ESCROW AGREEMENT
EXECUTION
COPY
THIS
ESCROW AGREEMENT (“Agreement”)
is
made and entered into as of the 16th day of June, 2008, by and among JPMorgan
Chase Bank, N.A., a national banking association (the “Escrow
Agent”),
Xxxxxx & Xxxxxx Group, Inc., a New York corporation (the “Company”),
and
ThinkPanmure, LLC (the “Placement
Agent”).
Background
WHEREAS,
the Company proposes to issue and sell an aggregate of up to 2,545,000 shares
of
its common stock, $0.01 par value per share (the "Shares")
for an
aggregate of up to $15,651,750, all as described in the Company's registration
statement on Form N-2 (Registration No. 333-138996) filed with the Securities
and Exchange Commission (which together with all amendments and supplements
thereto, is referred to herein as the "Registration
Statement");
WHEREAS,
the Shares are being offered by the Company to purchasers identified by the
Placement Agent, pursuant to the terms of the Placement Agency Agreement
(the
“Placement
Agency Agreement”)
dated
June 16, 2008, by and between the Company and the Placement Agent, and the
subscription agreements (collectively, the “Subscription
Agreements”)
dated
the date hereof between the Company and each purchaser named therein (each
a
“Purchaser,”
and
collectively, the “Purchasers”);
WHEREAS,
unless the transactions contemplated by the Subscription Agreements and the
Placement Agency Agreement have been abandoned pursuant to the terms thereof,
or
unless otherwise agreed to by the Company and the Placement Agent, the closing
of the purchase and sale of the Shares shall take place on June 20, 2008
(the
“Closing
Date”);
WHEREAS,
with respect to all subscription payments received from the Purchasers, the
Company and the Placement Agent propose to establish an escrow account with
the
Escrow Agent in the name of the Company at 0 Xxx Xxxx Xxxxx, 00xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000; and
WHEREAS,
upon execution of the Subscription Agreements by the Company, the Escrow
Agent
is willing to receive and disburse the proceeds from the offering of the
Shares
in accordance herewith. The Escrow Agent's duties are limited to this Agreement
and shall only act in accordance with the terms and conditions contained
herein.
Terms
NOW,
THEREFORE, in consideration of the mutual agreements contained herein and
other
good and valuable consideration, the receipt and sufficiency of which are
hereby
acknowledged, the parties hereto agree as follows:
1. Establishment
of Escrow.
The
Escrow Agent hereby agrees to establish a non-interest bearing trust account
pursuant to Rule 15c-2-4 promulgated by the Securities and Exchange Commission
under the Securities Exchange Act of 1934, as amended (the "Escrow
Account"),
for
the deposit with the Escrow Agent of the Escrowed Funds (defined below) and
to
receive and disburse the Escrowed Funds in accordance with the terms and
conditions of this Agreement.
2. Deposit
of Escrowed Funds.
The
Company and the Placement Agent hereby appoint the Escrow Agent as their
escrow
agent for the purposes set forth herein, and the Escrow Agent hereby accepts
such appointment under the terms and conditions set forth herein. The Placement
Agent is hereby directed by the Company to instruct each Purchaser for the
Shares identified on Exhibit
A
attached
hereto to wire to the Escrow Agent immediately available funds of such Purchaser
delivered in payment for the Shares such Purchaser agrees to purchase (the
“Escrowed
Funds”).
Upon
receipt of Escrowed Funds from each Purchaser, the Escrow Agent shall credit
such Escrowed Funds to an Escrow Account held by the Escrow Agent. The wire
instructions to which each Purchaser shall wire or deposit such funds are
set
forth in the notice provision for the Escrow Agent in Section 10 to this
Agreement and in Exhibit A to the Subscription Agreements.
3. Acceptance.
Upon
receipt of the Escrowed Funds, the Escrow Agent shall acknowledge such receipt
in writing (which may be via electronic mail) to the Company and the Placement
Agent and shall hold and disburse the same pursuant to the terms and conditions
of this Agreement. The Escrow Agent shall have no duty to verify whether
the
amounts and property delivered comport with the requirements of any other
agreement.
4. List
of Purchasers.
Exhibit
A
hereto
contains the name of, the address of record, the number of Shares subscribed
for
by, and the subscription amount to be delivered to the Escrow Agent on behalf
of
each Purchaser whose funds are being deposited. The Escrow Agent shall notify
the Placement Agent and the Company of any discrepancy between the subscription
amounts set forth on any list delivered pursuant to this Section 4 and the
subscription amounts received by the Escrow Agent. The Escrow Agent is
authorized
to revise such list to reflect the actual subscription amounts received and
the
release of any subscription amounts pursuant to Section 5.
5. Withdrawal
of Subscription Amounts.
(a) If
the Escrow Agent shall receive a notice, substantially in the form of
Exhibit
B
hereto (an “Offering
Termination Notice”)
from the Company, the Escrow Agent shall promptly after receipt of such Offering
Termination Notice, and in no event more than five (5) business days thereafter,
send to each Purchaser listed on the list held by the Escrow Agent pursuant
to
Section 4 whose total subscription amount shall not have been released pursuant
to paragraph (b) or (c) of this Section 5, in the manner set forth in paragraph
(d) of this Section 5, a check to the order of such Purchaser in the amount
of
the remaining subscription amount held by the Escrow Agent on behalf of such
Purchaser as set forth on such list held by the Escrow Agent. The Escrow
Agent
shall notify the Company and the Placement Agent of the distribution of such
funds to the Purchasers.
(b) In
the event that (i) the Shares have been subscribed for and funds in respect
thereof shall have been deposited with the Escrow Agent in accordance with
this
Agreement on or before the Closing Date and (ii) no Offering Termination
Notice
shall have been delivered to the Escrow Agent, the Company and the Placement
Agent shall deliver to the Escrow Agent a joint notice, not more than three
(3)
business days prior to the Closing Date, substantially in the form of
Exhibit
C
hereto (a “Closing
Notice”),
designating the proceeds which are to be distributed on such Closing Date,
and
identifying the Purchasers and the number of Shares to be sold to each thereof
on such Closing Date. The Escrow Agent, after receipt of such Closing Notice,
on
such Closing Date, shall pay to the Company, the Placement Agent and its
counsel
(if applicable), by wire transfer of immediately available funds and otherwise
in the manner specified in such Closing Notice, an amount equal to the aggregate
of the subscription amounts paid by the Purchasers identified in such Closing
Notice for the Shares to be sold on such Closing Date as set forth on the
list
held by the Escrow Agent pursuant to Section 4.
-2-
(c) If
at any time and from time to time prior to the release of any Purchaser’s total
subscription amount pursuant to paragraph (a) or (b) of this Section 5 from
the
Escrow Account, the Company shall deliver to the Escrow Agent a notice,
substantially in the form of Exhibit
D
hereto (a “Subscription
Termination Notice”),
to the effect that any or all of the subscriptions of such Purchaser have
been
rejected by the Company (a “Rejected
Subscription”),
the Escrow Agent, promptly after receipt of such Subscription Termination
Notice, shall promptly send to such Purchaser, in the manner set forth in
paragraph (d) of this Section 5, a check to the order of such Purchaser in
the
amount of such Rejected Subscription amount.
(d) For
the purposes of this Section 5, any check that the Escrow Agent shall be
required to send to any Purchaser shall be sent to such Purchaser by first
class
mail, postage prepaid, at such Purchaser’s address furnished to the Escrow Agent
pursuant to Section 4.
6. Escrow
Agent; Duties and Liabilities.
(a) It
is expressly understood and agreed by the parties that (i) the duties of
the
Escrow Agent, as herein specifically provided, are purely ministerial in
nature;
(ii) the Escrow Agent shall not have any duty to deposit the Escrowed Funds
except as provided herein, (iii) the Escrow Agent shall not be responsible
or
liable in any manner whatsoever for, or have any duty to inquire into, the
sufficiency, correctness, genuineness or validity of the notices it receives
hereunder, or the identity, authority or rights of any of the parties; (iv)
the
Escrow Agent shall have no duties or responsibilities in connection with
the
Escrowed Funds, other than those specifically set forth in this Agreement;
(v)
the Escrow Agent shall not incur any liability in acting in good faith upon
any
signature, written notice, request, waiver, consent, receipt, or any other
paper
or document believed by the Escrow Agent to be genuine and to have been signed
or sent by the proper parties, without further inquiry or
investigation;
(vi) the Escrow Agent may assume that any person purporting to have authority
to
give notices on behalf of any of the parties in accordance with the provisions
hereof has been duly authorized to do so; (vii) the Escrow Agent shall incur
no
liability whatsoever except for such resulting from its fraud, willful
misconduct or gross negligence, so long as the Escrow Agent has acted in
good
faith in the performance of its duties hereunder; (viii) the Escrow Agent
agrees
that all property held by the Escrow Agent under this Agreement shall be
segregated from all other property held by the Escrow Agent and shall be
identified as being held in connection with this Agreement; and (ix) upon
the
Escrow Agent’s performance of its obligations under Section 5 hereof, the Escrow
Agent shall be relieved of all liability, responsibility and obligation with
respect to the Escrowed Funds or arising out of or under this
Agreement.
(b) The
Escrow Agent shall not be under any obligation to take any legal action in
connection with this Agreement or towards its enforcement or performance,
or to
appear in, prosecute or defend any action or legal proceeding, or to file
any
return, or pay or withhold any income or other tax payable with respect to
any
Escrowed Funds
or the disbursement thereof, or any payment of or in respect of which shall
constitute a Loss under Section 7 below.
(c) In
the event of any disagreement relating to the Escrowed Funds or the disbursement
thereof resulting in adverse claims or demands being made in connection with
the
Escrowed Funds or in the event that the Escrow Agent is in doubt as to what
action it should take hereunder, the Escrow Agent shall be entitled to retain
the Escrowed Funds, but only to the extent of the Escrowed Funds in controversy,
until the Escrow Agent shall have received (i) a final non-appealable order
of a
court of competent jurisdiction regarding the proper disposition; or (ii)
a
joint letter of instruction from the Company and the Placement Agent directing
delivery of the Escrowed Funds, in which event the Escrow Agent shall disburse
the Escrowed Funds in accordance with such order or letter. Any court order
shall be accompanied by a legal opinion by counsel for the presenting party
satisfactory to the Escrow Agent to the effect that the order is final and
non-appealable. The Escrow Agent shall act on such court order and legal
opinion
without further question. If a proceeding for such determination is not begun
and diligently continued, the Escrow Agent may make an ex parte application,
or
bring any appropriate action, for leave to deposit the Escrowed Funds in
the
Supreme Court of the State of New York, County of New York seeking such
determination or such declaratory relief as the Escrow Agent shall deem
reasonably necessary under the circumstances, and the parties each hereby
irrevocably consent to the entering of such an ex parte order pursuant to
all
applicable laws, rules and procedures of the State of New York and such court.
The Escrow Agent shall be reimbursed by the Company, for all of the Escrow
Agent’s reasonable costs and expenses of such action or proceeding, including,
without limitation, reasonable attorneys’ fees and disbursements. This Section
6(c) shall survive any termination of this Agreement or the resignation or
removal of the Escrow Agent in accordance with Section 6(h) below.
-3-
(d) The
Escrow Agent does not have any interest in the Escrowed Funds deposited
hereunder and is serving as escrow agent only and having only possession
thereof.
(e) None
of the provisions of this Agreement shall require the Escrow Agent to expend
or
risk its own funds or otherwise to incur any liability, financial or otherwise,
in the performance of any of its duties hereunder, or in the exercise of
any of
its rights or powers if it shall have reasonable grounds for believing that
repayment of such funds or indemnity satisfactory to it against such risk
or
liability is not assured to it.
(f) The
Escrow Agent may consult with independent counsel and the advice or any opinion
of counsel shall be full and complete authorization and protection in respect
of
any action reasonably taken or omitted by it hereunder in accordance with
such
advice or opinion of counsel.
(g) The
Escrow Agent may at any time resign by giving thirty (30) days' prior written
notice of resignation to the Company and the Placement Agent. Upon receiving
such notice of resignation, the Company and the Placement Agent shall promptly
appoint a successor and, upon the acceptance by the successor of such
appointment and transfer of all Escrowed Funds to such successor, release
the
resigning Escrow Agent from its obligations hereunder (other than obligations
and liabilities arising by reason of the prior fraud, willful misconduct
or
gross negligence of the Escrow Agent) by written instrument, a copy of which
instrument shall be delivered to the resigning Escrow Agent and the successor.
If no successor shall have been so appointed and have accepted appointment
within forty-five (45) days after the giving of such notice of resignation,
the
resigning Escrow Agent may petition any court of competent jurisdiction for
the
appointment of a successor.
The
Company and the Placement Agent may at any time, by issuing a joint written
instruction to the Escrow Agent, terminate the appointment of the Escrow
Agent.
Such joint written instruction shall specify the date upon which such
termination shall take effect. Thereafter, the Escrow Agent shall have no
further obligation hereunder (other
than obligations and liabilities arising by reason of the prior fraud, willful
misconduct or gross negligence of the Escrow Agent) except
to hold the Escrowed Funds as depository. The Company and the Placement Agent
agree that in the event of such termination, they will cooperate with each
other
to jointly appoint a banking corporation, trust company or attorney as successor
Escrow Agent. The Escrow Agent shall refrain from taking any action until
receiving written instructions jointly signed by the Company and the Placement
Agent designating the successor Escrow Agent.
-4-
(h) Any
partnership or other similar entity into which the Escrow Agent may be merged
or
converted or with which it may be consolidated, or any partnership, corporation
or other similar entity resulting from any merger, conversion or consolidation
to which the Escrow Agent shall be a party, or any partnership, corporation
or
other similar entity succeeding to the business of the Escrow Agent shall
be the
successor of the Escrow Agent hereunder without the execution or filing of
any
paper with any party hereto or any further act on the part of any of the
parties
hereto except where an instrument of transfer or assignment is required by
law
to effect such succession, anything herein to the contrary
notwithstanding.
(i) No
printed or other matter in any language which mentions the Escrow Agent’s name
or the rights, powers, or duties of the Escrow Agent shall be issued by the
other parties hereto or on such parties’ behalf unless the Escrow Agent shall
first have given its specific written consent thereto. The Escrow Agent hereby
consents to the use of its name and the reference to the escrow arrangement
in
the Subscription Agreements, the Placement Agency Agreement, the Registration
Statement and any other documents related thereto.
7. Indemnification
of Escrow Agent.
The Company hereby agrees to indemnify and hold the Escrow Agent harmless
from
any and all liabilities, obligations, damages, losses, claims, encumbrances,
costs or expenses (including reasonable attorneys’ fees and expenses) (any or
all of the foregoing herein referred to as a “Loss”)
arising hereunder or under or with respect to the Escrowed Funds, except
for
Losses resulting from (a)
fraud, willful misconduct or gross negligence of the Escrow Agent,
or (b) its following any instructions or other directions from the Company,
to
the extent that its following any such instruction or direction is expressly
forbidden by the terms hereof.
If any such action shall be brought against the Escrow Agent, it shall notify
the Company. Anything
in this Agreement to the contrary notwithstanding, in no event shall the
Escrow
Agent be liable for special, indirect or consequential loss or damage of
any
kind whatsoever (including but not limited to lost profits), even if the
Escrow
Agent has been advised of the likelihood of such loss or damage and regardless
of the form of action.
The
parties hereto acknowledge that the foregoing indemnities shall survive the
resignation or the removal of the Escrow Agent or the termination of this
Agreement.
8. Fees.
The Company agrees to pay the Escrow Agent the administration fee of $2,500,
which shall be paid by the Company within two (2) business days following
the
execution of this Agreement or as otherwise agreed to by the Company and
the
Escrow Agent.
9. Security
Procedures.
In the event funds transfer instructions are given (other than in writing
at the
time of execution of this Agreement, as indicated in Schedule
1
attached hereto), whether in writing, by telecopier or otherwise, the Escrow
Agent is authorized to seek confirmation of such instructions by telephone
call-back to the person or persons designated on Schedule
2
hereto, and the Escrow Agent may rely upon the confirmation of anyone purporting
to be the person or persons so designated. The individuals authorized to
give
and confirm funds transfer instructions may be changed only in a writing
actually received and acknowledged by the Escrow Agent. The Escrow Agent
and the
beneficiary’s bank in any funds transfer may rely solely upon any account
numbers or similar identifying numbers provided by the Company or the Placement
Agent to identify (a) the beneficiary, (b) the beneficiary’s bank, or (c) an
intermediary bank. The Escrow Agent may apply any of the Escrowed funds for
any
payment order it executes using any such identifying number, even when its
use
may result in a person other than the beneficiary being paid, or the transfer
of
funds to a bank other than the beneficiary’s bank or an intermediary bank
designated. The parties to this Agreement acknowledge that these security
procedures are commercially reasonable. All funds transfer instructions must
include the signature of the person(s) authorizing said funds transfer, which
shall be an individual who is designated to give funds transfer instructions
as
designated in Schedule
2.
-5-
10. Notices.
Any notice or demand desired or required to be given hereunder shall be in
writing and deemed given when sent by facsimile transmission with receipt
confirmed to the telephone number below and addressed as follows:
|
a.
|
If
to the Escrow Agent, to:
|
JPMorgan
Chase Bank, N.A.
Escrow
Services
0
Xxx Xxxx Xxxxx, 00xx
Xxxxx
Xxx
Xxxx, XX 00000
Facsimile:
(000)000-0000
Attention:
Xxxxx Xxxxx/Xxxxxx XxXxxxx
with
wire transfers to:
JPMorgan
Chase Bank
ABA
#
Account
No.:
Account
Name: Xxxxxx & Xxxxxx Group Subscription
Attention:
Xxxxx Xxxxx
|
b.
|
If
to the Company, to:
|
Xxxxxx
& Xxxxxx Group, Inc.
000
Xxxx
00xx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
General Counsel
Facsimile
No.: 000-000-0000
with
copies to:
Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx
Xxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxxxx X. Xxxxx, Esq.
Facsimile
No.: 000-000-0000
|
c.
|
If
to the Placement Agent, to:
|
-6-
ThinkPanmure,
LLC
000
Xxxxxxxxxx Xx., 0xx Xxxxx
Xxx
Xxxxxxxxx, XX 00000
Facsimile:
(000) 000-0000
Attention:
Xxx Xxxxxxxx
with
copies to:
Xxxxxxx
Procter LLP
The
New
York Times Building
000
Xxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Facsimile
No.: 000-000-0000
Attention:
Xxxxxxx X. Xxxxxx, Esq.
or
to such other address or account information as hereafter shall be designated
in
writing by the applicable party to the other parties hereto. In the event
that
the Escrow Agent, in its sole discretion, shall determine that an emergency
exists, the Escrow Agent may use such other means of communication as the
Escrow
Agent deems appropriate. For the purposes of this Agreement, “business day”
shall mean any day other than a Saturday, Sunday or any other day on which
the
Escrow Agent located at the notice address set forth in this section is
authorized or required by law or executive order to remain closed.
11. Entire
Agreement.
This Agreement and any exhibits and schedules hereto constitute the entire
agreement between the parties hereto pertaining to the subject matters hereof,
and supersede all negotiations, preliminary agreements and all prior and
contemporaneous discussions and understandings of the parties in connection
with
the subject matters hereof. Any exhibits and schedules hereto are hereby
incorporated into and made a part of this Agreement.
12. Amendments.
No amendment, waiver, change or modification of any of the terms, provisions
or
conditions of this Agreement shall be effective unless made in writing and
signed by all parties or by their duly authorized agents. Waiver of any
provision of this Agreement shall not be deemed a waiver of future compliance
therewith and such provision shall remain in full force and effect.
13. Severability.
In the event any provision of this Agreement is held invalid, illegal or
unenforceable, in whole or in part, the remaining provisions of this Agreement
shall not be affected thereby and shall continue to be valid and
enforceable.
14. Governing
Law.
This Agreement shall be governed and construed in accordance with the laws
of
the State of New York without regard to any applicable principles of conflicts
of law.
15. Submission
to Jurisdiction.
ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT MAY BE BROUGHT
IN
THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES OF AMERICA FOR
THE
SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT,
EACH PARTY HERETO HEREBY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY,
GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS AND
APPELLATE COURTS FROM ANY THEREOF. EACH PARTY HERETO HEREBY IRREVOCABLY CONSENTS
TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY
ACTION
OR PROCEEDING BY THE MAILING OF COPIES THEREOF TO SUCH PARTY BY REGISTERED
OR
CERTIFIED MAIL, POSTAGE PREPAID, RETURN RECEIPT REQUESTED, TO SUCH PARTY,
AT ITS
ADDRESS SPECIFIED HEREIN. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ANY
OBJECTION, INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING OF
VENUE
OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING IN SUCH RESPECTIVE
JURISDICTIONS.
-7-
16. Headings
and Captions.
The titles or captions of paragraphs in this Agreement are provided for
convenience of reference only, and shall not be considered a part hereof
for
purposes of interpreting or applying this Agreement, and such titles or captions
do not define, limit, extend, explain or describe the scope or extent of
this
Agreement or any of its terms or conditions.
17. Gender
and Number.
Words and phrases herein shall be construed as in the singular or plural
number
and as masculine, feminine or neuter gender, according to the
context.
18. Counterparts.
This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original, but all of which together shall constitute
one and the same instrument. Facsimiles may also be deemed originals for
the
purpose of this Agreement.
19. Binding
Effect on Successors and Assigns.
This Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective legal representatives, heirs, successors
and
assigns, and the subscribers of the Shares. Nothing in this Agreement, express
or implied, is intended to confer upon any party, other than the parties
hereto
(and their respective legal representatives, heirs, successors and assigns),
any
rights, remedies, obligations or liabilities.
19. Account
Opening Information.
To help the government fight the funding of terrorism and money laundering
activities, Federal law requires all financial institutions to obtain, verify,
and record information that identifies each person who opens an account.
When an
account is opened, the Escrow Agent will ask for information that will allow
it
to identify relevant parties. Upon execution of this Agreement, each party
shall
provide the Escrow Agent with a fully executed W-8 or W-9 Internal Revenue
Service form, which shall include their Tax Identification Number (TIN) as
assigned by the Internal Revenue Service.
20. Force
Majeure.
In the event that any party or the Escrow Agent is unable to perform its
obligations under the terms of this Agreement because of acts of God, war,
terrorism, fire, floods, electrical outages, strikes, equipment or transmission
failure or damage reasonably beyond its control, or other cause reasonably
beyond its control, the Escrow Agent shall not be liable for damages to the
other parties for any damages resulting from such failure to perform otherwise
from such causes. Performance under this Agreement shall resume when the
Escrow
Agent is able to perform substantially.
21. Termination.
Upon delivery of the Escrowed Funds to the Company, or the Purchasers pursuant
to Section 5 hereof, by the Escrow Agent, this Agreement shall terminate,
subject to the provisions of Section 7 hereof.
-8-
IN
WITNESS WHEREOF, the parties hereto have executed this Escrow Agreement as
of
the date first above written.
|
ESCROW
AGENT:
|
COMPANY:
|
|
JPMORGAN
CHASE BANK, X.X.
|
XXXXXX
& XXXXXX GROUP, INC.
|
|
By:
_/s/Xxxxx
X. DeMarco________
Name: Xxxxx
X. XxXxxxx
Title: Vice
President
|
By:
/s/Xxxxxxx
X. Jamison_______
Name:
Xxxxxxx
X. Xxxxxxx
Title:
President
|
|
PLACEMENT
AGENT:
|
|
|
THINKPANMURE,
LLC
|
|
|
By:
_/s/Xxx
Mitchell_____________
Name: Xxx
Xxxxxxxx
Title: Partner
|
|
-9-
EXHIBIT
A
SUMMARY
OF ESCROWED FUNDS TO BE RECEIVED
|
Name
and Address of Purchaser
|
Number
of
Shares
|
Subscription
Amount
|
Receipt
Confirmed
by
Escrow Agent
|
EXHIBIT
B
FORM
OF OFFERING TERMINATION NOTICE
____________
__, 2008
JPMorgan
Chase Bank, N.A.
Escrow
Services
0
Xxx Xxxx Xxxxx, 00xx
Xxxxx
Xxx
Xxxx, XX 00000
Attention:
_______________
Dear
Sir or Madam:
Pursuant
to Section 5(a) of the Escrow Agreement dated as of ____________, 2008 (the
“Escrow
Agreement”)
by and among ThinkPanmure, LLC, Xxxxxx & Xxxxxx Group, Inc. (the
“Company”)
and you, the Company hereby notifies you of the termination of the offering
of
the Shares (as that term is defined in the Escrow Agreement) and directs
you to
make payments to the Purchasers as provided for in Section 4(a) of the Escrow
Agreement.
Very
truly yours,
XXXXXX
& XXXXXX GROUP, INC.
By:
Name:
Title:
EXHIBIT
C
FORM
OF CLOSING NOTICE
________________,
2008
JPMorgan
Chase Bank, N.A.
Escrow
Services
0
Xxx Xxxx Xxxxx, 00xx
Xxxxx
Xxx
Xxxx, XX 00000
Attention:
_______________
Dear
Sir or Madam:
Pursuant
to Section 5(b) of the Escrow Agreement dated as of _________, 2008 (the
“Escrow
Agreement”),
by and among ThinkPanmure, LLC (the “Placement
Agent”),
Xxxxxx & Xxxxxx Group, Inc. (the “Company”)
and you, the Company hereby certifies that it has received subscriptions
for the
Shares (as that term is defined in the Escrow Agreement) and the Company
will,
subject to and in accordance with the terms of the Placement Agency Agreement
and the Subscription Agreements, as defined in the Escrow Agreement, sell
and
deliver Shares to the Purchasers thereof at a closing to be held on
____________, 2008 (the “Closing
Date”).
The names of the Purchasers concerned, the number of Shares subscribed for
by
each of such Purchasers and the related subscription amounts are set forth
on
Schedule
A
annexed hereto.
Please
accept these instructions as standing instructions for the closing to be
held on
the Closing Date. The parties hereto certify that their instructions may
be
transmitted
to you via facsimile.
We
hereby request that the aggregate subscription amount be paid as
follows:
1.
To the Company, $_________, pursuant to the following wire transfer
instructions:
Bank:
__________
ABA
Number: __________
Account
Number: __________
Account
Name: __________
Attention:
_____________
Reference:
_____________
2.
To the Placement Agent, $_________, pursuant to the following wire transfer
instructions:
Bank:
__________
ABA
Number: __________
Account
Number: __________
Account
Name: __________
Attention:
_____________
Reference:
__________
C-1
3.
To JPMorgan Chase Bank, N.A. as Escrow Agent, $2,500, pursuant to the following
wire transfer instructions:
Bank:
JPMorgan Chase Bank, N.A.
ABA
Number: ________________
Account
Number: ____________________
Account
Name: ____________________
Attention:
____________________
Reference:
Escrow Agent Fees
These
instructions may be executed in any number of counterparts, each of which
shall
be deemed to be an original, and all of which together shall constitute one
and
the same instrument.
[Signatures
on following page]
C-2
Very
truly yours,
XXXXXX
& XXXXXX GROUP, INC.
By:
Name:
Title:
THINKPANMURE,
LLC
By:
Name:
Title:
C-3
SCHEDULE
A
|
Name
of Purchaser
|
Number
of
Shares
|
Subscription
Amount
|
EXHIBIT
D
FORM
OF SUBSCRIPTION TERMINATION NOTICE
________________,
2008
JPMorgan
Chase Bank, N.A.
Escrow
Services
0
Xxx Xxxx Xxxxx, 00xx
Xxxxx
Xxx
Xxxx, XX 00000
Attention:
_______________
Dear
Sir or Madam:
Pursuant
to Section 5(c) of the Escrow Agreement dated as of _________, 2008 (the
“Escrow
Agreement”),
by and among ThinkPanmure, LLC, Xxxxxx & Xxxxxx Group, Inc. (the
“Company”)
and you, the Company hereby notifies you that the following subscription(s)
have
been rejected:
|
Name
of
PURCHASER
|
Number
of Subscribed
SHARES
REJECTED
|
Dollar
Amount of
REJECTED
SUBSCRIPTION
|
|||
Very
truly yours,
XXXXXX
& XXXXXX GROUP, INC.
By:
Name:
Title:
D-1
SCHEDULE
1
Name
of Company: Xxxxxx & Xxxxxx Group, Inc.
Wiring
Instructions:
Bank
Name:
___________
ABA
Number:
___________
Account
Number:
___________
Account
Name: ___________
For
Further Credit: ___________
Name
of Placement Agent: ThinkPanmure, LLC
Wiring
Instructions:
Bank
Name: ___________
ABA
Number: ___________
Account
Number: ___________
Account
Name: ___________
For
Further Credit: ___________
SCHEDULE
2
Telephone
Number(s) for Person(s)
Designated
to Give and Confirm Funds Transfer Instructions
If
to Company:
|
Name
|
Telephone
Number
|
Signature
Specimen
|
|||
|
1.
|
Xxxxxx
Xxxxx
|
(000)
000-0000
|
/s/
Xxxxxx Xxxxx
|
||
|
2.
|
Xxxxxx
Xxxxxx
|
(000)
000-0000
|
/s/
Xxxxxx Xxxxxx
|
||
|
3.
|
Xxxxxxxx
Xxxx
|
(000)
000-0000
|
/s/
Xxxxxxxx Xxxx
|
||
|
If
to Placement Agent:
|
|||||
|
Name
|
Telephone
Number
|
Signature
Specimen
|
|||
|
1.
|
Xxx
Xxxxxxxx
|
(000)
000-0000
|
/s/
Xxx Xxxxxxxx
|
||
|
2.
|
|
||||
|
3.
|
|||||
Telephone
call backs shall be made to both Company and the Placement Agent if joint
instructions are required pursuant to the agreement. All
funds transfer instructions must include the signature of the person(s)
authorizing said funds transfer.
Periodically,
you may issue payment orders to us to transfer funds by federal funds wire.
We
review the orders to determine compliance with the governing documentation
and
to confirm signature by the appropriate party, in accordance with the above
list. Bank policy requires that, where practicable, we undertake callbacks
to a
party other than the individual who signed the payment order to verify the
authenticity of the payment order.
Inasmuch
as you are the only employee in your office who can confirm wire transfers,
we
will call you to confirm any federal funds wire transfer payment order
purportedly issued by you. Your continued issuance of payment orders to us
and
confirmation in accordance with this procedure will constitute your agreement
(1) to the callback security procedure outlined herein and (2) that the security
procedure outlined herein constitutes a commercially reasonable method of
verifying the authenticity of payment orders. Moreover, you agree to accept
any
risk associated with a deviation from this bank policy.
