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Exhibit 10.4
Software Escrow Agreement
This Software
Escrow Agreement (the “Agreement”) is entered into as
of November 5, 2007, between 22THEN LLC and Protexx Incorporated
(collectively, the “Supplier”); WidePoint Corporation
(“User”); and the law firm of Foley & Lardner LLP
(the “Escrow Agent”).
In
consideration of the mutual premises and covenants herein
contained, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto intending to be legally bound do
hereby agree as follows:
| 1. |
Supplier agrees that upon the execution of this Agreement the
Supplier shall deposit into an escrow account with the Escrow Agent
at the office of the Escrow Agent located at 3000 K Street, N.W.,
Suite 500, Washington, D.C. 20007, the software source code (the
“Source Code”) for all software owned by Supplier (the
“Software”), as well as the proprietary hardware
schematics (the “Hardware Schematics”) of Supplier
related to the Source Code and a full and complete working version
of all Software on a CD-ROM which is readable and useable on any
Personal Computer using Microsoft Windows. Supplier does hereby
assume responsibility to update and keep current all such Software
on a CD-ROM. Supplier and User agree that User shall be entitled to
access the Source Code in accordance with the terms of this
Agreement. |
| 2. |
User may obtain a copy of the items in escrow, subject to the
terms of this Agreement, upon the following events and
conditions: |
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a. |
Supplier has filed a petition in bankruptcy for liquidation, or
has made a general assignment for the benefit or creditors or has a
receiver appointed for all or substantially all of its business,
and same has not been discharged or terminated without prejudice to
User within ninety (90) days thereafter; or |
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b. |
Supplier has been liquidated, been dissolved, or ceased to
operate its business in the normal course; or |
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c. |
Supplier has breached any agreement with User. |
| 3. |
Upon the occurrence of a condition set forth in paragraph 2
above which entitles User to a copy all items in escrow, User shall
deliver to Escrow Agent an affidavit executed by the User which
sets forth information identifying the occurrence of the condition
under paragraph 2 of this Agreement which the User is citing as the
basis for the release of all items in escrow to the User from the
Escrow Agent. |
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Escrow Agent shall then send a copy of User’s affidavit
to Supplier by certified mail, return receipt requested, or by
overnight delivery service. Unless within fifteen (15) calendar
days after the date of sending of such affidavit to Supplier,
Escrow Agent receives an affidavit from Supplier, or an authorized
representative of Supplier, disputing the facts set forth in the
User’s affidavit, or setting forth additional facts which, in
Supplier’s sole judgment, terminates the User’s right
to receive a copy of the items in Escrow, Escrow Agent will
promptly furnish a copy of the applicable material to the
User. |
| 4. |
If Escrow Agent receives from Supplier an affidavit disputing
the User’s affidavit, or setting forth additional facts
which, in Supplier’s sole judgment, terminates the
User’s right to receive the items in escrow, Escrow Agent
will furnish a copy of the Supplier’s affidavit to the User,
and will not furnish a copy of the items in Escrow to the User
until Escrow Agent either (i) receives an agreement between
Supplier and the User, or a certified copy of a court order,
directing Escrow Agent to furnish a copy of the Source Code to User
or (ii) Escrow Agent determines in its reasonable judgment that
User is entitled to a copy of the items in Escrow. |
| 5. |
User shall pay Supplier an escrow maintenance fee in the amount
of Five Hundred ($500.00) Dollars per year. If User fai |
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