ESCROW AGREEMENT
THIS ESCROW AGREEMENT (the "Agreement") made and entered into as of the
___ day of November, 2004, by and among Paul Masanek ("Masanek"), Services By
Designwise, Ltd. ("SBD", and collectively with Masanek, the "Plaintiffs"), James
E. Solomon ("Solomon"), Technology Alternatives, Inc., an Illinois corporation
("Technology"), and TechAlt, Inc. f/k/a Dendo Global Corporation, a Nevada
corporation ("TechAlt", and collectively with Solomon and Technology, the
"Defendants"), The Otto Law Group, PLLC ("OLG") and Piccione, Keeley &
Associates, Ltd. ("PKA", and collectively with OLG, the "Escrow Agents"). The
Plaintiffs and the Defendants shall collectively be referred to herein as the
"Parties".
WHEREAS, Plaintiffs filed certain claims against the Defendants in a
lawsuit filed in the Circuit Court of Cook County, Illinois, PAUL MASANEK AND
SERVICES BY DESIGNWISE, LTD. V. JAMES SOLOMON, ET AL. CASE NO. 04 CH 14001 (the
"Litigation");
WHEREAS, the Parties have entered into negotiations to resolve the
Litigation without incurring any additional attorneys' fees and costs;
WHEREAS, as a result of these negotiations, the Parties have agreed to
enter into a Settlement Agreement dated as of the date hereof (the "Settlement
Agreement") pursuant to which the Plaintiffs and the Defendants agreed to take
all necessary actions to dismiss the Litigation upon the consummation of certain
transactions as more fully described in the Settlement Agreement; and
WHEREAS, in order to consummate the transactions described in the
Settlement Agreement, the Parties have agreed to deposit the signature pages for
the Settlement Agreement and the (i) Agreement and Plan of Merger (the "Merger
Agreement"), (ii) Secured Convertible Promissory Note (the "Note"), (iii)
Security Agreement ("Security Agreement"), (iv) Sales Agreement ("Sales
Agreement"), (v) Consulting Agreement ("Consulting Agreement"), (vi) Warrant
("Warrant"), (vii) Registration Rights Agreement ("Registration Agreement"),
(viii) Right of First Refusal Agreement (the "ROFRA"), (ix) Assignment and Bill
of Sale, all of even date herewith (collectively, the "Related Agreements"), (x)
Resolution of the Board of Directors of TechAlt and Technology and of the
Shareholders of Technology approving this Agreement, the Settlement Agreement,
the Related Agreements and the Agreed Order (the "Resolutions"), and (xi) the
Agreed Order (as defined in Section 3(b) below) into an escrow to be held by the
Escrow Agents according to the terms and provisions of this Agreement.
NOW, THEREFORE, in consideration of the covenants and agreements contained
in the Agreement, the Settlement Agreement, the Related Agreements and for other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the undersigned hereby agree as follows:
1. Appointment of Escrow Agent. The Parties hereby appoint the Escrow
Agents for the purposes set forth herein and the Escrow Agents hereby accept
such appointment under the terms and conditions set forth herein.
2. Establishment of Escrow.
(a) Simultaneous with the execution and delivery of this Agreement,
the Parties shall execute the Settlement Agreement, Related Agreements, the
Resolutions, and Agreed Order (collectively the "Escrowed Documents") to which
they are a party and shall cause the Escrowed Documents to be delivered to the
Escrow Agents. The Escrowed Documents shall be held and disposed of by the
Escrow Agents in accordance with the terms and provisions of this Agreement.
(b) The Defendants shall deliver one (1) set of executed
counterparts of the following Escrowed Documents to both OLG and PKA:
Settlement Agreement
Merger Agreement
Note
Security Agreement
Sales Agreement
Consulting Agreement
Registration Agreement
ROFRA
Agreed Order
Assignment and Bill of Sale
Resolutions
Warrant
(c) The Plaintiffs shall deliver one (1) set of executed
counterparts of the following Escrowed Documents to both PKA and OLG:
Settlement Agreement
Merger Agreement
Security Agreement
Sales Agreement
Consulting Agreement
Registration Agreement
ROFRA
Agreed Order
Assignment and Bill of Sale
Resolutions
3. Disposition and Termination of the Escrow.
(a) The Escrow Agents shall release the Escrowed Documents to the
Parties, and the Parties hereby agree that all of the Escrowed Documents shall
be legally valid and binding obligations of the Parties, immediately only upon
(i) receipt by PKA of the executed Sunrise Investors Waivers described in
Article 5.1 of the Settlement Agreement (Exhibit 5.1(a) of Settlement Agreement)
and (ii) the payment to: (a) Masanek of Six Hundred Fifty Thousand Dollars
($650,000.00) as provided in the Settlement Agreement, and (b) PKA of One
Hundred Forty Thousand Dollars ($140,000.00) as provided in the Settlement
Agreement (the items required in subparagraphs (i) and (ii) collectively
referred to herein as the "Closing Payments"). Closing Payments shall be made by
wire transfer deposited in the Segregated Funds Account of Piccione, Keeley &
Associates, Ltd., at which time the Escrowed Documents shall be deemed in full
force and effect pursuant to the terms set forth therein (the "Closing").
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(b) In the event the Closing Payments are not received on or before
5:00 p.m. (CST) on December 15, 2004 ("Escrow Deadline"), (i) the Escrow Agents
shall release the Agreed Order and Permanent Injunction Pursuant to Stipulation
a copy of which is attached hereto as EXHIBIT A ("Agreed Order") to Piccione,
Keeley & Associates, Ltd. no later than December 16, 2004 at 9:00 a.m. (CST),
(ii) the Parties stipulate and agree that the Agreed Order shall be entered in
the Litigation without further notice (the only defense of the Defendants to the
entry of the Agreed Order shall be proof of the Closing Payment on or before the
Escrow Deadline), and (iii) the Escrow Agents shall return the Escrowed
Documents to the respective parties (except for the Agreed Order) (the "Escrow
Deadline Default").
(c) Upon the first to occur of the (i) the Closing or (ii) the
Escrow Deadline Default, this Agreement shall terminate, and the Escrow Agents
shall be released from any further obligations hereunder.
4. Responsibilities and Liabilities of the Escrow Agent. Other than
Section 3(a), for which a breach by the Escrow Agents shall impose upon them
strict liability, the Escrow Agents undertake to perform only such duties as are
expressly set forth herein and no other or further duties or responsibilities
shall be implied. The Escrow Agents shall have no liability under and no duty to
inquire as to the provisions of any agreement other than this Agreement. The
Escrow Agents may rely upon and shall not be liable for acting or refraining
from acting upon any written notice, instruction or request furnished to it
hereunder and believed by it to be genuine and to have been signed or presented
by the proper party or parties. The Escrow Agents shall be under no duty to
inquire into or investigate the validity, accuracy or content of any such
document. The Escrow Agents shall not be liable for any action taken or omitted
in good faith except to the extent that a court of competent jurisdiction
determines that the Escrow Agents' gross negligence or willful misconduct was
the primary cause of any loss to any of the parties hereto. The Escrow Agents
may execute any powers and perform any duties hereunder directly or through
agents or attorneys (and shall be liable only for the careful selection of any
such agent or attorney) and may consult with counsel, accountants and other
skilled persons to be selected and retained by the Escrow Agents. The Escrow
Agents shall not be liable for anything done, suffered or omitted in good faith
in accordance with the advice or opinion of any such counsel, accountants or
other skilled persons. In the event that the Escrow Agents shall be uncertain as
to their respective duties or rights hereunder or shall receive instructions,
claims or demands from any party hereto which, in its opinion, conflict with any
of the provisions of this Agreement, the Escrow Agents shall be entitled to
refrain from taking any action and its sole obligation shall be to keep safely
all property held in escrow until it shall be directed otherwise in writing by
all of the other parties hereto or by a final order or judgment of a court of
competent jurisdiction. Anything in this Escrow Agreement to the contrary
notwithstanding, in no event shall the Escrow Agents be liable for special,
indirect or consequential loss or damage of any kind whatsoever (including but
not limited to lost profits), even if the Escrow Agents have been advised of the
likelihood of such loss or damage and regardless of the form of action.
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5. Indemnification. The Escrow Agents shall be indemnified against any
claim or charge made against the Escrow Agents by reason of any action or
failure to act in connection with any of the transactions contemplated by this
Agreement, and against any loss the Escrow Agents may sustain in carrying out
the terms of this Agreement, except as a result of the Escrow Agents' gross
negligence or willful misconduct. Unless otherwise provided by the terms of a
decision rendered by the court in the Litigation or another court of competent
jurisdiction with respect to the disputes between the parties hereto, the
Parties shall be jointly and severally liable for all such claims, charges or
losses.
6. Removal/Resignation of Escrow Agent.
(a) The Parties collectively (not individually) shall have the right
to remove one or both of the Escrow Agents hereunder by giving notice in writing
to the Escrow Agent(s), specifying the date upon which such removal shall take
effect. In the event of such removal, the Parties agree that, prior to the
effective date of removal of the Escrow Agents, they will jointly appoint
successors to the Escrow Agent(s) (the "Successor Escrow Agent(s)"). The Escrow
Agent agree that, upon receiving joint written instructions from the Parties,
they shall turn over and deliver to such Successor Escrow Agent(s) all of the
Escrowed Documents and any other property held by it pursuant to this Agreement
in accordance with the terms of such written instructions.
(b) One or both of the Escrow Agents may resign and be discharged
from its duties or obligations hereunder by giving one (1) day advance notice in
writing of such resignation to the Parties specifying a date when such
resignation shall take effect. On the effective date of the Escrow Agent's(s')
resignation, the Escrow Agent(s) shall turn over and deliver to such Successor
Escrow Agent(s) all of the Escrowed Documents and any other property held by it
pursuant to this Agreement in accordance with the joint written instructions
from the parties hereto.
(c) Upon receipt of the Escrowed Documents and any other property
held by the Escrow Agent(s) after the removal or resignation of the Escrow
Agent(s), the Successor Escrow Agent(s) shall thereupon be bound by all of the
provisions hereof and the term "Escrow Agent(s)" as used herein shall mean the
Successor Escrow Agent(s).
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7. Interpleader. If the Escrow Agents are at any time be confronted with
inconsistent claims or demands by the Parties, the Escrow Agents shall have the
right to interplead such parties in any court of competent jurisdiction and
request that such court determine such respective rights of the parties with
respect to this Agreement. Upon doing so, the Escrow Agents automatically shall
be released from any obligations or liability as a consequence of any such
claims or demands, except that the Escrow Agents shall not be released from any
liability for willful or wanton misconduct occurring during the time that the
Escrow Agents served as Escrow Agents.
8. Amendments. This Agreement may only be amended by the mutual written
agreement of all of the parties hereto, including the Escrow Agents.
9. Notices. Any notices, requests, demands and other communications
hereunder shall be deemed to have duly given if delivered by hand, sent by
certified or registered mail (postage prepaid and with return receipt
requested), by overnight courier service or by telex, telecopy or other written
form of electronic communication:
If to Masanek
and/or SBD: Paul Masanek
5250 Cleveland Street
Skokie, IL 60077
Facsimile: (847) 673-3539
If to SBD: Services By Designwise, Ltd.
Attn: Paul Masanek
3311 N. Kennicott Ave., Suite A
Arlington Heights, IL 60004
Facsimile: (847) 673-3539
If to Solomon: James E. Solomon
3311 N. Kennicott Ave., Suite A
Arlington Heights, IL 60004
Facsimile: (847) 398-1692
With a copy to: Michael James Lightfoot, Esq.
680 Lions Drive
Lake Zurich, IL 60047
Facsimile: (847) 550-9591
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If to Technology: Technology Alternatives, Inc.
Attn: James E. Solomon
3311 N. Kennicott Ave., Suite A
Arlington Heights, IL 60004
Facsimile: (847) 398-1692
With a copy to: The Otto Law Group, PLLC
Attn: David Otto
900 Fourth Avenue, Suite 3140
Seattle, WA 98164
Facsimile: (206) 262-9513
If to TechAlt: TechAlt, Inc.
Attn: James E. Solomon
3311 N. Kennicott Ave., Suite A
Arlington Heights, IL 60004
Facsimile: (847) 398-1692
With a copy to: The Otto Law Group, PLLC
Attn: David Otto
900 Fourth Avenue, Suite 3140
Seattle, WA 98164
Facsimile: (206) 262-9513
If to OLG: The Otto Law Group, PLLC
Attn: David Otto
900 Fourth Avenue, Suite 3140
Seattle, WA 98164
Facsimile: (206) 262-9513
If to PKA: Piccione, Keeley & Associates, Ltd.
Attn: Mr. Patrick C. Keeley
122C South County Farm Road
Wheaton, IL 60187
Facsimile: (630) 653-8029
Notice shall be deemed given upon delivery if delivered personally, on the
next day if delivered by an overnight carrier, or three (3) days after the date
of postmark if deposited in the U.S. Mail for delivery by certified or
registered mail, return receipt requested, postage prepaid, addressed, or upon
transmission if it has been given by facsimile between 9:00 a.m. and 5:00 p.m.
central time, Monday through Friday.
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10. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH
AND GOVERNED BY THE LAWS OF THE STATE OF ILLINOIS APPLICABLE TO CONTRACTS MADE
AND TO BE PERFORMED THEREIN WITHOUT REGARD TO THE CONFLICTS OR CHOICE OF LAW
PROVISIONS THEREOF.
11. Counterparts. This Agreement may be executed simultaneously in two or
more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
12. Successors and Assigns. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective heirs,
representatives, successors and assigns; provided, however, that neither of the
Escrow Agents shall be permitted to assign this Agreement without the express
written consent of both the Parties.
13. Incorporation of Recitals. All the recitals contained herein are
hereby incorporated into and made a part of this Agreement.
14. Escrow Agents Fees. The Escrow Agents shall be paid by their
respective clients at their regular rate for services rendered hereunder except
that any costs and fees incurred by the Escrow Agents in filing an interpleader
action shall be paid for by, and assessed equally against, the Parties.
SIGNATURE PAGE FOLLOWS
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IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of
the date first above written.
- -----------------------------------
Paul Masanek
Services By Designwise, Ltd.
By:______________________________
Its:_______________________________
- -----------------------------------
James E. Solomon
Technology Alternatives, Inc.
By:______________________________
Its:_______________________________
TechAlt, Inc. f/k/a Dendo Global Corporation
By:_______________________________
Its:________________________________
The Otto Law Group, PLLC
By:_______________________________
Its:_______________________________
Piccione, Keeley & Associates, Ltd.
By:_______________________________
Its:_______________________________