Exhibit 4.4
CONVERTIBLE DEBENTURE ESCROW AGREEMENT
THIS AGREEMENT is made as of January 29, 1997 by and among American
International Petroleum Corporation, with its principal office at 000 Xxxxxxx
Xxxxxx, Xxx. 0000, Xxx Xxxx, XX 00000 (hereinafter the "Company"), (hereinafter
the "Purchaser"), and Xxxxxxxxxx, Xxxxxx & Xxxxxxx, 000 Xxxxxxxxx Xx., X.X.,
Xxxxxxx, Xxxxxxx, 00000 (hereinafter the "Escrow Agent").
W I T N E S S E T H:
WHEREAS, the Purchaser will be purchasing Convertible Debentures (the
"Securities") from the Company at a purchase price as set forth in a Convertible
Debenture Offshore Securities Subscription Agreement (the "Subscription
Agreement") signed by the Company and the Purchaser; and
WHEREAS, it is intended that the purchase of Securities be consummated
in accordance with the requirements set forth by Regulation S promulgated under
the Securities Act of 1933, as amended; and
WHEREAS, the Company has requested that the Escrow Agent hold the funds
of the Purchaser in escrow until the Escrow Agent has received the Securities
and had the opportunity to speak with the Company to confirm their issuance. The
Escrow Agent will then immediately wire transfer or otherwise deliver at the
Company's direction immediately available funds to the Company or the Company's
account and arrange for delivery of the Securities to the Purchaser per the
Purchaser's written instructions.
NOW, THEREFORE, in consideration of the covenants and mutual promises
contained herein and other good and valuable consideration, the receipt and
legal sufficiency of which are hereby acknowledged, and intending to be legally
bound hereby, the parties agree as follows:
ARTICLE 1.
TERMS OF THE ESCROW
1.1. The parties hereby agree to establish an escrow account with the
Escrow Agent whereby the Escrow Agent shall hold the funds for the purchase of
the Securities.
1.2. Upon the Escrow Agent's receipt of funds into his attorney trustee
account, he shall notify the Company, or the Company's designated attorney or
agent, of the amount of funds he has received into his account.
1.3. The Company, upon receipt of said notice and acceptance of the
Purchaser's Subscription Agreements, as evidenced by the Company's execution
thereof, shall deliver to the Escrow Agent the Securities being purchased. The
Escrow Agent shall then communicate with the Company to confirm the validity of
its issuance.
1.4. Once the Escrow Agent confirms the validity of the issuance of the
Securities, he shall immediately wire to the Company that amount of funds
necessary to purchase the Securities, per the written instructions of the
Company. Once the funds have been received per the Company's instructions, the
Escrow Agent shall then arrange to have the Securities delivered as per
instructions from the Purchaser.
1.5. If, for any reason, these transactions contemplated by the
Subscription Agreement are not consummated within five (5) days of the date
hereof, the Escrow Agent will promptly return any funds received by it from the
Purchaser to the Purchaser, without any further instructions from either the
Company or Purchaser.
1.6. This Agreement may be altered or amended only with the consent of
all of the parties hereto. Should the Company attempt to change this Agreement
in a manner which, in the Escrow Agent's discretion, shall be undesirable, the
Escrow Agent may resign as Escrow Agent by notifying the Company and the
Purchasers in writing. In the case of the Escrow Agent's resignation or removal
pursuant to the foregoing, his only duty, until receipt of notice from the
Company and the Purchasers or their agents that a successor escrow agent shall
have been appointed, shall be to hold and preserve the Securities and/or funds.
Upon receipt by the Escrow Agent of said notice from the Company and the
Purchasers of the appointment of a successor escrow agent, the name of a
successor escrow account and a direction to transfer the Securities and/or
funds, the Escrow Agent shall promptly thereafter transfer all the Securities
and/or funds held in escrow to said successor escrow agent. Immediately after
said transfer of Securities, the Escrow Agent shall furnish the Company and the
Purchasers with proof of such transfer. The Escrow Agent is authorized to
disregard any notices, request, instructions or demands received by it from the
Company or the Purchasers after notice of resignation or removal shall have been
given, unless the same shall be the aforementioned notice from the Company and
the Purchaser to transfer the Securities and funds to a successor escrow agent
or to return same to the respective parties.
1.7. The Escrow Agent shall be reimbursed by LKB Financial LLC for any
reasonable expenses incurred in connection with its performance hereunder,
including in the event there is a conflict between the parties and the Escrow
Agent shall deem it necessary to retain counsel.
1.8. The Company and the Purchaser warrant to and agree with the Escrow
Agent that:
(i) there is no security interest in the Securities or
any part thereof;
(ii) no financing statement under the Uniform Commercial
Code is on file in any jurisdiction claiming a
security interest or in describing (whether
specifically or generally) the Securities or any part
thereof; and
(iii) the Escrow Agent shall have no responsibility at any
time to ascertain whether or not any security
interest exists in the Securities or any part
thereof or to file any financing statement under
the Uniform Commercial Code with respect to the
Securities or any part thereof.
1.9. The Escrow Agent has no liability hereunder to either party other
than to hold the Securities and funds, to complete the Orders in accordance with
the Notice of Conversion and any instructions it receives for the Company, and
to deliver them in accordance with the terms hereof. The Escrow Agent shall not
be liable for any action taken or omitted by him in good faith; and in no event
shall the Escrow Agent be liable or responsible except for the Escrow Agent's
own gross negligence or willful misconduct.
1.10. Each party hereto agrees to indemnify and hold harmless the
Escrow Agent from and with respect to any and all suits, claims, damages,
demands, actions, liabilities or losses arising in any way out of this
transaction including the obligation to defend any legal action brought which in
any way arises out of or is related to this Agreement.
1.11. Escrow Agent shall not be responsible for: (I) the sufficiency or
correctness as to the form, execution or the validity of this Agreement; or (ii)
the identity authority or right of any person executing any notice or documents
given to Escrow Agent.
ARTICLE 2.
MISCELLANEOUS
2.1. No waiver or any breach of any covenant or provision herein
contained shall be deemed a waiver of any preceding or succeeding breach
thereof, or of any other covenant or provision herein contained. No extension of
time for performance of any obligation or act shall be deemed any extension of
the time for performance of any other obligation or act.
2.2. All notices or other communications required or permitted
hereunder shall be in writing, and shall be sent writing, and shall be sent by
fax, overnight courier, registered or certified mail, postage prepaid, return
receipt requested, and shall be deemed received upon receipt thereof, as
follows:
(i) To the Company:
American International Petroleum Corporation
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(ii) To the Purchaser:
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(iii) To the Escrow Agent:
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2.3. This Agreement shall be binding upon and shall inure to the
benefit of the permitted successors and assigns of the parties hereto.
2.4. This Agreement is the final expression of, and contains the entire
Agreement between, the parties with respect to the subject matter hereof and
supersedes all prior understandings with respect thereto. This Agreement may not
be modified, changed, supplemented or terminated, nor may any obligations
hereunder be waived, except by written instrument signed by the parties to be
charged or by its agent duly authorized in writing or as otherwise expressly
permitted herein.
2.5. Whenever required by the context of this Agreement, the singular
shall include the plural and masculine shall include the feminine. This
Agreement shall not be construed as if it had been prepared by one of the
parties, but rather as if both parties had prepared the same. Unless otherwise
indicated, all references to Articles are to this Agreement.
2.6. The Company and the Purchaser acknowledge and confirm that they
are not being represented in a legal capacity by Xxxxxxxxxx, Xxxxxx & Xxxxxxx
and they have had the opportunity to consult with their own legal advisors prior
to the signing of this Agreement.
2.7. The parties hereto expressly agree that this Agreement shall be
governed by, interpreted under and construed and enforced in accordance with the
laws of the State of Georgia. Any action to enforce, existing out of, or
relating in any way to, any provisions of this Agreement shall be brought
through American Arbitration Association at the designated locale of Atlanta,
Georgia.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
January 29, 1997.
American International Petroleum Corporation
By:_________________________________
Officer
By:__________________________________
XXXXXXXXXX, XXXXXX & XXXXXXX
By:_________________________________
Partner
