EXHIBIT 4.3
ESCROW AGREEMENT
THIS ESCROW AGREEMENT is made as of the ___ day of _____________, 19__,
by and between Xxxxxxxx Xxxx, Xxxxxxx, Xxxxxxxx as escrow agent (the "Escrow
Agent") and Xxxxxx.xxx Holding Corporation, a Delaware corporation (the
"Company").
1. Property Deposited in Escrow. All proceeds (the "Proceeds") of
subscriptions (together with a list setting forth the name, address and social
security number of each subscriber, and the amounts and dates of receipt of
their respective subscriptions) for shares of common stock (the "Shares") in the
Company received by the Company during the Initial Offering Period (as defined
in paragraph 2.6 below) shall be deposited in escrow with the Escrow Agent
within 48 hours of receipt. The Company shall deliver to all such prospective
subscribers interim receipts for the amount of their funds deposited into
escrows. Copies of such receipts shall be delivered to the Escrow Agent, said
interim receipts to be substantially in the form of Exhibit A hereto.
2. Authority of Escrow Agent. The Escrow Agent shall collect, hold,
deal with and dispose of the Proceeds and any other property at any time held by
it hereunder in the following manner:
2.1 If, but only if, proceeds aggregating not less than $1,000,000 have
been received during the Initial Offering Period, all proceeds and other
property deposited in this escrow (excluding all interest accumulated on the
Proceeds paid to subscribers pursuant to paragraph 2.2 below) shall as soon as
practicable be paid over and delivered to the Company upon its written request
and upon the Company's certification to the Escrow Agent that subscriptions
aggregating not less than ______________ Shares have been received and accepted
by the Company. Any interest which shall be accrued on the Proceeds during the
period of the escrow shall concurrently be paid to the Company.
2.2 If proceeds aggregating not less than $1,000,000 have not been
received during the Initial Offering Period, prompt remittance of the Proceeds
deposited in this escrow shall be made by the Escrow Agent to the subscribers,
at their respective addresses shown on the list of subscriber names and
addresses delivered to the Escrow Agent pursuant to paragraph 1 in the amounts
shown thereon and without deductions of any kind or character. Any interest
which shall be accrued on the Proceeds during the period of the escrow shall
concurrently be paid to the subscribers pursuant to calculations and written
instructions provided by the Company.
2.3 Prior to delivery of the escrowed Proceeds to the Company as
described in paragraph 2.2 above, the Company shall have no title to or interest
in the Proceeds on deposit in this escrow or in any interest earned thereon, and
such Proceeds and interest shall under no circumstances be subject to the
liabilities or indebtedness of the Company.
2.4 The Escrow Agent shall cause all Proceeds deposited in this escrow
agreement to be maintained and invested as the Company shall from time to time
direct by written instrument delivered to the Escrow Agent, in certificates of
deposit, money market or savings accounts of the Escrow Agent which can be
readily liquidated on twenty-four hours notice so that 100% of the Proceeds so
deposited and interest thereon can, if necessary, be returned to subscribers in
accordance with paragraph 2.2 above. In the event that 100% of the Proceeds so
deposited are not realized upon such liquidation, the Company shall pay the
difference into this escrow for distribution to the subscribers. The Escrow
Agent shall incur no liability for any loss suffered so long as the Escrow Agent
follows such directions.
2.5 At any time prior to the termination of this escrow, for whatever
reason, the Company may notify the Escrow Agent that a Subscription Agreement of
a subscriber has not been accepted, or has only been partially accepted, and the
Company may direct the Escrow Agent to return as soon thereafter as may be
practicable any Proceeds held in this escrow for the benefit of such subscriber
directly to such subscriber, without interest. If any check transmitted to the
Escrow Agent in connection with a subscription shall remain uncollected for any
reason, the Escrow Agent shall return such check, together with any other
material or documents received by it in connection with such subscriptions, to
the Company.
2.6 The "Initial Offering Period" shall expire on ____________________
or, if extended in the discretion of the Company, on a date no later than
___________________.
2.7 The Escrow Agent shall not be obligated to inquire as to the form,
manner of execution or validity of any documents herewith or hereafter deposited
pursuant to the provisions hereof, nor shall the Escrow Agent be obligated to
inquire as to the identity, authority or rights of the persons executing the
same. In case of conflicting demands upon it, said Escrow Agent may withhold
performance under this escrow agreement until such time as said conflicting
demands shall have been withdrawn or the rights of the respective parties shall
have been settled by court adjudication, arbitration, joint order or otherwise.
2.8 The Escrow Agent shall not be required to record separately on its
books the name and address of each subscriber and the amount of each of their
respective subscriptions as received, but shall keep the lists delivered to it
pursuant to paragraph 1 above.
3. Fees and Expenses of Escrow Agent. The fees and expenses of the
Escrow Agent shall be as determined in accordance with the fee schedule annexed
hereto as Exhibit
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B. All fees and expenses referred to in this paragraph shall be paid by the
Company unless subscriptions are returned to all subscribers pursuant to
paragraph 2.2 above, in which event such fees and expenses shall be paid by the
Company. The Escrow Agent shall provide monthly statements to the Company. The
Escrow Agent shall be paid its customary fee for any documents and/or copies
other than the monthly account statements provided to the Company.
4. Liability of Escrow Agent. The Escrow Agent shall not be personally
liable for any act which it may do or omit to do hereunder in good faith and in
the reasonable exercise of its own best judgment. Any act done or omitted by the
Escrow Agent pursuant to the advice of its legal counsel shall be deemed
conclusively to have been performed or omitted in good faith by the Escrow Agent
and in no event shall it be liable or responsible for any loss to the Proceeds
resulting from the investment thereof in accordance with the terms of this
escrow agreement.
5. Indemnification of Escrow Agent. The Company agrees to indemnify and
hold harmless the Escrow Agent and its directors, officers, employees and agents
from and against all costs, damages, judgments, attorneys' fees (whether such
attorneys shall be regularly retained or specifically employed), expenses,
obligations and liabilities of every kind and nature which the Escrow Agent may
incur, sustain or be required to pay in connection with or arising out of this
Escrow, and to pay the Escrow Agent on demand the amount of all such costs,
damages, judgments, attorneys' fees, expenses, obligations and liabilities.
6. Representations and Warranties of the Company. The Company warrants
to and agrees with the Escrow Agent that, unless otherwise expressly set forth
in this escrow agreement: there is no security interest in the Proceeds 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 proceeds or any part thereof; and the Escrow
Agent shall have no responsibility at any time to ascertain whether or not any
security interest exists in the proceeds or any part thereof or to file any
financing statement under the Uniform Commercial Code with respect to the
Proceeds or any part thereof.
7. Escrow Agent's Compliance with Court Orders, etc. If any property
subject hereto 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, writ, judgment or decree shall be made or entered by any court effecting
such property, or any part hereof, then in any of such events, the Escrow Agent
is authorized to rely upon and comply with any such order, writ, judgment or
decree, it shall not be liable to any of the parties hereto or to any other
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person, firm or corporation by reason of such compliance, even though such
order, writ, judgment or decree may be subsequently reversed, modified,
annulled, set aside or vacated.
8. Resignation of Escrow Agent. The Escrow Agent may resign by giving
ten days' written notice by certified mail, return receipt requested, sent to
the undersigned at their respective addresses herein set forth; and thereafter,
subject to the provisions of the preceding paragraph hereof, shall deliver all
remaining deposits in said escrow to a successor escrow agent acceptable to all
other parties hereto, which acceptance shall be evidenced by the joint written
and signed order of the undersigned. If no such order is received by the Escrow
Agent within thirty days after mailing such notice, it is unconditionally and
irrevocably authorized and empowered to send any and all items deposited
hereunder by registered mail to the respective depositors thereof.
9. Amendments. The Escrow Agent's duties and responsibilities shall be
limited to those expressly set forth in this escrow agreement, and the Escrow
Agent shall not be subject to, nor obliged to recognize, any other agreement
unless reference thereto is made herein; provided, however, with the Escrow
Agent's written consent, this escrow agreement may be amended at any time or
times by an instrument in writing signed by all of the undersigned.
10. Governing Law. This escrow agreement shall be construed, enforced
and administered in accordance wit the laws of the State of Illinois.
11. Effectiveness. This agreement shall not become effective (and the
Escrow Agent shall have no responsibility hereunder except to return the
property deposited in escrow to the subscribers) until the Escrow Agent shall
have received a certificate as to the names and specimen signatures of those
individuals with authority to bind the Company and shall have advised the
Company in writing that the same are in form and substance satisfactory to it.
12. Termination. This escrow agreement shall terminate upon completion
of the obligations provided in either paragraphs 2.1 or 2.2 hereof or as
provided in paragraph 8 hereof.
13. Notices. Any notice which the parties hereto are required or desire
to give hereunder to any of the undersigned shall be in writing and may be given
by mailing the same to the address of the undersigned by certified mail, return
receipt requested, postage prepaid:
If to the Escrow Agent: Lakeside Bank
00 Xxxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxx
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If to the Company: Xxxxxx.xxx Holding Corporation
000 Xxxx Xxxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxx
Notices to or from the Escrow Agent hereunder shall be in writing and
shall not be deemed to be given until actually received by the Escrow Agent or
by the person to whom it was mailed, respectively. Whenever under the terms
hereof the time for giving notice or performing an act falls upon a Saturday,
Sunday or bank holiday, such time shall be extended to the Escrow Agent's next
business day.
IN WITNESS WHEREOF, the parties have executed this escrow agreement as
of the date first above written.
Xxxxxx.xxx Holding Corporation
By:_______________________________
Authorized Officer
Officers of the Company:
_______________________________
_______________________________
_______________________________
_______________________________
ACCEPTED:
Xxxxxxxx Xxxx, Xxxxxxx, Xxxxxxxx
By:__________________________________
Vice President and Trust Officer
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EXHIBIT A
INTERIM RECEIPT
Xxxxxx.xxx Holding Corporation
(A Delaware Corporation)
__________________________________________
Name of Subscriber
__________________________________________
__________________________________________
__________________________________________
Address of Subscriber
__________________________________________
Telephone Number
__________________________________________
Social Security Number
This receipt evidences the subscription for ______________ Shares
during the Initial Offering period of Shares of Xxxxxx.xxx Holding Corporation
by the subscriber named above for a total price of $______________. Said amount
shall be deposited with Lakeside Bank in Chicago, Illinois as Escrow Agent
pursuant to an escrow agreement between it and Xxxxxx.xxx Holding Corporation.
Said subscription and payment for the Interest described above are governed by
said escrow agreement. This receipt does not constitute final acceptance of such
subscription by Xxxxxx.xxx Holding Corporation.
Dated:__________________________
Xxxxxx.xxx Holding Corporation
By:________________________________
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