EXHIBIT 1.2
ESCROW AGREEMENT
Amerigon, Inc., a California corporation ("Issuer"), California Bank and
Trust ("Escrow Agent")and, Xxxx Capital Partners, Inc. ("Placement Agent"),
mutually agree as follows:
1. Purpose. The purpose of this Agreement is to provide an arrangement
that will ensure that proceeds from the sale of the Issuer's Class A Common
Stock Shares (the "Common Shares")under its offering pursuant to Regulation D
under the Rules and Regulations of the Securities Act of 1933, as amended (the
"Offering"), will not be disbursed until at least the Escrow Amount (as defined
below)has been received from the sale of the Common Shares and is available to
the Issuer, and if such amount has not been received by the date specified
below, that such funds as have been received for the Common Shares will be
returned to the proposed purchasers and the conditional securities transactions
terminated.
2. Escrow Amount. The minimum amount which must be deposited with the
Escrow Agent before any delivery to the Issuer and the Placement Agent of
proceeds from the sale of the Common Shares shall be $25,000 and is called the
"Escrow Amount." Additional amounts above the Escrow Amount shall also be
disbursed in accordance with Section 11.
3. Appointment. The Issuer hereby appoints the Escrow Agent to serve as
Escrow Agent for the purposes set forth herein and the Escrow Agent hereby
accepts the appointment. The Placement Agent hereby agrees to such appointment.
4. Delivery of Proceeds. The Placement Agent shall promptly deliver, or
cause to be wired or deposited, by noon of the business day following receipt,
to the Escrow Agent in accordance with Rule 15c2-4 under the Securities Exchange
Act of 1934, as amended, all proceeds from the sale of the Issuer's Common
Shares under the Offering. In no event shall the Escrow Agent accept delivery of
any proceeds, whether from the Placement Agent or any other person or entity,
after the Escrow Agent has been notified by the Issuer or the Placement Agent to
stop accepting delivery of proceeds.
5. Check Collection Procedure; Rejected Purchasers. The Escrow Agent is
hereby authorized to forward any and all checks received for collection and,
upon collection of proceeds of each such check, deposit the collected proceeds
in the Escrow Account. "Collection" shall mean the normal process by which a
bank clears checks and collects funds thereon.
Any check returned unpaid to the Escrow Agent shall be held by the Escrow
Agent pending instructions from the Issuer and the Placement Agent. In such
cases, the Escrow Agent will promptly notify the Issuer and the Placement Agent
of such return. Prior to disbursement of proceeds under Section 11, Escrow Agent
shall charge back any returned item against the escrow account (defined below).
If the Issuer or Placement Agent rejects any or all offers to purchase
shares of the Common Shares and delivers written instruction of such rejection
to the Escrow Agent, (i)if the Escrow Agent has already received such funds by
wire transfer or collected a proposed purchaser's funds, the Escrow Agent shall
promptly issue a refund check to each rejected proposed purchaser in an amount
equal to such rejected proposed purchaser's deposit, without interest thereon,
(ii) if the Escrow Agent has not yet collected funds but has submitted a
rejected proposed purchaser's check for
collection, the Escrow Agent shall promptly issue a check in the amount of the
proposed purchaser's check to the rejected proposed purchaser after clearance of
such funds, and (iii)if the Escrow Agent has not yet submitted a rejected
proposed purchaser's check for collection, the Escrow Agent shall promptly remit
the rejected proposed purchaser's check directly to the rejected proposed
purchaser. The Placement Agent must supply information to the Escrow Agent, in
accordance with Section 12 sufficient for the Escrow Agent to perform its duties
here under.
6. Separate Account. All moneys delivered to or collected by the Escrow
Agent pursuant to this Agreement shall be deposited immediately by the Escrow
Agent in a separate interest bearing account designated substantially as
follows: "Amerigon, Inc. Escrow Account" (hereinafter sometimes referred to as
"Escrow Account"). The Escrow Agent will provide its standard account statements
to the Issuer and Placement Agent at terms mutually acceptable to all parties.
7. Nature of Escrow Account. The Escrow account will be an interest
bearing deposit account.
8. Inspection. The parties agree that all records relating to
transactions made pursuant to this Agreement and the Escrow Account shall be
available, at all reasonable times, for inspection, examination and reproduction
by the securities authorities in any state in which this Offering is registered,
such person's delegate or representative, or any party hereto, or any
representative of any of the parties hereto, and such persons are authorized to
examine and audit the Escrow Account pursuant hereto and the Escrow Agent hereby
is expressly authorized and directed to permit such examination and audit.
9. Ownership of Fund. Until the Escrow Amount is disbursed as provided
in paragraph 11 hereof, all amounts deposited in the Escrow Account shall be
considered the property of the various proposed purchasers of the Common Shares
proportioned to the amount contributed by each proposed purchaser; provided,
however, that no purchaser shall have the right to withdraw, revoke or rescind
its deposit without the prior written consent of the Issuer and the Placement
Agent. The proceeds from the sale of such shares of Common Shares pursuant to
the Offering shall not become the property or assets of the Issuer or Placement
Agent, nor subject to their debts or obligations, unless and until the Escrow
Amount has been disbursed to them.
10. Term. If the Escrow Amount is not deposited and collected on or
before September 1, 2000, (which period may be extended for periods in the
aggregate not to exceed an additional 60 days upon mutual written consent of the
Issuer and the Placement Agent), the Escrow Agent shall comply with instructions
from each proposed purchaser for the return to such proposed purchaser of the
amount of money paid and deposited by such proposed purchaser into the Escrow
Account, without interest thereon, and the disbursement shall be the property of
such purchaser, free and clear of any and all claims of the parties hereto
(other than returned check claims, if any, by the Escrow Agent)or of any of
their creditors. At such time as the Escrow Amount and any additional funds
deposited are either disbursed in accordance with paragraph 11 hereof or
returned to the purchasers, the Escrow Agent shall be completely discharged and
released of any and all further liabilities and obligations hereunder.
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11. Disbursement of Funds. After the Escrow Amount has been deposited and
collected by the Escrow Agent, and after the conditions set forth in the last
sentence of this paragraph 11 have been satisfied, the Escrow Agent shall
promptly distribute, in immediately available funds, any funds and any
accumulated interest in the Escrow Account in accordance with written
instructions delivered to the Escrow Agent signed by the Issuer and the
Placement Agent. The Issuer and the Placement Agent agree that the Escrow Agent
needs no further written or other authority to distribute such funds. The Escrow
Agent shall disburse such funds by delivery of a cashier's check or by wire
transfer, as instructed by the Issuer and Placement Agent, respectively. The
Issuer and Placement Agent agree that no certificates evidencing securities
comprising the shares of Common Shares which were purchased (other than
confirmations of sale)shall be issued except simultaneously with the release of
the funds from the Escrow Account to the Issuer and Placement Agent; provided,
however, that the Escrow Agent has no duty to verify the foregoing. Funds shall
not be released by the Escrow Agent to the Issuer or Placement Agent unless
(i)the Placement Agent acknowledges in writing to the Escrow Agent that either
it or the purchasers have received, or the Placement Agent has made arrangements
satisfactory to it for it or the purchasers to receive stock certificates
evidencing the securities comprising the shares of Common Shares purchased with
the amounts deposited in the Escrow Account, (ii) the Placement Agent
acknowledges in writing to the Escrow Agent that each purchaser has entered into
a subscription agreement acceptable to the Placement Agent and Issuer and
(iii) the Placement Agent has received a certificate signed as of the date of
each closing by the executive officers of the Company named therein in a form
reasonable acceptable to the Placement Agent.
12. Escrow Agent's Responsibility. The parties agree to provide to the
Escrow Agent all information necessary to facilitate the administration of this
Agreement and the Escrow Agent may rely upon any representation so made. Nothing
contained in this Agreement shall constitute the Escrow Agent as trustee for any
party hereto or impose on the Escrow Agent any duties or obligations other than
those for which there is an express provision herein. Except as provided herein,
the Escrow Agent shall have no responsibility or liability for delivery of the
Escrow Amount. For all purposes connected herewith the Escrow Agent shall be
entitled to assume that the parties hereto are exclusively entitled to their
share of the Escrow Amount in accordance with this Agreement and are fully
authorized and empowered, without affecting the rights of any third parties,
to appoint the Escrow Agent as the Escrow Agent in accordance with the terms and
provisions hereof. The Escrow Agent shall be obliged to render statements of
account only with respect to the Escrow Amount deposited to the parties referred
to herein and the Escrow Agent shall not be under any obligation to render any
statements of account to any third parties unless the Escrow Agent so consents
in writing. The Issuer will not make any reference to California Bank and Trust
in connection with the Offering except with respect to its role as Escrow Agent
hereunder; and in no event will the Issuer state or imply that Escrow Agent has
investigated or endorsed the Offering in any manner whatsoever.
13. Limitations on Liability. It is understood that the Escrow Agent shall
incur no liability, except for acts of gross negligence or willful misconduct,
and be under no obligation to take any steps or action to assure that any funds
are actually received by the Escrow Agent. None of the provisions hereof shall
be construed so as to require the Escrow Agent to expend or risk any of its own
funds or otherwise incur any liability in the performance of it duties under
this Agreement and it shall be under no obligation to make any payment before
all times for returns have expired and except out of the funds received, after
deduction of its fees and expenses. The Escrow Agent shall
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incur no liability if it becomes illegal or impossible to carry out any of the
provisions herein. The Escrow Agent shall not be required to take or be bound by
notice of default of any person, or to take any action with respect to such
default involving any expense or liability, unless written notice of such
default is given to the Escrow Agent by the undersigned or any of them, and
unless the Escrow Agent is indemnified in a manner satisfactory to it against
such expense or liability. The Escrow Agent shall not be liable to any party
hereto in acting upon any written notice, request, waiver, consent, receipt or
other paper or document believed by the Escrow Agent to be signed by the proper
party or parties. The Escrow Agent will be entitled to treat as genuine and as
the document it purports to be any letter, paper, telex or other document
furnished or caused to be furnished to the Escrow Agent. The Escrow Agent shall
have no liability with respect to any good faith action taken or allowed by it
hereunder, except for acts of gross negligence or willful misconduct. The Escrow
Agent shall not be liable for any error or judgment or for any act done or step
taken or omitted by it in good faith or for any mistake or fact or law, except
for acts of gross negligence or willful misconduct, or for anything which it may
do or refrain from doing in connection herewith, and the Escrow Agent shall have
no duties to anyone except those signing this Agreement. The Escrow Agent may
consult with legal counsel in the event of any dispute or questions as the
interpretation or construction of this Agreement or the Escrow Agent's duties
hereunder. In addition, the Escrow Agent shall incur no liability and shall be
fully protected in acting in accordance with the opinion and instructions of
counsel, except for acts of gross negligence or willful misconduct. In the event
of any disagreement between the undersigned or any person or persons named in
this Agreement, and any other person, resulting in adverse claims and demands
being made in connection with or for any money involved herein or effected
hereby, the Escrow Agent shall be entitled at its option to refuse to comply
with any such claims or demands, so long as such disagreement shall continue,
and in so doing the Escrow Agent shall not be or become liable for damages or
interest to the undersigned or any of them, or to any person named in this
Agreement, for its refusal to comply with such conflicting or adverse demands;
and the Escrow Agent shall be entitled to continue so to refrain and refrain and
refuse so to act until (i) the rights of the adverse claimants have been finally
adjudicated in a court or by arbitration as set forth below assuming and having
jurisdiction of the parties and the money involved herein and affected hereby;
or (ii) all differences have been adjudicated by agreement and the Escrow Agent
has been notified thereof in writing by all of the persons interested.
14. Resignation of the Escrow Agent. The Escrow Agent reserves the right
to resign as the Escrow Agent at any time by giving thirty (30) business days
written notice thereof to all parties at the last known address. Upon notice or
resignation by the Escrow Agent, the undersigned agree that the Escrow Agent may
deliver the deposited funds, upon payment in full of all fees due the Escrow
Agent to such replacement Escrow Agent. If no notice is promptly received from
the undersigned and the replacement Escrow Agent, the Escrow Agent may petition
any court of competent jurisdiction for disposition of the assets and the Escrow
Agent shall thereby be released from any and all responsibility and liability to
the parties hereto.
15. Governing Law and Captions. This Agreement shall be governed and
interpreted by the laws of the State of California. The captions in this
Agreement are included for convenience of reference only and in no way define or
limit any of the provisions hereof or otherwise affect the construction or
effect of this Agreement.
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16. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
17. Amendments, Modifications, etc. This Agreement may be amended,
modified, superseded or canceled only by a written instrument executed by the
Issuer and the Placement Agent and consented to in writing by the Escrow Agent.
Any of the terms and conditions hereof may be waived only by a written
instrument executed by the party waiving compliance therewith. The failure of
any party at any time or times to require performance of any provision hereof
shall in no manner affect such party's right at a later time to enforce the
same. No waiver by any party of any condition, or of the breach of any terms,
of this Agreement, whether by conduct or otherwise, in any one or more instances
shall be deemed to be or construed as a further or continuing waiver of any such
condition or breach or a waiver of any other condition or breach of any other
term of this Agreement.
18. Notices. All notices hereunder shall be made in writing to the
parties at the addresses listed below or at such other address as shall be given
by mail with postage paid and certified or registered or by facsimile or
personal delivery to the respective parties and three (3) days following the
date of such mailing or the date of such facsimile or personal delivery, shall
be deemed the date of the giving of such notice.
AMERIGON, INC.
0000 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxxx, President and CEO
Facsimile: (000)000-0000
CALIFORNIA BANK AND TRUST
0000 Xxxxxxx Xxxx Xxxx
Xxx Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxx, Vice President &Regional Sales Manager
Facsimile: (000)000-0000
XXXX CAPITAL PARTNERS, INC.
00 Xxxxxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx, Principal
Facsimile: (000)000-0000
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Dated:
AMERIGON, INC.
(Issuer)
By: Xxxx Xxxxxxxx, President and CEO
_________________________________________
(Signature)
CALIFORNIA BANK AND TRUST
(Escrow Agent)
By: Xxxxx Xxxxxxxx, Vice President &
Regional Sales Manager
_________________________________________
(Signature)
XXXX CAPITAL PARTNERS, INC.
(Placement Agent)
By: Xxxxxxx X. Xxxxxx, Principal
_________________________________________
(Signature)
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