EXHIBIT 9.1
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (the "Agreement) is made as of the 4th day of
February 2002 among Mintmire & Associates (the "Escrow Agent") and New Millenium
Packaging Inc. (the "Issuer").
RECITALS
WHEREAS, the Issuer wishes Escrow Agent to act on its behalf with regard to
proceeds from a certain initial public offering of Issuer's Shares of Common
Stock for which it will file on Form SB-1 with the Securities and Exchange
Commission (the "Proceeds"); and
WHEREAS, the Escrow Agent has agreed to act with regard to the Proceeds
subject to the terms and conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the obligations set forth herein and
other good and valuable consideration, the receipt and adequacy of which is
hereby acknowledged, the parties agree as follows:
1. Recitals. The recitals set forth above are incorporated herein by
reference as if set out fully in the body of this Agreement.
2. Property Deposited in Escrow. The Issuer and the Escrow Agent shall
establish an attorney escrow account with Wachovia Bank (the "Depository") in
Palm Beach, Florida and entitled "New Millenium Packaging Inc IPO Escrow
Account" (the "Escrow Account"). All Proceeds of subscriptions (together with a
list setting forth the names and addresses of each subscriber and the amounts
and dates of receipt of their respective subscriptions and copies of the
Subscription Agreement and Power of Attorney executed by the subscriber) for
shares of limited issuer interest (the "Shares") in the Issuer received during
the Offering Period (as defined in paragraph 3.6 below) shall be forwarded to
the Escrow Agent by noon of the next business day after receipt of such
subscriptions, with copies to the Issuer for determination of whether to accept
such subscriptions. The Issuer shall deliver to all such prospective subscribers
interim receipts for the amount of the funds deposited in the Escrow Account and
copies of such receipts shall be delivered to the Escrow Agent, said interim
receipts to be substantially in the form of Exhibit A hereto.
3. Authority of Escrow Agent. The Escrow Agent shall collect, hold, deal
with and dispose of the Proceeds and any other property at any time held by it
hereunder in the following manner:
3.1 If subscriptions for 100,000-1,000,000 shares ($100,000 - $1,000,000)
or more have been received during the Initial Offering Period (as defined in
paragraph 3.6 below), all property deposited in the Escrow Account (excluding
all interest accumulated on the Proceeds paid to subscribers pursuant to
paragraph 3.2 below) shall as soon as practicable be paid over and delivered to
the Issuer upon its written request, upon the certification by the Issuer to the
Escrow Agent that subscriptions aggregating not less than such
100,000-01,000,000 shares ($100,000 - $1,000,000) minimum have been received and
accepted, and upon certification by the Escrow Agent to the Issuer that the
Escrow Agent has received not less than such $100,000 minimum in good clear
funds for deposit in the Escrow Account.
3.2 If such subscriptions for 100,000-1,000,000 shares ($100,000 -
$1,000,000) or more have not been received within the Offering Period (as
defined in paragraph 3.6 below), prompt remittance (within 10 days following
termination of the offering) of the Proceeds deposited in the Escrow Account
shall be made by the Escrow Agent to the subscribers at their respective
addresses shown on the list of subscriber names, addresses and social security
numbers delivered to the Escrow Agent pursuant to paragraph 1 in the amounts
shown thereon and without deductions of any kind or character. Additionally, any
interest which shall be accrued on the Proceeds during the period of this
Agreement shall concurrently be paid to the subscribers in proportion to their
respective subscriptions (taking into account time of deposit and amount).
3.3 Prior to delivery of the escrowed Proceeds to the Issuer as described
above, the Issuer shall have any title to or interest in the Proceeds on deposit
in the Escrow Account or in any interest earned thereon and such Proceeds and
interest shall under no circumstances be subject to the liabilities or
indebtedness of the Issuer.
3.4 The Escrow Agent shall not be responsible for investment management of
the subscription funds deposited with it. Instead, the Issuer shall cause all
Proceeds deposited with it pursuant to this Agreement to be
maintained and invested as the Issuer shall from time to time direct by written
instrument delivered to the Escrow Agent, in certificates of deposit, savings
accounts (of banks including the Escrow Agent) or direct United States
Government obligations which can be readily liquidated on twenty-four hours
notice so that 100% of the Proceeds so deposited with interest thereon can, if
necessary, be returned to subscribers in accordance with paragraph 3.2 above. It
is expressly agreed that the Escrow Agent is not guaranteeing that any interest
or profits will accrue on the subscription funds deposited with it. If the 100%
of the Proceeds so deposited are not realized upon such liquidation, the Issuer
shall pay the difference into the Escrow Account for distribution to the
subscribers. The Escrow Agent shall incur no liability for any loss suffered so
long as the Escrow Agent follows such directions.
3.5 At any time prior to the termination of this Agreement, for whatever
reason, the Issuer may notify the Escrow Agent that a Subscription Agreement of
a subscriber has not been accepted or has only been partially accepted, and the
Issuer may direct the Escrow Agent to return as soon thereafter as may be
practicable any Proceeds held in the Escrow Account for the benefit of such
subscriber directly to such subscriber, without interest. If any check
transmitted to the Escrow Agent in connection with a subscription shall remain
uncollected for any reason, the Escrow Agent shall return such check, together
with any other material or documents received by it in connection with the
subscription, to the Issuer.
3.6 The "Offering Period" shall mean until September 30, 2002 unless
extended and in no case later than December 31, 2002, and subject to earlier
termination. The Issuer shall give the Escrow Agent prompt notice of when the
Offering Period commences.
3.7 The Escrow Agent shall not be obligated to inquire as to the form,
manner of execution or validity of any documents herewith or hereafter deposited
pursuant to the provisions hereof, nor shall the Escrow Agent be obligated to
inquire as to the identity, authority or rights of the persons executing the
name. In case of conflicting demands upon it, the Escrow Agent may withhold
performance under this Agreement until such time as said conflicting demands
shall have been withdrawn or the rights of the respective parties shall have
been settled by court adjudication, arbitration, joint order or otherwise.
3.8 The Escrow Agent shall not be required to separately record on its
books the name, address and amount of each subscription as received, but shall
keep the lists delivered to it pursuant to paragraph 1 above.
4. Fees and Expenses of Escrow Agent. The fees and expenses of the Escrow
Agent shall be fixed at $500.
5. Liability of Escrow Agent. The Escrow Agent shall not be liable for any
action taken or omitted by it in good faith in accordance with the advice of its
counsel and in no event shall it be liable or responsible except for its won
negligence or willful misconduct. The Escrow Agent shall not be responsible for
any loss to the Proceeds resulting from the investment thereof in accordance
with the terms of this Agreement.
6. Indemnification of Escrow Agent. The Issuer agrees to indemnify and hold
harmless the Escrow Agent and its officers, employees and agents from and
against reasonable fees and expenses of the Escrow Agent, including but not
limited to judgments, reasonable attorneys' fees and other liabilities which the
Escrow Agent may incur or sustain by reason of or in connection with this
Agreement.
7. Representations and Warranties of the Issuer. The Issuer warrants to and
agrees with the Escrow Agent that, unless otherwise expressly set forth in this
Agreement, there is no security interest in the Proceeds or any part thereof; 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 Proceeds or any part thereof; and the Escrow Agent shall have
no responsibility at any time to ascertain whether or not any security interest
exists in the Proceeds or any part thereof or to file any financing statement
under the Uniform Commercial Code with respect to the Proceeds or any part
thereof.
8. Escrow Agent's Compliance with Court Orders, Etc. If any property
subject hereto is at any time attached, garnished or levied upon under any court
order, or in case the payment, assignment, transfer, conveyance or delivery of
any such property shall be stayed or enjoined by any court order or in case any
order, writ, judgment or decree shall be made or entered by any court affecting
such property, or any part hereof, then in any of such events, the escrow Agent
is authorized to rely upon and comply with any such order, writ judgment or
decree about which it is advised by legal counsel of its own choosing is binding
upon it, and if it complies with any such order, writ judgment or decree, it
shall not be liable to any of the parties hereto or to any other person, firm or
corporation by reason of such
compliance, even though such order, writ, judgment or decree may be subsequently
reversed, modified, annulled, set aside or vacated.
9. Resignation of Escrow Agent. The Escrow Agent may resign by giving ten
days written notice by certified mail, return receipt requested, sent to the
undersigned at their respective addresses herein set forth; and thereafter,
subject to the provisions of the preceding paragraph hereof shall deliver all
remaining deposits in the Escrow Account to a successor escrow agent acceptable
to all other parties hereto, which acceptance shall be evidenced by the joint
written and signed order of the undersigned. If no such order is received by the
Escrow Agent within thirty days after mailing such notice, it is unconditionally
and irrevocably authorized and empowered to send any and all items deposited
hereunder by registered mail to the respective depositors thereof.
10. Amendments. The Escrow Agent's duties and responsibilities shall be
limited to those expressly set forth in this Agreement and shall not be subject
to, nor obliged to recognize, any other agreement between, or direction or
instruction of, any or all of the parties hereto unless reference thereto is
made herein; provided, however, with the Escrow Agent's written consent, this
Agreement may be amended at any time or times by an instrument in writing signed
by all of the undersigned.
11. Governing Law. This Agreement shall be construed, enforced and
administered in accordance with the laws of the State of Florida applicable to
contracts made and to be performed in that State.
12. Effectiveness. This Agreement shall not become effective (and the
Escrow Agent shall have no responsibility hereunder except to return the
property deposited in the Escrow Account to the subscribers) until the Escrow
Agent shall have received a certificate as to the names and specimen signatures
of the Issuer and shall have advised each of the Issuers in writing that the
same are in form and substance satisfactory to the Escrow Agent.
13. Termination. This agreement shall terminate upon completion of the
obligations provided in either paragraphs 3.1 or 3.2 hereof or as otherwise
provided by written instruction from the Issuer to the Escrow Agent.
14. Notices.
14.1 Subject to the provisions of paragraph 14.2 thereof, any notice
required or permitted to be given hereunder shall be effective when delivered by
messenger, or dispatched by certified mail, return receipt requested, cable or
telex, to the respective party at its address specified below, namely if to
Mintmire & Associates, addressed to it at 000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxx
Xxxxx, Xxxxxxx 00000 Attn: Xxxxxx X. Xxxxxxxx and if to the Issuer at 000
Xxxxxxxx Xxxxxx - PMB 000, Xxxx Xxxx Xxxxx, Xxxxxxx 00000, Attn: Xxxxxxx
Xxxxxxxxxx, or to such other address as such party may have furnished in writing
to each of the other parties hereto.
14.2. Any notice which the Escrow Agent is required or desires to give
hereunder to any of the undersigned shall be in writing and may be given by
mailing the same to the address of the undersigned (or to such other address as
said undersigned may have theretofore substituted by written notification to the
Escrow Agent), by certified mail, return receipt requested, postage prepaid.
Notices to or from the Escrow Agent hereunder shall be in writing and shall not
be deemed to be given until actually received by the Escrow Agent or by the
person to whom it was mailed, respectively. Whenever under the terms hereof the
time for giving notice or performing an act falls upon a Saturday, Sunday or
bank holiday, such time shall be extended to the Escrow Agent's next business
day.
IN WITNESS WHEREOF the parties has set their hand and seal effective on the
date first above written.
Mintmire & Associates, Escrow Agent
By: /s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
New Millenium Packaging Inc., Issuer
By: /s/ Xxxxxxx Xxxxxxxxxx
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Xxxxxxx Xxxxxxxxxx
