ESCROW AGREEMENT
The undersigned shall deliver to Xxxxx X. Xxxxxxx, Esq. (the "Escrow
Agent") the items set forth in Schedule A, to be deposited in an escrow account
at Norwest Bank in Englewood, Colorado, and held by the Escrow Agent subject to
the terms and conditions set forth in Schedule B and in General Provisions (this
"Agreement").
SCHEDULE A
(Deposits)
Deposits shall include all checks, drafts, wire transfers, loan proceeds or
other funds received by the Escrow Agent from or on behalf of any person
subscribing for shares of common stock of Xxxxxx' Express, Inc. It is
anticipated that checks will be made payable to Xxxxxx' Express, Inc. Escrow
Account.
SCHEDULE B
(Special Instructions)
The Escrow Agent shall hold for distribution all funds received from
persons subscribing for shares of common stock of Xxxxxx' Express, Inc. (the
"Depositor(s)") until the date which is four months after the date that the
Registration Statement of Xxxxxx' Express, Inc. dated as of May 23, 1997 has
been declared effective by the Securities and Exchange Commission, or such
earlier date as may be provided to the Escrow Agent (the "Final Subscription
Date"). In no event, however, shall the Final Subscription Date be extended to a
date after May 23, 1998.
All funds deposited in escrow shall be invested immediately in a
non-interest bearing account at Norwest Bank in Englewood, Colorado as
designated by Xxxxxx' Express, Inc.
If the amount of funds deposited in escrow is less than $50,000 three days
after the Final Subscription Date, the Escrow Agent shall return to the
Depositors all of the deposited funds in amounts equal to each Depositor's
respective deposit, without interest.
If the amount of funds deposited in escrow is greater than or equal to
$50,000 on any date during the term of this Agreement, the Escrow Agent shall
pay to Xxxxxx' Express, Inc. at its direction, or its order, up to the total
amount of funds deposited in the escrow, together with any additional funds as
may be deposited in the escrow after the date of such distribution.
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If the funds deposited in escrow are not withdrawn from Escrow on or before
May 23, 1998, the Escrow Agent shall return to each Depositor all of the
deposited funds in amounts equal to each Depositor's respective deposit without
interest.
GENERAL PROVISIONS
Section 1. These instructions may be altered, amended, modified or revoked
by writing only, signed by all of the parties to this Agreement, and approved by
the Escrow Agent.
Section 2. No assignment, transfer, conveyance or hypothecation of any
right, title or interest in and to the subject matter of this Escrow shall be
binding upon the Escrow Agent unless written notice thereof shall be served upon
the Escrow Agent and all fees, costs and expenses incident to such transfer of
interest shall have been paid.
Section 3. Any notice required or desired to be given by the Escrow Agent
to any party to this Agreement may be given by mailing the same addressed to
such party at the address that appears below each party's signature and notice
so mailed shall for all purposes be as effective three business days after
depositing such notice in the mail as though served upon such party in person.
Section 4. The Escrow Agent shall not be personally liable for any act that
it may do or omit to do under this Agreement as such agent, while acting in good
faith and in the exercise of its own best judgment; and any act done or omitted
by it pursuant to the advice of its own attorneys shall be conclusive evidence
of such good faith.
Section 5. The Escrow Agent is expressly authorized to disregard any and
all notices or warnings given by any of the parties to this Agreement, or by any
other person or corporation, excepting only orders or process of court, and is
expressly authorized to comply with and obey any and all orders, judgments or
decrees of any court, and in case the Escrow Agent obeys or complies with any
such order, judgment or decree of any court it shall not be liable to any of the
parties to this Agreement or to any other person, firm or corporation by reason
of such compliance, notwithstanding any such order, judgment or decree be
subsequently reversed, modified, annulled, set aside or vacated, or found to
have been entered without jurisdiction. The Escrow Agent is expressly authorized
to refuse to make distributions to Xxxxxx' Express, Inc. if for any reason the
Escrow Agent believes that such distribution would result in the violation of
any securities law, rule, regulation or order of any jurisdiction or regulatory
body.
Section 6. In consideration of the acceptance of this escrow by the Escrow
Agent, Xxxxxx' Express, Inc. agrees to indemnify and hold it harmless as to any
liability by it incurred to any other person or corporation by reason of its
having accepted the same, or in connection herewith, and to reimburse it for all
its expenses, including, among other things, counsel fees and court costs
incurred in connection herewith; and that the Escrow Agent shall have a first
and prior lien upon all deposits made pursuant to this Agreement to secure the
performance of said agreement of indemnity.
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Section 7. The Escrow Agent shall not be liable in any respect on account
of the identity, authority, or rights of the parties executing or delivering or
purporting to execute or deliver these instructions or any documents or papers
deposited or called for in this Agreement.
Section 8. In the event of any dispute between the parties hereto as to the
facts of default, the validity or meaning of these instructions or any other
fact or matter relating to the transaction between the paries, the Escrow Agent
is instructed as follows:
(a) That it shall be under no obligation to act, except under process or
order of court, or until it has been adequately indemnified to its full
satisfaction, and shall sustain no liability for its failure to act pending
such process or court order or indemnification;
(b) That it may in its sole and absolute discretion, deposit the property
described in Schedule A or so much of it as remains in its hands with any
court, interplead the parties to this Agreement, and upon so depositing
such property and filing its complaint in interpleader it shall be relieved
of all liability under the terms of this Agreement as to the property so
deposited, and furthermore, the parties to this Agreement for themselves,
their heirs, legal representatives, successors and assigns, submit
themselves to the jurisdiction of said court and appoint the then clerk, or
acting clerk, of said court as their agent for the service of all process
in connection with such proceedings.
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Section 9. If the deposits made pursuant to this Agreement are not
withdrawn on or before May 23, 1998, the Escrow Agent may mail the same to the
Depositors at their respective addresses delivered with such deposits or at the
most recent address shown on the records of the Escrow Agent and thereupon be
relieved of all liability under this Agreement.
Section 10. The provisions of these instructions shall be binding upon the
legal representatives, heirs, successors and assigns of the parties to this
Agreement.
Section 11. The undersigned has been informed of the potential conflicts of
interest which could be created by this Agreement, in view of the fact that
Xxxxx X. Xxxxxxx has provided securities law advice to the undersigned. The
undersigned has had the opportunity to seek independent legal counsel, as
recommended by Xxxxx X. Xxxxxxx, and hereby waives such conflicts related to
this Agreement to the extent that such conflicts should arise in the future.
IN WITNESS WHEREOF, the undersigned have affixed their signatures as of May
23, 1997.
XXXXXX' EXPRESS, INC., a Colorado
corporation
By: /S/ XXXXXXX XXXXXX
-----------------------------------------
Xxxxxxx Xxxxxx, President
Accepted:
/S/ XXXXX X. XXXXXXX
----------------------------------------
Xxxxx X. Xxxxxxx, Attorney at Law
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