Exhibit 10.1
SUBSCRIPTION ESCROW AGREEMENT
THIS ESCROW AGREEMENT (the "Agreement") is made and entered into as of September
10, 2015, by and among Tenaya Acquisitions Company , a Nevada corporation (the
"Company"), and BRANCH BANKING AND TRUST COMPANY a North Carolina banking
corporation (the "Escrow Agent"). This Agreement shall be effective as provided
in Paragraph 1 below.
WHEREAS, the Company proposes to offer and sell, on a best-efforts basis up to
3,000,000 shares of the Company's common stock at a purchase price of $0.01 per
share (the "Shares") to investors pursuant to the Company's Rule 419 S-l; and
WHEREAS, the Company desires to establish an escrow in which funds received from
investors and will be deposited (the "Consideration") until termination of
escrow as defined below and the Escrow Agent is willing to serve as Escrow Agent
upon the terms and conditions herein set forth; and
WHEREAS. in order to subscribe for Shares, a Subscriber must deliver the full
amount of its subscription: (i) by check in U.S. dollars, (ii) by wire transfer
of immediately available funds in U.S. dollars, or (iii) as otherwise agreed to
by the Company (collectively, the "Payment").
NOW, THEREFORE, in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged by
the parties, the parties covenant and agree as follows:
1. ESTABLISHMENT OF ESCROW ACCOUNT
The parties have established an escrow account with the Escrow Agent. Company
shall sell the shares on a best efforts basis, a minimum of 1,000,000 and a
maximum of 3,000,000 shares of its common stock only at the price of $0.01 in
the Company's Rule 419 S-l offering.
2. APPOINTMENT OF ESCROW AGENT; DEPOSITS OF CASH AND SECURITIES
(a) The Client hereby appoints the Escrow Agent as its agent and custodian to
hold and disburse the Payment deposited with the Escrow Agent pursuant to the
terms of this Escrow Agreement.
(b) Following the execution of this Escrow Agreement., the Client will cause to
be delivered to the Escrow Agent from time to time any and all Payment in its
possession or received from the Subscribers upon the execution and delivery of
the Subscription Agreement (the "Escrow Funds").
3. RULE 419
Rule 419 requires that the net offering proceeds, after deduction for
underwriting compensation and offering costs, and all securities to be issued be
deposited into an escrow or trust account (the "Deposited Funds" and "Deposited
Securities," respectively) governed by an agreement which contains certain terms
and provisions specified by the rule. Under Rule 419, the Deposited Funds (minus
up to 10% which may be released to the company upon the meeting of the minimum
offering) and Deposited Securities will be released to the Company only after
the Company has met the following three conditions: First., the Company must
execute an agreement for an acquisition(s) meeting certain prescribed criteria;
second, the Company must successfully complete a reconfirmation offering which
includes certain prescribed terms and conditions; and third, the acquisition(s)
meeting the prescribed criteria must be consummated.
4. DEPOSIT AND INVESTMENT OF PROCEEDS.
i. All offering proceeds shall be deposited promptly into the escrow account.
ii. Deposited proceeds shall be in the form of checks, drafts, or money orders
payable to the order of the escrow agent.
iii. The Company may receive up to 10 percent of the proceeds only after such
time as the minimum offering has been completed and upon written request of the
Client.
iv. Deposited proceeds shall remain in cash.
5. POST-EFFECTIVE AMENDMENT
Once a proposed acquisition(s) of a business(es) meeting the above criteria has
(have) been identified, Rule 419 requires the Company to update the registration
statement of which this prospectus is a part with a post-effective amendment.
The post-effective amendment must contain information about: the proposed
acquisition candidate(s) and its business(es), including audited financial
statements; the results of this offering: and the use: of too funds to be
disbursed from the escrow account. The post-effective amendment must also
include the terms of the reconfirmation offer mandated by Rule 419. The offer
must include certain prescribed conditions (80% of the investors must reconfirm
the offering) which must be satisfied before the Deposited Funds and Deposited
Securities can be released from escrow.
6. RECONFIRMATION OFFERING
The reconfirmation offer must commence within five business days after the
effective date of the post-effective amendment. Pursuant to Rule 419, the terms
or the reconfirmation offer must include the following conditions:
i. The prospectus contained in the post-effective amendment will be sent to each
investor whose securities are held in the escrow account within five business
days after the effective date of the post-effective amendment;
ii. Each investor will have no fewer than 20, and no more than 45, business days
from the effective date of the post-effective amendment to notify the Company in
writing that the investor elects to remain an investor;
iii. The Company does not receive written notification from any investor within
45 business days following the effective date, the pro rata portion of the
Deposited Funds (and any related interest or dividends) held in the escrow
account on such investor's behalf will be returned to the investor within five
business days by first class mail or other equally prompt means; The Company
will send written disbursement instruction to the Escrow Agent including the
amount of pro-rata interest owed to the investor.
iv. The acquisition(s) will be consummated only if investors having contributed
80% of the maximum offering proceeds elect to reconfirm their investments; and
v. If a consummated acquisition(s) has not occurred within 18 months from the
date of this agreement. the Deposited Funds held in the escrow account shall be
returned to all investors on a pro rata basis within five business days by first
class mail or other equally prompt means.; The Company will send written
disbursement instruction to the Escrow Agent.
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7. RELEASE OF DEPOSITED SECURITIES AND DEPOSITED FUNDS
Methods of Disposition of Escrow Funds.
The Escrow Agent will hold the Escrow Funds as specified in this Escrow
Agreement until authorized hereunder to deliver such Escrow Funds as follows:
The Deposited Funds may be released to the Company after:
i. The Escrow Agent has received written certification from the Company and any
other evidence acceptable by the Escrow Agent that the Company has executed an
agreement for the acquisition(s) of a business(es) the value of which represents
at least 80% of the maximum offering proceeds and has filed the required
post-effective amendment, the post-effective amendment has been declared
effective, the mandated reconfirrnation offer having the conditions prescribed
by Rule 419 has been completed, and the Company has satisfied all of the
prescribed conditions of the reconfirmation offer, and
ii. The acquisition(s) of the business(es) the value of which represents at
least 80% of the maximum offering proceeds is (are) consummated .
If the minimum offering amount is not raised within 180 days (or 360 days if the
company extends the offering period), the pro rata portion of the Deposited
Funds will be returned to investors. ; The Company will send written
disbursement instruction to the Escrow Agent including the amount owed to the
investor.
8. LIABILITY OF ESCROW AGENT
a. In performing any of its duties under this Agreement, or upon the claimed
failure to perform its duties hereunder, the Escrow Agent shall not be liable to
anyone for any damages, losses, or expenses which it may incur as a result of
the Escrow Agent so acting, or failing to act; provided however the Escrow Agent
shall be liable for damages arising out of its willful default or misconduct or
its gross negligence under this Agreement. Accordingly, the Escrow Agent shall
not incur any such liability with respect to (i) any action taken or omitted to
be taken in good faith upon advice of its counselor counsel for the Company
which is given with respect to any questions relating to the duties and
responsibilities of the Escrow Agent hereunder, or (ii) any action taken or
omitted to be taken in reliance upon any document, including any written notice
or instructions provided for in this Escrow Agreement, not only as to its due
execution and to the validity and effectiveness of its provisions but also as to
the truth and accuracy of any information contained therein, if the Escrow Agent
shall in good faith believe such document to be genuine to have been signed or
presented by a proper person or persons and to conform with the provisions of
this Agreement.
b. The Company hereby agrees to indemnify and hold harmless the Escrow Agent
against any and all losses, claims. damages, liabilities and expenses,
including, without limitation, reasonable costs of investigation and counsel
fees and disbursements which may be incurred by it resulting from any act or
omission of the Company; provided, however, that the Company shall not indemnify
the Escrow Agent for any losses, claims, damages, or expenses arising out of the
Escrow Agent's willful default, misconduct, or gross negligence under this
Agreement.
c. If a dispute ensues between any of the parties hereto which, in the opinion
of the Escrow Agent, is sufficient to justify its doing so, the Escrow Agent
shall be entitled to lender into the registry or custody of any court of
competent jurisdiction, including the Circuit Court of Xxxxxx County, North
Carolina, all money or property in its hands under the terms of this Agreement.,
and to file such legal proceedings as it deems appropriate, and shall thereupon
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be discharged from all further duties under this Agreement. Any such legal
action may be brought in any such court as the Escrow Agent shall determine to
have jurisdiction thereof. The Company shall indemnify the Escrow Agent against
its reasonable court costs and attorneys' fees incurred in filing such legal
proceedings.
9. INABILITY TO DELIVER
In the event that Payments for subscriptions delivered to the Escrow Agent by
the Company pursuant to this Agreement are not cleared through normal banking
channels within 5 days after such delivery, the Escrow Agent shall return such
uncleared Payments to the Company.
10. NOTICE
All notices, requests, demands and other communications or deliveries required
or permitted to be given hereunder shall be in writing and shall be deemed to
have been duly given if delivered personally, given by facsimile confirmed by
telephone call or deposited for mailing, first class, postage prepaid,
registered or certified mail, as follows:
If to the subscribers for Shares:
To their respective
addresses as specified
in their Subscription
Agreements.
If to the Company:
00 X. Xxxx Xxxx Xxxx
#000
Xxxx, Xxxxxxxx 00000
If to the Escrow Agent:
000 Xxxx Xxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Corporate Trust Services
11. FEES TO ESCROW AGENT
In consideration of the services to be provided by the Escrow Agent hereunder,
the Company agrees to pay the fees to the Escrow Agent as shown in Attachment I
hereto.
12. GENERAL
This Agreement shall be interpreted, construed and enforced in all respects in
accordance with the laws of the State of North Carolina applicable to contracts
to be made and performed entirely in said state.
d. The section headings contained herein are for reference purposes only and
shall not in any way affect the meaning or interpretation of this Agreement.
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e. This Agreement sets forth the entire agreement and understanding of the
parties with regard to this escrow transaction and supersedes all prior
agreements, arrangements and understandings relating to the subject matter
hereof.
f. This Agreement may be amended, modified. superseded or cancelled, and any of
the terms or conditions hereof may be waived, only by a written instrument
executed by each party hereto or, in the case of a waiver by the party waiving
compliance. The failure of any party at any time or times to require performance
of any provision hereof shall in no manner affect the right at a later time to
enforce the same. No waiver in any one or more instances by any party of any
condition, or of the breach of any term contained in this Agreement, whether by
conduct or otherwise, shall be deemed to be, or construed as a further or
continuing waiver of any such condition or breach, or a waiver of any other
condition or of the breach of any other terms of this Agreement.
g. This Agreement may be executed simultaneously in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
h. This Agreement shall inure to the benefit of the parties hereto and their
respective administrators, successors, and assigns.
13. REPRESENTATION OF THE COMPANY
The Company hereby acknowledges that the status or the Escrow Agent with respect
to the offering of the Shares is that of agent only for the limited purposes
herein set forth, and hereby agrees it will not represent or imply that the
Escrow Agent, by serving as the Escrow Agent hereunder or otherwise, has
investigated the desirability or advisability of an investment in the Shares or
has approved. endorsed or passed upon the merits of the Shares, nor shall the
Company use the name of the Escrow Agent in any manner whatsoever in connection
with the offer or sale of the Shares, other than by acknowledgement that it has
agreed to serve as Escrow Agent for the limited purposes herein set forth.
14. RESIGNATION OR ESCROW AGENT
If, at any time, any attempt is made to modify this Agreement in a manner that
would increase the duties and responsibilities of me Escrow Agent, or to modify
the Escrow Agreement in any manner that the Escrow Agent shall deem undesirable,
the Escrow Agent may resign by notifying the Company. Such resignation shall
become effective on the earlier to occur of(i) the acceptance by a successor
Escrow Agent or (ii) sixty (60) days following the date upon which notice was
mailed. Until such time as the Escrow Agent has resigned in accordance herewith,
the Escrow Agent shall perform its duties hereunder in accordance with the terms
of this Escrow Agreement.
15. FORCE MAJEURE
The Escrow Agent shall not be responsible for any failure or delay in the
performance of its obligations under this Agreement arising out of or caused,
directly or indirectly, by circumstances beyond its reasonable control,
including without limitation, acts of God, earthquakes, fires, floods, wan,
civil or military disturbances, sabotage, epidemics, riots, interruptions, loss
or malfunctions of utilities, computer (hardware or software) or communication
service, accidents, labor disputes, acts of civil or military authority, or
governmental actions.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the date
first above written.
THE COMPANY
/s/ Xxxxx Xxxxxxxxx
------------------------------------
Xxxxx Xxxxxxxxx, President
Tenaya Acquisitions Company
"ESCROW AGENT" BRANCH BAN RUST COMPANY
BRANCH BANK AND TRUST COMPANY
By: /s/ Xxxxxx X. XxXxx
---------------------------------
Name: Xxxxxx X. XxXxx
Title: Vice President
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ATTACHMENT 1
Escrow Agent Fee Schedule
FEES PAYABLE TO ESCROW AGENT
Escrow Fee: $2,500.00
*Escrow fee due net 30 upon execution of Escrow Agreement.
In the event the escrow is not funded, the Escrow Fee and all related expenses
remain due and payable, and if paid, will not be refunded.
The fees quoted in this schedule apply to services ordinarily rendered in the
administration of an Escrow Account and are subject to reasonable adjustment
based on final review of documents, or when the Escrow Agent is called upon to
undertake unusual duties or responsibilities, or as changes in law, procedures,
or the cost of doing business demand. Services in addition to and not
contemplated in this Agreement, including, but not limited to, document
amendments and revisions, non-standard cash and/or investment transactions,
calculations, notices and reports, and legal fees, will be billed as
extraordinary expenses. Transaction costs include charges for wire transfers,
checks, internal transfers and securities transactions.
Unless otherwise indicated, the above fees relate to the establishment of one
escrow account. Additional sub-accounts governed by the same Escrow Agreement
may incur an additional charge.
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