EXHIBIT 99(a): Escrow Agreement
ESCROW AGREEMENT
THIS AGREEMENT made and entered into this 17th day
of October, 2003 by and between DP & D, Inc. (the "Company");
and the Law Offices of Xxxxxx X. Xxxxxxxx, Esq. Ltd., whose
address is 0000 Xxxx Xxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxx
00000 (the "Escrow Agent").
WI T N E S S E T H:
WHEREAS, the Company desires to make an federally registered
public offering (the "Offering") of its securities consisting of
2,000,000 shares under an arrangement whereby the securities are
to be offered to investors through the Company at the offering
price of $0.05 cents per share; and
WHEREAS, the Offering is to be made in accordance with the
Securities Act of 1933, as amended (the "Act"); and
WHEREAS, the Company intends to sell the securities as the
Company's agent on a best-efforts basis; and
WHEREAS, the parties wish to make provision to impound the
gross proceeds from the sale of 400,000 shares subscribed in the
Offering in escrow, which gross proceeds are to be released to
the Company only in the event of the sale of 2,000,000 shares,
within the time set forth herein, and otherwise the escrowed
proceeds are to be returned by the Escrow Agent in accordance
with the terms and conditions set forth herein.
WHEREAS, the company desires to establish an escrow account
in which funds received from subscribers will be deposited
pending completion of the escrow period. The Law Offices of
Xxxxxx X. Xxxxxxxx, Esq., Ltd. agrees to serve as Escrow Agent in
accordance with the terms and conditions set forth herein.
WHEREAS, the Company and the Escrow Agent desire to enter
into an agreement with respect to the above-described escrow.
NOW, THEREFORE, in consideration of the foregoing and mutual
promises and covenants contained herein, it has been and IT IS
HEREBY AGREED as follows:
1. Establishment of Escrow Account. On or prior to the
date of the commencement of the offering, the parties shall
establish a non-interest bearing escrow account with the Escrow
Agent, which escrow account and shall be located at the offices
of the Escrow Agent. Any checks received that are made payable
to a party other than Xxxxxx X. Xxxxxxxx, Esq. Ltd. Trust Account
shall be returned to the investor who submitted the check.
2 Accounting for Escrow Funds. The Company agrees that
it shall promptly deliver all monies received from subscribers
for the payment of the Securities to the Escrow Agent for deposit
in the Escrow Account together with a written account of each
sale, which account shall set forth, among other things, the
subscriber's name and address, the number of securities
purchased, the amount paid therefore, and whether the
consideration received was in the form of a check, draft, money
order or wire. All monies so deposited in the Escrow Account are
hereinafter referred to as the "Escrow Amount".
3. Deposits into the Escrow Account. All proceeds
delivered to the Escrow Agent pursuant hereto shall be deposited
immediately by the Escrow Agent in the Escrow Account. The
Escrow Account shall be created and maintained subject to the
customary rules and regulations of the Escrow Agent pertaining to
such accounts.
4. Rights of the Escrow Funds. During the Escrow Period
(as herein after defined), the Company is aware and understands
that all proceeds deposited in the Escrow Account shall not
become the property of the Company or other entity, or be subject
to the debts of the Company or any other entity. Except as
expressly provided herein with respect to payments by the Escrow
Agent to the Company, the Escrow Agent shall make or permit no
disbursements from the Escrow Account.
5. The Escrow Period. The Escrow Period shall begin with
the effective date of the Offering (the "Effective Date") and
shall terminate on the first to occur of the following dates:
a. The date upon which the Escrow Agent confirms that it has
received in the Escrow Account gross proceeds of $20,000 in
deposited funds;
b. On or before 365 days from the effective date of the
Offering; or
c. The date upon which a determination is made by the Company
to terminate the offering prior to receipt of $100,000 in
collected funds.
6. Disbursements from the Escrow Account. Upon obtaining
the occurrence of any of the events set forth in paragraphs 5A,
5B or 5C above, this escrow will terminate and the proceeds on
deposit shall be delivered to or on behalf of the Company as
directed by the Company's counsel or designated principal
officer. In no event shall the Escrow Agent release to the
Company funds held in escrow until $20,000 in collected funds are
in escrow. For purposes of this Agreement, the term "collected
funds" shall mean all funds received by the Escrow Agent which
have cleared normal banking channels and are in the form of cash.
In the event the Escrow Period terminates because 2,000,000
shares are not sold on or before the date specified in paragraph
5B above, then the Escrow Agent shall within ten days of receipt
of its mailing fee as described in paragraph 10, return to each
of the subscribers of the Company's securities the amounts paid
in by them, without any deductions and without any interest
earned or expenses to the subscriber, and the Escrow Agent shall
notify the Company its distribution of the funds. Each amount
paid or payable to each subscriber pursuant to this paragraph
shall be deemed to be the property of the subscriber, free and
clear of any or all claims of the Company or of any of its
creditors, and the respective agreements to purchase the
Company's securities made and entered into the Offering shall
thereupon be deemed ipsofacto, to be canceled without further
liability of said subscribers to pay for the securities
purchased. At such times as the Escrow Agent shall have made all
the payments and remittances provided for in this paragraph, the
Escrow Agent shall be completely discharged and released of any
and all further liabilities and responsibilities hereunder.
If at any time prior to the termination of this escrow the
Escrow Agent is advised by the Nevada Securities Administrator
that a stop order has been issued with respect to the
registration Statement, the Escrow Agent shall, upon receipt of
its mailing fee described in paragraph 10, thereon return all
funds to the respective subscribers.
7. Discretion of Escrow Agent. The Escrow Agent, in its
actions pursuant to this Agreement, shall be fully protected in
every reasonable exercise of its discretion and shall have no
obligations hereunder either to the Company or to any other
party, except as expressly set forth
herein.
It is understood and agreed that the duties of the Escrow
Agent are entirely ministerial, being limited to receiving monies
from the Company and holding and disbursing such monies in
accordance with this Agreement.
8. Investment of Escrow Amount. The Escrow Agent may
invest the Escrow Amount only in such accounts or investments as
the Company may specify by written notice. The Company may only
specify by written notice. The Company may only specify
investment in (1) Federal Deposit Insurance Corporation insured
bank accounts, (2) bank money-market accounts, (3) short-term
certificates of deposit issued by a bank, or (4) short term
securities issued or guaranteed by the U.S. Government. The
Escrow Agent shall keep accurate records of such funds, and upon
request, provide the Company, the Securities and Exchange
Commission or any State Securities Administrator, an account with
respect thereto.
9. Collection Procedure. The Escrow Agent is hereby
authorized to forward each check for collection and upon
collection of the proceeds of each check, deposit the collected
proceeds in the Escrow Account. As an alternative, the Escrow
Agent may telephone the bank on which the check is drawn to
confirm that the check has been paid.
Any check returned unpaid to the Escrow Agent shall be
returned to the investor that submitted the check. In such
cases, the Escrow Agent will promptly notify the company of such
return.
If the Company rejects any subscription for which the Escrow
Agent has already collected funds, the Escrow Agent shall
promptly issue a refund check to the rejected subscriber. If the
Company rejects any subscription for which the Escrow Agent has
not yet collected funds but has submitted the subscriber's check
for collection, the Escrow Agent shall promptly issue a check in
the amount of the subscriber's check to the rejected subscriber
after the Escrow Agent has cleared such funds. If the Escrow
Agent has not yet submitted a rejected subscriber's check for
collection, the Escrow Agent shall promptly remit the
subscriber's check directly to the subscriber.
10. Escrow Fees. The fee of the Escrow Agent is a non-
refundable sum of $500.00.
If the offering amount of $20,000 is not received in escrow
within the escrow period and the Escrow Agent is required to
return funds to investors as provided in paragraph 6, or Escrow
Agent receives a stop order as provided in Paragraph 6, the
Escrow Agent shall receive a fee of $5.00 per check for such
service, which fee shall be paid in advance of any refund mailing
by Escrow Agent. The fee agreed upon for services rendered
hereunder is intended as full compensation for the Escrow Agent's
services as contemplated by this Agreement; however, in the event
the conditions of this Agreement are not fulfilled, or the Escrow
Agent performs any material service not contemplated by this
Agreement, or there is any assignment of interest in the subject
matter of this Agreement, or any material modification thereof,
or if any material controversy arises hereunder, or the Escrow
Agent is made party to or justifiably intervenes in any
litigation pertaining to this Agreement, or the subject matter
hereof, the Escrow Agent shall be fully reimbursed for all such
extraordinary expenses, including reasonable attorney's fees, and
all extraordinary expenses shall be paid by the Company.
11. Expenses of Escrow Agent. If it is necessary
for the Escrow Agent to return funds to the purchasers of the
Securities, the Company shall pay to the Escrow Agent an amount
sufficient to reimburse it for its actual cost in disbursing such
funds. However, no such fee, reimbursement for costs and
expenses indemnification for any damages incurred by the Escrow
Agent, or any monies whatsoever shall be paid out of, or be
chargeable to, the funds on deposit in the Escrow Account.
12. Limitation of Liability of Escrow Agent. In performing
any of its duties hereunder, the Escrow Agent shall not incur any
liability to anyone for any damages, losses or expenses, except
for willful default or negligence, and it shall, accordingly, not
incur any such liability with respect to: (i) any action taken
or omitted in good faith upon advice of its counsel or counsel
for the Company given with respect to any questions relating to
the duties and responsibilities of the Escrow Agent under this
Agreement; or (ii) any action taken or omitted in reliance upon
any instrument, including the written advice provided for herein,
not only as to its due execution and the validity and
effectiveness of its provisions, but also as the truth and
accuracy of any information contained therein, which the Escrow
Agent shall in good faith believe to be genuine, to have been
signed or presented by a proper person or persons, and to conform
with the provisions of this Agreement.
13. Indemnity of Escrow Agent. The Company hereby agrees
to indemnify and hold harmless the Escrow Agent against any and
all losses, claims, damages, liabilities and expenses, including
any litigation arising from this Agreement or involving the
subject matter hereof.
14. Disputes. In the event that a dispute arises as to the
terms of this Agreement, the Escrow Agent shall be entitled to
deposit, in the nature of any interpleader action, any documents
or proceeds then held by such Escrow Agent with any court of
competent jurisdiction within the State of Nevada.
15. Entire Agreement. This is the entire Agreement of the
parties. Any other agreements of any nature whether oral or
written not contained herein are expressly made null and void.
16. Governing Law. This Agreement shall be governed by the
laws of the State of Nevada.
IN WITNESS WHEREOF, the Company, and the Escrow Agent have
executed this Escrow Agreement on the day and year first above-
written.
LAW OFFICES OF XXXXXX X. XXXXXXXX, ESQ. ,LTD.
Signed: /s/ Xxxxxx X. Xxxxxxxx Dated: 10-17-03
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Print: Xxxxxx X. Xxxxxxxx, Esq.
DP & D, INC.
Signed: /s/ Xxxx X. Xxxxxxx Dated: 10-17-03
Print Xxxx X. Xxxxxxx Title: President
