ESCROW AGREEMENT
THIS ESCROW AGREEMENT, dated as of July 9, 2003 ("Escrow Agreement"),
is by and between Capital Tech, Inc., a Colorado corporation ("Capital
Tech"); and Arapahoe Bank & Trust, a national banking association, as
Escrow Agent hereunder ("Escrow Agent").
BACKGROUND
A. Capital Tech is selling up to 2,000,000 common shares, par value
$.001 (the "Shares ") at the offering price of $.25 per common share,
pursuant to Registration Statement No. 333-100431 filed with the
Securities and Exchange Commission (the "SEC") and attached hereto as
Exhibit A (the "Offering Document").
B. In accordance with the Offering Document, subscribers to the Shares
(the "Subscribers" and individually, a "Subscriber") will be required
to submit full payment for their respective investments at the time
they enter into subscription agreements.
C. In accordance with the Offering Document, all payments received by
Capital Tech in connection with subscriptions for Shares together with
the stock certificates representing the shares sold, shall be promptly
forwarded to Escrow Agent, and Escrow Agent has agreed to accept, hold,
and disburse such funds and stock certificates deposited with it and
the earnings thereon until a merger occurs between Capital Tech and an
acquiring company, or the Escrow is terminated as hereinafter set forth
in this Agreement.
D. In order to establish the escrow of funds and to effect the
provisions of the Offering Document, the parties hereto have entered
into this Escrow Agreement.
STATEMENT OF AGREEMENT
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, for
themselves, their successors and assigns, hereby agree as follows:
1. Definitions.
The following terms shall have the following meanings when used herein:
"Cash Investment" shall mean the number of Shares to be purchased by
any Subscriber multiplied by the offering price per Share of $.25 as
set forth in the Offering Document.
"Cash Investment Instrument" shall mean a check, money order or similar
instrument, made payable to the "Arapahoe Bank & Trust/Capital Tech,
Inc. Escrow Account," in full payment for the Shares to be purchased by
any Subscriber.
"Escrow Funds" shall mean all offering proceeds, after deduction of
cash paid for underwriting commissions, underwriting expenses and
dealer allowances, provided, however, that no deduction may be made for
underwriting commissions, underwriting expenses or dealer allowances
payable to an affiliate of Capital Tech, deposited with the Escrow
Agent pursuant to this Agreement, together with any interest and other
income thereon.
"Pro Rata Basis," with respect to the allocation among Subscribers of
interest and other earnings held in the Escrow Funds, shall mean, for
each Subscriber, the Subscriber's Cash Investment multiplied by the
number of days the Cash Investment of such Subscriber was held in
interest-bearing investments pursuant to Section 6 hereof, multiplied
by the average yield earned on the Escrow Funds during such period of
days.
"Shares" shall have the meaning set forth in the section of this Escrow
Agreement titled "Background".
"Subscriber " or " Subscribers " shall have the meaning set forth in
the section of this Escrow Agreement titled "Background".
"Subscription Accounting" shall mean an accounting of all subscriptions
for Shares received and accepted by Capital Tech as of the date of such
accounting, indicating for each subscription the Subscriber's name,
social security number and address, the number and total purchase price
of subscribed Shares, the date of receipt by Capital Tech of the Cash
Investment Instrument, and notations of any nonpayment of the Cash
Investment Instrument submitted with such subscription, any withdrawal
of such subscription by the Subscriber, any rejection of such
subscription by Capital Tech, or other termination, for whatever
reason, of such subscription.
2. Appointment of and Acceptance by Escrow Agent.
Capital Tech hereby appoints Escrow Agent to serve as escrow agent
hereunder, and Escrow Agent hereby accepts such appointment in
accordance with the terms of this Escrow Agreement.
3. Deposits into Escrow.
a. The account records of the Escrow Agent shall provide that the funds
in the escrow account are held for the benefit of the Subscriber(s)
named and identified in accordance 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.
b. Upon receipt by Capital Tech of any Cash Investment Instrument for
the purchase of Shares, Capital Tech shall forward to Escrow Agent, by
12:00 noon of the next business day, the Cash Investment Instrument for
deposit into the following escrow account:
Arapahoe Bank & Trust
ABA #
Attn:
Each such deposit shall be accompanied by the following documents:
(1) a report containing such Subscriber's name, social security
number or taxpayer identification number, address and other information
required for withholding purposes;
(2) a Subscription Accounting; and
(3) instructions regarding the investment of such deposited funds in
accordance with Section 6 hereof
ALL FUNDS SO DEPOSITED AND INTEREST OR DIVIDENDS THEREON, IF ANY, SHALL
BE HELD FOR THE SOLE BENEFIT OF AND SHALL REMAIN THE PROPERTY OF THE
SUBSCRIBERS ACCORDING TO THEIR RESPECTIVE INTERESTS AND SHALL NOT BE
SUBJECT TO ANY LIEN OR CHARGE BY ESCROW AGENT OR BY JUDGMENT OR
CREDITORS' CLAIMS AGAINST CAPITAL TECH, INC. UNTIL RELEASED TO CAPITAL
TECH, INC. IN ACCORDANCE WITH SECTION 4(a) HEREOF.
c. Capital Tech understands and agrees that all checks and similar
instruments received by Escrow Agent hereunder are subject to
collection requirements of presentment and final payment, and that the
funds represented thereby cannot be drawn upon or disbursed until such
time as final payment has been made and is no longer subject to
dishonor. Upon receipt, Escrow Agent shall process each Cash
Investment Instrument for collection, and the proceeds thereof shall be
held as part of the Escrow Funds until disbursed in accordance with
Section 4 hereof. If, upon presentment for payment, any Cash
Investment Instrument is dishonored, Escrow Agent's sole obligation
shall be to notify Capital Tech of such dishonor and to return such
Cash Investment Instrument to Capital Tech to take whatever action it
deems necessary. Notwithstanding the foregoing, if for any reason any
Cash Investment Instrument is uncollectible after payment of the funds
represented thereby has been made by Escrow Agent, Capital Tech shall
immediately reimburse Escrow Agent upon receipt from Escrow Agent of
written notice thereof.
Upon receipt of any Cash Investment Instrument that represents payment
less than or greater than the Cash Investment, Escrow Agent's sole
obligation shall be to notify Capital Tech of such fact and to return
such Cash Investment Instrument to the Subscriber.
d. All Cash Investment Instruments shall be made payable to the order
of, or endorsed to the order of, "Arapahoe Bank & Trust/Capital Tech,
Inc. - Escrow Account, " and Escrow Agent shall not be obligated to
accept, or present for payment, any Cash Investment Instrument that is
not payable or endorsed in that manner.
4. Disbursements of Escrow Funds.
a. Completion of Merger. Subject to the provisions of Section 10
hereof, Escrow Agent shall pay to Capital Tech the liquidated value of
the Escrow Funds, by certified or bank check or by wire transfer, no
later than fifteen (15) business days following receipt of the
following documents:
(1) A Release Notice (the "Release Notice") issued by Capital Tech
only upon the closing of a successful merger between Capital Tech and
an acceptable merger candidate;
(2) The Release Notice shall be accompanied by proof of a successful
merger consisting of certified copies of the articles of merger filed
with the Secretary of State within the respective jurisdictions of
Capital Tech and the merger candidate;
(3) The documents described on Exhibit B attached hereto and
incorporated herein by reference; and
(4) Such other certificates, notices or other documents as Escrow
Agent shall reasonably require.
After the initial disbursement of Escrow Funds to Capital Tech pursuant
to this Section 4(a), Escrow Agent shall pay Capital Tech any
additional funds received with respect to the Shares, by certified or
bank check or wire transfer, no later than fifteen (15) business days
after receipt.
b. Rejection of Any Subscription or Termination of the Offering. No
later than fifteen (15) business days after receipt by Escrow Agent of
written notice (i) from Capital Tech that Capital Tech's offering has
terminated and that there will be no closing of the sale of Shares to
Subscribers; or (ii) from Capital Tech that a merger will not occur; or
(iii) from Capital Tech intends to reject a Subscriber's subscription;
or (iv) from the SEC or any other federal or state regulatory authority
that a stop order has been issued with respect to the Offering Document
and has remained in effect for at least twenty (20) days, Escrow Agent
shall (a) pay to the applicable Subscriber(s), by certified or bank
check and by first class mail, the amount of the Cash Investment paid
by each Subscriber; (b) pay as soon as practicable to the applicable
Subscriber(s), by certified or bank check and by first class mail, each
Subscriber's share of income earned on the Escrow Funds, each such
share to be calculated on a Pro Rata Basis; and (c) deliver to Capital
Tech stock certificates of the applicable Subscribers(s), to Capital
Tech for delivery to the holders of the stock certificates .
C. Expiration of Offering Period. Notwithstanding anything to the
contrary contained herein, if Escrow Agent shall not have received a
Release Notice on or before December 31, 2004, Escrow Agent shall,
within fifteen (15) business days after such date and without any
further instruction or direction from Capital Tech, return to each
Subscriber, by certified or bank check and by first class mail, the
Cash Investment made by such Subscriber, and shall pay as soon as
practicable to the applicable Subscriber(s), by certified or bank check
and by first class mail, each Subscriber's share of income earned on
the Escrow Funds, each such share to be calculated on a Pro Rata Basis
as calculated by Capital Tech and provided to the Escrow Agent.
5. Suspension of Performance or Disbursement Into Court. If, at any
time, there shall exist any dispute between Capital Tech, Escrow Agent,
any Subscriber or any other person with respect to the holding or
disposition of any portion of the Escrow Funds or any other obligations
of Escrow Agent hereunder, or if at any time Escrow Agent is unable to
determine, to Escrow Agent's sole satisfaction, the proper disposition
of any portion of the Escrow Funds or Escrow Agent's proper actions
with respect to its obligations hereunder, or if Capital Tech has not
within 30 days of the furnishing by Escrow Agent of a notice of
resignation pursuant to Section 7 hereof appointed a successor Escrow
Agent to act hereunder, then Escrow Agent may, in its sole discretion,
take either or both of the following actions:
a. suspend the performance of any of its obligations under this Escrow
Agreement until such dispute or uncertainty shall be resolved to the
sole satisfaction of Escrow Agent or until a successor Escrow Agent
shall have been appointed (as the case may be); provided however, that
Escrow Agent shall continue to invest the Escrow Funds in accordance
with Section 6 hereof, and/or
b. petition (by means of an interpleader action or any other
appropriate method) any court of competent jurisdiction in Denver,
Colorado, for instructions with respect to such dispute or uncertainty,
and pay into such court all funds held by it in the Escrow Funds for
holding and disposition in accordance with the instructions of such
court.
Escrow Agent shall have no liability to Capital Tech, any Subscriber or
any other person with respect to any such suspension of performance or
disbursement into court, specifically including any liability or
claimed liability that may arise, or be alleged to have arisen, out of
or as a result of any delay in the disbursement of funds held in the
Escrow Funds or any delay in or with respect to any other action
required or requested of Escrow Agent.
6. Deposit and Investment of Funds.
a. Escrow Agent shall invest and reinvest the Escrow Funds as Capital
Tech shall direct in writing; provided, however, that no investment or
reinvestment may be made except in the following:
(1) direct obligations of the United States of America or obligations
Capital Tech of and the interest on which are unconditionally
guaranteed by the United States of America; or
(2) money market mutual funds which invest solely in United States
Treasury securities which are direct obligations of the United States
of America or repurchase agreements that are fully collateralized by
direct obligations of the United States of America.
Each of the foregoing investments shall be made in the name of Escrow
Agent in its stated capacity as escrow agent. No investment shall be
made in any instrument or security that has a maturity of greater than
six (6) months. Notwithstanding anything to the contrary contained
herein, Escrow Agent may, without notice to Capital Tech, sell or
liquidate any of the foregoing investments at any time if the proceeds
thereof are required for any release of funds permitted or required
hereunder, and Escrow Agent shall not be liable or responsible for any
loss, cost or penalty resulting from any such sale or liquidation.
With respect to any funds received by Escrow Agent for deposit into the
Escrow Funds or any written investment instruction of Capital Tech
received by Escrow Agent after ten o'clock, a.m., Denver, Colorado,
time, Escrow Agent shall not be required to invest such funds or to
effect such investment instruction until the next day upon which banks
in Denver, Colorado, are open for business.
b. Interest or dividends earned on the Escrow Funds, if any, shall be
held in the escrow or trust account until the funds are released in
accordance with the provisions of this agreement. If funds held in
escrow or trust account are released to Capital Tech, interest or
dividends earned on such funds up to the date of release may be
released to Capital Tech.
Note - No longer applicable
7. Deposit of Securities.
a. 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 Subscriber(s) shall be included on the stock
certificates or other documents evidencing such securities.
b. 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
Subscriber(s), 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.
C. 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.
8. Resignation and Removal of Escrow Agent. Escrow Agent may resign
from the performance of its duties hereunder at any time by giving ten
(10) days' prior written notice to Capital Tech or may be removed, with
or without cause, by Capital Tech, acting in writing, at any time by
the giving of ten (10) days' prior written notice to Escrow Agent.
Such resignation or removal shall take effect upon the appointment of a
successor Escrow Agent as provided herein below. Upon any such notice
of resignation or removal, Capital Tech shall appoint a successor
Escrow Agent hereunder, which shall be a commercial bank, trust company
or other financial institution with a combined capital and surplus in
excess of $10,000,000. Upon the acceptance in writing of any
appointment as Escrow Agent hereunder by a successor Escrow Agent, such
successor Escrow Agent shall thereupon succeed to and become vested
with all the rights, powers, privileges and duties of the retiring
Escrow Agent, and the retiring Escrow Agent shall be discharged from
its duties and obligations under this Escrow Agreement, but shall not
be discharged from any liability for actions taken as escrow agent
hereunder prior to such succession. After any retiring Escrow Agent's
resignation or removal, the provisions of this Escrow Agreement shall
inure to its benefit as to any actions taken or omitted to be taken by
it while it was Escrow Agent under this Escrow Agreement.
9. Liability of Escrow Agent.
a. Escrow Agent shall have no liability or obligation with respect to
the Escrow Funds except for Escrow Agent's willful misconduct or gross
negligence. Escrow Agent's sole responsibility shall be for the
safekeeping, investment, and disbursement of the Escrow Funds in
accordance with the terms of this Escrow Agreement. Escrow Agent shall
have no implied duties or obligations and shall not be charged with
knowledge or notice of any fact or circumstance not specifically set
forth herein. Escrow Agent may rely upon any instrument, not only as
to its due execution, validity and effectiveness, but also as to the
truth and accuracy of any information contained therein which Escrow
Agent shall in good faith believe to be genuine, to have been signed or
presented by the person or parties purporting to sign the same and to
conform to the provisions of this Escrow Agreement. In no event shall
Escrow Agent be liable for incidental, indirect, special, consequential
or punitive damages. Escrow Agent shall not be obligated to take any
legal action or continence any proceeding in connection with the Escrow
Funds or any account in which Escrow Funds are deposited or this Escrow
Agreement, or to appear in, prosecute or defend any such legal action
or proceeding. Without limiting the generality of the foregoing,
Escrow Agent shall not be responsible for or required to enforce any of
the terms or conditions of any subscription agreement with any
Subscriber or any other agreement between Capital Tech and/or any
Subscriber. Escrow Agent shall not be responsible or liable in any
manner for the performance by Capital Tech or any Subscriber of their
respective obligations under any subscription agreement nor shall
Escrow Agent be responsible or liable in any manner for the failure of
Capital Tech or any third party (including any Subscriber) to honor any
of the provisions of this Escrow Agreement. Escrow Agent may consult
legal counsel selected by it in the event of any dispute or question as
to the construction of any of the provisions hereof or of any other
agreement or of its duties hereunder, and shall incur no liability and
shall be fully indemnified from any liability whatsoever in acting in
accordance with the opinion or instruction of such counsel. Capital
Tech shall promptly pay, upon demand, the reasonable fees and expenses
of any such counsel.
b . The Escrow Agent is authorized, in its sole discretion, to comply
with orders issued or process entered by any court with respect to the
Escrow Funds, without determination by the Escrow Agent of such court's
jurisdiction in the matter. If any portion of the Escrow Funds 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, judgment or decree shall be made or entered by any
court affecting such property or any part thereof, then and in any such
event, the Escrow Agent is authorized, in its sole discretion, to rely
upon and comply with any such order, writ, judgment or decree which it
is advised by legal counsel selected by it is binding upon it without
the need for appeal or other action; and if the Escrow Agent 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 or entity by reason
of such compliance even though such order, writ, judgment or decree may
be subsequently reversed, modified, annulled, set aside or vacated.
10. Indemnification of Escrow Agent. From and at all times after the
date of this Escrow Agreement, Capital Tech shall, to the fullest
extent permitted by law, indemnify and hold harmless the Escrow Agent
and each director, officer, employee, attorney, agent and affiliate of
Escrow Agent (collectively, the "Indemnified Parties") against any and
all actions, claims (whether or not valid), losses, damages,
liabilities, costs and expenses of any kind or nature whatsoever
(including without rotation reasonable attorneys' fees, costs and
expenses) incurred by or asserted against any of the Indemnified
Parties from and after the date hereof, whether direct, indirect or
consequential, as a result of or arising from or in any way relating to
any claim, demand, suit, action or proceeding (including any inquiry or
investigation) by any person, including without limitation Capital
Tech, whether threatened or initiated, asserting a claim for any legal
or equitable remedy against any person under any statute or regulation,
including, but not limited to, any federal or state securities laws, or
under any common law or equitable cause or otherwise, arising from or
in connection with the negotiation, preparation, execution, performance
or failure of performance of this Escrow Agreement or any transactions
contemplated herein, whether or not any such Indemnified Party is a
party to any such action, proceeding, suit or the target of any such
inquiry or investigation; provided, however, that no Indemnified Party
shall have the right to be Indemnified hereunder for any liability
finally determined by a court of competent jurisdiction, subject to no
further appeal, to have resulted solely from the gross negligence or
willful misconduct of such Indemnified Party. If any such action or
claim shall be brought or asserted against any Indemnified Party, such
Indemnified Party shall promptly notify Capital Tech in writing, and
Capital Tech shall assume the defense thereof, including the employment
of counsel and the payment of all expenses. Such Indemnified Party
shall, in its sole discretion, have the right to employ separate
counsel (who may be selected by such Indemnified Party in its sole
discretion) in any such action and to participate in the defense
thereof, and the fees and expenses of such counsel shall be paid by
such Indemnified Party, except that Capital Tech shall be required to
pay such fees and expenses (a) Capital Tech agrees to pay such fees and
expenses, or (b) Capital Tech shall fail to assume the defense of such
action or proceeding or shall fail, in the reasonable discretion of
such Indemnified Party, to employ counsel satisfactory to the
Indemnified Party in any such action or proceeding, (c) Capital Tech is
the plaintiff in any such action or proceeding or (d) the named parties
to any such action or proceeding (including any impleaded parties)
include both Indemnified Party and Capital Tech, and Indemnified Party
shall have been advised by counsel that there may be one or more legal
defenses available to it which are different from or additional to
those available to Capital Tech. Capital Tech shall be liable to pay
fees and expenses of counsel pursuant to the preceding sentence. All
such fees and expenses, payable by Capital Tech pursuant to the
foregoing sentence shall be paid from time to time as incurred, both in
advance of and after the final disposition of such action or claim.
The obligations of Capital Tech under this Section 10 shall survive any
termination of this Escrow Agreement and the resignation or removal of
Escrow Agent.
11. Compensation to Escrow Agent.
C. Fees and Expenses. Capital Tech shall compensate Escrow Agent for
its services hereunder in accordance with Exhibit C attached hereto
and, in addition, shall reimburse Escrow Agent for all of its
reasonable out-of-pocket expenses, including attorneys' fees, travel
expenses, telephone and facsimile transmission costs, postage
(including express mail and overnight delivery charges), copying
charges and the like. All of the foregoing compensation and
reimbursement obligations shall be payable by Capital Tech upon demand
by Escrow Agent. The obligations of Capital Tech under this Section 11
shall survive any termination of this Escrow Agreement and the
resignation or removal of Escrow Agent.
d. Disbursements from Escrow Funds to Pay Escrow Agent. The Escrow
Agent is authorized to and may disburse from time to time, to itself or
to any Indemnified Party from the Escrow Funds (to the extent of
Capital Tech's rights thereto), the amount of any compensation and
reimbursement of out-of-pocket expenses due and payable hereunder
(including any amount to which Escrow Agent or any Indemnified Party is
entitled to seek indemnification pursuant to Section 10 hereof).
Escrow Agent shall notify Capital Tech of any disbursement from the
Escrow Funds to itself or to any Indemnified Party in respect of any
compensation or reimbursement hereunder and shall furnish to Capital
Tech copies of all related invoices and other statements.
e. Security and Offset. Capital Tech hereby grants to Escrow Agent and
the Indemnified Parties a security interest in and lien upon the Escrow
Funds (to the extent of Capital Tech's rights thereto) to secure all
obligations hereunder, and Escrow Agent and the Indemnified Parties
shall have the right to offset the amount of any compensation or
reimbursement due any of them hereunder (including any claim for
indemnification pursuant to Section 10 hereof) against the Escrow Funds
(to the extent of Capital Tech's rights thereto.) If for any reason the
Escrow Funds available to Escrow Agent and the Indemnified Parties
pursuant to such security interest or right of offset are insufficient
to cover such compensation and reimbursement, Capital Tech shall
promptly pay such amounts to Escrow Agent and the Indemnified Parties
upon receipt of an itemized invoice.
12. Representations and Warranties; Legal Opinions.
a. Capital Tech makes the following representations and warranties to
Escrow Agent:
(1) Capital Tech is a corporation duly organized, validly existing,
and in good standing under the laws of the State of Colorado, and has
full power and authority to execute and deliver this Escrow Agreement
and to perform its obligations hereunder;
(2) This Escrow Agreement has been duly approved by all necessary
corporate action of Capital Tech, including any necessary shareholder
approval, has been executed by duly authorized officers of Capital
Tech, and constitutes a valid and binding agreement of Capital Tech,
enforceable in accordance with its terms.
(3) The execution, delivery, and performance by Capital Tech of this
Escrow Agreement will not violate, conflict with, or cause a default
under the articles of incorporation or bylaws of Capital Tech, any
applicable law or regulation, any court order or administrative ruling
or decree to which Capital Tech is a party or any of its property is
subject, or any agreement, contract, indenture, or other binding
arrangement to which Capital Tech is a party or any of its property is
subject. The execution, delivery and performance of this Agreement is
consistent with and accurately described in the Offering Document, and
the allocation of interest and other earnings to Subscribers, as set
forth in Sections 4(b) and 4c hereof, has been properly described
therein.
(4) No party other than the parties hereto and the prospective
Subscribers have, or shall have, any lien, claim or security interest
in the Escrow Funds 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 Escrow Funds or any part thereof.
(5) Capital Tech hereby acknowledges that the status of Escrow Agent
is that of agent only for the limited purposes set forth herein, and
hereby represents and covenants that no representation or implication
shall be made that the Escrow Agent has investigated the desirability
or advisability of investment in the Shares or has approved, endorsed
or passed upon the merits of the investment therein and that the name
of the Escrow Agent has not and shall not be used in any manner in
connection with the offer or sale of the Shares other than to state
that the Escrow Agent has agreed to serve as escrow agent for the
limited purposes set forth herein.
(6) All of the representations and warranties of Capital Tech
contained herein are true and complete as of the date hereof and will
be true and complete at the time of any deposit to or disbursement from
the Escrow Funds.
b. Capital Tech make the following representations and warranties to
Escrow Agent:
(1) Capital Tech has full power and authority to execute and deliver
this Escrow Agreement and to perform its obligations hereunder;
(2) This Escrow Agreement constitutes a valid and binding agreement
of Capital Tech, enforceable in accordance with its terms.
(3) The execution, delivery, and performance by Capital Tech of this
Escrow Agreement will not violate, conflict with, or cause a default
under any applicable law, regulation or license, any court order or
administrative ruling or decree to which Capital Tech is a party or any
of its property is subject, or any agreement, contract, indenture, or
other binding arrangement to which Capital Tech is a party or any of
its property is subject. The execution, delivery and performance of
this Agreement is consistent with and accurately described in the
Offering Document, and the allocation of interest and other earnings to
Subscribers, as set forth in Sections 4(b) and 4(c) hereof, has been
properly described therein.
(4) The deposit with Escrow Agent by Capital Tech of Cash Investment
Instruments pursuant to Section 3 hereof shall be deemed a
representation and warranty by Capital Tech that such Cash Investment
Instrument represents a bona fide sale to the Subscriber described
therein of the amount of Shares set forth therein, subject to and in
accordance with the terms of the Offering Document.
(5) Capital Tech hereby acknowledges that the status of Escrow Agent
is that of agent only for the limited purposes set forth herein, and
hereby represents and covenants that no representation or implication
shall be made that the Escrow Agent has investigated the desirability
or advisability of investment in the Shares or has approved, endorsed
or passed upon the merits of the investment therein and that the name
of the Escrow Agent has not and shall not be used in any manner in
connection with the offer or sale of the Shares other dm to state that
the Escrow Agent has agreed to serve as escrow agent for the limited
purposes set forth herein.
(6) All of the representations and warranties of Capital Tech
contained herein are true and complete as of the date hereof and will
be true and complete at the time of any deposit to or disbursement from
the Escrow Funds.
13. Consent to Jurisdiction and Venue. In the event that any party
hereto commences a lawsuit or other proceeding relating to or arising
from this Agreement, the parties hereto agree that the United States
District Court for the District of Colorado shall have the sole and
exclusive jurisdiction over any such proceeding. If all such courts
lack federal subject matter jurisdiction, the parties agree that the
Superior Court of Colorado shall have sole and exclusive jurisdiction.
Any of these courts shall be proper venue for any such lawsuit or
judicial proceeding and the parties hereto waive any objection to such
venue. The parties hereto consent to and agree to submit to the
jurisdiction of any of the courts specified herein and agree to accept
service or process to vest personal jurisdiction over them in any of
these courts.
14. Notice. All notices and other communications hereunder shall be in
writing and shall be deemed to have been validly served, given or
delivered five (5) days after deposit in the United States mails, by
certified mail with return receipt requested and postage prepaid, when
delivered personally, one (1) day after delivery to any overnight
courier, or when transmitted by facsimile transmission facilities, and
addressed to the party to be notified as follows:
If to Capital Tech at:
Capital Tech, Inc.
0000 Xxxxx Xxxxxx, X-0 #000
Xxxxxxxxxx, Xxxxxxxx 00000
If to the Escrow Agent at:
Arapahoe Bank & Trust as Escrow Agent
0000 X. Xxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
or to such other address as each party may designate for itself by like
notice.
15. Amendment or Waiver. This Escrow Agreement may be changed,
waived, discharged or terminated only by a writing signed by Capital
Tech and Escrow Agent. No delay or omission by any party in exercising
any right with respect hereto shall operate as a waiver. A waiver on
any one occasion shall not be construed as a bar to, or waiver of, any
right or remedy on any future occasion.
16. Severability. To the extent any provision of this Escrow
Agreement is prohibited by or invalid under applicable law, such
provision shall be ineffective to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Escrow Agreement.
17. Governing Law. This Escrow Agreement shall be construed and
interpreted in accordance with the internal laws of the State of
Colorado without giving effect to the conflict of laws principles
thereof.
18. Entire Agreement. This Escrow Agreement constitutes the entire
agreement between the parties relating to the acceptance, collection,
holding, investment and disbursement of the Escrow Funds and sets forth
in their entirety the obligations and duties of the Escrow Agent with
respect to the Escrow Funds.
19. Binding Effect. All of the terms of this Escrow Agreement, as
amended, from time to time, shall be binding upon, inure to the benefit
of and be enforceable by the respective successors and assigns of
Capital Tech and Escrow Agent.
20. Execution in Counterparts. This Escrow Agreement may be executed
in two or more counterparts, which when so executed shall constitute
one and the same agreement.
21. Termination. Upon the first to occur of the disbursement of all
amounts in the Escrow Funds or deposit of all amounts in the Escrow
Funds into court pursuant to Section 5 hereof, this Escrow Agreement
shall terminate and Escrow Agent shall have no further obligation or
liability whatsoever with respect to this Escrow Agreement or the
Escrow Funds.
22. Dealings. The Escrow Agent and any stockholder, director,
officer or employee of the Escrow Agent may buy, sell, and deal in any
of the securities of Capital Tech and become pecuniarily interested in
any transaction in which Capital Tech may be interested, contract and
lend money to Capital Tech and otherwise act as fully and freely as
though it were not Escrow Agent under this Agreement. Nothing herein
shall preclude the Escrow Agent from acting in any other capacity for
Capital Tech or any other entity.
IN WITNESS WHEREOF, the parties hereto have caused this Escrow
Agreement to be executed under seal as of the date first above written.
Capital Tech, Inc.
By: Xxxxxxx Xxxxxxx
Title: President
[Corporate Seal]
ATTEST:
/s/Xxxx Xxxxxxxx
Xxxx Xxxxxxxx
Secretary
ARAPAHOE BANK & TRUST, as Escrow Agent
By: /s/
Title: Vice President
Exhibit A
Offering Document
Exhibit B
Additional Documents Required
for Release of Escrow Funds
Pursuant to Section 4(a)
1. Certificate of Xxxxxxx Xxxxxxx, President of Capital Tech, Inc.,
that (a) the Offering Document has been declared effective under the
Securities Act of 1933, and (b) no stop order has been issued or
threatened to be issued by the SEC or any other federal or state
regulatory authority in connection with the Offering Document or the
offering of Shares pursuant thereto; and
2. An opinion of counsel to Capital Tech that (a) the Offering Document
has been declared effective under the Securities Act of 1933, and (b)
to the best of its knowledge, no stop order has been issued or
threatened to be issued by the SEC or any other federal or state
regulatory authority in connection with the Offering Document or the
offering of Shares pursuant thereto.
Exhibit C
Fee Schedule for Escrow Agent
Name of Firm Arapahoe Bank & Trust
Contact
Phone Number
Fee Proposal
Acceptance Fee Waived
Administration Fee $
(to be deducted from 1st closing)
Out-of-Pocket Expenses At cost
Legal Fee (max.) At cost
Transactions $10 per deposit (first 100
at no charge) $15 per
disbursement *
The Legal Fee covers the costs of drafting /review governing document
by First Union's counsel. Such Legal Fee is payable even if the
parties involved decide not to proceed with the transaction for any
reason whatsoever, and is in addition to fees payable for our
administration of the account.
Out-of-pocket expenses incurred in rendering any service covered by
this schedule are in addition to the fees quoted. Expenses for which
Arapahoe Bank & Trust is normally reimbursed include, but are not
limited to, counsel fees, travel expenses, publications, printing
costs, postage, and courier charges.
This fee is based on the Escrow Agent being required to send check
checks back to the
investors, if required.
Approved & Acknowledged by:
Authorized Representative
The fees quoted above are based solely on the information provided to
Arapahoe Bank & Trust at the time of submission. If the parameters for
this transaction change for any reason we reserve the right to adjust
our fees accordingly.
