PERFORMANCE EARN-OUT AGREEMENT
THIS PERFORMANCE EARN-OUT AGREEMENT, made effective on February 12, 2002, by
CONCENTRAX, INC., a Nevada corporation having its executive office at 817 Oak
Glen, Houston, Texas 77076 (hereinafter referred to as "COMPANY")
PJC ASSOCIATES, having its principal place of business at 1025 Old Country
Road, #300B, Westbury, New York 11590 (hereinafter "PJC").
WHEREAS, PJC has expert knowledge and experience in the area of
identifying and making presentations to brokerage firms, individual brokers,
investors, Investment Bankers, public companies and can advise and prepare
Research Reports as well as provide general PR for the company
WHEREAS, PJC is being issued shares of the Common Stock of COMPANY for
providing such services to COMPANY;
WHEREAS, the number of shares being issued has been based upon projected
ongoing market support which projections and calculations have been accepted
by COMPANY and PJC as reasonable;
WHEREAS, COMPANY and PJC desire to protect investors and other
stockholders of COMPANY from excessive dilution in the event that such
projections and calculation are determined, by actual events, to be (or to
have been ) erroneous;
WHEREAS, the parties have agreed upon a procedure of the escrowing of a
portion of the shares with ESCROW AGENT with shares to be released from escrow
upon achievement by COMPANY of specified volumes of activity;
NOW, THEREFORE, intending to be legally bound, and in consideration for the
issuance by COMPANY of the shares to PJC in consideration of its
contributions, the parties agree as follows:
1. COMPANY shall issue to PJC, and PJC accepts as full compensation
for its contributions, 500,000 shares of Common Stock of COMPANY,
subject nevertheless to the terms and conditions of this
2. COMPANY and PJC hereby appoint and designate Andrea Cataneo, Esq.,
with offices at 81 Meadowbrook Road, Randolph, NJ 07869 as "ESCROW
AGENT" hereunder for the purpose set forth herein and ESCROW AGENT
accepts such appointment.
3. COMPANY shall immediately issue a certificate for 400,000 shares
to PJC (or 4 certificates for 100,000 shares each) for services
already rendered, and shall deliver 1 certificates for 100,000
shares, with an issuance date of February 12, 2002, to the ESCROW
4. (a) The COMPANY and PJC authorize ESCROW AGENT to act pursuant to
the terms of this Agreement. In the event of the disability,
death, inability to act or resignation of ESCROW AGENT, PJC and
the COMPANY shall select a bank, trust company or other
appropriate person to act as substitute escrow agent hereunder.
In such event, COMPANY shall be liable for any service fees and
costs notwithstanding Paragraph 8(a) below.
(b) The term "ESCROW AGENT" as used herein is used merely for
convenience as PJC recognizes and agrees that the ESCROW AGENT is
acting as agent for the COMPANY for the protection of investors
(c) The COMPANY and PJC hereby agree to deposit the 100,000
shares (hereinafter "SHARES") with the ESCROW AGENT.
(d) ESCROW AGENT shall hold and dispose of the SHARES in
accordance with the terms and provisions of this Agreement.
(e) ESCROW AGENT shall keep and preserve the SHARES pending
delivery to PJC or the return of the SHARES to the COMPANY as
provided below or until tender into court as provided in Paragraph
(f) Upon delivery and/or return of all of the SHARES as provided
in Paragraph 4 above, all obligations between PJC and the COMPANY
on the one hand, and ESCROW AGENT on the other, shall cease.
5. The 400,000 shares being issued and delivered to PJC shall be
deemed vested and fully-owned by PJC and such shares shall not be
subject to return or cancellation or to the terms and conditions
of the Agreement.
6. (a) The 100,000 shares being issued to PJC and delivered to the
ESCROW AGENT shall be subject to return and cancellation unless
such shares are earned-out pursuant to the terms and conditions of
(b) The number of shares of the escrowed (100,000 shares, or 1
certificate for 100,000 shares) of COMPANY's Common Stock to be
released to PJC by ESCROW AGENT based upon a determination of
COMPANY in accordance of subparagraph (c) of this paragraph with
such determinations commencing with the month ended July 31,
(c) An authorization letter stating the COMPANY's determination
shall be prepared, in the form of letter attached hereto as
Exhibit "A", in order for the shares to be released for each
authorization letter must be executed by no fewer than two of
COMPANY's Directors and sent to the offices of ESCROW AGENT via
facsimile or regular mail within three (3) business days of the
end of the month.
(d) Upon receipt of such authorization letter ESCROW AGENT shall
immediately release that month's certificate to PJC.
(e) In the event that any shares have not been released and
delivered following release by the Directors of their
authorization letter, the ESCROW AGENT shall deliver the remaining
shares to the COMPANY for cancellation and return to the status of
authorized and unissued shares.
7. In the event of a merger, acquisition, reorganization or
recapitalization of COMPANY, the shares and all other
consideration received in respect to the SHARES shall be delivered
and, or in the alternative, paid to ESCROW AGENT. Upon receipt of
such consideration in full, ESCROW AGENT shall release and deliver
the SHARES to PJC or other persons entitled thereto under the
circumstances and ESCROW AGENT shall hold the substituted shares
and other consideration pursuant to the terms of this Agreement.
8. (a) There shall be no fee or service charge payable to the ESCROW
AGENT for serving in that capacity under the terms of this
(b) PJC and the COMPANY jointly and severally hereby agree to
indemnify and hold harmless 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 upon ESCROW AGENT or incurred
by ESCROW AGENT in connection with his acceptance of appointment
as ESCROW AGENT hereunder, or the performance of his duties
hereunder, including any litigation arising from this Agreement or
involving the subject matter hereof.
9. (a) In performing any of its duties hereunder, ESCROW AGENT shall
not incur any liability to anyone for damages, losses or expenses,
except for willful default or breach of trust, and it shall
accordingly not incur any such liability with respect (i) to any
action taken or omitted in good faith upon advice of its counsel
or counsel for the parties given with respect to any questions
relating to its duties and responsibilities as ESCROW AGENT under
this Agreement, or (ii) to any action taken or omitted in reliance
upon any instrument, including any written notice or instruction
provided for in this Agreement, not only as to its due execution
and the validity and effectiveness of its provisions but also to
the truth and accuracy of any information contained therein, which
ESCROW AGENT shall in good faith believe to be genuine, to have
been signed or presented by a proper person or persons, and to
conform with the provisions of this Agreement.
(b) In the event of a dispute between any of the parties hereto
sufficient in the discretion of the ESCROW AGENT to justify its
doing so, ESCROW AGENT shall be entitled to tender into the
registry or custody of any court of competent jurisdiction, the
shares and all money or other property in his hands under this
Agreement, together with such legal pleadings as he deems
appropriate, and thereupon be discharged from all further duties
and liabilities under this Agreement. Any such legal action may
be brought in such court as ESCROW AGENT shall determine has
10. (a) Until ESCROW AGENT shall have proceeded to release and/or
return the shares as provided in Paragraph 4 above, PJC shall be
entitled to: vote the shares and to transfer, assign and
otherwise have and exercise all rights of ownership therein; but
always subject to the terms and conditions of this Agreement.
Stock dividends shall be forthwith delivered to ESCROW AGENT.
(b) All dividends and distributions with respect to the shares,
including stock dividends, shall be paid to the ESCROW AGENT who
shall hold such subject to the terms and conditions of this
Agreement and dispose of such as otherwise provided for the shares
11. All notices required hereunder shall be sent by certified mail,
return receipt requested, or by registered mail to PJC, the
COMPANY or ESCROW AGENT (as may be applicable) at the addresses
listed on page 1 hereof or to such other address as has been
previously furnished in writing.
12. This Agreement shall be binding upon and shall inure to the
benefit of the parties and their successors, assigns, heirs, legal
representatives, executors and administrators.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first above written.
/s/ Mark Gifford
Mark Gifford, President
PJC ASSOCIATES, INC.
/s/ Phil Salice
By: /s/ Paul Smith
817 Oak Glen
Houston, Texas 77016
Andrea Cataneo, Esq.
Escrow Agent for CTRX and PJC
81 Meadowbrook Road
Randolph, NJ 97869
SENT VIA FACSIMILE to (973) 442-9933
Based upon our review of the performance of PJC Associates, Inc., we, as
Directors of Concentrax, Inc., with the authority vested in by the Performance
Earn Out Agreement of February 12, 2002, hereby approve the release of
certificate number ______, representing shares earned for June 2002 to PJC
This execution and mailing of this letter to you, our Escrow Agent, indicates
our satisfaction with the performance of PJC Associates, Inc. for the month.
To be valid, the letter must be signed by two of the Company's active
Directors. Upon your receipt of this letter, you are authorized to release
certificate number _____ to PJC Associates, Inc. via overnight courier to the
PJC Associated, Inc.
1025 Old Country Road, #300B
Westbury, New York 11590
Mark Gifford, Director