ESCROW AGREEMENT (PUBLIC OFFERING)
AGREEMENT made this day of , 1998 by and among the
Issuer whose name and address appears on the Information Sheet (as defined
herein) attached to this Agreement, and Citibank, N.A., 000 Xxxxxxxx, Xxx
Xxxx, 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.
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 "The Arielle Corp. and Atlantic Liberty Savings, 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.
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;
(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:
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.
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.
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:
(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: THE ARIELLE CORP.
By:
ESCROW AGENT: ATLANTIC LIBERTY SAVINGS
By:
ATLANTIC LIBERTY SAVINGS
ESCROW AGREEMENT INFORMATION SHEET
1. The Company
THE ARIELLE CORP.
00 Xxxxx Xxxxx
Xxxxx Xxxxx, Xxx Xxxx
Xxxxx of incorporation or organization: Delaware
2. The Underwriter
Self-Underwriting
State of incorporation or organization:
3. The Securities
Description of the Securities to be offered (e.g., shares of or warrants
for common stock, debentures, units consisting of shares and warrants,
etc.):
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 ARIELLE CORP. ESCROW ACCOUNT.
8. Escrow Account Fee
Amount due on execution of the Escrow Agreement: $
Fee for each check disbursed pursuant to the terms of the
Escrow Agreement (unsuccessful offering): $
Fee for each subscriber in excess of the first fifty subscribers:
$
Fee for each check returned pursuant to the terms of the Escrow Agreement:
$
All other fees will be negotiated on the basis of service
requirements.
