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Exhibit 10.2
ESCROW AGREEMENT dated as
of the ______ day of
__________, 1997 (the
"Agreement") by and between
XXXXX XXXXX CAPITAL GROUP,
INC., a Florida corporation
(the "Company"), COMMUNITY
INVESTMENT SERVICES, INC.,
a Florida corporation (the
"Underwriter"), and
FIDUCIARY TRUST
INTERNATIONAL OF THE SOUTH
(the "Escrow Agent").
ESCROW AGREEMENT
The Company has entered into an Underwriting Agreement dated August
____, 1997 (the "Underwriting Agreement") with the Underwriter, wherein the
Underwriter has agreed to use its best efforts to find purchasers for up to
1,100,000 shares of Common Stock, par value $.0001 per share (the "Minimum
Offering") within a period of ninety (90) days from the date of the Prospectus
(as hereinafter defined), subject to an extension at the discretion of the
Underwriters and by mutual written agreement between the Company and the
Underwriters for an additional period of sixty (60) days (the "Offering
Period"), with an additional 250,000 shares of Common Stock available to be
offered during the Offering Period (the "Maximum Offering") on a "best efforts"
basis if the Minimum Offering is sold, all as more fully described in the
Company's definitive Prospectus dated August ___, 1997 (the "Prospectus")
comprising part of the Company's Registration Statement on Form SB-2 under the
Securities Act of 1933, as amended (File No. 333-31001), declared effective on
August ___, 1997 (the "Registration Statement").
The Company and the Underwriter each desires that the Escrow Agent
accept the proceeds of the Offering as deposited from time to time by the
Underwriter (the "Offering Proceeds"), to be held in escrow and disbursed as
hereinafter provided.
NOW, THEREFORE, in consideration of the premises and mutual covenants
hereinafter set forth, the parties hereto agree as follows:
1. APPOINTMENT OF ESCROW AGENT. The Company and the Underwriter each
hereby appoint the Escrow Agent to act in accordance with and subject to the
terms of this Agreement, and the Escrow Agent hereby accepts such appointment
and agrees to act in accordance with and subject to such terms.
2. ESTABLISHMENT OF ESCROW ACCOUNT. The Escrow Agent shall open an
escrow account (the "Offering Escrow Account") for the deposit of the Offering
Proceeds, subject to the terms and conditions of this Agreement.
3. DEPOSIT OF OFFERING PROCEEDS. From time to time during the Offering
Period, the Escrow Agent shall receive by wire transfer initiated by the
Underwriter or others acting on its behalf, portions of the Offering Proceeds.
The Escrow Agent shall credit all such amounts to the Offering Escrow Account.
The Underwriter shall, concurrently with depositing such funds with the Escrow
Agent, deliver to the Escrow Agent a list (the "Subscribers' List") indicating
the name, mailing address and payment amount attributable to each subscriber in
the Minimum Offering (a "Subscriber").
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4. DISBURSEMENT OF THE ESCROW ACCOUNT. Upon the earlier of (i) written
notification by the Company and the Underwriter to the Escrow Agent that the
Minimum Offering has been consummated; or (ii) written notification from the
Company and the Underwriter to the Escrow Agent that the Minimum Offering has
been terminated; or (iii) written notification from the Company and the
Underwriter to the Escrow Agent to deliver the Offering Proceeds to another
escrow agent in accordance with Paragraph 5.6 hereof, then, in such event, the
Escrow Agent shall disburse the Offering Escrow Account in each case pursuant to
the instructions provided by the Company and the Underwriters in their written
notice to the Escrow Agent, whereupon the Escrow Agent shall be released from
further liability hereunder. In the event the Offering Period shall expire and
the Minimum Offering has not been consummated, upon written notice by the
Company and the Underwriter to the Escrow Agent that the Offering Period has
expired, the Escrow Agent shall not later than two (2) business days following
the Escrow Agent's receipt of such notice, remit to the Underwriter and any
entity acting on behalf of the Underwriter which deposited Offering Proceeds
into the Offering Escrow Account, by wire transfer of immediately available
funds, that portion of the Offering Proceeds which such entity deposited therein
and shall, concurrently therewith transmit a written notice to each Subscriber
to the address indicated on the Subscribers' List that the Offering Period has
expired and that the amount of the Offering Proceeds contributed by such
Subscriber has been remitted to the Underwriter, or to the entity which acted on
the Underwriter's behalf, as the case may be.
5. ESCROW AGENT.
5.1 The Escrow Agent may act in reliance upon any writing or
instrument or signature which it, in good faith, believes to be genuine; may
assume the validity and accuracy of any statements or assertions contained in
such writing or instrument; and may assume that any person purporting to give
any writing, notice, advice or instruction in connection with the provisions
hereof has been duly authorized to do so. The Escrow Agent shall not be liable
in any manner for the sufficiency or correctness as to form, manner of
execution, or validity of any written instructions delivered to it; nor as to
the identity, authority, or rights of any person executing the same. The duties
of the Escrow Agent shall be limited to the safekeeping of the Offering Escrow
Account and to disbursements of same in accordance with the provisions hereof.
The Escrow Agent undertakes to perform only such duties as are expressly set
forth herein, and no implied duties or obligations of the Escrow Agent shall be
implied by virtue of this Agreement.
5.2 The Escrow Agent may consult with counsel of its own choice
and shall have full and complete authorization and protection for any action
taken or suffered by it hereunder in good faith and in accordance with the
opinion of such counsel. The Escrow Agent shall not be liable for any mistakes
of fact or error of judgment, or for any acts or omissions of any kind unless
caused by its willful misconduct or gross negligence.
5.3 The Escrow Agent shall be indemnified and held harmless by the
Company from and against any reasonable expenses, including counsel fees and
disbursements, or loss suffered by the Escrow Agent in connection with any third
party action, suit or other proceeding involving any claim, or in connection
with any claim or demand, which in any way directly or indirectly arises out of
or relates to this Agreement, the services of the Escrow Agent hereunder, the
monies or other property held by it hereunder or any such expense or loss.
Promptly after the receipt by the Escrow
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Agent of notice of any demand or claim or the commencement of any action, suit
or proceeding, the Escrow Agent shall, if a claim in respect thereof shall be
made against the other parties hereto, notify such parties thereof in writing;
but the failure by the Escrow Agent to give such notice shall not relieve any
party from any liability which such party may have to the Escrow Agent
hereunder. In the event of the receipt of such notice, the Escrow Agent, in its
sole discretion, may commence an action in the nature of interpleader in an
appropriate court to determine ownership or disposition of the Offering Escrow
Account or it may deposit the Offering Escrow Account with the clerk of any
appropriate court or it may retain the Offering Escrow Account pending receipt
of a final, non-appealable order of a court having jurisdiction over all of the
parties hereto directing to whom and under what circumstances the Escrow Account
is to be disbursed and delivered.
5.4 During the term hereof, the Escrow Agent shall hold the
Offering Proceeds in a non-interest bearing account maintained by the Escrow
Agent for the benefit of the Company collateralized by the direct obligations of
the U.S. Government or agencies thereof.
5.5 From time to time on and after the date hereof, the Company
and the Underwriter shall each deliver or cause to be delivered to the Escrow
Agent such further documents and instruments and shall do or cause to be done
such further acts as the Escrow Agent shall reasonably request (it being
understood that the Escrow Agent shall have no obligation to make such request)
to carry out more effectively the provisions and purposes of this Agreement, to
evidence compliance herewith or to assure itself that it is protected in acting
hereunder.
5.6 The Escrow Agent may resign at any time and be discharged from
its duties as Escrow Agent hereunder by its giving the other parties hereto at
least thirty (30) days prior written notice thereof. As soon as practicable
after its resignation, the Escrow Agent shall turn over to a successor escrow
agent appointed by the other parties hereto, jointly, all monies and property
held hereunder upon presentation of the document appointing the new escrow agent
and its acceptance thereof. If no new escrow agent is so appointed within the
sixty (60) day period following the giving of such notice of resignation, the
Escrow Agent may deposit the Offering Escrow Account with any court it deems
appropriate.
5.7 The Escrow Agent shall resign and be discharged from its
duties as Escrow Agent hereunder if so requested in writing at anytime by the
Company and the Underwriter, jointly, provided, however, that such resignation
shall become effective only upon acceptance of appointment by a successor escrow
agent as provided in paragraph 5.6.
5.8 Notwithstanding anything herein to the contrary, the Escrow
Agent shall not be relieved from liability hereunder for its own gross
negligence or its own willful misconduct.
6. MISCELLANEOUS.
6.1 This Agreement shall for all purposes be deemed to be made
under and shall be construed in accordance with the laws of the State of Florida
without giving effect to its choice-of-laws principles. This Agreement shall be
subject to the exclusive jurisdiction of the courts of Dade County, Florida. The
parties to this Agreement agree that any breach of any term or condition of this
Agreement shall be deemed to be a breach occurring in the State of Florida by
virtue of a
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failure to perform an act required to be performed in the State of Florida and
irrevocably and expressly agree to submit to the jurisdiction of the courts of
the State of Florida for the purpose of resolving any disputes among the parties
relating to this Agreement or the transactions contemplated hereby. The parties
irrevocably waive, to the fullest extent permitted by law, any objection which
they may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement, or any judgment entered
by any court in respect hereof brought in the State of Florida, and further
irrevocably waive any claim that any suit, action or proceeding brought in Dade
County, Florida has been brought in an inconvenient forum.
6.2 This Agreement contains the entire agreement of the parties
hereto with respect to the subject matter hereof and, except as expressly
provided herein, may not be changed or modified except by an instrument in
writing signed by the party to be charged.
6.3 The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation
thereof.
6.4 This Agreement shall be binding upon and inure to the benefit
of the respective parties hereto and their legal representatives, successors and
assigns.
6.5 Any notice or other communication required or which may be
given hereunder shall be in writing and either be delivered personally or be
mailed, certified or registered mail, return receipt requested, postage prepaid,
and shall be deemed given when so delivered personally or, if mailed, two (2)
days after the date of mailing, as follows:
If to the Company, to:
Xxxxx Xxxxx Capital Group, Inc.
000 Xxxxx Xxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxx, President
With a copy to:
Xxxxxxx Xxxxxx Xxxxxx Xxxxxxxx
Xxxxxxxx & Xxxxxxxxx, P.A.
000 Xxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
If to the Underwriter, to:
Community Investment Services, Inc.
00000 X.X. 000xx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, Xx., President
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With a copy to:
Xxxx X. Xxxxxx, Esq.
Xxxxx & Fraade, P.C.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
and
Xxxxxx X. Xxxxx, Esq.
000 Xxxxxxxx Xxx, Xxxxx 000
Xxxxx Xxxxxx, Xxxxxxx 00000
and if to the Escrow Agent, to:
Fiduciary Trust International of the South
000 X.X. 0xx Xxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxx, Chief Financial Officer
The parties may change the persons and addresses to which the notices or other
communications are to be sent by giving written notice of any such change in the
manner provided herein for giving notice.
6.6 This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original but all of which together shall
constitute one and the same instrument.
6.7 Nothing contained in this Agreement is intended or shall be
construed to give any person, corporation or other entity, other than the
parties hereto and their respective successors and permitted assigns, any legal,
equitable right, remedy or claim under or in respect to this Agreement or any
provision herein contained, this Agreement being intended to be and being for
the sole and exclusive benefit of the parties hereto and their respective
successors and permitted assigns.
WITNESS the execution of this Agreement as of the date first above
written.
XXXXX XXXXX CAPITAL GROUP, INC.
Attest: By:
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Xxxxxx X. Xxxxxx, Secretary Xxxx X. Xxxxx, President
COMMUNITY INVESTMENT SERVICES, INC.
Attest: By:
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Xxxxxxx X. Xxxxx, Xx., President
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This Escrow Agreement is accepted as of the ___ day of ___________, 1997.
FIDUCIARY TRUST INTERNATIONAL
OF THE SOUTH
By:
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Authorized Representative
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