ESCROW AGREEMENT
This Escrow Agreement is executed as of the 21st day of July, 1998 by and
between Xxxxxxxx Equipment & Engineering Co., a Florida corporation (the
"Company") and SunTrust Bank, Central Florida, National Association (the
"Depository"). The parties hereto hereby agree as follows:
1. Upon receipt of funds representing the purchase price for the Company's
Shares of Common Stock (the Unit's) sold by the Company or its NASD member
Placement Agent(s) pursuant to the offering made by the Company's Initial Public
Offering Prospectus dated _______ (the "Offering"), the Company or its agents,
as aforesaid, shall promptly deliver such funds to the Depository together with
the following information for each purchaser: (i) the purchaser's name, address
and phone number and (ii) the purchaser's federal tax identification number.
2. The Depository shall hold such proceeds in a special escrow account
(the "Escrow Account") designated SunTrust Bank, Central Florida, National
Association as Depository for Subscribers for Units of Xxxxxxxx Equipment &
Engineering Co. Such funds shall be held in escrow until the Depository has
received on or before 8-15-98 (which date may be extended by the Company in
writing to a date not later than 11-14-98) (the "Expiration Date") funds
totaling $2,537,500.00, representing the minimum subscription of the offering.
Upon receipt of the foregoing (the "Minimum Subscription"), and at the written
direction of the Company, the Depository shall disburse the collected funds in
the Escrow Account to the Company or its designee(s), and thereupon this
Agreement and the duties of the Depository hereunder shall terminate.
3. In the event the Minimum Subscription is not reached by the close of
business on the Expiration Date or if the Depository is notified in writing that
the Offering has been terminated for any reason prior to reaching the Minimum
Subscription, the Depository shall return all funds theretofore received in
payment for Units and held in the Escrow Account to the subscribers therefor,
without interest.
4. Collected funds on deposit in the Escrow Account shall be invested in
an interest bearing account. All interest accrues to the benefit of the
Depository.
5. In connection with the performance of its obligations hereunder, the
Depository shall not be liable to the Company or its agents except for its
breach of this Agreement or its gross negligence or willful misconduct. The
Company will indemnify and hold harmless the Depository against and from any and
all loss, cost, damage or expense suffered or incurred by the Depository arising
out of this Escrow Agreement or the performance of its obligations hereunder
except only such as results from the Depository's breach of this Agreement or
its gross negligence or willful misconduct.
6. If any parties to this Agreement shall be in disagreement about the
interpretations of this Escrow Agreement, or about the rights and obligations,
or the property of any action contemplated by the Escrow Agent hereunder, the
Escrow Agent may, but shall not be required to,
file an action of interpleader in the Circuit of Orange County, Florida (the
"Court") and deposit all funds then held in Escrow Account in the registry of
the Court. The Escrow Agent shall be indemnified by the Company for all costs,
including reasonable attorney's fees, incurred by it in connection with the
aforesaid interpleader action, and the Escrow Agent shall be fully protected in
suspending all or part of its activities under this Agreement until a final
judgement or other appropriate order in the interpleader action is received.
The exclusive venue for all actions under this Agreement shall be Orange County,
Florida.
7. The Escrow Agent may resign and be discharged from its duties or
obligations hereunder, and under the Agreement, by giving written notice to the
Company of such resignation specifying a date when such resignation shall take
effect, provided the effective date of such resignation shall not be earlier
than thirty (30) days after the date of such notice. In the event that the
Escrow Agent fails to receive written instructions as to the disposition of the
funds from the Company prior to the effective date of Escrow Agent's resignation
(as to a successor escrow agent or otherwise), the Escrow Agent shall be
relieved of its duties and liabilities hereunder, upon delivery of all items
held by it pursuant to the Agreement, and hereto, to the Clerk of the Circuit
Court of Orange County, Florida accompanied by a xxxx of interpleader.
8. The Escrow Agent shall be entitled to compensation from the Company for
its services hereunder in an amount not less than $1,000.00. In the event Escrow
Agent must return the escrow funds to a Subscriber, the Company agrees to
compensate Escrow Agent by paying said Agent an additional $10.00 per
Subscriber. Interest earnings from the subscription funds will be utilized as an
offset to the Escrow Agent's fees.
9. This Escrow Agreement is being entered into in Florida and shall be
construed and enforced in accordance with the laws of that State. Any dispute
between the parties and any action seeking to enforce the terms of this Escrow
Agreement shall be brought in trial courts located in Orange County, Florida,
and any objection as to the jurisdiction of or venue in such courts that any
party hereto would otherwise have is hereby waived.
EXECUTED at Orlando, Florida as of the date first written above.
"Company"
Xxxxxxxx Equipment & Engineering Co.
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------
Xxxxxx X. Xxxxxxxx
As its: President/Director
"Depository"
SunTrust Bank, Central Florida,
National Association
By: /s/ M. Xxxxx Xxxxxx
--------------------------------
M. Xxxxx Xxxxxx
As its: Vice President
