SUN OPPORTUNITY I INC. SUBSCRIPTION ESCROW AGREEMENT
This
escrow agreement (this “Agreement”) is made as of ______ __, 2007 by and among
Sun
Opportunity I Inc.
a
Nevada corporation (“Sun”),
and
Xxxxx
Securities Corp.,
as
escrow agent (the “Escrow Agent”) (collectively the “Parties”).
WHEREAS,
Sun
intends to offer for sale (the “Offering”) to accredited investors (the
“Investors”) shares of the common stock of Sun (the “Shares”). The maximum
subscriptions which may be accepted (“Maximum Subscription Proceeds”) is
$300,000.00 representing the sale of 300,000 Shares.
WHEREAS,
each
Investor will be required to pay the Investor’s subscription in full on
sub-scribing.
WHEREAS,
Sun
will solicit subscriptions for Interests on a “best efforts” “all or none” basis
for Subscription Proceeds (“Subscription Proceeds”).
WHEREAS,
Subscription Proceeds are required to be held in escrow subject to the receipt
and acceptance by Sun.
WHEREAS,
no
subscriptions to Sun will be accepted after the “Offering Termination Date.”
WHEREAS,
to
facilitate compliance with Rule 15c2-4 adopted under the Securities Exchange
Act
of 1934 and Rule 419, Sun desires to have the Subscription Proceeds deposited
with the Escrow Agent and the Escrow Agent agrees to hold the Subscription
Proceeds under the terms and conditions set forth in this
Agreement.
NOW,
THEREFORE,
in
consideration of the mutual covenants and conditions contained in this
Agreement, the Parties, intending to be legally bound, agree as
follows:
1.
APPOINTMENT OF ESCROW AGENT.
Sun
appoints
the Escrow Agent as the escrow agent to receive and to hold the Subscription
Proceeds deposited with the Escrow Agent under this Agreement, and the Escrow
Agent agrees to serve in this capacity.
2.
DEPOSIT OF SUBSCRIPTION PROCEEDS.
Pending
receipt of the Subscription Proceeds of $300,000, Sun shall deposit the
Subscription Proceeds of each Investor to whom Sun sells Interests with the
Escrow Agent and shall deliver to the Escrow Agent a copy of the Subscription
Agreement, the execution and subscription instrument signed by the Investor
to
evidence his agreement to purchase Interests in Sun. Payment for each
subscription for Interests shall be in the form of a check or wire made payable
to ADP Clearing/Xxxxx, as Escrow Agent, Sun Opportunity I Inc.
Sun
shall provide wire instructions to Investors who use that method of payment
for
their Subscriptions.
3.
INVESTMENT OF SUBSCRIPTION PROCEEDS.
If
the
Escrow Agent shall have received specific written investment instruction from
Sun (which shall include instruction as to term to maturity, if applicable),
on
a timely basis, the Escrow Agent shall invest the Escrow Property in Eligible
Investments, pursuant to and as directed in such instruction.
“Eligible
Investments” shall mean (i) obligations issued or guaranteed by the United
States of America or any agency or instrumentality thereof (provided that the
full faith and credit of the United States is pledged in support thereof);
(ii)
obligations (including certificates of deposit and banker’s acceptances) of any
domestic commercial bank having capital and surplus in excess of $500,000,000.
Eligible Investments shall be limited to those instruments readily obtainable
and routinely offered by the Escrow Agent’s Corporate Trust
Services.
The
Escrow Agent shall have no liability for any investment losses, including
without limitation any market loss on any investment liquidated prior to
maturity in order to make a payment required hereunder.
4.
DISTRIBUTION OF SUBSCRIPTION PROCEEDS.
If
the
Escrow Agent:
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receives
proper written notice from an authorized officer of Sun that the
Minimum
Subscription Proceeds have been received and accepted;
and
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determines
that Subscription Proceeds are Distributable Subscription
Proceeds;
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the
Escrow Agent shall promptly release and distribute amounts and payees designated
in writing from the Escrow Agent the Distributable Subscription Proceeds plus
any interest earned while held by the Escrow Agent in the escrow account to
the
escrow account established under Rule 419 to the Securities Act of 1933.
“Distributable Subscription Proceeds” are Subscription Proceeds which have been
deposited in the escrow account (1) by wire transfer or (2) if by check, after
a
ten day period from the date of deposit, period of time which would usually
be
sufficient for Subscription Proceeds paid by check to have returned unpaid
by
the bank on which the check was drawn.
After
the
initial distribution, any remaining Subscription Proceeds, plus any interest
earned while held by the Escrow Agent in the escrow account, shall be promptly
released and distributed by the Escrow Agent immediately if by wire and, if
by
check, after a 10 day period from the date of deposit to payees and in amounts
designated in writing by Sun.
Sun
shall
immediately return to the Escrow Agent any Subscription Proceeds which were
paid
by a check which were returned or otherwise not collected for any reason prior
or subsequent to termination of this Agreement.
5.
DISTRIBUTIONS TO SUBSCRIBERS.
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(a)
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If
Sun
is not funded as contemplated because less than the Minimum Subscription
Proceeds have been received and accepted by 3 p.m. Eastern Time on
the
Offering Termination Date, or for any other reason, then Sun shall
notify
the Escrow Agent in writing; and the Escrow Agent promptly shall
distribute to each Investor a refund check made payable to the Investor
in
an amount equal to the Subscription Proceeds of the Investor, plus
any
interest earned while held by the Escrow Agent in the escrow
account.
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(b)
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If
a subscription for Interests submitted by an Investor is rejected
by Sun
for any reason after the Subscription Proceeds relating to the
subscription have been deposited with the Escrow Agent, Sun promptly
shall
notify in writing the Escrow Agent of the rejection; and the Escrow
Agent
shall promptly distribute to the Investor a refund check
made
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payable
to the Investor in an amount equal to the Subscription Proceeds of the Investor,
plus any interest earned while held by the Escrow Agent in the escrow
account.
6.
COMPENSATION AND EXPENSES OF ESCROW AGENT.
Sun
shall be
solely responsible for and shall pay the compensation of the Escrow Agent for
its services and the charges, expenses (including any reasonable attorneys’
fees), and other out-of-pocket expenses incurred by the Escrow Agent in
connection with the administration of the provisions of this Agreement. The
Escrow Agent shall have no lien on the Subscription Proceeds deposited in the
escrow account. A fee of $2000, payable to Xxxxx Securities Corp., shall be
paid
and sent to the Escrow Agent with a signed copy of this Agreement
7.
DUTIES
OF ESCROW AGENT.
The
Escrow Agent shall not be obligated to accept any notice, make any delivery,
or
take any other action under this Agreement unless the notice or request or
demand for delivery or other action is in writing and given or made by an
authorized officer of Xxxxx. In no event shall the Escrow Agent be obligated
to
accept any notice, request, or demand from anyone other than Xxxxx.
8.
LIABILITY OF ESCROW AGENT.
The
Escrow Agent shall not be liable for any damages, or have any obligations other
than the duties prescribed in this Agreement in carrying it out or executing
its
purposes and intent. However, nothing in this Agreement shall relieve the Escrow
Agent from liability arising out of its own willful misconduct or gross
negligence. The Escrow Agent’s duties and obligations under this Agreement shall
be entirely administrative and not discretionary. The Escrow Agent shall not
be
liable to any Party or to any third-party as a result of any action or omission
taken or made by the Escrow Agent in good faith. Sun will indemnify the Escrow
Agent, hold the Escrow Agent harmless, and reimburse the Escrow Agent from,
against and for, any and all liabilities, costs, fees and expenses (including
reasonable attorney’s fees) the Escrow Agent may suffer or incur by reason of
its execution and performance of this Agreement. If any legal questions arise
concerning the Escrow Agent’s duties and obligations under this Agreement, then
the Escrow Agent may consult with its counsel and rely without liability on
written opinions given to it by its counsel.
The
Escrow Agent shall be protected in acting on any written notice, request,
waiver, consent, authorization, or other paper or document which the Escrow
Agent, in good faith, believes to be genuine and what it purports to
be.
If
there
is any disagreement between any of the Parties, or between them or any other
person, resulting in adverse claims or demands being made in connection with
this Agreement, or if the Escrow Agent, in good faith, is in doubt as to what
action it should take under this Agreement, then the Escrow Agent may, at its
option, refuse to comply with any claims or demands on it or refuse to take
any
other action under this Agreement, so long as the disagreement continues or
the
doubt exists. In any such event, the Escrow Agent shall not be or become liable
in any way or to any person for its failure or refusal to act and the Escrow
Agent shall be entitled to continue to so refrain from acting until the dispute
is resolved by the Parties involved.
9.
RESIGNATION OR REMOVAL OF ESCROW AGENT.
The
Escrow Agent may resign as such after giving thirty days’ prior written notice
to the other Parties. Similarly, the Escrow Agent may be removed and replaced
after receiving 30 days’ prior written notice from the other Parties. In either
event, the duties of the Escrow Agent shall terminate 30 days after the date
of
the notice (or as of an earlier date as may be mutually agreeable); and the
Escrow Agent shall then deliver the balance of the Subscription Proceeds (and
any interest earned while held by the Escrow Agent in the escrow account) in
its
possession to a successor escrow agent appointed by the other Parties as
evidenced by a written notice filed with the Escrow Agent.
If
the
other Parties are unable to agree on a successor escrow agent or fail to appoint
a successor escrow agent before the expiration of thirty days following the
date
of the notice of the Escrow Agent’s resignation or removal, the Escrow Agent may
petition any court of competent jurisdiction for the appointment of a successor
escrow agent or other appropriate relief. Any resulting appointment shall be
binding on all of the Parties.
On
acknowledgment by any successor escrow agent of the receipt of the then
remaining balance of the Subscription Proceeds (and any interest earned while
held by the Escrow Agent in the escrow account), the Escrow Agent shall be
fully
released and relieved of all duties, responsibilities, and obligations under
this Agreement.
10.
TERMINATION.
This
Agreement shall terminate and the Escrow Agent shall have no further obligation
with respect to this Agreement after the distribution of all Subscription
Proceeds (and any interest earned while held by the Escrow Agent in the escrow
account) as contemplated by this Agreement or on the written consent of all
the
Parties.
11.
NOTICE.
Any
notices or instructions, or both, shall be in writing and mailed by certified
mail, by a nationally recognized overnight courier return receipt requested,
or
by fax (originals to be followed in the mail or by overnight
courier).
If
to the
Escrow Agent:
Xxxxx
Securities Corp.
Xxxxx
Xxxxxxxx, President
Two
Xxxxxxxxx Xxxxx
Xxxx
Xxx,
XX 00000
If
to
Sun:
Sun
Opportunity I, Inc.
Xxxxxx
Xxxxx, CEO
0000
Xxxx
00 Xx.
Xxxxxxxx,
XX 00000
Any
Party
may designate any other address to which notices and instructions shall be
sent
by notice duly given in accordance with this Agreement.
12.
MISCELLANEOUS.
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(a)
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This
Agreement shall be governed by and construed in accordance with the
internal laws of New Jersey without reference to conflicts of laws.
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(b)
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This
Agreement shall be binding on and shall inure to the benefit of the
undersigned and their respective successors and
assigns.
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(c)
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This
Agreement may be executed in multiple copies, each executed copy
to serve
as an original.
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13.
NO
RECOMMENDATION
The
Parties acknowledge the Escrow Agent is not making any recommendations with
respect to the securities offered.
IN
WITNESS WHEREOF,
the
Parties have executed this Agreement to be effective as of the day and year
first above written.
XXXXX
SECURITIES CORP.,
As
Escrow
Agent
By:
_____________________
Name:
___________________
Title:
____________________
By:
_____________________
Name:
___________________
Title:
____________________
APPENDIX
TO ESCROW AGREEMENT
COMPENSATION
FOR SERVICES OF ESCROW AGENT
To
be
completed by Xxxxx Securities Corp.
EXTRAORDINARY
SERVICES:
For
any
services other than those covered by the aforementioned, a special per hour
charge will be made commensurate with the character of the service, time
required and responsibility involved. Such services include but are not limited
to excessive administrative time, attendance at closings, specialized reports,
and record keeping, unusual certifications, etc.
