ESCROW AGREEMENT
This
Escrow Agreement, dated as of March 25, 2009 (this “Agreement”), is
entered into by and among Go Public Acquisition Corporation II a Nevada
corporation with an address at 0000 Xxxxx Xx, Xxxxx 000X, Xxxxxxx, XX 00000 (the
“Company”) and Escrow, LLC, with an address at 00 Xxxx Xxxxxx, Xxxxx 000,
Xxxxxxxxx, Xxxxxxxx 00000 (the “Escrow
Agent”).
WITNESSETH:
WHEREAS,
the Company proposes to make an offering in accordance with Rule 419 of the
Securities Act of 1933, as amended (the “Offering” and the
“Act,”
respectively);
WHEREAS, the Company desires to deposit
all monies received from investors (“Investors”) pending a
closing of the offering (the “Escrowed Funds”) with
the Escrow Agent, to be held in escrow until 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;
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 the Escrow Agent as escrow
agent for the Investors and the Escrowed Funds in accordance with the terms and
conditions set forth herein and the Escrow Agent hereby accepts such
appointment. Escrow Agent hereby agrees to deposit all Escrowed Funds
in an insured depository institution,” as that term is defined in section
3(c)(2) of the Federal Deposit Insurance Act (12 U.S.C.
1813(c)(2)).
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
Wires
Virginia
Commerce Bank
Leesburg,
VA
ABA#
000000000
Account
Name: Escrow, LLC FBO Purchasers of GPACII Offering Account #:
00000000
International Wires
Correspondent
Bank: Xxxxx Fargo Bank,
San
Francisco, CA
SWIFT#
XXXXXX0X
Credit
Acct: 000-00-00000
Virginia
Commerce Bank
FBO
Account Name: Escrow, LLC
Account
#: 00000000
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2.2 (a)
All Investors’ checks shall be made payable to “ESCROW, LLC FBO Purchasers of
GPACII Offering” 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 the
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
Company. If the Escrow Agent does not receive the Subscription Information
relating to an Investor prior to the 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 Company 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 instructions and representations from the Company in substantially
the form of Exhibit
C hereto, the Escrow Agent shall release the Escrowed Funds as directed
in such instructions. The Company and Escrow Agent also hereby agree that in the
event that any Investor requests the return of Escrowed Funds deposited by it,
such funds will be returned by Escrow, LLC.
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, (i) 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, or
(ii) return the Escrowed Funds to the Investors from which they were received,
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 210 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.
3.4
If the Company does not inform Escrow Agent that it has closed
an acquisition within eighteen (18) months of the date of this Agreement, then
this Agreement shall terminate and all Escrowed Funds shall be returned to the
parties from which they were received, without interest thereon or deduction
therefrom.
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4.
Exculpation and
Indemnification of Escrow Agent
4.1 The
Escrow Agent shall haven 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 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.
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, Investors 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 a
party to this Agreement, 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 a 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.
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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.
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 Company.
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, on the execution of this Agreement.
7.2 Closing
Fee: The Company shall pay a fee of $200.00 to the Escrow
Agent for disbursement.
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.
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.
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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 made by 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 only with the
written consent of the Company. 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, the Company and the Initial Purchaser.
This Escrow Agreement is intended to be for the sole benefit of the parties
hereto and the Additional Purchasers 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.
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.
[Remainder
of page intentionally left blank
Signature
pages follow]
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IN WITNESS WHEREOF, the parties have
executed and delivered this Escrow Agreement on the day and year first above
written.
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ESCROW
AGENT:
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ESCROW,
LLC
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By:
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/s/
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Name:
Xxxxxxx X. Xxxxxxx
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Title:
Vice-President
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GO
PUBLIC ACQUISITION
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CORPORATION
II
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By:
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/s/
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Name:
Xxxxxx X. Xxxxxxx
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Title:
President
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EXHIBIT
A
PARTIES
TO AGREEMENT
Escrow,
LLC
000 Xxxx
Xx.
Xxxxxxxxxx,
XX 00000
Telephone:
000-000-0000
Attention:
Xxxxxxx X. Xxxxxxx
Fax:
000-000-0000
Email:
xxxxxxxx@xxxxxxxxx.xxx
_
/s/___________________________
(Signature)
GO
PUBLIC ACQUISITION CORPORATION II
0000
Xxxxx Xx., Xxxxx 000X
Xxxxxxx,
XX 00000
Attn:
Xxxxx Xxxxx
Tel.
..000-000-0000
Fax
:000-000-0000
Email:
xxxxxxxxxx@xxxxxxxx.xxx
/s/_________________________________
(Signature)
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EXHIBIT
B
SUBCRIPTION
INFORMATION
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Name
of Subscriber
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Address
of Subscriber
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Amount
of Securities
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Subscribed
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US
Dollar Amount
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Submitted
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Taxpayer
ID Number/
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Social
Security Number
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EXHIBIT
C
DISBURSEMENT
REQUEST
Pursuant to that certain Escrow
Agreement by and between Go Public Acquisition Corporation II and Escrow, LLC
the undersigned hereby requests disbursement of funds in the amount and manner
described below.
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Please
disburse to:
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Amount
to disburse:
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Form
of distribution:
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Payee:
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Name:
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Address:
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City/State:
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Zip:
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Bank:
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The
Company hereby warrants to the Escrow Agent that the terms of Rule 419(e)(1) and
(e)(2) have been satisfied and hereby tenders to the Escrow Agent a copy of the
post-effective amendment filed by the Company with the Securities and Exchange
Commission.
Statement of event or condition which
calls for this request for disbursement:
_______________________________________________________________
Escrow
Disbursement approved by:
_______________________________________________________________
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(Signature)
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Date
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(Signature)
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Date
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