ESCROW AGREEMENT
This Escrow Agreement is dated September 22, 1997, and is entered into by
DCX, Inc., a Colorado corporation ("DCX"), Xxxx Xxxxxxxxx (the "Shareholder"),
and American Securities Transfer and Trust, Inc. (the "Escrow Agent").
WHEREAS, pursuant to Agreement for Exchange of Shares dated September 22,
1997, the ("Agreement") which is incorporated herein by reference, DCX will
issue 2.4476 shares of DCX no par value common stock ("DCX Common Stock"), in
exchange for each share of common stock of PlanGraphics, Inc., a Maryland
corporation ("PGI") in a non-public transaction; and
WHEREAS, pursuant to Section 1.3 of the Agreement, the Shareholder has
agreed to place in an escrow account a total of 125,000 shares of DCX Common
Stock that are issued to the Shareholder in exchange for shares of PGI common
stock; and
WHEREAS, the parties enter into this agreement with the Escrow Agent to
establish an escrow account ("Escrow Account") for the purpose of fulfilling the
escrow requirements as set forth in Section 1.3 of the Agreement, and the Escrow
Agent is a Colorado corporation that is willing, and that is in all respects
qualified, to act as the escrow agent under this Escrow Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants, terms and conditions in this Agreement, the parties agree as follows:
1. Deposit in Escrow.
1.1 At the Closing specified in the Agreement, the Shareholder shall
deliver to the Escrow Agent certificates representing at least 51,071 shares of
PGI common stock, with irrevocable instructions to deposit into the Escrow
Account at the Escrow Agent, a certificate representing 125,000 shares of DCX
Common Stock ("Escrow Shares") that are issuable to the Shareholder in exchange
for PGI common stock. During the escrow period the Escrow Shares will be
available to offset any claims for indemnification by DCX against the
Shareholder under the Agreement.
1.2 During the term of this Escrow Agreement, in the event the shares of
DCX Common Stock, as a class, are converted into or exchanged for different
capital securities of DCX or any other entity, the different capital securities
for which the Escrow Shares are exchanged or converted shall be substituted for
and become the Escrow Shares, and shall deposited into the Escrow Account and be
subject to the Escrow Agreement.
1.3 Unless and until the Escrow Shares are released from escrow and
delivered to the Shareholder, any dividends or distributions of any kind payable
with respect to the escrow shares shall be deposited into the Escrow Account.
Upon termination of the Escrow Agreement pursuant to Section 4.2.c, the
Shareholder shall be paid, without interest, the amount of any dividends or
distributions which theretofore became payable with respect to the Escrow
Shares. Upon termination of the Escrow Agreement pursuant to Section 4.2.b, the
amount of any dividends or distributions which theretofore became payable with
respect to the Escrow Shares shall be delivered to the party specified in the
notice under Section 4.2.b.
2. Beneficial Owner.
The Shareholder shall be the beneficial owner of the DCX Common Stock that
remain in escrow and have voting rights over such securities.
3. No Power to Sell or Transfer.
The Shareholder agrees that, during the period of time that the Escrow
Agent holds the Escrow Shares, he will not sell, pledge, hypothecate, transfer,
encumber, or otherwise dispose of, any of such Escrow Shares.
4. Termination of Escrow.
4.1 This Escrow Agreement shall begin on the date hereof and will terminate
as provided herein, unless extended by written agreement of the parties.
4.2 The Escrow Shares shall be released from escrow on the day that is one
year from the date of Closing of the Agreement ("Closing") and delivered to the
Shareholder; provided, that if prior to one year from the Closing the Escrow
Agent receives written notice from DCX that it has made a claim for
indemnification against the Shareholder, the Escrow Shares shall remain in
escrow subject to the following instructions:
a. The Escrow Agent shall release the Escrow Shares and all other
items deposited into the Escrow Account as instructed pursuant to written notice
to the Escrow Agent signed by both DCX and the Shareholder.
b. Upon receipt by the Escrow Agent of a certified copy of on order
from a Court of competent jurisdiction, the Escrow Shares and all other items
deposited into the Escrow Account shall be released pursuant to the terms of the
order.
c. If the Escrow Agent has not received the notice specified in 4.2.a
or 4.2.b above, the Escrow Agent shall release the Escrow Shares, and any other
items deposited into the Escrow Account, to the Shareholder one year from the
Closing.
4.3 Any Escrow Shares that are released and delivered to DCX shall
thereafter become null and void if such securities have not been issued, at
which time such Escrow Shares shall become authorized but unissued.
4.4 For any Escrow Shares and other items in the Escrow Account that are
released and delivered to the Shareholder, the Escrow Agent shall promptly
deliver such items within five days of such termination of the Escrow Agreement.
5. Escrow Agent Matters.
5.1. In acting pursuant to this Agreement, the Escrow Agent shall be fully
protected in every reasonable exercise of its discretion and shall have no
obligation hereunder either to the parties hereto or to any other party, except
as expressly set forth herein.
5.2. DCX shall be responsible for payment of all reasonable fees and
expenses of the Escrow Agent incurred by it in the course of performing
hereunder. The escrow fees shall be $1,500 per year, payable when the Escrow
Agreement is signed by the Escrow Agent.
5.3. The parties hereto agree to provide the Escrow Agent all information
necessary to facilitate the administration of this Escrow Agreement and the
Escrow Agent may rely upon any such information provided. In performing any of
its duties hereunder, the Escrow Agent shall not incur any liability to anyone
for any damages, losses or expenses, except for willful default or gross
negligence and it shall, accordingly, not incur any such liability with respect
to (a) any action taken or omitted in good faith upon advice of its counsel or
counsel for DCX given with respect to any questions relating to the duties and
responsibilities of the Escrow Agent under this Escrow Agreement, and (b) any
action taken or omitted in reliance upon any instrument, including the written
advice provided for herein, not only as to the execution, validity and
2
effectiveness of its provisions, but also as to the truth and accuracy of any
information contained therein, which the Escrow Agent shall in good faith
believe to be genuine, to have been signed and presented by a proper person or
persons, and to be in compliance with the provisions of this Escrow Agreement.
5.4. The parties hereby agree to indemnify and hold harmless the Escrow
Agent against any and all losses, claims, damages, liabilities and expenses,
including reasonable costs of investigation and counsel fees and disbursements,
which may be imposed on the Escrow Agent or incurred by the Escrow Agent in
connection with its acceptance of appointment as Escrow Agent hereunder or the
performance of its duties hereunder, including any litigation arising from this
Escrow Agreement or involving the subject matter hereof.
5.5. The Escrow Agent agrees to act as depository and Escrow Agent during
the term of this Escrow Agreement, and that thereafter the Escrow Agent will
deliver the certificates representing the securities to the respective parties
as provided in this Escrow Agreement.
6. Miscellaneous.
6.1. The validity, interpretation and construction of this Escrow Agreement
and each part hereof shall be governed by the laws of the State of Colorado.
This Agreement may be executed in any number of counterparts. Each counterpart,
when executed and delivered, shall be an original contract, but all
counterparts, when taken together, shall constitute one and the same Agreement.
6.2. This Agreement shall inure to the benefit of and be binding upon the
Shareholder, DCX, the Escrow Agent and their respective successors. Except as
herein provided, nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person any legal or equitable right, remedy or
claim under or in respect of this Agreement. The shares in escrow shall not be
subject to the claims of any creditor of any party.
6.3. All notices, demands or requests required or authorized hereunder
shall be deemed given sufficiently if in writing and sent by registered mail or
certified mail, return receipt requested and postage prepaid, or by overnight
delivery, to the respective parties as follows:
DCX, Inc. Xxxx Xxxxxxxxx
Xxxxxxx Xxxxxxxx, President 000 X. Xxxx Xxxxxx
0000 Xxxxx Xxxxx Xxxxxxx 00 Xxxxxxxxx, XX 00000
Xxxxxxxxx, XX 00000
American Securities Transfer and Trust, Inc.
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Any party may change its address for notices by giving notice to each other
party in the manner specified in this section.
6.4. If at any time a dispute shall exist as to the duties of the Escrow
Agent and the terms hereof, or the Escrow Agent has not been able to locate a
record holder of a certificate to return his (their) certificates, or if other
items deposited hereunder are not withdrawn on or before thirty (30) days after
the termination specified herein, the Escrow Agent may deposit such items with
the clerk of any court of the state of Colorado that has jurisdiction over these
matters, and may interplead the parties hereto. Upon so depositing such funds
and filing its complaint in interpleader, the Escrow Agent shall be completely
discharged and released from all further liability or responsibility under the
terms hereof. The parties hereto, for themselves, their heirs, successors and
assigns, do hereby submit themselves to the jurisdiction of said court for the
purpose of facilitating the return of deposited funds in the Escrow Account and
do hereby appoint the Clerk of said Court as their agent for service of all
process in connection with the proceedings specified in this paragraph.
3
6.5 DCX and the Shareholder agree that any legal action, suit or proceeding
arising out of or relating to this Agreement or the transactions contemplated
hereby, shall be instituted in a state court sitting in Xxxxxxx County,
Colorado, which shall be the exclusive jurisdiction and venue of said legal
proceedings and each party hereto waives any objection which such party may now
or hereafter have to the laying of venue of any such action, suit or proceeding,
and irrevocably submits to the jurisdiction of any such court in any such
action, suit or proceeding. Any and all service of process and any other notice
in any such action, suit or proceeding shall be effective against such party
when transmitted in accordance with this Agreement. Nothing contained herein
shall be deemed to affect the right of any party hereto to serve process in any
manner permitted by law.
6.6. This instrument contains the entire agreement between the DCX, the
Shareholder, and the Escrow Agent, and no statement, promises or inducements
made by any party or agent of any party that is not contained in this Agreement
shall be valid or binding. This Agreement may not be enlarged, modified or
altered except in writing by the Escrow Agent and the Company.
Signatures to Escrow Agreement between DCX, the Shareholder, and the Escrow
Agent
DCX, Inc.
----------------------------------- ---------------------------------
By: Xxxxxxx Xxxxxxxx, President By: Xxxx Xxxxxxxxx
American Securities Trust and Transfer, Inc.
-------------------------------------------
By: Xxxxx Xxxxx, Xx. Vice President
4
