of FlashPoint Model 5000 systems
purchased by the Licensee during the year preceding the said anniversary is
less than [ ] units; or (ii) if, at the date of each subsequent anniversary
of the OEM Agreement, other than for a reason of force majeure applicable to
Owner or Licensee, the number of FlashPoint Model 5000 systems purchased by
the Licensee during the year preceding the said anniversary is less than [ ]
units; provided that the foregoing agreement to terminate shall not apply if
the failure to make such purchases in any year results solely or primarily
from Owner's inability or failure to supply the Owner's products in
accordance with the OEM Agreement.
3. ACCESS TO ESCROWED MATERIALS.
(a) Upon termination of all of Owner's obligations under the OEM
Agreement or this Escrow Agreement, the Escrowed Material shall be returned
to Owner upon ten (10) business days notification given jointly by Owner and
Licensee to Escrow Agent.
(b) If Escrow Agent is notified in writing by Licensee of the occurrence
of a Release Condition (as defined in Paragraph (e), below), the Escrow Agent
shall so notify Owner in writing within ten (10) business days of receipt of
notice from Licensee, and shall include in such notice to Owner a copy of the
notice from Licensee. Unless a written opposition stating the reason for the
opposition to the release of the Escrowed Material is received by the Escrow
Agent from Owner within twenty (20) business days of the receipt by Owner of
the Escrow Agent's notice, Escrow Agent shall deliver the Escrowed Material
immediately to Licensee, and Licensee shall exercise its license to use the
Escrowed Material only to the extent permitted by Section 5 hereunder.
(c) If a written opposition is timely delivered by Owner to Escrow Agent
as provided in Paragraph (b), above, Escrow Agent shall (i) immediately
deliver to Licensee a copy of such opposition, and (ii) not release the
Escrowed Material until otherwise jointly directed by Licensee and Owner or
until resolution of the dispute as to the occurrence of a Release Condition
has been settled as provided in Paragraph (d), below.
(d) The parties hereto agree that the unavailability of the Escrowed
Material to Licensee, on the one hand, and the release of such Escrowed
Material to Licensee and subsequent loss of confidentiality thereof for
Owner, on the other hand, could in each case cause Licensee or the Owner,
respectively, to suffer irreparable and continuing injury. Therefore, any
dispute between Licensee and Owner as to the occurrence of a Release
Condition and any other dispute between them hereunder shall be submitted by
the parties (including Escrow Agent) to binding arbitration in accordance
with Section 11.5 of the OEM
Agreement. The party (but not the Escrow Agent) against whom a decision is
made shall pay all fees and expenses of the other party and the Escrow Agent,
including reasonable attorneys' fees and expenses.
(e) A "Release Condition" shall mean:
(i) If Owner files a petition in bankruptcy under
Chapter 7 of the U.S. Bankruptcy Code or any similar
law or regulation pursuant to which Owner intends to
liquidate its business; or
(ii) If any other event or circumstance occurs which
demonstrates with reasonable certainty the inability
or unwillingness of Owner to fulfill its obligations
to Licensee under the OEM Agreement;
provided, however, that in the event of a Release Condition, Owner shall
retain the right to transfer its obligations under OEM Agreement, and its
rights and obligations under this Escrow Agreement to any other person with
the consent of Licensee, which consent shall not be unreasonably withheld.
Licensee reserves the right to determine whether or not the proposed
transferee is credit worthy, competent to perform the work, and able to
satisfy the obligations of Owner hereunder in a timely manner.
4. OBLIGATIONS OF ESCROW AGENT.
(a) The Escrowed Material shall be placed and maintained in an
appropriate air conditioned vault at Escrow Agent; provided, however, Escrow
Agent cannot ensure that the storage media will not be harmed due to
inappropriate temperature and humidity, and the Escrow Agent is not required
to take any unusual precautions to control the environment in which the
storage media will stored but will maintain same as it does its own offices.
(b) Control over entrance to the Escrowed Material shall
rest with the Escrow Agent.
(c) The Escrow Agent shall make delivery of the Escrowed
Material to Owner and/or Licensee in accordance with the provisions of this
Escrow Agreement.
(d) Except as provided in this Escrow Agreement, Escrow Agent
agrees that it shall protect the confidentiality of the Escrowed Material and
shall not disclose or otherwise make available to any third party, make any
use of, or copy the Escrowed Material or any portion thereof without Owner's
prior written consent.
(e) Escrow Agent shall have the right to take such other
actions, including engaging the services of legal counsel, and incur such
costs as may be reasonably required to carry out its duties hereunder.
5. ESCROWED MATERIAL. Licensee's right to and interest in the Escrowed
Material in the event the Escrowed Material is delivered to Licensee
following a Release Condition shall be a non-transferable, non-exclusive and
limited license to use the Escrowed Material for the sole purpose of
maintaining and supporting the installed base of Licensee customers that
utilize Owner's products; provided, however, if a Release Condition described
in Section 3(e)(i) occurs and Owner has not transferred or does not intend to
transfer its obligations under the OEM Agreement to another person with the
consent of Licensee in accordance with the proviso of Section 3(e), then
Licensee shall in addition have a royalty-free license to use the Escrowed
Material to make or have made (but only for sale to its own customers)
Owner's product until a satisfactory substitute for Owner's product has been
obtained.
6. COMPENSATION OF THE ESCROW AGENT.
(a) Upon execution of this Escrow Agreement, Licensee shall pay Escrow
Agent reasonable compensation for its escrow service in accordance with the
fee schedule then in effect, which fees shall be non-refundable. The current
fee is $1,250.00 per year, and is due and payable at the initial set-up of
the Escrow Agreement. The Escrow Agent reserves the right to charge whatever
its prevailing standard fee schedule is on the annual renewal dates.
(b) Thereafter, an annual fee shall be payable by Licensee on the
anniversary date of each succeeding year for which this Escrow Agreement is
still in effect. In the event of non-payment of Escrow Agent's fees by
Licensee, Escrow Agent shall give Licensee and Owner thirty (30) days' notice
thereof. If the thirty (30) day notice period elapses without Escrow Agent
having received payment from Licensee, Escrow Agent shall terminate this
Escrow Agreement and deliver to Owner all Escrowed Material.
(c) Licensee shall reimburse Escrow Agent for all reasonable expenses it
incurs in performing its duties hereunder, said reimbursement to occur within
thirty (30) days after such expense has been incurred and an invoice has been
received therefore, provided that Escrow Agent has supplied Licensee with all
information reasonably required to determine if such expenses are reasonable.
7. INDEMNIFICATION OF ESCROW AGENT. The Escrow Agent shall not, by
reason of its execution of this Agreement, assume any responsibility or
liability for any transactions between Owner and Licensee other than for the
performances of Escrow Agent's obligations with respect to the Escrowed
Material held by it in accordance with this Escrow Agreement. Except as
otherwise provided by Section 3(d), above, the party on whose behalf, or
pursuant to whose directions the Escrow Agent acts, shall indemnify and hold
harmless the Escrow Agent from any and all liability, damages, costs, or
expenses including reasonable
attorneys' fees, which may be sustained or incurred by the Escrow Agent as a
result of the taking of such action.
8. LIMITATION OF LIABILITY. In no event shall Escrow Agent be liable
to Owner or Licensee for any indirect, special or consequential damages or
lost profits, arising out of or related to this Escrow Agreement, even if
Escrow Agent has been advised of the possibility thereof.
9. CESSATION OF BUSINESS BY ESCROW AGENT. In the event that the Escrow
Agent ceases to do business, written notice thereof will be provided to Owner
and Licensee, and Escrow Agent will give permission to Owner to enter and
remove the Escrowed Material upon terms and conditions mutually agreeable to
Owner and Licensee.
10. NOTICES. All notices required by this Escrow Agreement shall be
sufficiently given by (a) mailing the same by certified or registered U.S.
mail, return receipt requested, (b) hand delivery or express courier
delivery, or (c) by telecopy, to the parties at their respective addresses
and fax numbers, as follows:
Owner: Image Guided Technologies, Inc.
Attn: President
5710B Flatiron Parkway Boulder, CO 80301 USA
Fax No.: (303) 447-3905
Licensee: Nu-Tech, Inc.
d.b.a. Brewco 360DEG. Collision Repair Systems
Attn: President and Chief Executive Officer
301 Front Street
PO Box 67
Central City, KY 42330
Escrow Agent: Norwest Bank
Attn: Mr. Lee Lutz
1740 Broadway
Denver, CO 80274-8693
USA
Fax No.: (303) 863-5645
A party may change its address or fax number by giving notice to the other
parties as required by this Section 10. Notice by mail, hand delivery,
express courier delivery or fax shall be deemed given upon actual receipt.
11. SUCCESSION; ASSIGNMENT. The rights and obligations hereunder shall
inure to the benefit of and become the responsibility of the permitted
successors and/or assigns of the parties hereto. This Agreement may not be
assigned by any party without the prior
written consent of the other parties; provided, however, that a successor in
interest by operation of law, merger, assignment, purchase or otherwise of
all or substantially all of Owner's business, may be assigned the interest of
said party in this Agreement.
12. ENTIRE AGREEMENT. This Escrow Agreement constitutes the entire
understanding of the parties. This Escrow Agreement may be amended or
altered only by an instrument in writing signed by all parties hereto.
13. GOVERNING LAW. This Escrow Agreement shall be deemed made in the
State of Colorado and shall be interpreted in accordance with the laws
thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Escrow Agreement
to be executed by their duly authorized representatives and to become
effective as of the date first above written.
OWNER:
IMAGE GUIDED TECHNOLOGIES, INC.
By: /s/ Robert E. Silligman
Title: President/COO
LICENSEE:
NU-TECH, INC.
By: /s/ Clarence Brewer Jr.
Title: President
ESCROW AGENT:
NORWEST BANK
By: /s/ Leigh M. Lutz
Title: Vice President