ESCROW AGREEMENT
This Escrow Agreement, dated as of
February 25, 2009 (this “Agreement”), is
entered into by and between CRC Crystal Research Corporation, with its principal
offices at 0000 Xxxx Xxxxxxx Xx, Xxxx, XX 00000 (the “Company”), and Escrow, LLC
(the “Escrow
Agent”), with its principal offices located at 00 Xxxx Xxxxxx, Xxxxx 000,
Xxxxxxxxx, XX 00000. The Company is sometimes referred to herein as the
Escrowing Party.
WITNESSETH:
WHEREAS,
the Officers and Directors propose to make a private offering pursuant to
Regulation S and/or Rule 415 of the Securities Act of 1933, as amended (the
“Offering” and
the “Act,”
respectively) of Company’s Five Million shares (5,000,000) on a “best efforts”
basis at $1.00 per share pursuant to a Securities Purchase Agreement among the
Company Officers and Directors and the Investors
WHEREAS,
the Company desires to deposit monies received from Investors pending the
closing(s) (the “Closing”) under the Purchase Agreement (the “Escrowed Funds”)
with the Escrow Agent, to be held in escrow until joint written instructions are
received by the Escrow Agent from the Company, at which time the Escrow Agent
will disburse the Escrowed Funds in accordance with the instructions (a
“Closing”); and
WHEREAS,
Escrow Agent is willing to hold the Escrowed Funds in escrow in subject to the
terms and conditions of this Agreement.
NOW,
THEREFORE, in consideration of the mutual promises herein contained and
intending to be legally bound, the parties hereby agree as follows:
1.
Appointment of Escrow
Agent. The Company hereby appoints Escrow Agent as escrow
agent in accordance with the terms and conditions set forth herein and the
Escrow Agent hereby accepts such appointment.
2.
Delivery of the
Escrowed Funds.
2.1 The
Company will direct Investors to deliver the Escrowed Funds to the Escrow Agent,
addressed to the following account of the Escrow Agent.
Domestic:
Virginia
Commerce Bank
Leesburg,
VA
ABA#000000000
Account
Name: Escrow, LLC
Account
#: 00000000
1
International:
Correspondent
Bank: Xxxxx Fargo Bank, San Francisco, CA
SWIFT#:
XXXXXX0X
Credit
Account #: 000-00-00000
Virginia
Commerce Bank
FBO
Account Name: Escrow, LLC
Account:
00000000
A
Reference must be made on the wire for the transaction.
2.2 All
Investors’ checks shall be made payable to “ESCROW, LLC” and shall be delivered
to the Escrow Agent at the address set forth on Exhibit A hereto and
shall be accompanied by a written account of subscription in the form attached
hereto as Exhibit
B (the “Subscription Information”) The Escrow Agent shall, upon receipt
of Escrowed Funds deposit such funds in escrow.
2.3 Any
checks which are received by Escrow Agent that are made payable to a party other
than the Escrow Agent shall be returned directly to the Company together with
any documents delivered therewith. Simultaneously with each deposit,
the Company shall provide the Escrow Agent with the Subscription Information to
include the name, address and taxpayer identification number of each Investor.
The Escrow Agent is not obligated, and may refuse, to accept checks that are not
accompanied by Subscription Information.
2.4 In
the event a wire transfer is received by the Escrow Agent and the Escrow Agent
has not received Subscription Information, the Escrow Agent shall notify the
Placement Agent. If the Escrow Agent does not receive the Subscription
Information relating to an Investor prior to close of business on the third
business day (days other than a Saturday or Sunday or other day on which the
Escrow Agent is not open for business in the State of Virginia) after notifying
the Placement Agent of receipt of said wire, the Escrow Agent shall return the
funds to the Investor.
3.
Escrow Agent to Hold
and Disburse Escrowed Funds. The Escrow Agent will
hold and disburse the Escrowed Funds received by it pursuant to the terms of
this Escrow Agreement, as follows:
3.1 Upon
receipt of joint instructions from the Company and the Placement Agent, in
substantially the form of Exhibit C hereto, the
Escrow Agent shall release the Escrowed Funds as directed in such
instructions.
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3.2 In
the event this Agreement, the Escrowed Funds or the Escrow Agent becomes the
subject of litigation, or if the Escrow Agent shall desire to do so for any
other reason, the Company authorizes the Escrow Agent, at its option, to deposit
the Escrowed
Funds with the clerk of the court in which the litigation is pending, or a court
of competent jurisdiction if no litigation is pending, and thereupon the Escrow
Agent shall be fully relieved and discharged of any further responsibility with
regard thereto. The Company also authorizes the Escrow Agent, if it receives
conflicting claims to the Escrow Funds, is threatened with litigation or if the
Escrow Agent shall desire to do so for any other reason, to interplead all
interested parties in any court of competent jurisdiction and to deposit the
Escrowed Funds with the clerk of that court and thereupon the Escrow Agent shall
be fully relieved and discharged of any further responsibility hereunder to the
parties from which they were received.
3.3 In
the event that the Escrow Agent does not receive any instructions by a date that
is 90 days from the date of this Agreement (the “Escrow Termination Date”), all
Escrowed Funds shall be returned to the parties from which they were received,
without interest thereon or deduction therefrom.
4.
Exculpation and
Indemnification of Escrow Agent.
4.1 The
Escrow Agent shall have no duties or responsibilities other than those expressly
set forth herein. The Escrow Agent shall have no duty to enforce any
obligation of any person to make any payment or delivery, or to direct or cause
any payment or delivery to be made, or to enforce any obligation of any person
to perform any other act. The Escrow Agent shall be under no
liability to the other parties hereto or anyone else, by reason of any failure,
on the part of any party hereto or any maker, guarantor, endorser or other
signatory of a document or any other person, to perform such person’s
obligations under any such document. Except for amendments to this
Escrow Agreement referenced below, and except for written instructions given to
the Escrow Agent by the Escrowing Parties relating to the Escrowed Funds, the
Escrow Agent shall not be obligated to recognize any agreement between or among
any of the Escrowing Parties, notwithstanding that references hereto may be made
herein and whether or not it has knowledge thereof.
4.2 The Escrow
Agent shall not be liable to the Company or to anyone else for any
action taken or omitted by it, or any action suffered by it to be taken or
omitted, in good faith and acting upon any order, notice, demand, certificate,
opinion or advice of counsel (including counsel chosen by the Escrow Agent),
statement, instrument, report, or other paper or document (not only as to its
due execution and the validity and effectiveness of its provisions, but also as
to the truth and acceptability of any information therein contained), which is
believed by the Escrow Agent to be genuine and to be signed or presented by the
proper person or persons. The Escrow Agent shall not be
bound by any of the terms thereof, unless evidenced by written notice delivered
to the Escrow Agent signed by the proper party or parties and, if the duties or
rights of the Escrow Agent are affected, unless it shall give its prior written
consent thereto.
4.3 The Escrow
Agent shall not be responsible for the sufficiency or accuracy of the form, or
of the execution, validity, value or genuineness of, any document or property
received, held or delivered to it hereunder, or of any signature or endorsement
thereon,
or for any lack of endorsement thereon, or for any description therein; nor
shall the Escrow Agent be responsible or liable to the Company, the Placement
Agent or to anyone else in any respect on account of the identity, authority or
rights, of the person executing or delivering or purporting to execute or
deliver any document or property or this Escrow Agreement. The Escrow Agent
shall have no responsibility with respect to the use or application of the
Escrowed Funds pursuant to the provisions hereof.
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4.4 The
Escrow Agent shall have the right to assume, in the absence of written notice to
the contrary from the proper person or persons, that a fact or an event, by
reason of which an action would or might be taken by the Escrow Agent, does not
exist or has not occurred, without incurring liability to the Company, the
Placement Agent or to anyone else for any action taken or omitted to be taken or
omitted, in good faith and in the exercise of its own best judgment, in reliance
upon such assumption.
4.5 To
the extent that the Escrow Agent becomes liable for the payment of taxes,
including withholding taxes, in respect of income derived from the investment of
the Escrowed Funds, or any payment made hereunder, the Escrow Agent may pay such
taxes; and the Escrow Agent may withhold from any payment of the Escrowed Funds
such amount as the Escrow Agent estimates to be sufficient to provide for the
payment of such taxes not yet paid, and may use the sum withheld for that
purpose. The Escrow Agent shall be indemnified and held harmless
against any liability for taxes and for any penalties in respect of taxes, on
such investment income or payments in the manner provided in Section
4.6.
4.6 The Escrow
Agent will be indemnified and held harmless by the Company from and
against all expenses, including all counsel fees and disbursements, or loss
suffered by the Escrow Agent in connection with any action, suit or proceedings
involving any claim, or in connection with any claim or demand, which in any
way, directly or indirectly, arises out of or relates to this Escrow Agreement,
the services of the Escrow Agent hereunder, except for claims relating to gross
negligence by Escrow Agent or breach of this Escrow Agreement by the Escrow
Agent, or the monies or other property held by it hereunder. Promptly
after the receipt of the Escrow Agent of notice of any demand or claim or the
commencement of any action, suit or proceeding, the Escrow Agent shall, if a
claim in respect thereof is to be made against an Escrowing Party, notify each
of them thereof in writing, but the failure by the Escrow Agent to give such
notice shall not relieve any such party from any liability which an Escrowing
Party may have to the Escrow Agent hereunder. Notwithstanding any
obligation to make payments and deliveries hereunder, the Escrow Agent may
retain and hold for such time as it deems necessary such amount of monies or
property as it shall, from time to time, in its sole discretion, seem sufficient
to indemnify itself for any such loss or expense and for any amounts due it
under Section 7.
4.7 For
purposes hereof, the term “expense or loss” shall include all amounts paid or
payable to satisfy any claim, demand or liability, or in settlement of any
claim, demand, action, suit or proceeding settled with the express written
consent of the Escrow Agent, and all costs and expenses, including, but not
limited to, counsel fees and disbursements,
paid or incurred in investigating or defending against any such claim, demand,
action, suit or proceeding.
4
5.
Termination of Agreement and
Resignation of Escrow Agent
5.1 This
Escrow Agreement shall terminate upon disbursement of all of the Escrowed Funds,
provided that the rights of the Escrow Agent and the obligations of
the Company under Section 4 shall survive the termination
hereof.
5.2 The Escrow
Agent may resign at any time and be discharged from its duties as Escrow Agent
hereunder by giving the Company at least five (5) business days written notice
thereof (the “Notice
Period”). As soon as practicable after its resignation, the
Escrow Agent shall, if it receives notice from the Company within the Notice
Period, turn over to a successor escrow agent appointed by the Company all
Escrowed Funds (less such amount as the Escrow Agent is entitled to retain
pursuant to Section 7) upon presentation of the document appointing the new
escrow agent and its acceptance thereof. If no new agent is so
appointed within the Notice Period, the Escrow Agent shall return the Escrowed
Funds to the parties from which they were received without interest or
deduction.
6.
Form of Payments by Escrow
Agent
6.1 Any
payments of the Escrowed Funds by the Escrow Agent pursuant to the terms of this
Escrow Agreement shall be made by wire transfer unless directed to be made by
check by the Escrowing Parties.
6.2 All
amounts referred to herein are expressed in United States Dollars and all
payments by the Escrow Agent shall be made in such dollars.
7.
Compensation. Escrow
Agent shall be entitled to the following compensation from the
Company:
7.1 Documentation
Fee: The Company shall pay a documentation fee to the Escrow Agent
of $1,000.00, out of the Closing.
7.2 Closing
Fee: The Company shall pay a fee of $250.00 to the Escrow
Agent at each Closing. For purposes of this Section 7.2, a Closing
shall mean each time the Escrow Agent receives joint instructions from the
Company and the Placement Agent to disburse Escrowed Funds in accordance with
the terms of this Agreement.
7.3 Interest. The Company hereby
agrees that Escrow Agent shall retain 100% of the interest earned during the
time the Escrowed Funds are held in escrow hereunder.
5
8.
Notices. All
notices, requests, demands, and other communications provided herein shall be in
writing, shall be delivered by hand or by first-class mail, shall be deemed
given when received and shall be addressed to parties hereto at their respective
addresses first set forth in the recitals above and on Exhibit A
hereto.
9.
Further
Assurances From time to time on and after the date hereof,
the Company shall deliver or cause to be delivered to the Escrow
Agent such further documents and instruments and shall do and cause to be done
such further acts as the Escrow Agent shall reasonably request (it being
understood that the Escrow Agent shall have no obligation to make any such
request) to carry out more effectively the provisions and purposes of this
Escrow Agreement, to evidence compliance herewith or to assure itself that it is
protected in acting hereunder.
10.
Consent to Service of
Process The Company hereby irrevocably consents to the
jurisdiction of the courts of the State of Virginia and of any federal court
located in such state in connection with any action, suit or proceedings arising
out of or relating to this Escrow Agreement or any action taken or omitted
hereunder, and waives personal service of any summons, complaint or other
process and agrees that the service thereof may be madeby certified or
registered mail directed to it at the address listed on Exhibit A
hereto.
11. Miscellaneous
11.1 This
Escrow Agreement shall be construed without regard to any presumption or other
rule requiring construction against the party causing such instrument to be
drafted. The terms “hereby,” “hereof,” “hereunder,” and
any similar terms, as used in this Escrow Agreement, refer to the Escrow
Agreement in its entirety and not only to the particular portion of this Escrow
Agreement where the term is used. The word “person” shall mean any
natural person, partnership, corporation, government and any other form of
business of legal entity. All words or terms used in this Escrow
Agreement, regardless of the number or gender in which they were used, shall be
deemed to include any other number and any other gender as the context may
require. This Escrow Agreement shall not be admissible in evidence to
construe the provisions of any prior agreement.
11.2 This
Escrow Agreement and the rights and obligations hereunder of the Company may not
be assigned. This Escrow Agreement and the rights and obligations
hereunder of the Escrow Agent may be assigned by the Escrow
Agent. This Escrow Agreement shall be binding upon and inure to the
benefit of each party’s respective successors, heirs and permitted assigns. No
other person shall acquire or have any rights under or by virtue of this Escrow
Agreement. This Escrow Agreement may not be changed orally or modified, amended
or supplemented without an express written agreement executed by the Escrow
Agent and all Escrowing Parties. This Escrow Agreement is intended to be for the
sole benefit of the parties hereto and their respective successors, heirs and
permitted assigns, and none of the provisions of this Escrow Agreement
are intended to be, nor shall they be construed to be, for the benefit of any
third person.
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11.3 This
Escrow Agreement shall be governed by, and construed in accordance with, the
internal laws of the State of Virginia. The representations and warranties
contained in this Escrow Agreement shall survive the execution and delivery
hereof and any investigations made by any party. The headings in this
Escrow Agreement are for purposes of reference only and shall not limit or
otherwise affect any of the terms thereof.
12.
Execution of
Counterparts This Escrow Agreement may be executed in a number of
counterparts, by facsimile, each of which shall be deemed to be an original as
of those whose signature appears thereon, and all of which shall together
constitute one and the same instrument. This Escrow Agreement shall
become binding when one or more of the counterparts hereof, individually or
taken together, are signed by all the parties.
[Signature
Page Follows]
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IN WITNESS WHEREOF, the parties have
executed and delivered this Escrow Agreement on the day and year first above
written.
| ESCROW AGENT: | |||
| ESCROW, LLC | |||
|
|
By:
|
/s/ Xxxxxxx Xxxxxxx | |
| Name: Xxxxxxx Xxxxxxx | |||
| Title: Vice-President | |||
| CRC Crystal Research Corporation | |||
|
|
By:
|
/s/ Kiril Pandelisev | |
| Kiril Pandelisev, CEO | |||
8
EXHIBIT
A
PARTIES
TO AGREEMENT
CRC
Crystal Research Corporation
|
Address:
|
0000
Xxxx Xxxxxxx Xx.
Xxxx, XX
00000
|
|
Attention:
|
Kiril
Pandelisev
|
|
Telephone:
|
000-000-0000
|
|
Fax:
|
000-000-0000
|
|
Email:
|
xxxxxxxxxxx@xxxXxxxxxx.xxx
|
_____________________________
Escrow,
LLC
00 Xxxx
Xxxxx, Xxxxx 000
Xxxxxxxxx,
XX 00000
Attention:
Xxxxxxx Xxxxxxx
Telephone:
000-000-0000
Fax:
000-000-0000
Email:
xxxxxxxx@xxxxxxxxx.xxx
____________________________
A-1
EXHIBIT
B
SUBCRIPTION
INFORMATION
|
Name
of Subscriber
|
|
|
Address
of Subscriber
|
|
|
Amount
of Securities
Subscribed
|
|
|
US
Dollar Amount
Subscribed
|
|
|
Taxpayer
ID Number/
Social Security Number
|
A-2
EXHIBIT
C
DISBURSEMENT
REQUEST
Pursuant
to that certain Escrow Agreement by and between CRC Crystal Research Corporation
and Escrow, LLC, CRC Crystal Research Corp. hereby requests
disbursement of funds in the amount and manner described below from Virginia
Commerce Bank account number 00000000, styled Escrow, LLC Escrow
Account.
|
Please
disburse to:
|
|
|
Amount
to disburse:
|
|
| Form of distribution: | |
| Payee: | |
|
Name:
|
|
|
Address:
|
|
|
City/State:
|
|
|
Zip:
|
|
|
Bank:
|
|
| Statement of event or condition which calls for this request for disbursement: | |
|
|
||
| Date |
Connor
& Xxxx
|
|
||
| Date |
A-3
