ESCROW INSTRUCTIONS
THIS AGREEMENT is made this day 2001, by
and between GREAT EXPECTATIONS AND ASSOCIATES, INC. Hereinafter called
the "Principals," and COLORADO COMMUNITY FIRST NATIONAL BANK
hereinafter called "Escrow Agent."
The subject matter shown in Schedule "A" has been delivered to the
Escrow Agent by the principals, and is to be held by Escrow Agent
subject to the Special Instructions shown in Schedule 'B" and the
General Provisions.
Schedule A - Subject matter
Unless documents are described as Originals, they will be presumed to
be copies. No Escrow Agreement will be signed by the Escrow Agent
unless all documents listed in Schedule "A" are delivered. If an
Escrow Agreement is presented without all of the subject matter listed
in Schedule "A", the Escrow Agent, upon payment of the calculated fee,
may receipt for the Agreement and the subject matter and hold them for
a reasonable time not to exceed thirty (30) days pending delivery. If
all the subject matter is not received in a reasonable time, the
documents will be returned to the party delivering the document and the
fee will be retained for services performed.
PRINCIPALS intend to sell up to 8,000,000 shares of its no par common
stock to investors at $.10 per share and PRINCIPALS shall place the
funds from the sale of said shares together with the stock certificates
representing the shares sold in escrow with the ESCROW AGENT until a
merger occurs between the PRINCIPALS and an acquiring company, or the
Escrow is terminated as hereinafter set forth in this Agreement.
In addition, PRINCIPALS shall deliver to the ESCROW AGENT the following
144 stock certificates to be held by the ESCROW AGENT until a merger
occurs between the PRINCIPALS and an acquiring company, or the escrow
is terminated as hereinafter set forth in this Agreement.
Name and Address Total shares owned
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Schedule B - Special Instructions
The duties of the Escrow Agent must be specifically set forth in this
Schedule. If space is not sufficient, they must be by attachment.
Reference to an attached document or agreement is not acceptable.
1. All monies received by the PRINCIPALS from the sale of its common
stock, the stock certificates and the 144 stock certificates shall be
deposited with the ESCROW AGENT.
2. PRINCIPALS shall notify the ESCROW AGENT of the amount paid by
each purchaser of the non 144 stock.
3. PRINCIPALS shall provide the ESCROW AGENT with such tax
information as may be required in conjunction with the transactions
described herein.
4. ESCROW AGENT shall within fifteen days from receipt of a release
notice from PRINCIPALS disburse the escrow funds and stock certificates
to the PRINCIPALS for delivery to the individual purchasers which
release notice shall be issued by PRINCIPALS only upon the closing of a
successful merger between the PRINCIPALS and an acceptable merger
candidate.
5. The release notice shall be accompanied by proof of a successful
merger.
6. Upon termination of PRINCIPALS' offering, or upon notification
that a merger will not occur or that PRINCIPALS intend to reject a
purchaser's stock subscription ESCROW AGENT shall within fifteen days
pay the applicable purchasers of the non 144 stock by bank check sent
by first class mail the amount paid by the purchaser without interest
or deduction. The purchasers' stock certificates as well as the 144
stock certificates shall be delivered to the PRINCIPALS for delivery to
the holders of the stock certificates.
Schedule C - Compliance with Regulations
1. Deposit Account Records
The deposit account records of the ESCROW AGENT shall provide that the
funds in the escrow account are held for the benefit of the purchasers
named and identified in accordance with section 333.1 of the
regulations of the Federal Depository Insurance Corporation (12 CRF
330.1), and the records of the ESCROW AGENT, maintained in good faith
and in the regular course of business, and they shall show the name and
interest of each party to the account.
2. Deposit and Investment of Proceeds
i. All offering proceeds, after deduction of cash paid for
underwriting commissions, underwriting expenses and dealer allowances,
and amounts permitted to be released to the registrant pursuant to
(b)(2)(vi) of this section, shall be deposited promptly into the escrow
or trust account, provided, however, that no deduction may be made for
underwriting commissions, underwriting expenses or dealer allowances
payable to an affiliate of the registrant.
ii. Deposited proceeds shall be in the form of checks, drafts, or
money orders payable to the order of the escrow agent or trustee.
iii. Deposited proceeds and interest or dividends thereon, if any,
shall be held for the sole benefit of the purchasers of the securities.
iv. Deposited proceeds shall be invested in one of the following:
(a) an obligation that constitutes a "deposit," as that term is
defined in section 3(1) of the Federal Deposit Insurance Act [12 U.S.C.
1813(1)(1991)];
(b) securities of any open-end investment company registered
under the Investment Company Act of 1940 [15 U.S.C. 80a-1 et.seq.] that
holds itself out as a money market fund meeting the conditions of
paragraphs (c)(2), (c)(3), and (c)(4) of Rule 2a-7 [17 CFR 270.2a-7]
under the Investment Company Act; or
(c) securities that are direct obligations of, or obligations
guaranteed as to principal or interest by, the United States.
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Note to (b)(2)(iv): Issuers are cautioned that investments in
government securities are inappropriate unless such securities can be
readily sold or otherwise disposed of for cash at the time required
without any dissipation of offering proceeds invested.
v. Interest or dividends earned on the funds, if any, shall be
held in the escrow or trust account until the funds are released in
accordance with the provisions of this section. If funds held in
escrow or trust account are released to the registrant, interest or
dividends earned on such funds up to the date of release may be
released to the registrant.
vi. The registrant may receive up to 10 percent of the proceeds
remaining after payment of underwriting commissions, underwriting
expenses and dealer allowances permitted by paragraph (b)(2)(i) of this
section, exclusive of interest or dividends, as those proceeds are
deposited into the escrow or trust account.
3. Deposit of Securities
i. All securities issued in connection with the offering, whether
or not for cash consideration, and any other securities issued with
respect to such securities, including securities issued with respect to
stock splits, stock dividends, or similar rights, shall be deposited
directly into the escrow or trust account promptly upon issuance. The
identity of the purchaser of the securities shall be included on the
stock certificates or other documents evidencing such securities. See
also 17 CFR 240.15g-8 regarding restrictions on sales of, or offers to
sell, securities deposited in the escrow or trust account.
ii. Securities held in the escrow or trust account are to remain
as issued and deposited and shall be held for the sole benefit of the
purchasers, who shall have voting rights, if any, with respect to
securities held in their names, as provided by applicable state law.
No transfer or other disposition of securities held in the escrow or
trust account or any interest related to such securities shall be
permitted other than by will or the laws of descent and distribution,
or pursuant to a qualified domestic relations order as defined by the
Internal Revenue Code of 1986 as amended [26 U.S.C. 1 et seq.], or
Title 1 of the Employee Retirement Income Security Act [29 U.S.C. 1001
et seq.], or Title 1 of the Employee Retirement Income Security Act [29
U.S.C. 1001 et seq], or the rules thereunder.
iii. Warrants, convertible securities or other derivative
securities relating to securities held in the escrow or trust account
may be exercised or converted in accordance with their terms; provided,
however, that securities received upon exercise or conversion, together
with any cash or other consideration paid in connection with the
exercise or conversion, are promptly deposited into the escrow or trust
account.
General Provisions
1. The Escrow Agent shall have no duty to know or determine the
performance or nonperformance of any provision of any agreement between
the Principals, and the original, or copy, of any such agreement
deposited with the Escrow Agent shall not bind said Agent in any
manner. The Escrow Agent assumes no responsibility for the validity
or sufficientcy of any document or papers or payments deposited or
called for hereunder except as may be expressly and specifically set
forth in the Special Instructions in clear and unambiguous language.
2. This Agreement may be supplemented, altered, amended, modified or
revoked by writing only, signed by all the Principals, and fees, costs
and expenses incident thereto.
3. No assignment, transfer, conveyance or hypothecation of any right,
title or interest in and to the subject matter of this Escrow shall be
binding upon the Escrow Agent unless written notice thereof approved by
all the Principals shall be served upon the Escrow Agent and all fees,
costs and expenses incident thereto shall have been paid and then only
upon the Escrow Agent's Agreement thereto in writing.
4. Any notice required or desired to be given by the Escrow Agent to
any party to this Escrow may be given by mailing the same addressed to
such party at the address noted herein, or the most recent address of
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such party shown on the records of the Escrow Agent, or believed by
Escrow Agent to be proper, and notice so mailed shall be as effectual
as though served upon such party I person at the time of depositing
such notice in the mail.
5. The Escrow Agent may receive any payment or performance called for
hereunder after the due date thereof unless subsequent to the due date
of such payment or performance and prior to the receipt thereof the
Escrow Agent shall have been instructed in writing by the proper
parties to refuse any such payment.
6. The Escrow Agent shall not be personally liable for any act it may
do or omit to do hereunder as such agent, while acting in good faith
and in the exercise of its own best judgment, and any act done or
omitted by it pursuant to the advise of its own attorneys shall be
conclusive evidence of such good faith. The Escrow Agent shall have
the right at any time to consult with counsel upon any question arising
hereunder and shall incur no liability for any delay reasonable
required to obtain the advice of counsel.
7. The Escrow Agent is hereby expressly authorized to disregard any
and all notices or warning given by any of the parties hereto, or by
any other person, firm or corporation, excepting only orders or process
of court, and is hereby expressly authorized to comply with and obey
any and all process, order, judgment or decree of any court it shall
not be liable to any of the parties hereto or to any other person, firm
or corporation by reason of such compliance, not withstanding any such
process, order, judgment or decree by subsequently reversed, modified,
annulled, set aside or vacated, or found to have been issued or entered
with jurisdiction.
8. In consideration of the acceptance of this escrow by the Escrow
Agent, the Principals agree, jointly and severally, for themselves,
their heirs, legal representatives, successors and assigns, to pay the
Escrow Agent its charges and fees hereunder and to indemnify and hold
it harmless as to any liability by it incurred to any other person,
firm or corporation by reason of its having accepted the same, or in
connection herewith, and under such circumstances, or in the event of a
dispute, whether or not resulting in litigation, between the parties
hereto, or between the parties hereto and the Escrow Agent, and to
reimburse the Escrow Agent for all its expenses, including, among other
things, court costs and reasonable attorney's fees incurred in
connection therewith the Escrow Agent shall have a first and prior lien
upon all deposits made hereunder to secure the performance of this
agreement or indemnity and the payment of all of its fees, charges and
expenses, hereby expressly authorizing the Escrow Agent in the event
payment is not received promptly from the principals, to deduct such
fees, charges and expenses without previous notice from any funds
deposited hereunder. Escrow fees or dharges, as distinguished form
other expenses hereunder, shall be as set forth in paragraph 15, and
are intended as compensation for the Escrow Agent's ordinary services
as contemplated by these instructions. In the event the conditions of
this escrow are not promptly fulfilled, or any dispute arises
hereunder, or if for any other reason the Escrow Agent renders services
not provided for in these Instructions, the parties hereto jointly and
severally agree to pay reasonable compensation for such extra-ordinary
services. In the event of any action to recover the Escrow Agent's
fees, expenses or charges from any party hereto, the Escrow Agent shall
be entitled to a reasonable attorney's fees and costs incurred with
respect to any such action. No provision in any attached special
instructions by which one or more of the other arties hereto shall
undertake to pay such fees, charges and expenses, or any portion
thereof, shall, except as between such other parties only, alter their
joint and several liability to the Escrow Agent for such fees, charges
and expenses.
9. The Escrow Agent shall be under no duty or obligation to ascertain
the identity, authority or rights of the parties (or their agents)
executing or delivering or purporting to execute or deliver these
instructions or any documents or papers or payments deposited or called
for hereunder.
10. The Escrow Agent shall not be liable for the outlawing of any
rights under any Statute of Limitations or by reason of laches in
respect to the Instruction or any documents or papers deposited.
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11. In the event of any dispute between the parties hereto as to the
facts of default or execution, the validity or meaning of these
instructions or any other fact or matter relating to the transaction
between the parties, the Escrow Agent is instructed as follows:
(a) That it shall be under no obligation to act, except under process
or order of court, or until it has been adequately indemnified to its
full satisfaction, and shall sustain no liability for its failure to
act pending such process or court order to indemnification;
(b) That is may in its sole and absolute discretion deposit the
property described herein or so much thereof as remains in its hands
with the then Clerk, or acting Clerk, of the District Court of the
County of , State of , and interplead the
parties hereto, and upon depositing such property and filing its
complaint in the terms hereof as to the property so deposited and shall
be entitled to recover in such interpleader action, from the other
parties hereto, its reasonable attorney fees and related costs and
expenses incurred in commencing such action and furthermore, the
parties hereto for themselves, their heirs, legal representatives,
successors and assigns do hereby submit themselves to the jurisdiction
of said court and do hereby appoint the then Clerk or Acting Clerk, or
said court as their Agent for the Service or all process in connection
with such proceedings. The institution of nay such interpleader
action shall not impair the rights of the Escrow Agent under paragraph
numbered 8, above.
12. This Escrow will expire on or before .
If the deposits hereunder are not withdrawn or this Escrow terminated
prior to this date the Escrow Agent may mail the subject matter as
follows and upon such mailing, the escrow agent shall be relieved from
further responsibility or liability.
13. The Escrow Agent may resign by giving notice in writing to all
parties of its intent to resign. The resignation shall become
effective no sooner than sixty (60) days from the date of mailing of
the notice. The notice will be sent certified mail with return
receipt requested to the addresses set forth below unless these address
have been changed. The principals shall advise the Escrow Agent in
writing of the name of the new Escrow Agent, or fail to advise the
Escrow Agent within the time set forth, the Escrow Agent may treat this
as a dispute and proceed under Paragraph 11 above. If a new Escrow
Agent is designated, then upon delivery of all documents to the new
Escrow Agent, the Escrow Agent is relieved of all further
responsibility or liability.
14. Other Provisions: None
15. Fees for Escrow services shall be according to the fee schedule
in effect at the time the service are being performed. The fees shall
be paid by the Principals as follows:
This agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, personal representatives,
successors and assigns.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
Principals
Great Expectations and Associates, Inc.
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By: Xxxxxxx Xxxxx
Escrow Agent
Colorado Community First National Bank
By:
