EXHIBIT 1
Escrow Agreement
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EXHIBIT 1
ESCROW AGREEMENT IN ACCORDANCE WITH RULE 419
UNDER THE SECURITIES ACT OF 1933
ESCROW AGREEMENT dated as of __________, 1999 (the "Agreement") by and between 4
Xxxxxxx - I, Inc., a Florida corporation (the "Company") and *. (the "Escrow
Agent").
The Company, through its officers and director and selected broker-dealers, will
sell up to 100,000 shares of Common Stock, par value $.05 (the "shares"), as
more fully described in the Company's definitive Prospectus dated
________________ , 1999 comprising part of the company's Registration Statement
on Form SB-2, as amended (the "Registration Statement") under the Securities Act
of 1933, as amended (the "Act") (File NO. *) declared effective on
__________________ (the "Prospectus").
The Company desires that the Escrow Agent accept all offering proceeds, with no
deduction for underwriting commissions, underwriting expenses and dealer
allowances or amounts permitted to be released to the Company under Rule
419(b)(2)(vi), a copy of which rule is attached hereto and made a part hereof,
to be derived by the company from the sale of the shares (the "Offering
Proceeds"), as well as the share certificates representing the shares issued in
connection with the company's offering, in escrow, to be held and disbursed as
hereinafter provided.
NOW, THEREFORE, in consideration of the promises and mutual covenants
hereinafter set forth, the parties hereto agree as follows:
1. Appointment of Escrow Agent. The company hereby appoints 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 Offering Proceeds and share Certificates. Subject to Rule 419,
upon the Company's receipt and acceptance of subscriptions and Offering
Proceeds, the Company shall promptly deliver to the Escrow Agent a certified
or bank check in the amount of the Offering Proceeds drawn to the order of
the Escrow Agent or, alternatively, drawn to the order of the company but
endorsed by the company for collection by the Escrow Agent and credited to
the Escrow Account.
All share certificates representing the Shares issued in connection with
the Company's offering shall also be deposited by the Company directly into
the Escrow Account promptly upon issuance. The identity of the purchasers of
the securities shall be included on the stock certificates or other documents
evidencing such securities. Securities held in the Escrow Account are to
remain as issued and deposited and shall be held for the sole benefit of the
purchasers, who shall have voting rights with respect to securities held in
their names, as provide be applicable state law. No transfer or other
disposition of securities held in the Escrow Account or any interest related
such securities shall be
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permitted other than by will or the laws of descent and distribution, or
pursuant to a qualified domestic relations order as defined by the Internal
Revenue code of 1986 as amended [26 U.S.C. 1 et seq.], or Title 1 of the
Employee Retirement Income Security Act [29 U.S.C. 1001 et seq.], or the
rules thereunder.
Warrants, convertible securities or other derivative securities, if nay,
relating to securities held in the Escrow Account may be exercised or
converted in accordance with their terms; provided however, that securities
received upon exercise or conversion, together with any cash or other
consideration paid in connection with the exercise or conversion, are
promptly deposited into the Escrow Account.
3. Disbursement of the Escrow Account. Upon the earlier of (i) receipt by the
Escrow Agent of a signed representation from the Company to the Escrow Agent,
that the requirements of Rule 419(e)(1) and (e)(2) have been met, and
consummation of an acquisition meeting the requirements of Rule 419(e)(2) or
(ii) written notification from the Company to the Escrow Agent to deliver the
Offering Proceeds to another escrow agent in accordance with Paragraph 4
then, in such event, the Escrow Agent shall disburse the Offering Proceeds
(inclusive of any interest thereon) to the Company and the securities to the
purchasers or registered holders identified on the deposited securities or
deliver the Offering Proceeds and securities to such other escrow agent, as
the case may be, whereupon the Escrow Agent shall be released from further
liability hereunder.
Notwithstanding the foregoing, if an acquisition meeting the
requirements of Rule 419(e)(1) has not occurred by a date within 18 months
after the effective date of the Registration Statement, funds held in the
Escrow Account shall be returned by first class mail or equally prompt means
to the purchasers within five business days following that date.
4. Concerning the Escrow Agent.
The Escrow Agent shall not be liable for any actions taken or omitted by it,
or any action suffered by it to be taken or omitted by it, in good faith and
in the exercise of its own best judgment, and may rely conclusively and
shall be protected in acting upon any order, notice demand, certificate,
opinion or advice of counsel (including counsel chosen by the Escrow Agent),
statement , instrument , report or other paper or document (not only as to
its due execution and the validity and effectiveness of its provision, but
also as to the truth and acceptability of any information therein contained)
which is believed by the Escrow Agent to be genuine and to be signed or
presented by the proper person or person.
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The Escrow Agent shall not be bound by any notice or demand, or any waiver,
modification, termination or rescission of this Agreement unless evidenced
by a writing delivered to the Escrow Agent signed by the proper party or
parties and, if the duties or rights of the Escrow Agent are affected,
unless it shall have given its prior written consent thereto.
The Escrow Agent shall not be responsible for the sufficiency or accuracy,
the form of, or the execution validity, value or genuineness of any document
or property received, held or delivered by it hereunder, or of any signature
or endorsement thereon, or for any lack of endorsement thereon, or for any
description therein, nor shall the Escrow Agent be responsible or liable in
any respect on account of the identity, authority or rights of the person
executing or delivering or purporting to execute or deliver any document or
property paid or delivered by the Escrow Agent under the provisions hereof.
The Escrow Agent shall not be liable for any loss which may be incurred by
reason of any investment of any monies or properties which it holds
hereunder. The Escrow Agent shall have the right to assume, in the absence
of written notice to the contrary from the proper person or persons, that a
fact or an event by reason of which an action would or might be taken by the
Escrow Agent does not exist or has not occurred, without incurring liability
for any action taken or omitted, in good faith and in the exercise of its
own best judgment, in reliance upon such assumption.
The Escrow Agent shall be indemnified and held harmless by the Company form
and against any expenses, including counsel fees and disbursements, or loss
suffered by the Escrow Agent in connection with any 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 expense 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 form any liability which
such party may have to the Escrow Agent hereunder. Upon 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 Account or it may deposit the Escrow Account with
the clerk of any appropriate court or it may retain the Escrow Account
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 Account is to be disbursed and delivered.
The Escrow Agent shall be entitled to reasonable compensation from the
Company for all services rendered by it hereunder.
From time to time on and after the date hereof, the Company 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 obligation 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.
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The Escrow Agent may resign at any time and be discharged from its duties as
Escrow Agent hereunder by its giving the Company 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 Company, 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 so appointed in the sixty (60) day period following the
giving of such notice of resignation, the Escrow Agent may deposit the
Escrow Account with any court it deems appropriate.
The Escrow Agent shall resign and be discharged form its duties as Escrow
Agent hereunder if so requested in writing at anytime by the Company,
provided, however, that such resignation shall become effective only upon
acceptance of appointment by a successor escrow agent as provided above.
Notwithstanding anything herein to the contrary, the Escrow Agent shall not
be relieved from liability thereunder for its own gross negligence or its
own willful misconduct.
5. Miscellaneous.
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 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 be charged.
The headings contained in this Agreement are for reference purposes only and
shall not affect in any way the meaning or interpretation thereof.
This Agreement shall be binding upon and inure to the benefit of the
respective parties hereto and their legal representatives, successors and
assigns.
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 so delivered personally or, if mailed, two (2)
days after the date of mailing. The parties may change the persons and
addresses to which the notices or other communications are to be sent by
giving written notice to any such change in the manner provided herein for
giving notice.
WITNESS the execution of this Agreement as of the date first above written.
4 Xxxxxxx - I, INC.
By: ______________________________________
President
This Escrow Agreement is accepted as of the ______ day of _____________,
1999.
By: _______________________________________
Authorized Representative
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