EXHIBIT 2.4
STOCK ESCROW AGREEMENT
STOCK ESCROW AGREEMENT, dated as of July 27, 2004, ("Stock Escrow
Agreement") by and among Guardian Healthcare Systems UK Limited, , a company
organized under the laws of England and Wales ("Buyer"), Guardian Technologies
International, Inc., a Delaware corporation ("Parent"), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (each a "Seller" and collectively, the "Sellers"), and Mintz,
Levin, Cohn, Ferris, Glovsky and Popeo, P.C., (the "Escrow Agent") as escrow
agent hereunder.
WHEREAS, Buyer, Parent, and Sellers are each a party to a Stock
Purchase Agreement (the "Purchase Agreement"), dated July 27, 2004, by and
between, Buyer, Sellers, Guardian Technologies International, Inc. ("Parent")
and Wise Systems Ltd. ("Target") with respect to the purchase by Buyer from
Sellers of all of the issued and outstanding shares of capital stock of Wise
Systems Ltd. Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Purchase Agreement; and
WHEREAS, pursuant to Section 1.02(d) of the Purchase Agreement, Buyer
and Sellers have agreed to place in escrow certain shares of Parent's common
stock, $.001 par value per share (the "Escrowed Securities") to be held in
escrow upon the terms and conditions set forth in this Stock Escrow Agreement;
and
WHEREAS, the Escrow Agent has agreed to hold the Escrowed Securities
in escrow pursuant to the terms hereof.
NOW THEREFORE, in consideration of the mutual covenants and
agreements contained herein and in the Purchase Agreement and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. Appointment of the Escrow Agent. Buyer and Sellers hereby appoint
and designate the Escrow Agent as escrow agent for the purposes set forth
herein, and the Escrow Agent hereby accepts such appointment and designation,
subject to the terms and conditions contained herein.
2. Delivery of Escrowed Securities. Simultaneously with the execution
of this Stock Escrow Agreement, the parties have delivered or caused to be
delivered to the Escrow Agent, the Escrowed Securities to be held by the Escrow
Agent pursuant to the terms and conditions of this Stock Escrow Agreement. The
Escrow Agent hereby acknowledges receipt of the Escrowed Securities and agrees
to hold and distribute the Escrowed Securities as provided herein.
3. Escrow of Escrowed Securities. The Escrow Agent hereby agrees to
hold the Escrowed Securities in escrow pursuant to the following terms and
conditions:
(a) Term of Escrow. The Escrowed Securities will be held by the
Escrow Agent for a period of three (3) years (the "Term") pursuant to the terms
hereof.
(b) Forfeiture of Escrowed Securities. Immediately following the closing of the
transactions contemplated by the Purchase Agreement, the business formerly
operated by Target will continue to be operated by Target as a wholly-own
subsidiary of Buyer. The Escrowed Securities (to the extent not forfeited
pursuant to this Section 3) will be released to the Sellers at the end of the
Term based on the amount of Firm Purchase Orders (as defined below) booked by
the Healthcare Systems Division (as defined below) during the periods set forth
below:
(i) If, during the first twelve month period immediately
following the Closing, the Healthcare Systems Division fails to
obtain Firm Purchase Orders in an amount equal to or greater than One
Million Five Hundred Thousand Dollars ($1,500,000US), one third of
the Escrowed Securities will be forfeited and will not be released to
the Sellers at the end of the Term.
(ii) If, during the second twelve month period immediately
following the Closing (months 13-24), the Healthcare Systems Division
fails to obtain Firm Purchase Orders in an amount equal to or greater
than Two Million Five Hundred Thousand Dollars ($2,500,000US), an
additional one third of the Escrowed Securities will be forfeited and
will not be released to the Sellers at the end of the Term.
(iii) If, during the third twelve month period immediately
following the Closing (months 25-36), the Healthcare Systems Division
fails to obtain Firm Purchase Orders in an amount equal to or greater
than Four Million Dollars ($4,000,000US), an additional one third of
the Escrowed Securities will be forfeited and will not be released to
the Sellers at the end of the Term.
For purposes hereof the term "Healthcare Systems Division" shall mean
any business operated by Parent, Buyer, Target or any affiliate thereof and
related to products, including hardware (but only to the extent of the
Healthcare Systems Division's ▇▇▇▇-up on such hardware), using Virtology
components or components designed from Target Virtology components, including
but not limited to Radiology Information Systems, Pictorial Archival
Communication Systems, Information systems for Order Communications, Electronic
Patient Records, Cardiology, Ophthalmology, and Pathology.
For purposes hereof, a Firm Purchase Order is any purchaser order for
products or services to be provided by the Healthcare Systems Division that is
accepted by Parent pursuant to the terms hereof. In order for a Firm Purchase
Order to be included in the calculation of the thresholds set forth above, each
such Purchase Order must be submitted to Parent in writing. Each written
submission shall be in a form reasonably acceptable to Parent and shall be
accompanied by such supporting documentation as may be reasonably required by
Parent in order for Parent to determine that each Firm Purchase Order is
authentic, involves a ready, willing and able purchaser and is on terms
reasonably acceptable to Parent. Any Firm Purchase Order negotiated by the
Healthcare Systems Division shall be submitted to Parent in the ordinary course
of business with a copy to Sellers. Parent and Sellers will maintain a
cumulative total of all approved Firm Purchase Orders and only those Firm
Purchase Orders submitted to Parent in writing during any measurement period set
forth in (i) - (iii) above will be eligible for inclusion in such period even if
accepted after the end of such period.
In the event that any forfeiture threshold set forth in (i) - (iii)
above is not met, the Escrowed Securities that are forfeited in such
period will be released to Parent at the conclusion of each such
period.
Notwithstanding any provision of this Stock Escrow Agreement to the
contrary, if (i) Sellers provide Buyer and Escrow Agent with written
notice that there has been a breach of Section 3.06 of the Purchase
Agreement (which notice of breach is not disputed in writing within
ten (10) business days of receipt thereof); (ii) upon the sale of all
or substantially all of the assets of Target to a third-party that is
not an affiliate of Parent; or (iii) there has been a liquidation or
sale of all or substantially all of the assets of Parent, Escrow
Agent shall deliver to Sellers all Escrowed Securities not previously
forfeited under this Section 3 (the conditions described in
subparagraphs (ii) and (iii) above are collectively referred to as
"Release Events").
The Sellers shall have the right to receive dividends and
distributions on the Escrowed Securities (which dividends and
distributions will be held under this Escrow Agreement until the end
of the Term) and to otherwise exercise the powers, rights and
privileges of a stockholder of Parent with respect to such Escrowed
Securities; provided, however, to the extent that any forfeiture
threshold set forth in (i) - (iii) above is not met, such rights with
respect to the forfeited shares will terminate and any dividends or
distributions attributable to such forfeited Escrowed Securities will
be forfeited by Sellers and released to Parent.
Subject to Section 6 hereof, if a controversy exists between the
Buyer and Sellers as to the correct disposition of the Escrowed Securities and
either party gives written notice to the Escrow Agent before the end of the Term
of such controversy, the Escrow Agent shall continue to hold the Escrowed
Securities until (i) Buyer and Sellers subsequently deliver to the Escrow Agent
a joint written notice with respect to the disposition of the Escrowed
Securities, or (ii) the Escrow Agent receives a certified copy of a final
decree, order or decision of a court of competent jurisdiction constituting the
final determination of any dispute between Buyer and Sellers with respect to the
Escrowed Securities to be distributed hereunder, which distribution shall be
made in accordance with such notice or judicial determination.
Notwithstanding any provision of this Stock Escrow Agreement to the
contrary, if at any time the Escrow Agent shall receive joint written
instructions signed by Buyer and Sellers with respect to delivery of all or part
of the Escrowed Securities, the Escrow Agent shall deliver such Escrowed
Securities in accordance with such written instructions.
4. Distributions of Escrowed Securities / Indemnification. The Escrow
Agent shall retain the Escrowed Securities during the Term, to secure the
performance by Sellers of their obligations to indemnify Buyer under Article 6
of the Purchase Agreement in accordance with the following provisions:
(a) Buyer may from time to time make demand of the Escrow
Agent for claims of indemnification or other obligations under the Purchase
Agreement by serving upon the Escrow Agent and Sellers a written notice
demanding payment of an indemnification or other claim arising under Article 6
of the Purchase Agreement (including, without limitation, claims for
indemnification against third party claims asserted against Buyer). Such notice
shall be in the formed required by Article 6 of the Purchase Agreement.
(b) Upon a final determination under Article 6 of the
Purchase Agreement that the Sellers, as the Indemnifying Party, have an
indemnification obligation to Buyer with respect to any Losses (as defined in
the Purchase Agreement) incurred by Buyer, then, at the election of the Buyer,
the Escrow Agent shall pay to Buyer the amount of the claim by releasing to
Buyer such number of Escrowed Securities as may be equal to the amount of the
Loss divided by the average high and low sales prices of the Escrowed Securities
for the thirty (30) business day period ending two (2) days prior to the date of
the final determination of the amount of the Losses. Escrowed Securities
released from Escrow pursuant to this Section 4 will first be released from any
Escrowed Securities that have vested pursuant to Section 3 hereof. For purpose
of this paragraph, "final determination" means (i) a written notice signed by
Buyer and Sellers and delivered to the Escrow Agent stating the indemnification
obligation, or (ii) the Escrow Agent receives a certified copy of a final
decree, order or decision of a court of competent jurisdiction constituting the
final determination of any dispute between Buyer and Sellers with respect to the
indemnification obligation.
5. Termination of Agreement. When all of the Escrowed Securities have
been distributed pursuant to the provisions of this Stock Escrow Agreement, this
Stock Escrow Agreement, except for the provisions of Sections 6(b) and 6(e)
hereof, shall terminate, and be of no further force or effect.
6. Escrow Agent.
(a) Duties and Responsibilities. (i) The duties and responsibilities
of the Escrow Agent hereunder shall be limited to those expressly set forth in
this Stock Escrow Agreement, and the Escrow Agent shall not be bound in any way
by any other contract or agreement between the parties hereto, whether or not
the Escrow Agent has knowledge of any such contract or agreement or of the terms
or conditions thereof. In the event that the Escrow Agent shall be uncertain as
to any duties or responsibilities hereunder or shall receive instructions from
either of the parties hereto with respect to the Escrowed Securities which in
the Escrow Agent's belief are in conflict with any of the provisions of this
Stock Escrow Agreement, the Escrow Agent shall be entitled to refrain from
taking any action until it shall be directed to do so in writing by both parties
hereto or by order of a court of competent jurisdiction in proceedings which the
Escrow Agent or any other party hereto shall be entitled to commence. The Escrow
Agent may act upon the advice of its counsel in taking or refraining from taking
any action hereunder and may act upon any instrument or other writing believed
in good faith to be genuine and to be signed and presented by the proper person
or persons.
(ii) The Escrow Agent shall not be responsible for the
genuineness of any signature or document presented to it pursuant to this Stock
Escrow Agreement and may rely conclusively upon and shall be protected in acting
upon any list, advice, judicial order or decree, certificate, notice, request,
consent, statement, instruction or other instrument believed by it in good faith
to be genuine or to be signed or presented by the proper person hereunder, or
duly authorized by such person or properly made. The Escrow Agent shall not be
responsible for any of the agreements contained herein except the performance of
its duties as expressly set forth herein. The duties and obligations of the
Escrow Agent hereunder shall be governed solely by the provisions of this Stock
Escrow Agreement and the Escrow Agent shall have no duties other than the duties
expressly imposed herein and shall not be required to take any action other than
in accordance with the terms hereof. The Escrow Agent shall not be bound by any
notice of, or demand with respect to, any waiver, modification, amendment,
termination, cancellation, rescission or restatement of this Stock Escrow
Agreement , unless in writing and signed by Buyer and Sellers, and, if the
duties of the Escrow Agent are affected thereby, unless Escrow Agent shall have
given its prior written consent thereto.
(b) Liability. The Escrow Agent shall not be liable to anyone for any
damage, loss or expense incurred as a result of any act or omission of the
Escrow Agent, unless such damage, loss or expense is caused by the Escrow
Agent's willful default or gross negligence. Accordingly, and without limiting
the foregoing, the Escrow Agent shall not incur any such liability with respect
to (i) any action taken or omitted under this Stock Escrow Agreement, or (ii)
any action taken or omitted in reliance upon any instrument, including any
written notice or instruction provided for herein, not only as to its due
execution by an authorized person and as to the validity and effectiveness of
such instrument, but also as to the truth and accuracy of any information
contained therein. Should any issue arise with respect to the delivery or
ownership of the Escrowed Securities, the Escrow Agent shall have no liability
to any party hereto for retaining dominion and control over the Escrowed
Securities until such issue is resolved by (i) mutual agreement of the parties;
or (ii) final order, decree or judgment by a court of competent jurisdiction .
In no event shall the Escrow Agent be under any duty whatsoever to institute or
defend such proceeding.
(c) Disputes. If any controversy arises between the parties to this
Agreement, or with any other party, concerning the subject matter of the Escrow,
its terms or conditions, the Escrow Agent will not be required to determine the
controversy or to take any action regarding it. In the event of a dispute
between any of the parties hereto sufficient in the discretion of the Escrow
Agent to justify its initiation of legal proceedings, or in the event that the
Escrow Agent is joined as a party to a lawsuit by virtue of the fact that it is
holding the Escrowed Securities, the Escrow Agent may, at its option (i) tender
the Escrowed Securities into the registry or custody of the court of competent
jurisdiction before which such lawsuit is pending, and thereupon be discharged
from all further duties and liabilities under this Stock Escrow Agreement with
respect to the Escrowed Securities so tendered, (ii) hold all documents and
funds and wait for settlement of any such controversy by final appropriate legal
proceedings or other means as, in the Escrow Agent's discretion, it may require,
despite what may be set forth elsewhere in this Agreement, or (iii) deliver the
Escrowed Securities in accordance with the court's interlocutory orders or
ultimate disposition of such lawsuit. The Escrow Agent may at its option file an
action of interpleader requiring the parties to answer and litigate any claims
and rights among themselves. Upon initiating such action, the Escrow Agent shall
be fully released and discharged of and from all obligations and liabilities
imposed by the terms of the Escrow. Any legal action initiated by the Escrow
Agent may be brought in any court as the Escrow Agent shall determine to have
jurisdiction with respect to such matter. Buyer, Parent and Sellers hereby
jointly and severally indemnify and hold the Escrow Agent harmless from and
against any damage, losses or expense suffered or incurred by the Escrow Agent
in connection with the exercise by Escrow Agent of the options authorized in
this paragraph, including but not limited to, reasonable attorneys' fees and
costs and court costs at all trial and appellate levels.
(d) Legal Action. The Escrow Agent shall have no duty to incur any
out-of-pocket expenses or to take any legal action in connection with this Stock
Escrow Agreement or towards its enforcement, or to appear in, prosecute or
defend any action or legal proceeding that would result in or might require it
to incur any cost, expense, loss, or liability, unless and until it shall
receive confirmation and at its option, security, with respect to
indemnification in accordance with Paragraph 6(e) of this Stock Escrow
Agreement.
(e) Indemnification. Without determining or limiting any rights as
between Buyer, Parent and Sellers, which rights shall exist outside this Stock
Escrow Agreement and not be prejudiced hereby, Buyer, Parent and Sellers jointly
and severally hereby agree to indemnify and hold harmless the Escrow Agent from
and against any and all cost, loss, damage, disbursement, liability, and
expense, including reasonable attorneys' fees and costs, which may be imposed
upon or incurred by the Escrow Agent hereunder, or in connection with the
performance of its duties hereunder, including any litigation arising out of
this Stock Escrow Agreement, or involving the subject matter hereof, except only
costs, losses, claims, damages, disbursements, liabilities and expenses arising
out of the Escrow Agent's acts or omissions for which the Escrow Agent is
adjudged willfully malfeasant or grossly negligent by a final decree, order or
judgment of a court of competent jurisdiction from which no appeal is taken
within the applicable appeals period.
(f) Resignation. The Escrow Agent, or the Escrow Agent's successor
hereinafter appointed, may at any time resign by giving notice in writing to
Buyer and Sellers, and shall be discharged of all further duties hereunder upon
the appointment of a successor escrow agent which shall be appointed by mutual
agreement of Buyer and Sellers; provided, however, that such resigning Escrow
Agent shall remain entitled to indemnification hereunder pursuant to Paragraph
6(e) hereof. If Buyer and Sellers are unable to agree on a successor escrow
agent, either of such parties may petition a court of competent jurisdiction to
appoint one. From the date upon which the Escrow Agent sends notice of any
resignation until the acceptance by a successor escrow agent appointed as
provided herein, the Escrow Agent's sole obligation hereunder shall be to hold
the Escrowed Securities delivered to it in accordance with this Stock Escrow
Agreement. Any such successor escrow agent shall deliver to Buyer and Sellers a
written certificate accepting such appointment hereunder, and thereupon it shall
succeed to all the rights and duties of the escrow agent hereunder and shall be
entitled to receive the benefit of the provisions set forth herein.
(g) Law Firm Escrow Agent. Buyer, Parent and Sellers each acknowledge
and agree that nothing contained herein shall be deemed to prevent any law firm
serving as the Escrow Agent, or as a successor escrow agent, from acting as
counsel for Buyer, Parent or Sellers, or any of their respective stockholders,
or any of their respective affiliates, or any other party in any matter,
including resolution of disputes and claims subject to, arising under or related
to the Purchase Agreement or this Stock Escrow Agreement, or acting as an escrow
agent on behalf of others.
7. Escrow Agent Fees and Expenses. The Escrow Agent shall be entitled
to reimbursement for its out of pocket costs and expenses and payment of any
amounts to which the Escrow Agent is entitled under the indemnification
provisions contained herein. The costs and expenses of the Escrow Agent,
including reasonable attorneys' fees and costs, shall be borne jointly and
severally by Buyer, Parent and Sellers and any amounts owed by Buyer, Parent or
Sellers to the Escrow Agent, whether joint or several, must be paid to the
Escrow Agent before the Escrow Agent is obligated to release the Escrowed
Securities. The Escrow Agent shall not charge any other fees or costs except as
may be related to the indemnification provisions contained herein.
9. Miscellaneous.
(a) Notices. All notices, requests, consents and other
communications hereunder shall be in writing, shall be addressed to the
receiving party's address set forth below or to such other address as a party
may designate by notice hereunder, and shall be either (i) delivered by hand,
(ii) made by telex, telecopy or facsimile transmission, (iii) sent by overnight
courier, or (iv) sent by registered or certified mail, return receipt requested,
postage prepaid.
If to Buyer:
Guardian Healthcare Systems UK Limited
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, CEO
If to Parent:
Guardian Technologies International, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, CEO
In either case with a copy to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Mintz, Levin, Cohn, Ferris,
Glovsky and Popeo, P.C.
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to Sellers:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ Burnfoot Farm
Morebattle
▇▇▇▇▇
Roxburghshire
Scotland
TD5 8AG
With a copy to:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to Target:
Wise Systems Limited
▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Attn: Director
If to the Escrow Agent:
Mintz, Levin, Cohn, Ferris,
Glovsky and Popeo, P.C.
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
All notices, requests, consents and other communications hereunder shall be
deemed to have been given either (i) if by hand, at the time of the delivery
thereof to the receiving party at the address of such party set forth above,
(ii) if made by telex, telecopy or facsimile transmission, at the time that
receipt thereof has been acknowledged by electronic confirmation or otherwise,
(iii) if sent by overnight courier, on the next business day following the day
such notice is delivered to the courier service, or (iv) if sent by registered
or certified mail, on the 5th business day following the day such mailing is
made.
(b) Entire Agreement. This Stock Escrow Agreement embodies the entire
agreement and understanding among the parties hereto with respect to the subject
matter hereof and supersedes all prior oral or written agreements and
understandings between and among the parties relating to the subject matter
hereof. No statement, representation, warranty, covenant or agreement of any
kind not expressly set forth in this Stock Escrow Agreement shall affect, or be
used to interpret, change or restrict, the express terms and provisions of this
Stock Escrow Agreement.
(c) Amendments, Waivers and Consents. Except as otherwise expressly
provided herein, the terms and provisions of this Stock Escrow Agreement may be
modified or amended only by written agreement executed by all parties hereto.
The terms and provisions of this Stock Escrow Agreement may be waived, or
consent for the departure therefrom granted, only by a written document signed
by the party entitled to the benefits of such terms or provisions. No such
waiver or consent shall be deemed to be or shall constitute a waiver or consent
with respect to any other terms or provisions of this Stock Escrow Agreement,
whether or not similar. Each such waiver or consent shall be effective only in
the specific instance and for the purpose for which it was given, and shall not
constitute a continuing waiver or consent.
(e) Assignment. The rights and obligations under this Stock Escrow
Agreement may not be assigned by any of the parties hereto without the prior
written consent of the other parties.
(f) Benefit, Binding Effect; Third Party Beneficiaries. All
statements, representations, warranties, covenants and agreements in this Stock
Escrow Agreement shall be binding on the parties hereto and shall inure to the
benefit of the respective successors and permitted assigns of each party hereto.
Nothing in this Stock Escrow Agreement shall be construed to create any rights
or obligations except among the parties hereto, and no person or entity shall be
regarded as a third-party beneficiary of this Stock Escrow Agreement.
(g) Governing Law. This Stock Escrow Agreement and the rights and
obligations of the parties hereunder shall be governed by and construed in
accordance with the laws of the Commonwealth of Virginia, without giving effect
to the conflict of law principles thereof.
(h) Severability. In the event that any court of competent
jurisdiction shall determine that any provision, or any portion thereof,
contained in this Stock Escrow Agreement shall be unenforceable or invalid in
any respect, then such provision shall be deemed limited to the extent that such
court deems it valid or enforceable, and as so limited shall remain in full
force and effect. In the event that such court shall deem any such provision,
partially or wholly unenforceable, the remaining provisions of this Stock Escrow
Agreement shall nevertheless remain in full force and effect.
(i) Expenses. Except for the fees and expenses of the Escrow Agent
which shall be paid as provided in Section 7, each of the parties hereto shall
pay its own fees and expenses (including the fees of any attorneys, accountants,
appraisers or others engaged by such party) in connection with this Stock Escrow
Agreement and the transactions contemplated hereby, whether or not the
transactions contemplated in this Stock Escrow Agreement or in the Purchase
Agreement are consummated. In the event of a dispute between the Sellers and
either the Buyer or Parent as to the vesting off Escrowed Securities or failure
to meet thresholds set forth in subsections (i) - (iii) of section 3(b) above,
the prevailing party shall be entitled to an award of its losses or expenses
suffered or incurred including but not limited to reasonable attorney's fees and
court costs at all trial and appellate levels.
(i) Headings and Captions. The headings and captions contained in
this Stock Escrow Agreement are for convenience only and shall not affect the
meaning or interpretation of this Stock Escrow Agreement or of any of its terms
or provisions.
(j) Interpretation. The parties hereto acknowledge and agree that
they have participated jointly in the negotiation and drafting of this Stock
Escrow Agreement, have each been represented by counsel in such negotiation and
drafting, and that in the event an ambiguity or question of intent or
interpretation arises, this Stock Escrow Agreement shall be construed as if
drafted jointly by the parties and no presumption or burden of proof shall arise
favoring or disfavoring any party by virtue of the authorship of any of the
provisions of this Stock Escrow Agreement.
(j) Counterparts. This Stock Escrow Agreement may be executed in any
number of counterparts, and by different parties hereto on separate
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
[The remainder of this page is intentionally blank. Signature page is attached]
IN WITNESS WHEREOF, the parties hereto have executed this Stock
Escrow Agreement under seal as of the day and year first above written.
BUYER
Guardian Healthcare Systems UK Limited
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Director
PARENT
Guardian Technologies International, Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Chief Executive Officer
SELLERS
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇
ESCROW AGENT
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Member