ESCROW AGREEMENT
Exhibit
10.13
THIS ESCROW AGREEMENT (this
“Agreement”) is
made and entered into as of June 29, 2007 among BUCKEYE VENTURES, INC., a
Michigan corporation (the “Company”); the
Buyer(s) listed on the Securities Purchase Agreement, dated the date hereof
(also referred to as the “Investor(s)”), and
XXXXX X. XXXXXXX XX,
P.A., as Escrow Agent hereunder (the "Escrow
Agent").
BACKGROUND
WHEREAS, the Company and the
Investor(s) have entered into a Securities Purchase Agreement (the “Securities Purchase
Agreement”), dated as of the date hereof, pursuant to which the Company
proposes to sell secured convertible debentures (the “Convertible
Debentures”) which shall be convertible into the Company’s Common Stock,
par value US$.001 per share (the “Common Stock”), at a
price per share equal to the Purchase Price, as that term is defined in the
Convertible Debentures. The Securities Purchase Agreement provides that the
Investor(s) shall deposit the purchase amount in a segregated escrow account to
be held by Escrow Agent in order to effectuate a disbursement to the Company at
a closing to be held as set forth in the Securities Purchase Agreement (the
“Closing”).
WHEREAS, the Company intends
to sell Convertible Securities (the “Offering”).
WHEREAS, Escrow Agent has
agreed to accept, hold, and disburse the funds deposited with it in accordance
with the terms of this Agreement.
WHEREAS, in order to establish
the escrow of funds and to effect the provisions of the Securities Purchase
Agreement, the parties hereto have entered into this Agreement.
NOW THEREFORE, in
consideration of the foregoing, it is hereby agreed as follows:
1. Definitions. The following terms
shall have the following meanings when used herein:
a. “Escrow Funds” shall
mean the funds deposited with Escrow Agent pursuant to this
Agreement.
b. “Joint Written
Direction” shall mean a written direction executed by the Investor(s) and
the Company directing Escrow Agent to disburse all or a portion of the Escrow
Funds or to take or refrain from taking any action pursuant to this
Agreement.
c. “Escrow Period” shall
begin with the commencement of the Offering and shall terminate upon the earlier
to occur of the following dates:
(i) The
date upon which Escrow Agent confirms that it has received in the Escrow Account
all of the proceeds of the sale of the Convertible Debentures;
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(ii) The
expiration of ninety (90) days from the date of commencement of the Offering
(unless extended by mutual written agreement between the Company and the
Investor(s) with a copy of such extension to Escrow Agent); or
(iii) The
date upon which a determination is made by the Company and the Investor(s) to
terminate the Offering prior to the sale of all the Convertible
Debentures.
Except as
otherwise set forth in the Securities Purchase Agreement, during the Escrow
Period, the Company and the Investor(s) are aware that they are not entitled to
any funds received into escrow and no amounts deposited in the Escrow Account
shall become the property of the Company or the Investor(s) or any other entity,
or be subject to the debts of the Company or the Investor(s) or any other
entity.
2. Appointment
of and Acceptance by Escrow Agent. The Investor(s) and the Company hereby
appoint Escrow Agent to serve as Escrow Agent hereunder. Escrow Agent hereby
accepts such appointment and, upon receipt by wire transfer of the Escrow Funds
in accordance with Section 3 below, agrees to hold, invest and disburse the
Escrow Funds in accordance with this Agreement.
a. The
Company hereby acknowledges that the Escrow Agent is counsel to the Investor(s)
in connection with the transactions contemplated and referred herein. The
Company agrees that in the event of any dispute arising in connection with this
Escrow Agreement or otherwise in connection with any transaction or agreement
contemplated and referred herein, the Escrow Agent shall be permitted to
continue to represent the Investor(s) and the Company will not seek to
disqualify such counsel.
3. Creation
of Escrow Account. On or prior to the date of the commencement of the
Offering, the parties shall establish an escrow account with the Escrow Agent,
which escrow account shall be entitled as follows: Trafalgar – Buckeye Ventures
Escrow Account for the deposit of the Escrow Funds. The Investor(s) will
instruct subscribers to wire funds to the account of the Escrow Agent as
follows:
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Bank:
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Bank
of America
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Routing
#:
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026009583
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Account
#:
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4350
0637 4499
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SWIFT
#:
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XXXXXX0X
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Name
on Account:
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Xxxxx
X. Xxxxxxx XX, P.A. as Escrow Agent
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Name
on Sub-Account:
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Trafalgar
– Buckeye Ventures Escrow account
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4. Deposits
into the Escrow Account. The Investor(s) agrees that they shall promptly
deliver funds for the payment of the Convertible Debentures as set forth in the
Securities Purchase Agreement to Escrow Agent for deposit in the Escrow
Account.
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5. Disbursements
from the Escrow Account.
a. The
Escrow Agent will continue to hold such funds until Trafalgar Capital Sarl on
behalf of the Investor(s) and Company execute a Joint Written Direction
directing the Escrow Agent to disburse the Escrow Funds pursuant to Joint
Written Direction signed by the Company and the Investor(s). In disbursing such
funds, Escrow Agent is authorized to rely upon such Joint Written Direction from
the Company and the Investor(s) and may accept any signatory from the Company
listed on the signature page to this Agreement and any signature from the
Investor(s) that the Escrow Agent already has on file.
b. In
the event Escrow Agent does not receive the amount of the Escrow Funds from the
Investor(s), Escrow Agent shall notify the Company and the Investor(s). Upon
receipt of payment instructions from the Company, Escrow Agent shall refund to
each subscriber without interest the amount received from each Investor(s),
without deduction, penalty, or expense to the subscriber. The purchase money
returned to each subscriber shall be free and clear of any and all claims of the
Company, the Investor(s) or any of their creditors.
c. In
the event Escrow Agent does receive the amount of the Escrow Funds prior to
expiration of the Escrow Period, in no event will the Escrow Funds be released
to the Company until such amount is received by Escrow Agent in collected funds.
For purposes of this Agreement, the term “collected funds” shall mean all funds
received by Escrow Agent which have cleared normal banking channels and are in
the form of cash.
6. Collection
Procedure. Escrow Agent is hereby authorized to deposit the proceeds of
each wire in the Escrow Account.
7. Suspension
of Performance: Disbursement Into Court. If at any time, there shall
exist any dispute between the Company and the Investor(s) with respect to
holding or disposition of any portion of the Escrow Funds or any other
obligations of Escrow Agent hereunder, or if at any time Escrow Agent is unable
to determine, to Escrow Agent’s sole satisfaction, the proper disposition of any
portion of the Escrow Funds or Escrow Agent’s proper actions with respect to its
obligations hereunder, or if the parties have not within thirty (30) days of the
furnishing by Escrow Agent of a notice of resignation pursuant to Section 9
hereof, appointed a successor Escrow Agent to act hereunder, then Escrow Agent
may, in its sole discretion, take either or both of the following
actions:
a. suspend
the performance of any of its obligations (including without limitation any
disbursement obligations) under this Escrow Agreement until such dispute or
uncertainty shall be resolved to the sole satisfaction of Escrow Agent or until
a successor Escrow Agent shall be appointed (as the case may be); provided
however, Escrow Agent shall continue to invest the Escrow Funds in accordance
with Section 8 hereof; and/or
b. petition
(by means of an interpleader action or any other appropriate method) any court
of competent jurisdiction in any venue convenient to Escrow Agent, for
instructions with respect to such dispute or uncertainty, and to the extent
required by law, pay into such court, for holding and disposition in accordance
with the instructions of such court, all funds held by it in the Escrow Funds,
after deduction and payment to Escrow Agent of all fees and expenses (including
court costs and attorneys’ fees) payable to, incurred by, or expected to be
incurred by Escrow Agent in connection with performance of its duties and the
exercise of its rights hereunder.
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c. Escrow
Agent shall have no liability to the Company, the Investor(s), or any person
with respect to any such suspension of performance or disbursement into court,
specifically including any liability or claimed liability that may arise, or be
alleged to have arisen, out of or as a result of any delay in the disbursement
of funds held in the Escrow Funds or any delay in with respect to any other
action required or requested of Escrow Agent.
8. Investment
of Escrow Funds. Escrow Agent shall deposit the Escrow Funds into a
segregated escrow account which shall be used solely in connection with this
transaction (the “Escrow Account”).
If Escrow
Agent has not received a Joint Written Direction at any time that an investment
decision must be made, Escrow Agent shall maintain the Escrow Funds, or such
portion thereof, as to which no Joint Written Direction has been received, in
the Escrow Account.
9. Resignation
and Removal of Escrow Agent. Escrow Agent may resign from the performance
of its duties hereunder at any time by giving thirty (30) days’ prior written
notice to the parties or may be removed, with or without cause, by the parties,
acting jointly, by furnishing a Joint Written Direction to Escrow Agent, at any
time by the giving of ten (10) days’ prior written notice to Escrow Agent as
provided herein below. Upon any such notice of resignation or removal, the
representatives of the Investor(s) and the Company identified in Sections
13a.(iv) and 13b.(iv), below, jointly shall appoint a successor Escrow Agent
hereunder, which shall be a commercial bank, trust company or other financial
institution with a combined capital and surplus in excess of US$10,000,000.00.
Upon the acceptance in writing of any appointment of Escrow Agent hereunder by a
successor Escrow Agent, such successor Escrow Agent shall thereupon succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring Escrow Agent, and the retiring Escrow Agent shall be discharged from
its duties and obligations under this Escrow Agreement, but shall not be
discharged from any liability for actions taken as Escrow Agent hereunder prior
to such succession. After any retiring Escrow Agent’s resignation or removal,
the provisions of this Escrow Agreement shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Escrow Agent under this
Escrow Agreement. The retiring Escrow Agent shall transmit all records
pertaining to the Escrow Funds and shall pay all funds held by it in the Escrow
Account to the successor Escrow Agent, after making copies of such records as
the retiring Escrow Agent deems advisable and after deduction and payment to the
retiring Escrow Agent of all fees and expenses (including court costs and
attorneys’ fees) payable to, incurred by, or expected to be incurred by the
retiring Escrow Agent in connection with the performance of its duties and the
exercise of its rights hereunder.
10. Liability
of Escrow Agent.
a.
Escrow Agent shall have no liability or obligation with respect to the Escrow
Funds except for Escrow Agent’s willful misconduct or gross negligence. Escrow
Agent’s sole responsibility shall be for the safekeeping, investment, and
disbursement of the
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Escrow
Funds in accordance with the terms of this Agreement. Escrow Agent shall have no
implied duties or obligations and shall not be charged with knowledge or notice
or any fact or circumstance not specifically set forth herein. Escrow Agent may
rely upon any instrument, not only as to its due execution, validity and
effectiveness, but also as to the truth and accuracy of any information
contained therein, which Escrow Agent shall in good faith believe to be genuine,
to have been signed or presented by the person or parties purporting to sign the
same and conform to the provisions of this Agreement. In no event shall Escrow
Agent be liable for incidental, indirect, special, and consequential or punitive
damages. Escrow Agent shall not be obligated to take any legal action or
commence any proceeding in connection with the Escrow Funds, any account in
which Escrow Funds are deposited, this Agreement or the Purchase Agreement, or
to appear in, prosecute or defend any such legal action or proceeding. Escrow
Agent may consult legal counsel selected by it in any event of any dispute or
question as to construction of any of the provisions hereof or of any other
agreement or its duties hereunder, or relating to any dispute involving any
party hereto, and shall incur no liability and shall be fully indemnified from
any liability whatsoever in acting in accordance with the opinion or
instructions of such counsel. The Company and the Investor(s) jointly and
severally shall promptly pay, upon demand, the reasonable fees and expenses of
any such counsel.
b. Escrow
Agent is hereby authorized, in its sole discretion, to comply with orders issued
or process entered by any court with respect to the Escrow Funds, without
determination by Escrow Agent of such court’s jurisdiction in the matter. If any
portion of the Escrow Funds is at any time attached, garnished or levied upon
under any court order, or in case the payment, assignment, transfer, conveyance
or delivery of any such property shall be stayed or enjoined by any court order,
or in any case any order, judgment or decree shall be made or entered by any
court affecting such property or any part thereof, then and in any such event,
Escrow Agent is authorized, in its sole discretion, to rely upon and comply with
any such order, writ judgment or decree which it is advised by legal counsel
selected by it, is binding upon it, without the need for appeal or other action;
and if Escrow Agent complies with any such order, writ, judgment or decree, it
shall not be liable to any of the parties hereto or to any other person or
entity by reason of such compliance even though such order, writ, judgment or
decree may be subsequently reversed, modified, annulled, set aside or
vacated.
11. Indemnification
of Escrow Agent. From and at all times after the date of this Agreement,
the parties jointly and severally, shall, to the fullest extent permitted by law
and to the extent provided herein, indemnify and hold harmless Escrow Agent and
each director, officer, employee, attorney, agent and affiliate of Escrow Agent
(collectively, the “Indemnified Parties”)
against any and all actions, claims (whether or not valid), losses, damages,
liabilities, costs and expenses of any kind or nature whatsoever (including
without limitation reasonable attorney’s fees, costs and expenses) incurred by
or asserted against any of the Indemnified Parties from and after the date
hereof, whether direct, indirect or consequential, as a result of or arising
from or in any way relating to any claim, demand, suit, action, or proceeding
(including any inquiry or investigation) by any person, including without
limitation the parties to this Agreement, whether threatened or initiated,
asserting a claim for any legal or equitable remedy against any person under any
statute or regulation, including, but not limited to, any federal or state
securities laws, or under any common law or equitable cause or otherwise,
arising from or in connection with the negotiation, preparation, execution,
performance or failure of performance
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of this
Agreement or any transaction contemplated herein, whether or not any such
Indemnified Party is a party to any such action or proceeding, suit or the
target of any such inquiry or investigation; provided, however, that no
Indemnified Party shall have the right to be indemnified hereunder for liability
finally determined by a court of competent jurisdiction, subject to no further
appeal, to have resulted from the gross negligence or willful misconduct of such
Indemnified Party. If any such action or claim shall be brought or asserted
against any Indemnified Party, such Indemnified Party shall promptly notify the
Company and the Investor(s) hereunder in writing, and the Investor(s) and the
Company shall assume the defense thereof, including the employment of counsel
and the payment of all expenses. Such Indemnified Party shall, in its sole
discretion, have the right to employ separate counsel (who may be selected by
such Indemnified Party in its sole discretion) in any such action and to
participate and to participate in the defense thereof, and the fees and expenses
of such counsel shall be paid by such Indemnified Party, except that the
Investor(s) and/or the Company shall be required to pay such fees and expense if
(a) the Investor(s) or the Company agree to pay such fees and expenses, or (b)
the Investor(s) and/or the Company shall fail to assume the defense of such
action or proceeding or shall fail, in the reasonable discretion of such
Indemnified Party, to employ counsel reasonably satisfactory to the Indemnified
Party in any such action or proceeding, (c) the Investor(s) and the Company are
the plaintiff in any such action or proceeding or (d) the named or potential
parties to any such action or proceeding (including any potentially impleaded
parties) include both the Indemnified Party, the Company and/or the Investor(s)
and the Indemnified Party shall have been advised by counsel that there may be
one or more legal defenses available to it which are different from or
additional to those available to the Company or the Investor(s). The Investor(s)
and the Company shall be jointly and severally liable to pay fees and expenses
of counsel pursuant to the preceding sentence, except that any obligation to pay
under clause (a) shall apply only to the party so agreeing. All such fees and
expenses payable by the Company and/or the Investor(s) pursuant to the foregoing
sentence shall be paid from time to time as incurred, both in advance of and
after the final disposition of such action or claim. The obligations of the
parties under this section shall survive any termination of this Agreement, and
resignation or removal of the Escrow Agent shall be independent of any
obligation of Escrow Agent.
The
parties agree that neither payment by the Company or the Investor(s) of any
claim by Escrow Agent for indemnification hereunder shall impair, limit, modify,
or affect, as between the Investor(s) and the Company, the respective rights and
obligations of Investor(s), on the one hand, and the Company, on the other
hand.
12. Expenses
of Escrow Agent. Escrow Agent shall not be entitled to any fee or
compensation for its services as Escrow Agent. Notwithstanding the preceding
sentence and except as set forth in Section 11, the Company shall reimburse
Escrow Agent for all of its reasonable out-of-pocket expenses, including
attorneys’ fees, travel expenses, telephone and facsimile transmission costs,
postage (including express mail and overnight delivery charges), copying charges
and the like. All of the compensation and reimbursement obligations set forth in
this Section shall be payable by the Company, upon demand by Escrow Agent. The
obligations of the Company under this Section shall survive any termination of
this Agreement and the resignation or removal of Escrow Agent.
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13. Warranties.
a. The
Investor(s) makes the following representations and warranties to Escrow
Agent:
(i) The
Investor(s) has full power and authority to execute and deliver this Agreement
and to perform its obligations hereunder.
(ii) This
Agreement has been duly approved by all necessary action of the Investor(s),
including any necessary approval of the limited partner of the Investor(s) or
necessary corporate approval, as applicable, has been executed by duly
authorized officers of the Investor(s), enforceable in accordance with its
terms.
(iii) The
execution, delivery, and performance of the Investor(s) of this Agreement will
not violate, conflict with, or cause a default under any agreement of limited
partnership of Investor(s) or the certificate of incorporation or bylaws of the
Investor(s) (as applicable), any applicable law or regulation, any court order
or administrative ruling or decree to which the Investor(s) is a party or any of
its property is subject, or any agreement, contract, indenture, or other binding
arrangement.
(iv) Xxxxxx
Xxxxx has been duly appointed to act as the representative of the Investor(s)
hereunder and has full power and authority to execute, deliver, and perform this
Agreement, to execute and deliver any Joint Written Direction, to amend, modify,
or waive any provision of this Agreement, and to take any and all other actions
as the Investor(s)’s representative under this Agreement, all without further
consent or direction from, or notice to, the Investor(s) or any other
party.
(v) No
party other than the parties hereto, or shall have, any lien, claim or security
interest in the Escrow Funds or any part thereof. 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 Funds
or any part thereof.
(vi) All
of the representations and warranties of the Investor(s) contained herein are
true and complete as of the date hereof and will be true and complete at the
time of any disbursement from the Escrow Funds.
b. The
Company makes the following representations and warranties to the Escrow
Agent:
(i) The
Company is a corporation duly organized, validly existing, and in good standing
under the laws of Michigan and has full power and authority to execute and
deliver this Agreement and to perform its obligations hereunder.
(ii) This
Agreement has been duly approved by all necessary corporate action of the
Company, including any necessary shareholder approval, has been executed by duly
authorized officers of the Company, enforceable in accordance with its
terms.
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(iii) The
execution, delivery, and performance by the Company of this Agreement is in
accordance with the Securities Purchase Agreement and will not violate, conflict
with, or cause a default under the certificate of incorporation or bylaws of the
Company, any applicable law or regulation, any court order or administrative
ruling or decree to which the Company is a party or any of its property is
subject, or any agreement, contract, indenture, or other binding arrangement,
including without limitation to the Securities Purchase Agreement, to which the
Company is a party.
(iv) Xxxxx
Xxxxxxxxx has been duly appointed to act as the representative of the Company
hereunder and has full power and authority to execute, deliver, and perform this
Agreement, to execute and deliver any Joint Written Direction, to amend, modify
or waive any provision of this Agreement and to take all other actions as the
Company’s Representative under this Agreement, all without further consent or
direction from, or notice to, the Company or any other party.
(v) To
the Company’s actual knowledge, no party other than the parties hereto and the
Investor(s) have, or shall have, any lien, claim or security interest in the
Escrow Funds or any part thereof. 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 Funds or any part
thereof other than as may be set forth in the Securities Purchase
Agreement.
(vi) All
of the representations and warranties of the Company contained herein are true
and complete as of the date hereof and will be true and complete at the time of
any disbursement from the Escrow Funds.
14. Consent
to Jurisdiction and Venue. In the event that any party hereto commences a
lawsuit or other proceeding relating to or arising from this Agreement, the
parties hereto agree that the United States District Court for the Southern
District of Florida shall have the sole and exclusive jurisdiction over any such
proceeding. If all such courts lack federal subject matter jurisdiction, the
parties agree that the State Courts of Florida located in Broward County shall
have sole and exclusive jurisdiction. Any of these courts shall be proper venue
for any such lawsuit or judicial proceeding and the parties hereto waive any
objection to such venue. The parties hereto consent to and agree to submit to
the jurisdiction of any of the courts specified herein and agree to accept the
service of process to vest personal jurisdiction over them in any of these
courts.
15. Notice. All notices and other
communications hereunder shall be in writing and shall be deemed to have been
validly served, given or delivered five (5) days after deposit in the United
States mails, by certified mail with return receipt requested and postage
prepaid, when delivered personally, one (1) day delivered to any overnight
courier, or when transmitted by facsimile transmission and upon confirmation of
receipt and addressed to the party to be notified as follows:
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If
to Investor(s), to:
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Trafalgar
Capital Specialized Investment Fund
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0-00
Xxx Xxxxxxx Xxxxx
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XX
0000
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X-0000
Xxxxxxxxxx
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Attention:
Xxxxxx Xxxxx, Chairman of the Board of Trafalgar Capital Sarl, General
Partner
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Facsimile:
011-44-207-405-0161 and 001-786-323-1651
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If
to Escrow Agent, to:
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Xxxxx
X. Xxxxxxx XX, P.A.
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0000
Xxxxxxxx Xxx
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Xxxx
Xxxxx, XX 00000
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Attention:
Xxxxx Xxxxxxx Esq.
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Telephone:
(000) 000-0000
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Facsimile:
(000) 000-0000
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If
to the Company, to:
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0000
Xxxxxx Xxxxxx, Xxxxx 0
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Xxx
Xxxxx, XX 00000
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Attention:
Xxxxx Xxxxxxxxx
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Telephone:
(000) 000-0000
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Facsimile:
(000) 000-0000
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With
a copy to:
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Xxxx
X. Xxxxxx, Esq.
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Xxxxx
& Berne LLP
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0000
Xxxx Xxxxxx Xx., Xxx. 0000
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Xxxxxxxxx,
Xxxx 00000-0000
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Telephone:
(000) 000-0000
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Facsimile:
(000) 000-0000
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Or to
such other address as each party may designate for itself by like
notice.
16. Amendments
or Waiver. This Agreement may be changed, waived, discharged or
terminated only by a writing signed by the parties hereto. No delay or omission
by any party in exercising any right with respect hereto shall operate as
waiver. A waiver on any one occasion shall not be construed as a bar to, or
waiver of, any right or remedy on any future occasion.
17. Severability.
To the extent any provision of this Agreement is prohibited by or invalid under
applicable law, such provision shall be ineffective to the extent of such
prohibition, or invalidity, without invalidating the remainder of such provision
or the remaining provisions of this Agreement.
18. Governing
Law. This Agreement shall be construed and interpreted in accordance with
the internal laws of the State of Florida without giving effect to the conflict
of laws principles thereof.
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19. Entire
Agreement. This Agreement constitutes the entire Agreement between the
parties relating to the holding, investment, and disbursement of the Escrow
Funds and sets forth in their entirety the obligations and duties of the Escrow
Agent with respect to the Escrow Funds.
20. Binding
Effect. All of the terms of this Agreement, as amended from time to time,
shall be binding upon, inure to the benefit of and be enforceable by the
respective heirs, successors and assigns of the Investor(s), the Company, or the
Escrow Agent.
21. Execution
of Counterparts. This Agreement and any Joint Written Direction may be
executed in counter parts, which when so executed shall constitute one and same
agreement or direction.
22. Termination.
Upon the first to occur of the disbursement of all amounts in the Escrow Funds
pursuant to Joint Written Directions or the disbursement of all amounts in the
Escrow Funds into court pursuant to Section 7 hereof, this Agreement shall
terminate and Escrow Agent shall have no further obligation or liability
whatsoever with respect to this Agreement or the Escrow Funds.
IN WITNESS WHEREOF the parties
have hereunto set their hands and seals the day and year above set
forth.
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By:
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Name:
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Title:
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TRAFALGAR
CAPITAL SPECIALIZED INVESTMENT FUND, LUXEMBOURG
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By:
Trafalgar Capital Sarl
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Its:
General Partner
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By:
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Name:
Xxxxxx Xxxxx
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Title:
Chairman of the Board
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ESCROW
AGENT
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XXXXX
X. XXXXXXX XX, P.A.
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By:
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Name:
Xxxxx Xxxxxxx, Esq.
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Title:
Partner
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