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Exhibit 10.1
ESCROW AGREEMENT dated as
of the 16th day of October,
1997 (the "Agreement") by
and between XXXXX XXXXX
CAPITAL GROUP, INC., a
Florida corporation (the
"Company"), and FIDUCIARY
TRUST INTERNATIONAL OF THE
SOUTH (the "Escrow Agent").
ESCROW AGREEMENT
The Company has entered into an Underwriting Agreement dated September
22, 1997 (the "Underwriting Agreement") with COMMUNITY INVESTMENT SERVICES,
INC., as representative to certain underwriters participating in the selling
group (the "Underwriter") wherein the Company has agreed to sell through
licensed dealers 1,350,000 shares of Common Stock, par value $.0001 per share
(the "Shares"),as more fully described in the Company's definitive Prospectus
dated September 22, 1997 (the "Prospectus") comprising part of the Company's
Registration Statement on Form SB-2 under the Securities Act of 1933, as amended
(File No. 333-31001), declared effective on September 22, 1997 (the
"Registration Statement").
The Company desires that the Escrow Agent accept eighty percent (80%)
of the Net Proceeds (as defined in the Prospectus) to be derived by the Company
from the sale of the Shares (the "Offering Proceeds"), to be held in escrow and
disbursed as hereinafter provided.
NOW, THEREFORE, in consideration of the premises and mutual covenants
hereinafter set forth, the parties hereto agree as follows:
1. APPOINTMENT OF ESCROW AGENT. The Company hereby appoints the Escrow
Agent to act in accordance with and subject to the terms of this Agreement, and
the Escrow Agent hereby accepts such appointment and agrees to act in accordance
with and subject to such terms.
2. ESTABLISHMENT OF ESCROW ACCOUNT. The Escrow Agent shall open an
escrow account (the "Escrow Account") for the deposit of the Offering Proceeds,
subject to the terms and conditions of this Agreement.
3. DEPOSIT OF OFFERING PROCEEDS. Upon the closing of the sale of the
Shares as contemplated by the Underwriting Agreement, the Company shall deliver
or cause to be delivered to the Escrow Agent a certified or bank check in the
amount of the Offering Proceeds drawn to the order of the Escrow Agent or,
alternatively, drawn to the order of the Company but endorsed by the Company for
collection by the Escrow Agent and credit to the Escrow Account.
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4. DISBURSEMENT OF THE ESCROW ACCOUNT. Upon the earlier of (i) written
notification by the Company to the Escrow Agent of its need for all, or
substantially all, of the Offering Proceeds for the purpose of implementing, or
facilitating the implementation of, a Business Combination (as such term is
defined in the Prospectus); or (ii) the exercise by certain shareholders of the
Redemption Offer (as such term is defined in the Prospectus); or (iii) written
notification from the Company to the Escrow Agent to deliver the Offering
Proceeds to another escrow agent in accordance with Paragraph 5.7, then, in such
event, the Escrow Agent shall disburse the Escrow Account (inclusive of any
interest thereon) to the Company or its designees, whereupon the Escrow Agent
shall be released from further liability hereunder. In no event may the funds in
the Escrow Account, including any interest earned thereon, be used for expenses
associated with the evaluation and structuring of a contemplated Business
Combination. Upon disbursement of the Escrow Account to the Company, the Escrow
Agent shall notify in riting Community Investment Services, Inc., 00000 X.X.
000xx Xxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxx 00000, attention Xxxxxxx Xxxxx.
5. ESCROW AGENT.
5.1 The Escrow Agent may act in reliance upon any writing or
instrument or signature which it, in good faith, believes to be genuine; may
assume the validity and accuracy of any statements or assertions contained in
such writing or instrument; and may assume that any person purporting to give
any writing, notice, advice or instruction in connection with the provisions
hereof has been duly authorized to do so. The Escrow Agent shall not be liable
in any manner for the sufficiency or correctness as to form, manner of
execution, or validity of any written instructions delivered to it; nor as to
the identity, authority, or rights of any person executing the same. The duties
of the Escrow Agent shall be limited to the safekeeping of the Escrow Account
and to disbursements of same in accordance with the provisions hereof. The
Escrow Agent undertakes to perform only such duties as are expressly set forth
herein, and no implied duties or obligations of the Escrow Agent shall be
implied by virtue of this Agreement.
5.2 The Escrow Agent may consult with counsel of its own choice and
shall have full and complete authorization and protection for any action taken
or suffered by it hereunder in good faith and in accordance with the opinion of
such counsel. The Escrow Agent shall not be liable for any mistakes of fact or
error of judgment, or for any acts or omissions of any kind unless caused by its
willful misconduct or gross negligence.
5.3 The Escrow Agent shall be indemnified and held harmless by the
Company from and against any reasonable expenses, including counsel fees and
disbursements, or loss suffered by the Escrow Agent in connection with any third
party action, suit or other proceeding involving any claim, or in connection
with any
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claim or demand, which in any way directly or indirectly arises out of or
relates to this Agreement, the services of the Escrow Agent hereunder, the
monies or other property held by it hereunder or any such expense or loss.
Promptly after the receipt by the Escrow Agent of notice of any demand or claim
or the commencement of any action, suit or proceeding, the Escrow Agent shall,
if a claim in respect thereof shall be made against the other parties hereto,
notify such parties thereof in writing; but the failure by the Escrow Agent to
give such notice shall not relieve any party from any liability which such party
may have to the Escrow Agent hereunder. In the event of the receipt of such
notice, the Escrow Agent, in its sole discretion, may commence an action in the
nature of interpleader in an appropriate court to determine ownership or
disposition of the Escrow Account or it may deposit the Escrow Account with the
clerk of any appropriate court or it may retain the Escrow Account pending
receipt of a final, non-appealable order of a court having jurisdiction over all
of the parties hereto directing to whom and under what circumstances the Escrow
Account is to be disbursed and delivered.
5.4 During the term hereof, the Escrow Agent shall invest the
Offering Proceeds at the discretion of the Company in either short-term U.S.
government securities or in short-term U.S. treasury collateralized instruments
and all monies earned as a result of such investment shall remain in escrow and
shall be for the benefit of the Company and shall be used by the Company either
(i) following a Business Combination in connection with the operation of an
Acquired Business (as such term is defined in the Prospectus) or (ii) in
connection with the distribution to the shareholders through the exercise of the
Redemption Offer or the liquidation of the Company. In the event the Escrow
Agent receives no direction from the Company with respect to the investment of
the Offering Proceeds, the Escrow Agent shall invest the Offering Proceeds in
direct obligations of the U.S. Government or in short-term U.S. treasury
collateralized instruments and all interest earned thereon shall be for the
benefit of the Company.
5.5 The Escrow Agent shall be entitled to reasonable compensation
from the Company for all services rendered by it hereunder, not to exceed half
of one percent of the market value of the Escrow Account, on an annualized
basis.
5.6 From time to time on and after the date hereof, the Company
shall deliver or cause to be delivered to the Escrow Agent such further
documents and instruments and shall do or cause to be done such further acts as
the Escrow Agent shall reasonably request (it being understood that the Escrow
Agent shall have no obligation to make such request) to carry out more
effectively the provisions and purposes of this Agreement, to evidence
compliance herewith or to assure itself that it is protected in acting
hereunder.
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5.7 The Escrow Agent may resign at any time and be discharged from
its duties as Escrow Agent hereunder by its giving the other parties hereto at
least thirty (30) days prior written notice thereof. As soon as practicable
after its resignation, the Escrow Agent shall turn over to a successor escrow
agent appointed by the other parties hereto, jointly, all monies and property
held hereunder upon presentation of the document appointing the new escrow agent
and its acceptance thereof. If no new escrow agent is so appointed within the
sixty (60) day period following the giving of such notice of resignation, the
Escrow Agent may deposit the Escrow Account with any court it deems appropriate.
5.8 The Escrow Agent shall resign and be discharged from its duties
as Escrow Agent hereunder if so requested in writing at anytime by the Company,
provided, however, that such resignation shall become effective only upon
acceptance of appointment by a successor escrow agent as provided in paragraph
5.7.
5.9 Notwithstanding anything herein to the contrary, the Escrow
Agent shall not be relieved from liability hereunder for its own gross
negligence or its own willful misconduct.
6. MISCELLANEOUS.
6.1 This Agreement shall for all purposes be deemed to be made under
and shall be construed in accordance with the laws of the State of Florida. This
Agreement shall be subject to the exclusive jurisdiction of the courts of Dade
County, Florida. The parties to this Agreement agree that any breach of any term
or condition of this Agreement shall be deemed to be a breach occurring in the
State of Florida by virtue of a failure to perform an act required to be
performed in the State of Florida and irrevocably and expressly agree to submit
to the jurisdiction of the courts of the State of Florida for the purpose of
resolving any disputes among the parties relating to this Agreement or the
transactions contemplated hereby. The parties irrevocably waive, to the fullest
extent permitted by law, any objection which they may now or hereafter have to
the laying of venue of any suit, action or proceeding arising out of or relating
to this Agreement, or any judgment entered by any court in respect hereof
brought in the State of Florida, and further irrevocably waive any claim that
any suit, action or proceeding brought in Dade County, Florida has been brought
in an inconvenient forum.
6.2 This Agreement contains the entire agreement of the parties
hereto with respect to the subject matter hereof and, except as expressly
provided herein, may not be changed or modified except by an instrument in
writing signed by the party to be charged.
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6.3 The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation
thereof.
6.4 This Agreement shall be binding upon and inure to the benefit of
the respective parties hereto and their legal representatives, successors and
assigns.
6.5 Any notice or other communication required or which may be given
hereunder shall be in writing and either be delivered personally or be mailed,
certified or registered mail, return receipt requested, postage prepaid, and
shall be deemed given when so delivered personally or, if mailed, two (2) days
after the date of mailing, as follows:
If to the Company, to:
Xxxxx Xxxxx Capital Group, Inc.
000 Xxxxx Xxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxx, President
With a copy to:
Xxxxxxx Xxxxxx Xxxxxx Xxxxxxxx
Xxxxxxxx & Xxxxxxxxx, P.A.
000 Xxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
and if to the Escrow Agent, to:
Fiduciary Trust International
of the South
000 X.X. 0xx Xxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxx, Chief Financial Officer
The parties may change the persons and addresses to which the notices or other
communications are to be sent by giving written notice of any such change in the
manner provided herein for giving notice.
6.6 This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original but all of which together shall
constitute one and the same instrument.
6.7 Nothing contained in this Agreement is intended or shall be
construed to give any person, corporation or other entity, other than the
parties hereto and their respective successors and permitted assigns, any legal,
equitable right, remedy or claim under or in respect to this Agreement or any
provision herein
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contained, this Agreement being intended to be and being for the sole and
exclusive benefit of the parties hereto and their respective successors and
permitted assigns.
WITNESS the execution of this Agreement as of the date first above
written.
XXXXX XXXXX CAPITAL GROUP, INC.
By:
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Xxxx X. Xxxxx, President
Attest:
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Xxxxxx X. Xxxxxx, Secretary
This Escrow Agreement is accepted as of the 16th day of October, 1997.
FIDUCIARY TRUST INTERNATIONAL
OF THE SOUTH
By:
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Authorized Representative
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