Exhibit 99.2
ESCROW AGREEMENT
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This Escrow Agreement, dated as of April 16, 2003 (this "Agreement"), is by
and among IPORUSSIA, Inc., a Delaware corporation (the "Company"), and North
Fork Bank, a New York banking corporation (the "Escrow Agent").
WHEREAS, the Company is proposing to offer up to 3.0 million shares of its
common stock, par value $.0001 per share (the "Shares"), pursuant to a
prospectus (the "Prospectus"), which is to form a part of the Registration
Statement on Form SB-2 (Registration Number 333-98247), as amended, filed by the
Company with the United States Securities and Exchange Commission (the "SEC")
and declared effective by the SEC (the "Registration Statement");
WHEREAS, pursuant to the Prospectus, the Company will offer for sale, on a
self-underwritten, best efforts 500,000 Shares minimum (the "Minimum Offering"),
3.0 million Shares maximum (the "Maximum Offering") basis, which Shares are
being offered and shall be sold, at a purchase price of $1.00 per Share (the
"Purchase Price") (the "Offering");
WHEREAS, the Purchase Price may be paid in the form of cash or check;
WHEREAS, pursuant to the Prospectus, the proceeds to the Company from the
sale of the Shares are to be held in escrow pending the Company's receipt of
subscriptions from subscribers for Shares (each a "Subscriber"), acceptable to
the Company in the Company's sole discretion (each a "Subscription"), until the
expiration of the Offering Period as hereafter defined; and
WHEREAS, the Prospectus will provide that the Escrow Agent will serve as
escrow agent, which service will be on the terms and subject to the conditions
provided in this Agreement,
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained in this Agreement, and other good and valuable consideration, the
receipt and adequacy of which is hereby acknowledged, the parties hereto agree
as follows:
1. The Company hereby appoints the Escrow Agent as the Company's agent and
custodian for the purposes of this Agreement, and the Escrow Agent accepts such
appointment, each upon the terms and subject to the conditions set forth in this
Agreement.
2. Establishment of Escrow Account: The Company has established with the
Escrow Agent an interest-bearing account at the branch of the Escrow Agent
located at 000 Xxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxx Xxxx 00000 (the "Branch"), which
escrow account is entitled, "For the Benefit of IPORUSSIA" (the "Escrow
Account").
3. Deposits into the Escrow Account: All Subscribers' checks will be made
payable to "NORTH FORK BANK, as escrow agent for IPORUSSIA." The checks received
from prospective purchasers of the Subscriptions may be delivered to an Account
Representative at the Branch for deposit into the Escrow Account. The Escrow
Agent is not obligated to, but may refuse to accept deposits not accompanied by
a Subscription containing the name, address and taxpayer identification number
of each prospective purchaser and the Purchase Price of the Subscriptions
subscribed for by such purchaser.
4. Escrow Period: The Offering shall expire 90 days from the effective date
of the Registration Statement (the Company hereby agreeing to notify the Bank of
the effective date of the Registration Statement and provide it with a copy of
the Prospectus prior to the deposit of any monies hereunder), unless extended
for an additional period of up to 90 days at the sole discretion of the Company
and upon at least two (2) business days written notice to the Escrow Agent.
(Such initial or extended period is hereinafter referred to as the "Offering
Period.")
5. During the Offering Period:
(a) The Escrow Agent shall, upon receipt of a Subscription, together with
the related Purchase Price therefor, telecopy a copy of the Subscription to the
Company.
(b) The Company shall review the Subscription and, if acceptable, deliver a
fully executed copy (which may be a telecopy) of the Subscription to the Escrow
Agent, at which time the Escrow Agent shall deposit the related Purchase Price
of said Subscription in the Escrow Account.
(c) In the event the Escrow Agent does not receive a fully executed copy of
the Subscription pursuant to section 5(b) of this Agreement prior to the close
of business on the third business day (days other than a Saturday or Sunday or
other day on which the Escrow Agent is not open for business in the State of New
York) following the business day on which it forwarded a copy of the
Subscription to the Company pursuant to section 5(a) of this Agreement, the
Escrow Agent shall return the Subscription and the Purchase Price to the
Subscriber.
(d) Following receipt during the Offering Period of funds representing the
aggregate Purchase Price for at least the Minimum Offering (i.e., $500,000.00)
related to Subscriptions that are accepted by the Company (the "Minimum Offering
Proceeds") promptly deliver written notice to the Company by telecopy confirming
the Escrow Agent's receipt of such Minimum Offering Proceeds.
(e) The Escrow Agent shall maintain the accepted Subscriptions and a
complete record of (i) the name, address and taxpayer identifying number of each
Subscriber, (ii) the number of Shares subscribed for by such Subscriber, as
acceptable to the Company, (iii) the Purchase Price received from each
Subscriber and (iv) the form of payment of such Purchase Price.
6 The Escrow Agent shall deliver the Minimum Offering Proceeds, with
interest, as follows:
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(a) To the Company (or in accordance with the Company's written
instructions), with the interest earned thereon, promptly following the Escrow
Agent's having received the Minimum Offering Proceeds during the Offering
Period; however, in no event shall the Escrow Agent make a distribution under
this section 6(a) until the said sum of $500,000.00 is available in cleared
funds; or
(b) To the applicable Subscriber (in the amount received from such
Subscriber when tendering the Subscriber's Subscription, with the interest
earned on the amount received from such Subscriber), promptly in the event that
the Minimum Offering Proceeds are not received by the Escrow Agent on or prior
to the termination of the Offering Period; however, in no event shall the Escrow
Agent refund any part of the interest earned of a prospective purchaser's
subscription deposit until such time as the Escrow Agent has received an
appropriate W-9 Form from such prospective purchaser.
(c) Notwithstanding the foregoing, the distribution of funds pursuant to
sections 6(a) and (b) shall not occur until the later of: (i) three (3) business
days from the last day of the Offering Period, or (ii) the date on which said
funds have cleared.
7. In the event that the Minimum Offering Proceeds are disbursed to the
Company in accordance with section 6(a) of this Agreement, the Escrow Agent
shall deposit any additional funds representing Subscriptions acceptable to the
Company that the Escrow Agent receives and shall disburse such funds in
accordance with the written instructions of the Company.
8. Upon the disbursement of the funds in the Escrow Account pursuant to
this Agreement, the Escrow Agent will have no further responsibility with
respect to this Agreement. In this regard, it is expressly agreed and understood
that in no event shall the aggregate amount of payments made by the Escrow Agent
exceed the amount of the funds in the Escrow Account.
9. The Escrow Agent hereby accepts its obligations under this Agreement,
and represents and warrants that the Escrow Agent has the power and legal
authority to enter into this Agreement and to perform the Escrow Agent's
obligations under this Agreement. The Escrow Agent covenants and agrees that all
property held by the Escrow Agent pursuant to this Agreement shall be identified
as being held in escrow in connection with this Agreement. The Escrow Agent
further covenants and agrees that all documents and records with respect to the
matters subject to and transactions contemplated by this Agreement will be
available, upon reasonable written notice, for examination by the Company, the
SEC or any state "blue sky" securities authorities.
10. For its services hereunder, the Escrow Agent shall be entitled to
receive from the Company: (a) a fee of $3,000.00, upon the execution and
delivery of this Agreement, and (b) reimbursement for any reasonable expenses
incurred by the Escrow Agent hereunder. The Escrow Agent shall not have a lien
upon, or any other right whatsoever to payment from, the property held by the
Escrow Agent pursuant to this Agreement, for or on account of such right to
payment and reimbursement or otherwise.
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11. The parties hereto, for themselves, their successors and assigns, do
hereby acknowledge and agree that:
(a) This Escrow Agreement expressly sets forth all the duties and
obligations of the Escrow Agent with respect to any and all matters pertinent to
this Agreement, the Escrow Agent shall not have any duties or responsibilities
except as expressly set forth in this Agreement and no implied duties or
obligations shall be read into this Agreement against the Escrow Agent;
(b) The Escrow Agent shall be under no duty or obligation to enforce
the collection of any check, draft or other instrument for the payment of money
delivered to it hereunder, but the Escrow Agent, within a reasonable time, shall
return to the Subscriber any check, draft or other instrument received which is
dishonored, together with the Subscription;
(c) The Escrow Agent shall have no responsibility at any time to
ascertain whether or not any security interest exists in the funds in the
Account or any part thereof or to file any financing statement under the Uniform
Commercial Code with respect to the funds in the Account or any part thereof.
(d) The Escrow Agent does not have any interest in the amounts
deposited hereunder but is serving as escrow holder only and having only
possession thereof;
(e) Any payments of income from this Agreement shall be subject to
withholding regulations then in force with respect to United States taxes;
(f) The Escrow Agent shall not have any investment responsibility with
respect to funds held under this Agreement;
(g) The Escrow Agent shall not be responsible for the identity,
authority or rights of any person, firm or corporation executing or delivering
or purporting to execute or deliver this Agreement or any document or amount
deposited hereunder or any endorsement thereon or assignment thereof;
(h) The Escrow Agent shall not be responsible for the sufficiency,
genuineness or validity of, or title to, any document, instrument or amount
deposited or to be deposited with it pursuant to this Agreement;
(i) The Escrow Agent may rely and shall be protected in acting or
refraining from acting upon any written notice, instruction or request furnished
to it hereunder and believed by it to be genuine and to have been signed or
presented by the proper party or parties and the Escrow Agent shall be under no
duty to inquire into or investigate the validity, accuracy or content of any
such document;
(j) The Escrow Agent shall not have any duty to preserve rights against
any parties with respect to any funds held by the Escrow Agent pursuant to this
Agreement, whether or not the Escrow Agent has or is deemed to have knowledge or
notice of such matters;
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(k) The Escrow Agent shall not be liable for any action taken in
accordance with the terms of this Agreement, including, without limitation, any
release of amounts held by the Escrow Agent pursuant to this Agreement;
(l) The Escrow Agent's duties hereunder are purely ministerial in
nature and the Escrow Agent shall not be liable or responsible for any act it
may do or omit except to the extent a court of competent jurisdiction located
within the State of New York determines its actions or inactions constituted
gross negligence or willful misconduct, and 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;
(m) The Escrow Agent shall not be required to institute legal
proceedings of any kind and shall not be required to defend any legal
proceedings which may be instituted against it in respect of the subject matter
of this Agreement and the instructions set forth herein, unless requested to do
so and indemnified to its satisfaction against the cost and expense of such
defense;
(n) In case any funds held by the Escrow Agent hereunder shall be
attached, garnished or levied upon under any order of court, or the delivery
thereof shall be stayed or enjoined by any order of court, or any other writ,
order, judgment or decree shall be entered or issued by any court affecting such
property, or any part thereof, or any act of the Escrow Agent, the Escrow Agent
is hereby expressly authorized, in its sole discretion and notwithstanding
anything in this Agreement to the contrary, to obey and comply with all writs,
orders, judgments or decrees so entered or issued, whether with or without
jurisdiction and, in case the Escrow Agent obeys and complies with any such
writ, order, judgment or decree, it shall not be liable to any of the parties
hereto, their affiliates, principals, successors or assigns, or to any other
person, firm or corporation, by reason of such compliance notwithstanding that
such writ, order, judgment or decree may subsequently be reversed, modified,
annulled, set aside or vacated; and
(o) The Escrow Agent may employ agents, attorneys and accountants in
connection with its duties hereunder and shall not be liable for any action
taken or omitted in good faith in accordance with the advice of counsel,
accountants or other skilled persons at the sole expense of the Company.
12. In the event of any disagreement between the Company and the
Subscribers, or any other person, or any of them, resulting in an adverse claim
to funds held by the Escrow Agent pursuant to this Agreement, the Escrow Agent
shall be entitled, at the Escrow Agent's sole option, to refuse to comply with
any such claim and shall not be liable for damages or interest to any such
person or persons for its failure to comply with such adverse claims, and the
Escrow Agent shall be entitled to continue to so refrain until:
(a) the rights of the adverse claimants shall have been finally
adjudicated by a court of competent jurisdiction; or
(b) all differences shall have been adjusted by agreement and the
Escrow Agent shall have been notified of such in a writing signed by all
interested persons.
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In the event of such disagreement, the Escrow Agent, in the Escrow
Agent's sole discretion, may file a suit in interpleader for the purpose of
having the respective rights of the claimants of such funds or other property
adjudicated at the sole expense of the Company.
13. The Company agrees to indemnify the Escrow Agent, and hold the Escrow
Agent harmless, from and against any and all claims, costs, expenses, demands,
judgments, losses, damages and liabilities (including, without limitation.
reasonable attorneys' fees and expenses) arising out of or in connection with
this Agreement, including, without limitation, any fees related to actions taken
by the Escrow Agent pursuant to sections 11(l), 11(o), 12 and 13 of this
Agreement, except such as may be caused by the gross negligence of the Escrow
Agent.
14. The Escrow Agent may at any time resign by giving prior written notice
of such resignation to the Company. The Escrow Agent shall not be discharged
from its duties and obligations under this Agreement until a successor escrow
agent shall have been designated by the Company and such successor escrow agent
shall have executed and delivered an escrow agreement in substantially the form
of this Agreement, and all property then held by the Escrow Agent pursuant to
this Agreement shall have been delivered to such successor escrow agent.
15. The term of this Agreement shall commence as of the date of this
Agreement and shall terminate upon the earliest to occur of the following:
(a) disbursement of all amounts held by the Escrow Agent pursuant to
section 6 of this Agreement and satisfaction of the Escrow Agent's other duties
and responsibilities under this Agreement;
(b) the appointment of, and acceptance of such appointment by, the
successor escrow agent under section 14.
16. Except as otherwise specifically provided elsewhere in this Agreement,
all requests, demands, notices and other communications required or otherwise
given under this Agreement shall be sufficiently given if in writing and (a)
delivered by hand against written receipt therefor, (b) forwarded by nationally
recognized overnight courier requiring acknowledgment of receipt, (c) mailed by
registered or certified mail, return receipt requested addressed or (d) telecopy
with electronic confirmation, in each case with delivery charges prepaid, as
follows:
If to the Company, to:
IPORUSSIA, Inc.
00 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Telecopy: 000-000-0000
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with a copy (except that no copy of any communication pursuant
to section 5 of this Agreement need be given) to:
Jenkens & Xxxxxxxxx Xxxxxx Xxxxxx LLP
The Chrysler Building
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Telecopy: 000-000-0000
if to the Escrow Agent, to:
North Fork Bank, as Escrow Agent
000 Xxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxxxxxx,
Vice President
Telecopy: (000) 000-0000
with a copy (except that no copy of any communication pursuant
to section 5 of this Agreement need be given) to:
North Fork Bank
000 Xxxxx Xxxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: The Office of the General Counsel
Telecopy: (000) 000-0000
or, in the case of any of the parties hereto, at such other address as such
party shall have furnished in writing, in accordance with this section, to the
other party to this Agreement. Each such request, demand, notice or other
communication shall be deemed given (x) on the date of delivery by hand, (y) on
the first business day following the date of delivery to the nationally
recognized overnight courier or (z) three (3) business days following mailing by
registered or certified mail.
17. This Agreement shall be binding and inure to the benefit of the parties
to this Agreement and their respective successors and assigns. Nothing in this
Agreement is intended or shall be construed to give any other person any right,
remedy or claim under, in or with respect to this Agreement or any funds held
pursuant to this Agreement, except as specifically set forth in this Agreement.
18. This Agreement shall be governed by, and be construed and interpreted
in accordance with, the internal laws of the State of New York.
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19. This Agreement may be entered into in any number of counterparts and by
different parties hereto in separate counterparts, each of which, when so
executed, shall be deemed to be an original and all of which taken together
shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
IPORUSSIA, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
Secretary and Treasurer
NORTH FORK BANK
By: /s/ Xxxxxxxx X. Xxxxxxxx
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Name: Xxxxxxxx X. Xxxxxxxx
Title: Vice President
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