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HomeMy WebLinkAboutRes 2011-10-08 EDC Incentive Agreement with Proxomo Software Inc for Incentive Grand FundsCITY OF ANNA, TEXAS RESOLUTION NO. 2011-10-08 RESOLUTION APPROVING AN ECONOMIC DEVELOPMENT INCENTIVE AGREEMENT BETWEEN THE ANNA ECONOMIC DEVELOPMENT CORPORATION AND PROXOMO SOFTWARE, INC. FOR INCENTIVE GRANT FUNDS CONDITIONED ON PERFORMANCE CRITERIA WHEREAS, The City Council of the City of Anna supports the Anna Economic Development Corporation's ("EDC") desire to offer Proxomo Software, Inc. an economic development incentive grant conditioned on performance criteria, including but not limited to the creation of new jobs within the City's corporate boundaries; and WHEREAS, The City Council of the City of Anna approves the amount of the EDC incentive grant and the terms of the performance criteria as described in Exhibit A, as well as the economic development project described therein; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ANNA, TEXAS THAT: Section 1. Recitals Incorporated The recitals set forth above are incorporated herein for all purposes as if set forth in full. Section 2. The City Council of the City of Anna, Texas hereby authorizes the EDC to enter into the Economic Development Incentive Grant for Capital Investment Performance Agreement with Proxomo Software, Inc. for grant funds in an amount up to $100,000 to be conditioned on performance criteria as described in Exhibit A. PASSED by the City Council of the City of Anna, Texas, on this 25th day of October, 2011. ATTEST: Res. 2011-10-08 Proxomo Economic Develop Agreement PAGE 1 OF1 10-25-11 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 Proxomo Software, 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 ten 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 at 6% per annum or the highest rate allowed by law, whichever is lower, to the Anna Economic Development Corporation if the performance criteria under this Agreement are not 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 to induce the Anna Economic Development Corporation to enter into this Agreement. Section 2. De'finitions. "Capital Investment" means the Company's capital expenditure of at least $2,000 of which approximately $1,500 will be invested in machinery and equipment, and approximately $500 will be invested in the up-fit of the Facility(ies). ECONOMIC DEVELOPMENT INCENTIVE GRANT FOR CAPITAL INVESTMENT PERFORMANCE AGREEMENT PAGE 1 OF 13 "Cash Grant" means the total amount of $100,000 to be disbursed by Anna Economic Development Corporation to the Company in three installments of $50,000, $25,000 and $25,000, respectively, with said disbursement to occur as set forth in more detail in Section 3 of this Agreement. "City" or "the City" means the City of Anna, Texas. "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's Corporate Headquarters. "Conditional Loan" means the loan to be offered by Anna Economic Development Corporation to the Company under Section 3(c) of this Agreement if the Company opts for such loan in an amount up to $250,000, conditioned upon Anna Economic Development Corporation's ability to reasonably secure the necessary amount to fund such loan from a state or federal source(s) for the purpose of making such a loan provided that the making of the loan to the Company would be in compliance with applicable state and federal law and regulations. "Controlling Shareholder" means a shareholder or stock owner of the Company who is in a position to influence the Company's activities because said shareholder or stock owner either owns a majority of outstanding shares/stocks or owns a smaller-than­ majority percentage but owns more shares than any other shareholder. "Facility" or "Facilities" means the place(s) of business and operations of the Company, including the principal place of business (Corporate Headquarters) and any other of the Company's business locations, within the corporate limits of the City. "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 an average annual wage of at least $50,000. 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. (Seasonal or temporary positions, positions created when a job function is shifted from an existing location in the corporate limits of the City, and positions with contractors, suppliers, and similar multiplier or spin-off jobs shall not qualify as New Jobs.) "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 ECONOMIC DEVELOPMENT INCENTIVE GRANT FOR CAPITAL INVESTMENT PERFORMANCE AGREEMENT PAGE 20F 13 ending ten years after the Start Date-the active and paid employment status of at least one individual in each of the ten 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 ten 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. "Proxomo Project" means the subject of this Agreement, which is the Company's associated software and software development, and associated marketing and sales operations within the corporate limits of the City intended to result in the creation of at least ten New Jobs at the Facility(ies) and the Company's Obligation to Maintain and other duties it must perform under this Agreement. "Sales Tax" means sales tax collected by the Company on the sale of any product sold by the Company. "Start Date" means the date that the Anna Economic Development Corporation has determined at its sole discretion that the Company has established and begun to operate its business at the Facility(ies) 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 ten New Jobs. "Work" means substantially 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 Proxomo 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. Cash Grant, Lease, Conditional Loan and Effectiveness. (a) Cash Grant. The total cash amount of the grant to be paid by the Anna Economic Development Corporation under this Agreement is $100,000. The grant proceeds must be used by the Company for costs that are necessary and incident to financing and placing the Proxomo Project into operation and maintaining same. A portion of grant proceeds, in the amount of $50,000 will be paid to the ECONOMIC DEVELOPMENT INCENTIVE GRANT FOR CAPITAL INVESTMENT PERFORMANCE AGREEMENT PAGE 3 OF 13 Company within ten business days of the later of: (1) the effective date of this Agreement; or (2) the date that the Company has executed an enforceable lease or purchase agreement for suitable office/commercial space at a mutually agreeable location within the corporate limits to be used for its operations and corporate headquarters. The remainder of the grant proceeds will be paid to the Company in two equal installments, each in the amount of $25,000. The first of said $25,000 payments will be paid to the Company on the first year anniversary of the Start Date and the second of said $25,000 will be paid to the Company on the second anniversary of the Start Date. The Company may at any time make a written request for the Anna Economic Development Corporation to provide written verification of the Start Date. Provided that the Anna Economic Development Corporation has determined the Start Date it shall provide said written verification with ten business days of the receipt of the Company's request for same. (b) Facilities Lease/Purchase. Before payment of any part of the Cash Grant, the Anna Economic Development Corporation must either: (1) lease to the Company at no cost other than utilities at actual cost, office/commercial space to be used for its operations and as its Corporate Headquarters for a mutually agreeable period of time; or (2) make reasonable efforts to assist the Company in finding mutually agreeable office/commercial space to be used for its operations and as its Corporate Headquarters at no cost other than utilities at actual costs for a mutually agreeable period of time. 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 pursue the purchase or lease of alternative office/commercial space at a mutually agreeable location within the corporate limits to be used for its operations and Corporate Headquarters; provided, however, that if the Company determines that it is not financially feasible to do so, it may provide written notice of same to the Anna Economic Development Corporation, at which time this Agreement shall be deemed null and void and neither party shall have any further obligations hereunder. (c) Conditional Loan Offer. In addition to the cash grant and the office/commercial space, the Anna Economic Development Corporation hereby offers to the Company the sole right of first refusal to a four-year loan in the amount of up to $250,000 (or a lesser amount if chosen by the Company or if less than $250,000 is reasonably available in said grant(s), 0% interest for two years, 4% interest for years 3 and 4, to be paid repaid in full at the end of year four, or other mutually agreeable terms), said offer being conditioned upon: (1) the receipt by the Anna Economic Development Corporation from a state or federal source of sufficient grant funds provided for the express purpose of economic development; and (2) ECONOMIC DEVELOPMENT INCENTIVE GRANT FOR CAPITAL INVESTMENT PERFORMANCE AGREEMENT PAGE40F 13 the eligibly of such funds for the making of the loan by Anna Economic Development Corporation to the Company in accordance with state or federal laws or regulations, as applicable. (d) Conditional Effectiveness of Agreement. This Agreement is subject to the duly authorized approval of the Company, the Anna Economic Development Corporation Board of Directors, and the City of Anna City Council and absent said approvals this Agreement shall be null and void notwithstanding any other provision or statement in this Agreement. "Duly authorized approval of the Company" means and requires that: (1) the Company's Board of Directors has duly adopted a written resolution approving and adopting this Agreement and authorizing the Company's undersigned director to execute this Agreement on behalf of the Company; and (2) the Company has delivered a fully executed copy of said resolution to the Anna Economic Development Corporation. On the date that the last of said approvals by the Anna Economic Development Corporation, the City and the Company occurs, 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) of this section, 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 that 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 the Cash Grant under Section 3 of this Agreement. (b) Obligation to Maintain. The Company must fulfill its Obligation to Maintain for ten years after the Performance Date. Section 5. Repayment Obligation and Other Remedies. (a) Determination of Inability to Meet Targets. If the Anna Economic Development Corporation or the City determines at any time prior to the Performance Date that the Company is unable or unwilling 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 or the City notifies the Company of such determination in writing-the Company must repay 100% of the grant proceeds (plus interest at the rate of 6% per annum or the highest rate allowed by law, ECONOMIC DEVELOPMENT INCENTIVE GRANT FOR CAPITAL INVESTMENT PERFORMANCE AGREEMENT PAGE 5 OF 13 whichever is lower, with interest accruing cumulatively from the date that said written determination is received on the total amount of grant proceeds disbursed). The date on which the written determination is deemed to have been received is hereinafter referenced as the "Determination Date." (b) Repayment for Failure to Meet Targets by Performance Date. Regardless of whether the Anna Economic Development Corporation or 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 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 expiration of 36 months after the date the Company receives the first disbursement of the Cash Grant under Section 3(a) of this Agreement) if the Company fails to meet either or both of the Targets within the 36-month period set forth in Section 4{a) of this Agreement. (c) Repayment after Performance Date. If neither the Anna Economic Development Corporation nor the City has provided a determination notice as set forth in subsection (a), above, 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 6 OF 13 First date of failure to meet Obligation to Maintain Percentage of total grant proceeds to be repaid Anytime after the Performance Date, but before the expiration of one year after the Performance Date 100% Anytime on or after the expiration of one year after the Performance Date, but before the expiration of two years after the Performance Date 70% Anytime on or after the expiration of two years after the Performance Date, but before the expiration of three years after the Performance Date 60% Anytime on or after the expiration of three years after the Performance Date, but before the expiration of four years after the Performance Date 40% Anytime on or after the expiration of four years after the Performance Date, but before the expiration of five years after the Performance Date 30% Anytime on or after the expiration of five years after the Performance Date, but before the expiration of six years after the Performance Date 20% Anytime on or after the expiration of six years after the Performance Date, but before the expiration of seven years after the Performance Date 10% On the expiration of seven years after the Performance Date and at all times thereafter No repayment obligation ' (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 INCENTIVE GRANT FOR CAPITAL INVESTMENT PERFORMANCE AGREEMENT PAGE 7 OF 13 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 the grant proceeds. 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. 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 Performance Date. Such verification may include without limitation copies of payroll records, employee pay stubs or checks, employee work schedules and documentation that the Company is required to submit to any state or federal agency containing information regarding the Company's employees, but not including any health records or other items that, if disclosed by the Company, would result in a violation of law. 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 addressed as follows: If to the Company prior to its relocation to Anna: Proxomo Software, Inc. 391 Sandhill Drive ECONOMIC DEVELOPMENT INCENTIVE GRANT FOR CAPITAL INVESTMENT PERFORMANCE AGREEMENT PAGE80F 13 Richardson, TX 75080 Attention: Steven Thrasher, Director If to the Company after its relocation to Anna: Proxomo Software, Inc. 312 N. Powell Parkway Anna, Texas 75409 Attention: Steven Thrasher, Director If to the Anna Economic Development Corporation: Anna Economic Development Corporation PO Box 776 Anna, Texas 75409 Attention: Chief Administrative Officer and with a copy to: Clark McCoy Wolfe, Tidwell & McCoy, LLP 2591 Dallas Parkway, Suite 205 Frisco, TX 75034 (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. (c) Notice shall be deemed to be received three days after the deposit of same­ properly packaged and addressed with fully prepaid postage-in a United States post office or official depository to be sent via certified U.S. mail, return receipt requested. 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. The Company may not assign its rights and obligations under this Agreement without the prior written consent of the Anna Economic Development Corporation. ECONOMIC DEVELOPMENT INCENTIVE GRANT FOR CAPITAL INVESTMENT PERFORMANCE AGREEMENT PAGE 90F 13 (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) Severabilitv. 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 Liability. It is expressly understood and agreed that the Anna Economic Development Corporation has no right of control, supervision, or direction over the Proxomo 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 Proxomo 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 THE PROXOMO 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 OR GROSS NEGLIGENCE 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 INCURRED BY THE ANNA ECONOMIC DEVELOPMENT CORPORATION OR THE CITY IN DEFENDING THEMSELVES OR IN ENFORCING THIS AGREEMENT. BY ENTERING INTO THIS AGREEMENT, THE COMPANY WAIVES ALL RIGHTS AND REMEDIES IN LAW OR IN EQUITY EXCEPT TO SEEK ENFORCEMENT OF SPECIFIC PERFORMANCE OF THE OBLIGATIONS UNDER THIS AGREEMENT. THIS PROVISION IS NOT INTENDED TO AND DOES NOT WAIVE ANY OF THE ECONOMIC DEVELOPMENT INCENTIVE GRANT FOR CAPITAL INVESTMENT PERFORMANCE AGREEMENT PAGE 10 OF 13 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. (f) Assignment or Sale. The Company may assign, sell, transfer or lease (including through merger/acquisition transactions) all or any part of the Proxomo 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 Proxomo 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 Proxomo 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 (3) a new Controlling Shareholder of the Company. 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 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 ECONOMIC DEVELOPMENT INCENTIVE GRANT FOR CAPITAL INVESTMENT PERFORMANCE AGREEMENT PAGE 11 OF 13 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 Section 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 "received" 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 understood that the Company does not at present collect sales tax on the sale of its product(s), however this could change over the term of this Agreement. 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 Corporation. Should the Anna Economic Development Corporation become dissolved at any time before the expiration of ten years after the Performance 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 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 of the violation. U) Term. The term of this Agreement shall be from the effective date until all obligations by the parties hereto have been satisfied in full. ECONOMIC DEVELOPMENT INCENTIVE GRANT FOR CAPITAL INVESTMENT PERFORMANCE AGREEMENT PAGE 12 OF 13 IN WITNESS WHEREOF, the parties hereto have executed this Agreement, which shall be effective on the date that is described in Section 3(d) of this Agreement. Anna Economic Development Corporation 8y:______________ Constance Ann Stump, its President STATE OF TEXAS § § COUNTY OF COLLIN § Before me, the undersigned notary public, on the __ day of , 2011, personally appeared Constance Ann Stump known to me (or proved to me) to be the 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, State of Texas Proxomo Software, Inc. By:-:--_~~___:_-~-----­ Steven Thrasher, Director STATE OF TEXAS § § COUNTY OF COLLIN § Before me, the undersigned notary public, on the __ day of , 2011, personally appeared Steven Thrasher known to me (or proved to me) to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same solely in his capacity as a Director of Proxomo Software, Inc., and on behalf of Proxomo Software, Inc. Notary Public, State of Texas ECONOMIC DEVELOPMENT INCENTIVE GRANT FOR CAPITAL INVESTMENT PERFORMANCE AGREEMENT PAGE 130F 13