EXHIBIT 4.2
ESCROW AGREEMENT (PUBLIC OFFERING)
AGREEMENT made this day of , 1999 by and between BANNER
HOLDING CORP., a Florida corporation (the "Issuer"), and CITIBANK, N.A., 000
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx (the "Escrow Agent").
W I T N E S S E T H :
WHEREAS, the Issuer has filed with the Securities and Exchange
Commission (the "Commission") a registration statement (the "Registration
Statement") covering a proposed public offering of its securities (collectively,
the "Securities", and individually, a "Share") as described on the Information
Sheet (as defined herein); and
WHEREAS, the Issuer proposes to offer the Securities for sale to the
public on a "best efforts" basis at the price per Share all as set forth on the
Information Sheet; and
WHEREAS, the Issuer proposes to establish an escrow account with the
Escrow Agent in connection with such public offering and the Escrow Agent is
willing to establish such escrow account on the terms and subject to the
conditions hereinafter set forth;
NOW THEREFORE, in consideration of the premises and mutual covenants
herein contained, the parties hereto hereby agree as follows:
1. INFORMATION SHEET. Each capitalized term not otherwise defined
in this Agreement shall have the meaning set forth for such term on the
Information Sheet which is attached to this Agreement and is incorporated by
reference herein and made a part hereof (the "Information Sheet").
2. ESTABLISHMENT OF ESCROW ACCOUNT.
2.1 The parties hereto shall establish a non-interest-bearing escrow
account at the office of the Escrow Agent, and bearing the designation, set
forth on the Information Sheet (the "Escrow Account").
2.2 On or before the date of the initial deposit in the Escrow
Account pursuant to this Agreement, the Issuer shall notify the Escrow Agent in
writing of the effective date of the Registration Statement (the "Effective
Date") and the Escrow Agent shall not be required to accept any amount for
deposit in the Escrow Account prior to its receipt of such notification.
2.3 The Offering Period, which shall be deemed to commence on the
Effective Date, shall consist of the number of calendar days or business days
set forth on the Information Sheet. The last day of the Offering Period is
referred to herein as the "Termination Date." After the Termination Date, the
Issuer shall not deposit, and the Escrow Agent shall not accept, any additional
amounts representing payments by prospective purchasers.
3. DEPOSITS IN THE ESCROW ACCOUNT.
3.1 Upon receipt, the Issuer shall promptly deposit all monies
received from investors to the Escrow Agent. All of these deposited proceeds
(the "Deposited Proceeds") shall be in the form of checks or money orders. All
checks or money orders deposited into the Escrow Account shall be made payable
to "Banner Holding Corp. and Citibank, N.A.". Any check or money order payable
other than to the Escrow Agent as required hereby shall be returned to the
prospective purchaser, or if the Escrow Agent has insufficient information to do
so, then to the Issuer (together with any Subscription Information, as defined
below, or other documents delivered therewith) by noon of the next business day
following receipt of such check by the Escrow Agent, and such check shall be
deemed not to have been delivered to the Escrow Agent pursuant to the terms of
this Agreement. The Deposited Proceeds and interest or dividends thereon, if
any, shall be held for the sole benefit of the purchasers of the Securities.
3.2 The Deposited Proceeds shall be invested in either
(a) an obligation that constitutes a "deposit" as that term is
defined in Section (3)(1) of the Federal Deposit Insurance Act;
(b) securities of any open-end investment company registered
under the Investment Company Act of 1940 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 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.
3.3 Simultaneously with each deposit into the Escrow Account, the
Issuer shall inform the Escrow Agent by confirmation slip or other writing of
the name and address of the prospective purchaser, the number of Securities
subscribed for by such purchaser, and the aggregate dollar amount of such
subscription (collectively, the "Subscription Information").
3.4 The Escrow Agent shall not be required to accept for deposit
into the Escrow Account checks which are not accompanied by the appropriate
Subscription Information. Checks and money orders representing payments by
prospective purchasers shall not be deemed
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deposited in the Escrow Account until the Escrow Agent has received in writing
the Subscription Information required with respect to such payments.
3.5 The Escrow Agent shall not be required to accept any amounts
representing payments by prospective purchasers, whether by check or money
order, except during the Escrow Agent's regular banking hours. Any check, money
order or cash not received prior to 1:00 P.M. shall be deposited the following
business day.
3.6 Interest or dividends earned on the Deposited Proceeds, if any,
shall be held in the Escrow Account until the Deposited Proceeds are released
in accordance with the provisions of Section 4 of the Escrow Agreement. If the
Deposited Proceeds are released to a purchaser of the Securities, the purchaser
shall receive interest or dividends earned, if any, on such Deposited Proceeds
up to the date of release. If the Deposited Proceeds held in the Escrow Account
are released to the Company, any interest or dividends earned on such funds up
to the date of release may be released to the Company.
3.7 The Issuer shall deposit the Securities directly into the Escrow
Account promptly upon issuance (the "Deposited Securities"). The identity of
the purchaser of the Securities shall be included on the Common Stock
certificates.
3.8 The Deposited Securities shall be held for the sole benefit of
the purchasers. 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, as amended, or Title I of the Employee Retirement Income Security Act, or
the rules thereunder.
3.9 The Escrow Agent shall refund any portion of the Deposited
Proceeds prior to disbursement of the Deposited Proceeds in accordance with
Section 4 hereof upon instructions in writing signed by the Issuer.
4. DISBURSEMENT FROM THE ESCROW ACCOUNT.
4.1 The Deposited Proceeds may be released to the Company and the
Securities delivered to the purchaser or other registered holder only at the
same time as or after:
(a) the Escrow Agent has received a signed representation
from the Company, together with an opinion of counsel that the following events
have already occurred and the following requirements have already been met:
(1) Upon execution of an agreement(s) for the
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acquisition(s) of a business(es) or assets that will constitute the business (or
a line of business) of the Company and for which the fair value of the
business(es) or net assets to be acquired represents at least 80 percent of the
maximum offering proceeds but excluding amounts payable to non-affiliates for
underwriting commissions, underwriting expenses, and dealer allowances, if any,
provided that the Company filed a post-effective amendment that:
(i) discloses the information specified by the Form SB-2 registration
statement and Industry Guides, including financial statements of the Company and
the company or business with which it plans to merge or acquire (the "Target
Company"), and pro forma financial information required by Form SB-2 and
applicable rules and regulations;
(ii) discloses the results of the offering, including but not limited to:
(A) the gross offering proceeds received to date, specifying the
amounts paid for underwriter commissions, underwriting expenses and dealer
allowances, if any, amounts disbursed to the Company, and amounts remaining in
the Escrow Account; and
(B) the specific amount, use and application of funds disbursed to
the Company to date, including, but not limited to, the amounts paid to
officers, directors, promoters, controlling shareholders or affiliates, either
directly or indirectly specifying the amounts and purposes of such payments; and
(iii) discloses the terms of the offering as described pursuant to Section
4 of this Escrow Agreement.
(2) The terms of the offering provided, and the Company
satisfied, the following conditions:
(i) Within five business days after the effective date of the
post-effective amendment(s), the Company shall send by first class mail or other
equally prompt means, to each purchaser of Securities held in escrow, a copy of
the prospectus contained in the post-effective amendment and any amendment or
supplement thereto;
(ii) Each purchaser shall have no fewer than 20 business days and no more
than 45 business days from the effective date of the post-effective amendment to
notify the Company in writing that the purchaser elects to remain an investor.
If the Company has not received such written notification by the 45th business
day following the effective date of the post-effective amendment, funds and
interest or dividends, if any, held in the Escrow Account shall be sent by
first class mail or other equally prompt means to the purchaser within five
business days;
(iii) The acquisition(s) meeting the criteria set forth in
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paragraph (a) (1) of this Section 4 will be consummated if a sufficient number
of purchasers confirm their investments; and
(iv) If a consummated acquisition(s) meeting the requirements of this
section has not occurred by a date 18 months after the Effective Date, the
Deposited Funds shall be returned by first class mail or equally prompt means to
the purchasers within five business days following that date.
(b) Funds held in the Escrow Account may be released to the Company
and Securities may be delivered to the purchaser or other registered holder
identified on the deposited Securities only at the same time as or after
consummation of an acquisition(s) meeting the requirements set forth in Section
4.1(a)(1)(iii) of this Escrow Agreement.
4.2 Upon disbursement of the Deposited Proceeds pursuant to the
terms of this Section 4, the Escrow Agent shall be relieved of all further
obligations and released from all liability under this Agreement. It is
expressly agreed and understood that in no event shall the aggregate amount of
payments made by the Escrow Agent exceed the amount of the Deposited Proceeds.
5. RIGHTS, DUTIES AND RESPONSIBILITIES OF ESCROW AGENT. It is
understood and agreed that the duties of the Escrow Agent are purely ministerial
in nature, and that:
5.1 The Escrow Agent shall not be responsible for the performance by
the Issuer of its obligations under this Agreement.
5.2 The Escrow Agent shall not be required to accept from the Issuer
any Subscription Information pertaining to prospective purchasers unless such
Subscription Information is accompanied by checks or money orders representing
the payment of money, nor shall the Escrow Agent be required to keep records of
any information with respect to payments deposited by the Issuer except as to
the amount of such payments; however, the Escrow Agent shall notify the Issuer
within a reasonable time of any discrepancy between the amount delivered to the
Escrow Agent therewith. Such amount need not be accepted for deposit in the
Escrow Account until such discrepancy has been resolved.
5.3 The Escrow Agent shall be under no duty or responsibility to
enforce collection of any check delivered to it hereunder. The Escrow Agent,
within a reasonable time, shall return to the Issuer any check received which is
dishonored, together with the Subscription Information, if any, which
accompanied such check.
5.4 The Escrow Agent shall be entitled to rely upon the accuracy,
act in reliance upon the contents, and assume the genuineness of any notice,
instruction, certificate, signature, instrument or other document which is given
to the Escrow Agent pursuant to this
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Agreement without the necessity of the Escrow Agent verifying the truth or
accuracy thereof. The Escrow Agent shall not be obligated to make any inquiry as
to the authority, capacity, existence or identity of any person purporting to
give any such notice or instructions or to execute any such certificate,
instrument or other document. The Escrow Agent must, however, determine for
itself whether the conditions permitting the release of the funds in the Escrow
Account have been met.
5.5 In the event that the Escrow Agent shall be uncertain as to its
duties or rights hereunder or shall receive instructions with respect to the
Escrow Account or the Deposited Proceeds which, in its sole determination, are
in conflict either with other instructions received by it or with any provision
of this Agreement, the Escrow Agent, at its sole option, may deposit the
Deposited Proceeds (and any other amounts that thereafter become part of the
Deposited Proceeds) with the registry of a court of competent jurisdiction in a
proceeding to which all parties in interest are joined. Upon the deposit by the
Escrow Agent of the Deposited Proceeds with the registry of any court, the
Escrow Agent shall be relieved of all further obligations and released from all
liability hereunder.
5.6 The Escrow Agent shall not be liable for any action taken or
omitted hereunder, or for the misconduct of any employee, agent or attorney
appointed by it, except in the case of willful misconduct. The Escrow Agent hall
be entitled to consult with counsel of its own choosing and shall not be liable
for any action taken, suffered or omitted by it in accordance with the advice of
such counsel.
5.7 The Escrow Agent shall have no responsibility at any time to
ascertain whether or not any security interest exists in the Deposited Proceeds
or any part thereof or to file any financing statement under the Uniform
Commercial Code with respect to the Deposited Proceeds or any part thereof.
6. AMENDMENT; RESIGNATION. This Agreement may be altered or amended
only with the written consent of the Issuer and the Escrow Agent. The Escrow
Agent may resign for any reason upon seven (7) business days written notice to
the Issuer. Should the Escrow Agent resign as herein provided, it shall not be
required to accept any deposit, make any disbursement or otherwise dispose of
the Deposited Proceeds, but its only duty shall be to hold the Deposited
Proceeds for a period of not more than ten (10) business days following the
effective date of such resignation, at which time (a) if a successor escrow
agent shall have been appointed and written notice thereof (including the name
and address of such successor escrow agent) shall have been given to the
resigning Escrow Agent by the Issuer and such successor escrow agent, the
resigning Escrow Agent shall pay over to the successor escrow agent the
Deposited Proceeds, less any portion thereof previously paid out in accordance
with this Agreement, or (b) if the resigning Escrow Agent shall not have
received written notice
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signed by the Issuer and a successor escrow agent, then the resigning Escrow
Agent shall promptly refund the amount in the Deposited Proceeds to each
prospective purchaser without interest thereon or deduction therefrom, and the
resigning Escrow Agent shall notify the Issuer in writing of its liquidation and
distribution of the Deposited Proceeds; whereupon, in either case, the Escrow
Agent shall be relieved of all further obligations and released from all
liability under this Agreement. Without limiting the provisions of Section 8
hereof, the resigning Escrow Agent shall be entitled to be reimbursed by the
Issuer for any expenses incurred in connection with its resignation, transfer of
the Deposited Proceeds to a successor Escrow Agent or distribution of the
Deposited Proceeds pursuant to this Section 6.
7. REPRESENTATIONS AND WARRANTIES. The Issuer hereby represents and
warrants to the Escrow Agent that:
7.1 No party other than the parties hereto and the prospective
purchasers have, or shall have any lien, claim or security interest in the
Deposited Proceeds or any part thereof.
7.2 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 Deposited Proceeds or any part thereof.
7.3 The Subscription Information submitted with each deposit shall,
at the time of submission and at the time of the disbursement of the Deposited
Proceeds, be deemed a representation and warranty that such deposit represents a
bona fide sale to the purchaser described therein of the amount of Securities
set forth in such Subscription Information.
7.4 All of the information contained in the Information Sheet is, as
of the date hereof and will be, at the time of any disbursement of the Deposited
Proceeds, true and correct.
8. FEES AND EXPENSES. The Escrow Agent shall be entitled to the
Escrow Agent Fee set forth in the Information Sheet, payable upon execution of
this Agreement. In addition, the Issuer agrees to reimburse the Escrow Agent for
any reasonable expenses incurred in connection with this Agreement, including,
but not limited to, reasonable counsel fees, but not including the review of
this Agreement.
9. INDEMNIFICATION AND CONTRIBUTION.
9.1 The Issuer (referred to as the "Indemnitor") agrees to indemnify
the Escrow Agent and its officers, directors, employees, agents and shareholders
jointly and severally the "Indemnitees") against, and hold them harmless of and
from, any and all loss, liability, cost, damage and expense, including, without
limitation,
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reasonable counsel fees, which the Indemnitees may suffer or incur by reason of
any action, claim or proceeding brought against the Indemnitees arising out of
or relating in any way to this Agreement or any transaction to which this
Agreement relates, unless such action, claim or proceeding is the result of the
willful misconduct of the Indemnitees.
9.2 If the indemnification provided for in this Section 9 is
applicable, but for any reasons held to be unavailable, the Indemnitor shall
contribute such amounts as are just and equitable to pay, or to reimburse the
Indemnitees for, the aggregate of any and all losses, liabilities, costs,
damages and expenses, including counsel fees, actually incurred by the
Indemnitees as a result of or in connection with, and any amount paid in
settlement of any action, claim or proceeding arising out of or relating in any
way to any actions or omissions of the Indemnitor.
9.3 Any Indemnitee which proposes to assert the right to be
indemnified under this Section 9, promptly after receipt of notice of
commencement of any action, suit or proceeding against such Indemnitee in
respect of which a claim is to be made against the Indemnitor under this Section
9, will notify the Indemnitor of the commencement of such action, suit or
proceeding, enclosing a copy of all papers served, but the omission so to notify
the Indemnitor of any such action, suit or proceeding shall not relieve the
Indemnitor from any liability which they may have to any Indemnitee otherwise
than under this Section 9. In case any such action, suit or proceeding shall be
brought against any Indemnitee and it shall notify the Indemnitor of the
commencement thereof, the Indemnitor shall be entitled to participate in and, to
the extent that they shall wish, to assume the defense thereof, with counsel
satisfactory to such Indemnitee. The Indemnitee shall have the right to employ
its counsel in any such action, but the fees and expenses of such counsel shall
be at the expense of such Indemnitee unless (i) the employment of counsel by
such Indemnitee has been authorized by the Indemnitor, (ii) the Indemnitee shall
have concluded reasonably that there may be a conflict of interest among the
Indemnitor and the Indemnitee in the conduct of the defense of such action (in
which case the Indemnitor shall not have the right to direct the defense of such
action on behalf of the Indemnitee) or (iii) the Indemnitor in fact shall not
have employed counsel to assume the defense of such action, in each of which
cases the fees and expenses of counsel shall be borne by the Indemnitor.
9.4 The Indemnitor agrees to provide the Indemnitees with copies of
all registration statements, pre- and post-effective amendments to such
registration statements including exhibits, whether filed with the SEC prior to
or subsequent to the disbursement of the Deposited Proceeds.
9.5 The provisions of this Section 9 shall survive any termination
of this Agreement, whether by disbursement of the Deposited
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Proceeds, resignation of the Escrow Agent or otherwise.
10. GOVERNING LAW AND ASSIGNMENT. This Agreement shall be construed
in accordance with and governed by the laws of the State of New York and shall
be binding upon the parties hereto and their respective successors and assigns;
provided, however, that any assignment or transfer by any party of its rights
under this Agreement or with respect to the Deposited Proceeds shall be void as
against the Escrow Agent unless:
(a) written notice thereof shall be given to the Escrow Agent;
and
(b) the Escrow Agent shall have consented in writing to such
assignment or transfer.
11. NOTICES. All notices required to be given in connection with
this Agreement shall be sent by registered or certified mail, return receipt
requested, or by hand delivery with receipt acknowledged, or by the Express Mail
service offered by the United States Post Office, and addressed, if to the
Issuer, at its address set forth on the Information Sheet, and if to the Escrow
Agent, Citibank, N.A., Attention: Trust Department.
12. SEVERABILITY. If any provision of this Agreement or the
application thereof to any person or circumstance shall be determined to be
unpaid or unenforceable, the remaining provisions of this Agreement or the
application of such provision to persons or circumstances other than those to
which it is held invalid or unenforceable shall not be affected thereby and
shall be valid and enforceable to the fullest extent permitted by law.
13. CLOSING. The closing shall take place within 90 days of the
Effective Date unless an additional 90 days is approved by the Company, but in
no instance later than 180 days after the Effective Date.
14. PRONOUNS. All pronouns and any variations thereof shall be
deemed to refer to the masculine, feminine, neuter, singular, or plural as the
context may require.
15. CAPTIONS. All captions are for convenience only and shall not
limit or define the term thereof.
16. EXECUTION IN SEVERAL COUNTERPARTS. This Agreement may be
executed in counterparts or by separate instruments and both of such
counterparts and instruments shall constitute one agreement, binding on both of
the parties herein.
17. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties hereto with respect to the subject matter hereof
and supersedes all prior agreements and understandings
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(written or oral) of the parties in connection herewith.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the day
and year first above written.
THE ISSUER: BANNER HOLDING CORP.
By:______________________________
Xxxx X. X'Xxxxx, President
THE ESCROW AGENT: CITIBANK, N.A.
By:______________________________
Name:_________________________
Title:________________________
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CITIBANK, N.A.
ESCROW AGREEMENT INFORMATION SHEET
1. The Company:
BANNER HOLDING CORP.
000 X. X.X. Xxxxxxx Xxx
Xxxxxxxx, Xxxxxxx 00000
2. State of incorporation or organization:
Florida
3. The Underwriter:
Self-Underwriting
4. The Securities:
Shares of Common Stock
5. Offering Statement filed pursuant to Regulation C of the General Rules and
Regulations under the Securities Act of 1933:
Registration Statement on Form SB-2
6. Offering Amount:
$ 250,000
7. Offering Period:
Through September 30, 1999
8. Title of the Escrow Account:
Banner Holding Corp. Escrow Account
9. Escrow Account Fee:
Amount due on execution of the Escrow Agreement: $___________
Fee for each check issued pursuant to the terms of the
Escrow Agreement: $___________
Fee for each subscriber in excess of the first 50
subscribers: $___________
Fee for each check returned pursuant to the terms of the
Escrow Agreement: $___________
All other fees will be negotiated on the basis of service
requirements.
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