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EXHIBIT 10.1
ESCROW AGREEMENT dated as
of the ___ day of
____________, 1997 (the
"Agreement") by and between
XXXXX XXXXX CAPITAL GROUP,
INC., a Florida corporation
(the "Company"), and
FIDUCIARY TRUST
INTERNATIONAL OF THE SOUTH
(the "Escrow Agent").
ESCROW AGREEMENT
The Company has entered into an Underwriting Agreement dated
_____________, 1997 (the "Underwriting Agreement") with FIRST CAMBRIDGE
SECURITIES CORPORATION, as representative to the underwriters named therein and
the underwriters named therein (the "Underwriter") wherein the Company has
agreed to sell through licensed dealers 1,700,000 shares of Common Stock, par
value $.0001 per share (the "Shares"),with an over-allotment option covering up
to 255,000 shares, as more fully described in the Company's definitive
Prospectus dated _____________, 1997 (the "Prospectus") comprising part of the
Company's Registration Statement on Form SB- 2 under the Securities Act of 1933,
as amended (File No. 333- 19401), declared effective on _______ __, 1997 (the
"Registration Statement").
The Company desires that the Escrow Agent accept eighty percent (80%)
of the Net Proceeds (as defined in the Prospectus) to be derived by the Company
from the sale of the Shares (the "Offering Proceeds"), to be held in escrow and
disbursed as hereinafter provided.
NOW, THEREFORE, in consideration of the premises and mutual covenants
hereinafter set forth, the parties hereto agree as follows:
1. Appointment of Escrow Agent. The Company hereby appoints the Escrow
Agent to act in accordance with and subject to the terms of this Agreement, and
the Escrow Agent hereby accepts such appointment and agrees to act in accordance
with and subject to such terms.
2. Establishment of Escrow Account. The Escrow Agent shall open an
interest bearing escrow account (the "Escrow Account") for the deposit of the
Offering Proceeds, subject to the terms and conditions of this Agreement.
3. Deposit of Offering Proceeds. Upon the closing of the sale of the
Shares as contemplated by the Underwriting Agreement, the Company shall deliver
to the Escrow Agent a certified or bank check in the amount of the Offering
Proceeds drawn to the order of the Escrow Agent or, alternatively, drawn to the
order of the Company but endorsed by the Company for collection by the Escrow
Agent and credit to the Escrow Account.
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4. Disbursement of the Escrow Account. Upon the earlier of (i) written
notification by the Company to the Escrow Agent of its need for all, or
substantially all, of the Offering Proceeds for the purpose of implementing, or
facilitating the implementation of, a Business Combination (as such term is
defined in the Prospectus); or (ii) the exercise by certain shareholders of the
Redemption Offer (as such term is defined in the Prospectus); or (iii) written
notification from the Company to the Escrow Agent to deliver the Offering
Proceeds to another escrow agent in accordance with Paragraph 5.7, then, in such
event, the Escrow Agent shall disburse the Escrow Account (inclusive of any
interest thereon) to the Company or its designees, whereupon the Escrow Agent
shall be released from further liability hereunder. In no event may the funds in
the Escrow Account, including any interest earned thereon, be used for expenses
associated with the evaluation and structuring of a contemplated Business
Combination.
5. Escrow Agent.
5.1 The Escrow Agent may act in reliance upon any writing or
instrument or signature which it, in good faith, believes to be genuine; may
assume the validity and accuracy of any statements or assertions contained in
such writing or instrument; and may assume that any person purporting to give
any writing, notice, advice or instruction in connection with the provisions
hereof has been duly authorized to do so. The Escrow Agent shall not be liable
in any manner for the sufficiency or correctness as to form, manner of
execution, or validity of any written instructions delivered to it; nor as to
the identity, authority, or rights of any person executing the same. The duties
of the Escrow Agent shall be limited to the safekeeping of the Escrow Account
and to disbursements of same in accordance with the provisions hereof. The
Escrow Agent undertakes to perform only such duties as are expressly set forth
herein, and no implied duties or obligations of the Escrow Agent shall be
implied by virtue of this Agreement.
5.2 The Escrow Agent may consult with counsel of its own
choice and shall have full and complete authorization and protection for any
action taken or suffered by it hereunder in good faith and in accordance with
the opinion of such counsel. The Escrow Agent shall not be liable for any
mistakes of fact or error of judgment, or for any acts or omissions of any kind
unless caused by its willful misconduct or gross negligence.
5.3 The Escrow Agent shall be indemnified and held harmless by
the Company from and against any reasonable expenses, including counsel fees and
disbursements, or loss suffered by the Escrow Agent in connection with any third
party 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 Agreement, the services of the Escrow Agent hereunder, the
monies or other property held by it hereunder or any
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such expense or loss. 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 shall be made against the
other parties hereto, notify such parties thereof in writing; but the failure by
the Escrow Agent to give such notice shall not relieve any party from any
liability which such party may have to the Escrow Agent hereunder. In the event
of the receipt of such notice, the Escrow Agent, in its sole discretion, may
commence an action in the nature of interpleader in an appropriate court to
determine ownership or disposition of the Escrow Account or it may deposit the
Escrow Account with the clerk of any appropriate court or it may retain the
Escrow Account pending receipt of a final, non-appealable order of a court
having jurisdiction over all of the parties hereto directing to whom and under
what circumstances the Escrow Account is to be disbursed and delivered.
5.4 During the term hereof, the Escrow Agent shall maintain
the Offering Proceeds in an interest bearing account and any interest earned on
the Escrow Account shall remain in escrow and shall be for the benefit of the
Company and shall be used by the Company either (i) following a Business
Combination in connection with the operation of an Acquired Business (as such
term is defined in the Prospectus) or (ii) in connection with the distribution
to the shareholders through the exercise of the Redemption Offer or the
liquidation of the Company.
5.5 The Escrow Agent shall be entitled to reasonable
compensation from the Company for all services rendered by it hereunder, not to
exceed $________________.
5.6 From time to time on and after the date hereof, the
Company shall deliver or cause to be delivered to the Escrow Agent such further
documents and instruments and shall do or cause to be done such further acts as
the Escrow Agent shall reasonably request (it being understood that the Escrow
Agent shall have no obligation to make such request) to carry out more
effectively the provisions and purposes of this Agreement, to evidence
compliance herewith or to assure itself that it is protected in acting
hereunder.
5.7 The Escrow Agent may resign at any time and be discharged
from its duties as Escrow Agent hereunder by its giving the other parties hereto
at least thirty (30) days prior written notice thereof. As soon as practicable
after its resignation, the Escrow Agent shall turn over to a successor escrow
agent appointed by the other parties hereto, jointly, 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 within the
sixty (60) day period following the giving of such notice of resignation, the
Escrow Agent may deposit the Escrow Account with any court it deems appropriate.
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5.8 The Escrow Agent shall resign and be discharged from its
duties as Escrow Agent hereunder if so requested in writing at anytime by the
Company, provided, however, that such resignation shall become effective only
upon acceptance of appointment by a successor escrow agent as provided in
paragraph 5.7.
5.9 Notwithstanding anything herein to the contrary, the
Escrow Agent shall not be relieved from liability hereunder for its own gross
negligence or its own willful misconduct.
6. Miscellaneous.
6.1 This Agreement shall for all purposes be deemed to be made
under and shall be construed in accordance with the laws of the State of
Florida. This Agreement shall be subject to the exclusive jurisdiction of the
courts of Dade County, Florida. The parties to this Agreement agree that any
breach of any term or condition of this Agreement shall be deemed to be a breach
occurring in the State of Florida by virtue of a failure to perform an act
required to be performed in the State of Florida and irrevocably and expressly
agree to submit to the jurisdiction of the courts of the State of Florida for
the purpose of resolving any disputes among the parties relating to this
Agreement or the transactions contemplated hereby. The parties irrevocably
waive, to the fullest extent permitted by law, any objection which they may now
or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement, or any judgment entered by any
court in respect hereof brought in the State of Florida, and further irrevocably
waive any claim that any suit, action or proceeding brought in Dade County,
Florida has been brought in an inconvenient forum.
6.2 This Agreement contains the entire agreement of the
parties hereto with respect to the subject matter hereof and, except as
expressly provided herein, may not be changed or modified except by an
instrument in writing signed by the party to be charged.
6.3 The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation
thereof.
6.4 This Agreement shall be binding upon and inure to the
benefit of the respective parties hereto and their legal representatives,
successors and assigns.
6.5 Any notice or other communication required or which may be
given hereunder shall be in writing and either be delivered personally or be
mailed, certified or registered mail, return receipt requested, postage prepaid,
and shall be deemed given when so delivered personally or, if mailed, two (2)
days after the date of mailing, as follows:
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If to the Company, to:
Xxxxx Xxxxx Capital Group, Inc.
000 Xxxxx Xxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxx, President
With a copy to:
Xxxxxxx Xxxxxx Xxxxxx Xxxxxxxx
Xxxxxxxx & Xxxxxxxxx, P.A.
000 Xxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
and if to the Escrow Agent, to:
Fiduciary Trust International
of the South
00 Xxxx Xxxxxxx Xxxxxx
Xxxxx, Xxxxxxx [ZIP CODE]
Attention: Xxxxx Xxxxxx
The parties may change the persons and addresses to which the notices or other
communications are to be sent by giving written notice of any such change in the
manner provided herein for giving notice.
6.6 This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
6.7 Nothing contained in this Agreement is intended or shall
be construed to give any person, corporation or other entity, other than the
parties hereto and their respective successors and permitted assigns, any legal,
equitable right, remedy or claim under or in respect to this Agreement or any
provision herein contained, this Agreement being intended to be and being for
the sole and exclusive benefit of the parties hereto and their respective
successors and permitted assigns.
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WITNESS the execution of this Agreement as of the date first above
written.
XXXXX XXXXX CAPITAL GROUP, INC.
By:
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Xxxx X. Xxxxx, President
Attest:
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Xxxxxx X. Xxxxxx, Secretary
This Escrow Agreement is accepted as of the ___ day of ___________, 1997.
FIDUCIARY TRUST INTERNATIONAL
OF THE SOUTH
By:
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Authorized Representative
