EXHIBIT 10.1
ESCROW AGREEMENT
WHEREAS, Flex Acquisitions Corporation, a Texas corporation, and American
Nortel Communications, a Wyoming corporation, have caused or will cause
certain shares to be deposited in escrow with SOUTHWEST BANK OF TEXAS N.A., a
national banking corporation ("Escrow Agent"), on terms and conditions more
particularly described herein.
NOW, THEREFORE, in consideration of the premises, the undersigned hereby
agree as follows:
ARTICLE I
TERMS AND CONDITIONS
1.1 Establishment of Fund. The undersigned have caused or will cause
to be deposited with the Escrow Agent 20,000 spin-off shares of FAC common
stock (the balance thereof remaining from time to time being referred to
herein as the "Fund").
1.2 Representation. Southwest Bank of Texas represents that it is an
"insured depository institution" as that term is defined in Section 3(c) (2)
of the Federal Deposit Insurance Act.
1.3 Treatment of Fund. The 20,000 spinoff shares shall be escrowed
with Southwest Bank of Texas pursuant to the following terms and conditions:
A. After declaration by American Nortel of the dividend to its
shareholders of the 20,000 spinoff shares, either American Nortel or its
registrar-transfer agent shall deliver to Escrow Agent stock certificates
representing the spinoff shares, which certificates shall evidence on their
faces the identity of the owners of the shares represented by each
certificate.
B. Escrow agent shall hold the escrowed certificates solely for
the benefit of the owners of the shares represented by such certificates,
which owners shall have all voting rights with respect to such shares as are
provided by Texas law. However, no transfer or other disposition of the
escrowed securities or any interest related to such securities shall be
permitted by FAC or recognized by Escrow Agent other than by will or the law
of descent and distribution, or pursuant to a qualified domestic relations
order as defined by the Internal Revenue Code of 1986 as amended or to Title I
of the Employee Retirement Income Security Act.
1.4 Escrow Procedure and Payment Instruction. The Fund shall be held
and disbursed in accordance with the terms of this Escrow Agreement as
follows:
The certificates placed in escrow with Escrow Agent shall be
released from escrow and delivered by Escrow Agent to FAC's registrar-transfer
agent for delivery by it to the owners of the certificates at such time as or
after Escrow Agent has received a signed representation from FAC as documented
in Exhibit A, together with any other evidence acceptable to Escrow Agent,
that the conditions and requirements set forth in either paragraph 1.4.A. or
1.4.B. below have been met.
A. Should the merger described in the Agreement of Merger be
approved by the shareholders of both FAC and Flex Financial, and should the
necessary merger documents be filed with the Secretary of State of Texas, FAC
shall so represent this to Escrow Agent and shall state the date the merger
became effective.
B. Should the proposed merger described in the Agreement of Merger
not be approved and effected, FAC proposes to search for a merger partner or
for a suitable business or assets to be acquired. At such time as FAC should
execute an agreement of merger or for the acquisition of a business or assets
that would constitute the business of FAC, FAC shall file a post-effective
amendment to the S-4 disclosing the information specified by the S-4
registration statement form and Industry Guides, including financial
statements of FAC and the company to be acquired, and the registration
statement must become effective at the Commission. Then, the alternative
merger or acquisition of a business or assets must be approved and legally
effected, at which time FAC shall represent to Escrow Agent that this has
occurred and that all requirements of the Commission for the release from
escrow of the certificates have been met.
1.5 Termination. This Escrow Agreement shall terminate upon the first
to occur of any of the following events:
A. The disbursement of the balance of the Fund in accordance with
the provisions of Section 1.4 hereof.
B. The expiration of 18 months after the effective date of the
initial S-4, unless certificates have been earlier released from escrow
according to the provisions in Section 1.4. above. Should no release from
escrow have occurred by the termination date, Escrow Agent shall deliver, for
cancellation, all escrowed stock certificates to FAC's stock
registrar-transfer agent.
ARTICLE II
PROVISIONS AS TO ESCROW AGENT
2.1 Limitation of Escrow Agent's Capacity.
A. This Escrow Agreement expressly and exclusively sets forth the
duties of Escrow Agent with respect to any and all matters pertinent hereto,
and no implied duties or obligations shall be read into this Escrow Agreement
against Escrow Agent. This Escrow Agreement constitutes the entire agreement
between the Escrow Agent and the other parties hereto in connection with the
subject matter of this escrow, and no other agreement entered into between the
parties, or any of them, shall be considered as adopted or binding, in whole
or in part, upon the Escrow Agent notwithstanding that any such other
agreement may be deposited with Escrow Agent or the Escrow Agent may have
knowledge thereof.
B. Escrow Agent acts hereunder as a depository only, and is not
responsible or liable in any manner whatsoever for the sufficiency,
correctness, genuineness or validity of the subject matter of this Escrow
Agreement or any part thereof, or for the form of execution thereof, or for
the identity or authority of any person executing or depositing such subject
matter. Escrow Agent shall in no way be responsible for notifying, nor shall
it be its duty to notify, any party hereto or any other party interested in
this Escrow Agreement of any payment required or maturity occurring under this
Escrow Agreement or under the terms of any instrument deposited herewith.
2.2 Authority to Act.
A. Escrow Agent is hereby authorized and directed by the
undersigned to deliver the subject matter of this Escrow Agreement only in
accordance with the provisions of Article I of this Escrow Agreement.
B. Escrow Agent shall be protected in acting upon any written
notice, request, waiver, consent, certificate, receipt, authorization, power
of attorney or other paper or document which Escrow Agent in good faith
believes to be genuine and what it purports to be, including, but not limited
to, items directing investment or non investment of funds, items requesting or
authorizing release, disbursement or retainage of the subject matter of this
Escrow Agreement and items amending the terms of this Escrow Agreement.
C. Escrow Agent may consult with legal counsel in the event of any
dispute or question as to the construction of any of the provisions hereof or
its duties hereunder, and it shall incur no liability and shall be fully
protected in acting in accordance with the advice of such counsel.
D. In the event of any disagreement between any of the parties to
this Escrow Agreement, or between any of them and any other person, resulting
in adverse claims or demands being made in connection with the matters covered
by this Escrow Agreement, or in the event that Escrow Agent, in good faith, be
in doubt as to what action it should take hereunder, Escrow Agent may, at its
option, refuse to comply with any claims or demands on it, or refuse to take
any other action hereunder, so long as such disagreement continues or such
doubt exists, and in any such event, Escrow Agent shall not be or become
liable in any way or to any person for its failure or refusal to act, and
Escrow Agent shall be entitled to continue so to refrain from acting until (i)
the rights of all interested parties shall have been fully and finally
adjudicated by a court of competent jurisdiction, or (ii) all differences
shall have been adjudged and all doubt resolved by agreement among all of the
interested persons, and Escrow Agent shall have been notified thereof in
writing signed by all such persons. Notwithstanding the foregoing, Escrow
Agent may in its discretion obey the order, judgment, decree or levy of any
court, whether with or without jurisdiction, or of any agency of the United
States or any political subdivision thereof, or of any agency of the State of
Texas or of any political subdivision thereof, and Escrow Agent is hereby
authorized in its sole discretion, to comply with and obey any such orders,
judgments, decrees or levies. The right of Escrow Agent under this
sub-paragraph are cumulative of all other rights which it may have by law or
otherwise.
E. In the event that any controversy should arise among the
parties with respect to the Escrow Agreement, or should the Escrow Agent
resign and the parties fail to select another Escrow Agent to act in its
stead, the Escrow Agent shall have the right to institute a ▇▇▇▇ of
interpleader in any court of competent jurisdiction to determine the rights of
the parties.
2.3 Compensation/Indemnification.
A. Escrow Agent shall be entitled to reasonable compensation as
well as reimbursement for its reasonable costs and expenses incurred in
connection with the performance by it of service under this Escrow Agreement
(including reasonable fees and expenses of Escrow Agent's counsel). The
parties hereto agree that escrow fees in the amount of $750.00 will be
deducted from the Fund upon the commencement of the escrow and on each
anniversary date thereafter.
B. The parties to this Escrow Agreement (other than Escrow Agent)
hereby jointly and severally agree to indemnify and hold Escrow Agent harmless
from all losses, costs, claims, demands, expenses, damages, and attorney's
fees suffered or incurred by Escrow Agent as a result of anything which it may
do or refrain from doing in connection with this Escrow Agreement or any
litigation or cause of action arising from or in conjunction with this Escrow
Agreement or involving the subject matter hereof or Escrow Funds or monies
deposited hereunder or for any interest upon any such monies. This indemnity
shall include, but not be limited to, all costs incurred in conjunction with
any interpleader which the Escrow Agent may enter into regarding this Escrow
Agreement.
2.4 Miscellaneous.
A. Escrow Agent shall make no disbursement, investment or other
use of funds until and unless it has collected funds. Escrow Agent shall not
be liable for collection items until the proceeds of the same in actual cash
have been received or the Federal Reserve has given Escrow Agent credit for
the funds.
B. Escrow Agent may resign at any time by giving written notice to
the parties hereto, whereupon the parties hereto will immediately appoint a
successor Escrow Agent. Until a successor Escrow Agent has been named and
accepts its appointment or until another disposition of the subject matter of
this Escrow Agreement has been agreed upon by all parties hereto, Escrow Agent
shall be discharged of all of its duties hereunder save to keep the subject
matter whole.
C. All representations, covenants, and indemnifications contained
in this Article II shall survive the termination of this Escrow Agreement.
ARTICLE III
GENERAL PROVISIONS
3.2 Discharge of Escrow Agent. Upon the delivery of all of the
subject matter or monies pursuant to the terms of this Escrow Agreement, the
duties of Escrow Agent shall terminate and Escrow Agent shall be discharged
from any further obligation hereunder.
3.3 Escrow Instructions. Where directions or instructions from more
than one of the undersigned are required, such directions or instructions may
be given by separate instruments of similar tenor. Any of the undersigned may
act hereunder through an agent or attorney-in fact, provided satisfactory
written evidence of authority is first furnished to any party relying on such
authority.
3.4 Notice. Any payment, notice, request for consent, report, or any
other communication required or permitted in this Escrow Agreement shall be in
writing and shall be deemed to have been given when personally delivered to
the party hereunder specified or when placed in the United States mail,
registered or certified, with return receipt requested, postage prepaid and
addressed as follows:
If to Escrow Agent:
Southwest Bank of Texas, N.A.
4295 San ▇▇▇▇▇▇
P. O. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇/Vice President
If to Flex Acquisitions Corporation:
▇▇▇ ▇. ▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇ 7 77056
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
If to American Nortel:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇, CEO
Any party may unilaterally designate a different address by giving notice
of each such change in the manner specified above to each other party.
3.5 Governing Law. This Escrow Agreement is being made in and is
intended to be construed according to the laws of the State of Texas. It shall
inure to and be binding upon the parties hereto and their respective
successors. heirs and assigns.
3.6 Construction. Words used in the singular number may include the
plural and the plural may include the singular. The section headings appearing
in this instrument have been inserted for convenience only and shall be given
no substantive meaning or significance whatsoever in construing the terms and
conditions of the Escrow Agreement.
3.7 Amendment. The terms of this Escrow Agreement may be altered,
amended, modified or revoked only by an instrument in writing signed by the
undersigned and Escrow Agent.
EXECUTED as of the dates set forth below.
American Nortel Communications, Inc.
Date: August 8, 1996
By: /S/ ▇. ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President/CEO
Flex Acquisitions Corporation
Date: 8-15-96 By: /S/ M. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: M. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President
SOUTHWEST BANK OF TEXAS, N.A., Escrow Agent, hereby accepts its
appointment as Escrow Agent as described in the foregoing Escrow Agreement,
subject to the terms and conditions set forth therein.
SOUTHWEST BANK OF TEXAS, N.A.
Date: 8/21/96 By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇
Title: EVP/Chief Financial Officer
ACKNOWLEDGMENT OF RECEIPT
The undersigned hereby acknowledge receipt from and/or disbursement by
Southwest Bank, N.A., Escrow Agent under the foregoing Escrow Agreement, of
the subject matter of the Escrow Agreement as described in such Escrow
Agreement; the undersigned acknowledge a faithful and proper performance by
said Escrow Agent of its duties under said Escrow Agreement, and in
consideration of such disbursement hereby release and discharge said Escrow
Agent from all further responsibility or liability as Escrow Agent under said
Escrow Agreement.
Executed this _____ day of ____________, 199__.
By:
Name:
Title:
EXHIBIT A
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Southwest Bank of Texas, N.A.
As Escrow Agent
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Re: Escrow Agreement: ___________________ and _______________________
Dear ▇▇. ▇▇▇▇▇▇▇▇:
Reference is made to the escrow agreement dated _____________________________
among ________________________________,
_______________________________________, and Southwest Bank of Texas, N.A.
(the " Escrow Agreement"). We represent that the requirements of paragraph
(e)(1) and(e)(2) of SEC Rule 419 have been met and hereby instruct you,
pursuant to Section 1.4 of the Escrow Agreement to return the fund to:
_____________________________
_____________________________
_____________________________
_____________________________
By:
Name:
Title:
By:
Name:
Title:
