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Exhibit 10.4
ACKEEOX CORP.
ESCROW AGREEMENT
ESCROW AGREEMENT made this ______ day of June, 2001 by and between FLAGLER
BANK, a Florida banking corporation (the "Escrow Agent"), and ACKEEOX CORP., a
Florida corporation (the "Company").
RECITALS:
A. The Company proposes to offer and sell to the public up to 1,000,000
units (the "Units"), each Unit consisting of a share of its common
stock ("Common Stock") and a warrant ("Warrant") to purchase an
additional share of Common Stock at the price of $5.00, at an initial
offering price of $5.10 per Unit (the "Offering").
B. A registration statement on Form SB-2 with respect to the
Units has been filed by the Company with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as
amended (the "Securities Act"). Amendments to such registration
statement have been and more may be filed, and a final form of
prospectus will be filed with the Commission upon the effectiveness of
such registration statement. (Such registration statement (including
all exhibits thereto), as amended at the time it becomes effective and
at the time each post-effective amendment thereto becomes effective,
and the final prospectus filed upon the effectiveness of such
registration statement or post-effective amendment (including any
supplements to such final prospectus filed following such
effectiveness) are referred to herein, respectively, as the
"Registration Statement" and the "Prospectus").
C. The Registration Statement and the Prospectus provide that amounts
tendered by investors in payment of the subscription price for Units,
including checks, cash and cash equivalents (the "Subscription
Proceeds"), shall be deposited and held in escrow in a segregated
account until such Subscription Proceeds are disbursed by the Escrow
Agent pursuant to this Agreement.
D. Unless subscriptions for not less than 200,000 Units are accepted by
the Company and fully paid for on or before the Termination Date, the
Offering will terminate, and no Units will be sold. "Termination Date"
means September 30, 2001, unless extended by the Company in its
discretion for an additional 90 days.
NOW, THEREFORE, in consideration of the mutual covenants set
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forth herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. ESCROW. From the date hereof through and including (a) the date of the final
disbursement of funds pursuant to this Agreement or (b) termination of the
Offering by the Company, whichever occurs later, the Escrow Agent shall act as
escrow agent and shall receive and disburse all Subscription Proceeds and
earnings, if any, thereon in accordance with the terms of this Agreement. The
Escrow Agent hereby represents to the Company that it is a "bank" as such term
is defined by Section 3(a)(6) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act").
2. DEPOSIT PROCEDURE.
(a) The Escrow Agent shall establish an appropriate segregated account (the
"Escrow Account") designated as the "Ackeeox Corp. Escrow Account," or with such
other appropriate designation as shall be assigned by the Escrow Agent and
communicated to the Company. The Escrow Agent shall cause all Subscription
Proceeds transmitted to it by the Company to be held in the Escrow Ac count. All
checks received by the Escrow Agent are to be held uncashed until required to be
submitted for collection pursuant to paragraph 2(b) of this Agreement.
(b) All Subscription Proceeds received by the Company shall be promptly
delivered to the Escrow Agent at 0000 Xxxxxx Xxxx Xxxxxxxxx, Xxxx Xxxx Xxxxx,
Xxxxxxx 00000 together with a schedule of such payments and the subscriptions
represented thereby. Provided that the Escrow Agent shall have received with
respect to each subscription for Units (i) Facsimile Notice (as defined herein)
from the Company that a subscription has been received by the Company and (ii)
Subscription Proceeds in the amount required to pay in full for such
subscription, the Escrow Agent shall immediately commence the collection process
(as applicable) with respect to such Subscription Proceeds. Any payment item
which is returned to the Escrow Agent on its initial presentation for payment
need not again be presented for collection. The Facsimile Notice provided for
in this paragraph shall be given by the Company not more than five days
following receipt by the Escrow Agent of such Subscription Proceeds and not less
than two business days prior to any disbursement of Subscription Proceeds by
the Escrow Agent pursuant hereto.
(c) If a subscription is not accepted by the Company, the Company shall,
within five days following its receipt, provide the Escrow Agent with Facsimile
Notice (as defined herein) of the name of the rejected subscriber, the address
of the rejected subscriber, and the amount of Subscription Proceeds received
from such rejected subscriber and delivered to the Escrow Agent by the Company.
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(d) If the Escrow Agent is holding collected funds with respect to a
rejected subscription, the Escrow Agent shall promptly remit the full amount of
Subscription Proceeds received by the Company and delivered to the Escrow Agent,
without inter est thereon or deduction therefrom, to the rejected subscriber at
the address provided by the Company. If the Escrow Agent has presented the
Subscription Proceeds of a rejected subscriber for collection but has not yet
collected funds, the Escrow Agent shall, promptly upon collection of such funds,
remit the full amount of Subscription Proceeds received by the Company and
delivered to the Escrow Agent, without interest thereon or deduction therefrom,
to the rejected subscriber at the address provided by the Company. If the
Escrow Agent has not yet presented the Subscription Proceeds of a rejected
subscriber for collection, the Escrow Agent shall promptly return in full the
Subscription Proceeds delivered to the Escrow Agent in the form so received and
delivered, without interest thereon or deduction therefrom, to the rejected
subscriber at the address provided by the Company.
3. INVESTMENT OF ESCROW FUNDS. The Escrow Agent shall invest all funds held in
the Escrow Account (including earnings, if any, thereon) in United States
government securities or securities guaranteed by the United States,
certificates of deposit of banks located in the United States or any other
investment, provided, in each case, that such investment is permitted by Rule
15c2-4, promulgated by the Commission under the Exchange Act ("Rule 15c2-4").
Such investments shall be made in a manner consistent with the requirement that
the Subscription Proceeds be available for delivery by the Escrow Agent at the
times described herein. The parties hereto recognize that there may be a
forfeiture of interest in the event of early withdrawal from an interest-bearing
account.
4. INITIAL CLOSING.
(a) If the Escrow Agent shall (i) be holding in escrow collected funds
representing Subscription Proceeds in an amount equal to the full purchase price
of 200,000 Units and (ii) have received from the Company on or before the
Termination Date and the Initial Closing Date, respectively, the Facsimile
Notice (as defined herein) and related Confirmation (as defined herein)
described in paragraph 4(b) hereof, then the Escrow Agent shall disburse the
collected funds then held in the Escrow Account (less fees of the Escrow Agent
as provided herein) to the Company, as provided herein and subject to the
provisions hereof, at the Initial Closing. As used in this Agreement, the terms
"Initial Closing" and "Initial Closing Date" shall mean,
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respectively, the first disbursement of Subscription Proceeds by the Escrow
Agent pursuant to this Agreement and the date upon which such disbursement
occurs; the Initial Closing shall be scheduled as determined by the parties
hereto.
(b) On or before the Termination Date, the Escrow Agent shall have received
Facsimile Notice (as defined herein) from the Company that all conditions
precedent to the disbursement of Subscription Proceeds on the Initial Closing
Date have been fully satisfied as required under the Registration Statement and
Prospectus, specifically certifying that subscriptions for not less than
200,000 Units have been received and accepted by the Company on or before the
Termination Date; Confirmation (as defined herein) of such Facsimile Notice
shall be delivered to the Escrow Agent on or before the Initial Closing Date,
dated as of the Initial Closing Date.
(c) Provided that the Escrow Agent shall have (i) received and be holding in
escrow collected Subscription Proceeds as required under paragraph 4(a) hereof,
(ii) received the Facsimile Notice (as defined herein) required under paragraph
4(b) hereof on or before the Termination Date and (iii) received Confirmation
(as defined herein) of the Facsimile Notice required under para graph 4(b)
hereof on or before the Initial Closing Date, the Escrow Agent shall, on the
Initial Closing Date, disburse the collected funds then held in the Escrow
Account as follows: First, to the Escrow Agent in the amount of any fees then
due and payable to the Escrow Agent (which shall not exceed on the Initial
Closing Date the aggregate earnings, if any, on funds held in the Escrow
Account, determined as of the business day immediately preceding such Closing
Date); and second, to the Company in the amount of any balance then remaining in
the Escrow Account.
(d) If any of the conditions described in paragraphs 4(a) and 4(b) hereof
shall not have been fully satisfied at the close of business on the date (the
Termination Date or Initial Closing Date) specified herein for such compliance,
the Escrow Agent shall promptly return all Subscription Proceeds directly to
subscribers, without interest thereon or deduction therefrom, and the escrow
provided for herein shall thereupon terminate.
5. ADDITIONAL CLOSINGS.
(a) Subsequent to the Initial Closing Date, the collected funds then held in the
Escrow Account shall be disbursed by the Escrow Agent from time to time at one
or more Additional Closings. As used herein, the terms "Additional Closing" and
"Additional Closing Date" shall mean, respectively, any such further closing
and the date upon which such closing occurs; Additional Closings shall be
scheduled as determined by the parties to this Agreement.
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(b) Prior to the disbursement of collected funds held in the Escrow Account
at any Additional Closing, the Escrow Agent shall have received Facsimile Notice
(as defined herein) from the Company that all conditions precedent to such
disbursement by the Escrow Agent have been fully satisfied as required under the
Registration Statement and Prospectus. The Facsimile Notice from the Company
provided for in this paragraph 5(b) must be received by the Escrow Agent not
less than two business days prior to such Additional Closing Date; Confirmation
(as defined herein) of such Facsimile Notice shall be delivered to the Escrow
Agent by the Company on or before such Additional Closing Date, dated as of such
Additional Closing Date.
(c) Provided that the Facsimile Notice (as defined herein) required under
paragraph 5(b) hereof shall have been received by Escrow Agent not less than two
business days prior to, and confirmed in writing on or before, each Additional
Closing Date, the Escrow Agent shall, on such Additional Closing Date, disburse
the collected funds then held in the Escrow Account as follows: First, to the
Escrow Agent in the amount of any fees then due and payable to such Agent (which
shall not exceed on any Additional Closing Date the aggregate earnings, if any,
on funds held in the Escrow Account, determined as of the business day
immediately preceding such Closing Date); and second, to the Company in the
amount of any balance then remaining in the Escrow Account.
6. BOOKS AND RECORDS. The Escrow Agent shall maintain accurate records of all
transactions hereunder. Promptly upon the termination of escrow, or as may
reasonably be requested by the Company prior thereto, the Escrow Agent shall
provide the Company with a complete copy of such records, certified by the
Escrow Agent to be a complete and accurate account of all such transactions.
The authorized representatives of the Company shall also have access to such
books and records at all reasonable times during normal business hours upon
reasonable notice to the Escrow Agent.
7. ESCROW AGENT FEES. As compensation for services performed by it pursuant to
this Agreement, the Escrow Agent shall be entitled to receive from the Company
the fees set forth on SCHEDULE "A" hereto; such fees shall be deducted from
Escrow Income (as defined in such SCHEDULE "A"), and the Company shall pay to
the Escrow Agent on demand any portion of such fees which remains unpaid
following the final Closing, in any event no later than the Termination Date.
8. TERMINATION. This Agreement shall terminate on the final disposition of the
moneys and property held in escrow under and pursuant to the terms hereof,
provided that the rights of the
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Escrow Agent and the obligations of the Company under paragraphs 7 and 9 shall
survive the termination hereof.
9. GENERAL PROVISIONS.
(a) This Agreement expressly sets forth all the duties of the Escrow Agent
with respect to any and all matters pertinent hereto.
(b) The Escrow Agent shall not be liable, except for its own negligence or
willful misconduct and, except with respect to claims based upon such negligence
or willful misconduct that are successfully asserted against the Escrow Agent.
The Company shall indemnify and hold harmless the Escrow Agent (and any
successor Escrow Agent) from and against any and all losses, liabilities,
claims, actions, damages and expenses, including reason able attorneys' fees and
disbursements, arising out of and in connection with this Agreement.
(c) The Escrow Agent shall be entitled to rely upon any order, judgment,
certification, demand, notice, instrument or other writing delivered to it
hereunder without being required to determine the authenticity or the
correctness of any fact stated therein or the propriety or validity of the
service thereof. The Escrow Agent may act in reliance upon any instrument or
signature believed by it to be genuine and may assume that any person purporting
to give notice or advice, or to accept and acknowledge receipt, or to make any
statement or execute any documents in connection with the provisions of this
Agreement has been duly authorized to do so.
(d) In the event that the Escrow Agent (i) shall be uncertain as to its
duties arising under this Agreement or (ii) shall receive instructions from the
Company as to the funds held in the Escrow Account which, in its opinion, are
inconsistent with each other or are in any conflict with any of the provisions
of this Agreement, the Escrow Agent shall be authorized to hold any and all
Subscription Proceeds received by it, together with any other amounts which
shall accrue to or be deposited in the Escrow Account, pending the settlement of
any such controversy by final adjudication of a court of competent jurisdiction,
or the Escrow Agent may, at its option, deposit such funds with the clerk of a
court of competent jurisdiction, in an appropriate proceeding to which all
parties in interest are duly joined.
(e) The Escrow Agent (and any successor escrow agent) may at any time resign
as such by delivering all amounts held in the Escrow Account to any successor
escrow agent designated by the Company in writing, or to any court of competent
jurisdiction,
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whereupon the Escrow Agent shall be discharged of and from any and all further
obligations arising in connection with this Agreement. The resignation of the
Escrow Agent will take effect (i) upon the appointment of a successor (including
a court of competent jurisdiction) or (ii) thirty (30) days after the date of
delivery of its written notice of resignation to the Company, whichever first
occurs. If at such time the Escrow Agent has not received a written designation
of a successor escrow agent, the Escrow Agent's sole responsibility thereafter
shall be to safekeep the funds held in the Escrow Account until receipt by the
Escrow Agent of a written designation by the Company of a successor escrow agent
or a final order of a court of competent jurisdiction.
(f) The parties hereto hereby irrevocably submit to the jurisdiction of the
Florida state courts in and for Palm Beach County or the U.S. federal court in
West Palm Beach, Florida in any action or proceeding arising out of or relating
to this Agreement, and the parties hereby irrevocably agree that all claims in
respect of such action or proceeding shall be heard and determined in such state
or federal court. The parties to this Agreement hereby consent to and grant to
any such court jurisdiction over the persons of such parties and over the
subject matter of any such dispute.
(g) This Agreement shall be binding upon and inure solely to the benefit of
the parties hereto and their respective successors and assigns, and shall not be
enforceable by or inure to the benefit of any third party. Except as provided
herein with respect to a resignation by the Escrow Agent, no party hereto may
assign any of its rights or obligations under this Agreement without the prior
written consent of the other parties hereto.
(h) This Agreement may only be modified by a written instrument signed by
the parties hereto, and no waiver hereunder shall be effective unless in writing
signed by the party to be charged.
(i) The Escrow Agent makes no representation as to the validity, value,
genuineness or the collectibility of any security or other document or
instrument held by or delivered to such Escrow Agent pursuant to the terms of
this Agreement.
(j) For purposes hereof, "Facsimile Notice" shall mean the delivery by
telephone facsimile of a notice, request, demand or other communication provided
for herein, and "Confirmation" shall mean the delivery by hand (via commercial
courier service or otherwise) or by first class mail, if and to the extent
required hereunder, of a manually-signed (if applicable) counterpart of any such
notice, demand or other communication. All Facsimile Notices and Confirmations
and any other communications arising
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hereunder shall be deemed given when received and shall be telecopied or
delivered by hand to the parties at the facsimile telephone numbers and
addresses listed below, or to such other persons or facsimile telephone
numbers/addresses as the relevant party shall designate from time to time in
writing delivered by hand as aforesaid:
If to the Company: Ackeeox Corp.
Attention: Xxxxxx X. Xxxxxxxxx
Facsimile Number: 000-000-0000
Telephone Number: 000-000-0000
Confirmation Address: 0000 X. Xxxxxxxx Xxxxx
Xxxx Xxxx Xxxxx, XX 00000
If to the Escrow Agent: Flagler Bank
Attention: Xxxxx X. Xxxxxx
Facsimile Number: 000-000-0000
Telephone Number: 561-432-2122
Confirmation Address: 0000 Xxxxxx Xxxx Xxxxxxxxx
Xxxx Xxxx Xxxxx, XX 00000
(k) This Agreement shall be construed in accordance with and governed by the
internal law of the State of Florida.
(l) This Agreement may be executed in counterparts, both of which shall be
deemed an original, and both of which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Escrow Agreement as of
the day and year first above written.
ACKEEOX CORP.
By:/s/Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx, President
FLAGLER BANK
By: /s/Xxxxx X. Xxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxx
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Title: President
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ESCROW AGREEMENT
SCHEDULE A
This SCHEDULE "A" to the Escrow Agreement dated as of June 4, 2001 by and
between Flagler Bank (the "Escrow Agent") and Ackeeox Corp. (the "Company") sets
forth the compensation arrangements referred to in paragraph 7 of such
Agreement, as follows:
For services performed by it pursuant to the Escrow Agreement, the Escrow Agent
shall be entitled to receive from the Company fees in the amounts of $2000
payable upon the execution hereof plus $250 per Closing; provided, however, that
the Escrow Agent shall receive, in the aggregate, not less than $2500 in
consideration of its services rendered pursuant to the terms of the Escrow
Agreement. Except for the initial payment due upon the execution of this
Agreement, such fees shall be (a) due and payable on the Initial Closing Date
and each Additional Closing Date until paid in full and (b) payable, through the
final Closing, only from and to the extent of available Escrow Income; provided
that, if payments made from available Escrow Income, made at the Initial Closing
and one or more Additional Closings are not, in the aggregate, sufficient to pay
such fees in full, the Company shall pay on demand any such fees which remain
unpaid following the final Closing.
"Escrow Income" is the amount of interest and/or dividends, if any, which shall
have been (x) paid on or in respect of the Escrow Account (representing earnings
on funds held therein) and (y) deposited in such Account as collected funds on
or prior to the business day immediately preceding such Initial Closing Date or
Additional Closing Date, as the case may be. If and to the extent that Escrow
Income exceeds the aggregate fees payable to the Escrow Agent hereunder, such
excess shall be paid to the Company at the Initial Closing or Additional
Closing(s), as the case may be. Notwithstanding the foregoing, if the Offering
is terminated prior to the Initial Closing, the Escrow Agent shall be entitled
to receive fees in the aggregate amount of $2500, and no more, payable by the
Company on demand. All terms used herein shall have the same meanings ascribed
to them in the Escrow Agreement of which this Schedule is a part.
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