EXHIBIT 10.12
ESCROW AGREEMENT
THIS ESCROW AGREEMENT, made and entered into as of this _____ day of
________________, 2001, by and between RETRACTABLE TECHNOLOGIES, INC. (the
"Company") and TEXAS BANK - XXXXXXXXXXX (the "Escrow Agent").
WHEREAS, the Company is offering investors up to 2,000,000 shares of
Common Stock in a public offering upon the terms and conditions set forth in a
Prospectus, copies of which have been delivered to the Escrow Agent.
WHEREAS, The Company desires to make appropriate arrangements with the
Escrow Agent for placing in escrow certain monies committed by investors for the
purchase of such Common Stock and for the delivery of such monies to the
respective investor or the Company, as the case may be.
NOW, THEREFORE, in consideration of the mutual covenants and obligations
herein contained, the parties hereto, intending to be legally bound, and to set
forth in this Agreement their respective rights, duties and obligations in
connection with the holding and delivery of the Escrow Funds, hereby agree as
follows:
ARTICLE I
DEFINITIONS
The following terms, wherever used in this Escrow Agreement, shall have
the following meanings:
1.01 "Escrow Agent" shall mean TEXAS BANK - WEATHERFORD.
1.02 "Escrow Agreement" shall mean this Escrow Agreement and as
appropriate, all amendments and supplements thereof, if any.
1.03 "Escrow Funds" shall mean monies committed by investors for the
purchase of the Common Stock delivered to the Escrow Agent
pursuant to the Escrow Agreement.
1.04 "Offering" shall mean the Offering of the Common Stock pursuant to
the terms of the Prospectus.
1.05 "Company" shall mean RETRACTABLE TECHNOLOGIES, INC., a Texas
corporation.
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1.06 "Prospectus" shall mean the Form SB-2 Registration Statement of
the Company dated ___________, 2001 and as subsequently amended.
1.07 "Subscriber" shall mean any person committing to purchase Common
Stock by executing a Subscription Agreement and delivering such
document and the funds necessary for payment in full for said
Common Stock; and, "Subscribers" shall mean all such Subscribers
collectively.
1.08 "Termination Date" shall mean the earliest to occur of the
following:
(a) The sale of 2,000,000 shares of Common Stock, or
(b) ________________, 2001, unless extended by the Company in
writing for an additional ninety (90) days to
________________, 2001.
1.09 "Common Stock" shall mean 2,000,000 shares of Common Stock at
$_____ per share each and offered pursuant to the Prospectus.
ARTICLE II
ACCEPTANCE OF APPOINTMENT
DELIVERY OF ESCROW FUNDS, COMPENSATION
2.01 Acceptance of Appointment. Escrow Agent hereby agrees to act as
Escrow Agent under the Escrow Agreement.
2.02 Delivery of Escrow Funds. All funds committed by Subscribers for
the subscription of Common Stock will be promptly deposited with
the Escrow Agent and will be held by the Escrow Agent in escrow,
as provided in this Escrow Agreement for the benefit of the
Company and the Subscribers, pending delivery of Escrow Funds to
the Company or return thereof to the Subscribers pursuant to the
terms thereof. The Company shall simultaneously with the delivery
of such funds, deliver to Escrow Agent executed counterparts of
the Subscription Agreement related to the particular Escrow Funds
so delivered.
2.03 Investment of Escrow Funds; Compensation. The Escrow Agent shall,
during the term of the escrow provided for hereby, deposit the
Escrow Funds in such accounts permitted by the appropriate
Government Agency, if any, and the NASD, such as money market
accounts issued by banks or short-term government obligations. The
account shall bear interest and the funds may be deposited or
withdrawn upon immediate notice and without penalty and with no
time maturity.
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ARTICLE III
CONDITION OF ESCROW
3.01 Duration of Escrow and Delivery of Escrow Funds. The Escrow Agent
shall hold all of the Escrow Funds until the occurrence of one of
the following events, and upon such occurrence shall deliver the
Escrow Funds as follows:
(a) If the Escrow Agent shall have received written notice from
the Company that less than 30,000 shares of Common Stock have
been sold at the Termination Date, or any extension thereof,
all Escrow Funds shall promptly be released from escrow and
returned to the respective Subscribers at the addresses
specified on the signature page of their Subscription
Agreement.
(b) If the Escrow Agent shall have received written notice from
the Company prior to the Termination Date, or any extension
thereof, that at least 30,000 shares of Common Stock have
been sold, the Escrow Agent shall release from escrow and
deliver to the Company the Escrow Funds.
(c) If the Escrow Agent shall have received written notice from
the Company prior to the termination date, or any extension
thereof, that more than 30,000 shares of Common Stock have
been sold, the Escrow Agent shall release from escrow and
deliver to the Company, all of said Escrow Funds. All funds
will be returned to those Subscribers not selected by the
Company to participate in the Common Stock Offering.
3.02 Rights, Privileges, Immunities and Liabilities of Escrow Agent.
The following shall govern the rights, privileges, immunities and
liabilities of the Escrow Agent:
(a) The Escrow Agent is not a party to, and is not bound by any
agreements with the Company or the Subscribers relating to
this offering, other than this Agreement.
(b) The Escrow Agent shall act as a depository only and shall not
be responsible or liable in any manner whatsoever for the
sufficiency, correctness, genuineness, or validity of the
Escrow Funds, or any part thereof, or for the form of
execution thereof, or for the identity or authority of any
person executing or depositing same.
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(c) The obligations of the Escrow Agent to the Subscribers under
this Agreement shall not be terminated by any act of a
Subscriber or by operation of law, whether by death or
incapacity of a Subscriber or the occurrence of any other
event, or in the case the Subscriber is acting on behalf of a
trust. If a Subscriber should die or become incapacitated or,
in the case of a trust, if the trust should terminate, or if
any other such event occurs before the termination of this
Agreement, the Escrow Agent is authorized and directed to
deal with the Escrow Funds in accordance with the provisions
of this Agreement, as if such death, incapacity, termination
or other event had not occurred, regardless of whether the
Escrow Agent receives notice thereof.
(d) In the event the Escrow Agent becomes involved in litigation
or incurs liability in connection with this escrow or its
duties as Escrow Agent, the Company agrees to indemnify and
save the Escrow Agent harmless from all loss, cost, damages,
expenses and attorneys' fees suffered or incurred by the
Escrow Agent, except such as may result from the Escrow
Agent's willful misconduct or gross negligence.
(e) The Escrow Agent shall be protected in acting upon any
written notice, request, waiver, consent certificate, receipt
authorization, power of attorney, or other documents which
the Escrow Agent in good faith believes to be genuine.
(f) In the event of any disagreement between the Company or the
Subscribers resulting in adverse claims or demands being made
in connection with the Escrow Funds, or in the event that the
Escrow Agent, in good faith, is in doubt as to what action it
should take hereunder, the Escrow Agent may, at its
discretion, 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 such
event, the Escrow Agent shall not be or become liable in any
way or to any person for its failure or refusal to act. The
Escrow Agent shall be entitled to continue 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 adjusted and all doubt resolved by agreement among all
of the interested parties, and the Escrow Agent shall have
been notified thereof in writing, signed by all such parties.
The rights of the Escrow Agent under
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this paragraph are cumulative of all other rights which it
may have by law or otherwise.
(g) After the Escrow Agent has delivered all of the Escrow Funds
pursuant to the terms of this Escrow Agreement, it shall be
discharged from any further obligations hereunder.
ARTICLE IV
MISCELLANEOUS PROVISIONS
4.01 Notices. Any and all notices permitted or required to be given
under the terms hereof shall be in writing and may be served by
certified mail, return receipt requested, postage prepaid, and
addressed to the party to be notified at the appropriate address
specified below, or by delivering the same in person to such
party, or by prepaid telegram, cablegram, or radiogram, addressed
to the party to be notified at said address. Any notice given in
any authorized manner shall be effective only if and when
received. The mailing addresses of the parties are as follows:
The Company Retractable Technologies, Inc.
000 Xxxx Xxxx, X.X. Xxx 0
Xxxxxx Xxx, XX 00000-0000
Attention: Xxxxxx X. Xxxx
The Escrow Agent Texas Bank - Xxxxxxxxxxx
000 Xxxxx Xxxx
Xxxxxxxxxxx, XX 00000
Attention: Lea Xxx Xxxxxx
The Subscribers Address specified in their
Subscription Agreements
4.02 Successors. This Escrow Agreement shall be binding upon and inure
to the benefit of the Company and the Escrow Agent, and their
respective successors and assigns and each Subscriber, his heirs,
successors, assigns, and legal representatives (upon execution and
delivery to the Escrow Agent of a Subscription Agreement).
4.03 Article and Paragraph Headings. The article and paragraph headings
contained in this Escrow Agreement are for reference purposes only
and shall not affect in any way the mean of interpretation of this
Escrow Agreement.
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4.04 Choice of Law. This Escrow Agreement shall be construed and
enforced in accordance with the laws of the State of Texas, and
venue in any action arising hereunder shall be in a court of
competent jurisdiction in Xxxxxx County, Texas.
4.05 Holidays. Wherever under the terms and provisions of this Escrow
Agreement the time for performance of a condition falls upon a
Saturday, Sunday or holiday, such time for performance shall be
extended to the next business day.
4.06 Pronouns. The necessary grammatical changes required to make the
provisions of this Escrow Agreement apply in singular or the
plural sense, the masculine or the feminine gender and to either
corporations, associations, partnerships, fiduciaries or
individuals, shall in all instances be assigned as though each
were fully expressed.
4.07 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of
which together shall constitute one and the same instrument.
4.08 Effective Date. The effective date of this Escrow Agreement as
between the Company and the Escrow Agent shall be the _____ day of
_________, 2001, and shall be effective as to each Subscriber upon
the execution and delivery of the signature page of his
Subscription Agreement.
EXECUTED this _____ day of ________________, 2001.
The "Company" The "Escrow Agent"
Retractable Technologies, Inc. Texas Bank - Weatherford
By: By:
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Xxxxxx X. Xxxx, Xxx Xxx Xxxxxx
President and CEO Executive Vice President
