Exhibit 9.1
ESCROW AGREEMENT
ESCROW AGREEMENT made this ______ day of ___________, 2000 by and between
Xxxxxxxxxxxxxxxxxx.xxx, Inc. a Virginia corporation ("Xxxxxxxxxxxxxxxxxx.xxx"),
and Firstar Bank, N.A., a national banking association ("Bank").
WHEREAS, Xxxxxxxxxxxxxxxxxx.xxx has offered to sell up to 450,000 newly
issued shares ("Shares") of its common stock, at an offering price of $10.00 per
share (the "Offering");
WHEREAS, the Shares are registered pursuant to a Form SB-1 Registration
Statement (Registration No. 333-________) filed under the Securities Act of
1933, as amended;
WHEREAS, the Prospectus provides that Xxxxxxxxxxxxxxxxxx.xxx offer to
prospective investors shares for the period beginning on ____________, 2000
through ___________, 2001, subject to Xxxxxxxxxxxxxxxxxx.xxx's right to extend
the Offering;
WHEREAS, the terms of the offering described in Xxxxxxxxxxxxxxxxxx.xxx's
Prospectus permit subscriptions to be accepted and offering proceeds released
when subscriptions for at least 125,000 shares have been received and,
thereafter, on a weekly or other periodic basis, from and after until
______________, 2001, subject to extension for up to _________ additional days;
WHEREAS, the Prospectus provides that Xxxxxxxxxxxxxxxxxx.xxx will deposit
all subscription funds received in a non-interest bearing escrow account with
Bank, as escrow agent; Xxxxxxxxxxxxxxxxxx.xxx may elect to accept or reject any
or all of the subscriptions in the Offering; and
WHEREAS, the parties wish to provide for the terms of a deposit account to
be established by Xxxxxxxxxxxxxxxxxx.xxx with Bank for the deposit of
subscriptions and the terms of withdrawal thereof.
NOW, THEREFORE, in consideration of the mutual promises herein made and for
other good and valuable consideration, the parties hereto hereby agree as
follows:
FIRST: Xxxxxxxxxxxxxxxxxx.xxx shall deliver a certificate signed by
it to Bank setting forth the effective date of the Offering, immediately after
such effective date.
SECOND: All funds received from subscribers for the Shares will be
delivered by Xxxxxxxxxxxxxxxxxx.xxx to Bank at 000 Xxxxxx Xxxxxx, [
], Xxxxxxxxxx, Xxxx 00000, Attention: Xxxxx Xxxxxx, for deposit into a special
non-interest bearing account (the "Account"), together with the name, address,
social security number of each such subscriber, and the name(s) in which the
Shares are to be registered. Xxxxxxxxxxxxxxxxxx.xxx agrees that where Shares
are to be paid for by check, Xxxxxxxxxxxxxxxxxx.xxx will deposit such check into
the Account within one business day following receipt by Xxxxxxxxxxxxxxxxxx.xxx
of a subscription.
THIRD: Bank will hold all funds received by it pursuant to the terms
of this Agreement in the Account. Funds may be withdrawn from the Account and
disbursed only as follows:
A. From and after the date that subscriptions acceptable to
Xxxxxxxxxxxxxxxxxx.xxx for at least 125,000 Shares are received by the Bank
prior to the termination of the Offering and, thereafter on a
weekly or other periodic basis, Xxxxxxxxxxxxxxxxxx.xxx shall deliver to the Bank
a certificate (the "Closing Certificate") stating which of the subscriptions in
the Offering have been accepted or rejected.
B. The Bank shall deliver to Xxxxxxxxxxxxxxxxxx.xxx, without
interest, all funds received by it for subscriptions in the Offering (not
previously released to Xxxxxxxxxxxxxxxxxx.xxx or returned to subscribers) which
Xxxxxxxxxxxxxxxxxx.xxx shall have certified as being accepted and shall return
to subscribers, without interest, all funds received by it for subscriptions
which Xxxxxxxxxxxxxxxxxx.xxx shall have certified as not being accepted.
C. Bank shall copy and forward all Subscription Agreements to
Xxxxxxxxxxxxxxxxxx.xxx daily.
FOURTH: No interest shall accrue on any collected funds held in the
Account.
FIFTH:
A. Bank is acting solely as depository of the funds and not as a
trustee or fiduciary under this Agreement. Bank is not a party to, nor has it
reviewed or approved any agreement other than this Agreement, nor any other
matters of background related to this Agreement.
B. Bank shall not be liable for any damages, or have any obligations
other than the duties prescribed herein in carrying out or executing the
purposes and intent of this Agreement; provided, however, that nothing herein
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contained shall relieve Bank from liability arising out of its own willful
misconduct or gross negligence. Bank's duties and obligations under this
Agreement shall be entirely administrative and not discretionary.
C. Bank shall not be liable to any party hereto or to any third party
as a result of any action or omission taken or made by Bank, except for
liability arising out of Bank's own willful misconduct or gross negligence.
Xxxxxxxxxxxxxxxxxx.xxx will, at its expense, indemnify Bank, hold Bank harmless,
and reimburse Bank, and its officers, directors, employees and representatives
from, against and for, any and all liabilities, costs, fees and expenses
(including reasonable attorney's fees) Bank or any of them may suffer or incur
by reason the execution and performance of this Agreement by Bank, including any
litigation relating to this Agreement instituted by or against Bank, to which it
is a party or in which Bank or any of its officers, directors, employees or
representatives are required to appear as a witness. If any legal questions
arise concerning Bank's duties and obligations hereunder, Bank may consult its
counsel at Xxxxxxxxxxxxxxxxxx.xxx's expense and rely without liability upon
written opinions given to it by such counsel.
D. Bank shall be protected in acting upon any written notice,
request, waiver, consent, authorization, or other paper or document which Bank,
in good faith, believes to be genuine and what it purports to be.
E. Bank shall not be bound in any way by any contract or agreement
between the other parties hereto, whether or not it has knowledge of any such
contract or agreement or of its terms or conditions.
F. This Agreement shall be terminated upon withdrawal and
disbursement of all of funds held in the Account, except that Articles FIFTH and
SEVENTH shall survive termination of this Agreement.
G. Notwithstanding anything to the contrary contained in this
Agreement, it is agreed that Bank shall in no case or event be liable for the
failure of any of the conditions of this Agreement or damage caused by the
exercise of its discretion in any particular manner, or for any reason, except
gross negligence or willful misconduct with reference to the Account, and Bank
shall not be liable or responsible for its failure to ascertain the terms or
conditions, or to comply with any of the provisions, of any agreement, contract
or other document delivered to it or referred to herein, nor shall Bank be
liable or responsible for forgeries or false personation.
H. If any controversy arises between the parties hereto or with any
third person with respect to the subject matter of this Agreement, its terms or
conditions, Bank shall not be required to determine the same or take any action
in the premises, but Bank may await the settlement of any such controversy by
final appropriate legal proceedings or otherwise as Bank may require, or Bank
may institute legal proceedings to determine any controversy, and in any such
event Bank shall not be liable for interest or damages.
I. It is agreed that Bank's duties are only such as are herein
specifically provided, being purely ministerial in nature, and that Bank shall
incur no liability whatsoever except for its willful misconduct or gross
negligence.
J. Bank may, but shall not be required to, institute legal
proceedings of any kind. Bank shall have no responsibility for the genuineness
or validity of any document or other item deposited with it, and Bank shall be
fully protected in acting in accordance with any written instructions given to
it hereunder and believed by it to have been signed or given by the proper
parties.
K. Bank undertakes to perform such duties and only such duties as are
specifically set forth in this Agreement, and no implied covenants or
obligations shall be read into this Agreement against Bank.
L. No provision of this Agreement shall require Bank to expend or
risk its own funds or otherwise incur any financial liability in the performance
of any of its duties hereunder, or in the exercise of any of its rights or
powers, if there shall be reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
M. Bank may consult with counsel and the written advice of such
counsel or any opinion of counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon.
N. Bank shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture or
other paper or document, but Bank in its discretion may make such further
inquiry or investigation into such facts or matters as it may see fit.
O. The recitals contained herein shall be taken as the statements of
Xxxxxxxxxxxxxxxxxx.xxx, and Bank assumes no responsibility for their
correctness. Bank makes no representations as to the validity or sufficiency of
this Agreement. Bank shall not be accountable for the use or application by
Xxxxxxxxxxxxxxxxxx.xxx of the proceeds of the Offering.
SIXTH: Notwithstanding anything to the contrary contained in this
Agreement, Bank (a) may resign from its duties under this Agreement by giving 30
days' prior written notice of such resignation to the other parties hereto and
(b) may be discharged from its duties under this Agreement upon the receipt from
each of the other parties hereto of 30 days' prior written notice of such
discharge. Upon the resignation or discharge
of Bank, Xxxxxxxxxxxxxxxxxx.xxx shall retain a substitute financial institution
to perform the functions theretofore performed by Bank under this Escrow
Agreement.
SEVENTH: A. Xxxxxxxxxxxxxxxxxx.xxx agrees to pay to Bank reasonable
expenses, including counsel fees, incurred in acting hereunder.
B. It is understood that fees (if any) and usual charges agreed upon
for Bank's services hereunder shall be considered compensation for its ordinary
services as contemplated by this Agreement and in the event the conditions of
this Agreement are not promptly fulfilled or that Bank renders any service
hereunder not provided for in this Agreement, or that there is any modification
hereof, or that any controversy arises hereunder or that Bank institutes, is
made a party to, or intervenes in, any litigation pertaining to this Agreement
or the subject matter thereof, Bank and its legal counsel shall be reasonably
compensated for such extraordinary services and reimbursed for all costs and
expenses occasioned by such default, delay, controversy or litigation and Bank
shall have the right to retain all documents and/or other things of value at
any time held by it hereunder until such compensation, fees, costs and expenses
shall be paid. Xxxxxxxxxxxxxxxxxx.xxx hereby promises to pay the foregoing sums
upon demand.
EIGHTH: If, after the receipt by Bank of any check or instrument of
any party hereto, Bank shall inform Xxxxxxxxxxxxxxxxxx.xxx that such check or
instrument has been entered for collection by it hereunder and is uncollectable
and payment of the funds represented by such check or instrument has been made
pursuant to the terms of this Agreement, then Xxxxxxxxxxxxxxxxxx.xxx shall
immediately reimburse Bank for such payment, and Bank shall deliver the returned
check or instrument to Xxxxxxxxxxxxxxxxxx.xxx provided, however, that nothing
contained herein shall require Bank to invest or pay out funds which it has
reason to believe are uncollectable.
NINTH: All distributions by Bank to subscribers pursuant to this
Agreement shall be made by check, payable to the order of each respective
subscriber and shall be mailed directly to the subscribers by first class mail.
All payments by Bank to Xxxxxxxxxxxxxxxxxx.xxx shall be made in immediately
available funds, if and to the extent that the funds on deposit with Bank are
immediately available at the time of such payment.
TENTH: The rights and obligations of each party under this Agreement
may not be assigned without the prior written consent of all other parties.
This Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns.
ELEVENTH: This Agreement contains all the terms agreed upon by the
parties with respect to the subject matter hereof. This Agreement may be
amended only by a written instrument signed by the party against whom
enforcement of any waiver, change, modification, extension or discharge is
sought.
TWELFTH: All notices, communications and instructions required or
desired to be given under the Escrow Agreement shall be in writing and shall be
deemed to be fully given if sent by certified mail, return receipt requested, to
the following addresses:
To: Firstar Bank, N.A.
Firstar Bank, N.A.
000 Xxxxxx Xxxxxx
[ ]
Xxxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
To: Xxxxxxxxxxxxxxxxxx.xxx
Xxxxxxxxxxxxxxxxxx.xxx
X.X. Xxx 000
Xxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxxxx, President and
Chief Executive Officer
or to such other address and to the attention of such other person as any of the
above may have furnished to the other parties by certified mail, return receipt
requested.
THIRTEENTH: Xxxxxxxxxxxxxxxxxx.xxx shall deliver to Bank a
certificate of the secretary of Xxxxxxxxxxxxxxxxxx.xxx as (a) the authority of
certain officers thereof to act on behalf of Xxxxxxxxxxxxxxxxxx.xxx in
connection with this Agreement and (b) the incumbency and signatures of such
officers, and Bank may act in reliance on such certificate upon the instructions
or directions given to it in accordance with the terms of this Agreement by
Xxxxxxxxxxxxxxxxxx.xxx, through a person authorized so to act in such
certificate.
FOURTEENTH: This Agreement shall be deemed to be an agreement made
under the laws of the State of Ohio and for all purposes shall be construed and
enforced in accordance with and governed by the laws of such State.
FIFTEENTH: This Agreement may be executed simultaneously in two or
more counterparts, each of which shall be deemed an original, and all such
counterparts shall constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
Xxxxxxxxxxxxxxxxxx.xxx
By: _________________________
Title:
Firstar Bank, N.A.
By: __________________________
Title:
