Exhibit 9.1
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (the "Agreement) is made as of the _____ day of April 2002
among Mintmire & Associates (the "Escrow Agent") and Smart Technology, Inc. (the
"Issuer").
RECITALS
WHEREAS, the Issuer wishes Escrow Agent to act on its behalf with regard to
proceeds from a certain initial public offering of Issuer's Shares of Common
Stock for which it will file on Form SB-1 with the Securities and Exchange
Commission (the "Proceeds'); and
WHEREAS, the Escrow Agent has agreed to act with regard to the Proceeds subject
to the terms and conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the obligations set forth herein and other
good and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the parties agree as follows:
1. Recitals. The recitals set forth above are incorporated herein by reference
as if set out fully in the body of this Agreement.
2. Property Deposited in Escrow. The Issuer and the Escrow Agent shall
establish an attorney escrow account with Wachovia Bank (the "Depository")
in Palm Beach, Florida and entitled "Smart Technology, Inc, IPO Escrow
Account" (the "Escrow Account"). All Proceeds of subscriptions (together
with a list setting forth the names and addresses of each subscriber and
the amounts and dates of receipt of theft respective subscriptions and
copies of the Subscription Agreement and Power of Attorney executed by the
subscriber) for shares of limited issuer interest (the "Shares") in the
Issuer received during the Offering Period (as defined in paragraph 3.6
below) shall be forwarded to the Escrow Agent by noon of the next business
day after receipt of such subscriptions, with copies to the Issuer for
determination of whether to accept such subscriptions. The Issuer shall
deliver to all such prospective subscribers interim receipts for the amount
of the funds deposited in the Escrow Account and copies of such receipts
shall be delivered to the Escrow Agent, said interim receipts to be
substantially in the form of Exhibit A hereto.
3. Authority of Escrow Agent. The Escrow Agent shall collect, hold, deal with
and dispose of the Proceeds and any other property at any time held by it
hereunder in the following manner:
3.1If subscriptions for 100,000-1,000,000 shares ($500,000- $5,000,000) or
more have been received during the Initial Offering Period (as defined in
paragraph 3.6 below), all property deposited in the Escrow Account
(excluding all interest accumulated on the Proceeds paid to subscribers
pursuant to paragraph 3.2 below) shall as soon as practicable be paid over
and delivered to the Issuer upon its written request, upon the
certification by the Issuer to the Escrow Agent that subscriptions
aggregating not less than such 100,000-01,000,000 shares
($500,000-$5,000,000) minimum have been received and accepted, and upon
certification by the Escrow Agent to the Issuer that the Escrow Agent has
received not less than such $100,000 minimum in good clear funds for
deposit in the Escrow Account.
3.2 If such subscriptions for 100,000-1,000,000 shares ($500,000-
$5,000,000) or more have not been received within the Offering Period (as
defined in paragraph 3.6 below), prompt remittance (within 10 days
following termination of the offering) of the Proceeds deposited in the
Escrow Account shall be made by the Escrow Agent to the subscribers at
their respective addresses shown on the list of subscriber names, addresses
and social security numbers delivered to the Escrow Agent pursuant to
paragraph I in the amounts shown thereon and without deductions of any kind
or character. Additionally, any interest which shall be accrued on the
Proceeds during the period of this Agreement shall concurrently be paid to
the subscribers in proportion to their respective subscriptions (taking
into account time of deposit and amount).
3.3 Prior to delivery of the escrowed Proceeds to the Issuer as described
above, the Issuer shall have any title to or interest in the Proceeds on
deposit in the Escrow Account or in any interest earned thereon and such
Proceeds and interest shall under no circumstances be subject to the
liabilities or indebtedness of the Issuer.
3.4 The Escrow Agent shall not be responsible for investment management of
the subscription funds deposited with it. Instead, the Issuer shall cause
all Proceeds deposited with it pursuant to this Agreement to be maintained
and invested as the Issuer shall from time to time direct by written
instrument delivered to the Escrow Agent, in certificates of deposit,
savings accounts (of banks including the Escrow Agent) or direct United
States Government obligations which can be readily liquidated on
twenty-four hours notice so that 100% of the Proceeds so deposited with
interest thereon can, if necessary, be returned to subscribers in
accordance with paragraph 3.2 above. It is expressly agreed that the Escrow
Agent is not guaranteeing that any interest or profits will accrue on the
subscription funds deposited with it. If the 100% of the Proceeds so
deposited are not realized upon such liquidation, the Issuer shall pay the
difference into the Escrow Account for distribution to the subscribers. The
Escrow Agent shall incur no liability for any loss suffered so long as the
Escrow Agent follows such directions.
3.5 At any time prior to the termination of this Agreement, for whatever
reason, the Issuer may notify the Escrow Agent that a Subscription
Agreement of a subscriber has not been accepted or has only been partially
accepted, and the Issuer may direct the Escrow Agent to return as soon
thereafter as may be practicable any Proceeds held in the Escrow Account
for the benefit of such subscriber directly to such subscriber, without
interest. If any check transmitted to the Escrow Agent in connection with a
subscription shall remain uncollected for any reason, the Escrow Agent
shall return such check, together with any other material or documents
received by it in connection with the subscription, to the Issuer.
3.6 The "Offering Period" shall mean in no case later than March 31, 2003,
and subject to earlier termination. The Issuer shall give the Escrow Agent
prompt notice of when the Offering Period commences.
3.7 The Escrow Agent shall not be obligated to inquire as to the form,
manner of execution or validity of any documents herewith or hereafter
deposited pursuant to the provisions hereof, nor shall the Escrow Agent be
obligated to inquire as to the identity, authority or rights of the persons
executing the name. In case of conflicting demands upon it, the Escrow
Agent may withhold performance under this Agreement until such time as said
conflicting demands shall have been withdrawn or the rights of the
respective parties shall have been settled by court adjudication,
arbitration, joint order or otherwise.
3.8 The Escrow Agent shall not be required to separately record on its
books the name, address and amount of each subscription as received, but
shall keep the lists delivered to it pursuant to paragraph 1 above.
4. Fees and Expenses of Escrow Agent. The fees and expenses of the Escrow
Agent shall be fixed at $500.
5. Liability of Escrow Agent. The Escrow Agent shall not be liable for any
action taken or omitted by it in good faith in accordance with the advice
of its counsel and in no event shall it be liable or responsible except for
its won negligence or willful misconduct. The Escrow Agent shall not be
responsible for any loss to the Proceeds resulting from the investment
thereof in accordance with the terms of this Agreement.
6. Indemnification of Escrow Agent. The Issuer agrees to indemnify and hold
harmless the Escrow Agent and its officers, employees and agents from and
against reasonable fees and expenses of the Escrow Agent, including but not
limited to judgments, reasonable attorneys' fees and other liabilities
which the Escrow Agent may incur or sustain by reason of or in connection
with this Agreement.
7. Representations and Warranties of the Issuer. The Issuer warrants to and
agrees with the Escrow Agent that, unless otherwise expressly set forth in
this Agreement, there is no security interest in the Proceeds 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 Proceeds or any part thereof; and
the Escrow Agent shall have no responsibility at any time to ascertain
whether or not any security interest exists in the Proceeds or any part
thereof or to file any financing statement under the Uniform Commercial
Code with respect to the Proceeds or any part thereof.
8. Escrow Agents Compliance with Court Orders. Etc. If any property subject
hereto 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
case any order, writ, judgment or decree shall be made or entered by any
court affecting such property, or any part hereof, then in any of such
events, the escrow Agent is authorized to rely upon and comply with any
such order, writ judgment or decree about which it is advised by legal
counsel of its own choosing is binding upon it, and if it 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, firm or corporation by reason of
such compliance, even though such order, writ, judgment or decree may be
subsequently reversed, modified, annulled, set aside or vacated.
9. Resignation of Escrow Agent. The Escrow Agent may resign by giving ten days
written notice by certified mail, return receipt requested, sent to the
undersigned at their respective addresses herein set forth; and thereafter.
subject to the provisions of the preceding paragraph hereof shall deliver
all remaining deposits in the Escrow Account to a successor escrow agent
acceptable to all other parties hereto, which acceptance shall be evidenced
by the joint written and signed order of the undersigned. If no such order
is received by the Escrow Agent within thirty days after mailing such
notice, it is unconditionally and irrevocably authorized and empowered to
send any and all items deposited hereunder by registered mail to the
respective depositors thereof.
10. Amendments. The Escrow Agent's duties and responsibilities shall be limited
to those expressly set forth in this Agreement and shall not be subject to,
nor obliged to recognize, any other agreement between, or direction or
instruction of, any or all of the parties hereto unless reference thereto
is made herein; provided, however, with the Escrow Agent's written consent,
this Agreement may be amended at any time or times by an instrument in
writing signed by all of the undersigned.
11. Governing Law. This Agreement shall be construed, enforced and administered
in accordance with the laws of the State of Florida applicable to contracts
made and to be performed in that State.
12. Effectiveness. This Agreement shall not become effective (and the Escrow
Agent shall have no responsibility hereunder except to return the property
deposited in the Escrow Account to the subscribers) until the Escrow Agent
shall have received a certificate as to the names and specimen signatures
of the Issuer and shall have advised each of the Issuers in writing that
the same are in form and substance satisfactory to the Escrow Agent.
13. Termination. This agreement shall terminate upon completion of the
obligations provided in either paragraphs 3.1 or 3.2 hereof or as otherwise
provided by written instruction from the Issuer to the Escrow Agent.
14. Notices.
4 14.1 Subject to the provisions of paragraph 14.2 thereof, any notice
required or permitted to be given hereunder shall be effective when
delivered by messenger, or dispatched by certified mail, return receipt
requested, cable or telex, to the respective party at its address specified
below, namely if to Mintmire & Associates, addressed to it at 000 Xxxxxxx
Xxxxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxxxx 00000 Attn: Xxxxxx X. Xxxxxxxx and
if to the Issuer at 000 Xxxxxxxx Xxxxxx XXX 000, Xxxx Xxxx Xxxxx, Xxxxxxx
00000, Attn: Xxxx Xxxxxxxxxx, or to such other address as such party may
have furnished in writing to each of the other parties hereto,
14.2. Any notice which the Escrow Agent is required or desires to give
hereunder to any of the undersigned shall be in writing and may be given by
mailing the same to the address of the undersigned (or to such other
address as said undersigned may have theretofore substituted by written
notification to the Escrow Agent), by certified mail, return receipt
requested, postage prepaid. Notices to or from the Escrow Agent hereunder
shall be in writing and shall not be deemed to be given until actually
received by the Escrow Agent or by the person to whom it was mailed,
respectively. Whenever under the terms hereof the time for giving notice or
performing an act falls upon a Saturday, Sunday or bank holiday, such time
shall be extended to the Escrow Agent's next business day.
IN WITNESS WHEREOF the parties has set their hand and seal effective on
the date first above written.
Mintmire & Associates, Escrow Agent
By: /s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
Smart Technology, Inc., Issuer
By: /s/ Xxxx Xxxxxxxxxx
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Xxxx Xxxxxxxxxx
