Exhibit No. 10.03
[HSBC LOGO]
ESCROW AGREEMENT, dated as of June 17th, 2002, by and among
(i) Inc. a Nevada corporation ("") and (ii) HSBC BANK USA, a banking corporation
and trust company organized and existing under the laws of the State of New
York, as escrow agent hereunder (the "Escrow Agent").
WITNESSETH:
WHEREAS,_________ is offering its common shares on a best efforts basis
to qualified investors (the " Agreement") dated as of May 1, 2002;
WHEREAS, the Agreement provides for certain funds to be deposited in an
escrow account by August 30, 2002, to be held and distributed in accordance with
the terms and conditions hereinafter set forth;
WHEREAS, _____________, desires to appoint HSBC Bank USA, as the Escrow
Agent and HSBC Bank USA is willing to act as Escrow Agent hereunder in
accordance with the terms and conditions hereof;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto agree as follows:
(1)
Section 1. Definitions.
Unless otherwise defined herein, terms which are defined in the
Agreement, as in effect on the date hereof, and used herein are so
used as so defined.
Section 2. Establishment of Escrow Account.
Funds in the amount of up to Four Million ($4,000,000) United
States Dollars (the "Escrow Amount") delivered from time to time
but no later than August 30, 2002 unless extended in writing and
accepted by the Escrow Agent, shall be accepted by the Escrow Agent
and placed into an account (the "Escrow Account") to be held and
administered in accordance with the terms and conditions of this
Agreement.
Section 3. Investments.
The Escrow Agent agrees to invest and reinvest the Escrow Account,
in (i) obligations issued or guaranteed by the United States
Government, its agencies or instrumentalities or (ii) Certificates
of Deposit issued by any bank, trust company or national banking
association (including. HSBC Bank USA) authorized to do business in
the State of New York, provided the capital stock, surplus, and
undivided profits of such institution are not less than
$500,000,000 which in each case shall mature not later than the
date amounts are to be paid under this agreement or (iii) a money
market account managed by HSBC Bank USA or any of its subsidiaries
or affiliates with a stated investment objective of investing only
in the foregoing overnight deposits, as the Escrow Agent shall be
advised from time to time in writing by the Depositor and the
Beneficiary provided. The earnings realized from investments and
all interest, if any, accruing on monies held in Escrow
Account shall be added to the Escrow Account. Any loss incurred
from an investment, including all costs of investment or
liquidation, including without limitation all withholding and other
taxes, will be borne by the Escrow Account. The Depositor agrees to
furnish to the Escrow Agent upon execution of this Agreement and as
subsequently required all appropriate U.S. tax forms and
information in order for the Escrow Agent to comply with U.S. tax
regulations. The Escrow Agent shall not be accountable or liable
for any losses resulting from the sale or depreciation in the
market value of such investments thereof.
Section 4. Payments from Escrow Account.
(a) For each payment from the Escrow Account, _________ shall
deliver, by facsimile, to Escrow Agent a letter of direction (a
"Certificate"), which Certificate shall specify (i) the dollar
amount of the funds in the Escrow Account to be paid to _________
and the dollar amount of the funds in the Escrow Account to be paid
to agents of ________ as a commission, and (ii) the date on which
such payment or payments shall be made by Escrow Agent. The
Certificate must be delivered to Escrow Agent at least five (5)
calendar days prior to the date on which any payment is to be made
by Escrow Agent. (b) Escrow Agent shall make any payment to _______
by wire or other transfer to the account of ________ at Escrow
Agent or as otherwise directed by __________. Escrow Agent shall
make any other payments as directed by ________ by wire transfer.
Section 5. Termination of Escrow Account.
(a) Except as hereinafter provided, the Escrow Account shall
terminate without further action of parties upon the later of: (i)
the date on which the Escrow Agent completes paying out all of the
Escrow Account to _________, its agents or both, or (ii)
twenty-four (24) months from the date hereof, at which time the
balance of the Escrow Account shall be distributed to the
__________.
(b) In the event of any dispute or misunderstanding, Escrow Agent
shall have the option to pursue any legal remedies that may be
available to it, including the right to deposit the subject matter
hereof in interpleader in the U.S. District Court having
jurisdiction of the subject matter, and upon doing so to be
absolved from all further obligations or liability hereunder.
_______________ agrees to pay to Escrow Agent all costs and
expenses, including reasonable attorney's fees, incurred by Escrow
Agent in any interpleader action.
Section 6. Escrow Agent
_____________ agrees to pay the Escrow Agent its agreed-upon
compensation, as set forth in a separate agreement, for its
services as Escrow Agent hereunder promptly upon request therefor,
and to reimburse the Escrow Agent for all expenses of or
disbursements incurred by the Escrow Agent in the performance of
its duties hereunder, including reasonable fees, expenses and
disbursements of counsel to the Escrow Agent.
The Escrow Agent shall have a lien upon the Escrow Account for its
costs, expenses and fees which may arise hereunder and may retain
that portion of the Escrow Account equal to such unpaid amounts,
until all such costs, expenses and fees have been paid.
Section 7. Rights, Duties and Immunities of Escrow Agent.
Acceptance by the Escrow Agent of its duties under this Escrow
Agreement is subject to the following terms and conditions, which
all parties to this Escrow Agreement hereby agree shall govern and
control the rights, duties and immunities of the Escrow Agent.
(a) The duties and obligations of the Escrow Agent shall be
determined solely by the express provisions of this Escrow
Agreement and the Escrow Agent shall not be liable except for the
performance of such duties and obligations as are specifically set
out in this Escrow Agreement.
This Escrow Agreement shall not be deemed to create a fiduciary
relationship between the parties hereto under state or federal law.
(b) The Escrow Agent shall not be responsible in any manner for the
validity or sufficiency of any property delivered hereunder, or for
the value or collectability of any note, check or other instrument
so delivered, or for any representations made or obligations
assumed by any party other than the Escrow Agent. Nothing herein
contained shall be deemed to obligate the Escrow Agent to deliver
any cash, instruments, documents or any other
property referred to herein, unless the same shall have first been
received by the Escrow Agent pursuant to this Escrow Agreement.
(c) Flashpoint will reimburse and indemnify the Escrow Agent for,
and hold it harmless against any loss, liability or expense,
including but not limited to counsel fees, incurred without bad
faith, gross negligence or willful misconduct on the part of the
Escrow Agent arising out of or in conjunction with its acceptance
of, or the performance of its duties and obligations under this
Escrow Agreement as well as the costs and expenses of defending
against any claim or liability arising out of or relating to this
Escrow Agreement.
(d) The Escrow Agent shall be fully protected in acting on and
relying upon any written notice direction, request, waiver,
consent, receipt or other paper or documents which the Escrow Agent
in good faith believes to have been signed and presented by the
proper party or parties.
(e) The Escrow Agent shall not be liable for any error of judgment,
or for any act done or step taken or omitted by it in good faith or
for any mistake in act or law, or for anything which it may do or
refrain from doing in connection herewith, except its own willful
misconduct.
(f) The Escrow Agent may seek the advice of legal counsel in the
event of any dispute or question as to the construction of any of
the provisions of this Escrow Agreement or its duties hereunder,
and it shall incur no liability and shall be fully protected in
respect of any action taken, omitted or suffered by
it in good faith in accordance with the opinion of such counsel.
The parties hereto agree that should any dispute arise with respect
to the payment, ownership or right of possession of the Escrow
Account, the Escrow Agent is authorized and directed to retain in
its possession, without liability to anyone, except for its bad
faith, willful misconduct or gross negligence, all or any part of
the Escrow Account until such dispute shall have been settled
either by mutual agreement by the parties concerned or by the final
order, decree or judgment of a court or other tribunal of competent
jurisdiction in the United States of America, and a notice executed
by the parties to the dispute or their authorized representatives
shall have been delivered to the Escrow Agent setting forth the
resolution of the dispute. The Escrow Agent shall be under no duty
whatsoever to institute, defend or partake in such proceedings.
(g) The agreements set forth in this Section 7 shall survive the
termination of this Escrow Agreement and the payment of all amounts
hereunder.
Section 8. Resignation of Escrow Agent.
The Escrow Agent shall have the right to resign upon 30 days
written notice to _________. In the event of such resignation, with
the consent of ____________, which consent shall not unreasonably
be withheld, __________ shall appoint a successor escrow agent
hereunder by delivering to the Escrow Agent a written notice of
such appointment. Upon receipt of such notice, the Escrow Agent
shall deliver to the designated successor escrow agent all money
and other property held hereunder and shall
thereupon be released and discharged from any and all further
responsibilities whatsoever under this Escrow Agreement; provided,
however, that the Escrow Agent shall not be deprived of its
compensation earned prior to such time If no successor escrow agent
shall have been designated by the date specified in the Escrow
Agent's notice, all obligations of the Escrow Agent hereunder shall
nevertheless cease and terminate. Its sole responsibility
thereafter shall be to keep safely all property then held by it and
to deliver the same to a person designated by the other parties
hereto or in accordance with the direction of a final order or
judgment of a court of competent jurisdiction.
Section 9. Notices.
All claims, notices and other communications hereunder to be
effective shall be in writing and shall be deemed to have been duly
given when delivered by hand, or five days after being deposited in
the mail or sent by registered or certified first class mail
postage prepaid, or, in the case of facsimile transmission, when
received and telephonically confirmed, in each case addressed to
the parties at the addresses set forth herein and to the Escrow
Agent at the address set forth opposite its name on the signature
pages hereto (or to such other person or address as the parties
shall have notified each other and the Escrow Agent in writing,
provided that notices of a change of address shall be effective
only upon receipt thereof.
Section 10. Binding Effect.
This Escrow Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs,
executors, successors and assigns.
Section 11. Amendments.
This Escrow Agreement may be amended or modified at any time or
from time to time in writing executed by the parties to the Escrow
Agreement.
Section 12. Governing Law.
This Escrow Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of New York
applicable to contracts to be performed entirely within the State
of New York, without reference to or application of rules or
principles of conflicts of law.
Section 13. Interpretation.
The headings of the sections contained in this Escrow Agreement are
solely for convenience or reference and shall not affect the
meaning or interpretation of this Escrow Agreement.
Section 14. Counterparts.
This Escrow 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.
Section 15. Consent to Jurisdiction.
Each of the parties hereto hereby irrevocably agrees that any
action, suit or proceedings against any of them by any of the other
aforementioned parties with respect to this Agreement shall be
brought before the exclusive jurisdiction of the federal or state
courts located in the Borough of Manhattan in the State of New
York, unless all the parties hereto agree in writing to any other
jurisdiction. Each of the parties hereto hereby submits to such
exclusive jurisdiction.
Section 16. Severability.
If any provisions of this Agreement shall be declared by any court
of competent jurisdiction illegal, void or unenforceable, the other
provisions shall not be affected, but shall remain in full force
and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Escrow
Agreement as of the date and the year first above written.
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Address: By: /s/ B.S.S.
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HSBC Bank USA HSBC BANK USA,
Issuer Services AS ESCROW AGENT
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000-0000 /s/ XXXXXXX X. XXXX
By: Xxxxxxx X. Xxxx
Title: Assistant Vice President
