EXHIBIT 10.1
ESCROW AGREEMENT
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THIS ESCROW AGREEMENT (this "Agreement"), made as of December 15, 2000, by
and among SAFLINK CORPORATION, a Delaware corporation or its affiliated designee
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("SAFLINK"); CHASE MANHATTAN TRUST COMPANY, NATIONAL ASSOCIATION, (the "Escrow
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Agent"); and JOTTER TECHNOLOGIES INC., a Delaware corporation ("Jotter").
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W I T N E S S E T H:
WHEREAS, SAFLINK and Jotter have entered into an Asset Purchase Agreement
dated as of December 15, 2000 (the "Purchase Agreement"), a copy of which has
been delivered to the Escrow Agent (all capitalized terms not otherwise defined
in this Agreement having the meanings set forth in the Purchase Agreement); and
WHEREAS, Section 3.3 of the Purchase Agreement provides that SAFLINK will
issue the Shares in the name of Jotter and deliver them to the Escrow Agent to
be held in escrow for the purpose of securing Jotter's obligation to reimburse
the SAFLINK Indemnitees for the indemnifiable Losses enumerated in Section
9.6(a) of the Purchase Agreement; and
WHEREAS, the Escrow Agent is willing to act as escrow agent for SAFLINK and
Jotter on the terms and conditions hereinafter set forth:
NOW, THEREFORE, in consideration of the mutual covenants, agreements and
conditions set forth herein, the parties agree as follows:
1. Establishment of Escrow; Share Certificates. Promptly after the
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Closing, SAFLINK will issue the Shares in the name of Jotter as set forth and
cause such shares to be delivered (together with assignments in blank to be
executed by Jotter, with each assignment to include a signature guarantee
containing an affixed medallion certifying the authenticity of the signature) to
the Escrow Agent. The Shares shall be held by the Escrow Agent in escrow
subject to the terms and conditions set forth herein. SAFLINK will cooperate
with the Escrow Agent, including making any written instructions required by its
stock transfer agent, to permit the Escrow Agent to make any necessary exchanges
of SAFLINK stock certificates so as to facilitate any distribution of Shares
pursuant to this Agreement.
Jotter hereby authorizes SAFLINK to deliver to SAFLINK's stock transfer
agent at or shortly after the Closing a letter, substantially in the form of
Exhibit A hereto, instructing the transfer agent to distribute all distributions
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in respect of the Shares, other than taxable dividends, to the Escrow Agent
pursuant to Section 3 of this Agreement.
2. Claims Against Escrow Fund. The parties hereto agree that the SAFLINK
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Indemnitees shall be entitled to make claims against the Escrow Fund for
indemnifiable Losses pursuant to this Agreement and Article IX of the Purchase
Agreement. The SAFLINK Indemnitees shall be entitled to make claims against the
Escrow Fund for such purpose at any time prior to 11:59 p.m., Pacific time, on
December 15, 2002 (the "Escrow Period"), unless this
Agreement is terminated at an earlier date pursuant to Section 5 hereof. Any
claim by the SAFLINK Indemnitees against the Escrow Fund for indemnifiable
Losses during the above time period shall be presented to the Escrow Agent as
follows:
(a) The SAFLINK Indemnitees shall notify the Escrow Agent and Jotter in
writing of any indemnifiable Losses which the applicable SAFLINK Indemnitees
claim are subject to indemnification under Article IX of the Purchase Agreement.
The notice shall describe the claim and specify the amount thereof.
(b) Jotter may contest such claim by giving the Escrow Agent and the
applicable SAFLINK Indemnitees written notice of such contest within twenty (20)
business days after receipt of such claim for indemnification. If such
indemnification claim remains in dispute and unresolved for thirty (30) days
following receipt of the written notice of contest by the applicable SAFLINK
Indemnitees, the disputed claim shall be submitted to arbitration in accordance
with Section 9 below.
(c) If Jotter does not contest such indemnification claim pursuant to
Section 2(b) above, then the Escrow Agent shall deliver to SAFLINK that number
of Shares from the Escrow Fund with a value equal to the dollar amount of the
indemnifiable Losses claimed by such indemnitees in its or their written notice.
For this purpose, Shares so delivered shall be valued at the Indemnity Closing
Price (as defined in Section 2(e) below) as of the date of delivery to the
applicable SAFLINK Indemnitees. Other property in the Escrow Fund, if any,
shall be valued as determined by the mutual agreement of SAFLINK and Jotter.
(d) If Jotter contests such indemnification claim pursuant to Section 2(b)
above, the Escrow Agent shall deliver an amount from the Escrow Fund to the
applicable SAFLINK Indemnitees upon receipt of either:
(i) a copy of a written settlement agreement (authorizing the
delivery of the amount from the Escrow Fund) signed by the SAFLINK
Indemnitees making such claim and Jotter, or
(ii) a copy of a final and nonappealable arbitration award
(authorizing the delivery of the amount from the Escrow Fund) pursuant to
the arbitration procedure in Section 9 below.
The number of Shares to be delivered to SAFLINK by the Escrow Agent under
this Section 2(d) shall be equal in value based upon the Indemnity Closing Price
to the dollar amount of such indemnitees' indemnifiable Losses, as set forth in
the settlement agreement or the arbitration award, as applicable, and shall be
delivered in the manner set forth in Section 2(c).
(e) In this Agreement, the "Indemnity Closing Price" shall mean the closing
price of the SAFLINK Common Stock on the Nasdaq SmallCap Market on the Closing
Date. In the event that the Indemnity Closing Price is not set forth in any
notice or certificate delivered to the Escrow Agent with respect to a
distribution of Shares to SAFLINK under this Section 2, the Escrow Agent shall
accept a certificate from an executive of SAFLINK certifying as to the
Indemnity Closing Price for the date of such distribution (a copy of such
certificate shall be sent to Indemnifying Holder's Representative within three
business days of the date such certificate is delivered to the Escrow Agent),
unless such certificate is contested by Jotter.
3. Dividends, Stock Splits and Other Distributions. Other than taxable
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dividends (which shall be distributed to Jotter and shall not be made part of
the Escrow Fund), distributions declared in respect of the Shares (including,
without limitation, stock splits and non-taxable stock dividends) during the
term of this Agreement shall be made part of the Escrow Fund. If the Shares are
reclassified or changed into other securities or property pursuant to a
reclassification of all shares of SAFLINK Common Stock or a merger of SAFLINK,
then such reclassified shares or other securities or property, as the case may
be, shall be made part of the Escrow Fund.
4. Voting Rights of Shares. Jotter shall have the right to vote its
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Shares in the Escrow Fund (as set forth in Schedule 1 of this Agreement) on any
issues that come for a vote before the stockholders of SAFLINK. Prior to any
vote of SAFLINK stockholders during the term of this Agreement, SAFLINK shall
cause to be delivered to Jotter appropriate voting and proxy materials in the
same manner as provided to other stockholders of SAFLINK so as to permit Jotter
to exercise their voting rights with respect to the Shares.
5. Termination. This Agreement shall terminate and the Escrow Agent shall
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have no further responsibilities hereunder upon the earliest to occur (the
"Termination Date") of (a) the expiration of the Escrow Period set forth in
Section 2 above, and (b) SAFLINK's delivery to the Escrow Agent of written
notice that SAFLINK has elected to terminate this Agreement (which election
shall be at SAFLINK's sole option and in its sole discretion). Upon the
occurrence of such an event, the Escrow Agent shall reserve from the Escrow Fund
an amount sufficient to pay any claims that have been made pursuant to Section
2(a) above and remain unpaid on or prior to the Termination Date ("Reserve
Claims") of the SAFLINK Indemnitees against the Escrow Fund on that date. For
purposes of establishing the reserve, any Shares so reserved shall be valued at
the Indemnity Closing Price and any other property shall be valued by mutual
agreement of SAFLINK and Jotter. This Agreement shall continue in force as to
the amount so reserved until the resolution of such Reserve Claims in accordance
with the terms hereof. The Escrow Agent shall distribute to Jotter all amounts
(if any) in the Escrow Fund not so reserved, and the Escrow Agent shall
thereafter have no responsibilities with respect to such distributed amounts.
Upon the final resolution of each Reserve Claim, on a claim-by-claim basis, the
Escrow Agent shall distribute to SAFLINK the amount that SAFLINK is entitled to
receive with respect to such Reserve Claim. Shares so delivered shall be valued
at the Indemnity Closing Price, and any other property shall be valued by mutual
agreement of SAFLINK and Jotter. Upon the final resolution of all Reserve
Claims and the distribution to the SAFLINK Indemnitees of all reserved amounts
to which such indemnitees are entitled pursuant to such claims, all remaining
reserved amounts shall be promptly distributed to Jotter.
6. Release of Shares.
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(a) With respect to the Shares held on behalf of Jotter, the Escrow
Agent shall release the Shares to Jotter as follows: (i) three hundred and
fifty thousand (350,000) Shares
ninety days after the Closing Date (the "First Release Date"), and (ii) at a
rate of two hundred and fifty thousand (250,000) Shares on the last day of each
calendar month following the First Release Date.
(b) At any time, and in such amounts as it shall determine in its
sole discretion, SAFLINK may accelerate the release of all or any portion of the
Shares set forth in Section 6(a).
7. Offset and Recissison.
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(a) In the event that SAFLINK elects to deduct, withhold, or pay from
the Consideration such amounts as SAFLINK deems appropriate pursuant to Section
7.3(b) of the Purchase Agreement, Escrow Agent shall deliver that number of the
Shares to SAFLINK as may be requested in writing by SAFLINK to offset such
amounts paid to Canadian tax authorities under section 116 of the ITA or any
other applicable Tax Legal Requirement (including interest and penalties payable
in respect of such obligations).
(b) In the event that SAFLINK exercises its right of rescission
pursuant to Section 6.4 of the Purchase Agreement, SAFLINK shall give notice to
the Escrow Agent of such exercise and instruct the Escrow Agent to deliver to
SAFLINK all of the Shares in the Escrow Fund and Escrow Agent shall promptly
deliver such Shares as directed by SAFLINK.
8. The Escrow Agent.
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(a) SAFLINK shall pay the Escrow Agent's fee for its ordinary services
under this Agreement in accordance with the fee schedule set forth on Exhibit C
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attached hereto.
(b) In performing any duties under this Agreement, the Escrow Agent shall
not be liable for damages, losses, or expenses, except for negligence or willful
misconduct on the part of the Escrow Agent. The Escrow Agent shall not incur
any such liability for (i) any act or failure to act made or omitted in good
faith, or (ii) any action taken or omitted in reliance upon any instrument,
including any written statement or affidavit provided for in this Agreement that
such agent shall in good faith believe to be genuine, nor will the Escrow Agent
be liable or responsible for forgeries, fraud, impersonations, or determining
the scope of any representative authority. In addition, the Escrow Agent may
consult with legal counsel in connection with its duties under this Agreement
and shall be fully protected in any act taken, suffered, or permitted by it in
good faith in accordance with the advice of counsel. The Escrow Agent is not
responsible for determining and verifying the authority of any such person
acting or purporting to act on behalf of any party to this Agreement.
(c) If any controversy arises between the parties to this Agreement, or
with any other party, concerning the subject matter of this Agreement, its terms
or conditions, the Escrow Agent will not be required to determine the
controversy or to take any action regarding it. The Escrow Agent may hold the
Escrow Fund and may wait for settlement of any such controversy by final
appropriate legal proceedings or other means as, in the Escrow Agent's
discretion, may be required, despite what may be set forth elsewhere in this
Agreement. In such event, the Escrow
Agent will not be liable for interest or damage. Furthermore, 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. The Escrow Agent is
authorized to deposit with the clerk of the court the entire Escrow Fund, except
for such part of the Escrow Fund as shall reimburse the Escrow Agent for all
costs, expenses, charges and reasonable attorney fees incurred by the Escrow
Agent due to the interpleader action and which the parties hereby jointly and
severally agree to pay. 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 this Agreement, except for obligations or liabilities
arising by reason of the prior negligence or willful misconduct on the part of
the Escrow Agent.
(d) Jotter and SAFLINK shall jointly and severally indemnify the Escrow
Agent for, and to hold it harmless against any loss, liability or expense
arising out of or in connection with this Agreement and carrying out its duties
hereunder, including the costs and expenses of defending itself against any
claim of liability, except in those cases where the Escrow Agent has been guilty
of gross negligence or willful misconduct. Anything in this agreement to the
contrary notwithstanding, in no event shall the Escrow Agent 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 Agent has been
advised of the likelihood of such loss or damage and regardless of the form of
action.
(e) The Escrow Agent may resign at any time upon giving at least thirty
(30) days' written notice to the parties; provided, however, that no such
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resignation shall become effective until the appointment of a successor escrow
agent which shall be accomplished as follows: The parties shall use their best
efforts to mutually agree on a successor escrow agent within thirty (30) days
after receiving such notice. If the parties fail to agree upon a successor
escrow agent within such time, the Escrow Agent shall have the right to appoint
a successor escrow agent authorized to do business in the State of Washington
and having at least $50,000,000 in assets. The successor escrow agent shall
execute and deliver an instrument accepting such appointment, and it shall,
without further acts, be vested with all the estates, properties, rights, powers
and duties of the predecessor Escrow Agent as if originally named as the Escrow
Agent. Upon such appointment, the predecessor Escrow Agent shall be discharged
from any further duties and liability under this Agreement, except for
obligations or liabilities arising by reason of the prior negligence or willful
misconduct on the part of the Escrow Agent.
(f) Any company into which the Escrow Agent may be merged or with which it
may be consolidated, or any company to which the Escrow Agent may transfer all
or substantially all of its escrow business, shall be the successor to the
Escrow Agent and shall be vested with all the rights, powers and duties of the
predecessor Escrow Agent as if originally named as the Escrow Agent, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding, so long as such
successor is authorized to do business in the State of Washington and has at
least $50,000,000 in assets.
9. Arbitration. All disputes or controversies arising under or in
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connection with this Agreement shall be settled exclusively by final and binding
arbitration in Seattle, Washington which arbitration, including, but not limited
to the selection of arbitrators, shall be in accordance
with the rules of the American Arbitration Association ("AAA"), except as
modified herein, and as such rules shall be in effect on the date of delivery of
demand for arbitration (as described below). The arbitration of such issues,
including the determination of the amount of any damages suffered by any party,
shall be to the exclusion of any court of law. The decision of the arbitrator
shall be final and binding upon the parties and their respective personal
representatives, heirs, devisees, successors and assigns. A party wishing to
submit a dispute or controversy to arbitration must submit a written demand for
arbitration to the other party to this Agreement (and deliver a copy of such
demand to the Escrow Agent) not less than thirty (30) days after the
transaction, occurrence or event giving rise to such dispute or controversy.
Such written demand for arbitration shall be provided to the arbitrator and
shall contain a statement of the matter in dispute and a statement of the facts
the party demanding arbitration is relying on to support his or its position.
Judgment may be entered on the arbitrator's award in any court having proper
jurisdiction. The costs of arbitration shall be paid by the losing party in the
arbitration.
10. Tax Reporting. SAFLINK shall prepare and file all tax reports on
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Internal Revenue Service Form 1099-B that are required to be filed periodically
with respect to the issuance of Shares, and the Escrow Agent shall have no
obligation to prepare any such tax report.
11. [Intentionally Omitted].
12. Indemnification of SAFLINK. Jotter agrees to jointly and severally
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indemnify SAFLINK on the basis of the indemnification provisions set forth in
Article IX of the Purchase Agreement.
13. Governing Law. This Agreement shall be governed by the laws of the
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State of Washington without regard to principles of conflicts of laws.
14. Amendments; Modifications. This Agreement may not be amended or
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modified except pursuant to a written agreement signed by each of the parties
hereto.
15. Notices. All notices and other communications hereunder shall be in
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writing and shall be deemed given on the same day if delivered personally, or by
facsimile transmission with voice confirmation of receipt, or shall be deemed
given on the date receipt is confirmed if mailed by registered or certified mail
or commercial overnight courier (e.g., Federal Express, DHL, Network Courier,
Sonic, etc.), return receipt or confirmation of delivery requested, to the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice):
If to SAFLINK: SAFLINK Corporation
00000 X.X. 00/xx/ Xxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Attention: Chief Financial Officer
Fax: (000) 000-0000
with a copy to: Xxxxx & XxXxxxxx
000 Xxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxx X. Xxxx, Xx., Esq.
Fax: (000) 000-0000
If to Jotter:
Jotter Technologies Inc.
0000 Xxx Xxxxxx Xxxxx, #000
Xxxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxxxxx
Fax: (000) 000-0000
with a copy to:
Xxxxxxx & Xxxxxxxxxxx, P.A.
00 Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
Fax: (000) 000-0000
If to the Escrow Agent:
Chase Manhattan Trust Company. National Association
Attention: Xxx X. Xxxxx/Xxxxxxxx X. Xxxxxx
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Fax: (000) 000-0000
15. Effect on Successors in Interest, Assignees. This Agreement shall
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inure to the benefit of and be binding upon the heirs, administrators,
executors, assignees and successors of each of the parties hereto.
16. Counterparts. This Agreement may be executed in counterparts, each of
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which shall be deemed an original, and all of which together shall constitute
one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
SAFLINK CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx .
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Title: CEO/ President
ESCROW AGENT:
Chase Manhattan Trust Company,
National Association
By: /s/ Xxx X. Xxxxx .
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Title: Vice President
JOTTER TECHNOLOGIES, INC.
By: /s/ Xxxxx Xxxxxxxxxxx .
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Name: Xxxxx Xxxxxxxxxxx
Its CEO
[SIGNATURE PAGE TO ESCROW AGREEMENT]
EXHIBIT A
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U.S. Stock Transfer Corporation
0000 Xxxxxxx Xxx.
Xxxxxxxx, XX 00000
Att: Xxxxxxx Xxxxx
Re: SAFLINK Corporation ("SAFLINK") - Shares
Ladies and Gentlemen:
The following shares of Common Stock of SAFLINK are currently being held by
______________________ ("Agent") as Escrow Agent pursuant to that certain Escrow
Agreement, dated as of ________________, 2000, by and among SAFLINK, the
undersigned and Agent (the "Escrow Agreement"):
Share certificate no. No. of SAFLINK shares represented
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[insert certif. numbers] [insert number of shares]
We hereby instruct you to pay and deliver any certificates representing
stock splits or non-taxable stock dividends, or any other form of distribution
made by SAFLINK in respect of the shares identified above (except for taxable
dividends), to Chase Manhattan Trust Company, National Association, as Escrow
Agent pursuant to the terms of the Escrow Agreement.
Print Name: _____________________________________
