1
EXHIBIT 1.2
ESCROW AGREEMENT (PUBLIC OFFERING)
----------------------------------
AGREEMENT made as of the ____ day of _______, 2001 by and between the
Issuer whose name and address appear on the Information Sheet (as defined
herein) attached to this Agreement, the Underwriter whose name and address
appear on the Information Sheet and Continental Stock Transfer & Trust Company
with an address at ▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the "Escrow
Agent").
W I T N E S S E T H:
--------------------
WHEREAS, the Underwriter proposes to offer the Securities, as agent for
the Issuer, for sale pursuant to Form SB-2 Registration Statement (File No.
33346544), on a "best efforts, all or none" basis with respect to the Minimum
Securities Amount and Minimum Dollar Amount and at the price per share all as
set forth on the Information Sheet;
WHEREAS, the Issuer proposes to establish with the Escrow Agent an
escrow account (the "Escrow Account"), to which subscription monies which are
received by the Escrow Agent from the Underwriter in connection with such public
offering are to be credited, and the Escrow Agent is willing to establish the
Escrow Account on the terms and subject to the conditions hereinafter set forth;
and
WHEREAS, the Escrow Agent has an agreement with Chase Manhattan Bank or
such other bank as selected by the Escrow Agent and reasonably acceptable to the
Issuer and the Underwriter to establish a special bank account (the "Bank
Account") into which the subscription monies, which are received by the Escrow
Agent from the Underwriter and credited to the Escrow Account, are to be
deposited;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the parties hereto hereby agree as follows:
1. INFORMATION SHEET. Each capitalized term not otherwise defined in
this Agreement shall have the meaning set forth for such term on the information
sheet which is attached to this Agreement and is incorporated by reference
herein and made a part hereof (the "Information Sheet").
1
2
2. ESTABLISHMENT OF THE BANK ACCOUNT.
2.1 The Escrow Agent shall establish a non-interest-bearing
bank account at the branch of Chase Manhattan Bank or such other bank as
selected by the Escrow Agent and reasonably acceptable to the Issuer and the
Underwriter, and bearing the title set forth on the Information Sheet
(heretofore defined as the "Bank Account"). The purpose of the Bank Account is
for (a) the deposit of all subscription monies (checks, cash or wire transfers)
which are received by the Underwriter from prospective purchasers of the
Securities and are delivered by the Underwriter to the Escrow Agent, (b) the
holding of amounts of subscription monies which are collected through the
banking system, and (c) the disbursement of collected funds, all as described
herein.
2.2 The Offering Period, which shall be deemed to commence on
the date set forth in the Issuer"s Prospectus to be supplied to the Escrow Agent
and to terminate on the date set forth on the Information Sheet. The last day of
the Offering Period, or the last day of the Extension Period (if the Escrow
Agent has received written notice thereof as hereinabove provided), is referred
to herein as the "Termination Date". Except as provided in Section 4.3 hereof,
after the Termination Date, the Underwriter shall not deposit, and the Escrow
Agent shall not accept, any additional amounts representing payments by
prospective purchasers.
3. DEPOSITS TO THE BANK ACCOUNT.
3.1 The Underwriter shall promptly deliver to the Escrow Agent
all monies which it receives from prospective purchasers of the Securities,
which monies shall be in the form of checks, cash, or wire transfers. Upon the
Escrow Agent's receipt of such monies, they shall be credited to the Escrow
Account. All checks delivered to the Escrow Agent shall be made payable to
"Continental Stock Transfer & Trust Company, Escrow Agent f\b\o "Pathfinder
Business Resources, Inc." Any check payable other than to the Escrow Agent as
required hereby shall be returned to the Underwriter, by noon of the next
business day following receipt of such check by the Escrow Agent, and such check
shall be deemed not to have been delivered to the Escrow Agent pursuant to the
terms of this Agreement.
3.2 Promptly after receiving subscription monies as described
in Section 3.1, the Escrow Agent shall deposit the same into the Bank Account.
Amounts of monies so deposited are hereinafter referred to as "Escrow Amounts."
The Escrow Agent shall cause Chase Manhattan Bank to process all Escrow Amounts
for collection through the banking system. Simultaneously with each deposit to
the Escrow Account, the Underwriter shall inform the Escrow Agent in writing of
the name and address of the prospective purchaser, the amount of Securities
subscribed for by such purchaser, and the aggregate dollar amount of such
subscription (collectively the "Subscription Information").
3.3 The Escrow Agent shall not be required to accept for
credit to the Escrow Account or for deposit into the Bank Account checks which
are not accompanied
2
3
by the appropriate Subscription Information. Wire transfers and cash
representing payments by prospective purchasers shall not be deemed deposited in
the Escrow Account until the Escrow Agent has received in writing the
Subscription Information required with respect to such payments.
3.4 The Escrow Agent shall not be required to accept in the
Escrow Account any amounts representing payments by prospective purchasers,
whether by check, cash or wire, except during the Escrow Agent's regular
business hours.
3.5 Only those Escrow Amounts, which have been deposited in
the Bank Account and which have cleared the banking system and have been
collected by the Escrow Agent, are herein referred to as the "Fund."
3.6 If the proposed offering is terminated before the
Termination Date, the Escrow Agent shall refund any portion of the Fund prior to
disbursement of the Fund in accordance with Article 4 hereof upon instructions
in writing signed by the Issuer.
4. DISBURSEMENT FROM THE BANK ACCOUNT.
4.1 Subject to Section 4.3 below, if by the close of regular
banking hours on the Termination Date the Escrow Agent determines that the
amount in the Fund is less than the Minimum Dollar Amount or the Minimum
Securities Amount, as indicated by the Subscription Information submitted to the
Escrow Agent, then in either such case, the Escrow Agent shall promptly refund
to each prospective purchaser the amount of payment received from such purchaser
which is then held in the Fund or which thereafter clears the banking system,
without interest thereon or deduction therefrom, by drawing checks on the Bank
Account for the amounts of such payments and transmitting them to the
purchasers. In such event, the Escrow Agent shall promptly notify the Issuer and
the Underwriter of its distribution of the Fund.
4.2 Subject to Section 4.3 below, if at any time up to the
close of regular banking hours on the Termination Date, the Escrow Agent
determines that the amount in the Fund is at least equal to the Minimum Dollar
Amount and represents the sale of not less than the Minimum Securities Amount,
the Escrow Agent shall promptly notify the Issuer and the Underwriter of such
fact in writing. The Escrow Agent shall promptly disburse the Fund, by drawing
checks on the Bank Account in accordance with instruction in writing signed by
the Issuer and the Underwriter as to the disbursement of the Fund, promptly
after it receives such instructions. In the event that cleared funds exceed the
Minimum Dollar Amount, the Issuer may close on such excess funds when it closes
on the Minimum Dollar Amount or opt to close on such excess funds at a later
date or dates. Such closing(s) may take place by mutual agreement of the Issuer
and the Underwriter any time during or after the Offering Period, as, and if,
extended.
4.3 If the Escrow Agent or the Underwriter has on hand at the
close of business on the Termination Date any uncollected amounts which when
added to the Fund
3
4
would raise the amount in the Fund to the Minimum Dollar Amount, and result in
the Fund representing the sale of the Minimum Securities Amount, the Collection
Period (consisting of the number of business days set forth on the Information
Sheet) shall be utilized to allow such uncollected amounts to clear the banking
system. During the Collection Period, the Underwriter shall not deposit, and the
Escrow Agent shall not accept, any additional amounts; provided, however, that
such amounts as were received by the Underwriter by the close of business on the
Termination Date may be deposited with the Escrow Agent by noon of the next
business day following the Termination Date. If at the close of business on the
last day of the Collection Period an amount sufficient to raise the amount in
the Fund to the Minimum Dollar Amount and which would result in the Fund
representing the sale of the Minimum Securities Amount shall not have cleared
the banking system, the Escrow Agent shall promptly notify the Issuer and the
Underwriter in writing of such fact and shall promptly return all amounts then
in the Fund, and any amounts which thereafter clear the banking system, to the
prospective purchasers as provided in Section 4.1 hereof.
4.4 Upon disbursement of the Fund pursuant to the terms of
this Article 4, the Escrow Agent shall be relieved of all further obligations
and relieved from all liability under this Agreement. It is expressly agreed and
understood that in no event shall the aggregate amount of payments made by the
Escrow Agent exceed the amount of the Fund.
5. RIGHTS, DUTIES AND RESPONSIBILITIES OF ESCROW AGENT. It is
understood and agreed that the duties of the Escrow Agent are purely ministerial
in nature, and that:
5.1 The Escrow Agent shall notify the Underwriter and the
Issuer, on a daily basis, of the Escrow Amounts which have been deposited in the
Bank Account and of the amounts, constituting the Fund, which have cleared the
banking system and have been collected by the Escrow Agent.
5.2 The Escrow Agent shall not be responsible for or be
required to enforce any of the terms or conditions of any agreement between the
Underwriter and the Issuer nor shall the Escrow Agent be responsible for the
performance by the Underwriter or the Issuer of their respective obligations
under this Agreement.
5.3 The Escrow Agent shall not be required to accept from the
Underwriter any Subscription Information pertaining to prospective purchasers
unless such Subscription Information is accompanied by checks, cash, or wire
transfers meeting the requirements of section 3.1, nor shall the Escrow Agent be
required to keep records of any information with respect to payments deposited
by the Underwriter except as to the names, addresses and amount of such
payments; however, the Escrow Agent shall notify the Underwriter promptly of any
discrepancy between the amount set forth in any Subscription Information and the
amount delivered to the Escrow Agent therewith. Such amount need not be accepted
for deposit in the Escrow Account until such discrepancy has been resolved.
4
5
5.4 The Escrow Agent shall be under no duty or responsibility
to enforce collection of any check delivered to it hereunder. The Escrow Agent,
within a reasonable time, shall return to the Underwriter any check received
which is dishonored, together with the Subscription Information, if any, which
accompanied such check.
5.5 The Escrow Agent shall be entitled to rely upon the
accuracy, act in reliance upon the contents, and assume the genuineness of any
notice, instruction, certificate, signature, instrument or other document which
is given to the Escrow Agent pursuant to this Agreement without the necessity of
the Escrow Agent verifying the truth or accuracy thereof. The Escrow Agent shall
not be obligated to make any inquiry as to the authority, capacity, existence or
identity of any person purporting to give any such notice or instructions or to
execute any such certificate, instrument or other document.
5.6 If the Escrow Agent is uncertain as to its duties or
rights hereunder or shall receive instructions with respect to the Bank Account,
the Escrow Amounts or the Fund which, in its sole determination, are in conflict
either with other instructions received by it or with any provision of this
Agreement, it shall be entitled to hold the Escrow Amounts, the Fund, or a
portion thereof, in the Bank Account pending the resolution of such uncertainty
to the Escrow Agent's sole satisfaction, by final judgment of a court or courts
of competent jurisdiction or otherwise; or the Escrow Agent, at its sole option,
may deposit the Fund (and any other Escrow Amounts that thereafter become part
of the Fund) with the Clerk of a court of competent jurisdiction in a proceeding
to which all parties in interest are joined. Upon the deposit by the Escrow
Agent of the Fund with the Clerk of any such court, the Escrow Agent shall be
relieved of all further obligations and released from all liability hereunder.
5.7 The Escrow Agent shall not be liable for any action taken
or omitted hereunder, or for the misconduct of any employee, agent or attorney
appointed by it, except in the case of willful misconduct or gross negligence.
The Escrow Agent shall be entitled to consult with counsel of its own choosing
and shall not be liable for any action taken, suffered or omitted by it in
accordance with the advice of such counsel.
5.8 The Escrow Agent shall have no responsibility at any time
to ascertain whether or not any security interest exists in the Escrow Amounts,
the Fund or any part thereof or to file any financing statement under the
Uniform Commercial Code with respect to the Fund or any part thereof.
5.9 The Escrow Agent will only be able to invest the escrowed
funds in investments permissible under SEC Rule 15c2-4.
6. AMENDMENT; RESIGNATION. This Agreement may be altered or
amended only with the written consent of the parties hereto. The Escrow Agent
(and any successor escrow agent) at any time may be discharged from its duties
and obligations hereunder by the delivery to it of a notice of termination
signed by both the Company and the Underwriter, or at any time the Escrow Agent
may resign by giving written notice to such
5
6
effect to the Issuer and the Underwriter. Upon any such termination or
resignation, the Escrow Agent shall deliver the Escrowed Amounts or the Fund to
any successor escrow agent jointly designated by the other parties hereto in
writing, or to any court of competent jurisdiction if no such successor escrow
agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from
any and all further obligations arising in connection with this Escrow
Agreement. The termination of services or resignation of the Escrow Agent shall
take effect on the earlier of (I) the appointment of a successor (including a
court of competent jurisdiction) or (ii) the day that is 30 days after the date
of delivery: (A) to the Escrow Agent of the other parties" notice of termination
or (B) to the other parties hereto of the Escrow Agent"s written notice of
resignation. If at that time the Escrow Agent has not received a designation of
successor escrow agent, the Escrow Agent"s sole responsibility after that time
shall be to keep the Escrowed Amounts or the Fund safe until receipt of a
designation of a successor escrow agent or a joint written disposition
instruction by the other parties hereto or an enforceable order of a court of
competent jurisdiction. Without limiting the provisions of Section 8 hereof, the
resigning Escrow Agent shall be entitled to be reimbursed by the Issuer for any
expenses incurred in connection with its resignation, transfer of the Fund to a
successor escrow agent or distribution of the Fund pursuant to this Section 6.
7. REPRESENTATIONS AND WARRANTIES. The Issuer and the Underwriter
hereby individually represent and warrant to the Escrow Agent that:
7.1 No party other than the parties hereto and the prospective
purchasers have, or shall have, any lien, claim or security interest in the
Escrow Amounts or the Fund or any part thereof.
7.2 No financing statement under the Uniform Commercial Code
is on file in any jurisdiction claiming a security interest in or describing
(whether specifically or generally) the Escrow Amounts or the Fund or any part
thereof.
7.3 The Subscription Information submitted with each deposit
shall, at the time of submission and at the time of the disbursement of the
Fund, be deemed a representation and warranty that such deposit represents a
bona fide payment by the purchaser described therein for the amount of
Securities set forth in such Subscription Information.
7.4 All of the information contained in the Information Sheet
is, as of the date hereof, and will be, at the time of any disbursement of the
Fund, true and correct.
8. FEES AND EXPENSES. The Escrow Agent shall be entitled to the
Escrow Agent Fees set forth on the Information Sheet, payable as and when stated
therein. In addition, the Issuer agrees to reimburse the Escrow Agent for any
reasonable expenses incurred in connection with this Agreement, including but
not limited to, reasonable counsel fees. Upon receipt of the Minimum Dollar
Amount, the Escrow Agent shall have a lien upon the Fund to the extent of its
fees for services as Escrow Agent.
6
7
9. INDEMNIFICATION AND CONTRIBUTION.
9.1 The Issuer (referred to as the "Indemnitor") agrees to
indemnify the Escrow Agent and its officers, directors, employees, agents and
shareholders (collectively referred to as the "Indemnitees") against, and hold
them harmless of and from, any and all loss, liability, cost, damage and
expense, including without limitation, reasonable counsel fees, which the
Indemnitees may suffer or incur by reason of any action, claim or proceeding
brought against the Indemnitees arising out of or relating in any way to this
Agreement or any transaction to which this Agreement relates, unless such action
claim or proceeding is the result of the willful misconduct or gross negligence
of the Indemnitees.
9.2 If the indemnification provided for in Section 9.1 is
applicable, but for any reason is held to be unavailable, the Indemnitor shall
contribute such amounts as are just and equitable to pay, or to reimburse the
Indemnitees for, the aggregate of any and all losses, liabilities, costs,
damages and expenses, including counsel fees, actually incurred by the
Indemnitees as a result of or in connection with, and any amount paid in
settlement of, any action, claim or proceeding arising out of or relating in any
way to any actions or omissions of the Indemnitor.
9.3 The provisions of the Article 9 shall survive any
termination of this Agreement, whether by disbursement of the Fund, resignation
of the Escrow Agent or otherwise.
10. PARTICIPATING BROKER/DEALERS.
The Underwriter will notify the Escrow Agent of the names of
any participating broker/dealers other than the Underwriter and the Escrow Agent
is authorized to accept subscription payments from such broker/dealers and/or
their customers.
11. GOVERNING LAW AND ASSIGNMENT. This Agreement shall be
construed in accordance with and governed by the laws of the State of New York
and shall be binding upon the parties hereto and their respective successors and
assigns; provided, however, that any assignment or transfer by any party of its
rights under this Agreement or with respect to the Escrow Amounts or the Fund
shall be void as against the Escrow Agent unless (a) written notice thereof
shall be given to the Escrow Agent; and (b) the Escrow Agent shall have
consented in writing to such assignment or transfer, which consent shall not be
unreasonably withheld or delayed.
12. NOTICES. All notices required to be given in connection with
this Agreement shall be (a) delivered by hand or by facsimile (with confirmation
of receipt, or (b) sent by registered or certified mail, or by the Express Mail
service offered by the United States Post Office with proper postage prepaid,
and addressed as follows:
7
8
If to the Issuer, to:
Pathfinder Business Resources, Inc.
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Underwriter, to:
▇▇▇▇▇▇▇ Securities, Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax : ▇▇▇-▇▇▇-▇▇▇▇
If to the Escrow Agent, to:
Continental Stock Transfer & Trust Company
▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇: Trust Department
Phone: (212)
Fax: (212)
or to such other address as the person to whom notice is to be given may have
previously furnished to the others in the above-referenced manner. All such
notices and communications, if mailed, shall be effective, if to the
Underwriter, when deposited in the mails, if to the Issuer, five days after
deposited in the mails, and if to the Escrow Agent shall not be effective until
received. Notices of changes of address shall not be effective until received.
13. SEVERABILITY. If any provision of this Agreement or the application
thereof to any person or circumstance shall be determined to be invalid or
unenforceable, the remaining provisions of this Agreement or the application of
such provision to persons or circumstances other than those to which it is held
invalid or unenforceable shall not be affected thereby and shall be valid and
enforceable to the fullest extent permitted by law.
14. EXECUTION IN SEVERAL COUNTERPARTS. This Agreement may be executed
in several counterparts or by separate instruments, and all of such counterparts
and instruments shall constitute one agreement, binding on all of the parties
hereto.
8
9
15. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements and understandings (written or oral) of the
parties in connection therewith.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the day and year first above written.
CONTINENTAL STOCK
TRANSFER & TRUST COMPANY
PATHFINDER BUSINESS
RESOURCES, INC.
By: By:
---------------------------- --------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, President
President
▇▇▇▇▇▇▇ SECURITIES, INC.
By:
----------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, President
9
10
ESCROW AGREEMENT INFORMATION SHEET
1. THE ISSUER
Name: Pathfinder Business Resources, Inc.
Address: ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
State of incorporation or organization: New York
2. THE UNDERWRITER
Name: ▇▇▇▇▇▇▇ Securities, Inc.
Address: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
3. THE SECURITIES
Description of the Securities to be offered: Shares of Common
Stock.
Offering price per share: $2.50 per Share.
4. MINIMUM AMOUNT REQUIRED FOR DISBURSEMENT OF THE ESCROW ACCOUNT
Aggregate dollar amount which must be collected before the
Escrow Account may be disbursed to the Issuer ("Minimum Dollar
Amount") $300,000.
Total amount of securities which must be subscribed for before
the Escrow Account may be disbursed to the Issuer ("Minimum
Securities Amount"): 120,000 Shares of Common Stock.
MAXIMUM AMOUNT - The maximum number of Shares to be sold is
400,000 Shares and the maximum dollar amount is $1,000,000.
5. PLAN OF DISTRIBUTION OF THE SECURITIES
Offering Period: From the date of the Prospectus until
________, 2001
Extension Period, if any: _________, 2001 through _________,
2001
Collection Period, if any: 10 business days
6. TITLE OF BANK ACCOUNT:
Continental Stock Transfer & Trust Company, Escrow Agent
f/b/o Pathfinder Business Resources, Inc.
10
11
7. ESCROW AGENT
Continental Stock Transfer & Trust Company
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
8. ESCROW AGENT FEES
$750.00 upon execution of this Agreement and $750.00 upon the
distribution of funds at closing. All other fees will be
mutually agreed upon by the Issuer and the Escrow Agent.
9. FEDERAL I.D. NO.
▇▇-▇▇▇▇▇▇▇
11
