Exhibit 10.4
INDEMNIFICATION ESCROW
AGREEMENT
THIS INDEMNIFICATION ESCROW AGREEMENT (this
“ Agreement ”) is made and entered into as of
the _____ day of _______, 2004, by and among INVVISION CAPITAL,
INC., a Nevada corporation d/b/a RG AMERICA (“ Buyer
”), _______________ (“ Seller ”), and
COMPASS BANK, N.A. (“ Escrow Agent
”).
INTRODUCTORY
PROVISIONS
Buyer, PRACTICAL BUSINESS SOLUTIONS 2000, INC.,
a Texas corporation (“Target”) and the Seller have
executed that certain Stock Purchase and Sale Agreement, a copy of
which is attached hereto as Exhibit A , dated as of May
_____, 2004 (the “ Stock Purchase Agreement ”),
pursuant to which Target will be acquired by Buyer; Pursuant to the
Stock Purchase Agreement, Buyer is to place in escrow ___________
(_____) Shares of its common stock, par value $0.0001 per share, to
be used to satisfy certain potential indemnifiable claims as
provided in the second paragraph of Article V of the Stock Purchase
Agreement; and Said Shares are to be held by Escrow Agent in
accordance with the terms and conditions provided
herein.
All capitalized terms used herein but not
defined shall have the particular meanings ascribed thereto in the
Stock Purchase Agreement.
AGREEMENT
NOW, THEREFORE, for and in consideration of the
promises and mutual covenants contained in the Stock Purchase
Agreement and contained herein, the parties hereto agree as
follows:
Establishment of Escrow Shares
. On this date (which is the Closing
Date), ________ (_____) Shares of Buyer’s common stock equal
in value (on the Closing Date) to __________ Dollars (USD
$________) (the “Escrow Shares”), withheld from the
Purchaser Shares, shall be deposited with Escrow Agent by Buyer.
The Escrow Shares shall be deposited in a custodial account at
Compass Bank and held until , 2006 or until agreed
upon in writing by Buyer and Seller (the
“Term”).
Indemnity by
Seller. Seller shall
indemnify and hold harmless the Buyer, its agents, attorneys,
successors and assigns (each, an “Indemnified Party”)
in the manner provided for in the second paragraph of Article V of
the Stock Purchase Agreement, the terms of which are incorporated
herein for all purposes.
Restriction
on Disbursement . The
Escrow Shares may only be disbursed in accordance with Sections 4
and 5 of this Agreement or upon receipt by Escrow Agent of written
notice from both Buyer and Seller to Escrow Agent setting forth
consistent instructions for disbursement.
Claims;
Procedures.
Notice of
Claim . If an Indemnified
Party incurs an Indemnifiable Loss (as hereinafter defined), or
should an Indemnified Party negotiate a proposed settlement in
satisfaction of a potential Indemnifiable Loss, it shall promptly
provide a Loss Notice (as hereinafter defined) to the Seller and
the Escrow Agent. If the Seller disputes the amount sought under
any such Loss Notice or otherwise disputes the right of the
Indemnified Party to be indemnified hereunder, it shall provide the
Indemnified Party and the Escrow Agent a written notice (the
“ Protest Notice ”) within thirty (30) days of
the date any such Loss Notice is received by the Seller. If no
Protest Notice is received by the Indemnified Party and the Escrow
Agent within thirty (30) days from the date on which any Loss
Notice is received by the Seller, or if a Protest Notice is
received and the dispute is resolved in favor of the Indemnified
Party after following the procedures set forth below, then the
Escrow Agent shall cause to be delivered to Buyer that portion of
the Escrow Shares that equals the amount sought by or awarded to
the Indemnified Party. If the Indemnified Party and the Escrow
Agent receive a Protest Notice within such 30-day period, the
Escrow Agent shall not deliver any Escrow Shares until receipt by
it of written instructions (i) signed by the Seller and a duly
authorized officer of the Indemnified Party; or (ii) signed by an
arbitration panel that has considered and resolved such dispute as
provided in Section 4(b) below, which sets forth the amount
of the Escrow Shares, if any, to be delivered to the Indemnified
Party in accordance with this paragraph. For purposes of this
Agreement, (i) “ Indemnifiable Loss ” shall mean
any Loss for which an Indemnified Party may be indemnified pursuant
to Section 2 hereof, and (ii) “ Loss Notice
” shall mean a written notice provided by an Indemnified
Party to Escrow Agent and Seller setting forth in reasonable detail
the nature and amount of an Indemnifiable Loss or potential
Indemnifiable Loss.
Procedure
with Respect to Disputed Indemnifiable Loss . A disputed Loss Notice may be resolved by the
agreement of the Seller and the Indemnified Party, in which case
written notice of such agreement shall be promptly provided to the
Escrow Agent, together with a statement of the agreed upon amount
to be reimbursed to the Indemnified Party. If the Seller and the
Indemnified Party are unable to resolve a disputed Loss Notice,
then such disputed Loss Notice shall be submitted to arbitration in
accordance with the then-current commercial arbitration rules of
the American Arbitration Association. If a disputed Loss Notice is
to be arbitrated, the Seller shall select one arbitrator, the
Indemnified Party shall select one arbitrator, and the two
arbitrators so chosen shall select a third. Any decision of the
arbitration panel shall require the vote of at least two (2) of
such arbitrators and shall be deemed conclusive and each party
shall be deemed to have waived any rights to appeal therefrom. Any
resolution of a disputed Loss Notice, whether by agreement of the
parties or by arbitration, must be made within sixty (60) days of
the date of the Protest Notice in regard to which the dispute
relates. That percentage of the reasonable legal and other expenses
incurred by the Indemnified Party in the arbitration proceeding as
equals the percentage of the claim sought which is actually
awarded, shall be added to the amount of the Indemnifiable Loss.
That percentage of the reasonable legal and other expenses incurred
by the Seller in the arbitration proceeding as equals the
percentage of the claim sought which is denie
