EXHIBIT 10.07
KEY BANK NATIONAL ASSOCIATION
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (the "Agreement") is made and executed this
______ day of ______________________, 2001, by and among EASYLINK INFORMATION
TECHNOLOGY CO., LTD. (the "Company"), whose address is 300 4F-3, Xx. 0, Xxxx 00
Xxxxxxx Xxxx, Xxxx Xxx, Xxxxxx, Xxxxxxxx of China, CORPORATE STOCK TRANSFER,
INC., a Colorado corporation ("CST"), whose address is 0000 Xxxxxx Xxxxx Xxxxx
Xxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000 (collectively, the "Depositors"), KEY
BANK NATIONAL ASSOCIATION, Cherry Creek Branch ("Escrow Holder"), whose address
is 0000 Xxxx Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxx 00000, Attention: Xxxxxx Xxxxxx
(facsimile number 303-329-5325) and XXXXXXX XXXXXXX, INC. (the "Underwriter").
1. Deposits. Depositors shall deposit with Escrow Holder the funds
described below (the "Funds"), which Funds shall be held and disbursed in
accordance with and subject to the terms and conditions of this Agreement. Such
Funds will be generated by the sale of shares of the Company's common stock to
subscribers pursuant to the Registration Statement on Form F-1 declared
effective by the Securities and Exchange Commission on _______________, 2002, a
copy of which has been delivered to Escrow Holder (the "Offering"). Escrow
Holder will hold all Funds in an escrow account ("Escrow Account") free from any
lien, claim or offset until the conditions set forth in this Agreement have been
fully satisfied.
2. Delivery of Funds. The Underwriter shall forward to the Escrow
Holder all Funds received by it for shares sold in the Offering, by noon of the
next business day following receipt of the Funds by the Underwriter. The Escrow
Holder shall be provided the name and address of each subscriber and amounts to
be deposited into the escrow by CST. CST shall also confirm that all subscribers
have been accepted.
3. Disbursements. The Funds are to be disbursed by Escrow Holder as
follows:
The Escrow Account will remain open until receipt by the Escrow Holder
of Funds totaling a minimum of $5,000,000 at which time Escrow Holder shall
provide written notice to all parties to this Agreement that such $5,000,000 has
been deposited and Escrow Holder shall deliver the $5,000,000 to the Company
after payment of commissions to the Underwriter and payment of legal fees due to
the Company's counsel.
Following receipt of the $5,000,000, the Escrow Account may remain open
until the close of the selling period set forth in the Registration Statement,
which is _________________, 2002. In such event the Escrow Holder will continue
to disburse Funds received to the Company and the Underwriter on a weekly basis.
4. Automatic Termination of Escrow. If at least $5,000,000 has not been
deposited in the Escrow Account by __________________ , 2002, then Escrow Holder
shall return all Funds to the subscribers without deduction or interest. The
Company shall pay a fee of $10 per check for all Funds returned to the
subscribers.
Upon mailing Funds to the proper persons or entities pursuant to this
paragraph 4, Escrow Holder shall be relieved of and released from any and all
further obligations, duties and liability pursuant to this Agreement, and,
subject to the survival of paragraph 9 below, this Agreement immediately shall
terminate and shall be of no further force and effect.
5. Notices. Any notice required or desired to be given to any party to
this Agreement may be given either by personal delivery, or by telegram, by
facsimile transmission, or by certified mail, return receipt requested, postage
prepaid; provided, however, any notice given by facsimile transmission, to be
effective, shall be followed by delivery of same by personal delivery or by
certified mail, return receipt requested. All such notices shall be sent to a
party at its address noted above, and such notice shall for all purposes be as
effectual as though served upon such party in person at the time of personal
delivery, or on the date of receipt in the case of transmission by telegram, or
on the date of receipt of the original, in the case of transmission by
facsimile, or two business days after the date of deposit in the U.S. mail, as
applicable.
6. Limitations on Duties. Escrow Holder shall hold and disburse the
Funds in accordance with the terms and conditions of this Agreement. If at any
time in the performance of its duties as set forth in this Agreement it is
necessary for Escrow Holder to receive, accept or act upon any notice or writing
purported to have been executed or issued by or on behalf of any of the parties
hereto, it shall not be necessary for Escrow Holder to ascertain whether or not
the person or persons who have executed, signed or otherwise issued or
authenticated the writing had the authority to so execute, sign or otherwise
issue or authenticate said writing, or that they are the same persons named
therein or otherwise to pass upon any requirements of such instruments that may
be essential for their validity. Further, Escrow Holder shall have no
responsibility or liability for the sufficiency or correctness as to form,
manner, execution or validity of any instrument deposited or delivered pursuant
to this Agreement, nor as to the truth or accuracy of any information contained
therein, nor as to the identity, authority, capacity or rights of any person
executing the same, nor for the failure to comply with the provisions,
requirements or conditions of any agreement, contract or other instrument
deposited with or delivered to Escrow Holder or referred to herein. Rather, the
duties of Escrow Holder pursuant to this Agreement in all events shall be
limited to the safekeeping of the Funds, documents and other items actually
received by Escrow Holder and the disposition of same in accordance with the
instructions set forth above.
7. No Liability for Actions Taken in Good Faith. Escrow Holder shall
not be personally liable for any act it may do or omit to do hereunder while
acting in good faith and in the exercise of its own subjective best judgment,
and any act done or omitted by it pursuant to the advice of its own attorney
shall be conclusive evidence of such good faith and best judgment.
8. Notices and Warnings. Escrow Holder is hereby expressly authorized
and directed to disregard any and all warnings or notices given by any of the
parties hereto, or by any other person or entity, except as otherwise expressly
set forth in this Agreement and except for orders or process of court, and
Escrow Holder is expressly authorized to comply with and obey any and all
orders, judgments or decree of any court. Escrow Holder shall not be liable to
any of the parties hereto or to any other person or entity by reason of
compliance with any order, judgment or decree of any court, even if such order,
judgment or decree is reversed, modified, annulled, set aside or vacated, or is
found to have been entered without jurisdiction.
9. Indemnity. In consideration of the acceptance of this escrow by
Escrow Holder, the Company covenants and agrees to pay Escrow Holder its
charges, costs and expense hereunder and to indemnify and hold Escrow Holder
harmless as to any liability by it incurred to any person or entity by reason of
its having accepted the same, or in connection with any performance by Escrow
Holder in its capacity as the escrow holder pursuant to this Agreement. Further,
the Company covenants and agrees to reimburse Escrow Holder for all costs and
expenses, including, among other things, counsel fees and court costs incurred
in connection with this Agreement and/or the deposited Funds. In case of any
suit, proceeding, cause of action, demand or other claim to which Escrow Holder
is or at any time may be a party, the Company agrees to pay, promptly upon
Escrow Holder's demand, any and all costs and expenses, including
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without limit attorneys' fees, incurred by Escrow Holder in connection with
same. Notwithstanding any contrary provision of this Agreement, the provisions
of this paragraph 9 shall survive the expiration and/or termination of this
Agreement.
10. Interpleader. If at any time a dispute shall exist as to the duty
of Escrow Holder under the terms of this Agreement, or if at any time
conflicting demands are served upon Escrow Holder, whether verbally or in
writing, concerning the possession of, title to or proceeds of any or all of the
Funds, or if any dispute arises between or among the parties and/or any other
person or entity relating in any way to any item deposited, held or disbursed
pursuant to or otherwise relating to this Agreement, Escrow Holder may deposit
this Agreement and the items then or thereafter held by it pursuant to this
Agreement with the Clerk of the District Court of the City and County of Denver,
State of Colorado, and may interplead the parties hereto. Upon so depositing
this Agreement and such items and filing its complaint in interpleader, Escrow
Holder shall be relieved of and released from all liability under the terms
hereof as to the items so deposited. If the Court does not provide for
reimbursement to Escrow Holder for its attorney fees, costs and expenses related
to the interpleader action out of the interplead Funds, then Escrow Holder shall
have a claim enforceable by separate action in Court against the parties,
jointly and severally, for said attorney fees, costs and expenses.
11. FDIC Insurance. In consideration of the fee paid to Escrow Holder
as set forth in this Agreement and the covenants and agreements of the parties
as set forth above, Escrow Holder agrees to hold the Funds in accordance and
subject to the terms of this Agreement. During the escrow period, the Funds will
be deposited in an FDIC-insured depository (which depository may be Escrow
Holder or any other bank owned or controlled by Key Corp.). Under no
circumstances shall Escrow Holder have liability for loss of Funds due to bank,
savings and loan association or other depository failure, suspension or
cessation of business, or any action or inaction on the part of the bank,
savings and loan association or other depositor, or any delivery service
transporting Funds to and from such depository.
12. Successors; No Third Party Rights. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective heirs,
personal representatives, successors and assigns. This Agreement is only for the
benefit of the parties hereto and their respective heirs, personal
representatives, successors and assigns, and no other person or entity shall be
entitled to rely on, receive any benefit from or to enforce against any party
hereto any provisions of this Agreement.
13. Applicable Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of Colorado.
14. Entire Agreement; Waiver. This Agreement constitutes the entire
understanding between the parties with respect to the escrow arrangement
contemplated herein, and all prior or contemporaneous oral agreements,
understandings, discussions, representations and statements relating to said
escrow are superseded by this Agreement. The waiver of any particular condition
precedent, provision or remedy provided by this Agreement shall not constitute
the waiver of any other.
15. Business Day. If any date herein set forth for the performance of
any obligation by Escrow Holder or for the delivery of any Funds, instrument or
notice as herein provided, is a Saturday, Sunday or legal holiday, the
compliance with such obligation or delivery shall be deemed acceptable if
effected on the next business day following such Saturday, Sunday or legal
holiday. As used herein, the term "legal holiday" means any state or federal
holiday for which financial institutions or post offices are generally closed in
the State of Colorado for observance thereof.
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16. Construction. This Agreement shall not be construed more strictly
against one party than against any other merely by virtue of the fact that it
may have been prepared by counsel for one of the parties, it being recognized
that all parties have contributed substantially and materially to the
preparation of this Agreement. The headings of various paragraphs in this
Agreement are for convenience only and are not to be utilized in construing the
content or meaning of the substantive provisions hereof.
17. Time is of the Essence. All times, wherever specified herein, are
of the essence of this Agreement.
18. Validity. If any term or provision of this Agreement shall be held
illegal and unenforceable or inoperative as a matter of law, the remaining terms
and provisions of this Agreement shall not be affected thereby, but each such
term and provision shall be valid and shall remain in full force and effect.
19. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of which shall
be taken to be one and the same instrument, to the same effect as if all of the
parties hereto had signed the same signature page. Any signature page of this
Agreement may be detached from any counterpart of this Agreement without
impairing the legal effect of any signatures thereon and may be attached to
another counterpart of this Agreement identical in form hereto but having
attached to it one or more additional signature pages.
20. Escrow Fee. The parties agree that Escrow Holder's fee for its
services pursuant to this Agreement shall be $ ______________ , payable in full
by the Company upon its execution of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Escrow
Agreement on the date first above written.
ESCROW HOLDER: KEY BANK NATIONAL ASSOCIATION
By:
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Name:
Its:
THE COMPANY: EASYLINK INFORMATION TECHNOLOGY CO., LTD.
By:
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Xxxx, Xx-Lung, Chief Executive Officer
CST: CORPORATE STOCK TRANSFER INC.
By:
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Xxxxxxx X. Xxxx, President
THE UNDERWRITER: XXXXXXX XXXXXXX, INC.
By:
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Xxxxxx Xxxxx, President
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