EXHIBIT 1
ESCROW AGREEMENT IN ACCORDANCE WITH RULE 419
UNDER THE SECURITIES ACT OF 1933
ESCROW AGREEMENT, dated as of __________, 1999, (the "Agreement") by
and between Xxxxxxxx.xxx, Inc. a Florida corporation (the "Company") and
_________________, (the "Escrow Agent").
The Company, through its president, will sell up to 100,000 shares of
Common Stock, par value $1.00 (the "shares"), as more fully described in the
Company's definitive Prospectus dated ____________, 1999 comprising part of the
company's Registration Statement on Form SB-2, as amended (the "Registration
Statement") under the Securities Act of 1933, as amended (the "Act") (File No.
___________) declared effective on __________________ (the "Prospectus").
The Company desires that the Escrow Agent accept all offering
proceeds, with no deduction of cash paid for underwriting commissions,
underwriting expenses and dealer allowances and amounts permitted to be
released to the Company under Rule 419(b)(2)(vi), a copy of which rule is
attached hereto and made a part hereof, to be derived by the company from the
sale of the shares (the "Offering Proceeds"), as well as the share certificates
representing the shares issued in connection with the company's offering, in
escrow, to be held and disbursed as hereinafter provided.
NOW, THEREFORE, in consideration of the promises and mutual covenants
hereinafter set forth, the parties hereto agree as follows:
1. Appointment of Escrow Agent. The company hereby appoints the
Escrow Agent to act in accordance with and subject to the terms
of this Agreement, and the Escrow Agent hereby accepts such
appointment and agrees to act in accordance with and subject to
such terms.
2. Deposit of Offering Proceeds and share Certificates. Subject to
Rule 419, upon the Company's receipt and acceptance of
subscriptions and Offering Proceeds, the Company shall promptly
deliver to the Escrow Agent a certified or bank check in the
amount of the Offering Proceeds drawn to the order of the Escrow
Agent or, alternatively, drawn to the order of the Company but
endorsed by the Company for collection by the Escrow Agent and
credited to the Escrow Account.
All share certificates representing the Shares issued in
connection with the Company's offering shall also be deposited by
the Company directly into the Escrow Account promptly upon
issuance. The identity of the purchasers of the securities shall
be included on the stock certificates or other documents
evidencing such securities. Securities held in the Escrow Account
are to remain as issued and deposited and shall be held for the
sole benefit of the purchasers, who shall have voting rights with
respect to securities held in their names, as provided by
applicable state law. No transfer or other disposition of
securities held in the Escrow Account or any interest related
such securities shall be permitted other than by will or the laws
of descent and distribution, or pursuant to a qualified domestic
relations order as defined by the Internal Revenue code of 1986
as amended [26 U.S.C. 1 et seq.], or Title 1 of the Employee
Retirement Income Security Act [29 U.S.C. 1001 et seq.], or the
rules thereunder.
Warrants, convertible securities or other derivative securities,
if any, relating to securities held in the Escrow Account may be
exercised or converted in accordance with their terms; provided
however, that securities received upon exercise or conversion,
together with any cash or other consideration paid in connection
with the exercise or conversion, are promptly deposited into the
Escrow Account.
3. Disbursement of the Escrow Account. Upon the earlier of (i)
receipt by the Escrow Agent of a signed representation from the
Company to the Escrow Agent, that the requirements of Rule
419(e)(1) and (e)(2) have been met, and consummation of an
acquisition(s) meeting the requirements of Rule 419(e)(2) or
(ii) written notification from the Company to the Escrow Agent
to deliver the Offering Proceeds to another escrow agent in
accordance with Paragraph 5.8 then, in such event, the Escrow
Agent shall disburse the Offering Proceeds (inclusive of any
interest thereon) to the Company and the securities to the
purchasers or registered holders identified on the deposited
securities or deliver the Offering Proceeds and securities to
such other escrow agent, as the case may be, whereupon the
Escrow Agent shall be released from further liability hereunder.
Notwithstanding the foregoing, if an acquisition meeting the
requirements of Rule 419(e)(1) has not occurred by a date within
18 months after the effective date of the Registration Statement,
funds held in the Escrow Account shall be returned by first class
mail or equally prompt means to the purchasers within five
business days following that date.
4. Concerning the Escrow Agent.
The Escrow Agent shall not be liable for any actions taken or
omitted by it, or any action suffered by it to be taken or
omitted by it, in good faith and in the exercise of its own best
judgment, and may rely conclusively and shall be protected in
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 provision, 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 person.
The Escrow Agent shall not be bound by any notice or demand, or
any waiver, modification, termination or rescission of this
Agreement unless evidenced by a writing 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 have
given its prior written consent thereto.
The Escrow Agent shall not be responsible for the sufficiency or
accuracy, the form of, or the execution validity, value or
genuineness of any document or property received, held or
delivered by 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 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 paid or delivered by
the Escrow Agent under the provisions hereof.
The Escrow Agent shall not be liable for any loss which may be
incurred by reason of any investment of any monies or properties
which it holds hereunder. 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
for any action
taken or omitted, in good faith and in the exercise of its own
best judgment, in reliance upon such assumption.
The Escrow Agent shall be indemnified and held harmless by the
Company from and against any expenses, including counsel fees and
disbursements, or loss suffered by the Escrow Agent in connection
with any action, suit or other proceeding 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 Agreement, the
services of the Escrow Agent hereunder, the monies or other
property held by it hereunder or any such expense or loss.
Promptly after the receipt by 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
shall be made against the other parties hereto, notify such
parties thereof in writing; but the failure by the Escrow Agent
to give such notice shall not relieve any party from any
liability which such party may have to the Escrow Agent
hereunder. Upon the receipt of such notice, the Escrow Agent, in
its sole discretion, may commence an action in the nature of
interpleader in an appropriate court to determine ownership or
disposition of the Escrow Account or it may deposit the Escrow
Account with the clerk of any appropriate court or it may retain
the Escrow Account pending receipt of a final, non-appealable
order of a court having jurisdiction over all of the parties
hereto directing to whom and under what circumstances the Escrow
Account is to be disbursed and delivered.
The Escrow Agent shall be entitled to reasonable compensation
from the Company for all services rendered by it hereunder.
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 or 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 such request) to carry out more effectively the
provisions and purposes of this Agreement, to evidence compliance
herewith or to assure itself that it is protected in acting
hereunder.
The Escrow Agent may resign at any time and be discharged from
its duties as Escrow Agent hereunder by its giving the Company at
least thirty (30) days' prior written notice thereof. As soon as
practicable after its resignation, the Escrow Agent shall turn
over to a successor escrow agent appointed by the Company, all
monies and property held hereunder upon presentation of the
document appointing the new escrow agent and its acceptance
thereof. If no new escrow agent is so appointed in the sixty (60)
day period following the giving of such notice of resignation,
the Escrow Agent may deposit the Escrow Account with any court it
deems appropriate.
The Escrow Agent shall resign and be discharged form its duties
as Escrow Agent hereunder if so requested in writing at anytime
by the Company, provided, however, that such resignation shall
become effective only upon acceptance of appointment by a
successor escrow agent as provided above. Notwithstanding
anything herein to the contrary, the Escrow Agent shall not be
relieved from liability thereunder for its own gross negligence
or its own willful misconduct.
5. Miscellaneous.
This Agreement shall for all purposes be deemed to be made under
and shall be construed in accordance with the laws of the State
of Florida.
This Agreement contains the entire agreement of the parties
hereto with respect to the subject matter hereof and, except as
expressly provided herein, may not be changed or modified except
by an instrument in writing signed by the party to be charged.
The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or
interpretation thereof.
This Agreement shall be binding upon and inure to the benefit of
the respective parties hereto and their legal representatives,
successors and assigns.
Any notice or other communication required or which may be given
hereunder shall be in writing and either be delivered personally
or be mailed, certified or registered mail, return receipt
requested, postage prepaid, and shall be deemed given when so
delivered personally or, if mailed, two (2) days after the date
of mailing. The parties may change the persons and addresses to
which the notices or other communications are to be sent by
giving written notice to any such change in the manner provided
herein for giving notice.
WITNESS the execution of this Agreement as of the date first above written.
Xxxxxxxx.xxx, Inc.
By:
---------------------------------------
President
This Escrow Agreement is accepted as of the ______ day of _____________, 1999.
----------------------------------
By:
------------------------------
Authorized Representative
