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Exhibit 4.5
ESCROW AGREEMENT
This Escrow Agreement (the "Escrow Agreement") dated as of
_______________, 2001 is by and between Bluegate Corporation, a Delaware
corporation (the "Company") and _________________ (the "Escrow Agent").
RECITALS
WHEREAS, the Company is offering for sale to the public 200,000 units
(the "Units"), each Unit consisting of one share of the Company's common stock,
and one Class A and one Class B redeemable common stock purchase warrant, at a
subscription price of $.50 per Unit;
WHEREAS, the Units are being offered on a "best efforts, all or none"
basis in accordance with the terms and conditions set forth in the prospectus
dated __________, 2001 (the "Prospectus") included in the Company's Registration
Statement on Form SB-2 (SEC File No. 333-_____), as amended (the "Registration
Statement");
WHEREAS, the public offering of the Units is subject to and is being
conducted in accordance with Rule 419 of the Securities Act of 1933 (the
"Securities Act") pertaining to public offerings by companies commonly referred
to as "blank check companies;"
WHEREAS, the public offering of the Units commenced on the date of the
Prospectus and will end the earlier of the receipt and acceptance by the Company
of subscriptions for 200,000 Units or 90 days after the date of the Prospectus;
WHEREAS, subscribers for Units shall deposit with the Escrow Agent, by
check or wire transfer payment, the aggregate subscription price for the Units
subscribed for;
WHEREAS, all funds representing the subscription price of Units
subscribed for shall be deposited and held in an escrow account (the "Escrow
Account") established and maintained by the Escrow Agent;
WHEREAS, if subscriptions for 200,000 Units have not been received and
accepted by the Company and $100,000 of funds have not been deposited into the
Escrow Account within 90 days after the date of the Prospectus, all funds and
interest, if any, shall be returned promptly to the subscribers;
WHEREAS, if subscriptions for 200,000 Units have been received and
accepted by the Company and $100,000 of funds have been deposited into the
Escrow Account within 90 days after the date of the Prospectus, the Company will
deposit into the Escrow Account stock and warrant certificates in the name of
each subscriber representing the number of Units purchased from the Company;
WHEREAS, if subscriptions for 200,000 Units have been received and
accepted by the Company and $100,000 of funds have been deposited into the
Escrow Account within 90 days after the date of the Prospectus, the escrowed
funds and the stock and warrant certificates deposited by the Company shall be
held in the Escrow Account for a period thereafter of up to 18 months after the
date of the Prospectus (the "Post-Offering Period") until the escrowed funds and
the escrowed stock and warrant certificates are released and delivered in
accordance with the terms and conditions set forth herein;
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WHEREAS, if any of the warrants are exercised while they are being held
in the Escrow Account, the funds representing the exercise price and the
certificates representing the shares purchased upon exercise shall be deposited
and held in the Escrow Account and may not be released or delivered except in
accordance with the terms and conditions set forth herein;
WHEREAS, the escrowed Units and any shares issued upon the exercise of
any warrants being held in the Escrow Account, may not be transferred except in
accordance with the terms and conditions set forth herein; and
WHEREAS, the Escrow Agent agrees to serve as escrow agent in accordance
with the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual agreements set forth
below, the parties hereby agree as follows:
1. Appointment of Escrow Agent and Establishment of Escrow Account.
The Company hereby appoints Escrow Agent as the escrow agent hereunder in
accordance with the terms and conditions set forth herein, and the Escrow Agent
hereby accepts such appointment. The Escrow Agent shall establish a separate
escrow account entitled "____________________" (the "Escrow Account"). The
Escrow Account shall be maintained and administered and the escrowed funds and
the escrowed securities shall be released and delivered in accordance with the
terms and conditions set forth herein.
2. Deposit of Funds.
(a) All funds received by the Escrow Agent from subscribers
for the Units shall be deposited and held in the Escrow Account. The Warrant
Agent is hereby empowered on behalf of the Company to endorse and collect all
checks, drafts, or other instruments received on account of subscriptions for
Units. Any check returned unpaid to the Warrant Agent shall be returned by the
Warrant Agent to the subscriber. In such cases, the Warrant Agent shall promptly
notify the Company of such return. The Warrant Agent shall provide information
to the Company as to the funds deposited into the Escrow Account and the
collection status of such funds. As used herein, "collection" means the normal
process by which a bank clears checks and collects funds thereon. The Company
shall provide information to the Warrant Agent as to each subscriber's name,
address, number of Units subscribed for and the subscription price paid
therefor, and such other information concerning the subscribers as the Warrant
Agent may reasonably request.
(b) If the Company rejects any subscription for which the
Warrant Agent has collected funds from the subscriber, the Warrant Agent shall
promptly issue a refund check to the rejected subscriber. If the Company rejects
any subscription for which the Warrant Agent has not collected funds but has
submitted the subscriber's check for collection, the Warrant Agent shall, upon
receipt of written instructions from the Company, promptly issue a check for the
amount of the subscriber's check to the rejected subscriber after the Warrant
Agent has cleared such funds. If the Warrant Agent has not submitted a rejected
subscriber's check for collection, the Warrant Agent shall, upon receipt of
written instructions from the Company, promptly remit the subscriber's check
directly to the subscriber.
(c) All funds received by the Escrow Agent pursuant to this
Escrow Agreement and deposited and held in the Escrow Account may be invested in
short-term United States government securities, including treasury bills, cash
and cash equivalents [or in a bank money market account].
3. Status of Funds. Until all funds in the Escrow Account are
disbursed in accordance with the terms and conditions of this Escrow Agreement,
all funds deposited into the Escrow Account shall be
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considered the property of the subscribers. The funds deposited and held in the
Escrow Account shall not become the property of the Company or subject to its
debts or obligations, unless and until such funds have been disbursed to the
Company in accordance with the terms and conditions of this Escrow Agreement.
The Escrow Agent shall not make any disbursements of funds from the Escrow
Account except as expressly provided herein.
4. Return of Funds if the Offering is not Fully Subscribed. If
subscriptions for all 200,000 Units have not been received and accepted by the
Company and $100,000 of funds have not been deposited into the Escrow Account
within 90 days after the date of the Prospectus, all funds and interest thereon,
if any, shall be returned promptly to the subscribers without deduction,
penalty, or expense.
5. Deposit of Certificates if the Offering is Fully Subscribed. If
subscriptions for all 200,000 Units have been received and accepted by the
Company and $100,000 of funds have been deposited into the Escrow Account within
90 days after the date of the Prospectus, the Company shall deposit into the
Escrow Account share certificates and warrant certificates issued in the names
of each subscriber for the number of Units sold by the Company to each
subscriber. The share certificates and warrant certificates shall be held in the
Escrow Account during the Post-Offering Period and shall not be released or
delivered by the Escrow Agent except as expressly provided herein.
6. Retention of Funds in the Escrow Account if the Offering is
Fully Subscribed.
If subscriptions for all 200,000 Units have been received and
accepted by the Company and $100,000 of funds have been deposited into the
Escrow Account within 90 days after the date of the Prospectus, the funds shall
be held in the Escrow Account during the Post-Offering Period and shall not be
disbursed by the Escrow Agent except as expressly provided herein.
7. Exercise of Warrants Held in the Escrow Account.
(a) During the Post-Offering Period, the Escrow Agent shall
promptly deposit and hold in the Escrow Account:
(i) all funds which the Company's warrant agent has
received from a warrant holder as payment of the exercise price of warrants
being held in the Escrow Account and which the Company's warrant agent has
delivered to the Escrow Agent; and
(ii) all share certificates representing the warrant
shares purchased by the warrant holder upon exercise of warrants being held in
the Escrow Account and which the Company's warrant agent and/or transfer agent
has delivered to the Escrow Agent.
(b) The Escrow Agent shall not release or deliver the funds
and share certificates deposited and held in the Escrow Account on account of
the exercise of warrants being held in the Escrow Account except as expressly
provided herein.
8. Transfer of Securities Held in the Escrow Account. The shares
and warrants held in the Escrow Account, including any shares deposited and held
in the Escrow Account on account of the exercise of warrants being held in the
Escrow Account, shall not be transferred other than by will or the laws of
descent and distribution, or pursuant to a qualified domestic relations order as
defined by the Internal Revenue Code of 1986 as amended or Title I of the
Employee Retirement Income Security Act, or the rules thereunder. In no event,
however, shall any shares or warrants held in the Escrow Account be released or
delivered by the Escrow Agent except as expressly provided elsewhere herein.
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9. Distributions from the Escrow Account.
(a) The Escrow Agent shall make distributions of the funds
held in the Escrow Account during the Post-Offering Period, including any funds
deposited on account of the exercise of any warrants during the Post-Offering
Period, in accordance with the instructions set forth in Schedule A attached
hereto.
(b) The Escrow Agent shall make distributions of the share
certificates and warrant certificates held in the Escrow Account during the
Post-Offering Period, including any share certificates deposited on account of
the exercise of any warrants during the Post-Offering Period, in accordance with
the instructions set forth in Schedule B attached hereto.
(c) The parties agree that all records relating to
transactions made pursuant to the Escrow Agreement and the Escrow Account shall
be available, at all reasonable times, for inspection, examination and
reproduction by any party hereto, or any representative of any of the parties
hereto, and such persons are authorized to examine and audit the Escrow Account
pursuant hereto and the Escrow Agent is expressly authorized and directed to
permit such examination and audit.
10. Exculpation and Indemnification of Escrow Agent.
10.1 The Escrow Agent shall have no duties or
responsibilities other than those expressly set forth herein. The Escrow Agent
shall have no duty to enforce any obligation of any person to make any payment
or delivery, or to direct or cause any payment or delivery to be made, or to
enforce any obligation of any person to perform any other act. The Escrow agent
shall be under no liability to the other parties hereto or to anyone else by
reason of any failure on the part of any party hereto or any maker, guarantor,
endorser or other signatory of any document or any other person to perform such
person's obligations under such document. Except for amendments to this
Agreement referred to below, and except for instructions given to the Escrow
Agent by the Company and the subscribers relating to the Escrow Account, the
Escrow Agent shall not be obligated to recognize any agreement between any and
all of the persons referred to herein, notwithstanding that references thereto
may be made herein and whether or not it has knowledge thereof.
10.2 The Escrow Agent shall not be liable to the Company or
to anyone else for any action taken or omitted by it, or any action suffered by
it to be taken or omitted, in good faith and in the exercise of its own best
judgment. The Escrow Agent may rely conclusively and shall be protected in
acting upon any order, notice, demand, certificate, opinion or advice of counsel
(including counsel chosen by the Escrow Agent), statement, instrument, report or
other paper or document (not only as to its due execution and the validity and
effectiveness of its provisions, but also as to the truth and acceptability of
any information therein contained), which is believed by the Escrow Agent to be
genuine and to be signed or presented by the proper person or persons. The
Escrow Agent shall not be bound by any notice or demand, or any waiver,
modification, termination or rescission of this Escrow Agreement or any of the
terms thereof, unless evidenced by a writing delivered to the Escrow Agent
signed by the proper party or parties and, if the duties or rights of the Escrow
Agent are affected, unless it shall give its prior written consent thereto.
10.3 The Escrow Agent shall not be responsible for the
sufficiency or accuracy of the form of, or the execution, validity, value or
genuineness of, any document or property received, held or delivered by it
hereunder, or of any signature or endorsement thereon, or for any lack of
endorsement thereon, or for any description therein, nor shall the Escrow Agent
be responsible or liable to the other parties hereto or to anyone else in any
respect on account of the identity, authority or rights of the persons executing
or delivering or purporting to execute or deliver any document or property
pursuant to the
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provisions of this Agreement. Except as specifically provided for herein, the
Escrow Agent shall have no responsibility with respect to the use or application
of any funds or other property paid or delivered by the Escrow Agent pursuant to
the provisions hereof. The Escrow Agent shall not be liable to the Company or to
anyone else for any loss which may be incurred by reason of any investment of
any monies which it holds hereunder provided the Escrow Agent has complied with
the provisions of Section 2 hereunder.
10.4 The Escrow Agent shall have the right to assume in the absence
of written notice to the contrary from the proper person or persons that a fact
or an event by reason of which an action would or might be taken by the Escrow
Agent does not exist or has not occurred, without incurring liability to the
other parties hereto or to anyone else for any action taken or omitted, or any
action suffered by it to be taken or omitted, in good faith and in the exercise
of its own best judgment, in reliance upon such assumption.
10.5 To the extent that the Escrow Agent becomes liable for the
payment of taxes, including withholding taxes, in respect of income derived from
the investment of funds held hereunder or any payment made hereunder, the Escrow
Agent may pay such taxes. The Escrow Agent may withhold from any payment of
monies held by it hereunder such amount as the Escrow Agent estimates to be
sufficient to provide for the payment of such taxes not yet paid, and may use
the sum withheld for that purpose. The Escrow Agent shall be indemnified and
held harmless against any liability for taxes and for any penalties or interest
in respect of taxes, on such investment income or payments in the manner
provided in Section 10.6.
10.6 The Escrow Agent will be indemnified and held harmless by the
Company from and against any and all expenses, including reasonable counsel fees
and disbursements, or loss suffered by the Escrow Agent in connection with any
action, suit or other proceeding involving any claim, or in connection with any
claim or demand, which in any way, directly or indirectly, arises out of or
relates to this Escrow Agreement, the services of the Escrow Agent hereunder,
the monies or other property held by it hereunder or any income earned from
investment of such monies; provided, that such expenses or loss are not as a
result of the Escrow Agent acting, or omitting to take action, in bad faith or
with willful misconduct or gross negligence. Promptly after the receipt by the
Escrow Agent of notice of any demand or claim or the commencement of any action,
suit or proceeding, the Escrow agent shall, if a claim in respect thereof is to
be made against the Company, notify the Company thereof in writing, but the
failure by the Escrow Agent to give such notice shall not relieve the Company
from any liability which the Company may have to the Escrow Agent hereunder. For
the purposes hereof, the term "expense or loss" shall include all amounts paid
or payable to satisfy any claim, demand or liability, or in settlement of any
claim, demand, action, suit or proceeding settled with the express written
consent of the Escrow Agent, and all costs and expenses, including, but not
limited to, reasonable counsel fees and disbursements, paid or incurred in
investigating or defending against any such claims, demand, action, suit or
proceeding.
11. Termination of Escrow Agreement and Resignation of Escrow Agent.
11.1 This Escrow Agreement shall terminate on the final
disposition of the monies and property held in the Escrow Account hereunder,
provided that the rights of the Escrow Agent and the obligations of the other
parties hereto under Sections 10 and 12 shall survive the termination hereof.
11.2 The Escrow Agent may resign at any time and be
discharged from its duties as Escrow Agent hereunder by giving the Company and
the subscribers at least 30 days' notice thereof. As soon as practicable after
its resignation, the Escrow Agent shall turn over to a successor escrow agent
appointed by the Company all monies and property held hereunder upon
presentation of the document appointing the new escrow agent and its acceptance
thereof. If no new Escrow Agent is so appointed
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within the 60-day period following such notice of resignation, the Escrow Agent
may deposit the aforesaid monies and property with any court it deems
appropriate.
12. Form of Payments by Escrow Agent.
12.1 Any payments by the Escrow Agent to subscribers or to
the persons other than the Company pursuant to the terms of this Escrow
Agreement shall be made by check, payable to the order of each respective
subscriber or other person.
12.2 All amounts referred to herein are expressed in United
States Dollars and all payments by the Escrow Agent shall be made in such
dollars.
13. Compensation of Agent. For services rendered, the Escrow Agent
shall receive $_____ as compensation. The Escrow Agent shall also be entitled to
reimbursement from the Company for all expenses paid or incurred by it in the
administration of its duties hereunder, including, but not limited to, all
counsel, advisors' and agents' fees and disbursements and all reasonable taxes
or other governmental charges. No such fee, reimbursement for costs and
expenses, indemnification or any damages incurred by the Escrow Agent or any
monies whatsoever shall be paid out of or chargeable to the subscription funds
held in the Escrow Account.
14. Notices. Unless expressly provided herein to the contrary,
notices hereunder shall be in writing, and delivered by telecopier, overnight
express mail, first-class postage prepaid, delivered personally or by receipted
courier service. All such notices which are mailed shall be deemed delivered
upon receipt if the addressee is the Escrow Agent, but shall be deemed delivered
upon mailing if otherwise, all such notices shall be addressed as follows (or to
such other address as any party hereto may from time to time designate by notice
duly given in accordance with this paragraph):
If to the Company, to:
Bluegate Corporation
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
If to the Escrow Agent, to:
15. Miscellaneous.
(a) Choice of Law and Jurisdiction. This Escrow Agreement
shall be governed by and construed in accordance with the law of the State of
_________, without regard to its conflicts of laws principals. The parties to
this Agreement hereby agree that jurisdiction over such parties and over the
subject matter of any action or proceeding arising under this Agreement may be
exercised by a competent court of the State of _________ or by a United States
Court located in such state, exclusively. The parties agree that delivery or
mailing of any process or other papers in the manner provided herein, or in such
other manner as may be permitted by law, shall be valid and sufficient service
thereof.
(b) Benefits and Assignment. Nothing in this Agreement,
expressed or implied, shall give or be construed to give any person, firm or
corporation, other than the parties hereto
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and their successors and assigns, any legal claim under any covenant, condition
or provision hereof, all the covenants, conditions, and provisions contained in
this Agreement being for the sole benefit of the parties hereto and their
successors and assigns. No party may assign any of its rights or obligations
under this Escrow Agreement without (i) the written consent of all the other
parties, which consent may be withheld in the sole discretion of the party whose
consent is sought and (ii) the written agreement of the transferee that it will
be bound by the provisions of this Agreement.
(c) Counterparts. This Agreement may be executed in several
counterparts, each one of which shall constitute an original, and all
collectively shall constitute but one instrument.
(d) Amendment and Waiver. This Agreement may be modified
only by a written amendment signed by all the parties hereto, and no waiver of
any provision hereof shall be effective unless expressed in a writing signed by
the party to be charged.
(e) Headings. The headings of the sections hereof are
included for convenience of reference only and do not form part of this
Agreement.
(f) Entire Agreement. This Agreement contains the complete
agreement of the parties with respect to its subject matter and supersedes and
replaces any previously made proposals, representation, warranties or agreements
with respect thereto by any of the parties hereto.
IN WITNESS WHEREOF, the parties have duly executed this Escrow Agreement
as of the date first written above.
COMPANY
Bluegate Corporation
By:
------------------------------------
President
By:
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Secretary
ESCROW AGENT
By:
------------------------------------
By:
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SCHEDULE A
1. Release of Funds to the Company. Funds and interest, if any,
held in the Escrow Account shall be released to the Company in accordance with
the following:
(a) The Escrow Agent shall release to the Company, promptly
after the Company has deposited stock and warrant certificates representing the
200,000 Units into the Escrow Account, an amount equal to 10% of the funds held
in the Escrow Account.
(b) The Escrow Agent shall release to the Company the
balance of the funds held in the Escrow Account and interest, if any (after
deducting therefrom the amount of funds and interest, if any, disbursed to the
subscribers in accordance with the provisions of paragraph 2 below), promptly
upon receipt by the Escrow Agent of a certificate of an authorized officer of
the Company representing and warranting that:
(i) The Company has filed a post-effective amendment
to its Registration Statement (the "Post-Effective Amendment") with the
Securities and Exchange Commission ("SEC"); the Post-Effective Amendment has
been declared effective by the SEC; and within five business days after the
effective date of the Post-Effective Amendment, the Company has sent a copy of
the prospectus contained therein to the subscribers by first class mail or
equally prompt means;
(ii) Subscribers holding at least 80% of the Units
have elected to confirm their purchase of the Units within 45 business days
after the effective date of the Post-Effective Amendment; and
(iii) The Company has consummated a business
combination with an operating business in compliance with the requirements of
Rule 419 of the Securities Act within 18 months after the date of the
Prospectus.
2. Disbursement of Funds to the Subscribers. Funds and interest, if
any, held in the Escrow Account (after deducting therefrom the amount of funds
and interest, if any, released to the Company in accordance with the provisions
of paragraph 1(a) above) shall be disbursed to the subscribers in accordance
with the following:
(a) If the Company has not received written notification
from any subscriber by the 45th business day following the effective date of the
Post-Effective Amendment to the Company's Registration Statement that such
subscriber has elected to remain an investor, the Escrow Agent shall send to
such subscriber, within five business days, such subscriber's pro rata share of
the funds and interest, if any, held in the Escrow Account.
(b) If the Company has not consummated a business
combination meeting the requirements of Rule 419 of the Securities Act within 18
months after the date of the Prospectus, the Escrow Agent shall send to each
subscriber, within five business days after such date, each subscriber's pro
rata share of the funds and interest, if any, held in the Escrow Account.
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(c) For purposes of subparagraphs (a) and (b) of this
paragraph 2, all funds held in the Escrow Account on account of the exercise of
warrants being held in the Escrow Account, and interest thereon, if any (the
"Warrant Exercise Funds") shall be excluded in calculating each subscriber's pro
rata share of the funds and interest, if any, held in the Escrow Account on
account of the purchase of the Units. The Warrant Exercise Funds shall be
disbursed to the subscribers who exercised warrants during the Post-Offering
Period in accordance with the following:
(i) If by the 45th business day following the
effective date of the Post-Effective Amendment to the Company's registration
statement the Company has not received written notification from any subscriber
who exercised warrants during the Post-Offering Period that such subscriber has
elected to remain an investor, the Escrow Agent shall send to such subscriber,
within five business days, such subscriber's pro rata share of the Warrant
Exercise Funds held in the Escrow Account.
(ii) If the Company has not consummated a business
combination meeting the requirements of Rule 419 of the Securities Act within 18
months after the date of the Prospectus, the Escrow Agent shall send to each
subscriber who exercised warrants during the Post-Offering Period, within five
business days after such date, each such subscriber's pro rata share of the
Warrant Exercise Funds held in the Escrow Account.
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SCHEDULE B
1. Delivery of Certificates to the Subscribers. Share and warrant
certificates held in the Escrow Account shall be delivered to the subscribers in
accordance with the following:
(a) The Escrow Agent shall deliver to each subscriber
identified by the Company as having timely elected to remain an investor,
promptly after receipt by the Escrow Agent of the officer's certificate
described in paragraph 1(b) of Schedule A to the Escrow Agreement, the share and
warrant certificates registered in the name of each such subscriber. For
purposes of this paragraph 1, subscribers shall include subscribers who
exercised warrants during the Post-Offering Period.
2. Return of Certificates to the Company. Share and warrant
certificates held in the Escrow Account shall be returned to the Company in
accordance with the following:
(a) The Escrow Agent shall return all of the share and
warrant certificates to the Company if the Company has not consummated a
business combination with an operating business in compliance with the
requirements of Rule 419 of the Securities Act within 18 months after the date
of the Prospectus.
(b) The Escrow Agent shall return to the Company (i) all
share and warrant certificates registered in the name of any subscriber
identified in a notice from an authorized officer of the Company as not having
timely elected to remain an investor, provided that such subscriber's pro rata
share of the funds, and interest, if any, held in the Escrow Account on account
of the purchase of the Units has been returned to such subscriber in accordance
with paragraph 2(a) of Schedule A to the Escrow Agreement, and (ii) all share
certificates in the name of any subscriber who exercised warrants during the
Post-Offering Period and who is identified in a notice from an authorized
officer of the Company as not having timely elected to remain an investor,
provided that such subscriber's pro rata share of the Warrant Exercise Funds (as
defined in paragraph 2(c) of Schedule A to the Escrow Agreement) held in the
Escrow Account on account of the exercise of warrants during the Post-Offering
Period has been returned to such subscriber.
