ESCROW AGREEMENT (PUBLIC OFFERING)
AGREEMENT made this 2nd day of January, 2001 and among the Issuer whose
name and address appears on the Information Sheet (as defined herein) attached
to this Agreement, and Fleet Bank, 000 Xxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx (the
"Escrow Agent").
W I T N E S S E T H :
WHEREAS, the Issuer has filed with the Securities and Exchange
Commission (the "Commission") a registration statement (the "Registration
Statement") covering a proposed public offering of its securities (collectively,
the "Securities", and individually, a "Share") as described on the Information
Sheet; and
WHEREAS, the Issuer proposes to offer the Securities, as agent for the
Issuer, for sale to the public on a "best efforts, all or none basis" at the
price per Share all as set forth on the Information Sheet; and
WHEREAS, the Issuer proposes to establish an escrow account with the
Escrow Agent in connection with such public offering and the Escrow Agent is
willing to establish such escrow account on the terms and subject to the
conditions hereinafter set forth;
NOW THEREFORE, in consideration of the premises and mutual covenants
herein contained, the parties hereto hereby agree as follows:
1. Information Sheet. Each capitalized term not otherwise defined in
this Agreement shall have the meaning set forth for such term on the Information
Sheet which is attached to this Agreement and is incorporated by reference
herein and made a part hereof (the "Information Sheet").
2. Establishment of Escrow Account.
2.1 The parties hereto shall establish a non- interest-bearing escrow
account at the office of the Escrow Agent, and bearing the designation, set
forth on the Information Sheet (the "Escrow Account").
2.2 On or before the date of the initial deposit in the Escrow Account
pursuant to this Agreement, the Issuer shall notify the Escrow Agent in writing
of the effective date of the Registration Statement (the
"Effective Date") and the Escrow Agent shall not be required to accept any
amount for deposit in the Escrow Account prior to its receipt of such
notification.
2.3 The Offering Period, which shall be deemed to commence on the
Effective Date, shall consist of the number of calendar days or business days
set forth on the Information Sheet. The Offering Period shall be extended by an
Extension Period only if the Escrow Agent shall have received written notice
thereof at least five (5) business days prior to the expiration of the Offering
Period. The Extension Period, which shall be deemed to commence on the next
calendar day following the expiration of the Offering Period, shall consist of
the number of the calendar days or business days set forth on the Information
Sheet. The last day of the Offering Period, or the last day of the Extension
Period (if the Escrow Agent has received written notice thereof as hereinabove
provided), is referred to herein as the "Termination Date." After the
Termination Date, the Issuer shall not deposit, and the Escrow Agent shall not
accept, any additional amounts representing payments by prospective purchasers.
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3. Deposits in the Escrow Account.
3.1 Upon receipt, the Issuer shall promptly deposit all monies
received from investors to the Escrow Agent. All of these deposited proceeds
(the "Deposited Proceeds") shall be in the form of checks or money orders. All
checks or money orders deposited into the Escrow Account shall be made payable
to "Lorelei Corp. and Fleet Bank, as Escrow Agent." Any check or money order
payable other than to the Escrow Agent as required hereby shall be returned to
the prospective purchaser, or if the Escrow Agent has insufficient information
to do so, then to the Issuer (together with any Subscription Information, as
defined below, or other documents delivered therewith) by noon of the next
business day following receipt of such check by the Escrow Agent, and such check
shall be deemed not to have been delivered to the Escrow Agent pursuant to the
terms of this Agreement. The Deposited Proceeds and interest or dividends
thereon, if any, shall be held for the sole benefit of the purchasers of the
securities.
3.2 The Deposited Proceeds shall be invested in either
(a) an obligation that constitutes a "deposit" as that term is
defined in Section (3)(1) of the Federal Deposit Insurance Act;
(b) securities of any open-end investment company registered
under the Investment Company Act of 1940 that holds itself out as a money market
fund meeting the conditions of paragraphs (c)(2), (c) (3), and (c)(4) of Rule
2a-7 under the Investment Company Act; or
(c) securities that are direct obligations of, or obligations
guaranteed as to principal or interest by, the United States.
3.3 Simultaneously with each deposit into the Escrow Account, the
Issuer shall inform the Escrow Agent by confirmation slip or other writing of
the name and address of the prospective purchaser, the number of Securities
subscribed for by such purchaser, and the aggregate dollar amount of such
subscription (collectively, the "Subscription Information").
3.4 The Escrow Agent shall not be required to accept for deposit into
the Escrow Account checks which are not accompanied by the appropriate
Subscription Information. Checks and money orders representing payments by
prospective purchasers shall not be deemed deposited in the Escrow Account until
the Escrow Agent has received in writing the Subscription Information required
with respect to such payments.
3.5 The Escrow Agent shall not be required to accept any amounts
representing payments by prospective purchasers, whether by check or money
order, except during the Escrow Agent's regular banking hours. Any check, money
order or cash not received prior to 1:00 P.M. shall be deposited the following
business day.
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3.6 Interest or dividends earned on the Deposited Proceeds, if
any, shall be held in the Escrow Account until the Deposited Proceeds are
released in accordance with the provisions of Section 4 of the Escrow Agreement.
If the Deposited Proceeds are released to a purchaser of the securities, the
purchaser shall receive interest or dividends earned, if any, on such Deposited
Proceeds up to the date of release. If the Deposited Proceeds held in the Escrow
Account are released to the Company, any interest or dividends earned on such
funds up to the date of release may be released to the Company.
3.7 The Issuer shall deposit the Securities directly into the
Escrow Account promptly upon issuance (the "Deposited Securities"). The identity
of the purchaser of the Securities shall be included on the Common Stock and
Warrant certificates.
3.8 The Deposited Securities shall be held for the sole benefit of the
purchasers. No transfer or other disposition of Securities held in the Escrow
Account or any interest related to 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, or Title I of the Employee Retirement Income Security Act, or the rules
thereunder.
3.9 The Escrow Agent shall refund any portion of the Deposited
Proceeds prior to disbursement of the Deposited Proceeds in accordance with
Section 4 hereof upon instructions in writing signed by the Issuer.
4. Disbursement from the Escrow Account.
4.1 The Deposited Proceeds may be released to the Company and the
Securities delivered to the purchaser or other registered holder only at the
same time as or after:
(a) the Escrow Agent has received a signed representation
from the Company, together with an opinion of counsel that the following events
have already occurred and the following requirements have already been met:
(1) Upon execution of an agreement(s) for the acquisition(s)
of a business(es) or assets that will constitute the business (or a line of
business) of the Company and for which the fair value of the business(es) or net
assets to be acquired represents at least 80 percent of the maximum offering
proceeds, including proceeds received or to be received upon the exercise or
conversion of the Securities offered, but excluding amounts payable to
non-affiliates for underwriting commissions, underwriting expenses, and dealer
allowances, if any, the Company filed a post-effective amendment that:
(i) Discloses the information specified by the SB-2 registration statement
form and Industry Guides, including financial statements of the Company and the
company or business with which it plans to merge or acquire (the "Target
Company"), and pro forma financial information required by the SB-2 and
applicable rules and regulations;
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(ii) Discloses the results of the initial offering, including but not
limited to:
(A) The gross offering proceeds received to date, specifying the
amounts paid for underwriter commissions, underwriting expenses and dealer
allowances, if any, amounts disbursed to the Company, and amounts remaining in
the Escrow Account; and
(B) The specific amount, use and application of funds disbursed to the
Company to date, including, but not limited to, the amounts paid to officers,
directors, promoters, controlling shareholders or affiliates, either directly or
indirectly specifying the amounts and purposes of such payments; and
(iii) Discloses the terms of the offering as described pursuant to
Section 4 of this Escrow Agreement.
(2) The terms of the offering provided, and the Company
satisfied, the following conditions:
(i) Within five business days after the effective date of the
post-effective amendment(s), the Company shall send by first class mail or other
equally prompt means, to each purchaser of securities held in escrow, a copy of
the prospectus contained in the post-effective amendment and any amendment or
supplement thereto;
(ii) Each purchaser shall have no fewer than 20 business days and no
more than 45 business days from the effective date of the post-effective
amendment to notify the Company in writing that the purchaser elects to remain
an investor. If the Company has not received such written notification by the
45th business day following the effective date of the post-effective amendment,
funds and interest or dividends, if any, held in the Escrow Account shall be
sent by first class mail or other equally prompt means to the purchaser within
five business days;
(iii) The acquisition(s) meeting the criteria set forth in paragraph (a)
(1) of this Section 4 will be consummated if a sufficient number of purchasers
confirm their investments; and
(iv) If a consummated acquisition(s) meeting the requirements of this
section has not occurred by a date 18 months after the Effective Date, the
Deposited Funds shall be returned by first class mail or equally prompt means to
the purchaser within five business days following that date.
(b) Funds held in the Escrow Account may be released to the Company and
securities may be delivered to the purchaser or other registered holder
identified on the deposited securities only at the same time as or after
consummation of an acquisition(s) meeting the requirements set forth in Section
4.1(a)(1)(iii) of this Escrow Agreement.
4.2 In the event that at the close of regular banking hours on the
Termination Date less than all of the Shares have been sold, the Escrow Agent
shall promptly refund to each prospective purchaser the amount of payment
received from such purchaser held in Escrow without interest thereon or
deduction therefrom, and the Escrow Agent shall notify the Issuer of its
distribution of the Deposited Proceeds.
4.3 In the event that at any time up to the close of banking hours on
the Termination Date all of the Shares have been sold, the Escrow Agent shall
notify the Issuer of such fact in writing within a reasonable time thereafter.
The Escrow Agent shall hold the Deposited Proceeds until the events described in
Section 4.1 of this Escrow Agreement take place.
4.4 Upon disbursement of the Deposited Proceeds pursuant to the terms
of this Section 4, the Escrow Agent shall be relieved of all further obligations
and released from all liability under this Agreement. It is expressly agreed and
understood that in no event shall the aggregate amount of payments made by the
Escrow Agent exceed the amount of the Deposited Proceeds.
5. Rights, Duties and Responsibilities of Escrow Agent.
It is understood and agreed that the duties of the Escrow Agent are
purely ministerial in nature, and that:
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5.1 The Escrow Agent shall not be responsible for the performance by
the Issuer of its obligations under this Agreement.
5.2 The Escrow Agent shall not be required to accept from the Issuer
any Subscription Information pertaining to prospective purchasers unless such
Subscription Information is accompanied by checks or money orders representing
the payment of money, nor shall the Escrow Agent be required to keep records of
any information with respect to payments deposited by the Issuer except as to
the amount of such payments; however, the Escrow Agent shall notify the Issuer
within a reasonable time of any discrepancy between the amount delivered to the
Escrow Agent therewith. Such amount need not be accepted for deposit in the
Escrow Account until such discrepancy has been resolved.
5.3 The Escrow Agent shall be under no duty or responsibility to
enforce collection of any check delivered to it hereunder. The Escrow Agent,
within a reasonable time, shall return to the Issuer any check received which is
dishonored, together with the Subscription Information, if any, which
accompanied such check.
5.4 The Escrow Agent shall be entitled to rely upon the accuracy, act
in reliance upon the contents, and assume the genuineness of any notice,
instruction, certificate, signature instrument or other document which is given
to the Escrow Agent pursuant to this Agreement without the necessity of the
Escrow Agent verifying the truth or accuracy thereof. The Escrow Agent shall not
be obligated to make any inquiry as to the authority, capacity, existence or
identity of any person purporting to give any such notice or instructions or to
execute any such certificate, instrument or other document. The Escrow Agent
must, however, determine for itself whether the conditions permitting the
release of the funds in the Escrow Account have been met.
5.5 In the event that the Escrow Agent shall be uncertain as to
its duties or rights hereunder or shall receive instructions with respect to the
Escrow Account or the Deposited Proceeds which, in its sole determination, are
in conflict either with other instructions received by it or with any provision
of this Agreement, the Escrow Agent, at its sole option, may deposit the
Deposited Proceeds (and any other amounts that thereafter become part of the
Deposited Proceeds) with the registry of a court of competent jurisdiction in a
proceeding to which all parties in interest are joined.
Upon the deposit by the Escrow Agent of the Deposited Proceeds with the registry
of any court, the Escrow Agent shall be relieved of all further obligations and
released from all liability hereunder.
5.6 The Escrow Agent shall not be liable for any action taken or
omitted hereunder, or for the misconduct of any employee, agent or attorney
appointed by it, except in the case of willful misconduct. The Escrow Agent
shall be entitled to consult with counsel of its own choosing and shall not
be liable for any action taken, suffered or omitted by it in accordance with the
advice of such counsel.
5.7 The Escrow Agent shall have no responsibility at any time to
ascertain whether or not any security interest exists in the Deposited Proceeds
or any part thereof or to file any financing statement under the Uniform
Commercial Code with respect to the Deposited Proceeds or any part thereof.
5.8 The Escrow Agent shall determine whether or not the Offering has
been successful, and if it determines that less than all of the
Securities being offered have been sold, thus rendering the Offering
unsuccessful, the Escrow Agent shall return the proceeds of the Offering to the
investors on a pro-rata basis.
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6. Amendment; Resignation. This Agreement may be altered or
amended only with the written consent of the Issuer and the Escrow Agent.
The Escrow Agent may resign for any reason upon seven (7) business days written
notice to the Issuer. Should the Escrow Agent resign as herein provided, it
shall not be required to accept any deposit, make any disbursement or otherwise
dispose of the Deposited Proceeds, but its only duty shall be to hold the
Deposited Proceeds for a period of not more than ten (10) business days
following the effective date of such resignation, at which time (a) if a
successor escrow agent shall have been appointed and written notice thereof
(including the name and address of such successor escrow agent) shall have been
given to the resigning Escrow Agent by the Issuer and such successor escrow
agent, the resigning Escrow Agent shall pay over to the successor escrow agent
the Deposited Proceeds, less any portion thereof previously paid out in
accordance with this Agreement, or (b) if the resigning Escrow Agent shall not
have received written notice signed by the Issuer and a successor escrow agent,
then the resigning Escrow Agent shall promptly refund the amount in the
Deposited Proceeds to each prospective purchaser without interest thereon or
deduction therefrom, and the resigning Escrow Agent shall notify the Issuer in
writing of its liquidation and distribution of the Deposited Proceeds;
whereupon, in either case, the Escrow Agent shall be relieved of all further
obligations and released from all liability under this Agreement. Without
limiting the provisions of Section 8 hereof, the resigning Escrow Agent shall be
entitled to be reimbursed by the Issuer for any expenses incurred in connection
with its resignation, transfer of the Deposited Proceeds to a successor Escrow
Agent or distribution of the Deposited Proceeds pursuant to this Section 6.
7. Representations and Warranties. The Issuer hereby
represents and warrants to the Escrow Agent that:
7.1 No party other than the parties hereto and the prospective
purchasers have, or shall have any lien, claim or security interest in the
Deposited Proceeds or any part thereof.
7.2 No financing statement under the Uniform Commercial Code is on
file in any jurisdiction claiming a security interest in or describing (whether
specifically or generally) the Deposited Proceeds or any part thereof.
7.3 The Subscription Information submitted with each deposit shall, at
the time of submission and at the time of the disbursement of the Deposited
Proceeds, be deemed a representation and warranty that such deposit
represents a bona fide sale to the purchaser described therein of the amount of
Securities set forth in such Subscription Information.
7.4 All of the information contained in the Information Sheet is, as
of the date hereof and will be, at the time of any disbursement of the Deposited
Proceeds, true and correct.
8. Fees and Expenses. The Escrow Agent shall be entitled to
the Escrow Agent Fee set forth in the Information Sheet, payable upon execution
of this Agreement. In addition, the Issuer agrees to reimburse the Escrow Agent
for any reasonable expenses incurred in connection with this Agreement,
including, but not limited to, reasonable counsel fees, but not including the
review of this Agreement.
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9. Indemnification and Contribution.
9.1 The Issuer (referred to as the "Indemnitor") agrees to indemnify
the Escrow Agent and its officers, directors, employees, agents and shareholders
(jointly and severally the "Indemnitees") against, and hold them harmless of and
from, any and all loss, liability, cost, damage and expense, including, without
limitation, reasonable counsel fees, which the Indemnitees may suffer or incur
by reason of any action, claim or proceeding brought against the Indemnitees
arising out of or relating in any way to this Agreement or any transaction to
which this Agreement relates, unless such action, claim or proceeding is the
result of the willful misconduct of the Indemnitees.
9.2 If the indemnification provided for in this Section 9 is
applicable, but for any reasons held to be unavailable, the Indemnitor shall
contribute such amounts as are just and equitable to pay, or to reimburse the
Indemnitees for, the aggregate of any and all losses, liabilities, costs,
damages and expenses, including counsel fees, actually incurred by the
Indemnitees as a result of or in connection with, and any amount paid in
settlement of any action, claim or proceeding arising out of or relating in any
way to any actions or omissions of the Indemnitor.
9.3 Any Indemnitee which proposes to assert the right to be
indemnified under this Section 9, promptly after receipt of notice of
commencement of any action, suit or proceeding against such Indemnitee in
respect of which a claim is to be made against the Indemnitor under this Section
9, will notify the Indemnitor of the commencement of such action,
suit or proceeding, enclosing a copy of all papers served, but the omission so
to notify the Indemnitor of any such action, suit or proceeding shall not
relieve the Indemnitor from any liability which they may have to any Indemnitee
otherwise than under this Section 9. In case any such action, suit or proceeding
shall be brought against any Indemnitee and it shall notify the Indemnitor of
the commencement thereof, the Indemnitor shall be entitled to participate in
and, to the extent that they shall wish, to assume the defense thereof, with
counsel satisfactory to such Indemnitee. The Indemnitee shall have the right to
employ its counsel in any such action, but the fees and expenses of such counsel
shall be at the expense of such Indemnitee unless (i)the employment of counsel
by such Indemnitee has been authorized by the Indemnitor, (ii) the Indemnitee
shall have concluded reasonably that there may be a conflict of interest among
the Indemnitor and the Indemnitee in the conduct of the defense of such action
(in which case the Indemnitor shall not have the right to direct the defense of
such action on behalf of the Indemnitee) or (iii) the Indemnitor in fact shall
not have employed counsel to assume the defense of such action, in each of which
cases the fees and expenses of counsel shall be borne by the Indemnitor.
9.4 The Indemnitor agrees to provide the Indemnitees with copies of
all registration statements pre- and post-effective amendments to such
registration statements including exhibits, whether filed with the SEC prior to
or subsequent to the disbursement of the Deposited Proceeds.
9.5 The provisions of this Section 9 shall survive any termination of
this Agreement, whether by disbursement of the Deposited Proceeds, resignation
of the Escrow Agent or otherwise.
10. Governing Law and Assignment. This Agreement shall be
construed in accordance with and governed by the laws of the State of New
York and shall be binding upon the parties hereto and their respective
successors and assigns; provided, however, that any assignment or transfer by
any party of its rights under this Agreement or with respect to the Deposited
Proceeds shall be void as against the Escrow Agent unless:
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(a) written notice thereof shall be given to the Escrow Agent; and
(b) the Escrow Agent shall have consented in writing to such
assignment or transfer.
11. Notices. All notices required to be given in connection with
this Agreement shall be sent by registered or certified mail, return receipt
requested, or by hand delivery with receipt acknowledged, or by the Express
Mail service offered by the United States Post Office, and addressed, if to
the Issue, at its address set forth on the Information Sheet, and if to the
Escrow Agent, Atlantic Liberty Savings, Attention: Trust Department.
12. Severability. If any provision of this Agreement or the
application thereof to any person or circumstance shall be determined to be
unpaid or unenforceable, the remaining provisions of this Agreement or the
application of such provision to persons or circumstances other than those to
which it is held invalid or unenforceable shall not be affected thereby and
shall be valid and enforceable to the fullest extent permitted by law.
13. Closing. The closing shall take place within 90 days of the
Effective Date unless an additional 90 days is approved by the Company, but
in no instance later than 180 days after the Effective Date.
14. Pronouns. All pronouns and any variations thereof shall be
deemed to refer to the masculine, feminine, neuter, singular, or plural as
the context may require.
15. Captions. All captions are for convenience only and shall
not limit or define the term thereof.
16. Execution in Several Counterparts. This Agreement may be
executed in several counterparts or by separate instruments and all of such
counterparts and instruments shall constitute one agreement, binding on all
of the parties herein.
17. Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto with respect to the subject matter
hereof and supersedes all prior agreements and understandings (written or oral)
of the parties in connection herewith.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the day and year first above written.
THE ISSUER: LORELEI CORPORATION
By:
ESCROW AGENT: FLEET BANK
By:
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FLEET BANK
ESCROW AGREEMENT INFORMATION SHEET
1. The Company
Lorelei Corporation
00 Xxxxxx Xxxxxx
Xxxxxxx, Xxx Xxxxxx 00000
State of incorporation or organization: Delaware
2. The Underwriter
Self-Underwriting
3. Description of the Securities to be offered:
Shares of Common Stock.
4. Type of Offering
Registration Statement filed on form SB-2
Offering Statement filed pursuant to Regulation C of the General Rules and
Regulations under the Securities Act of 1933.
5. Offering Amount: $ 35,000
6. Plan of Distribution of the Securities
Offering Period: 90 (calendar days)
Extension Period: 90 (calendar days)
Collection Period, if any: -0- (calendar days)
7. The Escrow Account
Title of the Escrow Account: THE LORELEI CORPORATION ESCROW ACCOUNT.
8. Escrow Account Fee
Amount due on execution of the Escrow Agreement: $0
Fee for each check disbursed pursuant to the terms of the
Escrow Agreement (unsuccessful offering): $0
Fee for each subscriber in excess of the first fifty subscribers:
$ 0 Fee for each check returned pursuant to the terms of the
Escrow Agreement: $ 0
All other fees will be negotiated on the basis of service requirements.
