ESCROW AGREEMENT
This Escrow Agreement is entered into effective March 13, 2002, by and
among EMTC International, Inc., an Oklahoma corporation ("EMTC"); SuperCorp
Inc., an Oklahoma corporation ("SuperCorp"); and BancFirst, an Oklahoma banking
corporation, of Oklahoma City, Oklahoma ("BancFirst").
In consideration of the representations, undertakings, and promises set
forth below, the parties agree as follows:
1. Representations by EMTC. EMTC represents as follows:
-----------------------
1.1. EMTC is preparing for filing a Form XX-0 Xxxxxxxxxxxx
Xxxxxxxxx ("xxx XX-0") with the Securities and Exchange Commission ("the
Commission"). A copy of the most recent draft of the SB-2 is delivered herewith
to BancFirst, and EMTC undertakes to deliver to BancFirst the final form of the
SB-2 as filed with the Commission and any amendments thereto.
1.2. EMTC and Engineering and Materials Corporation, an
Oklahoma corporation, have entered into an agreement of merger ("the Agreement
of Merger"), which merger is described in the SB-2.
1.3. EMTC has one shareholder - SuperCorp, which is the
owner of record of 600,000 shares of EMTC's common stock ("the Spinoff Shares").
2. Representations by SuperCorp. As soon as permitted by law or
----------------------------
regulation or as soon as possible after the Commission has declared effective
the SB-2, SuperCorp shall vote its 600,000 Spinoff Shares to approve the
proposed merger described in the Agreement of Merger. Immediately thereafter,
SuperCorp shall declare a dividend to its shareholders of the 600,000 Spinoff
Shares.
3. Representations of BancFirst. BancFirst represents that
------------------------------
it is an "insured depository institution," as that term is defined in Section
3(c)(2) of the Federal Deposit Insurance Act.
4. Escrow of Spinoff Shares. The 600,000 Spinoff Shares shall
------------------------
be escrowed with BancFirst pursuant to the following terms and conditions:
4.1. After declaration by SuperCorp of the dividend to its
shareholders of the 600,000 Spinoff Shares, either SuperCorp or its
registrar-transfer agent shall deliver to BancFirst stock certificates
representing the 600,000 Spinoff Shares, which certificates shall evidence on
their faces the identity of the owners of the shares represented by each
certificate.
4.2. Until such time as the escrowed certificates are released
from escrow in accordance with the terms of this Escrow Agreement, EMTC shall
declare no cash dividends on the shares represented by such certificates.
4.3. BancFirst shall hold the escrowed certificates solely for
the benefit of the owners of the shares represented by such certificates, which
owners shall have all voting rights with respect to such shares as are provided
by Oklahoma law. However, no transfer or other disposition of the escrowed
securities or any interest related to such securities shall be permitted by EMTC
or recognized by BancFirst other than by will or the law of descent and
distribution, or pursuant to a qualified domestic relations order as defined by
the Internal Revenue Code of 1986 as amended or to Title 1 of the Employee
Retirement Income Security Act.
5. Release of the Escrowed Securities. The certificates placed in
----------------------------------
escrow with BancFirst shall be released from escrow and delivered by BancFirst
to EMTC's stock registrar-transfer agent for delivery by it to the owners of the
certificates at such time as or after BancFirst has received a signed
representation from EMTC, together with any other evidence acceptable to
BancFirst, that the conditions and requirements set forth either in paragraph
5.1 or 5.2 below have been met.
5.1. Should the merger described in the Agreement of Merger be
approved by the shareholders of EMTC and of Engineering and Materials
Corporation, and should the necessary merger documents be filed with the
Secretary of State of Oklahoma, EMTC shall so represent this in writing to
BancFirst and shall state the date the merger became effective.
5.2. Should the proposed merger described in the Plan of
Merger not be approved and effected, EMTC proposes to search for an alternative
merger partner or for a suitable business or assets to be acquired. At such time
as EMTC should execute an agreement of merger or for the acquisition of a
business or assets that would constitute the business of EMTC, EMTC shall file a
post-effective amendment to the Form SB-2 disclosing the information specified
by the Form SB-2 registration statement and Industry Guides, including financial
statements of EMTC and the company to be acquired, and the post-effective
amendment must become effective at the Commission. Then, the alternative merger
or acquisition of a business or assets must be approved and legally effected, at
which time EMTC shall represent to BancFirst in writing that this has occurred
and that all requirements of the Commission for the release from escrow of the
certificates have been met.
6. Term of Escrow Agreement. This Escrow Agreement shall
------------------------
terminate 18 months after the effective date of the initial Form SB-2, unless
the certificates have been earlier released from escrow according to the
provisions set forth above. Should no such release from escrow have occurred by
the termination date, BancFirst shall deliver, for cancellation, all escrowed
stock certificates to EMTC's stock registrar-transfer agent.
7. Depository Duty. BancFirst will be liable as a depository
---------------
only and will not be responsible for the sufficiency or accuracy of the form,
execution or validity of any certificate or document delivered to BancFirst
hereunder or any description of the property or other thing contained therein or
the identity, authority or rights of the persons executing or delivering or
purporting to execute or deliver any such certificate or document. BancFirst's
duties hereunder are limited to the safekeeping of the instruments or other
documents received, and the delivery of the same in accordance with this
Agreement.
8. Standard of Care. BancFirst will not be liable for any act or
----------------
omission done in good faith, or for any claim, demand, loss or damage made or
suffered by any party to this Agreement, excepting such as may arise through or
be caused by BancFirst's willful misconduct or gross negligence.
9. Reliance. BancFirst is authorized to rely on any
--------
document believed by BancFirst to be authentic in making any delivery of
certificates, funds or property hereunder.
10. Escrow Charges. A $500 fee will be paid by EMTC to BancFirst
--------------
for services to be rendered hereunder. BancFirst, however, may employ attorneys
for reasonable protection of the escrow property and of itself, and EMTC will
reimburse BancFirst on demand. All sums due BancFirst under this Agreement will
bear interest at the rate of 10 percent per annum from the date due until
BancFirst is reimbursed in full.
11. Liability of BancFirst. In accepting any securities or
----------------------
documents delivered hereunder, it is agreed and understood by the undersigned
that BancFirst will not be called on to construe any contract or instrument
deposited herewith and, in the event of a dispute, will be required to act in
respect to the deposit herein made only on the consent in writing of the
undersigned. In the event of its failure to obtain such consent in writing,
BancFirst reserves the right to hold all papers in connection with or concerning
this escrow until a mutual agreement in writing has been reached between all
parties and delivered to BancFirst or until delivery is legally authorized and
ordered by final judgment or decree of a court of competent jurisdiction. If
BancFirst obeys or complies with any judgment, order or decree of a court of
competent jurisdiction, BancFirst will not be liable to any of the parties
hereto nor to any other person, firm or corporation by reason of such
compliance, notwithstanding that any such judgement, order or decree should be
subsequently reversed, modified, annulled, set aside or vacated.
12. Resignation or Removal of BancFirst.
-----------------------------------
12.1. BancFirst may resign hereunder following the giving of
30 days prior written notice to EMTC. Similarly, BancFirst may be removed and
replaced following the giving of 30 days prior written notice to BancFirst by
EMTC. In either event, the duties of BancFirst will terminate 30 days after the
date of such notice (or as of such earlier date as may be mutually agreeable),
and BancFirst will then deliver all certificates then in its possession to a
successor escrow agent as will be appointed by EMTC, as evidenced by a written
notice filed with BancFirst.
12.2. If EMTC shall have failed to appoint a successor escrow
agent prior to the expiration of 30 days following the date of the notice,
resignation or removal of BancFirst, BancFirst may petition any court of
competent jurisdiction for the appointment of a successor escrow agent, or other
appropriate relief, and any such resulting appointment will be binding upon
EMTC. The cost of such proceeding including attorneys fees will be reimbursed by
EMTC on demand.
12.3. Upon acknowledgement by any successor escrow agent of
the receipt of all certificates that had prior to such notice been in the
possession of BancFirst, BancFirst will be fully released and relieved of all
duties, responsibilities, and obligations under this agreement.
13. Notice. Any request, direction, notice or other service required or
------
permitted to be made or given by any party hereto will be in writing and will be
deemed sufficiently given or served for all purposes if delivered in person or
via certified mail, return receipt requested, to the parties hereto at the
addresses set forth below or at such other address as any party will specify,
from time to time, by written notice given to the other party hereto:
(a) To EMTC, Inc.
and to SuperCorp: Xxxxxx X. Xxxxx
000 Xxxxxx X. Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx Xxxx, XX 00000
(b) To BancFirst: BancFirst, an Oklahoma banking corporation
Trust and Investment Management Division
Main and Broadway
Oklahoma City, OK 73102
IN WITNESS WHEREOF, this Escrow Agreement is executed as of the date
set forth above.
EMTC INTERNATIONAL, INC.
By: /s/ Xxxxxx X. Xxxx
-------------------------------------------
Xxxxxx X. Xxxx, President
BANCFIRST, N.A., OKLAHOMA CITY, OKLAHOMA
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------------
Xxxxx X. Xxxxxxx, President - Trust
and Investment Management Division
SUPERCORP INC.
By: /s/ Xxxxxx X. Xxxx
-------------------------------------------
Xxxxxx X. Xxxx, President
RELEASE
All moneys, documents and papers relative to this escrow
deposit have been delivered in accordance with the provisions of this Escrow
Agreement this ______ day of _____________________, 2002, and BancFirst herein
is relieved from all further liability or responsibility with reference hereto.
EMTC INTERNATIONAL, INC.
By_________________________________
Xxxxxx X. Xxxx, President
SUPERCORP INC.
By_________________________________
Xxxxxx X. Xxxx, President
