EXHIBIT 6(l)
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ESCROW AGREEMENT
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ESCROW AGREEMENT made as of _________, 2002 by and among HSBC Bank
USA, as Escrow Agent, having its principal place of business at 000 Xxxxx
Xxxxxx, Xxx Xxxx, XX 00000, Attn: Issuer Services ("Escrow Agent"), SearchHelp,
Inc. having its principal place of business at 0000 Xxxxxxx Xxxxxx, Xxxxxxxx, XX
00000 (the "Issuer") and Xxxxxx X. Xxxxx & Co., Inc. having its principal place
of business at 000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxx Xxxx, XX 00000 (the
"Placement Agent").
W I T N E S S E T H:
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WHEREAS, the Issuer has filed a registration statement on Form SB-1
(the "Registration Statement") under the Securities Act of 1933, as amended,
with the United States Securities and Exchange Commission (the "Commission"),
File No. 333-88820, relating to the subscription for and sale of 8,000,000 units
of the Issuer at $.50 per unit (the "Offering"), each unit (a "Unit") consisting
of one (1) share of common stock, par value $.0001, of the Issuer, one (1)
warrant to purchase one (1) share of common stock, par value $.0001, of the
Issuer at $.75 and one (1) warrant to purchase one (1) share of common stock,
par value $.0001, of the Issuer at $1.75;
WHEREAS, prospective investors may from time to time purchase at least
5,000 Units each in accordance with the terms of the prospectus of the Issuer
dated _____________, 2002, as amended and supplemented (the "Prospectus");
WHEREAS, the Issuer and Placement Agent have requested that the Escrow
Agent act as escrow agent for the funds to be received by the Issuer and the
Placement Agent from such prospective investors (the "Subscribers") pursuant to
the agreement governing subscriptions for the Units ("Subscription Agreement");
and
WHEREAS, the Placement Agent has been named as placement agent in
connection with the proposed offering of the Units in accordance with the terms
of the placement agreement between the Placement Agent and Issuer to be dated
simultaneously with effectiveness of the Registration Statement (the "Placement
Agreement") to sell Units on the date ("Effective Date") the Registration
Statement becomes effective with the Commission until the termination of the
Offering ("Offering Period").
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants hereinafter set forth, the parties hereto agree as follows:
1. APPOINTMENT. The Issuer and Placement Agent hereby appoint the
Escrow Agent as their escrow agent for the purposes set forth
herein, and the Escrow Agent hereby accepts such appointment
under the terms and conditions set forth herein.
2. ESCROW FUND. Each Subscriber must subscribe for no less than
5,000 Units. All funds received by the Placement Agent and the
Issuer in connection with the sale of Units shall be deposited
with the Escrow Agent as shall wire transfers received directly
by the Escrow Agent from Subscribers (all of such funds, however
transmitted, are referred to as the "Escrow Deposit(s)"). The
Escrow Agent shall hold the Escrow Deposit in a non-interest
bearing account. The Escrow Agent shall record the date of each
deposit of each Subscribers funds, the name of such Subscriber
(if by check) and amount of deposit. Such information will be
available through monthly reports.
3. DISTRIBUTION OF ESCROW DEPOSIT.
(a) The Escrow Agent shall not be obligated to disburse to any
party any part of the Escrow Deposit until it has received notice
in writing and certification two (2) days before an Offering
Closing Date (as defined herein) ("Notice") by the Issuer and the
Placement Agent that shall contain a list of the: (i) Subscribers
who have tendered their Subscription Agreements, all related
documentation, and their deposit checks or wire transfer, who
have been, will be, or are being duly admitted as investors in
the Issuer; and/or (ii) Subscribers whose subscriptions for Units
have been rejected, canceled, or withdrawn.
(b) Upon receipt of such Notice, the Escrow Agent shall be
prepared on the Offering Closing Date to disburse all or a
portion, as the case may be, of the Escrow Deposit as follows:
(i) All Escrow Deposits received from Subscribers whom the Issuer
and Placement Agent have indicated by the Notice have been, are
being, or will be duly admitted as stockholders and warrant
holders of the Issuer, shall, by wire transfer, be disbursed 90%
to the Issuer and 10% to the Placement Agent; and (ii) All Escrow
Deposits received from Subscribers who have been rejected or who
have canceled or withdrawn their subscriptions for Units, as set
forth in the Notice, shall be disbursed directly to such
Subscribers by check at the addresses set forth in their
Subscription Agreement. Each Notice shall specify the exact
amounts to be disbursed to the Issuer and to the Placement Agent
and shall provide the following necessary wire instructions:
Issuer:
[Bank]
ABA
For further credit to:
SearchHelp, Inc. IPO Account
Acct #
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Placement Agent:
Chase Bank
ABA 000000000
For credit to: Xxxxxx X. Xxxxx & Co., Inc.
Acct #891001034
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(c) The Issuer and the Placement Agent may give the Notice
described in Paragraph 3(a) above one or more times.
4. DISPOSITION AND TERMINATION. Closings during the Offering Period
shall occur every other Thursday commencing with the second
Thursday after the Effective Date until the end of the Offering
Period. Any date upon which a closing shall occur is referred to
in this Escrow Agreement as an "Offering Closing Date".
Notwithstanding the foregoing, (i) if any such Thursday shall not
be a Business Day, such closing shall be held on the next
succeeding Business Day and (ii) if the total amount of
subscriptions for Units held by the Escrow Agent ("Pending
Subscriptions") as of any scheduled Offering Closing Date shall
be less than $2,500, no closing shall be held on such date, and
(iii) the Escrow Agent shall give notice to the Issuer and
Placement Agent at any time that there shall be Pending
Subscriptions of at least $25,000 and a closing shall then be
held within two (2) Business Days after such notice is given. As
used herein, Business Day shall mean any day other than a
Saturday, Sunday or other day on which the Escrow Agent is
authorized or required by law or executive order to close.
5. ESCROW AGENT. The Escrow Agent undertakes to perform only such
duties, as are expressly set forth herein and no duties shall be
implied. The Escrow Agent shall have no liability under and no
duty to inquire as to the provisions of any agreement other than
this Escrow Agreement. The Escrow Agent may rely upon and shall
not be liable for acting or refraining from acting upon any
written notice, instruction or request furnished to it hereunder
and believed by it to be genuine and to have been signed or
presented by the proper party or parties. The Escrow Agent shall
be under no duty to inquire into or investigate the validity,
accuracy or content of any such document. The Escrow Agent shall
have no duty to solicit any payments which may be due it or the
Escrow Fund. The Escrow Agent shall not be liable for any action
taken or omitted by it in good faith except to the extent that a
court of competent jurisdiction determines that the Escrow
Agent's gross negligence or willful misconduct was the primary
cause of any loss to the Issuer or Placement Agent. The Escrow
Agent may execute any of its powers and perform any of its duties
hereunder directly or through agents or attorneys (and shall be
liable only for the careful selection of any such agent or
attorney) and may consult with counsel, accountants and other
skilled persons to be selected and retained by it. The Escrow
Agent shall not be liable for anything done, suffered or omitted
in good faith by it in accordance with the advice or opinion of
any such counsel, accountants or other skilled persons. In the
event that the Escrow Agent shall be uncertain as to its duties
or rights hereunder or shall receive instructions, claims or
demands from any party hereto which, in its opinion, conflict
with any of the provisions of this Escrow Agreement, it shall be
entitled to refrain from taking any action and its sole
obligation shall be to keep safely all property held in escrow
until it shall be directed otherwise in writing by all of the
other parties hereto or by a final order or judgment of a court
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of competent jurisdiction. Anything in this Escrow Agreement to
the contrary notwithstanding, in no event shall the Escrow Agent
be liable for special, indirect or consequential loss or damage
of any kind whatsoever (including but not limited to lost
profits), even if the Escrow Agent has been advised of the
likelihood of such loss or damage and regardless of the form of
action.
6. SUCCESSION. The Escrow Agent may resign and be discharged from
its duties or obligations hereunder by giving ten (10) days
advance notice in writing of such resignation to the other
parties hereto specifying a date when such resignation shall take
effect. The Escrow Agent shall have the right to withhold an
amount equal to any amount due and owing to the Escrow Agent,
plus any costs and expenses the Escrow Agent shall reasonably
believe may be incurred by the Escrow Agent in connection with
the termination of the Escrow Agreement. Any corporation or
association into which the Escrow Agent may be merged or
converted or with which it may be consolidated, or any
corporation or association to which all or substantially all the
escrow business of the Escrow Agent's corporate trust line of
business may be transferred, shall be the Escrow Agent under this
Escrow Agreement without further act.
7. FEES. The Issuer agrees to (i) pay the Escrow Agent upon
execution of this Escrow Agreement and from time to time
thereafter reasonable compensation for the services to be
rendered hereunder, as described in Schedule 2 attached hereto,
and (ii) pay or reimburse the Escrow Agent upon request for all
expenses, disbursements and advances, including reasonable
attorney fees and expenses, incurred or made by it in connection
with the preparation, execution, performance, delivery,
modification and termination of this Escrow Agreement.
8. INDEMNITY. The Issuer and the Placement Agent shall jointly and
severally indemnify, defend and save harmless the Escrow Agent
and its directors, officers, agents and employees (the
"indemnities") from all loss, liability or expense (including the
fees and expenses of in house or outside counsel) arising out of
or in connection with (i) the Escrow Agent's execution and
performance of this Escrow Agreement, except in the case of any
indemnities to the extent that such loss, liability or expense is
due to the gross negligence or willful misconduct of such
indemnities, or (ii) its following any instructions or other
directions from the Issuer or the Placement Agent, except to the
extent that its following any such instruction or direction is
expressly forbidden by the terms hereof. The parties hereto
acknowledge that the foregoing indemnities shall survive the
resignation or removal of the Escrow Agent or the termination of
this Escrow Agreement. The parties hereby grant the Escrow Agent
a lien on, right of set-off against and security interest in the
Escrow Fund for the payment of any claim for indemnification,
compensation, expenses and amounts due hereunder.
9. NOTICES. All communications hereunder shall be in writing and
shall be deemed to be duly given and received; (i) upon delivery
if delivered personally or upon confirmed transmittal if by
facsimile; (ii) on the next Business Day if sent by overnight
courier; or (iii) four (4) Business Days after mailing if mailed
by prepaid registered mail, return receipt requested, to the
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appropriate notice address set forth on Schedule 1 or at such
other address as any party hereto may have finished to the other
parties in writing by registered mail, return receipt requested.
Notwithstanding the above, in the case of communications
delivered to the Escrow Agent pursuant to (ii) and (iii) of this
Section 9, such communications shall be deemed to have been given
on the date received by the Escrow Agent. In the event that the
Escrow Agent in its sole discretion shall determine that an
emergency exists, the Escrow Agent may use such other means of
communication, as the Escrow Agent deems appropriate.
10. MISCELLANEOUS. The provisions of this Escrow Agreement may be
waived, altered, amended or supplemented, in whole or in part,
only in writing signed by all of the parties hereto. Neither this
Escrow Agreement nor any right or interest hereunder may be
assigned in whole or in part by any party, except as provided in
Section 6, without the prior consent of the other parties. This
Escrow Agreement shall be governed by and construed under the
laws of the State of New York without giving effect to conflicts
of law principles. Each party hereto irrevocably waives any
objection on the grounds of venue, forum non-conveniens or any
similar grounds and irrevocably consents to service of process by
mail or in any other manner permitted by applicable law and
consents to the jurisdiction of the courts located in the State
of New York. The parties further hereby waive any right to a
trial by jury with respect to any lawsuit or judicial proceeding
arising or relating to this Escrow Agreement. No party to this
Escrow Agreement is liable to any other party for losses due to
or if it is unable to perform its obligations under the terms of
this Escrow Agreement because of, acts of God, fire, floods,
strikes, equipment or transmission failure, or other causes
reasonably beyond its control. This Escrow Agreement may be
executed in one or more 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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IN WITNESS WHEREOF, the parties hereto have executed this Escrow
Agreement as of the date set forth in Schedule 1.
ESCROW AGENT:
HSBC BANK USA, as Escrow Agent
By:
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Name:
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Title:
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ISSUER:
SEARCHHELP, INC.
By:
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Name: Xxxxxxx Xxxxxxxx
Title: President and Chief Executive Officer
PLACEMENT AGENT:
XXXXXX X. XXXXX & CO., INC.
By:
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Name: Xxxxxx X. Xxxxx
Title: President
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Schedule 1
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Effective Date:
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Name of Issuer: SearchHelp, Inc.
Issuer Notice Address: 0000 Xxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Name of Placement Agent: Xxxxxx X. Xxxxx & Co., Inc.
Placement Agent Notice Address: 000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
Investment:
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Name of Escrow Agent: HSBC Bank USA
Escrow Agent notice address: 000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Account number:
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Escrow Agent's compensation: See Schedule 2
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Schedule 2
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{LOGO}
HSBC Bank USA
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000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 - 0200
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Issuer Services
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SCHEDULE OF FEES
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for services as
Escrow Agent for SearchHelp, Inc.
ACCEPTANCE FEE: .......................................................$6,500.00
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This one-time fee covers the acceptance of our appointment review and
consideration of the documents, meetings with interested parties,
consultation with attorneys, and establishment of procedures to perform the
services required by all the documents.
ANNUAL ADMINISTRATION FEE:................................................WAIVED
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This covers the ordinary administrative and operational responsibilities of
the Escrow Agent including all disbursements and required account
statements.
HOLDERS IN EXCESS OF 100 WILL BE CHARGED $15.00 PER HOLDER UP TO 150 HOLDERS,
HOLDERS IN EXCESS OF 150 WILL BE CHARGED $20.00 PER HOLDER.
LEGAL FEE: ..............................................................AT COST
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This is a one-time fee for professional services rendered in connection
with the review and execution of the governing agreements.
OUT-OF-POCKET EXPENSES : ................................................AT COST
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These expenses are those incurred by us on your behalf to effectively service
your account on a day-to-day basis. They include, but are not limited to, the
following items: accountant and counsel fees, postage, stationary, expressmail,
telephone and facsimile charges. A detailed explanation for each expense will be
included on your billing statement. This is a one-time fee for professional
services rendered in connection with the review and execution of the governing
agreements.
The fees set forth above are subject to change should circumstances warrant.
reimbursement for all out-of-pocket expenses will be added to the billed fees.
We reserve the right to amend this Schedule of Fees or withdraw as the proposed
trustee pending review of the final documents and agreement with respect to the
duties, responsibilities and indemnification of the Escrow Agent. Any fees
charged for services not specifically covered in this schedule will be assessed
in amounts commensurate with services rendered. If the transaction should fail
to close for reasons beyond our control, we reserve the right to charge our
acceptance, legal counsel fees and any out-of-pocket expenses.
June 14, 2002
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