EXHIBIT 10.1
ESCROW AGREEMENT
ESCROW AGREEMENT
ESCROW AGREEMENT, made and entered into as of the day of December,
2002, by and between Grafton State Bank, a Wisconsin banking corporation
("Escrow Agent"), and Harp & Eagle, Ltd., a Wisconsin corporation ("Company").
WITNESSETH:
WHEREAS, the Company is currently offering, offering for sale and
selling to the public up to 1,000,000 shares of its common stock, par value
$0.0001 per share ("Common Stock"), at an initial offering price of $6.00 per
share ("Offering");
WHEREAS, a registration statement on Form SB-2 (File No. 333-55088)
with respect to the Common Stock, including a form of prospectus, has been filed
by the Company with the Securities and Exchange Commission ("Commission") under
the Securities Act of 1933, as amended ("Securities Act"). A final form of
prospectus was filed with the Commission upon the initial effectiveness of such
registration statement (ie., December 11, 2001), four amendments to such
registration statement having been filed with the Commission prior to such
effectiveness. Such registration statement (including all exhibits thereto), as
amended at the time it initially became effective and at the time each
post-effective amendment thereto becomes effective, and the final prospectus
filed upon the effectiveness of such registration statement or post-effective
amendment (including any supplements to such final prospectus filed following
such effectiveness) are referred to herein, respectively, as the "Registration
Statement" and the "Prospectus";
WHEREAS, the Registration Statement and the Prospectus provide that
amounts tendered by investors in payment of the subscription price for Common
Stock, including checks, cash and cash equivalents ("Subscription Proceeds"),
shall be deposited and held in escrow in a segregated account until such
Subscription Proceeds are disbursed by the Escrow Agent pursuant to this
Agreement and the provisions with respect to such disbursement which are
contained in the Registration Statement and described in the Prospectus; and
WHEREAS, unless subscriptions for not less than 60,000 shares of Common
Stock had been accepted by the Company and fully paid for on or before the
Termination Date, the Offering would have terminated, and no Common Stock would
have been sold, "Termination Date" being defined for purposes hereof as the date
which is 120 days after the date upon which the Registration Statement first
became effective under the Securities Act (which effective date shall also be
the initial date of the Prospectus); and
WHEREAS, inasmuch as subscriptions for at least 60,000 shares of Common
Stock were accepted by the Company and fully paid for on or before the
Termination Date, the initial disbursement of Subscription Proceeds took place
on April 11, 2002 ("Initial Closing"); as of the date of this Agreement, one
additional closing ("Additional Closing") has taken place on June 11, 2002.
NOW, THEREFORE, in consideration of the mutual covenants set forth
herein and other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto agree as follows:
1. Escrow. From the date hereof through and including (i) the date of
the final disbursement of funds pursuant to this Agreement or (ii) the
termination of the Offering by the Company, whichever later occurs, the Escrow
Agent shall act as escrow agent and shall receive and disburse all Subscription
Proceeds and earnings, if any, thereon in accordance with the terms of this
Agreement. The Escrow Agent hereby represents to the Company that it is, and at
all times during the term of this Agreement shall remain, a "bank" as such term
is defined by Section 3(a)(6) of the Securities Exchange Act of 1934, as amended
("Exchange Act").
2. Deposit Procedure.
(a) The Escrow Agent shall maintain an appropriate segregated account
("Escrow Account") designated as the "Harp & Eagle, Ltd. Escrow Account," or
with such other appropriate designation as shall be assigned by the Escrow Agent
and communicated to the Company. The Escrow Agent shall cause all Subscription
Proceeds transmitted to it to be held in the Escrow Account. All checks received
by the Escrow Agent are to be held uncashed until required to be submitted for
collection pursuant to paragraph 2(b) of this Agreement.
(b) All Subscription Proceeds shall be delivered to the Escrow Agent,
at 000 Xxxxx Xxxx, Xxxxxxx, Xxxxxxxxx 00000, by 12:00, noon, on the business day
following receipt thereof by the Company, together with a schedule of such
payments and the subscriptions represented thereby. Provided that the Escrow
Agent shall have received with respect to each subscription for Common Stock (i)
Facsimile Notice (as defined herein) from the Company that a subscription has
been received by the Company and (ii) Subscription Proceeds in the amount
required to pay in full for such subscription, delivered as aforesaid, the
Escrow Agent shall immediately commence the collection process (as applicable)
with respect to such Subscription Proceeds. Any payment item which is returned
to the Escrow Agent on its initial presentation for payment need not again be
presented for collection. The Facsimile Notice provided for in this paragraph
shall be given by the Company not more than five (5) days following receipt by
the Escrow Agent of such Subscription Proceeds and not less than two (2)
business days prior to any disbursement of Subscription Proceeds by the Escrow
Agent pursuant to this Agreement.
(c) If a subscription is not accepted by the Company, the Company
shall, within five (5) days following its receipt of such subscription, provide
the Escrow Agent with Facsimile Notice (as defined herein) of the name of the
rejected subscriber, the address of the rejected subscriber, and the amount of
Subscription Proceeds received from such rejected subscriber and delivered to
the Escrow Agent.
(d) If the Escrow Agent is holding collected funds with respect to a
rejected subscription, the Escrow Agent shall promptly remit the full amount of
Subscription Proceeds delivered to it, without interest thereon or deduction
therefrom, to the rejected subscriber at the address provided by the Company. If
the Escrow Agent has presented the Subscription Proceeds of a rejected
subscriber for collection but has not yet collected funds, the Escrow Agent
shall, promptly upon collection of such funds, remit the full amount of
Subscription Proceeds delivered to it, without interest thereon or deduction
therefrom, to the rejected subscriber at the address provided by the Company. If
the Escrow Agent has not yet presented the Subscription Proceeds of a rejected
subscriber for collection, the Escrow Agent shall promptly return in full the
Subscription Proceeds delivered to it, in the form so delivered, without
interest thereon or deduction therefrom, to the rejected subscriber at the
address provided by the Company.
3. Investment of Escrow Funds. The Escrow Agent shall invest all funds
held in the Escrow Account (including earnings, if any, thereon) in United
States government securities or securities guaranteed by the United States,
certificates of deposit of banks located in the United States or any other
investment, provided, in each case, that such investment is permitted by Rule
15c2-4, promulgated by the Securities and Exchange Commission under the Exchange
Act ("Rule 15c2-4"). Such investments shall be made in a manner consistent with
the requirement that the Subscription Proceeds be available for delivery by the
Escrow Agent at the times described herein. The parties hereto recognize that
there may be a forfeiture of interest in the event of early withdrawal from an
interest-bearing account of investment.
4. Additional Closings.
(a) Subsequent to the Initial Closing, the collected funds then held in
the Escrow Account shall be disbursed by the Escrow Agent from time to time, as
agreed between the Company and the Escrow Agent, at one or more Additional
Closings; each such further disbursement of subscription proceeds is referred to
herein as an "Additional Closing," and the date thereof as an "Additional
Closing Date." The Initial Closing and Additional Closings are sometimes
referred to herein as a "Closing" or "Closings"; and the Initial Closing Date
and Additional Closing Dates are sometimes referred to herein as a "Closing
Date" or "Closing Dates."
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(b) Prior to the disbursement of collected funds held in the Escrow
Account at any Additional Closing, the Escrow Agent shall have received
Facsimile Notice (as defined herein) from the Company that all conditions
precedent to such disbursement by the Escrow Agent have been fully satisfied as
required under the terms set forth in the Registration Statement and the
provisions of Rule 15c2-4. The Facsimile Notice from the Company provided for in
this paragraph 5(b) must be received by the Escrow Agent not less than two (2)
business days prior to such Additional Closing Date; Confirmation (as defined
herein) of such Facsimile Notice shall be delivered to the Escrow Agent by the
Company on or before such Additional Closing Date, dated as of such Additional
Closing Date.
(c) Provided that the Facsimile Notice (as defined herein) required
under paragraph 5(b) hereof shall have been received by Escrow Agent not less
than two (2) business days prior to, and confirmed in writing on or before, each
Additional Closing Date, the Escrow Agent shall, on such Additional Closing
Date, disburse the collected funds then held in the Escrow Account as follows:
First, to the Escrow Agent in the amount of any fees then due and payable to
such Agent (which shall not exceed on any Additional Closing Date the aggregate
earnings, if any, on funds held in the Escrow Account, determined as of the
business day immediately preceding such Closing Date); and Second, to the
Company in the amount of any balance then remaining in the Escrow Account.
5. Books and Records. The Escrow Agent shall maintain accurate records
of all transactions hereunder. Promptly upon the termination of escrow, or as
may reasonably be requested by the Company prior thereto, the Escrow Agent shall
provide the Company with a complete copy of such records, certified by the
Escrow Agent to be a complete and accurate account of all such transactions. The
authorized representatives of the Company shall also have access to such books
and records at all reasonable times during normal business hours upon reasonable
notice to the Escrow Agent.
6. Escrow Agent Fees. As compensation for services performed by it
pursuant to this Agreement, the Escrow Agent shall be entitled to receive from
the Company the fees set forth on Schedule A hereto; such fees shall be deducted
from Escrow Income (as defined in such Schedule A), and the Company shall pay to
the Escrow Agent on demand any portion of such fees which remains unpaid
following the final Closing.
7. Termination. This Agreement shall terminate on the final disposition
of the moneys and property held in escrow under and pursuant to the terms
hereof, provided that the rights of the Escrow Agent and the obligations of the
Company under paragraphs 6 and 8 shall survive the termination hereof.
8. General Provisions.
(a) This Agreement expressly sets forth all the duties of the Escrow
Agent with respect to any and all matters pertinent hereto.
(b) The Escrow Agent shall not be liable, except for its own negligence
or willful misconduct and, except with respect to claims based upon such
negligence or willful misconduct that are successfully asserted against the
Escrow Agent. The Company shall indemnify and hold harmless the Escrow Agent
(and any successor Escrow Agent) from and against any and all losses,
liabilities, claims, actions, damages and expenses, including reasonable
attorneys' fees and disbursements, arising out of and in connection with this
Agreement.
(c) The Escrow Agent shall be entitled to rely upon any order,
judgment, certification, demand, notice, instrument or other writing delivered
to it hereunder without being required to determine the authenticity or the
correctness of any fact stated therein or the propriety or validity of the
service thereof. The Escrow Agent may act in reliance upon any instrument or
signature believed by it to be genuine and may assume that any person purporting
to give notice or advice, or to accept and acknowledge receipt, or to make any
statement or execute any documents in connection with the provisions of this
Agreement has been duly authorized to do so.
(d) In the event that the Escrow Agent (i) shall be uncertain as to its
duties arising under this Agreement or (ii) shall receive instructions from the
Company or the Managing Placement Agent as to the funds held in the Escrow
Account which, in its opinion, are inconsistent with each other or are in any
conflict with any of the provisions of this Agreement, the Escrow Agent shall be
authorized to hold any and all Subscription Proceeds
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received by it, together with any other amounts which shall accrue to or be
deposited in the Escrow Account, pending the settlement of any such controversy
by final adjudication of a court of competent jurisdiction, or the Escrow Agent
may, at its option, deposit such funds with the clerk of a court of competent
jurisdiction, in an appropriate proceeding to which all parties in interest are
duly joined.
(e) The Escrow Agent (and any successor escrow agent) may at any time
resign as such by delivering all amounts held in the Escrow Account to any
successor escrow agent designated by the Company in writing, or to any court of
competent jurisdiction, whereupon the Escrow Agent shall be discharged of and
from any and all further obligations arising in connection with this Agreement.
The resignation of the Escrow Agent will take effect (i) upon the appointment of
a successor (including a court of competent jurisdiction) or (ii) thirty (30)
days after the date of delivery of its written notice of resignation to the
Company, whichever first occurs. If at such time the Escrow Agent has not
received a written designation of a successor escrow agent, the Escrow Agent's
sole responsibility thereafter shall be to safekeep the funds held in the Escrow
Account until receipt by the Escrow Agent of a written designation by the
Company of a successor escrow agent or a final order of a court of competent
jurisdiction.
(f) The parties hereto hereby irrevocably submit to the jurisdiction of
any Wisconsin state court or federal court sitting in Wisconsin in any action or
proceeding arising out of or relating to this Agreement, and the parties hereby
irrevocably agree that all claims in respect of such action or proceeding shall
be heard and determined in such state or federal court. The parties to this
Agreement hereby consent to and grant to any such court jurisdiction over the
persons of such parties and over the subject matter of any such dispute and
agree that delivery or mailing of any process, instrument or other paper in
connection with any such action or proceeding in the manner provided in this
Agreement, or in such other manner as may be permitted by law, shall be valid
and sufficient service of such process, instrument or other paper.
(g) This Agreement shall be binding upon and inure solely to the
benefit of the parties hereto and their respective successors and assigns, and
shall not be enforceable by or inure to the benefit of any third party. Except
as provided herein with respect to a resignation by the Escrow Agent, no party
hereto may assign any of its rights or obligations under this Agreement without
the prior written consent of the other parties hereto.
(h) This Agreement may only be modified by a written instrument signed
by the parties hereto, and no waiver hereunder shall be effective unless in
writing signed by the party to be charged.
(i) The Escrow Agent makes no representation as to the validity, value,
genuineness or the collectibility of any security or other document or
instrument held by or delivered to such Escrow Agent pursuant to the terms of
this Agreement.
(j) For purposes hereof, "Facsimile Notice" shall mean the delivery by
telephone facsimile (FAX) of a notice, request, demand or other communication
provided for herein, and "Confirmation" shall mean the delivery by hand (via
commercial courier service or otherwise) or by first class mail, if and to the
extent required hereunder, of a manually-signed (if applicable) counterpart of
any such notice, demand or other communication. All Facsimile Notices and
Confirmations shall be deemed given when received and shall be telecopied and
delivered by hand, respectively, to the parties at the facsimile (FAX) telephone
numbers and addresses listed below, or to such other persons or facsimile
telephone numbers/addresses as the relevant party shall designate from time to
time in writing delivered by hand as aforesaid:
If to the Company: Harp & Eagle, Ltd.
Attention: Xxxx Xxxxx O'Dwanny
Facsimile Notice (FAX) Telephone Number: (000) 000-0000
Confirmation Address: 0000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
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If to the Escrow Agent: Grafton State Bank
Escrow Department
Attention: Xxx Xxxxxxx
Facsimile Notice (FAX) Telephone Number: (000) 000-0000
Confirmation Address: 000 Xxxxx Xxxx
Xxxxxxx, Xxxxxxxxx 00000
(k) This Agreement shall be construed in accordance with and governed
by the internal law of the State of Wisconsin.
(l) This Agreement may be executed in several counterparts, each of
which shall be deemed an original, and all of which together shall constitute
one and the same instrument.
(m) This Agreement (i) shall become effective as of the effective date
of the first post-effective amendment to the Registration Statement and (ii)
supersedes and fully replaces all prior agreements with respect to the escrow
and disbursement of Subscription Proceeds received in payment for Common Stock
sold in the Offering, including without limitation that agreement, dated
December 11, 2001, by and among the Company, the Escrow Agent and X.X. Xxxx &
Company, Inc., the initial managing placement agent for the Offering; provided,
however, that the segregated escrow account established pursuant to Section 2(a)
of such prior agreement may be continued and maintained as the Escrow Account
described in Section 2(a) of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Escrow
Agreement as of the day and year first above written.
Harp & Eagle, Ltd.
By:
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Xxxx Xxxxx O'Dwanny, President
Grafton State Bank
By:
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Xxxxxxx X. Xxxxxx, President
Termination of the escrow agreement, dated December 11, 2001, as
described in Section 9(m) of this Agreement, as of the effective date of this
Agreement, is hereby confirmed, accepted and acknowledged as of the day and year
first above written.
X.X. Xxxx & Company, Inc.
By:
--------------------------------------------
Xxxxxx X. Xxxx, President
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ESCROW AGREEMENT
Schedule A
This Schedule A to the Escrow Agreement, dated as of December
, 2002, by and between Grafton State Bank ("Escrow Agent"), and Harp & Eagle,
Ltd. ("Company"), sets forth the compensation arrangements referred to in
paragraph 6 of such Agreement, as follows:
For services performed by it pursuant to the Escrow Agreement,
the Escrow Agent shall be entitled to receive from the Company fees in the
amounts of $250 per Closing and $10 per subscriber (whether accepted or
rejected); provided, however, that the Escrow Agent shall receive, in the
aggregate, not less than $500 in consideration of its services rendered pursuant
to the terms of the Escrow Agreement. Such fees shall be (a) due and payable on
each Additional Closing Date until paid in full and (b) payable, through the
final Closing, only from and to the extent of available Escrow Income; provided
that, if payments made from available Escrow Income, made at one or more
Additional Closings are not, in the aggregate, sufficient to pay such fees in
full, the Company shall pay on demand any such fees which remain unpaid
following the final Closing. "Escrow Income" is the amount of interest and/or
dividends, if any, which shall have been (x) paid on or in respect of the Escrow
Account (representing earnings on funds held therein) and (y) deposited in such
Account as collected funds on or prior to the business day immediately preceding
such Initial Closing Date or Additional Closing Date, as the case may be. If and
to the extent that Escrow Income exceeds the aggregate fees payable to the
Escrow Agent hereunder, such excess shall be paid to the Company at the
Additional Closing(s), as the case may be. The foregoing notwithstanding, if the
Offering is terminated pursuant to the provisions of the Managing Placement
Agent Agreement or otherwise, the Escrow Agent shall be entitled to receive fees
in the aggregate amount of $500, and no more, payable by the Company on demand.
All terms used herein shall have the same meanings ascribed to them in the
Escrow Agreement of which this Schedule is a part.
