Exhibit 99.9
ESCROW AGREEMENT
THIS AGREEMENT is made and entered into as of February 17, 2000, by and
among XXXXXX XXXXXXXX, L.L.P. (the "Escrow Agent"), MAY XXXXX GROUP (the
"Placement Agent" ) and CELERITY SYSTEMS, INC. (the "Company").
RECITALS
The Company proposes to offer for sale to investors through the Placement
Agent up to $_________ of Convertible Debentures (the "Securities") in one
tranche of at least $___________ (the "Minimum") resulting in given proceeds to
the Company of up to $_______________ (the "Proceeds").
The Placement Agent intends to sell the Securities as the Company's agent
on a best efforts all-or-none basis (the "Offering").
The Company and Placement Agent desire to establish an escrow account in
which funds received from subscribers will be deposited pending completion of
the Escrow Period. XXXXXX XXXXXXXX, L.L.P. agrees to serve as Escrow Agent in
accordance with the terms and conditions set forth herein.
AGREEMENT
NOW THEREFORE, in consideration of the foregoing, 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 an escrow account, which escrow
account shall be entitled, CELERITY SYSTEMS/MAY XXXXX ESCROW ACCOUNT (the
"Escrow Account"). The Placement Agent will instruct subscribers to wire funds
to the account of the Escrow Agent as follows:
Bank: First Union National Bank
ABA /Routing # ______________
Account # ___________________
Reference Sub-Account # 1040A-00, Celerity Systems/May Xxxxx
Account Name: Celerity Systems/May Xxxxx Escrow Account
Only wire transfers shall be accepted.
2. Escrow Period. The Escrow period (the "Escrow Period") shall begin with the
commencement of the Offering and shall terminate upon the earlier to occur of
the following dates:
A. The date upon which the Escrow Agent confirms that its has received in
the Escrow Account gross proceeds of $______________________ in deposited, funds
(the "Maximum");
B. The expiration of ten (10) days from the date of commencement of the
Offering (unless extended by mutual written agreement between the Company and
the Placement Agent with a copy of such extension to the Escrow Agent); or
C. The date upon which a determination is made by the Company and the
Placement Agent to terminate the offering prior to the sale of the Maximum.
During the Escrow Period, the Company is aware and understands that it is not
entitled to any funds received into escrow and no amounts deposited in the
Escrow Account shall become the property of the Company or any other entity, or
be subject to the debts of the Company or any other entity.
3. Deposits into the Escrow Account. The Placement Agent 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.
4. Disbursements from the Escrow Account. At such time as Escrow Agent has
collected and deposited instruments of payment in the total amount of the
Minimum and any amounts up to the Maximum, Escrow Agent shall notify the Company
and the Placement Agent. The Escrow Agent will continue to hold such funds until
Placement Agent and Company jointly notify Escrow Agent in writing as to the
disbursement of funds pursuant to a closing statement signed by each of the
Placement Agent and the Company (the "Closing Statement"). In disbursing such
funds, Escrow Agent is authorized to rely upon such Closing Statement from
Company and Placement Agent and may accept any signatory from the Company listed
on the signature page to this Agreement and any signature from the Placement
Agent that Escrow Agent already has on file.
In the event the Escrow Agent does not receive the minimum deposits
totaling $200,000 prior to the expiration of the Escrow Period (the "Minimum
Deposits"), the Escrow Agent shall notify the Company and the Placement Agent.
Upon receipt of payment instructions from the Company, the Escrow Agent shall
refund to each subscriber with interest the amount received from each
subscriber, without deduction, penalty, or expense to the subscriber. The
purchase money returned to each subscriber shall be free and clear of arty and
all claims of the Company or any of its creditors.
In the event the Escrow Agent does receive deposits totaling the Minimum
prior to expiration of the Escrow Period, in no event will the Escrow Amount be
released to the Company until such amount is received by the Escrow Agent in
collected funds. 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.
5. Collection Procedure. The Escrow Agent is hereby authorized to forward
each wire for collection and, upon collection of the proceeds of each wire
deposit the collected proceeds in the Escrow Account.
Any wires returned unpaid to the Escrow Agent shall be returned to the
Placement Agent. In such cases, the Escrow Agent will promptly notify the
Company for 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 or
wire 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 wire for collection, the Escrow Agent shall promptly issue a check
or wire the amount of the subscriber's wire to the rejected subscriber after the
Escrow Agent has cleared such funds. If the Escrow Agent has not yet submitted a
rejected subscriber's wire for collection, the Escrow Agent shall promptly remit
the subscriber's wire directly to the subscriber. The Company shall provide
payment instructions to the Escrow Agent.
6. 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 investment in money market
instruments.
7. Compensation of Escrow Agent. The Company shall, pay the Escrow Agent a
fee for its escrow services. If it is necessary for the Escrow Agent to return
funds to the subscribers, the Company shall pay to the Escrow Agent an
additional amount sufficient to reimburse it for its fees and actual cost in
disbursing such funds. However, if funds are refunded to subscribers, 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
chargeable to the principal amount of funds on deposit in the Escrow Account.
8. General provisions.
(a) (i) Escrow Agent shall not be liable to anyone for any damages, losses, or
expense which they may incur as a result of any act or omission of Escrow Agent,
unless such damages, losses, or expenses are caused by Escrow Agent's willful
misconduct or gross negligence. Accordingly, Escrow Agent shall not incur any
such liability with respect to (i) any action taken or omitted in good faith
upon the advice of Escrow Agent's counsel or counsel for any other party hereto,
given with respect to any question relating to the duties and responsibilities
of Escrow Agent under this Agreement or (ii) any action taken or omitted in
reliance upon any instrument, including execution, or the identity or authority
of any person executing such instrument, its validity and effectiveness, but
also as to the truth and accuracy of any information contained therein which
Escrow Agent shall, in good faith, believe to be genuine, to have been signed by
a proper person or persons and to conform to the provisions of this Escrow
Agreement.
(ii) Escrow Agent shall not be bound in any way by any contract or agreement
between other parties hereto, whether or not it has knowledge of any such
contract or agreement or of its terms or conditions.
(iii) The parties hereto, jointly and severally, hereby agree to indemnify and,
hold harmless Escrow Agent against any and all costs, losses, claims, damages,
liabilities, expenses, including reasonable costs of investigation, court costs,
and attorney's fees, and disbursements, which may be imposed upon Escrow Agent
in connection with its acceptance of appointment as Escrow Agent hereunder,
including any litigation arising from this Escrow Agreement or involving the
subject matter hereof, and all such costs, expenses and disbursements shall be
deducted from the income (if sufficient) or paid by the parties hereto, except
for matters arising from the gross negligence or willful misconduct of Escrow
Agent.
(iv) As security for such fees and expenses of Escrow Agent and any and all
losses, claims, damages, liabilities and expenses incurred by Escrow Agent in
connection with its acceptance of appointment hereunder, and with performance of
the agreements herein contained, the Escrow Agent is hereby given a lien upon
all assets held by Escrow Agent hereunder, which lien shall be prior to all
other liens upon or claims against such assets, except for claims of subscribers
in the event the Minimum is not raised.
(b) (i) In the event of any disagreement among any of the parties to this
Agreement, or among them or any other person resulting in adverse claims and
demands being made in connection with or from any property involved herein or
affected hereby, Escrow Agent shall be entitled to refuse to comply with any
such claims or demands as long as such disagreement may continue, and in so
refusing, shall make no delivery or other disposition of any property then held
by it under this Escrow Agreement , and in so doing the Escrow Agent shall be
entitled to continue to refrain from acting until (a) the fight of adverse
claimants shall have been finally settled by binding arbitration, or finally
adjudicated in a court assuming and having jurisdiction, of the property
involved herein or affected hereby or (b) all differences shall have been
adjusted by agreement and Escrow Agent shall have been notified in writing of
such agreement signed by the parties hereto.
(ii) In the event of such disagreement (or resignation under the terms of this
Agreement), Escrow Agent may, but need not, tender into the registry or custody
of any court of competent jurisdiction all, money or property in its hands under
the terms of this Agreement, together with such legal proceedings as it deems
appropriate and thereupon to be discharged from all further duties under this
Escrow Agreement. The filing of any such legal proceeding shall not deprive
Escrow Agent of its compensation earned prior to such filing.
(iii) Escrow Agent shall have no obligation to take any legal, action in
connection with this Escrow Agreement or towards its enforcement, or to appear
in, prosecute or defend
any action or legal proceeding which would or might involve it in any cost,
expense, loss or liability unless security and indemnity shall be furnished.
(c) This Agreement contains the entire understanding between and among the
parties hereto, and shall be binding upon and inure to the benefit of such
parties, and subject to its terms, their respective successors, heirs,
assigns and legal representatives. Any corporation into which Escrow Agent
may be merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to
which Escrow Agent shall be a party, or any corporation to which
substantially all the corporate trust business of Escrow Agent may be
transferred, shall., subject to the terms of the Escrow Agreement, be
Escrow Agent under this Escrow Agreement without further act.
(d) This Escrow Agreement is being delivered in and shall be governed by and
construed and enforced in accordance with the laws of the State of Georgia
without giving effect to the principals or rules governing conflicts of
laws.
(e) Notices, requests, demands or other communications required or permitted
under this Escrow Agreement will be in writing and will be deemed given
when actually delivered, received via facsimile notice for which a
confirmation is received, or the third business day after said notice has
been sent by certified mail, postage prepaid, return receipt requested to:
If to Escrow Agent:
Xxxxxx Xxxxxxxx
Suite 6
0000 Xxxxxxxxxx Xxx
Xxxxx, Xxx Xxxxxx 00000
If to Placement Agent:
May Xxxxx Group, Inc.
Xxxxx 0000
Xxx Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxxxxx
Facsimile Number: (000) 000-0000
If to Company:
Celerity Systems, Inc.
000 Xxxxxxxxx Xxxx Xxxxx
Xxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
or such other address as a party may specify in writing to other parties
pursuant hereto.
(f) This Escrow Agreement shall not be modified, revoked, released or
terminated except in writing and signed by parties hereto.
(g) Should, at any time, any attempt be made to modify this Escrow Agreement
in a manner that would increase the duties and responsibilities of Escrow
Agent, or to modify this Escrow Agreement in any matter which Escrow Agent
shall deem undesirable, or at any other time, Escrow Agent may resign by
notifying the parties in writing, by certified mail to their respective
addresses here and above set forth. Until (i) the acceptance by such
successor Escrow Agent as shall be appointment by such parties; or (ii) 60
days following the date upon which notice was mailed, whichever occurs
sooner, Escrow Agent's only remaining obligation shall be to perform its
duties hereunder in accordance with the terms of this Escrow Agreement. If
said 60 days have passed without the acceptance by such successor Escrow
Agent as shall have been appointed by such parties, then the Escrow Agent
may exercise its rights under item 8(c) (ii) of this Agreement.
(h) No Implied Duties. The Escrow Agent undertakes to perform only such duties
as are expressly set forth herein and no additional duties or obligations
shall be implied hereunder. The parties hereby acknowledge that the Escrow
Agency is serving as the Escrow Agent of the offering for the limited
purposes set forth herein, and hereby agree that they will not represent
or imply that the Escrow Agent, by serving as the escrow agent hereunder
or otherwise, has investigated the desirability or advisability of this
investment, or has approved, endorsed or passed upon the merits of this
offering or any related, offering Any breach or violation of this
paragraph (i) shall be grounds for the immediate resignation by the Escrow
Agent. This Escrow Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed to be an original, but all of
which together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have hereunto set their hands and seals
the day and year above set forth.
ESCROW AGENT:
XXXXXX XXXXXXXX, LLP
By:
Name: Xxxxx Xxxxxxxx, Esq.
PLACEMENT AGENT: MAY XXXXX GROUP, INC.
By:
Name:
Title:
COMPANY:
CELERITY SYSTEMS, INC.
By:
Name: Xxx Van Meter
Title: President & CEO
