Exhibit 10.12


 


STI CLOSING SHARES ESCROW AGREEMENT


 


THIS STI
CLOSING SHARES ESCROW AGREEMENT (this “Escrow Agreement”) is made and entered into this 22 day
of January, 2007, by and among Consonus Technologies, Inc., a Delaware
corporation (“CTI”), Strategic Technologies, Inc. (“STI”), Irvin
J. Miglietta, a resident of the State of Connecticut (the “STI Holders’
Agent”), and Wyrick Robbins Yates & Ponton LLP, a North Carolina
limited liability partnership (the “Escrow Agent”).


 


R E C I T A L S:


 


A.            CTI and STI have entered into a Merger Agreement, dated
as of October 18, 2006 along with Consonus Acquisition Corp., a Delaware
corporation, Consonus Merger Sub, Inc., a Delaware corporation, and STI Merger
Sub, Inc., a North Carolina corporation (the “Merger Agreement”).
Capitalized terms used, but not defined herein have the same meaning as defined
in or used in the Merger Agreement.


 


B.            The Merger Agreement contemplates the deposit by CTI with
the Escrow Agent of the STI Closing Shares to be held pursuant to this Escrow
Agreement, as set forth herein.


 


NOW, THEREFORE,
pursuant to the covenants and benefits between the parties in the Merger
Agreement and in consideration of the premises, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, it
is hereby agreed as follows:


 


1.             APPOINTMENT OF ESCROW AGENT. STI, the STI Holders’ Agent and CTI hereby
irrevocably appoint the Escrow Agent as escrow agent to receive, hold,
administer and deliver the STI Escrow Shares in accordance with this Escrow
Agreement, and the Escrow Agent hereby accepts such appointment, all subject to
and upon the terms and conditions set forth herein.


 


2.             ESTABLISHMENT OF ESCROW FUND. At the Closing of the transactions
contemplated in the Merger Agreement, the Company shall transfer the STI
Closing Shares to the Escrow Agent. It is the parties’ intention that, subject
to the terms and conditions set forth herein, that the Escrow Agent shall
dispose of the STI Closing Shares in accordance with the express provisions of
this Escrow Agreement, and shall not make, be required to make or be liable in
any manner for its failure to make, any determination under the Merger
Agreement, or any other agreement, including, without limitation, any determination
of whether CTI or STI, as applicable, has complied with the terms of the Merger
Agreement or whether the Company , STI, or the STI Holders as applicable, are
entitled to delivery of any or all of the STI Closing Shares.


 


3.             MANAGEMENT OF ESCROW FUND. All STI Closing Shares shall be issued and
outstanding on the books and records of CTI and shall appear thereon as held by
the Escrow Agent as nominee for the STI Holders. The STI Holders shall retain
full voting power over all STI Closing Shares. Any cash dividends, dividends
payable in securities or other distributions of any kind (but excluding any
shares of CTI capital stock received upon a stock split or stock dividend),
shall be promptly distributed by the Escrow Agent to the beneficial holder of
the STI Closing Shares to which such distribution relates, by check mailed via
first


 

















 


class mail, to the STI
Holders at their addresses, and in the percentage interests set forth in the
STI Payment Schedule. Any shares of CTI capital stock received by the Escrow
Agent upon a stock split made in respect of any securities in the held by the
Escrow Agent hereunder shall be added to the STI Closing Shares and, together,
may be referred to as the “Escrow Fund”. STI shall furnish to the Escrow Agent
a Form W-9, if necessary. The Escrow Agent shall have no duty or responsibility
with respect to any federal or state tax filing or reporting.


 


4.             RELEASE OF ESCROW FUND. The Escrow Agent shall hold the Escrow Fund
until the earlier to occur of the following:


 


(a)           The closing of the IPO, at which time the entire Escrow
Fund will be delivered to the STI Holders in accordance with the STI Payment
Schedule; or


 


(b)           Such date as the Rescission occurs, in which case the
entire Escrow Fund will be delivered to CTI for cancellation in exchange for
which the STI Holders will receive the STI Common Stock held by each such STI
Holder immediately prior to the closing of the Mergers; or


 


(c)           In the event neither of the foregoing occurs by December
29, 2007, the entire Escrow Fund will be delivered to the STI Holders in
accordance with the STI Payment Schedule, and no Rescission shall occur.


 


STI, the STI Holders’ Agent
and CTI will notify the Escrow Agent in a joint written notice promptly upon
the occurrence of the events described in (a) and (b) above. The Escrow Agent
will deliver the Escrow Fund in the manner described above within ten (10)
business days following receipt of such written notice or, in the case of (c)
above, within ten (10) business days following December 29, 2007.


 


5.             ESCROW AGENT


 


(a)           Escrow Agent will perform its
obligations hereunder fairly and impartially according to the intent of the
parties as herein expressed, provided however that Escrow Agent is to be
considered as a depository only, shall not be deemed to be a party to any
document other than this Escrow Agreement, and shall not be responsible or
liable in any manner whatsoever for the sufficiency or manner of execution, or
validity or any written instructions, certificates or any other documents
received by it, nor as to the identity, authority, or rights or any persons
executing the same. Escrow Agent shall be entitled to rely at all times on
instructions given by STI, the STI Holders’ Agent and CTI, as the case may be
and as required hereunder, without any necessity or verifying the authority
thereof. STI, the STI Holders’ Agent and CTI acknowledge that Escrow Agent is
counsel for STI and waive any potential conflict of interest in connection
therewith. Notwithstanding the foregoing, in the event of a dispute hereunder
between STI and CTI (or its successors or assigns), in Escrow Agent’s
discretion, Escrow Agent shall have the right, exercisable in its sole
discretion, to be discharged by tendering the Escrow Fund and any related funds
held by Escrow Agent unto the registry or custody of any court of competent
jurisdiction, together with any such legal pleadings as it deems appropriate.
Escrow Agent shall have the right to continue as counsel for STI
notwithstanding any action taken by Escrow Agent in accordance with this
Agreement.


 


2

















 


(b)           Escrow Agent shall not at any time be
held liable for actions taken or omitted to be taken in good faith and without
gross negligence. STI and CTI agree to save and hold Escrow Agent harmless from
any loss and from any claims or demands arising out of its actions hereunder
and hereby agree to indemnify Escrow Agent from any claims or demands for
losses arising out of its activities hereunder.


 


(c)           It is further understood by STI and
CTI that if, as the result of any disagreement between them or adverse demands
and claims being made by any of them upon Escrow Agent, such parties agree that
they, jointly and severally, are and shall be liable to Escrow Agent and shall
reimburse Escrow Agent for its reasonable costs, expenses and counsel fees it
shall incur or be compelled to pay by reason of such litigation. STI agrees
that it shall be responsible to advance all amounts due Escrow Agent for its
services as set forth in this Agreement, provided that any such advance by STI
as the result of any dispute or litigation between STI and CTI shall be without
prejudice to its right to recover such amount as damages from CTI.


 


(d)           In taking or omitting to take any
action whatsoever hereunder, Escrow Agent shall be protected in relying upon
any notice, paper, or other document believed by it to be genuine, or upon
evidence deemed by it to be sufficient, and in no event shall Escrow Agent be
liable hereunder for any act performed or omitted to be performed by it
hereunder in the absence of gross negligence or bad faith. Escrow Agent may
consult with counsel in connection with its duties hereunder and shall be fully
protected in any act taken, suffered or permitted by it in good faith and without
gross negligence in accordance with the advice of such counsel.


 


6.             NOTICES. All notices and other communications
hereunder shall be in writing and shall be deemed given (i) on the date of
delivery, if delivered personally (ii) on the date of confirmation of receipt,
if delivered by commercial delivery service, or mailed by registered or
certified mail (return receipt requested) or (iii) on the date of confirmation
of receipt, if sent via facsimile to the parties at the following address (or
at such other address for a party as shall be specified by like notice):


 


If
to CTI:


 


Consonus
Technologies, Inc.


180
East 100 South


Salt
Lake City, Utah 84111


Attention:
Nana Baffour


Facsimile
No.: (801) 617-2980


Telephone
No.:           (801)
617-2998


 


with a copy (which shall not constitute notice) to:


 


Greenberg
Traurig, LLP


3290
Northside Parkway, Suite 400


Atlanta,
Georgia  30327


 


3

















 


Attention:  Theodore I. Blum, Esq.


Telecopy
No.: (678) 553-2621


Telephone No.: (678) 553-2620


 


If to STI to:


 


Strategic
Technologies, Inc.


301
Gregson Drive


Cary,
North Carolina 27511


Attention:
Mike Shook


Facsimile No.: (919)
379-8000


Telephone
No.: (919) 379-8100


 


with a copy (which shall not constitute notice) to:


 


Wyrick Robbins Yates & Ponton LLP


4101 Lake Boone Trail, Suite 300


Raleigh, North Carolina 27607


Attention: Lisa D. Inman


Facsimile No.: (919) 781-4865


Telephone No.: (919) 781-4000


 


If
to the Escrow Agent:


 


Wyrick Robbins Yates & Ponton LLP


4101 Lake Boone Trail, Suite 300


Raleigh, North Carolina 27607


Attention: Lisa D. Inman


Facsimile No.: (919) 781-4865


Telephone
No.: (919) 781-4000


 


Such
notice addresses may be changed upon written notice.


 


7.             CONFLICT. In the event any provision(s) of this Escrow
Agreement conflict with any provision(s) in the Merger Agreement, the
provisions of this Escrow Agreement will prevail.


 


8.             SEVERABILITY. Any provision of this Escrow Agreement
which may be determined by competent authority to be prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render unenforceable
such provision in any other jurisdiction. It is expressly understood, however,
that the parties hereto intend each and every provision of this Escrow
Agreement to be valid and enforceable and hereby knowingly waive all rights to
object to any provision of this Escrow Agreement.


 


4

















 


9.             ASSIGNMENT. This Escrow Agreement shall be binding upon
and inure solely to the benefit of the parties hereto and their respective
successors and assigns, and shall not be enforceable by or inure to the benefit
of any third party. No party may assign any of its rights or obligations under
this Escrow Agreement without the written consent of the other parties.


 


10.          AMENDMENTS. This Escrow Agreement may only be modified
or terminated by a writing signed by the parties hereto, and no waiver
hereunder shall be effective unless in a writing signed by the party to be
charged.


 


11.          COUNTERPARTS. This Escrow Agreement may be executed and
delivered in counterpart signature pages executed and delivered via facsimile
transmission, and any such counterpart executed and delivered via facsimile
transmission shall be deemed an original for all intents and purposes.


 


12.
GOVERNING LAW. This
Escrow Agreement shall be construed and interpreted according to the laws of
the State of North Carolina without regard to the conflict of law principles
thereof.


 


[SIGNATURES APPEAR ON FOLLOWING PAGE]


 


5

















IN WITNESS WHEREOF, the parties hereto have executed this Escrow Agreement as of the day
and year first above written.


 


 


	
   

  	
  CONSONUS
  TECHNOLOGIES, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/Michael G. Shook

  	
   

  
	
   

  	
   

  	
  Michael G. Shook, Chief
  Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  STRATEGIC
  TECHNOLOGIES, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/Michael G. Shook

  	
   

  
	
   

  	
   

  	
  Michael G. Shook,
  President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  STI
  HOLDERS’ AGENT:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  /s/Irvin J. Miglietta

  	
   

  
	
   

  	
   

  	
   

  	
  Irvin J. Miglietta

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ESCROW
  AGENT:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Wyrick Robbins Yates &
  Ponton LLP

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/Lisa D. Inman

  	
   

  
	
   

  	
  Name: 

  	
  /s/Lisa D. Inman

  	
   

  
	
   

  	
  Title: Partner

  
						



 


SIGNATURE PAGE TO STI CLOSING SHARES ESCROW AGREEMENT


 

















 




FIRST
AMENDMENT TO






STI
CLOSING SHARES ESCROW AGREEMENT




 




THIS FIRST
AMENDMENT TO STI CLOSING SHARES ESCROW AGREEMENT (this “Amendment”) is
made and entered into as of the 2nd day of January 2008 by and among
(i) Consonus Technologies, Inc., a Delaware corporation, (ii) Strategic
Technologies, Inc., a North Carolina corporation (“STI”), (iii) Irvin
J. Miglietta, a resident of the State of Connecticut (“STI Holders’ Agent”),
and (iv) Wyrick Robbins Yates & Ponton LLP, a North Carolina
limited liability partnership (“Escrow Agent”) (collectively, the “Parties”).




 




RECITALS




 




A.            The
Parties hereto are parties to that certain STI Closing Shares Escrow Agreement
dated as of January 22, 2007 (the “Escrow Agreement”).




 




B.            The
Parties desire to amend the Escrow Agreement to extend the period for release
of the Escrow Fund to provide for more appropriate timing given the status of
the IPO, as and to the extent set forth herein.




 




AGREEMENTS




 




NOW,
THEREFORE, in consideration of the recitals, the mutual covenants and
agreements set forth herein and in the Escrow Agreement, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:




 




1.             Section 4
of the Escrow Agreement is hereby amended by deleting references to “December 29,
2007” and replacing them with reference to “June 30, 2008”.  The Parties acknowledge that no Rescission
shall occur.




 




2.             Except
as specifically amended or modified by this Amendment, the terms and conditions
of the Escrow Agreement shall remain unimpaired, unaffected and unchanged in
every particular as set forth therein. 
Capitalized terms used and not otherwise defined herein shall have the
meanings set forth in the Escrow Agreement.




 




3.             This
Amendment may be executed in several counterparts and delivered by facsimile or
email transmission, each of which shall be deemed an original, but which
counterparts shall together constitute one and the same Amendment.




 




[THE NEXT PAGE IS THE
SIGNATURE PAGE.]




 

















 




IN WITNESS
WHEREOF, the Parties have executed this First Amendment to STI Closing Shares
Escrow Agreement as of the date first set forth above.




 


 




	
   

  	
  Consonus
  Technologies, Inc.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michael G. Shook

  	
   

  
	
   

  	
   

  	
  Michael G. Shook, CEO

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Strategic Technologies, Inc.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michael G. Shook

  	
   

  
	
   

  	
   

  	
  Michael G.
  Shook, CEO

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  STI Holders’
  Agent:

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Irvin J. Miglietta

  	
   

  
	
   

  	
   

  	
  Irvin J.
  Miglietta

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Wyrick
  Robbins Yates & Ponton LLP

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Lisa D. Inman

  	
   

  
	
   

  	
   

  	
  Lisa D.
  Inman, Partner