EXHIBIT 99.2
ESCROW AGREEMENT
AGREEMENT made as of the 3rd day of May 2012 by and between Personality
Software Systems, Inc. ("Issuer"), and the Law Offices of Xxxxxx X. Xxxxxxxx,
Esq., Ltd., 0000 X. Xx. Xxxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxx 00000 (the "Escrow
Agent")
WITNESSETH
WHEREAS, the Issuer proposes to establish with the Escrow Agent an escrow
account (the "Escrow Account"), to which subscription monies which are received
by the Escrow Agent from the Issuer 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; and
WHEREAS, the Escrow Agent has an agreement with Bank of the West or such
other bank as selected by the Escrow Agent and reasonably acceptable to the
Issuer to establish a special bank account (the "Bank Account") into which the
subscription monies, which are received by the Escrow Agent from the Issuer and
credited to the Escrow Account, are to be deposited;
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 at the branch of Bank of the West and bearing the title 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. No interest will be available to either the purchasers or the Company
(since the funds are being held in a non-interest bearing account).
2.2 The Offering Period, which shall be deemed to commence on the date
set forth in the Issuer's Prospectus to be supplied to the Escrow Agent and to
terminate on the date 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 "Law Offices of Xxxxxx X.
Xxxxxxxx, Esq., Ltd., Client Trust Account f/b/o Personality Software Systems,
Inc.". Any check payable other than to the Escrow Agent as required hereby shall
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be returned to the Issuer, 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 of the West 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 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
(since the funds are being held in a non-interest bearing account) thereon or
deduction there from, 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 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, by drawing checks on the Bank Account in accordance
with instruction in writing signed by the Issuer as to the disbursement of the
Fund, promptly after it receives such instructions. In the event that cleared
funds exceed the Minimum Dollar Amount, the Issuer may close on such excess
funds when it closes on the Minimum Dollar Amount or opt to close on such excess
funds at a later date or dates. Such closing(s) may take place by mutual
agreement of the Issuer any time during or after the Offering Period. Release of
the funds to the Company is based upon our escrow agent, Law Offices of Xxxxxx
X. Xxxxxxxx, Esq. Ltd., reviewing the records of the depository institution
holding the escrow to verify that that the checks have cleared prior to
releasing the funds to the Company. Written notice will be mailed to each
investor that the minimum offering amount has been received and the offering
proceeds have been distributed to the Company.
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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, shall be utilized
to allow such uncollected amounts to clear the banking system. The Escrow Agent
shall not deposit or 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 Termination Date 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 4.1 hereof.
4.4 Upon disbursement of the Fund pursuant to the terms of this
Article 4, the Escrow Agent shall be relieved of all further obligations and
relieved 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:
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 or be required to
enforce any of the terms or conditions of any agreement between the Issuer and
third parties nor shall the Escrow Agent be responsible for the performance by
the Issuer of its respective 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 except as
to the names, addresses and amounts of such payments; however, the Escrow Agent
shall notify the Issuer promptly 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 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
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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 such 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.
6. Amendment; Resignation. This Agreement may be altered or amended only
with the written consent of the parties hereto. The Escrow Agent (and any
successor escrow agent) at any time may be discharged from its duties and
obligations hereunder by the delivery to it of a notice of termination signed by
the Company, or at any time the Escrow Agent may resign by giving written notice
to such effect to the Issuer. Upon any such termination or resignation, the
Escrow Agent shall deliver the Escrowed Amounts or the Fund to any successor
escrow agent jointly designated by the other parties hereto in writing, or to
any court of competent jurisdiction if no such successor escrow agent is agreed
upon, whereupon the Escrow Agent shall be discharged of and from any and all
further obligations arising in connection with this Escrow Agreement. The
termination of services or resignation of the Escrow Agent shall take effect on
the earlier of (i) the appointment of a successor (including a court of
competent jurisdiction) or (ii) the day that is 30 days after the date of
delivery: (A) to the Escrow Agent of the other parties' notice of termination or
(B) to the other parties hereto of the Escrow Agent's written notice of
resignation. If at that time the Escrow Agent has not received a designation of
successor escrow agent, the Escrow Agent's sole responsibility after that time
shall be to keep the Escrowed Amounts or the Fund safe until receipt of a
designation of a successor escrow agent or a joint written disposition
instruction by the other parties hereto or an enforceable order of a court of
competent jurisdiction. Without limiting the provisions of Section 8 hereof, the
resigning Escrow Agent shall be entitled to be reimbursed by the Issuer 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.
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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.
9. Indemnification and Contribution.
9.1 The Issuer (referred to as 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 such 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 the Article 9 shall survive any termination of
this Agreement, whether by disbursement of the Fund, resignation of the Escrow
Agent or otherwise.
10. Participating Broker/Dealers.
The Issuer will notify the Escrow Agent of the names of any participating
broker/dealers other than the Issuer and the Escrow Agent is authorized to
accept subscription payments from such broker/dealers and/or their customers.
11. Governing Law and Assignment. This Agreement shall be construed in
accordance with and governed by the laws of the State of Nevada 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, which consent shall not be unreasonably
withheld or delayed.
12. Notices. All notices required to be given in connection with this
Agreement shall be (a) delivered by hand or by facsimile (with confirmation of
receipt), or (b) sent by registered or certified mail, or by the Express Mail
service offered by the United States Post Office with proper postage prepaid,
and addressed as follows:
If to the Issuer, to:
Personality Software Systems, Inc.
00000 X. Xxxxxx Xxxx., Xx. 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Telephone (000) 000-0000
If to the Escrow Agent:
Law Offices of Xxxxxx X. Xxxxxxxx, Esq., Ltd.
0000 X. Xx. Xxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
Telephone (000) 000-0000
Facsimile (000) 000-0000
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or to such other address as the person to whom notice is to be given may have
previously furnished to the others in the above-referenced manner. All such
notices and communications, if mailed, shall be effective, if to the Issuer,
five days after deposited in the mails, and if to the Escrow Agent shall not be
effective until received. Notices of changes of address shall not be effective
until received.
13. 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.
14. 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.
15. 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.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
day and year first above written.
PERSONALITY SOFTWARE SYSTMENS, INC.
By: /s/ Xxxxx Xxxxxx
---------------------------------
Xxxxx Xxxxxx
President
Law Offices of Xxxxxx X. Xxxxxxxx, Esq., Ltd.
By: /s/ Xxxxxx X. Xxxxxxxx, Esq.
---------------------------------
Xxxxxx X. Xxxxxxxx, Esq.
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ESCROW AGREEMENT INFORMATION SHEET
1. The Issuer
Name: Personality Software Systems, Inc.
Address: 00000 X. Xxxxxx Xxxx, Xx. 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
State of Incorporation: Nevada
2. The Escrow Agent
Name: Law Offices of Xxxxxx X. Xxxxxxxx, Esq., Ltd.
Address: 0000 X. Xx. Xxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
3. The Securities
Description of the Securities to be offered: Shares of Common Stock
Offering Price per Share: $0.05 per Share.
4. Minimum Amount 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"): $30,000.00.
Total amount of securities which must be subscribed for before the Escrow
Account may be disbursed to the Issuer ("Minimum Securities Amount"):
600,000 Shares of Common Stock.
5. Plan of Distribution of the Securities
Offering Period: From the date of the Prospectus until _____________, 2012.
6. Title of Bank Account:
Law Offices of Xxxxxx X. Xxxxxxxx, Esq., Ltd. Client Trust Account f/b/o
Personality Software Systems, Inc.
7. Escrow Agent Fees
The Escrow Agent fee is $2,500.00 and is payable for establishing the
escrow account. All other fees will be mutually agreed upon by the Issuer
and the Escrow Agent.
8. Federal I.D. No. 00-0000000
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