EXHIBIT 99(a): Escrow Agreement
AGREEMENT FOR PUBLIC SUBSCRIPTION ESCROW
THIS ESCROW AGREEMENT is made and entered into as of the _____
day of ____________ 2002, by and between NevWest Securities
Corporation, a Nevada corporation ("Agent of the Issuer"), Body
Art & Science, Inc., a Nevada Corporation ("Company"), and Xxxxx
Fargo Bank Arizona, National Association, (the "Escrow Agent").
WHEREAS, the Company intends to offer publicly through the Agent
of the Issuer not less than 1,000,000 nor more than 3,000,000 of
shares of Common Stock of the Company (the "Securities"), for
which each subscriber will pay $0.25 per share; and
WHEREAS, it has been determined that the proceeds to be received
from the offering should be placed in escrow until such time as
subscriptions for $250,000 of the Securities (the "Minimum
Amount"), has been deposited into escrow;
WHEREAS, the Escrow Agent is willing to accept appointment as
Escrow Agent for only the expressed duties outlined herein.
NOW, THEREFORE, in consideration of the premises and agreements
set forth herein, the parties hereto agree as follows:
1. Proceeds to be Escrowed. All funds received by the Agent of
the Issuer in payment for the Securities will be forwarded to the
Escrow Agent by noon of the business day following the day, upon
which such proceeds are received by the Agent of the Issuer, and
shall be retained in escrow by the Escrow Agent in a separate,
non-interest bearing account or invested as stated below. During
the term of this Escrow Agreement, the Agent of the Issuer shall
instruct subscribers that all checks received by it in payment
for such Securities must be made payable to Xxxxx Fargo Bank
Arizona fbo BAS ("Escrow Account"). Any checks received that are
made payable to a party other than the Escrow Account shall be
promptly returned by the Agent of the Issuer to the party that
submitted the check.
In the event that any checks deposited in the escrow accounts
prove uncollectable after the funds represented thereby have been
released by the Escrow Agent to the Company, then the Company
shall promptly reimburse the Escrow Agent for any and all cost
incurred for such, upon request, and the Escrow Agent shall
deliver the returned checks to the Company.
2. Identity of Subscribers. The Agent of the Issuer shall
furnish to the Escrow Agent with each delivery of funds, as
provided in paragraph 1 hereof, a list of the persons who have
paid money for the purchase of Securities showing the name,
address, amount of Securities subscribed for and the amount of
money paid. All proceeds so deposited shall remain the property
of the subscriber and shall not be subject to any liens or
charges by the Company, the Agent of the Issuer, or the Escrow
Agent, or judgments or creditors' claims against the Company,
until released to the Company as hereinafter provided.
3. Disbursement of Funds. From time to time, and promptly
following the Termination Date (as defined in paragraph 4
hereof), the Escrow Agent shall notify the Company of the amount
of the funds received hereunder. If payments of the Minimum
Amount for Securities are obtained at any time on or prior to the
Termination Date, the Minimum amount shall be payable to the
Company by noon of the following business day upon receipt by
Escrow Agent of written directions from the Company, and
thereafter the Escrow Account will remain open until the
Termination Date for the purpose of depositing therein the
subscription price for additional securities sold in the
Offering, which additional Escrow Funds shall be available to the
Company as instructed by the Company.
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If the Minimum Amount of proceeds has not been delivered prior to
the Termination Date, the Escrow Agent shall, upon receipt of
written confirmation from the Company, refund to each subscriber
at the address appearing on the list of subscribers, or at such
other address as shall be furnished to the Escrow Agent by the
subscriber in writing, all sums paid by the subscriber pursuant
to his subscription agreement for Securities, and shall then
notify the Company and the Agent of the Issuer in writing of such
refunds. The Company may extend the offering once the Minimum
Amount has been received by the Escrow Agent, until such time as
it has received the Maximum Amount by giving written notice to
the Escrow Agent.
4. Term of Escrow. The "Termination Date" shall be the earlier
of the following dates:
A. The expiration of 180 days from the date of commencement of
the Offering; or
B. The date upon which a determination is made by the Company and
the Agent of the Issuer to terminate the offering prior to the
sale of the Minimum.
In all events this escrow shall terminate upon the one-year
anniversary from the date of this agreement.
5. Duty and Liability of the Escrow Agent. The sole duty of the
Escrow Agent, other than as herein specified, shall be to receive
said funds and hold them subject to release, in accordance
herewith, and the Escrow Agent shall be under no duty to
determine whether the Agent of the Issuer is complying with
requirements of this Escrow Agreement in tendering to the Escrow
Agent said proceeds of the sale of said Securities. The Escrow
Agent may conclusively rely upon and shall be protected in acting
upon any statement, certificate, notice, request, consent, order
or other document believed by it to be genuine and to have been
signed or presented by the proper party or parties. The Escrow
Agent shall have no duty or liability to verify any such
statement, certificate, notice, request, consent, order or other
document, and its sole responsibility shall be to act only as
expressly set forth in this Escrow Agreement. The Escrow Agent
shall be under no obligation to institute or defend any action,
suit or proceeding in connection with this Escrow Agreement
unless first indemnified to its satisfaction. The Escrow Agent
may consult counsel in respect of any question arising under this
Escrow Agreement and the Escrow Agent shall not be liable for any
action taken or omitted in good faith upon advice of such
counsel.
6. Escrow Agent's Fee. The Escrow Agent shall be entitled to
compensation for its services as stated in the fee schedule
attached hereto as Exhibit A, which compensation shall be paid by
the Company. The fee agreed upon for the services rendered
hereunder in intended as full compensation for the Escrow Agent's
services as contemplated by this Escrow Agreement; provided,
however, that in the event that the conditions for the
disbursement of funds under this Escrow Agreement are not
fulfilled, or the Escrow Agent renders any material service not
contemplated in this Escrow Agreement, or there is any assignment
of interest in the subject matter of this Escrow Agreement, or
any material modification hereof, or if any material controversy
arises hereunder, or the Escrow Agent is made a party to any
litigation pertaining to this Escrow Agreement, or the subject
matter hereof, then the Escrow Agent shall be reasonably
compensated for such extraordinary services and reimbursed for
all costs and expenses, including reasonable attorney's fees,
occasioned by any delay, controversy, litigation or event, and
the same shall be recoverable jointly and severally from the
Agent of the Issuer and the Company.
7. Investment of Proceeds. All funds held by the Escrow Agent
pursuant to this Escrow Agreement shall constitute trust property
for the purposes for which they are held. The Escrow Agent shall
keep all funds received from subscribers in cash or,
alternatively, invest such funds only in investments permissible
under SEC Rule 15c2-4 as directed in writing by Agent of the
Issuer. However, under any and all circumstances, the Escrow
Account shall bear no interest to subscribers or the Company.
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8. Issuance of Certificates. Until the terms of this Escrow
Agreement with respect to Securities have been met and the funds
hereunder received from subscriptions for Securities have been
released to the Company, the Company may not issue any
certificates or other evidence of Securities, except subscription
agreements.
9. Notices. All notices, requests, demands, and other
communications under this Escrow Agreement shall be in writing
and shall be deemed to have been duly given (a) on the date of
service if served personally on the party to whom notice is to be
given, (b) on the day of transmission if sent by facsimile
transmission to the facsimile number given below, and telephonic
confirmation of receipt is obtained promptly after completion of
transmission, (c) on the day after delivery to Federal Express or
similar overnight courier or the Express Mail service maintained
by the United States Postal Service, or (d) on the fifth day
after mailing, if mailed to the party to whom notice is to be
given, by first class mail, registered or certified, postage
prepaid, and properly addressed, return receipt requested, to the
party as follows:
If to the Company:
Body Art & Science, Inc.
0000 Xxxx Xxxx Xxxx Xxxx., Xxxxx 000
Xxx Xxxxx, XX 00000
Attn: Xxxxx Xxxxx
If to the Agent of the Issuer
NevWest Securities Corporation
0000 Xxxx Xxxxxxx Xxxxx Xxxx, Xxxxx X-0
Xxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx
Phone: 000-000-0000
Fax: 000-000-0000
If to Escrow Agent:
Xxxxx Fargo Bank Arizona, National Association
Corporate Trust Department
Attn: Xxxxxx Xxxxxx
MAC S4101-080
000 Xxxx Xxxxxxxxxx
Xxxxxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
Any party may change its address for purposes of this paragraph
by giving the other party written notice of the new address in
the manner set forth above.
10. Indemnification of Escrow Agent: The Company and the Agent of
the Issuer hereby jointly indemnify and hold harmless the Escrow
Agent from and against, any and all loss, liability, cost, damage
and expense, including, without limitation, reasonable counsel
fees, which the Escrow Agent may suffer or incur by reason of any
action, claim or proceeding brought against the Escrow Agent
arising out of or relating in any way to this Escrow Agreement or
any transaction to which this Escrow Agreement relates unless
such action, claim or proceeding is the result of the willful
misconduct of the Escrow Agent. The Escrow Agent may consult
counsel in respect of any question arising under this Escrow
Agreement and the Escrow Agent shall not be liable for any acting
taken or omitted in good faith upon advice of such counsel.
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11. Successors and Assigns. Except as otherwise provided in
this Escrow Agreement, no party hereto shall assign this Escrow
Agreement or any rights or obligations hereunder without the
prior written consent to the other parties hereto and any such
attempted assignment without such prior written consent shall be
void and of no force and effect. This Escrow Agreement shall
inure to the benefit of and shall be binding upon the successors
and permitted assigns of the parties hereto.
12. Governing Law; Jurisdiction. This Escrow Agreement shall be
construed, performed, and enforced in accordance with, and
governed by, the internal laws of the State of Arizona, without
giving effect to the principles of conflicts of laws thereof.
Each party hereby consents to the personal jurisdiction and venue
of any United States District Court for the District of Arizona
located in Maricopa County, Arizona.
13. Non-Liability. The Escrow Agent shall not be liable for any
act or omission while acting in good faith and in the exercise of
its own best judgment. Any act or omission by the Escrow Agent
pursuant to the advice of its attorneys shall be conclusive
evidence of such good faith. The Escrow Agent shall have the
right to consult with counsel whenever any question arises
concerning the Escrow Agreement and shall incur no liability for
any delay reasonably required to obtain such advice of counsel.
The Escrow Agent shall not be liable for the alteration,
modification or elimination of any right permitted or given under
the instructions set forth in this Escrow Agreement and/or in any
document deposited under the Escrow Agreement pursuant to any
Statute of Limitations or by reason of laches. The Escrow Agent
shall have no further responsibility or liability whatsoever to
any or all of the parties following a partial or complete
distribution of the escrowed funds pursuant to this Escrow
Agreement. The Escrow Agent shall not incur any liability with
respect to any act or omission in reliance upon any document,
including any written notice or instruction provided for in the
Escrow Agreement. In performing its obligations hereunder, the
Escrow Agent shall be entitled to presume, without inquiry, the
due execution, validity and effectiveness of all documents it
receives, and also the truth and accuracy of any information
contained therein.
14. Severability. In the event that any part of this Escrow
Agreement is declared by any court or other judicial or
administrative body to be null, void, or unenforceable, said
provision shall survive to the extent it is not so declared, and
all of the other provisions of this Escrow Agreement shall remain
in full force and effect.
15. Amendments; Waivers. This Escrow Agreement may be amended
or modified, and any of the terms, covenants, representations,
warranties, or conditions hereof may be waived, only by a written
instrument executed by the parties hereto, or in the case of a
waiver, by the party waiving compliance. Any waiver by any party
of any condition, or of the breach of any provision, term,
covenant, representation, or warranty contained in this Escrow
Agreement, in any one or more instances, shall not be deemed to
be nor construed as further or continuing waiver of any such
condition, or of the breach of any other provision, term,
covenant, representation, or warranty of this Escrow Agreement.
16. Entire Agreement. The Escrow Agent shall not be a party to,
or bound by, any agreement between the Company, the Agent of the
Issuer, and the Escrow Agent other than this Escrow Agreement.
The Escrow Agent shall have no duty to know or inquire as to the
performance or nonperformance of any provision of any such
agreement between the parties.
17. Disagreements. If any disagreement or dispute arises
between the parties to this Escrow Agreement concerning the
meaning or validity of any provision hereunder or concerning any
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other matter relating to this Escrow Agreement, the Escrow Agent
shall be under no obligation to act, except under process or
order of court, or until it has been adequately indemnified to
its full satisfaction, and shall sustain no liability for its
failure to act pending such process, court order or
indemnification.
18. Section Headings. The section headings in this Escrow
Agreement are for reference purposes only and shall not affect
the meaning or interpretation of this Escrow Agreement.
19. Counterparts. This Escrow Agreement may be executed in
counterparts, each of which shall be deemed an original, but all
of which shall constitute the same instrument.
20. Time of Essence. Time is of the essence of this Escrow
Agreement.
21. Resignation. The Escrow Agent may resign at any time by
furnishing written notice of its resignation to the Agent of the
Issuer. The Agent of the Issuer may remove the Escrow Agent at
any time by furnishing to the Escrow Agent a written notice of
its removal. Such resignation or removal, as the case may be,
shall be effective upon delivery of such notice.
IN WITNESS WHEREOF, the parties hereto have caused this Escrow
Agreement to be executed the day and year first set forth above.
Body Art & Science, Inc.
By:
President
NevWest Securities Corporation
By:
Xxxxxx X. Xxxxxx, Esq.
Vice-President, Director
Xxxxx Fargo Bank Arizona, National Association
as Escrow Agent
By:________________________
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Corporate Trust and Escrow Services
MAC S4101-080
000 Xxxx Xxxxxxxxxx, 0xx Xxxxx
Xxxxxxx, XX 00000
(000) 000-0000 Tele
(000) 000-0000 Fax
XXXXX FARGO BANK ARIZONA. N.A.
Schedule of Fees for Services as
Subscription Escrow Agent
NevWest Securities Corporation/Body Art & Science, Inc.
Acceptance Fee: Waived
A one-time charge covering review and negotiation of
documents with various parties to the agreement and
account set up. Assumes normal Agent duties under
the final agreement.
Annual Administration Fee: $1,500.00
Payable at closing and annually thereafter.
Compensates Xxxxx Fargo Bank Arizona for normal
agent administrative duties. Assume funds in escrow
will be invested in Xxxxx Fargo money market funds.
Other investment options may result in a transaction
charge.
Out-of-Pocket Expense: At Cost
Xxxxx Fargo Bank Arizona reserves the right to xxxx
at cost for out-of-pocket expenses such as expresses
mail, wire charges and travel expenses, if required,
incurred in connection with a non-Phoenix closing.
Note:The transaction underlying this proposal, and all re
lated legal documentation, is subject to review and
acceptance by Xxxxx Fargo Bank Arizona in accordance
with industry standards. Should the actual
transaction materially differ from the assumptions
used herein, Xxxxx Fargo Bank Arizona reserves the
right to modify this proposal.
Dated: ___________________, 2002 Page One of One
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