EXHIBIT 10.0
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (the "Agreement") is made and entered into this 21st
day of December, 2005, by and between Global Enterprises (Nevada), Inc., 0000
Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxxx 00000 (the "Company"), and The Bank of New
York, N.A., Xxx Xxxx Xxxxxx, Xxx Xxxx Xxxx, Xxx Xxxx 00000 (the "Escrow Agent").
W I T N E S S E T H :
WHEREAS, the Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form SB-2 (the "Registration
Statement") covering a proposed public offering of a minimum of 125,000, and a
maximum of 500,000, shares of its common stock, $0.001 par value per share
(collectively, the "Securities," and, individually, a "Share"); and
WHEREAS, the Company proposes to offer the Securities for sale to the
public on a "best efforts, $250,000 minimum-$1,000,000 maximum basis" at the
price of $2.00 per Share; and
WHEREAS, the Company proposes to establish an escrow account with the
Escrow Agent in connection with the public offering and the Escrow Agent is
willing to establish the 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. Establishment of Escrow Account.
1.1 The parties hereto shall establish an escrow account at the office of
the Escrow Agent, and bearing the designation "Global Enterprises (Nevada), Inc.
Escrow Account" (the "Escrow Account").
1.2 On or before the date of the initial deposit in the Escrow Account
pursuant to this Agreement, the Company 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.
1.3 The Offering Period, which shall be deemed to commence on the
Effective Date, shall consist of 90 calendar days. The Offering Period shall be
extended (the "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 90 calendar days. 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 Company shall not deposit, and the Escrow
Agent shall not accept, any additional amounts representing payments by
prospective purchasers.
2. Deposits in the Escrow Account.
2.1 Upon receipt, the Company shall promptly deposit all monies received
from investors with 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
Global Enterprises (Nevada), Inc. and The Bank of New York, 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 Company (together with any
Subscription Information, as defined below, or other documents delivered
therewith) by noon of the next business day following receipt of the check by
the Escrow Agent, and the 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.
2.2 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.
2.3 Simultaneously with each deposit into the Escrow Account, the Company
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").
2.4 The Escrow Agent shall not be required to accept for deposit into the
Escrow Account checks that 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 these payments.
2.5 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 3:00 p.m. shall be deposited the following
business day.
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2.6 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 this Agreement. If the Deposited
Proceeds are released to a purchaser of the Securities, the purchaser shall
receive interest or dividends earned, if any, on the 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 the funds up to the
date of release may be released to the Company.
2.7 The Company 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 indicated on the common stock certificates.
2.8 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 the 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 or
Title I of the Employee Retirement Income Security Act, or the rules thereunder.
2.9 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 Company.
3. Disbursement from the Escrow Account.
3.1 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 Form 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 stockholders 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 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.
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3.2 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 Company of its
distribution of the Deposited Proceeds.
3.3 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 Company 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.
3.4 Upon disbursement of the Deposited Proceeds pursuant to the terms
of this Section 3, 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.
4. 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:
4.1 The Escrow Agent shall not be responsible for the performance by
the Company of its obligations under this Agreement.
4.2 The Escrow Agent shall not be required to accept from the
Company any Subscription Information pertaining to a prospective purchaser
unless the Subscription Information is accompanied by a check or money order
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
Company except as to the amount of the payments; however, the Escrow Agent shall
notify the Company within a reasonable time of any discrepancy between the
amount delivered to the Escrow Agent and the accompanying Subscription
Information. Such amount need not be accepted for deposit in the Escrow Account
until the discrepancy has been resolved.
4.3 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 Company any check received that is
dishonored, together with the Subscription Information, if any, which
accompanied the check.
4.4 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 that 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.
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4.5 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 that, 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.
4.6 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.
4.7 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.
4.8 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.
5. Amendment; Resignation. This Agreement may be altered or amended
only with the written consent of the Company and the Escrow Agent. The Escrow
Agent may resign for any reason upon seven (7) business days' written notice to
the Company. 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 the successor escrow agent) shall have been given to the
resigning Escrow Agent by the Company 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 Company and a successor escrow agent, then
the resigning Escrow Agent shall promptly refund the amount of the Deposited
Proceeds to each prospective purchaser without interest thereon or deduction
therefrom, and the resigning Escrow Agent shall notify the Company 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 7 hereof, the resigning Escrow Agent shall be entitled to be reimbursed
by the Company 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 5.
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6. Representations and Warranties. The Company hereby represents and
warrants to the Escrow Agent that:
6.1 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.
6.2 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.
6.3 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 the deposit represents a
bona fide sale to the purchaser described therein of the amount of Securities
set forth in the Subscription Information.
7. Fees and Expenses. The Escrow Agent shall be entitled to a fee of
$500.00, payable upon execution of this Agreement. In addition, the Company
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.
8. Indemnification and Contribution.
8.1 The Company (referred to in this Section 8 as the "Indemnitor")
agrees to indemnify the Escrow Agent and its officers, directors, employees,
agents and stockholders (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.
8.2 If the indemnification provided for in this Section 8 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.
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8.3 Any Indemnitee that proposes to assert the right to be
indemnified under this Section 8, 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
8, 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 that it may have to any Indemnitee otherwise than
under this Section 8. 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 it 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.
8.4 The Indemnitor agrees to provide the Indemnitees with copies of
all registration statements and 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.
8.5 The provisions of this Section 8 shall survive any termination of
this Agreement, whether by disbursement of the Deposited Proceeds, resignation
of the Escrow Agent or otherwise.
9. 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:
(A) Written notice thereof shall be given to the Escrow Agent; and
(B) The Escrow Agent shall have consented in writing to the
assignment or transfer.
10. 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
Company, at 0000 Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxxx 00000, and, if to the
Escrow Agent, at Xxx Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
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11. 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.
12. 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.
13. 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.
14. Captions. All captions are for convenience only and shall not
limit or define the term thereof.
15. 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.
16. 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 COMPANY: THE ESCROW AGENT:
GLOBAL ENTERPRISES (NEVADA), INC. THE BANK OF NEW YORK, N.A.
By: //signed// By: //signed//
---------------------------- --------------------------------
Xxxxx X. Xxxxx, President Name:
Title:
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