Exhibit 10.1
ESCROW AGREEMENT
This Escrow Agreement (this "Agreement") is made and entered into this 2nd
day of May, 2000, by and between Sunrise Software Systems, Inc., a Texas
corporation ("Issuer"), and Charter Escrow Company, Inc., with offices at 0000
Xxx Xxxx Xxxxxx, Xxxxxx, Xxxxx ("Escrow Agent") (Issuer and Escrow Agent may
hereinafter be referred to as a "Party" or the "Parties").
Premises
WHEREAS, Issuer is a Blank Check Company, as that term is defined by
subsection (a)(2) of Rule 419 ("Rule 419") under the Securities Act of 1933, as
amended (the "Act"), intending to sell its common stock, no par value ("Common
Stock"), pursuant to a registration statement on Form SB-2 ("Form SB-2") under
the Act with the Securities and Exchange Commission ("SEC");
WHEREAS, Issuer desires to utilize Escrow Agent's services under the terms
and conditions herein provided to satisfy the restrictions and requirements
imposed on Issuer's offering by Rule 419.
Agreement
NOW, THEREFORE, based on the foregoing premises and for and in
consideration of the mutual promises and covenants hereinafter set forth, the
Parties hereby agree as follows:
A. Appointment of Escrow Agent. In connection with Issuer's proposed
offering of shares of Common Stock to be conducted after such
shares are registered, Issuer appoints Charter Escrow Company,
Inc. as Escrow Agent in connection with Issuer's Rule 419
offering. In connection with the Rule 419 offering:
1. The Escrow Agent shall receive and hold all shares of Common
Stock issued in connection with the offering pursuant to the
terms set forth in this Agreement and in accordance with
Rule 419; deposit the gross proceeds from the offering
promptly into an escrow account maintained by an "insured
depository institution," or into a separate bank account;
and maintain in good faith and in the regular course of
business the escrow account records of the insured
depository institution, or separate bank account, providing
that the funds in the escrow account are held for the
benefit of the purchasers and showing the name and interest
of each party to the account.
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2. The Escrow Agent shall receive compensation of:
a. An Establishment Fee equal of Five Hundred Dollars
($500) upon execution of this Agreement;
b. An Administration Fee equal to 1/4 of 1% of the total
amount of proceeds deposited into the escrow account,
which administration fee shall be payable in arrears on
an annual basis; and
c. The amounts on Exhibit A, Escrow Agent's Schedule of
Fees and Services, for corresponding activities.
B. Duties of Escrow Agent.
1. In connection with the Rule 419 offering, the Escrow Agent
shall:
a. Receive and hold all shares of Common Stock issued in
connection with the offering pursuant to the terms set
forth in this Agreement and in accordance with Rule
419; b. Deposit the gross proceeds from the offering
promptly into an escrow account ("Escrow Account")
maintained by an "insured depository institution," or
into a separate bank account; and
c. Maintain in good faith and in the regular course of
business Escrow Account records of the insured
depository institution, or separate bank account,
providing that the funds in the Escrow Account are held
for the benefit of the purchasers and showing the name
and interest of each party to the account.
2. The Escrow Agent shall be responsible for establishing the
Escrow Account into which the securities to be issued and
the funds to be received in connection with Issuer's
proposed offering shall be deposited and held until an
acquisition meeting the criteria specified in Rule 419 is
completed.
3. The Escrow Agent is not responsible for any act or failure
to act on its part, except in the case of its own willful
misconduct or gross negligence. The Escrow Agent shall not
be liable for any error of judgment or for any act done or
step taken or omitted in good faith, or for any mistake of
fact or law for anything which it may do or refrain from
doing in connection therewith, except for its own willful
misconduct.
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4. The Escrow Agent is not a party to or bound by any agreement
pertaining to the transaction or any other agreement between
the Parties, expect this Agreement.
5. In the event of any disagreement between the Parties or any
person resulting in adverse claims or demands being made in
connection with or for any of the amount in escrow, the
Escrow Agent shall be entitled, at its option, to refuse to
comply with any such claim or demand so long as such
disagreement shall continue, and to initiate a legal
proceeding, including but not limited to an impleader
action, to have the dispute resolved. Until resolution of
any such disagreement, Escrow Agent may refuse to deliver or
otherwise dispose of funds until:
a. The rights of the adverse claimant have been finally
adjudicated in the court assuming and having
jurisdiction of the Parties and the amount in escrow;
or
b. The differences shall have been adjusted by agreement
among the affected Parties and the Escrow Agent shall
have been notified thereof in writing signed by the
interested Parties.
6. The duties of the Escrow Agent hereunder are entirely
ministerial, being limited to receiving, holding, and
disbursing the amount in escrow as provided herein. The
Escrow Agent may rely upon and will be protected in acting
upon any paper or other document which may be submitted to
it in connection with its duties hereunder and which is
believed by it to be genuine and to have been signed by the
proper party or parties or their representatives, and shall
have no liability or responsibility with respect to the
form, execution, or validity thereof.
C. Deposit and Investment of Offering Proceeds. The proceeds from
the Issuer's offering will be deposited as follows:
1. All offering proceeds, after deduction of cash paid for
underwriting commissions, underwriting expenses, dealer
allowances, and amounts permitted to be released to the
Issuer pursuant to Rule 419(b)(2)(vi) and Section E(1)
herein, shall be deposited promptly into the Escrow Account.
2. Deposited proceeds shall only be invested in an obligation
that constitutes a "deposit", as that term is defined in
section 3(l) of the Federal Deposit Insurance Act.
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3. Interest or dividends earned on the funds, if any, shall be
held in the Escrow Account until the funds are released. If
funds held in the Escrow Account are released to a purchaser
of the securities, the purchasers shall receive interest or
dividends earned, if any, on such funds until the date of
release. If funds held in the Escrow Account are released to
the Issuer, interest or dividends earned on such funds up to
the date of release shall be released to the Issuer.
D. Deposit of Securities.
1. 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 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.
2. Securities held in the Escrow 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 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 [26 U.S.C. 1 et seq.], or the
rules thereunder.
E. Distribution and Release of Deposited Securities and Funds.
1. Ten percent (10%) of the net offering proceeds (after
deducting the maximum finders' fees and expenses allowed)
shall be deducted from the funds held in the Escrow Account
and be released to the Issuer prior to the consummation of a
business combination(s), as provided by Rule 419(b)(2)(vi).
2. The securities held in the Escrow Account shall be delivered
to the purchaser or other registered holder identified on
the deposited securities only at the same time as, or,
after:
a. The Escrow Agent has received a signed representation
from the Issuer that the requirements of paragraphs
(e)(1) and (e)(2) of Rule 419 have been met, including
receipt by Issuer of Rule 419(e)(2)(iii) confirmations
from investors of at least 75% of the proceeds raised;
and
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b. Consummation of an acquisition(s) meeting the
requirements of paragraph (e)(2)(iii) of Rule 419.
F. Governing Law. This Agreement shall be governed by, enforced, and
construed under and in accordance with the laws of the State of
Texas. . The below signatures by the authorized representatives
of the Issuer and Escrow Agent witness their respective agreement
to act in accordance with the terms hereof.
Issuer - Sunrise Software Systems, Inc. Escrow Agent - Charter Escrow
Company, Inc.
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxx Xxxxxx
Xxxxxx X. Xxxxxxx, President Xxxxx Xxxxxx, President
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