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EXHIBIT 10.5
ESCROW AGREEMENT
This Escrow Agreement ("Agreement") is made and entered into
as of _______________, 2000 by and among TEAM AMERICA CORPORATION, an Ohio
corporation ("Parent"), certain founding shareholders of Mucho.com, INC., a
Nevada corporation ("Mucho"), identified on EXHIBIT A hereto (the "Mucho
Shareholders"), and National City Bank, a [state/national] banking association
(the "Escrow Agent").
RECITALS
WHEREAS, Parent, TEAM Merger Corporation, a Nevada corporation
and a wholly-owned subsidiary of Parent ("Merger Sub"), and Mucho have entered
into an Agreement and Plan of Merger dated as of June 16, 2000 (the "Merger
Agreement"), pursuant to which Merger Sub will merge with and into Mucho and
Mucho will become a wholly-owned subsidiary of Parent;
WHEREAS, pursuant to the Merger Agreement a total of 5,925,925
shares of common stock of Parent will be issued to former shareholders of Mucho;
WHEREAS, the Merger Agreement contemplates the establishment
of an escrow arrangement, pursuant to which the Mucho Shareholders have agreed
to place a total of __________ shares of Parent received by them in the Merger
into escrow (the "Escrow Shares");
WHEREAS, the Merger Agreement provides for the release of the
Escrow Shares upon the attainment of certain operating revenue objectives,
financing obligations and other obligations under the Merger Agreement, as more
fully described herein; and
WHEREAS, Escrow Agent is willing to act as escrow agent on the
terms and conditions set forth in this Escrow Agreement.
AGREEMENT
NOW THEREFORE, IT IS AGREED THAT:
ARTICLE I
DEFINITIONS
SECTION 1.01 DEFINED TERMS. Capitalized terms used in this
Agreement and not otherwise defined shall have the meanings given to them in the
Merger Agreement.
ARTICLE II
THE ESCROW FUND
SECTION 2.01 ESTABLISHMENT OF ESCROW FUND. Escrow Agent hereby
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acknowledges receipt from the Mucho Shareholders of Parent Common Stock
Certificate No. ____ for an aggregate of ____________ shares of Common Stock of
Parent, registered in the name of __________, together with stock powers
executed by the Mucho Shareholders with respect thereto, to be held as provided
in this Escrow Agreement. Parent and the Mucho Shareholders acknowledge that the
Escrow Shares are being issued in connection with the Merger.
SECTION 2.02 SHARES IN ESCROW FUND. The Escrow Shares held in
escrow pursuant to this Agreement shall constitute an escrow fund (the "Escrow
Fund") with respect to the performance obligations under the Merger Agreement.
The Escrow Fund shall be held as a trust fund which is a grantor trust under
Section 671 ET SEQ. of the Internal Revenue Code with the Mucho Shareholders as
grantors, and it is the intention of Parent and the Mucho Shareholders that the
Escrow Fund shall not be subject to any lien, attachment, trustee process or any
other judicial process of any creditor of any Mucho Shareholder or of any party
hereto. The Escrow Agent agrees to accept delivery of the Escrow Fund and to
hold the Escrow Fund in an escrow account (the "Escrow Account"), subject to the
terms and conditions of this Agreement. Upon execution of this Agreement by the
Mucho Shareholders, each such Mucho Shareholder shall deliver to Parent original
"assignments separate from certificate" ("Stock Powers") endorsed by each such
Mucho Shareholder in blank with signature guaranteed by a commercial bank or by
a member firm of the NASD.
SECTION 2.03 VOTING OF ESCROW SHARES. Prior to the
satisfaction of the conditions to release of one-half or all of the Escrow
Shares stated in Section 3.02, neither the Escrow Agent nor any of the Mucho
Shareholders shall be entitled to exercise any voting rights with respect to
such Escrow Shares.
SECTION 2.04 DISTRIBUTIONS. Parent and each of the Mucho
Shareholders agree among themselves, for the benefit of Parent and the Escrow
Agent, that any cash, securities or other property distributable (whether by way
of dividend, stock split or otherwise) in respect of or in exchange for any
Escrow Shares shall not be distributed to the Mucho Shareholders, but rather
shall be distributed to and held by the Escrow Agent in the Escrow Account.
Unless and until the Escrow Agent shall actually receive such cash, securities
or other property, it may assume without inquiry that the Escrow Shares
currently being held by it in the Escrow Account are all that the Escrow Agent
is required to hold. At the time any Escrow Shares are required to be released
from the Escrow Account to any Person pursuant to this Escrow Agreement, any
cash, securities or other property previously received by the Escrow Agent in
respect of or in exchange for such Escrow Shares shall be released from the
Escrow to such Person. The Parent and the Mucho Shareholders agree that the
Mucho Shareholders are taxable on any cash, securities or other property
distributed to the Escrow Agent as a dividend paid with respect to such Escrow
Shares and that Parent shall provide the Mucho Shareholders with a Form 1099
with respect to any such distributions.
SECTION 2.05 TRANSFERABILITY. The interests of the Mucho
Shareholders in the Escrow Account and in the Escrow Shares shall not be
assignable or transferable, other than by operation of law. Parent and each of
the Mucho Shareholders acknowledge that each Mucho Shareholder is the owner of
the Escrow Shares registered in the name of such shareholder.
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SECTION 2.06 FRACTIONAL SHARES. No fractional shares of Parent
Common Stock shall be retained in or released from the Escrow Account pursuant
to this Escrow Agreement. In connection with any release of Escrow Shares from
the Escrow Account, Parent and the Escrow Agent shall "round down" in order to
avoid retaining any fractional share in the Escrow Account and in order to avoid
releasing any fractional share from the Escrow Account. When shares are "rounded
down", no cash-in-lieu payments need to be made.
SECTION 2.07 PRO RATA DISTRIBUTION. Any Escrow Shares released
from the Escrow Account to Mucho Shareholders shall be deemed to reduce the
Escrow Shares pro rata with respect to each Mucho Shareholder in accordance with
each Mucho Shareholder's percentage interest in the Escrow Fund as set forth in
EXHIBIT B.
SECTION 2.08 STOCK SPLITS. All numbers contained in, and all
calculations required to be made pursuant to, this Agreement shall be adjusted
as appropriate to reflect any stock split, reverse stock split, stock dividend
or similar transaction effected by Parent after the date hereof; provided,
however, that the Escrow Agent shall have received notice of such stock split or
other action.
ARTICLE III
ADMINISTRATION OF ESCROW ACCOUNT
SECTION 3.01 RELEASE OF ESCROW SHARES. For the purposes of
this Agreement, the Escrow Agent shall be deemed to have delivered Parent Common
Stock to the Person entitled to it when the Escrow Agent has delivered such
certificates and Stock Powers to an independent stock transfer agent for the
Parent Common Stock with instructions to deliver it to the appropriate Person.
Distributions of Parent Common Stock shall be made to Parent or the Mucho
Shareholders, as appropriate, at the addresses described in EXHIBIT B. Whenever
a distribution is to be made to the Mucho Shareholders, pro rata distributions
shall be made to each of them based on the Percentage Interests in the Escrow
Fund set forth in EXHIBIT B.
SECTION 3.02 CONDITIONS ON RELEASE OF SHARES. Except as
otherwise provided herein, the Escrow Agent shall release shares held in the
Escrow Account as follows:
a. One-half of the escrowed shares, distributed on a pro rata
basis to the Mucho Shareholders, upon Stonehenge or its affiliates, business
partners or investors obtained or arranged by Stonehenge, providing $10 million
in private equity financing on behalf of Parent, prior to December 31, 2001.
b. Provided the condition in Section 3.02(a) has been
satisfied, the remaining half of the escrowed shares will be released on a pro
rata basis to the Mucho Shareholders if in any consecutive three-month period,
prior to December 31, 2002, Parent's operating revenue from Mucho's internet
operations and incremental TEAM PEO gross margin in excess of eight percent (8%)
over TEAM America's prior year's gross margin during the same three-month period
is $2 million or greater.
c. If the condition as set forth in Section 3.02(a) is not
satisfied, the Mucho
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Shareholders will receive one-half of the escrowed shares on a pro rata basis if
Parent raises $15 million in equity financing prior to December 31, 2001.
d. If the condition as set forth in Section 3.02(c) is
satisfied, the Mucho Shareholders will receive the remaining half of the
escrowed shares on a pro rata basis if Parent earns $2 million of operating
revenue from its internet operations in any consecutive three-month period prior
to December 31, 2002.
e. If prior to January 1, 2003 there shall have been a change
in control of Parent, exclusive of any such change of control resulting from the
consummation of the Merger Agreement and related transaction, the Board of
Directors of Parent shall immediately authorize the total release of the Escrow
Shares, to be distributed to the Mucho Shareholders on a pro rata basis;
provided, that, at the time the change in control occurs, the transaction which
caused the change in control was consummated for Parent common stock at a price
in excess of $6.75 per share. For purposes of this Agreement, "change of
control" shall be deemed to have taken place if, as a result of a tender offer,
merger, consolidation, sale of assets or contested election, or any combination
of the foregoing transactions (a "Transaction"), the persons who were directors
of Parent immediately before the Transaction shall cease to constitute a
majority of the Board of Directors of Parent or of any successor to Parent;
provided, however, that any Transaction shall not be deemed to be a change in
control if the Transaction causing such change shall have been approved by the
affirmative vote of at least a majority of the members of the Board of Directors
of Parent in office immediately prior to the change in control.
SECTION 3.03 CONSEQUENCES OF FAILURE TO MEET CONDITIONS OF
RELEASE. If any escrowed shares are not released in accordance with Section 3.02
above, those shares will be returned to Parent and cancelled on January 1, 2003.
SECTION 3.04 CERTIFICATION OF CONDITIONS OF RELEASE. Forthwith
upon the occurrence of any of the conditions of release contained in Section
3.02, Parent shall certify same to Escrow Agent and Escrow Agent shall
thereafter release the Escrow Shares to the Mucho Shareholders entitled thereto;
provided the failure to deliver such certification shall not by itself prevent
Escrow Agent from releasing the Escrow Shares if it is otherwise appropriate to
do so.
ARTICLE IV
ARBITRATION OF DISPUTES
SECTION 4.01 CONTESTED CLAIMS. Any Claim for release of the
Escrow Shares by any Mucho Shareholder that is contested by Parent shall be
promptly settled by mandatory binding arbitration as provided herein. The final
decision of the arbitrator will be furnished to the Escrow Agent, Parent and the
Mucho Shareholders in writing and will constitute a conclusive determination of
the issues in question, binding upon Parent and the Mucho Shareholders. The
Escrow Agent shall have no responsibility or obligation to participate in any
such arbitration as a party thereto.
SECTION 4.02 ARBITRATION. Each arbitration conducted pursuant
hereto shall be conducted in Columbus, Ohio, in accordance with the commercial
arbitration rules of the
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American Arbitration Association (the "AAA RULES") then in effect. However, in
all events, these arbitration provisions will govern and supersede any
conflicting rules which may now or hereafter be contained in the AAA Rules. Any
judgment upon the award rendered by the arbitrator may be entered in any court
having jurisdiction over the subject matter thereof.
SECTION 4.03 COMPENSATION OF ARBITRATOR. Any such arbitration
will be conducted before a single arbitrator who will be compensated at a rate
to be determined by Parent and the American Arbitration Association (the "AAA"),
but based upon reasonable hourly or daily consulting rates for the arbitrator in
the event that Parent and AAA are not able to agree upon the rate of
compensation.
SECTION 4.04 SELECTION OF ARBITRATOR. The AAA will have the
authority to select an arbitrator from a list of arbitrators who are lawyers
experienced in the representation of ___________ companies; PROVIDED, HOWEVER,
that such arbitrator cannot be the legal counsel to Parent or any one of the
Mucho Shareholders and Parent and the Mucho Shareholders will each have the
opportunity to make such reasonable objection to any of the arbitrators proposed
by the AAA as such party may wish and that the AAA will select the arbitrator
from the list of arbitrators as to whom neither party makes any such reasonable
objection. In the event that the foregoing procedure is not followed, Parent, on
the one hand, and the Mucho Shareholders, on the other hand, will choose one
person from the list of arbitrators provided by the AAA (provided that such
person does not have a conflict of interest), and the two persons so selected
will select the arbitrator from the list provided by the AAA.
SECTION 4.05 PAYMENT OF COSTS. Parent and the Mucho
Shareholders will bear the expense of deposits and advances required by the
arbitrator in equal proportions, subject to recovery as an addition or offset to
any award. The prevailing party in any arbitration or judicial proceeding
arising from or relating to this Agreement shall, in addition to all other
remedies, be entitled to an award of costs and attorney fees determined by the
arbitrator.
SECTION 4.06 BURDEN OF PROOF. For any Claim submitted to
arbitration, the burden of proof will be as it would be if the claim were
litigated in a judicial proceeding.
SECTION 4.07 AWARD. Upon the conclusion of any arbitration
proceedings hereunder, the arbitrator will render findings of fact and
conclusions of law and a written opinion setting forth the basis and reasons for
any decision reached and will deliver such documents to each party to this
Agreement along with a signed copy of the award.
SECTION 4.08 TIMING. Parent and Mucho Shareholders will use
their best efforts to conclude each arbitration pursuant to this Article IV
within 120 days after the date of the giving of the Claim Notice giving rise to
such arbitration.
SECTION 4.09. TERMS OF ARBITRATION. The arbitrator chosen in
accordance with these provisions will not have the power to alter, amend or
otherwise affect the terms of these arbitration provisions or the provisions of
this Escrow Agreement or the Plan.
SECTION 4.10 EXCLUSIVE REMEDY. Except as specifically
otherwise provided in this Escrow Agreement or the Plan, arbitration will be the
sole and exclusive remedy of the parties for any Contested Claim that seeks
release of Escrow Shares.
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SECTION 4.11 RELEASE OF ESCROW SHARES PURSUANT TO ARBITRATION
AWARD. Upon the arbitrator's issuance of a final award in such arbitration, the
arbitrator will immediately deliver a copy of such final award to the Escrow
Agent, Parent and the Mucho Shareholders. Upon its receipt of a copy of the
final arbitration award, the Escrow Agent will immediately release escrowed
shares to the appropriate party or continue to hold shares in escrow in a manner
consistent with the arbitration decision and this agreement.
ARTICLE V
LIABILITY
SECTION 5.01 LIMITATION OF ESCROW AGENT'S LIABILITY. The
Escrow Agent undertakes to perform such duties as are specifically set forth in
this Agreement only and shall have no duty under any other agreement or document
notwithstanding there being referred to herein or attached hereto as an exhibit.
The Escrow Agent shall not be liable except for the performance of such duties
as are specifically set forth in this Agreement, and no implied covenants or
obligations shall be read into this Agreement against the Escrow Agent. The
Escrow Agent shall incur no liability with respect to any action taken by it or
for any inaction on its part in reliance upon any notice, direction,
instruction, consent, statement or other document believed by it to be genuine
and duly authorized, nor for any other action or inaction except for its own
willful misconduct or gross negligence. In no event shall the Escrow Agent be
liable for punitive, incidental or consequential damages. The Escrow Agent may
rely on and use the Stock Powers and shall not be liable in connection
therewith. In all questions arising under this Agreement, the Escrow Agent may
rely on the advice of counsel, and for anything done, omitted or suffered in
good faith by the Escrow Agent based upon such advice the Escrow Agent shall not
be liable to anyone. The Escrow Agent shall not be required to take any action
hereunder involving any expense unless the payment of such expense is made or
provided for in a manner reasonably satisfactory to it.
SECTION 5.02 INDEMNIFICATION. The Mucho Shareholders and
Parent hereby agree to indemnify the Escrow Agent for, and hold it harmless
against, any loss, liability or expense incurred without negligence or willful
misconduct on the part of Escrow Agent, arising out of or in connection with its
carrying out of its duties hereunder. This right of indemnification shall
survive the termination of this Agreement, and the resignation of the Escrow
Agent.
ARTICLE VI
TERMINATION
SECTION 6.01 TERMINATION. This Escrow Agreement shall
terminate upon delivery of all of the Escrow Shares to Mucho Shareholders
pursuant to Section 3.02 herein or shall terminate and the Escrow Shares, or any
balance of the Escrow Shares remaining after delivery of Escrow Shares to Mucho
Shareholders pursuant to Section 3.02, shall be released and delivered to Parent
promptly upon the later of (a) January 1, 2003, and (b) notification to Escrow
Agent of final resolution of any dispute regarding delivery of Escrow Shares to
Mucho Shareholders pursuant to Article IV.
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ARTICLE VII
COMPENSATION
SECTION 7.01 COMPENSATION. Escrow Agent shall perform the
services required hereunder in consideration of its selection by the other
parties hereto to hold the Escrow Shares and the Stock Powers, and Escrow Agent
shall receive compensation for its services from Parent in accordance with the
following:
(a) An initial fee of ____________, which shall be due and
payable upon execution of this Agreement, and a fee of ________________, which
shall be due and payable upon the later of January 1, 2003 and the termination
of this Agreement pursuant to Section 6.01;
(b) Parent shall reimburse Escrow Agent for any of its
reasonable out of pocket expenses incurred in fulfilling its obligations
hereunder within thirty (30) days of receipt of a written request therefor
accompanied by such supporting documentation as Parent may reasonably request.
ARTICLE VIII
REPLACEMENT OF ESCROW AGENT
SECTION 8.01 SUCCESSOR ESCROW AGENT. In the event the Escrow
Agent becomes unavailable or unwilling to continue as escrow agent under this
Agreement, the Escrow Agent may resign and be discharged from its duties and
obligations hereunder by giving its written resignation to the parties to this
Agreement. Such resignation shall take effect not less than 30 calendar days
after it is given to all parties hereto. Parent shall appoint a successor Escrow
Agent. The Escrow Agent shall act in accordance with written instructions from
Parent as to the transfer of the Escrow Fund to a successor escrow agent. If
Escrow Agent gives notice of resignation hereunder, Parent and Mucho
Shareholders shall have the right to relieve Escrow Agent of its duties
hereunder and to advance the resignation date set forth by Escrow Agent's
written notice. Upon resignation under this Section 8.01, Escrow Agent shall
reimburse Parent the pro rata share of any compensation paid to Escrow Agent
under the terms of this Escrow Agreement.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01 NOTICES. Any notice or other communication
required or permitted to be delivered to any party under this Agreement shall be
in writing and shall be deemed properly delivered, given and received when
delivered (by hand, by registered mail, by courier or express delivery service
or by facsimile) to the address or facsimile telephone number set forth in
Section ____ of the Merger Agreement or to the Escrow Agent at the address set
forth below (or to such other address or facsimile telephone number as such
party shall have specified in a written notice given to the other parties
hereto):
If to Escrow Agent:
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If to Parent:
TEAM America, Inc.
110 East Wilson Bridge Road
Worthington, Ohio 43085
with a copy to:
Porter, Wright, Morris & Arthur LLP
41 S. High Street
Columbus, OH 43215
Attn: Robert J. Tannous, Esq.
Telephone: 614-227-1953
Telecopier: 614-227-2100
If to Mucho Shareholders:
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with copies to the persons set forth on
EXHIBIT A
If any Claim Notice, Response Notice or other document or notice of any kind is
required to be delivered to the Escrow Agent and any other person, the Escrow
Agent may assume without inquiry that such document has been delivered to such
other person if it has been delivered to the Escrow Agent.
SECTION 9.02 HEADINGS. The underlined headings contained in
this Agreement are for convenience of reference only, shall not be deemed to be
a part of this Agreement and shall not be referred to in connection with the
construction or interpretation of this Agreement.
SECTION 9.03 COUNTERPARTS. This Agreement may be executed in
several counterparts, each of which shall constitute an original and all of
which, when taken together, shall constitute one agreement.
SECTION 9.04 GOVERNING LAW. This Agreement shall be construed
in accordance with, and governed in all respects by, the internal laws of the
State of Ohio (without giving effect to principles of conflicts of laws).
SECTION 9.05 SUCCESSORS AND ASSIGNS. This Agreement shall be
binding upon each of the parties hereto and each of their respective permitted
successors and assigns, if any.
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No Mucho Shareholder may assign such Mucho Shareholder's rights and obligations
under this Agreement without the express prior written consent of Parent,
provided, however, that upon the death of a Mucho Shareholder, such Mucho
Shareholder's rights and obligations under this Agreement shall be transferred
to the person(s) who receive such Mucho Shareholder's Escrow Shares under the
laws of descent and distribution. Nothing in this Agreement is intended to
confer, or shall be deemed to confer, any rights or remedies upon any person or
entity other than the parties hereto and their permitted successors and assigns.
This Agreement shall inure to the benefit of the Mucho Shareholders, Parent,
Escrow Agent and the respective successors and assigns, if any, of the
foregoing.
SECTION 9.06 WAIVER. No failure on the part of any Person to
exercise any power, right, privilege or remedy under this Agreement, and no
delay on the part of any Person in exercising any power, right, privilege or
remedy under this Agreement, shall operate as a waiver of such power, right,
privilege or remedy; and no single or partial exercise of any such power, right,
privilege or remedy shall preclude any other or further exercise thereof or of
any other power, right, privilege or remedy. No Person shall be deemed to have
waived any claim arising out of this Agreement, or any power, right, privilege
or remedy under this Agreement, unless the waiver of such claim, power, right,
privilege or remedy is expressly set forth in a written instrument duly executed
and delivered on behalf of such Person; and any such waiver shall not be
applicable or have any effect except in the specific instance in which it is
given.
SECTION 9.07 AMENDMENTS. This Agreement may not be amended,
modified, altered or supplemented other than by means of a written instrument
duly executed and delivered on behalf of all of the parties hereto.
SECTION 9.08 SEVERABILITY. In the event that any provision of
this Agreement, or the application of any such provision to any Person or set of
circumstances, shall be determined to be invalid, unlawful, void or
unenforceable to any extent, the remainder of this Agreement, and the
application of such provision to Persons or circumstances other than those as to
which it is determined to be invalid, unlawful, void or unenforceable, shall not
be impaired or otherwise affected and shall continue to be valid and enforceable
to the fullest extent permitted by law.
SECTION 9.09 PARTIES IN INTEREST. None of the provisions of
this Agreement is intended to provide any rights or remedies to any Person other
than the parties hereto and their respective successors and assigns, if any.
SECTION 9.10 ENTIRE AGREEMENT. This Agreement and the other
agreements referred to herein set forth the entire understanding of the parties
hereto relating to the subject matter hereof and thereof and supersede all prior
agreements and understandings among or between any of the parties relating to
the subject matter hereof and thereof.
SECTION 9.11 CONSTRUCTION.
a. For purposes of this Agreement, whenever the context
requires: the singular number shall include the plural, and vice versa; the
masculine gender shall include the feminine and neuter genders; the feminine
gender shall include the masculine and neuter genders; and the
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neuter gender shall include the masculine and feminine genders.
b. The parties hereto agree that any rule of construction to
the effect that ambiguities are to be resolved against the drafting party shall
not be applied in the construction or interpretation of this Agreement.
c. As used in this Agreement, the words "include" and
"including," and variations thereof, shall not be deemed to be terms of
limitation, but rather shall be deemed to be followed by the words "without
limitation."
d. As used in this Agreement, the party referred to as
"Parent" shall include TEAM Mucho, the entity to be formed by the Merger of
Parent and Mucho, once the merger has been completed.
SECTION 9.12 RECALCULATION OF PERCENTAGE INTERESTS. If for any
reason EXHIBIT B should need to be recalculated, Parent shall (a) calculate
revised percentage interests for the Mucho Shareholders and (b) submit to the
Escrow Agent a revised version of EXHIBIT B, on which the Escrow Agent may rely
without inquiry.
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IN WITNESS WHEREOF, the parties have duly executed this
Agreement as of the date first set forth above.
TEAM AMERICA INC.
By:
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Kevin T. Costello, President
ESCROW AGENT
By:
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Name:
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Title:
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MUCHO SHAREHOLDERS:
By:
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By:
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By:
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By:
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By:
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MUCHO ESCROW AGREEMENT
MUCHO SHAREHOLDERS SIGNATURE PAGE
By signing and returning a counterpart hereof, this Escrow
Agreement, along with all counterparts executed as of the date of this Escrow
Agreement and thereafter by additional Mucho Shareholders, will become a binding
agreement among the Parent, the Escrow Agent and the Mucho Shareholders
signatory to this Escrow Agreement.
MUCHO SHAREHOLDER:
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By:
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Print Name:
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Tax I.D. Number:
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Address:
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MUCHO SHAREHOLDER:
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By:
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Print Name:
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Tax I.D. Number:
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Address:
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EXHIBIT A
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MUCHO SHAREHOLDERS
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EXHIBIT B
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Name, Address and Taxpayer Identification Number of Shares Pro Rata Share of
Number of Mucho Shareholder Escrow Fund
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