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EXHIBIT 10.2
ESCROW AGREEMENT dated as of the ___ day of
__________, 1997 (The "Agree- ment") by and
among XXXXX XXXXX CAPITAL GROUP, INC., a
Florida corporation (the "Company"), XXXXXXX
X. XXXXX, XXXX X. XXXXX, XXXXXXX X.
XXXXXXXXX, Ph.D. and XXXXXX X. XXXXXX
(collectively, the "Company Principals") and
AMERICAN STOCK TRANSFER & TRUST COMPANY, a
New York limited purpose trust company (the
"Escrow Agent")
ESCROW AGREEMENT
The Company has entered into an Underwriting Agreement dated
____________, 1997 (the "Underwriting Agreement") with FIRST CAMBRIDGE
SECURITIES CORPORATION, as representative to the underwriters named therein and
the underwriters named therein (the "Underwriter") whereby the Underwriter has
agreed to sell through licensed dealers 1,700,000 shares of Common Stock, par
value $.0001 per share (the "Shares"), with an over-allotment option covering up
to 255,000 shares, as more fully described in the Company's definitive
Prospectus dated ____________, 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- 19401), declared effective on _______ __, 1997 (the
"Registration Statement").
The Company Principals have agreed, as a condition of the consummation
of the sale of the Shares, to deposit their shares of Common Stock of the
Company, as set forth opposite their respective names in Exhibit A attached
hereto (collectively, the Escrow Shares"), in escrow as hereinafter provided.
The Company and the Company Principals desire that the Escrow Agent
accept the Escrow Shares, in escrow, to be held 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 Company Principals
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. Deposit of Escrow Shares. On or before the closing date of the sale
of the Shares, each of the Company Principals shall deliver to the Escrow Agent
certificates, either endorsed in blank or accompanied by stock powers endorsed
in blank, in either instance with signatures guaranteed by a commercial bank or
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member of the New York Stock Exchange, Inc. representing his respective Escrow
Shares, to be held and disbursed subject to the terms and conditions of this
Agreement.
3. Disbursement of the Escrow Account. Upon written notification from
the Company to the Escrow Agent of consummation of the Company's first Business
Combination (as such term is defined in the Prospectus), the Escrow Agent shall
disburse the Escrow Shares to the Company Principals in accordance with their
respective interests therein as set forth upon the aforementioned Exhibit A,
whereupon the Escrow Agent shall be released from further liability hereunder.
4. Rights of Company Principals in Escrow Shares. The Company
Principals shall retain all of their rights as shareholders of the Company
during such period as the Escrow Shares shall be retained by the Escrow Agent
pursuant to this Agreement including, without limitation, the right to vote such
shares and to receive cash dividends payable thereon, if any. No sale, transfer
or other disposition may be made of any or all of such shares.
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 Escrow Shares 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 and the Company Principals, jointly and severally, from and against
any reasonable expenses, including counsel fees and disbursements, or loss
suffered by the Escrow
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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 expenses or loss. Promptly after the receipt by the Escrow 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 Escrow Shares or
it may deposit the Escrow Shares with the clerk of any appropriate court or it
may retain the Escrow Shares 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 Shares are to be disbursed and delivered.
5.4 The Escrow Agent shall be entitled to reasonable
compensation from the Company for all services rendered by it hereunder, not to
exceed $_____________. The Escrow Agent shall also be entitled to reimbursement
from the Company for all reasonable expenses paid or incurred by it in the
administration of its duties hereunder including, but not limited to, all
counsel, advisors' and agents' fees and disbursement and all taxes or other
governmental charges.
5.5 From time to time on and after the date hereof, the
Company and the Company Principals shall 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 obligations 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 appointed within the six
(6) day period following the giving of such notices of resignation, the Escrow
Agent may deposit the Escrow Shares with any court it deems appropriate.
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5.7 The Escrow Agent shall resign and be discharged from its
duties as Escrow Agent hereunder if so requested in writing at any time by the
other parties hereof, 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. 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 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 the charged.
6.3 The headings contained in this Agreement are for reference
purposes only and shall not effect 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
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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
Attn: Xxxxxx X. Xxxxxx, Secretary
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 Company Principals, to each as follows:
(i) Xxxxxxx X. Xxxxx
000 Xxxxx Xxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
(ii) Xxxx X. Xxxxx
000 Xxxxx Xxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
(iii) Xxxxxxx X. Xxxxxxxxx, Ph.D.
0000 Xxxxx xx Xxxx Xxxxxxxxx
Xxxxx 000
Xxxxx Xxxxxx, Xxxxxxx 00000
(iv) Xxxxxx X. Xxxxxx
000 Xxxxx Xxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
and if to Escrow Agent, to:
American Stock Transfer & Trust Company
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President
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.
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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.
By:
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Xxxx X. Xxxxx, President
Attest:
--------------------------
Xxxxxx X. Xxxxxx
---------------------------
Xxxxxxx X. Xxxxx
---------------------------
Xxxx X. Xxxxx
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Xxxxxxxx X. Xxxxxxxxx, Ph.D.
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Xxxxxx X. Xxxxxx
AMERICAN STOCK TRANSFER & TRUST
COMPANY
By:
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Authorized Representative
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EXHIBIT A
Number of Shares
Name of Common Stock
---- ---------------
Xxxxxxx X. Xxxxx 362,000
Xxxx X. Xxxxx 362,000
Xxxxxxx X. Xxxxxxxxx, Ph.D 300,000
Xxxxxx X. Xxxxxx 100,000
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