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EXHIBIT 10.3
STOCK ESCROW AGREEMENT
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EXHIBIT A
STOCK ESCROW AGREEMENT
THIS STOCK ESCROW AGREEMENT (this "Agreement") is dated as of September
30, 1999, by and between Xx. Xxxxx X. Xxxxxx (the "Shareholder"), the Augustine
Fund, L.P. (the "Lender"), and H. XXXXX XXXXXXX, XX., a duly licensed attorney
who practices law in the State of North Carolina, U.S.A., as Escrow Agent (the
"Escrow Agent").
WITNESSETH:
WHEREAS, the Lender and Thoroughbred Interest, Inc., a Nevada corporation
(the "Company") have entered into a Promissory Note dated as of the date of this
Agreement (the "Loan Agreement"), pursuant to which the Lender has agreed to
lend to the Company, in accordance with the terms hereof and of the Security
Agreement (defined below) and of the Loan Agreement, an amount of money in
United States dollars as stated in the Loan Agreement (the "Loan Amount"), which
Loan Amount is to be secured by a number of shares of common stock ("Common
Stock") of the Company, (capitalized terms used herein and not otherwise defined
herein shall have the meanings ascribed to them in the Loan Agreement and in the
accompanying Security Agreement); and
WHEREAS, the Lender has requested certain additional security as partial
consideration for Lender's undertakings as described in the Loan Agreement, and
the Shareholder has agreed to escrow shares of Common Stock to provide such
additional security; and
WHEREAS, it is a condition of the Lender's and the Company's respective
obligations to execute the Loan Agreement, that this Agreement be executed and
delivered by all of the parties named above, and that the undertakings described
herein be performed; and
WHEREAS, the Escrow Agent is willing to act hereunder on the terms and
conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants and obligations
set forth below, the parties hereto hereby agree as follows:
1. ESCROW ACCOUNT.
1.1 Account: Deposit. The transaction(s) described in the Loan Agreement
shall be entered into and commenced at a closing ("xxx Xxxxxxx"). On or within
three (3) business days after the date hereof, the Shareholder shall place
6,000,000 shares of Common Stock in escrow with the Escrow Agent, along with all
necessary stock powers duly executed and Medallion guaranteed, and the Lender
shall place in escrow with the Escrow Agent the sum of US$300,000.00. The said
sum shall be released by the Escrow agent to or at the direction of the
Shareholder upon receipt of the Common Stock (or earlier, with the Lender's
consent).
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2. DISBURSEMENT OF COMMON STOCK.
2.1 Disbursement. None of the Common Stock shall be disbursed other than
in accordance with the terms hereof, or in accordance with the written
instructions of at least two (2) of the three (3) parties hereto (i.e. any two
(2) of the Lender, the Shareholder and the Escrow Agent) delivered to the Escrow
Agent. Except as herein stated or as required by the Loan Agreement or the
Security Agreement, in no event shall the Escrow Agent release or transfer any
Common Stock to any party other than to the Shareholder in accordance with this
Agreement, absent express written instructions from the Shareholder to transfer
Common Stock to a third party. The Escrow Agent shall hold the Common Stock in
escrow and shall release the Common Stock to a party other than the Shareholder
only upon the following conditions.
(a) If (x) the amount due under the Loan Agreement is not repaid in full
in a timely manner as described in the Loan Agreement, or if (z) the Lender
informs the Escrow Agent and the Shareholder in writing with reasonable
specificity of a Default, the Company or the Shareholder shall have five (5)
business days from the date of such notice to cure the Default; if the Default
is cured, the Lender shall inform the Escrow Agent in writing, and no further
action will be taken; but if the Escrow Agent is not so informed in writing by
the Lender that the Default has been cured within such five (5) day period, then
in either case, the Lender shall deliver all or such portion of the Common Stock
to the Lender as is demanded by the Lender. The Escrow Agent shall deliver the
Common Stock to the Lender to effect the purposes of this Security Agreement.
(b) Once the amounts stated in and owed to the Lender pursuant to the Loan
Agreement have been paid in full, the Escrow Agent shall be notified of such
fact by the Lender, and the Escrow Agent shall immediately release the remaining
Common Stock held by the Escrow Agent to the Shareholder. The Shareholder shall
give written notice providing instructions with respect to the return of all
remaining Common Stock held in the Escrow Account (if any) to the Shareholder.
Any Common Stock then in the possession of the Lender shall immediately be
returned to the Escrow Agent for delivery to the Shareholder.
2.2 Controversies. If any controversy arises between two or more of the
parties hereto, or between any of the parties hereto and any person not a party
hereto, as to whether or not or to whom the Escrow Agent shall deliver the
Common Stock or any portion thereof or as to any other matter arising out of or
relating to this Escrow Agreement, the Escrow Agent shall not be required to
determine the same and need not make any delivery of the Escrow concerned or any
portion thereof but may retain the same until the rights of the parties to the
dispute shall have been finally determined by agreement or by final judgment of
a court of competent jurisdiction after all appeals have been finally determined
(or the time for further appeals has expired without an appeal having been made)
(notwithstanding the above, the provisions of the paragraph next above this one
shall apply in all events without exception). The Escrow Agent shall deliver
that portion of the Escrow concerned covered by such agreement or final order,
if any is then held by the Escrow Agent, within five (5) days after the Escrow
Agent receives a copy thereof The Escrow Agent shall assume that no such
controversy has arisen unless and until it receives
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written notice from the Lender and/or the Shareholder that such controversy has
arisen, which refers specifically to this Agreement and identifies the adverse
claimants to the controversy.
2.3 No Other Disbursements. No portion of the Common Stock shall be
disbursed or otherwise transferred except in accordance with this Section 2,
Section 4 or Section 5.1(b).
2.4 Title and Ownership of the Common Stock. The parties hereto
acknowledge and agree that ownership of and legal title to the Escrow Account
and the contents thereof shall be in the Shareholder, until and unless a Default
(as defined in the Security Agreement) occurs, in which case the terms of the
Loan Agreement and of the Security Agreement with respect thereto shall control.
3. ESCROW AGENT. The acceptance by the Escrow Agent of his duties
hereunder is subject to the following terms and conditions, which the parties to
this Agreement hereby agree shall govern and control with respect to the rights,
duties, liabilities and immunities of the Escrow Agent:
3.1 The Escrow Agent shall not be responsible or liable in any manner
whatever for the sufficiency, correctness, genuineness or validity of any cash,
Common Stock, certificates, investments or other amounts deposited with or held
by him.
3.2 The Escrow Agent shall be protected in acting upon any written notice,
certificate, instruction, request or other paper or document believed by him to
be genuine and to have been signed or presented by the proper party or parties.
3.3 The Escrow Agent shall not be liable for any act done hereunder except
in the case of his reckless or willful misconduct or actions taken in bad faith.
3.4 The Escrow Agent shall not be obligated or permitted to investigate
the correctness or accuracy of any document or to determine whether or not the
signatures contained in said documents are genuine or to require documentation
or evidence substantiating any such document or signature.
3.5 The Escrow Agent shall have no duties as Escrow Agent except those
which are expressly set forth herein, and in any modification or amendment
hereof; provided, however, that no such modification or amendment hereof shall
affect its duties unless it shall have given its written consent thereto. The
Escrow Agent shall not be prohibited from owning an equity interest in the
Company, the Shareholder, the Lender, another Lender, any of their respective
subsidiaries or any third party that is in any way affiliated with or conducts
business with either the Company, the Shareholder, the Lender or another Lender.
3.6 The Shareholder and the Lender specifically acknowledge that the
Escrow Agent is a practicing attorney, and may have worked with the Shareholder,
the Lender, the Company, or affiliates of either of them on other unrelated
transactions, and that they and each of them has specifically requested that the
Escrow Agent draft some or all of the documents for the said
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transactions and act as Escrow Agent with respect to the said transactions. Each
party represents that it has retained legal and other counsel of its choosing
with respect to the transactions contemplated herein and in the Loan Agreement,
and is satisfied in its sole discretion with the form and content of the
documentation drafted by the Escrow Agent. The Escrow Agent may purchase an
equity interest in the Company and/or may become an equity owner of the Lender
or another lender, and may increase or sell any such interest, so long as in
accordance with any and all applicable law. The said parties hereby waive any
objection to the Escrow Agent so acting based upon conflict of interest or lack
of impartiality. The Escrow Agent agrees to act impartially and in accordance
with the terms of this Agreement and with the parties' respective instructions,
so long as they are not in conflict with the terms of this Agreement.
4. TERMINATION. This Agreement shall terminate on the earlier of (a) the
date on which all of the Common Stock and any other escrowed documents and
things described herein shall have been fully distributed in accordance with the
terms and conditions of this Agreement, or (b) any other date agreed to jointly
by the Lender and the Shareholder.
5. MISCELLANEOUS.
5.1 Indemnification of Escrow Agent.
(a) The Shareholder and Lender each agree, jointly and severally, to
indemnify the Escrow Agent for, and to hold him harmless against, any loss
incurred without willful misconduct or bad faith on the Escrow Agent's part,
arising out of or in connection with the administration of this Agreement,
including the costs and expenses of defending himself against any claim or
liability in connection with the exercise or performance of any of his powers or
duties hereunder. This indemnification shall not apply to a party with respect
to a direct claim against the Escrow Agent by such party alleging in good faith
a willful breach of this Agreement or act of bad faith by the Escrow Agent,
which claim results in a final non-appealable judgment against the Escrow Agent
with respect to such claim.
(b) In the event of any dispute as to the nature of the rights or
obligations of the Lender, the Shareholder or the Escrow Agent hereunder, the
Escrow Agent may at any time or from time to time interplead, deposit and/or pay
all or any part of the Shares with or to a court of competent jurisdiction
sitting in Wake County, North Carolina or in any appropriate federal court, in
accordance with the procedural rules thereof. The Escrow Agent shall give notice
of such action to the Shareholder and the Lender. Upon such interpleader,
deposit or payment, the Escrow Agent shall immediately and automatically be
relieved and discharged from all further obligations and responsibilities
hereunder, including the decision to interplead, deposit or pay such funds.
5.2 Amendments. This Agreement may be modified or amended only by a
written instrument executed by each of the parties hereto.
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5.3 Notices. All communications required or permitted to be given under
this Agreement to any party hereto shall be sent by first class mail or
facsimile to such party at the address, of such party set forth on the signature
page of this Agreement.
5.5 Successors and Assigns. This Agreement shall bind and inure to the
benefit of the parties hereto and their respective successors and assigns;
provided, however, that the Escrow Agent shall not assign its duties under this
Agreement.
5.6 Governing Law. This Agreement shall be governed by and construed and
interpreted in accordance with the laws of the State of North Carolina.
5.7 Counterparts. This Agreement may be executed in three or more
counterparts, each of which shall be an original, and all of which together
shall constitute one and the same agreement.
5.8 Facsimile. This Agreement may be accepted via facsimile, and a
facsimile transmission of the executed signature page hereof shall make this
Agreement legally binding upon the party so executing and faxing such signature
page to the Escrow Agent.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
[SIGNATURE PAGE FOLLOWS]
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[SIGNATURE PAGE TO ESCROW AGREEMENT DATED SEPTEMBER 30, 1999]
THE SHAREHOLDER:
/s/ Xxxxx X. Xxxxxx
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Xx. Xxxxx X. Xxxxxx
THE LENDER:
THE AUGUSTINE FUND, L.P.
By: Augustine Capital Management, Inc., its
general partner
By: /s/ Xxxxxx X. Xxxxxxxxx
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(Duly Authorized Representative)
ESCROW AGENT:
/s/ H. Xxxxx Xxxxxxx, Xx.
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H. XXXXX XXXXXXX, XX., ESQ.
Address: 0000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxx Xxxxxxxx XXX 00000
Telephone 000.000.0000
Telecopier 919.785.3116
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