Exhibit 12.2
SECURITIES ESCROW AGREEMENT
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THIS SECURITIES ESCROW AGREEMENT, entered into this [ ] of September,
2000, by and between Xxxxxxxxxxxxxxxxxx.xxx, Inc. (the "Company"), the
shareholders who are listed on and have signed the signature page hereof (the
"Shareholders"), and Doepken Keevican & Xxxxx Professional Corporation (the
"Escrow Depository").
WHEREAS, in connection with a registration statement filed with the
Securities and Exchange Commission (the "SEC") and various state securities
commissions (the "Commissions") whereby the Company desires to sell to the
public a total of up to 450,000 of its shares of Common Stock at a purchase
price of $10.00 per share (the "IPO"); and
WHEREAS, the Commissions have required, as a condition to agreeing to
permit the Company to register and sell its shares of Common Stock in the
various states, that the Company and the Shareholder appoint the Escrow
Depository to serve in the capacity described herein; and
WHEREAS, the Escrow Depository is willing to serve in such capacity in
order to facilitate and implement this Agreement.
NOW, THEREFORE, for and in consideration of the premises and the mutual
promises and agreements hereinafter set forth, the parties hereto agree as
follows:
1. Simultaneously with the execution of this Agreement, each Shareholder
is depositing with the Escrow Depository, and the Escrow Depository
hereby acknowledges receipt of, the Common Stock certificates listed
in Annex A "Escrow Securities").
2. The Escrow Depository shall not be held to take notice of any terms of
any agreement or any rights stated with respect to the Escrow
Securities unless expressly stated in writing herein.
3. This Agreement shall not be terminated, revoked, rescinded in any
respect without the prior written approval of the securities
commissions of [Arizona, Ohio, Minnesota and Tennessee (the
"Supervising Commissions")].
4. The Escrow Securities shall not be sold, pledged, hypothecated,
transferred or assigned by any Shareholder during the time period said
Escrow Securities are held on deposit with the Escrow Depository
except as expressly provided in Section 6 hereof or as permitted in
writing by each of the Supervising Commissions. It is understood and
agreed that if the Supervising Commissions permit an assignment during
the term of this Agreement (not otherwise permitted under Section 6),
they are expected to require the assignee to agree to be bound by the
terms of this Agreement.
5. The term of this Agreement shall be five (5) years from the date
hereof or from the effective date of the registration statement
relating hereto, whichever is later (the "Effective Date").
6. The Escrow Despository may release Escrow Securities to the
Shareholders or their assignees, free from the restrictions of this
Agreement as follows:
(a) If the Company has generated net revenues as reported in any
periodic report filed with the SEC of at least $500,000 and the
most recent audited financial statements filed by the Company
with the SEC do not include a going concern qualification, then,
beginning on the later of the date such net revenues are reported
or the first anniversary of Effective Date, and on each of the
dates three, six and nine months thereafter, the Escrow
Depository may release Escrow Securities equal to 2.5% of the
total number of Escrow Securities initially deposited herein.
(b) If the Company has generated net revenues as reported in any
periodic report filed with the SEC of at least $500,000 and the
most recent audited financial statements filed by the Company
with the SEC do not include a going concern qualification, then,
on the later of the date such net revenues are reported or the
second anniversary of Effective Date, the Escrow Depository may
release all Escrow Securities not previously released hereunder.
(c) If the Company has not generated aggregate net revenues as
reported in any periodic report filed with the SEC of at least
$500,000 or its most recent audited financial statements filed by
the Company with the SEC include a going concern qualification,
then, beginning on the second anniversary of Effective Date, and
following each consecutive three month period thereafter through
the fourth anniversary of the completion of the IPO, the Escrow
Depository may release Escrow Securities equal to 2.5% of the
total number of Escrow Securities initially deposited herein,
with any Escrow Securities remaining subject to the terms of this
Agreement to be released on the fourth anniversary of the
completion of the IPO.
(d) Notwithstanding the foregoing, if no shares are sold pursuant to
the IPO, or any shares sold are rescinded or not accepted and the
subscription proceeds are returned to the subscribers, then the
Escrow Depository may release all Escrow Securities upon
termination of the IPO.
7. Each Shareholder agrees that in the event of dissolution, liquidation,
merger, consolidation, sale of assets, exchange or in any transaction
or proceeding which contemplates or results in the distribution of the
assets of the Company in any manner, each such Shareholder does hereby
waive all of his or her right, title and interest and participation in
the assets of the Company with respect to any Escrow Securities not
previously released until the holders of all unescrowed securities
have been paid or irrevocably set aside for them an amount equal to
their purchase price per share, adjusted for stock splits and stock
dividends, after which event the Shareholders shall be entitled to
receive an amount equal to the tangible consideration furnished for
these shares, adjusted for stock splits and stock dividends, and
thereafter the Shareholders shall participate ratably with all holders
of common stock.
8. Unless it is expressly provided in a resolution adopted by a majority
of the Company's independent directors that cash dividends or
distributions declared on the Company's common stock shall be paid
directly to the Shareholders, such dividends or distributions shall be
paid to the Escrow Depository and held under the terms of this
Agreement. The Escrow Depository shall hold in an interest bearing
account such funds, together with any interest earned thereon, subject
to the terms of this Agreement. The Company shall release such funds
to the Shareholders only in respect of and at such time as any Escrow
Securities are released hereunder. In the
event of dissolution, liquidation, merger, consolidation, sale of
assets, exchange or in any transaction or proceeding which
contemplates or results in the distribution of the assets of the
Company in any manner, any funds then held hereunder, and interest
earned thereon, shall be distributed as provided in Section 7 hereof,
and each Shareholder hereby waives its right to receive any such
dividends or distributions payable to the holders of unescrowed
securities.
9. The Shareholders shall retain all voting rights with respect to the
Escrow Securities.
10. This Agreement shall be binding upon the heirs, legatees and personal
representatives of the Shareholders.
11. The fee of the Escrow Depository for its services hereunder shall be
based upon the regular hourly rates of Doepken Keevican & Xxxxx
Professional Corporation, billed at the amount in effect at the time
that the services are rendered.
12. The Company and the Shareholders, jointly and severally, hereby agree
to indemnify and hold harmless the Escrow Depository against any and
all losses, claims, damages, liabilities and expenses, including
reasonable costs or investigation and counsel fees and disbursements,
which may be imposed upon Escrow Depository or incurred by Escrow
Depository in connection with this Agreement, including any litigation
arising from this Agreement.
13. If any controversy arises between the parties hereto or with any third
person with respect to the subject matter of this Agreement, its terms
or conditions, the Escrow Depository shall not be required to
determine the same or take any action on the premises, but may await
the settlement of any such controversy by final appropriate legal
proceedings or otherwise as the Escrow Depository may require, or the
Escrow Depository may institute legal proceedings to determine any
controversy, and in any such event the Escrow Depository shall not be
liable for interest or damages.
14. This Agreement may be executed in separate counterparts, by the
several parties hereto, each of which shall be an original but all of
such counterparts shall together constitute one and the same
instrument.
15. Notwithstanding anything to the contrary contained in this Agreement,
the Escrow Depository may resign from its duties under this Agreement
by giving 30 days' prior written notice of such resignation to the
other parties hereto and may be discharged from its duties under this
Agreement upon the receipt from each of the parties hereto of 30 days
prior written notice of such discharge. Upon the resignation or
discharge of the Escrow Depository, the Company shall retain a
substitute Escrow Depository to perform the functions theretofore
performed by the Escrow Depository under this Agreement.
IN WITNESS WHEREOF, each of the undersigned has caused this Agreement to be
executed as of the day and year first above written.
Doepken Keevican & Xxxxx
Professional Corporation
By: ____________________________
Name: __________________________
Title: _________________________
Xxxxxxxxxxxxxxxxx.xxx, Inc.
By: ____________________________
Name: __________________________
Title: _________________________
SHAREHOLDERS:
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