Loading...
HomeMy WebLinkAboutEDCRes2013.01.02'J ANNA ECONOMIC DEVELOPMENT CORPORATION RESOLUTION NO. .1013 "OI — 4a C�bG� A RESOLUTION OF THE ANNA ECONOMIC DEVELOMENT CORPORATION APPROVING AN ECONOMIC DEVELOPMENT INCENTIVE GRANT FOR CAPITAL IN*NS'"MENT PERFORMANCE AGREEMENT WITH NIMBIX, INC. AND AtitHORIZING THE GRANT OF FUNDS UNDER SAID AGREEMENT WHEREAS, the Anna Economic Development Corporation (the "EDC") desires to grant funds in support of an economic development project that will create and retain new primary jobs, as that term is defined under Texas Local Government Code 501.002, and that will result in new capital investment within the corporate limits of the City of Anna, Texas ("City"); and WHEREAS, the EDC has received a project proposal from Nimbix, Inc. who has represented will create and retain a significant number of new primary jobs and that will result in new capital investment, all within the corporate limits of the City within a 36- month period (the "Project"); and WHEREAS, the EDC has determined that it would be beneficial to the EDC and to the City for the EDC to grant funds for costs of the Project provided that the promised primary jobs are created within a 36-month period, and that said jobs are maintained within the corporate limits of the City for at least ten years, such that if said jobs are not created or retained as promised, Nimbix must repay all or a portion of the grant proceeds back to the EDC, as more specifically set forth in the Agreement; and WHEREAS, the EDC has found that if successful the Project will promote new or expanded business development; NOW, THEREFORE, BE IT RESOLVED BY THE ANNA ECONOMIC DEVELOPMENT CORPORATION THAT: Section 1. Recitals Incorporated The recitals set forth above are incorporated herein for all purposes as if set forth in full. Section 2. Approval of Agreement The EDC hereby approves the Economic Development Incentive Grant for Capital Investment Performance Agreement ("Agreement"), attached hereto as EXHIBIT A, incorporated herein for all purposed, and authorizes the EDC President to execute same on its behalf, subject to approval as to form by legal counsel for the EDC, final content by the EDC Chief Administrative Officer, and approval by the City Council. Section 3. Approval of Funding ANNA EDC RESOLUTION NO.o�4l� dP, ( 06) PAGE 1 OF 2 The EDC hereby authorizes the Chief Administrative Officer to expend funds as grant proceeds in accordance with the Agreement. PASSED AND APPROVED by the Anna Economic Development Corporation on this day of 2013. ATTEST: onstance Stump EDC President APPROVED: Sherilyn Godfrey EDC Secretary ANNA EDC RESOLUTION NO.a613 (C&--) PAGE 2 OF 2 Exhibit A ECONOMIC DEVELOPMENT INCENTIVE GRANT FOR CAPITAL INVESTMENT PERFORMANCE AGREEMENT This Economic Development Incentive Grant for Capital Investment Performance Agreement (this "Agreement") is made and entered into by and between the Anna Economic Development Corporation and NIMBIX, Inc. (the "Company'. WITNESSETH: WHEREAS, the Anna Economic Development Corporation is willing to provide grant proceeds for the use of the Company, provided that the Company meets certain criteria relating to Capital Investments, and the creation and retention of six New Jobs consisting of Primary jobs as that term is defined in Texas Local Government Code §501.002(12); and WHEREAS, the Company is required to return all or a portion of the grant proceeds received plus interest to the Anna Economic Development Corporation if the performance criteria under this Agreement are not materially met by the Company; and WHEREAS, the Anna Economic Development Corporation and the Company desire to set forth their understanding and agreement as to the payout of the grant proceeds, obligations of the Company regarding Capital Investment, New Job creation and maintenance, and the repayment by the Company of all or part of the grant under certain circumstances; NOW, THEREFORE, in consideration of the foregoing, the mutual benefits, promises and undertakings of the parties to this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto covenant and agree as follows: Section 1. Recitals Incorporated. The above -stated recitals are incorporated into this Agreement as if set forth in full and constitute material representations by the Company and Anna Economic Development Corporation to induce the other party to enter into this Agreement. Section 2. Definitions. "Capital Investment" means the Company's capital expenditure of at least $10,000 of which approximately $5,000 will be invested in machinery and equipment, and approximately $5,000 will be invested in the up -fit of the Facility(ies). "City" or "the City" means the City of Anna, Texas. ECONOMIC DEVELOPMENT INCENTIVE GRANT FOR CAPITAL INVESTMENT PERFORMANCE AGREEMENT PAGE 1 OF 12 "Company Corporate Headquarters" means the physical location within the corporate limits of the City and designated by the Company on all corporate documentation as the Company Corporate Headquarters. "Facility" or "Facilities" means the place(s) of business of the Company, including the principal place of business (Company Corporate Headquarters) and any other business locations, within the corporate limits of the City. "NIMBIX Project" means the subject of this Agreement, which is the Company's provision of cloud -based high performance computing services, associated software and software development, and associated intellectual property and marketing and sales operations within the corporate limits of the City intended to result in the creation of at least six New Jobs at the Facility(ies) and the Company's Obligation to Maintain and other duties it must perform under this Agreement. "New Job" means a Primary job, as that term is defined in Texas Local Government Code §501.002(12), and includes only jobs that are new, permanent, and full-time employment positions filled by individuals for an indefinite duration at the Facility for which the standard fringe benefits are paid by the Company for the employee, and for which the Company pays a minimum wage of at least $70,000. Each New Job must require a minimum of either: (1) 40 hours of an employee's time per week for the entire normal year of the Company's operations, which "normal year" must consist of at least 52 weeks; or (2) 2,080 hours per year, subject to applicable federal or Texas state law requiring the Company to grant an employee any type of leave or other time away from the job. "Obligation to Maintain" means the Company's contractual responsibility under this Agreement to: (1) maintain at the Facility(ies)—beginning on the Performance Date and ending ten years after the Start Date —the active and paid employment status of at least one individual in each of the six New Job positions required to be created under this Agreement, except that after any such individual's termination, resignation, or other departure from active paid status, the Company shall have a reasonable period of time (but in no event longer than 60 business days or a longer time period if necessary to comply with the minimum requirements of the Family Medical Leave Act or other applicable federal or Texas state law governing mandatory employee leave or time away from the job) to fill the position with an active, paid employee. "Performance Date" means the date that all six of the New Jobs required to be created and filled under this Agreement have been created and filled and the Capital Investment has been made in full as described in this Agreement. "Sales Tax" means sales tax collected by the Company on the taxable sale of any product sold by the Company. ECONOMIC DEVELOPMENT INCENTIVE GRANT FOR CAPITAL INVESTMENT PERFORMANCE AGREEMENT PAGE 2OF12 "Start Date" means the date upon which the Company establishes and begins to operate its business at the Facility under a valid written lease or purchase of property within the corporate limits of the City. "Targets" mean the Company's obligation to meet the following two criteria at the Facility: (1) make the entire amount of the Capital Investment; and (2) create and fill six New Jobs. "Work" means any and all of the Company's efforts, pursuits, activities, and endeavors performed or attempted and associated or in connection with or related to the NIMBIX Project, including but not limited to all efforts, pursuits, activities, and endeavors performed by its organizers, directors, officers, agents, employees, representatives, contractors or any subcontractors. Section 3. Disbursement of the Grant. (a) The total amount of the grant to be paid by the Anna Economic Development Corporation under this Agreement is $127,600. The grant proceeds must be used by the Company for costs that are necessary and incident to financing and placing the Nimbix Project into operation and maintaining the same. The amount of $100,000 will be paid to the Company within ten business days of the later of: (1) the effective date of this Agreement; or (2) the Start Date. A portion of grant proceeds, in the amount of $27,600 will be paid to the Company in 12 consecutive monthly payments each totaling $2,300, with each payment being made on or within five business days after the 1st day of each month, the first month for payment being the month that begins at least five business days after the Start Date. Said monthly $2,300 payments shall be used by the Company during its first year of operations for all or a portion of its lease and maintenance costs for the Facility. (b) In addition to the cash grant, the Anna Economic Development Corporation must either: (1) lease to the Company office/commercial space to be used as its Company Corporate Headquarters; or (2) make reasonable efforts to assist the Company in finding mutually agreeable office/commercial space to be used as its Company Corporate Headquarters. If the Anna Economic Development Corporation chooses to lease office/commercial space to the Company, then the parties must enter into a separate Lease Agreement, the terms of which shall be substantively similar to the Lease attached hereto as Exhibit A. If the Anna Economic Development Corporation chooses not to lease office/commercial space to the Company, then the Company must either purchase or lease its own space (c) This Agreement is subject to the duly authorized approval of the Company, the Anna Economic Development Corporation Board of Directors, and the City of ECONOMIC DEVELOPMENT INCENTIVE GRANT FOR CAPITAL INVESTMENT PERFORMANCE AGREEMENT PAGE 3 OF 12 Anna City Council and absent said approvals this Agreement shall be null and void notwithstanding any other provision or statement in this Agreement. After the last of said approvals and the duly authorized approval of this Agreement by the Company as evidenced by the properly notarized execution Of this Agreement by its President, this Agreement shall be in effect, and the Anna Economic Development Corporation will implement the disbursement of the grant proceeds to the Company in accordance with the schedule set forth in subsection (a), above, in exchange for the Company's promises in this Agreement, which include but are not limited to the promise to achieve the Targets at the Facility before the expiration of the 36-month time period stated in Section 4(a) of this Agreement and to thereafter abide by the Obligation to Maintain. Section 4. Performance Date and Obligation to Maintain. (a) Performance Date. The Company is responsible to ensure that the Performance Date occurs —and the Targets that the Company must meet in connection with said date are met —on or before the expiration of 36 months after the date the Company receives the first disbursement of grant proceeds under this Agreement. (b) Obligation to Maintain. The Company must fulfill its Obligation to Maintain for ten years after the Start Date. (c) Exceotion to Obligation to Maintain. Notwithstanding anything in this Agreement to the contrary, the Company shall have the right, at its sole discretion, to designate one or more of its employees to be on "assignment" and assign such employees to one or more locations, provided that the Company maintains at the Facility(ies)—at all times during the period beginning on the Performance Date and ending on the ten-year anniversary of the Start Date —the active and paid employment status of at least one individual assigned to work at the Facility(ies) in each of the eight New Job positions required to be created under this Agreement, except that after the termination, resignation, or other departure from active paid status of any employee filling a New Job required to be created under this Agreement, the Company shall have a reasonable period of time (but in no event longer than 90 business days or a longer time period if necessary to comply with the minimum requirements of the Family Medical Leave Act or other applicable federal or Texas state law governing mandatory employee leave or time away from the job) to fill the position with an active, paid employee. Section 5. Repayment obligation and Other Remedies. (a) Determination of Impossibility of Meeting Targets: If the Anna Economic Development Corporation and the City determine, in their reasonable discretion exercised in good faith, and find by written resolution at any time ECONOMIC DEVELOPMENT INCENTIVE GRANT FOR CAPITAL INVESTMENT PERFORMANCE AGREEMENT PAGE 4 OF 12 prior to the Performance Date (the "Determination Date") that it would be impossible for the Company to meet the Targets within the 36-month period set forth in Section 4(a) of this Agreement —and provided that the Anna Economic Development Corporation and the City notifies the Company of such determination in writing within ten business days of such Determination Date —the Company must repay 100% of the grant proceeds (plus interest at the rate of 3% per annum or the highest rate allowed by law, whichever is lower, with interest accruing cumulatively on the total amount of grant proceeds disbursed beginning on the Determination Date). (b) Repayment for Failure to Meet Tamets. Regardless of whether the Anna Economic Development Corporation and the City provides a determination notice as set forth under subsection (a) above, the Company must repay 100% of the grant proceeds (plus interest at the rate of 3% per annum or the highest rate allowed by law, whichever is lower, with interest accruing cumulatively on the total amount of grant proceeds disbursed beginning on the expiration of 36 months after the date the Company receives the first disbursement of grant proceeds under this Agreement) if it fails to meet either of the Targets within the 36-month period set forth in Section 4(a) of this Agreement. (c) Renavment after Performance Date. If neither the Anna Economic Development Corporation nor the City provides a determination notice and the Company meets its Targets within the 36-month period set forth in Section 4(a) of this Agreement, then the Company shall only be obligated to repay grant proceeds (plus interest at the rate of 6% per annum or the highest rate allowed by law, whichever is lower, with interest accruing cumulatively on the total amount of grant proceeds disbursed beginning on the first date of the Company's failure to meet its Obligation to Maintain) if it fails to meet its Obligation to Maintain. If the Company fails to meet its Obligation to Maintain, the amount to be repaid will be determined by the date upon which the failure to meet the Obligation to Maintain first occurs, according to the schedule set forth below and made a part of this subsection. [REMAINDER OF PAGE LEFT BLANK INTENTIONALLY] ECONOMIC DEVELOPMENT INCENTIVE GRANT FOR CAPITAL INVESTMENT PERFORMANCE AGREEMENT PAGE 5 OF 12 First date of failure to meet Percentage of total grant Obligation to Maintain proceeds to he repaid Anytime after the Performance Date, but before the expiration of 3 years after the Performance Date 100% +interest Anytime between the expiration of 3 years after the Performance Date, but before the expiration of 5 years after the Start Date 75% Anytime between the expiration of 5 years after the Start Date, but before the expiration of eight years after the Start Date 50% Anytime between the expiration of eight years after the Start Date, but before the expiration of nine years after the Start Date 25% Anytime between the expiration of nine years after the Start Date, but before the expiration of ten years after the Start Date 15% Upon the expiration of ten years after the Start Date and at all No repayment obligation times thereafter (d) Repayment Dates. Any required repayments shall be due from the Company to the Anna Economic Development Corporation within ten business days of the Determination Date, or within ten business days of the date that the Anna Economic Development Corporation or the City provides written notice to the Company of its failure to meet the Obligation to Maintain or its obligations with respect to the Performance Date. (e) Remedies. In the event that the Company fails to timely repay the grant proceeds or otherwise materially breaches this Agreement, Company agrees that the Anna Economic Development Corporation or the City has the option to initiate legal action to collect all grant proceeds not yet repaid. If legal action is initiated, Company agrees to pay all fees, cost and expenses incurred by the Anna Economic Development Corporation or the City related to the collection of the grant proceeds. The remedies stated in this Agreement are cumulative of and do not limit any other remedies that the Anna Economic Development Corporation or the City may have at law or in equity. [REMAINDER OF PAGE LEFT BLANK INTENTIONALLY] ECONOMIC DEVELOPMENT INCENTIVE GRANT FOR CAPITAL INVESTMENT PERFORMANCE AGREEMENT PAGE 6 OF 12 Section 6. Company Reporting. The Company shall provide, at the Company's expense, detailed verification reasonably satisfactory to the Anna Economic Development Corporation of the Company's progress on the Targets, including but not limited to proof of its Capital Investment in machinery and equipment and amounts invested in the up -fit of the Facility(ies) as required under this Agreement, and, as applicable, the Company's Obligation to Maintain. Such progress reports will be provided annually, starting at twelve months from the date that the Company receives the first disbursement of grant proceeds, but may be required quarterly upon written request by the Anna Economic Development Corporation or the City, and at such other times as the Anna Economic Development Corporation or the City may require during the period of ten years from the Start Date. Without limiting the scope or type of actions or inactions on the part of the Company that may result in a material breach of this Agreement, the Company's failure to comply with this Section will be considered a material breach of this Agreement. Section 7. Notices. (a) Any notices required or permitted under this Agreement shall be given in writing, and shall be deemed to be received upon receipt or refusal after mailing of the same via Unitec! States certified mail, postage fully pre -paid, return receipt requested or by overnight courier (refusal shall mean return or certified mail not accepted by the addressee): If to the Company, to: NIMBiX, Inc. Attention: Steve Hebert, President 2323 Bryan Street, Suite 1520, MS108 Dallas, TX 75201 If to the Anna Economic Development Corporation, to: Anna Economic Development Corporation Attention: Chief Administrative Officer PO Box 776 Anna, Texas 75409 and with a copy to: Clark McCoy Wolfe, Tidwell & McCoy, LLP 2591 Dallas Parkway, Suite 205 Frisco, TX 75034 ECONOMIC DEVELOPMENT INCENTIVE GRANT FOR CAPITAL INVESTMENT PERFORMANCE AGREEMENT PAGE 7 OF 12 (b) Either party may change its addresses for notice by providing written notice of same to the other party and to the City via the manner set forth in subsection (a), above. Section 8. Miscellaneous. (a) Entire Agreement; Amendments. This Agreement constitutes the entire agreement between the parties hereto as to the subject matter contained herein and may not be amended or modified, except in writing signed by each of the parties. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. Neither Party may assign its rights and obligations under this Agreement without the prior written consent of the other party which shall not be unreasonably withheld (b) Governing Law; Venue. This Agreement is made, and is intended to be performed, in the corporate limits of the City and shall be construed and enforced by local and state laws within the State of Texas. Jurisdiction, forum and venue for any litigation arising out of, relating in any way to, or involving this Agreement shall lie exclusively in a court in Collin County, Texas or, as applicable, in the federal district court that is the proper venue for claims arising out of Collin County, Texas. (c) Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be an original, and all of which together shall be one and the same instrument. (d) Severabilit . If any provision of this Agreement is determined to be unenforceable, then the remaining provisions of this Agreement shall, in the discretion of the Anna Economic Development Corporation, be voidable or interpreted as in effect as if such unenforceable provision were not included herein. (e) Indemnification and Limitation of Liabilitv. It is expressly understood and agreed that the Anna Economic Development Corporation has no right of control, supervision, or direction over the NIMBIX Project or the Work nor does the Anna Economic Development Corporation have any control, supervision or direction of the means, methods, sequences, procedures, and techniques utilized to undertake and complete the Work. There shall be no joint control of the NIMBIX Project or the Work. THE COMPANY AGREES TO FULLY DEFEND, INDEMNIFY AND HOLD HARMLESS THE ANNA ECONOMIC DEVELOPMENT CORPORATION AND THE CITY FROM ANY CLAIM, PROCEEDING, CAUSE OF ACTION, JUDGMENT, PENALTY, OR ANY OTHER COST OR EXPENSE ARISING OR GROWING OUT OF, ASSOCIATED OR IN CONNECTION WITH ECONOMIC DEVELOPMENT INCENTIVE GRANT FOR CAPITAL INVESTMENT PERFORMANCE AGREEMENT PAGE 8 OF 12 THE NIMBIX PROJECT OR THE WORK, PROVIDED, HOWEVER, THAT THE COMPANY SHALL NOT BE REQUIRED TO INDEMNIFY THE ANNA ECONOMIC DEVELOPMENT CORPORATION OR THE CITY FOR ANY DAMAGES OR OTHER AMOUNTS INCURRED BY THEM FOR WHICH THE SOLE PROXIMATE CAUSE IS THE NEGLIGENCE, GROSS NEGLIGENCE OR INTENTIONAL CONDUCT OF THE ANNA ECONOMIC DEVELOPMENT CORPORATION, THE CITY, OR THEIR EMPLOYEES, OFFICERS, REPRESENTATIVES OR AGENTS. THE COMPANY'S DUTY TO INDEMNIFY AND HOLD HARMLESS INCLUDES, BUT IS NOT LIMITED TO, ATTORNEY FEES AND EXPENSES INCURRED BY THE ANNA ECONOMIC DEVELOPMENT CORPORATION OR THE CITY IN DEFENDING THEMSELVES OR IN ENFORCING THIS AGREEMENT. THIS PROVISION IS NOT INTENDED TO AND DOES NOT WAIVE ANY OF THE ANNA ECONOMIC DEVELOPMENT CORPORATION'S OR THE CITY'S GOVERNMENTAL IMMUNITIES, INCLUDING IMMUNITY FROM SUIT AND LIABILITY. THIS AGREEMENT IS NOT INTENDED TO BENEFIT ANY THIRD PARTIES. ( Assignment or Sale. The Company may assign, sell, transfer or lease (including through merger/acquisition transactions) all or any part of the NIBMIX Project, the Company (via a sale of the Company's stock and/or assets, as applicable) or this Agreement to another person or entity without any prior approval of the Anna Economic Development Corporation. In the event that the Company assigns, sells, transfers or leases all or any part of the NIMBIX Project or this Agreement to a separate entity or person, the assignment must provide that the assignee shall assume all of the obligations of the Company under this Agreement or the portion(s) of those obligations, as applicable, that pertain to the part of the NIMBIX Project or this Agreement that is assigned or sold. Notwithstanding the foregoing, the Anna Economic Development Corporation shall have certain reimbursement rights upon occurrence of a "Triggering Event" as described below. A "Triggering Event" will be deemed to have occurred if any sale of the Company's assets, stock or shares, or a merger or acquisition involving the Company results in or causes: (1) the dissolution or nonexistence of the Company; (2) a merger of the Company into a separate company or an acquisition wherein the Company becomes a wholly -owned subsidiary of a separate company or becomes subject to the control of a separate company; or The Company or its successor must provide written notice to the Anna Economic Development Corporation within ten days of the occurrence of the Triggering Event, including the name of such separate company, successor company, controlling company, owning company, or Controlling Shareholder, as the case may be, any necessary change of address for notice under Section 7(b) this ECONOMIC DEVELOPMENT INCENTIVE GRANT FOR CAPITAL INVESTMENT PERFORMANCE AGREEMENT PAGE 9OF 12 Agreement, and the address of the principal place of business of such company(ies) or Controlling Shareholder, or, if the Controlling Shareholder is an individual, the residence address or business address of the Controlling Shareholder. Upon the occurrence of a Triggering Event, the Anna Economic Development Corporation shall have the right, at its option, to demand repayment from the Company or the successor company of up to 100% of the grant proceeds (plus interest at the rate of 6% per annum or the highest rate allowed by law, whichever is lower, with interest accruing cumulatively on the total amount of grant proceeds disbursed beginning on the date of the Triggering Event) paid to the Company, in accordance with this paragraph. If such demand is made, the amount to be repaid will be determined by the date upon which the Triggering Event occurs, according to the schedule set forth in this Agreement in subsection 5(c) as though the words "First date of failure to meet Obligation to Maintain" were replaced with "Triggering Event." The Company or its successor company shall have the obligation to make such payment no later than 30 days after having received notice of such demand as Is is defined under Section 7(a) of this Agreement. However, the Anna Economic Development Corporation's right to make such demand shall be automatically waived unless it sends written notice of said demand to the Company or its successor within 30 days after the Anna Economic Development Corporation's actual receipt of written notice from the Company or its successor company of the Triggering Event. if the Anna Economic Development Corporation timely exercises the right to demand repayment of the grant proceeds and the Company or its successor timely makes said repayment, then the Parties shall be released from their obligations and duties under this Agreement, and the Agreement shall become null and void. (g) Sales Tax. It is agreed that, If the Company should at any time collect sales tax on the sale of any product, the Company will designate the Facility in the City as their point of sale and collect such sales tax at the Facility, per the terms of this Agreement. (h) Dissolution of Development Cocnorabon. Should the Anna Economic Development Corporation become dissolved at any time before the expiration of ten years after the Start Date, this Agreement shall inure in all ways to the benefit of the City, and the City shall be deemed to replace the Anna Economic Development Corporation as the party who has contracted with the Company under this Agreement. (i) Undocumented Workers. In accordance with Chapter 2264 of the Texas Government Code, the Company certifies that neither it, nor a branch, division, or department of the Company, will ever knowingly employ an undocumented worker and that if, after receiving any grant proceeds under this Agreement, the Company, or a branch, division, or department of the Company, is convicted of a ECONOMIC DEVELOPMENT INCENTIVE GRANT FOR CAPITAL INVESTMENT PERFORMANCE AGREEMENT PAGE 1Q OF 12 violation under 8 U.S.C. §1324a(f), the Company shall repay the total amount of all grant proceeds theretofore received under this Agreement with interest at 10% per annum or the highest rate allowed by law, whichever is lower, not later than the 120th day after the date the Anna Economic Development Corporation or the City notifies the Company in writing of the violation. IN WITNESS WHEREOF, the parties hereto have executed this Agreement, which shall be effective on the date that is described in Section 3(b) of this Agreement. Anna Economic Development Corporation i By: i fir, : did C nstance Ann Stump, Its President STATE OF TEXAS § COUNTY OF COLLIN § Before me, the undersigned notary public, on the to day of 2013, personally appeared Constance Ann Stump known to me (or proved to me) to be fhe person whose name is subscribed to the foregoing instrument and acknowledged to me that she executed the same in her capacity as President of the Anna Economic Development Corporation and on behalf of the Anna Economic Development Corporation. Notary Public, S to of Texas REMAINDER OF PAGE LEFT BLANK INTENTIONALLY !. [ =O�of'� Natha J Wilkison • 1 My Commission Expires 1111312013 G{ FOF ECONOMIC DEVELOPMENT INCENTIVE GRANT FOR CAPITAL INVESTMENT PERFORMANCE AGREEMENT PAGE 11 OF 12 NIMBIX, Inc. By: ... Steve Hebert, its President STATE OF TEXAS § COUNTY OF COLLIN § Before me, the undersigned notary public, on the ,� day of 4"alev2013, personally appeared Steve Hebert known to me (or proved to me) to be the pars n whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same in his capacity as President of NIMBIX, Inc. and on behalf of NIMBIX, Inc. DAVID IIAICNALA Texas• _ Notary Pubfc, State o t$ AWary Pu ic, State of Texas Icy Commission Expires November 29, 2016 ECONOMIC DEVELOPMENT INCENTIVE GRANT FOR CAPITAL INVESTMENT PERFORMANCE AGREEMENT PAGE 12 OF 12