Contract
Exhibit
10.1
This
Escrow Agreement (the "Agreement") dated as of March __, 2007 is by and
between,
Rosewind Corporation., a Colorado corporation (the “Company”) and Compass Bank
(the "Escrow Agent"). The “Escrow Agen,” and the “Company,” may also be
hereinafter referred to as the “Parties.”
RECITALS
A.
The
Company’s officers are offering (the “Offering”) to prospective investors the
right to purchase up
to
500,000
Shares of its Common Stock (“Common Shares”), no par value, at a price of $0.25
per Common
Share.
The Company reserves the right to accept subscriptions for less than the
Minimum
Investment of $1,000. Xxxxx X. Xxxxxxx the Company’s President, Chief Financial
Officer and Sole Director will sell the Common
Shares
on a “best effort all or none” basis up to the minimum Offering of $50,000 and
on a “best efforts” basis, thereafter, up to the Maximum Offering of
$125,000.
B.
The
Company desires to establish an escrow account with the Escrow Agent into
which
certain monies will be deposited and held in escrow until a minimum of
$50,000
in
Subscriptions has been raised in connection with that certain Prospectus
and
Registration Statement on Form SB-2 dated ____________________ and those
certain
Subscription Agreement in connection with the offering (collectively, the
“Offering Documents”) by individuals or entities desiring to purchase Common
Shares (“Subscribers”); and Compass Bank has agreed to act as Escrow Agent on
behalf of the Company on the terms and conditions set forth in this
Agreement;
NOW,
THEREFORE, in consideration of the premises the Parties agree as
follows:
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1.
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ESCROW
FEES:
The Company hereby agrees to pay the Escrow Agent compensation
for
ordinary services rendered hereunder (the "Escrow Fee") which
shall be
calculated in accordance with the Escrow Agent's fee schedule
attached as
Exhibit A. The Company further agrees to pay the Escrow Agent
reasonable
fees, which shall be agreed upon between the Parties, for any
services in
addition to those provided for herein to the extent that the
Company has
expressly requested such extraordinary services and has been
made aware of
their cost in advance of their
performance.
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2.
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DEPOSITS:
The Company shall deliver to the Escrow Agent all checks, drafts
and money
orders ("Subscription Payments") received by the Company from
the
Subscribers in connection with the Offering. All checks, drafts
or money
orders for payment of the Proceeds shall be made payable to Rosewind
Corporation and shall be deposited promptly to the escrow account.
The
Company shall keep full and proper records (the "Records") of
the names of
subscribers, the number of Common Shares purchased and amount
of
Subscription Payments paid by each
Subscriber.
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3.
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INVESTMENT
OF FUNDS:
All Subscription Payments shall be cleared and held in a separate
Compass
Bank Money market Account, which is FDIC
insured.
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4.
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TERMINATION
DATE:
For the purpose of this Agreement, the "Termination Date" shall
be 90
business days from the effective date of the Company’s Registration
Statement on Form Sb-2, unless terminated earlier by the Company
, or
extended by them, in writing for up to an additional 90 business
days.
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5.
DISBURSEMENT
OF FUNDS:
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(a)
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TERMINATION
OF THE OFFERING:
If
the Escrow Agent has not received on or before the Termination
Date,
Subscription Payments in aggregate amount of at least Fifty Thousand
Dollars ($50,000), then the Escrow Agent shall proceed as directed
by the
Company. The Escrow Agent, if so directed, shall release all
Subscription
Payments, with any accrued interest on such funds, to each Subscriber,
respectively, at the address given by such Subscriber in the
Subscription
Agreement. All disbursements by the Escrow Agent pursuant to
this section
shall be made by the Escrow Agent's usual escrow checks and shall
be
mailed by first class United States Postal Services mail, postage
pre-paid, as soon as practicable but not later than the third
business day
after the Termination Date.
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(b)
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INITIAL
CLOSING OF OFFERING:
If
the Escrow Agent has received on or before the Termination Date,
Subscription Payments in an aggregate amount of not less than
Fifty
Thousand Dollars ($50,000), and the Company’s acceptance of each
Subscriber, in writing, then the Escrow Agent shall disburse
all
Subscription Documents and Subscription Payments, with interest,
to the
Company in immediately available funds in accordance with the
written
instructions from the Company.
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(c)
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SUBSEQUENT
CLOSINGS:
After an initial closing of the offering, from time to time upon
receipt
by the Escrow Agent of additional Subscription Payments and written
acceptance of each Subscriber by the Company the Escrow Agent
shall
disburse all then held Subscription Payments, with interest,
to the
Company in immediately available funds in accordance with the
Company’s
written instructions.
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6.
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COLLECTED
FUNDS:
No
Subscription Payment shall be disbursed pursuant to Section 5
until such
Subscription Payment has been received by the Escrow Agent in
immediately
available funds.
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7.
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LIABILITY
OF ESCROW AGENT:
In
performing any duties under this Agreement, the Escrow Agent
shall not be
liable to the Company or any Subscriber for damages, losses,
or expenses,
except for gross negligence or willful misconduct on the part
of the
Escrow Agent. The Escrow Agent shall not incur any such liability
for any
action taken or omitted in reliance upon any instrument, including
any
written statement or affidavit provided for in this Agreement
that the
Escrow Agent shall in good faith believe to be genuine, nor will
the
Escrow Agent be liable or responsible for forgeries, fraud,
impersonations, or determining the scope of any representative’s
authority. In addition, the Escrow Agent may consult with legal
counsel in
connection with the Escrow Agent's duties under this Agreement
and shall
be fully protected in any action taken, suffered, or permitted
by it in
good faith in accordance with the reasonable advice of counsel.
The Escrow
Agent is not responsible for determining and verifying the authority
of
any person acting or purporting to act on behalf of any Party
to this
Agreement.
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8.
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FEES
AND EXPENSES:
It
is understood that the fees and usual charges agreed upon for
services of
the Escrow Agent shall be considered compensation for ordinary
services as
contemplated by this Agreement. In the event that the conditions
of this
Agreement are not promptly fulfilled, or if the Escrow Agent
renders any
service not provided for in this Agreement after approval by
the Company
and Placement Agent, or if the Company and Placement Agent request
a
substantial modification of its terms, or if any controversy
arises, or if
the Escrow Agent is made a party to, or intervenes in, any litigation
pertaining to this escrow or its subject matter, the Escrow Agent
shall be
reasonably compensated for such extraordinary services and reimbursed
for
all reasonable costs, attorney's fees, including allocated costs
of
in-house counsel, and reasonable expenses occasioned by such
default,
delay, controversy or litigation. The Company promises to pay
these sums
promptly after demand.
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9.
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CONTROVERSIES:
If
any controversy arises between the Parties to this Agreement
concerning
the subject matter of this Agreement, its terms or conditions,
the Escrow
Agent will not be required to determine the controversy or to
take any
action regarding it. The Escrow Agent may hold all documents
and funds and
may wait for settlement of any such controversy by final appropriate
legal
proceedings or other means as, in the Escrow Agent's discretion,
the
Escrow Agent may require, despite what may be set forth elsewhere
in this
Agreement. In such event, the Escrow Agent will not be liable
for interest
or damage. Furthermore, the Escrow Agent may at its option file
an action
of interpleader requiring the Parties to answer and litigate
any claims
and rights among themselves. The Escrow Agent is authorized to
deposit
with the clerk of the court all documents and funds held in escrow.
Upon
initiating such action, the Escrow Agent shall be fully released
and
discharged of and from all obligations and liability imposed
by the terms
of this Agreement.
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10.
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INDEMNIFICATION
OF ESCROW AGENT:
The Company and the Placement Agent and their successors and
assigns agree
jointly and severally to indemnify and hold the Escrow Agent
harmless
against any and all losses, claims, damages, liabilities, and
expenses,
including reasonable costs of
investigation,
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counsel
fees, including allocated costs of in-house counsel and disbursements that
may
be imposed on the Escrow Agent or incurred by the Escrow Agent in connection
with the performance of its duties under this Agreement, including but
not
limited to any litigation arising from this Agreement or involving its
subject
matter (“Losses”); provided, however, no such duty to indemnity or hold harmless
shall apply to the extent such Losses are caused by the gross negligence
or
willful misconduct on the part of the Escrow Agent.
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11.
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RESIGNATION
OF ESCROW AGENT:
The Escrow Agent may resign at any time upon giving at least
(30) days
written notice to the Company provided, however, that no such
resignation
shall become effective until the appointment of a successor escrow
agent
which shall be accomplished as follows: The Company shall use
their best
efforts to obtain a successor escrow agent within thirty (30)
days after
receiving such notice. If the Company and Placement Agent fail
to agree
upon a successor escrow agent within such time, the Escrow Agent
shall
have the right to appoint a successor escrow agent authorized
to do
business in the state of Colorado. The successor escrow agent
shall
execute and deliver an instrument accepting such appointment
and it shall
without further acts, be vested with all the estates, properties,
rights,
powers, and duties of the predecessor escrow agent as if originally
named
as escrow agent. The Escrow Agent shall thereupon be discharged
from any
further duties and liability under this
Agreement.
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12.
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AUTOMATIC
SUCCESSION:
Any company into which the Escrow Agent may be merged or with
which it may
be consolidated, or any company to whom the Escrow Agent may
transfer a
substantial amount of its global escrow business, shall be the
Successor
to the Agent without the execution or filing of any paper or
any further
act on the part of any of the Parties, anything herein to the
contrary
notwithstanding.
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13.
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TERMINATION:
This Agreement shall terminate upon the completion of the conditions
of
Sections 5(a) or 5(b) hereof, without any notices to any person,
unless
earlier terminated pursuant to the terms
hereof.
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14.
MISCELLANEOUS:
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(a)
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GOVERNING
LAWS:
This Agreement is to be construed and interpreted according to
Colorado
law without regard to the conflict of laws principles
thereof.
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(b)
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COUNTERPARTS:
This Agreement may be executed in two or more counterparts, each
of which
shall be deemed an original, but all of which together shall
constitute
one and the same instrument.
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(c)
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NOTICES:
All instructions, notices and demands herein provided for shall
be in
writing and shall be mailed postage prepaid, first class mail,
delivered
by courier, or telecopies as
follows:
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If
to the
Company: If
to the
Escrow Agent:
Xxxxxxxx
Xxxxxxxxxxx
Xxxxxxx Xxxx
00000
XXX
00X ______________________________________
Xxxxxxxx,
XX 00000
Attn.:
Xxxxx X. Xxxxxxx
Attn.: _________________________________
Telephone
No.:
000-000-0000 Telephone
No: ___________________________
Fax
No.:
000-000-0000 Fax
No: _________________________________
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(d)
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AMENDMENTS:
This Agreement may be amended by written notice signed by the
Company,
except that Section 7 through Section 13 may be amended only
with the
consent of the Escrow Agent.
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The
Company represents and agrees that it has not made nor will it in the future
make any representation that states or implies that the Escrow Agent has
endorsed, recommended or guaranteed the
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purchase,
value, or repayment of the securities offered for sale by the Company.
The
Company further agrees that it will insert in the Subscription Agreement
and
make available to prospective purchasers of the securities the statement
in bold
and italics below and will furnish to the Escrow Agent a copy of each such
prospectus, offering circular, advertisement, subscription agreement or
other
document at least 5 business days prior to its distribution to prospective
Subscribers.
“The
undersigned acknowledges that Compass Bank is acting only as an escrow
agent in
connection with the offering of the securities described herein, and has
not
endorsed, recommended or guaranteed the purchase, value or repayment of
such
Interests.”
The
Parties hereto have executed this Agreement by their duly authorized
representatives as of the date set forth above.
Rosewind
Corporation. Compass
Bank, as
Escrow
Agent
By:
__________________________ By:
___________________________
Xxxxx
X.
Xxxxxxx, President
Name
Title:
_________________________
Date:
_________________________
Date:
_________________________
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