Exhibit 4.2b
Escrow Agreement
This Escrow Agreement (the "Agreement") is made by and between Regions
Bank, a national banking association, with its principal office located at 0000
X. Xxxxxxxx Xxxxxxx Xxxx, Xxxxxx Xxxxxxx (the "Escrow Agent"), and Emerging
Markets Holdings, Inc., a Florida corporation, with its principal office located
at 309 Celtic Court; Xxxxxx, Xxxxxxx 00000 (the "Issuer").
WITNESSETH
WHEREAS, the Issuer filed with the Securities and Exchange Commission
(the "Commission"), Washington, D.C., an SB-2 Registration Statement (the
"Registration Statement"), and related Prospectus, File No. 333-130943, on.
January 10, 2006, as amended, in connection with an initial public offering of
the Issuer's securities, comprising 500,000 shares of the Issuer's common stock
to be sold at a price of $0.15 per share (the "Securities");
WHEREAS, the Issuer proposes to offer the Securities to the public on a
"best efforts, all or none" basis as set forth in the Registration Statement;
WHEREAS, the Issuer proposes to establish an escrow account (the
"Escrow Account"), to which the Securities which are to be issued by the Escrow
Agent in connection with such public offering are to be held, and the Escrow
Agent is willing to establish the Escrow Account on the terms and subject to the
conditions hereinafter set forth; and
WHEREAS, the Escrow Agent will establish an Escrow Account into which
the stock certificates representing the Securities, which are received by the
Escrow Agent and recorded in the Escrow Account ledger, are to be deposited.
NOW, THEREFORE, for and in consideration of the promises and mutual
covenants herein contained, and other valuable consideration, the parties hereto
hereby agree as follows:
3. The Registration Statement.
1.1. The Issuer has filed the Registration Statement with the
Commission and is included herein as Exhibit A to this Agreement, and is made a
part hereof.
4. Establishment of the Escrow Account.
2.1. The Issuer shall initially establish an Escrow Account at the
Escrow Agent. The purpose of the Escrow Account is for (a) the deposit of all
stock certificates representing Securities which are received by the Issuer to
the Escrow Agent (the "Certificates"); (b) the holding of such Certificates; and
(c) the distribution and delivery of Certificates, all as described herein. The
Escrow Agent will hold all Certificates and other property in the Escrow Account
free from any lien, claim or offset, except as set forth herein, and such
Certificates and other property shall not become the property of the Company or
any other person, nor subject to the debts thereof, unless the conditions set
forth in these instructions to distribution of such Certificates to the
subscribers of the Securities have been fully satisfied.
2.2. On or before the date of the initial deposit in the Escrow
Account pursuant to this Agreement, the Issuer shall notify the Escrow Agent in
writing of the effective date (the "Effective Date") of the Registration
Statement, and the Escrow Agent shall not be required to accept any Certificates
to the Escrow Account or for deposit in the Escrow Account prior to its receipt
of such notification.
2.3. The offering period (the "Offering Period"), which shall be
deemed to commence on the Effective Date, shall be for a period of up to 180
days. The Offering Period shall be less than 180 days if the Issuer sells all
Securities for a total consideration of $75,000, whichever occurs first, is also
referred to herein as the "Termination Date." Except as provided in Section 4.3
hereof, after the Termination Date, the Issuer shall not deposit, and the Escrow
Agent shall not accept, any additional Certificates representing Securities
issued by the Issuer to prospective purchasers.
2.4. If the Escrow Account remains open following the Termination
Date in accordance with Article 4 below, the Certificates shall remain in the
Escrow Account and shall be distributed only pursuant to the terms of this
Agreement.
3. Deposits to the Escrow Account.
3.1. The Issuer shall promptly deliver to the Escrow Agent all
Certificates which it receives from prospective purchasers of the Securities.
Upon the Escrow Agent's receipt of such Certificates, they shall be recorded in
the Escrow Account ledger.
3.2. Promptly after receiving Certificates as described in Section
3.1, the Escrow Agent shall deposit the same into the Escrow Account.
Certificates so deposited are hereinafter referred to as "Escrow Certificates."
The Escrow Agent shall cause to record in the Escrow Account ledger all Escrow
Certificates with each deposit to the Escrow Account, the Issuer shall provide
the Escrow Agent a copy of the completed Subscription Agreement for each
prospective purchaser, including the name, address, and social security number
of the prospective purchaser, the amount of Securities subscribed for by such
purchaser, and the aggregate dollar amount of such subscription, and a completed
W-9 from each such purchaser (collectively, the "Subscription Information").
3.3. The Escrow Agent shall not be required to accept any
Certificates to the Escrow Account which are not accompanied by the appropriate
Subscription Information.
3.4. The Escrow Agent shall not be required to accept in the Escrow
Account any Certificates representing Securities proposed to be purchased by
prospective purchasers, except during the Escrow Agent's regular business hours.
3.5. Only those Escrow Certificates, which have been deposited in
the Escrow Account and which have been collected by the Escrow Agent, are herein
referred to as the "Deposit".
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3.6. If the proposed offering is terminated before the Termination
Date, the Escrow Agent shall return any portion of the Deposit prior to
distribution and delivery of the Deposit in accordance with Article 4 hereof
upon instructions in from the Issuer.
4. Disbursement from the Escrow Account.
4.1. Subject to Section 4.3 below, if by the close of regular
banking hours on the Termination Date the Escrow Agent determines that the total
number of shares of Securities issued by the Issuer, as represented by the
Escrow Certificates in the Deposit, is less than 500,000 shares, then the Escrow
Agent shall promptly return the Escrow Certificates to the Issuer which is then
held in the Deposit, without charge to the purchasers. In such event, the Escrow
Agent shall promptly notify the purchasers of its distribution of the Deposit.
If the total number of shares of Securities issued by the Issuer, as represented
by the Escrow Certificates in the Deposit, is more than 500,000 shares, the
Escrow Account shall remain open beyond the Termination Date in accordance with
Section 4.2 below.
4.2. If the Escrow Account remains open beyond the Termination
Date, the Issuer must satisfy the following conditions:
(f) Within five (5) business days after the effective date
of the post-effective amendment, the Issuer shall send by first class mail to
each purchaser of Securities held in escrow, a copy of the prospectus contained
in the post-effective amendment and any amendment or supplement thereto;
(g) Each purchaser shall have no fewer than twenty (20)
business days and no more than forty-five (45) business days from the effective
date of the post-effective amendment to notify the Issuer in writing that the
purchaser elects to remain an investor. If the Issuer has not received such
written notification by the forty-fifth (45th) business day following the
Effective Date of the post-effective amendment, funds and interest held in
escrow shall be sent by first class mail or other equally prompt means to the
purchasers within five (5) business days; an acquisition described in the
post-effective amendment will be consummated if a sufficient number of
purchasers confirm their investment with the Issuer; and if an acquisition has
not been consummated by the Issuer within eighteen (18) months after the
Effective Date of the Registration Statement, the Escrow Certificates held in
escrow shall be returned immediately to the Issuer with five (5) business days
following that date. It shall be the responsibility of the Issuer to notify the
Escrow Agent if any of the above conditions are not timely satisfied;
(h) Securities may be delivered to the purchasers only at
the same time as or after (i) the Escrow Agent has received a signed
representation from the Issuer that the requirements of paragraphs (e) (1) and
(e) (2) of Rule 419 have been met and (ii) the Escrow Agent has received a
signed representation from the Issuer that the requirements of paragraph (e) (2)
(iii) of Rule 419 have been met.
The Issuer shall be liable for any misrepresentation made to the Escrow
Agent with respect to this Section 4.2 and the Issuer agrees to indemnify the
Escrow Agent for any claims made by purchasers with respect to this Section 4.2
in accordance with Article 5 below; provided, however, the Issuer shall not be
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responsible for the Escrow Agent's failure to timely release funds and interest
to the purchasers upon receipt of instructions from the Issuer.
4.3. Upon distribution of the Deposit pursuant to the terms of this
Article 4, the Escrow Agent shall be relieved of all further obligations and
released from all liability under this Agreement. It is expressly agreed and
understood that in no event shall the aggregate amount of Securities distributed
by the Escrow Agent exceed the amount of the Deposit.
5. Rights, Duties and Responsibilities of the Escrow Agent; Indemnification.
5.1. The Issuer may inquire on a regular basis as to, and the
Escrow Agent shall provide the Issuer, the amount of shares of Securities (as
represented by the Escrow Certificates) which have been deposited in the Escrow
Account.
5.2. The Escrow Agent shall not be responsible for or be required
to enforce any of the terms or conditions of the Agreement with respect to the
Issuer.
5.3. The Escrow Agent shall not be required to accept from the
Issuer any subscription information pertaining to prospective purchasers unless
such Subscription Information is accompanied by the items meeting the
requirement of Section 3.1, nor shall the Escrow Agent be required to keep
records of any information with respect to Escrow Certificates deposited by the
Issuer, except as to the number of shares of Securities represented by such
Escrow Certificates; however, the Escrow Agent shall notify the Issuer within a
reasonable time of any discrepancy between the amount set forth in any
subscription information and the amount of Securities delivered to the Escrow
Agent therewith. Such amount need not be accepted for deposit in the Escrow
Account until such discrepancy has been resolved.
5.4. The Escrow Agent shall be entitled to rely upon the accuracy,
act in reliance upon the contents, and assume the genuineness of any notice,
instruction, certificate, signature, instrument, or other document which is
given to the Escrow Agent by the Issuer pursuant to this Agreement without the
necessity of the Escrow Agent verifying the truth or accuracy thereof. The
Escrow Agent shall not be obligated to make any inquiry as to the authority,
capacity, existence or identity of any person purporting to give any such notice
or instructions or to execute any such certificate, instrument or other
document.
5.5. If the Escrow Agent is uncertain as to its duties or rights
hereunder or shall receive instructions with respect to the Escrow Account, the
escrow amounts of the Deposit, which, in its sole determination, are in conflict
either with other instructions received by it or with any provision of this
Agreement, it shall be entitled to hold the Escrow Certificates, the Deposit or
a portion thereof, in the Escrow Account pending the resolution of such
uncertainty to the Escrow Agent's sole satisfaction, by final judgment of a
court of competent jurisdiction or otherwise; or the Escrow Agent, as its sole
option, may deposit with the clerk of a court of competent jurisdiction in a
proceeding to which all parties in interest are joined. Upon the deposit by the
Escrow Agent of the Deposit with the clerk of any court, the Escrow Agent shall
be relieved of all further obligations and released from all liability
hereunder.
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5.6. The Escrow Agent shall not be liable for any action taken or
omitted hereunder, or for the misconduct of any employee, agent or attorney
appointed by it, except in the case of willful misconduct or gross negligence.
The Escrow Agent shall be entitled to consult with counsel of its own choosing
and shall not be liable for any action taken, suffered or omitted by it in
accordance with the advice of such counsel.
5.7. The Escrow Agent shall have no responsibility at any time to
ascertain whether or not any security interest exists in the escrow amounts, the
Deposit or any part thereof or to file any financing statement under the Uniform
Commercial Code with respect to the Deposit or any part thereof.
5.8. The Issuer agrees to indemnify the Escrow Agent and its
officers, directors, employees, agents, and shareholders (jointly and severally,
the "Indemnities") against, and hold them harmless of and from, any and all
loses, liabilities, costs, damages, and expenses, including, but not limited to,
reasonable fees and disbursements for counsel of its own choosing (collectively,
"Liabilities"), that the Indemnities may suffer or incur and which arise out of
or relate to this Agreement or any transaction to which this Agreement relates,
unless such Liability is the result of the willful misconduct or gross
negligence of the Indemnities.
5.9. If the indemnification provided for in this Section 5 is
applicable but is held to be unavailable, the Issuer shall contribute such
amounts as are just and equitable to pay or to reimburse the Indemnities for the
aggregate of any and all Liabilities actually incurred by the Indemnities as a
result of or in connection with any amount paid in settlement of any action,
claim, or proceeding arising out of or relating in any way to any actions or
omissions of the Issuer.
5.10. The provisions of this Section 5 shall survive any termination
of this Agreement, whether by distribution of the Deposit, resignation of the
Escrow Agent, or otherwise.
9. Interpleader.
6.1. In the event conflicting demands are made or notices served
upon the. Escrow Agent with respect to the Escrow Account, the Escrow Agent
shall have the absolute right as its election to do either or both of the
following: (a) Withhold and stop all further proceedings in, and performance of,
this escrow or (b) File a suit in interpleader and obtain an order from the
court requiring the parties to litigate their several claims and rights among
themselves. In the event such interpleader suit is brought, the Escrow Agent
shall be fully released from any obligation to perform any further duties
imposed upon it hereunder, and the Issuer shall pay the Escrow Agent all costs,
expenses, and reasonable attorney's fees expended or incurred by Escrow Agent
(or allocable to its in-house counsel), the amount thereof to be fixed and a
judgment thereof to be rendered by the court in such suit.
10. Amendment; Resignation.
7.1. This Agreement may be altered or amended only with the written
consent of the parties hereto. The Escrow Agent may resign for any reason upon
fourteen (14) days' written notice to the Issuer. Should the Escrow Agent resign
as herein provided, it shall not be required to accept any deposit, make any
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disbursement or otherwise dispose of the Escrow Certificates, but its only duty
shall be to hold the Escrow Certificates for a period of not more that five (5)
business days following the effective date of such resignation, at which time
(a) if a successor escrow agent shall have been appointed and written notice
thereof shall have been given to the resigning escrow agent by the Issuer and
such successor escrow agent, then the resigning escrow agent shall deliver
directly to the successor escrow agent the Deposit; or (b) if the resigning
escrow agent shall not have received written notice signed by the Issuer and a
successor escrow agent, then the resigning escrow agent shall promptly notify
the Issuer of its liquidation and distribution of the Deposit; whereupon, in
either case, the Escrow Agent shall be relieved of all further obligation and
released from all liability under this Agreement. Without limiting the
provisions of Section 9.1 hereof, the resigning escrow agent shall be entitled
to be reimbursed by the Issuer for any expenses incurred in connection with its
resignation, transfer of the Deposit to a successor escrow agent or distribution
of the Deposit pursuant to this Section 7.1.
11. Representations and Warranties.
8.1. The Issuer represents and warrants to the Escrow Agent that no
party other than the parties hereto and the prospective purchasers have, or
shall have, any claim or security interest in the Deposit or any part thereof.
8.2. No financing statement under the Uniform Commercial Code is on
file in any jurisdiction claiming a security interest in or describing the
Deposit or any part thereof.
8.3. The Subscription Information submitted with each deposit of
Securities shall, at the time of submission and at the time of the distribution
of the Deposit, be deemed a representation and warranty that such deposit
represents that bona fide consideration has been made by the purchaser described
therein for the amount of Securities set forth in such Subscription Information.
8.4. All of the information contained in the Registration Statement
is, as of the date hereof, and will be, at the time of any disbursement of the
Deposit, true and correct.
12. Fees and Expenses.
9.1. The Escrow Agent shall not charge the Issuer any fee in
connection with this Agreement. The Issuer agrees to reimburse the Escrow Agent
for any reasonable fees and expenses incurred in connection with this Agreement.
13. Governing Law and Assignment.
10.1. This Agreement shall be construed in accordance with and
governed by the laws of the State of Florida shall be binding upon the parties
hereto and their respective successors and assigns; provided, however, that any
assignment or transfer by any party of its rights under this Agreement or with
respect to the Deposit shall be void as against the Escrow Agent unless (a)
written notice thereof shall be given to the Escrow Agent; and (b) the Escrow
Agent shall have consented in writing to such assignment or transfer.
14. Notices.
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11.1. All notices required to be given in connection with this
Agreement shall be sent by registered or certified mail, return receipt
requested, or by hand delivery with receipt acknowledged, or by Express Mail
service offered by the United States Post Office to the following addresses:
ISSUER:
Emerging Markets Holdings, Inc.
000 Xxxxxx Xxxxx
Xxxxxx, Xxxxxxx 00000
with a copy to:
Xxxxxx & Xxx, X.X.
000 Xxxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxx
ESCROW AGENT:
Regions Bank
Attention: Xxxx Xxxxxxx, Assistant Branch Manager
0000 Xxxx Xxxxxxxx Xxxxxxx Xxxx
Xxxxxx, Xxxxxxx 00000
12. Severability.
12.1. If any provision of this Agreement or the application thereof
to any person or circumstances shall be determined to be invalid or
unenforceable, the remaining provisions of this Agreement or the application of
such provisions to persons of circumstances other than those to which it is held
invalid or unenforceable shall not be affected thereby and shall be valid and
enforceable to the fullest extent permitted by law.
15. Execution in Several Counterparts; Entire Agreement.
13.1. This Agreement may be executed in several counterparts or by
separate instruments, all of such counterparts and instruments shall constitute
one agreement, binding on all of the parties hereto.
13.2. This Agreement constitutes the entire agreement between the
parties hereto with respect to the subject matter hereof and supersedes all
prior agreements and understandings, written or oral, of the parties in
connection therewith.
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IN WITNESS WHEREOF, the undersigned parties have executed this
Agreement upon proper legal authority as of the 1st day of November, 2006.
Regions Bank, a national banking association
By: /s/ Xxxx Xxxxxxx
----------------
BAM, its Trust Officer
Emerging Markets Holdings, Inc., a Florida
Corporation
By: /s/ Xxxxxxx Xxxxxx
------------------
Xxxxxxx Xxxxxx
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