AMENDED AND RESTATED ESCROW DEPOSIT AGREEMENT
Exhibit 8.3
AMENDED
AND RESTATED
ESCROW DEPOSIT AGREEMENT
This Amended and Restated ESCROW DEPOSIT AGREEMENT (this “Agreement”) dated as of this th day of , 2018, by and among XSPAND PRODUCT LABS, INC., a Nevada corporation (the “Company”), having an address at 0000 Xxxxxx Xxxxx, Xxxxx X, Xxxxxxxxxx, XX, 00000, ALEXANDER CAPITAL, L.P. a New York limited partnership, (the “Placement Agent”), having an address at 00 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, and SIGNATURE BANK (the “Escrow Agent”), a New York State chartered bank, having an office at 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000. All capitalized terms not herein defined shall have the meaning ascribed to them in that certain Subscription Agreement, dated March 2018, including all attachments, schedules and exhibits thereto (the “SPA”).
WHEREAS, pursuant to the terms of the SPA the Company desires to sell (the “Offering”) a minimum of $6,000,000 (the “Minimum Amount”) and maximum of $10,000,000 (the “Maximum Amount”) of shares of common stock (the “Shares”), par value $0.001 per Share. Each Share is being sold at a price of $ ; and
WHEREAS, unless the Minimum Amount is sold by the earlier of one year after the Offering being qualified by the U.S. Securities and Exchange Commission or the date on which the offering is earlier terminated by the Company (the “Termination Date”) the Offering shall terminate and all funds shall be returned to the subscribers in the Offering, and if the Minimum Amount is met, the Offering may continue until the Termination Date; and
WHEREAS, the Company and Placement Agent desire to establish an escrow account with the Escrow Agent into which the Company and Placement Agent shall instruct subscribers introduced to the Company by Placement Agent (the “Subscribers”) to deposit checks and other instruments for the payment of money made payable to the order of “Signature Bank as Escrow Agent for Xspand Product Labs, Inc..,” and Escrow Agent is willing to accept said checks and other instruments for the payment of money in accordance with the terms hereinafter set forth; and
WHEREAS, the Company, as issuer, and Placement Agent, as an introducing broker-dealer, represent and warrant to the Escrow Agent that they will comply with all of their respective obligations under applicable state and federal securities laws and regulations with respect to the sale of Shares pursuant to the Offering; and
WHEREAS, the Company and Placement Agent represent and warrant to the Escrow Agent that they have not stated to any individual or entity that the Escrow Agent’s duties will include anything other than those duties stated in this Agreement; and
WHEREAS, the Company and Placement Agent represent and warrant to the Escrow Agent that a copy of each document that has been delivered to Subscribers and third parties that include Escrow Agent’s name and duties is attached hereto as Schedule I.
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NOW, THEREFORE, IT IS AGREED as follows:
(a) The Placement Agent and the Company shall instruct Subscribers to deliver to Escrow Agent checks made payable to the order of “Signature Bank, as Escrow Agent for Xspand Product Labs, Inc.,” or wire transfer to Signature Bank, 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000, ABA No. 000000000 for credit to Signature Bank, as Escrow Agent for Xspand Product Labs, Inc., Account No. , in each case, with the name and address of the individual or entity making payment. In the event any Subscriber’s address is not provided to Escrow Agent by the Subscriber, then the Company agrees to promptly provide Escrow Agent with such information in writing. The checks or wire transfers shall be deposited into a non-interest-bearing account at Signature Bank entitled “Xspand Product Labs, Inc., Signature Bank, as Escrow Agent” (the “Escrow Account”).
(b) The collected funds deposited into the Escrow Account are referred to as the “Escrow Funds.”
(c) The Escrow Agent shall have no duty or responsibility to enforce the collection or demand payment of any funds deposited into the Escrow Account. If, for any reason, any check deposited into the Escrow Account shall be returned unpaid to the Escrow Agent, the sole duty of the Escrow Agent shall be to return the check to the Subscriber and advise the Company and Placement Agent promptly thereof.
(a) In the event that the Company and Placement Agent advise the Escrow Agent in writing that the Offering has been terminated (the “Termination Notice”), the Escrow Agent shall promptly return the funds paid by each Subscriber to said Subscriber without interest or offset.
(c) Provided that the Escrow Agent does not receive the Termination Notice in accordance with Section 2(a) and the Minimum Amount has been deposited into the Escrow Account on or prior to the Termination Date, the Escrow Agent shall, upon receipt of written instructions, in the form of Exhibit A, attached hereto and made a part hereof, or in a form and substance satisfactory to the Escrow Agent, received from the Company and Placement Agent, pay the Escrow Funds in accordance with such written instructions, which instructions shall be limited to the payment of the Placement Agent’s fee and other offering expenses and the payment of the balance to the Company (each, a “Closing”). Such payment or payments shall be made by wire transfer within one (1) Business Day of receipt of such written instructions, which must be received by the Escrow Agent no later than 3:00 PM Eastern Time on a Business Day for the Escrow Agent to process such instructions that Business Day. The Company and the Placement Agent further agree that there shall be a limit of three (3) Closings under this Agreement with each Closing limited to four (4) wires. Any additional wires or Closing may be subject to additional fees.
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(d) If by 3:00 P.M. Eastern time on the Termination Date the Escrow Agent has not received written instructions from the Company and Placement Agent regarding the disbursement of the Escrow Funds or the total amount of the Escrow Funds is less than the Minimum Amount, then the Escrow Agent shall promptly return the Escrow Funds to the Subscribers without interest or offset. The Escrow Funds returned to each Subscriber shall be free and clear of any and all claims of the Escrow Agent.
(e) The Escrow Agent shall not be required to pay any uncollected funds or any funds that are not available for withdrawal. Should any party to this Agreement be a non-U.S. entity, the Escrow Agent may require up to an additional five (5) Business Days to open the Escrow Account.
(f) If the Termination Date or any date that is a deadline under this Agreement for giving the Escrow Agent notice or instructions or for the Escrow Agent to take action is not a Business Day, then such date shall be the Business Day that immediately precedes that date. A “Business Day” is any day other than a Saturday, Sunday or a Bank holiday.
(a) The Escrow Agent may act in reliance upon any signature believed by it to be genuine, and may assume that any person who has been designated by Placement Agent or the Company to give any written instructions, notice or receipt, or make any statements in connection with the provisions hereof has been duly authorized to do so. The Escrow Agent shall have no duty to make inquiry as to the genuineness, accuracy or validity of any statements or instructions or any signatures on statements or instructions. The names and true signatures of each individual authorized to act singly on behalf of the Company and Placement Agent are stated in Schedule II, which is attached hereto and made a part hereof. The Company and Placement Agent may each remove or add one or more of its authorized signers stated on Schedule II by notifying the Escrow Agent of such change in accordance with this Agreement, which notice shall include the true signature for any new authorized signatories.
(b) The Escrow Agent may act relative hereto in reliance upon advice of counsel in reference to any matter connected herewith. The Escrow Agent shall not be liable for any mistake of fact or error of judgment or law, or for any acts or omissions of any kind, unless caused by its willful misconduct or gross negligence.
(c) The Placement Agent and the Company agree to indemnify and hold the Escrow Agent harmless from and against any and all claims, losses, costs, liabilities, damages, suits, demands, judgments or expenses (including but not limited to reasonable attorney’s fees) claimed against or incurred by Escrow Agent arising out of or related, directly or indirectly, to this Escrow Agreement unless caused by the Escrow Agent’s gross negligence or willful misconduct.
(d) In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder, the Escrow Agent shall be entitled to (i) refrain from taking any action other than to keep safely the Escrow Funds until it shall be directed otherwise by a court of competent jurisdiction, or (ii) deliver the Escrow Funds to a court of competent jurisdiction.
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(e) The Escrow Agent shall have no duty, responsibility or obligation to interpret or enforce the terms of any agreement other than Escrow Agent’s obligations hereunder, and the Escrow Agent shall not be required to make a request that any monies be delivered to the Escrow Account, it being agreed that the sole duties and responsibilities of the Escrow Agent shall be to the extent not prohibited by applicable law (i) to accept checks or other instruments for the payment of money and wire transfers delivered to the Escrow Agent for the Escrow Account and deposit said checks and wire transfers into the non-interest bearing Escrow Account, and (ii) to disburse or refrain from disbursing the Escrow Funds as stated above, provided that the checks received by the Escrow Agent have been collected and are available for withdrawal.
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If to Placement Agent:
Alexander Capital LP.
00 Xxxxx Xxxxxx 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxx
Fax: (000) 000-0000
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If to the Company:
Xspand Product Labs, Inc
0000 Xxxxxx Xxxxx, Xxxxx X
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxxxxxx Xxxxxxxx
If to Escrow Agent:
Signature Bank
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xx Xxxxxx, Group Director & Senior Vice President
Fax: (000) 000-0000
(a) This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of New York applicable to agreements made and to be entirely performed within such State, without regard to choice of law principles, and any action brought hereunder shall be brought in the courts of the State of New York, located in the County of New York. Each party hereto irrevocably waives any objection on the grounds of venue, forum non-conveniens or any similar grounds and irrevocably consents to service of process by mail or in any manner permitted by applicable law and consents to the jurisdiction of said courts. EACH OF THE PARTIES HERETO HEREBY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
(b) This Agreement sets forth the entire agreement and understanding of the parties with respect to the matters contained herein and supersedes all prior agreements, arrangements and understandings relating thereto.
(c) All of the terms and conditions of this Agreement shall be binding upon, and inure to the benefit of and be enforceable by, the parties hereto, as well as their respective successors and assigns.
(d) This Agreement may be amended, modified, superseded or canceled, 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 its right at a later time to enforce the same. No waiver of any party of any condition, or of the breach of any term contained in this Agreement, whether by conduct or otherwise, in any one or more instances 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 term of this Agreement. No party may assign any rights, duties or obligations hereunder unless all other parties have given their prior written consent.
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(e) If any provision included in this Agreement proves to be invalid or unenforceable, it shall not affect the validity of the remaining provisions.
(f) This Agreement and any modification or amendment of 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.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the date first set forth above.
XSPAND PRODUCT LABS, INC. | ALEXANDER CAPITAL, L.P. | |||
By: | By: | |||
Name: Xxxxxxxxxxx Xxxxxxxx | Name: Xxxxxxxx Xxxxxx | |||
Title: CEO | Title: Managing Director |
SIGNATURE BANK
By: | ||
Name: | ||
Title: | ||
By: | ||
Name: | ||
Title: |
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Schedule I
OFFERING DOCUMENTS
Schedule II
The Escrow Agent is authorized to accept instructions signed or believed by the Escrow Agent to be signed by any one of the following on behalf of the Company and Placement Agent.
XSPAND PRODUCT LABS, INC.
Name | True Signature | |
Xxxxxxxxxxx Xxxxxxxx |
ALEXANDER CAPITAL, L.P.
Name | True Signature | |
Xxxxxxxx Xxxxxx |
Exhibit A
Date:
Signature Bank
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx, Group Director & Senior Vice President
Dear Xx. Xxxxxx:
In accordance with the terms of Section 2(c) of an Escrow Deposit Agreement dated as of January __, 2018 (the “Escrow Agreement”), by and between Xspand Product Labs, Inc. (the “Company”), Alexander Capital, L.P. (the “Placement Agent”), and Signature Bank (the “Escrow Agent”), the Company and Placement Agent hereby notify the Escrow Agent that the closing will be held on for gross proceeds of $ .
PLEASE DISTRIBUTE FUNDS BY WIRE TRANSFER AS FOLLOWS (wire instructions attached):
XSPAND PRODUCT LABS INC.: $ | |
ALEXANDER CAPITAL, L.P.: | $ |
Very truly yours, | ||
XSPAND PRODUCT LABS INC. | ||
By: | ||
Name: | ||
Title: | ||
ALEXANDER CAPITAL, L.P. | ||
By: | ||
Name: | ||
Title: |