Exhibit B Form of Escrow Agreement ESCROW AGREEMENT
Exhibit
10.3
Exhibit
B
Form
of Escrow Agreement
THIS
ESCROW AGREEMENT (“Agreement”)
is
made and entered into as of October ___, 2006 by and among ELECTRIC AQUAGENICS
UNLIMITED, INC., a Delaware corporation (“Company”),
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▇. ▇▇▇▇▇▇▇, a Georgia resident (“Employee”),
and
SPECIALIZED TITLE SERVICES, INC. (“Escrow
Agent”).
W I T N E S S E T H:
WHEREAS,
Company and Employee have executed and delivered that certain Employment
Agreement, dated October ___, 2006 (the “Employment
Agreement”);
WHEREAS,
pursuant to Section 13(c) of the Employment Agreement, the Company hereby
deposits into escrow the sum of Two Hundred Forty Thousand and No/100 Dollars
(“Deposit”)
from
which any Severance Payment owed by the Company to Employee will be paid;
and
WHEREAS,
Escrow Agent is willing to accept the Deposit, and to hold in trust, disburse
and apply same strictly in accordance with the terms and conditions set forth
below.
NOW,
THEREFORE, for and in consideration of the premises hereto, the covenants and
agreements hereinafter made, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by each of the parties
hereto, the parties agree as follows (all capitalized terms not defined herein
shall have the meanings assigned to them in the Employment
Agreement):
1. Appointment
of Escrow Agent.
Employee and Company hereby appoint and designate Specialized Title Services,
Inc. as the escrow agent for the purposes herein set forth, and said Escrow
Agent hereby accepts such appointment.
2. Deposit
of Deposit.
Employee hereby deposits with Escrow Agent the sum of Two Hundred Forty Thousand
and No/100 Dollars ($240,000.00) (the “Deposit”),
and
Escrow Agent hereby acknowledges receipt of the Deposit. Escrow Agent shall
hold
and disburse the Deposit pursuant to, and strictly in accordance with, the
terms
and conditions of this Agreement. Escrow Agent shall deposit the Deposit, as
soon as reasonably possible after receipt, in a federally insured,
interest-bearing escrow account (the “Depository”).
Subject
to the provisions of Section 3(b) below, all interest earned on the Deposit
in
the Depositary shall belong exclusively to Company, and all interest earned
on
the Deposit shall be disbursed to the Company each month.
3. Disbursement.
(a) Disbursement.
Escrow
Agent is to hold the Deposit until the earliest of the following
dates:
(i) Escrow
Agent shall immediately disburse the Deposit strictly in accordance with, and
upon, joint written instructions from Employee and Company to Escrow Agent;
or
(ii)
If
Escrow
Agent receives a written demand (a “Demand”)
from
either Employee or Company for the payment to him or it, respectively, of the
Deposit or any portion thereof, Escrow Agent shall promptly notify the other
party, enclosing a copy of the Demand. If Escrow Agent has not received from
the
non-demanding party its notice of objection to the Demand within ten (10)
business days after the non-demanding party has received, or is deemed to have
received, Escrow Agent’s notice of the Demand, then Escrow Agent shall disburse
the Deposit as requested by the Demand. If Escrow Agent receives from the
non-demanding party its notice of objection to the Demand within such ten (10)
business day period, then Escrow Agent shall notify the other party and shall
continue to hold the Deposit until Escrow Agent receives a joint instruction
as
provided for in clause 3(a)(i) above, or Escrow Agent receives another Demand
which has not been objected to by the non-demanding party in accordance with
the
immediately preceding sentences. Regardless, after sixty (60) days since Escrow
Agent’s receipt of the Demand, Escrow Agent may deposit the Deposit with a court
of competent jurisdiction; or
(iii) The
Escrow Agent shall disburse the Deposit strictly in accordance with a final,
non-apealable order or judgment of a court of competent
jurisdiction.
(b) Interest
on Deposit.
If
there is a dispute between the parties regarding the disbursement of the
Deposit, then the interest earned on the Deposit for the period of time
beginning on the date of notice to Escrow Agent of such dispute and ending
when
such dispute is resolved shall be belong to the prevailing party in such
dispute.
4. Conditions
to Escrow.
Escrow
Agent accepts this undertaking subject to the following conditions:
(a) Escrow
Agent may, prior to establishing the “separate interest bearing” account,
commingle funds received by it with escrow funds of others in its regular escrow
account at the Depository; provided, that the Deposit shall be invested in
the
separate interest bearing account by the next business day following receipt
by
Escrow Agent. Escrow Agent shall not be accountable for any incidental benefit
which may be attributable to the funds so deposited.
(b) Escrow
Agent shall not be liable for any loss caused by the failure, suspension,
bankruptcy or dissolution of the Depository.
(c) Provided
Escrow Agent is acting in good faith, Escrow Agent shall not be liable for
loss
or damage resulting from:
(i) any
good
faith act or forbearance of Escrow Agent;
(ii) any
default, error, action or omission of any party, other than Escrow
Agent;
(iii) the
expiration of any time limit or other delay which is not solely caused by the
failure of Escrow Agent to proceed in its ordinary course of business, and
in no
event where such time limit is not disclosed in writing to the Escrow
Agent;
(iv) the
lack
of authenticity of any writing delivered to Escrow Agent or of any signature
thereto, or the lack of authority of the signatory to sign such
writing;
(v) Escrow
Agent’s compliance with all attachments, writs, orders, judgments, or other
legal process issued out of any court;
(vi) Escrow
Agent’s assertion or failure to assert any cause of action or defense in any
judicial or administrative proceeding;
(vii) any
loss
or damage which arises after the Deposit has been disbursed in accordance with
the terms of this Agreement.
(d) Escrow
Agent shall be indemnified fully by the parties hereto for all its expenses,
costs, and reasonable, actual attorney’s fees incurred in connection with any
interpleader action which Escrow Agent may file, in its sole discretion, to
resolve any dispute hereunder; or which interpleader action may be filed against
the Escrow Agent.
(e) If
Escrow
Agent is made a party to any judicial, non-judicial or administrative action,
hearing or process based on acts of any of the other parties hereto and not
on
the willful misconduct and/or negligence of Escrow Agent in performing its
duties hereunder, the party/parties whose acts are determined to be the basis
for such proceedings shall indemnify, save and hold Escrow Agent harmless from
any reasonable, actual expenses, costs and attorney’s fees incurred by Escrow
Agent in responding to such action, hearing or process.
(f) As
compensation for serving as escrow agent, Escrow Agent shall receive a fee
of
____________ Dollars ($___) (the “Fees”).
Such
Fees shall be paid at the time the Deposit is disbursed, and 50% of such fees
shall be paid by Company and 50% shall be paid by Employee.
Notwithstanding
anything contained herein to the contrary, nothing contained in this Agreement
shall relieve or release the Escrow Agent from any liability for any loss or
damage resulting from the Escrow Agent’s negligence or willful
misconduct.
5. Indemnification.
Except
for acts or omissions of Escrow Agent which are found by a court of law to
be in
the nature of negligence or willful misconduct, Employee and Company hereby
agree to indemnify and hold harmless Escrow Agent from and against any and
all
losses, claims, damages, liabilities, costs or expenses, including, without
limitation, reasonable attorneys’ fees and all trial and/or appellate court
costs, which arise out of or are connected with this Escrow Agreement, the
appointment of Escrow Agent hereunder, or any action or omission of Escrow
Agent
in the performance of its responsibilities hereunder, including, without
limitation, any litigation arising out of or involving the subject matter of
this Escrow Agreement.
6. Tax
Identification Number.
Escrow
Agent shall have no obligation to invest the Deposit unless and until a Federal
tax identification number for the Company is provided to the Escrow Agent,
in
writing or in the space below:
Company - FEDERAL
TAX I.D. NO.: ▇▇-▇▇▇▇▇▇▇
Escrow
Agent shall have no obligation to pay any interest on the Deposit to Employee
pursuant to Section 3(b) above, unless and until a Federal tax identification
number for the Employee is provided to the Escrow Agent, in writing or in the
space below:
Employee - FEDERAL
TAX I.D. NO.: ________________
7. Rules
of Depository.
The
investment of the Deposit shall be subject to the rules, regulations, policies
and procedures of the Depository.
8. Notices.
Any
notices or other communications required or permitted under this Agreement
shall
be in writing and shall be sufficiently given if (i) delivered personally,
(ii)
sent by prepaid registered or certified United States mail, return receipt
requested, or (iii) sent by Federal Express or other similar overnight courier
service, and in each case addressed as follows (or to such substitute address
as
is specified by a party pursuant to a notice given in compliance with this
Section):
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If
to Company:
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Electric
Aquagenics Unlimited, Inc.
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▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇
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Attention:
___________________________________
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Fax:
___________________________________
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With
a copy to:
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▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇, Esq.
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▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, LLP
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Phone:
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Fax:
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If
to Employee:
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With
a copy to:
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▇▇▇▇,
▇▇▇▇ and ▇▇▇▇▇ LLC
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▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Attn:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
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Fax:
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If
to Escrow Agent:
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Specialized
Title Services, Inc.
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Attn:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
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Fax:
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Phone:
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Notices
sent hereunder shall be deemed delivered (i) if by hand or local courier, when
delivered to the address for the party to whom such notice is sent and such
delivery is accepted or refused by such party, (ii) if mailed as aforesaid,
on
the third (3rd) day after being deposited in the United States Mail or (iii)
if
sent by overnight courier, on the next business day (i.e., a day which is not
a
Saturday, Sunday or other day on which national banks are not open for business
in Atlanta, Georgia) after being delivered to such courier.
9. Time
of the Essence.
Time is
of the essence of each and every provision of this Agreement.
10. Entirety;
Modification.
This
Agreement constitutes the entire understanding between the parties with respect
to the matters set forth herein. No modification, amendment or waiver of the
terms hereof shall be valid or effective unless in writing and signed by all
of
the parties hereto.
11. Counterparts. This
Agreement may be executed in multiple counterparts. It shall not be necessary
for all the parties to execute each counterpart for this Agreement to be binding
provided, that each party executes at least one counterpart of this
Agreement.
12. Assignment.
No
assignment or a transfer by any party hereto of its rights and obligations
herein shall be made without the prior written consent of the Employee and
Company.
13. Waiver.
Failure
by any of the parties hereto to insist upon or enforce any of their rights
hereunder shall not constitute a waiver thereof. Any party hereto may waive
the
benefit of any provision or condition for its benefit contained in this
Agreement.
14. Successors
and Assigns.
This
Agreement shall apply to, inure to the benefit of and be binding upon and
enforceable against the parties hereto and their respective permitted successors
and assigns, to the same extent as specified throughout this
Agreement.
15. Governing
Law; Jurisdiction.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Georgia. The parties hereby agree that all disputes under this
Agreement shall be resolved solely in the federal and/or state courts located
in
Atlanta, Georgia.
IN
WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
executed and delivered as of the day and year first above written.
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EMPLOYEE
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/s/
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▇▇▇▇
▇. ▇▇▇▇▇▇▇
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COMPANY
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ELECTRIC
AQUAGENICS UNLIMITED, INC.
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By:
/s/ ▇▇▇ ▇▇▇▇▇▇
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Print
Name: ▇▇▇ ▇▇▇▇▇▇
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Title:
CEO
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ESCROW
AGENT
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SPECIALIZED
TITLE SERVICES, INC.
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By:
________________________________
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▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇, Esq.
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President
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