Exhibit 10.13
ESCROW AGREEMENT
AGREEMENT made this __th day of April, 2005 by and between Spongetech
Delivery Systems, Inc., a Delaware corporation (the "Issuer"), and Continental
Stock Transfer & Trust Company (the "Escrow Agent").
W I T N E S S E T H:
WHEREAS, the Issuer has filed with the Securities and Exchange Commission
(the "Commission") a registration statement (the "Registration Statement")
covering a proposed public offering of its securities as described on the
Information Sheet, as defined in Section 1 herein;
WHEREAS, the Issuer proposes to offer the Securities for sale to the
public 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 or other
unit all as set forth on the Information Sheet, as defined in Section 1 herein;
and
WHEREAS the Issuer proposes to establish an escrow account (the "Escrow
Account"), to which subscription monies which are received by the Escrow Agent
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;
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").
2. Establishment of the Bank Account.
2.1 The Escrow Agent shall establish a non-interest-bearing bank account
and bearing the designation 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 Issuer from prospective purchasers of the Securities and are
delivered by the Issuer 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 On or before the date of the initial deposit in the Bank Account
pursuant to this Agreement, the Issuer shall notify the Escrow Agent in writing
of the effective date of the Registration Statement (the "Effective Date"), and
the Escrow Agent shall not be required to accept any amounts for credit to the
Escrow Account or for deposit in the Bank Account prior to its receipt of such
notification.
2.3 The Offering Period, which shall be deemed to commence on the
Effective Date, shall consist of the number of calendar days or business days
set forth on the Information Sheet. The Offering Period shall be extended by an
Extension Period only if the Escrow Agent shall have received written notice
thereof from the Issuer. The Extension Period, which shall be deemed to commence
on the next calendar day following the expiration of the Offering Period, shall
consist of the number of calendar days or business days 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 Issuer 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 Issuer 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, as Escrow Agent for Spongetech Delivery Systems, Inc."
Any check payable other than to the Escrow Agent as required hereby shall be
returned to the prospective purchaser, or if the Escrow Agent has insufficient
information (defined as lack of the prospective purchaser's address) to do so,
then to the Issuer together with any Subscription Information, as defined below
or other documents delivered therewith) 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 ________ Bank to process all Escrow Amounts for collection
through the banking system. Simultaneously with each deposit to the Escrow
Account, the Issuer 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 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 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 of such fact in writing. The Escrow Agent
shall promptly disburse the Fund, either by wire transfer or by drawing checks
on the Bank Account in accordance with instructions in writing signed by the
Issuer as to the disbursement of the Fund, promptly after it receives such
instructions. If the Fund is to be dispersed by wire transfer, the Fund shall be
wired to:
Continental Stock Transfer & Trust Company
00 Xxxxxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Account Title:
ABA No.:
or to such other account as Issuer may direct in writing.
4.3 If the Escrow Agent has on hand at the close of business on the
Termination Date any uncollected amounts which when added to the Fund 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 c1ear the banking
system. During the Collection Period, the Issuer shall not deposit, and the
Escrow Agent shall not accept, any additional amounts; provided, however, that
such amounts as were received by the Issuer 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 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 4.2 hereof.
4.4 Under no circumstances shall the Escrow Agent disperse more than the
Maximum Dollar Amount to the Issuer. In the event that Escrow Agent receives
funds greater than the Maximum Dollar Amount, Escrow Agent shall promptly return
such amounts to subscribers in accordance with instructions in writing signed by
the Issuer, as determined by the Issuer in its sole discretion.
4.5 Upon disbursement of the Fund pursuant to the terms of this Article 4,
the Escrow Agent shall be relieved of all further obligations and released 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:
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5.1 The Escrow Agent shall notify 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 the performance by the
Issuer of its obligations under this Agreement.
5.3 The Escrow Agent shall not be required to accept from the Issuer 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
Issuer except as to the amount of such payments; however, the Escrow Agent shall
notify the Issuer within a reasonable time 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.
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 Issuer 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 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 Issuer covenants that Escrow Agent shall:
(a) Not be charged with any knowledge or be bound by or be under any duty
to enforce any terms or conditions of the proposed public offering of Issuer's
Securities as described in the Information Sheet;
(b) Be under no duty to accept any check, draft or instrument for the
payment of money unless it is payable in United States of America Dollars;
(c) Be entitled to consult with its counsel and shall not be liable for
any action taken or omitted by it in accordance with the opinion and advice of
such counsel whether such counsel be a member of its staff or independent
counsel; and
(d) Not be liable to the Issuer or to any person with respect to any
action taken or omitted to be taken by it in good faith.
5.10 Issuer hereby acknowledges that the status of Escrow Agent is that of
agent only for the limited purposes set forth herein, and hereby agrees that in
offering the Securities for sale to the public, it will not represent or imply
that Escrow Agent, by serving as escrow agent hereunder or otherwise, has
investigated the desirability or advisability of investment in the Securities,
or has approved, endorsed or passed upon the merits of the investments, nor
shall they use the name Escrow Agent in any manner in connection with the offer
or sale of the Securities other than by acknowledgement that it has agreed to
serve as escrow agent for the limited purposes herein set forth.
6. Amendment; Resignation. This Agreement may be altered or amended only
with the written consent of the Issuer and the Escrow Agent. The Escrow Agent
may resign for any reason upon three (3) business days' written notice to the
Issuer. Should the Escrow Agent resign as herein provided, it shall not be
required to accept any deposit, make any disbursement or otherwise dispose of
the Escrow Amounts or the Fund, but its only duty shall be to hold the Escrow
Amounts until they clear the banking system and the Fund for a period of not
more than five (5) business days following the effective date of such
resignation, at which time (a) if a successor escrow agent shall have been
appointed and written notice thereof (including the name and address of such
successor escrow agent) shall have been given to the resigning Escrow Agent by
the Issuer and such successor escrow agent, then the resigning Escrow Agent
shall pay over to the successor escrow agent the Fund, less any portion thereof
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previously paid out in accordance with this Agreement; or (b) if the resigning
Escrow Agent shall not have received written notice signed by the Issuer and a
successor escrow agent then the resigning Escrow Agent shall promptly refund the
amount in the Fund to each prospective purchaser, without interest thereon or
deduction therefrom, and the resigning Escrow Agent shall promptly notify the
Issuer in writing of its liquidation and distribution of the Fund; whereupon, in
either case, the Escrow Agent shall be relieved of all further obligations and
released from all liability under this Agreement. Without limiting the
provisions of Section 8 hereof, the resigning Escrow Agent shall be entitled to
be reimbursed by the Issuer and the underwriter 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 hereby represents and
warrants 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.
9. Indemnification and Contribution.
9.1 The Issuer (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 this Article 9 shall survive any termination of this
Agreement, whether by disbursement of the Fund, resignation of the Escrow Agent
or otherwise.
10. Governing Law and Assignment. This Agreement shall be construed in
accordance with -and governed by the laws of the State of Florida 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.
11. Notices. All notices required to be given in connection with this
Agreement shall be sent by registered or certified mail, return receipt
requested, or by hand delivery with receipt acknowledged, or by the Express Mail
service offered by the United States Post Office, and addressed, if to the
Issuer, at its address set forth on the Information Sheet, and if to the Escrow
Agent at its address set forth above, to the attention of Xxxxxxx X. Xxxxxx,
Chief Executive Officer.
12. 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.
13. 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.
14. 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.
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15. Attorney Fees. In connection with any litigation, including appellate
proceedings arising out of this agreement, the prevailing party shall be
entitled to recover reasonable attorneys fees and costs.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
day and year first above written.
SPONGETECH DELIVERY SYSTEMS, INC. CONTINENTAL STOCK TRANSFER &
TRUST COMPANY
By: By:
------------------------------ --------------------------------
Xxxxxxx X. Xxxxxx
Chief Executive Officer
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ESCROW AGREEMENT INFORMATION SHEET
1. The Issuer Name: Spongetech Delivery Systems, Inc.
Address: The Empire State Building, 000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000-000-0000
State of incorporation of organization: Delaware
2. The Securities
Units, each Unit consisting of one share of Common Stock and one class A
redeemable common stock purchase warrant Offering price per unit: $0.25
3. Minimum Amounts 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"): $500,000
("Maximum Dollar amount"): $2,000,000
Total amount of securities which must be subscribed for before the Escrow
Account may be disbursed to the Issuer: ("Minimum Securities Amount"): 2,000,000
Units ("Maximum Securities Amount"): 8,000,000 Units
4. Plan of Distribution of the Securities Offering Period: 90 calendar days
Extension Period: of 90 days Collection Period: ___ business days
5. Title of Escrow Account: Continental Stock Transfer & Trust Company, Escrow
Agent for Spongetech Delivery Systems, Inc.
6. Escrow Agent Fees
Fee for each check disbursed pursuant to the terms of the Escrow Agreement:
$_____
Fee for each check returned pursuant to the terms of the Escrow Agreement:
$_____
