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EXHIBIT 4.3
ESCROW AGREEMENT
AGREEMENT made as of the __th day of ______ 2000 by and between Video
Network Communications, Inc. ("Company"), EarlyBirdCapital, Inc. ("Placement
Agent") and Continental Stock Transfer & Trust Company (A Limited Purpose Trust
Company) ("Escrow Agent").
W I T N E S S E T H:
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WHEREAS, the Company is distributing offering materials
relating to an offering by the Company of up to 1,760,000 Units ("Units"), each
Unit consisting of (i) one share of the Company's common stock ("Common Stock"
or "Shares") and (ii) one warrant ("Warrants"), at a purchase price per share of
$1.50 per Unit for an aggregate offering of $2,640,000 ("Closing Amount"). The
Warrants are identical to the Warrants of the Company currently trading on
Nasdaq under the symbol "VNCIW" which were issued pursuant to a warrant
agreement with Escrow Agent dated ______ __, ____ ("Warrant Agreement").
WHEREAS, the Company proposes to offer the Units for sale on a
"best efforts all or none" basis only to "accredited investors" as that term is
defined pursuant to Regulation D (hereinafter defined). The Units are not being
registered under the Securities Act of 1933, as amended (the "Securities Act"),
because they are being offered privately by the Company (the "Offering")
pursuant to exemptions contained in the Securities Act and the Rules promulgated
thereunder;
WHEREAS, the Company proposes to establish an escrow account
(the "Escrow Account"), to which subscription monies that are forwarded by
subscribers in connection with the Offering are to be credited, and the Escrow
Agent is willing to establish the Escrow Account on the terms and subject to the
conditions hereinafter set forth; and
WHEREAS, the Escrow Agent has an agreement with Chase
Manhattan Bank to establish a special bank account (the "Bank Account") into
which the subscription monies, which are received by the Escrow Agent from the
subscribers and credited to the Escrow Account, are to be deposited.
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, the parties hereto hereby agree as follows:
1. Information Sheet. Each capitalized term not otherwise defined
in this Agreement shall have the meaning set forth for such term on the
information sheet which is attached to this Agreement as Exhibit A, and is
incorporated by reference herein and made a part hereof (the "Information
Sheet").
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2. Establishment of the Bank Account.
2.1 The Escrow Agent shall establish a non-interest-
bearing bank account at the branch of Chase Manhattan Bank selected by the
Escrow Agent, and bearing the designation set forth on the Information Sheet
(heretofore defined as the "Bank Account"). The purpose of the Bank Account is
for (a) the deposit of all subscription monies (checks, cash or wire transfers)
which are received by the Company from prospective purchasers of the Units and
are delivered by the Company to the Escrow Agent, (b) the holding of amounts of
subscription monies which are collected through the banking system, and (c) the
disbursement of collected funds, all as described herein.
2.2 The initial offering period (the "Initial Offering
Period"), which shall be deemed to commence on the date hereof, shall continue
until the close of business on _______ ___, 2000 [45 DAYS AFTER THE DATE OF THE
PRIVATE PLACEMENT MEMORANDUM WHICH REGARDS THE OFFERING]. The Initial Offering
Period shall be extended by an Extension Period upon prior written notice by the
Company to the Escrow Agent. The Extension Period, which shall be deemed to
commence on the next calendar day following the expiration of the Initial
Offering Period, shall continue until the close of business on _________ ___,
2000 [90 DAYS AFTER THE DATE OF THE PRIVATE PLACEMENT MEMORANDUM WHICH REGARDS
THE OFFERING], or such earlier date as is specified in the notice to the Escrow
Agent (the period commencing on the date hereof, as the same as may be extended,
is referred to as the "Offering Period"). The later of the last day of the
Initial Offering Period, or the last day of the Extension Period, is referred to
herein as the "Termination Date." After the Termination Date, the Escrow Agent
shall not accept any additional amounts representing additional payments by
prospective purchasers except upon receiving written authorization signed by the
Company at any time prior to the close of business on the Termination Date.
3. Deposits to the Bank Account.
3.1 The Company shall promptly deliver to the Escrow Agent
all monies it receives from prospective purchasers of the Units, which monies
shall be in the form of checks, cash, or wire transfers. Upon the Escrow Agent's
receipt of such monies, they shall be credited to the Escrow Account. All checks
delivered to the Escrow Agent shall be made payable to "CST&T AAF - VNCI". Any
check payable other than to the Escrow Agent as required hereby shall be
returned to the prospective purchaser, or if the Escrow Agent has insufficient
information to do so, then to the Company (together with any Subscription
Information, as defined below or other documents delivered therewith) by noon of
the next business day following receipt of such check by the Escrow Agent, and
such check shall be deemed not to have been delivered to the Escrow Agent
pursuant to the terms of this Agreement.
3.2 Promptly after receiving subscription monies as
described in Section 3.1 hereof, the Escrow Agent shall deposit the same into
the Bank Account. Amounts of monies so deposited are hereinafter referred to as
"Escrow Amounts." The Escrow Agent shall cause Chase Manhattan Bank to process
all Escrow Amounts for collection through the banking system.
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Simultaneously with each deposit to the Escrow Account, the Company shall inform
the Escrow Agent in writing of the name and address of the prospective
purchaser, the number of Units subscribed for by such prospective purchaser, and
the aggregate dollar amount of such subscription (collectively, the
"Subscription Information").
3.3 The Escrow Agent shall not be required to accept for
credit to the Escrow Account or for deposit into the Bank Account checks which
are not accompanied by the appropriate Subscription Information. Wire transfers
and cash representing payments by prospective purchasers shall not be deemed
deposited in the Escrow Account until the Escrow Agent has received in writing
the Subscription Information required with respect to such payments.
3.4 The Escrow Agent shall not be required to accept in
the Escrow Account any amounts representing payments by prospective purchasers,
whether by check, cash or wire, except during the Escrow Agent's regular
business hours.
3.5 Only those Escrow Amounts which have been deposited in
the Bank Account and which have cleared the banking system and have been
collected by the Escrow Agent are herein referred to as the "Fund."
3.6 If the proposed offering is terminated before the
Termination Date, the Escrow Agent shall refund any portion of the Fund prior to
disbursement of the Fund in accordance with Section 4 hereof upon instructions
in writing signed by the Company and the Placement Agent.
4. Disbursement from the Bank Account.
4.1 If by the close of regular banking hours on the
Termination Date, the Escrow Agent determines that the Escrow Amounts are less
than the Closing Amount, then upon written instruction from the Company, the
Escrow Agent shall promptly refund to each prospective purchaser the amount of
payment received from such purchaser which is then held in the Fund or which
thereafter clears the banking system, without interest thereon or deduction
therefrom, by drawing checks on or issuing wires from the Bank Account for the
amounts of such payments and transmitting them to the purchasers.
4.2 If at any time up to the close of regular banking
hours on the Termination Date, the Escrow Agent determines that the amount in
the Fund at that time is equal to the Closing Amount, the Escrow Agent shall
promptly notify the Company of such fact in writing. The Escrow Agent, upon
receipt of the Company's written instructions, shall promptly disburse the Fund,
by drawing checks on or issuing wires from the Bank Account in accordance with
instructions in writing signed by the Company as to the disbursement of the
Fund, in such form as attached to this Agreement as Exhibit B, promptly after it
receives such instructions.
4.3 At any time up to the Closing Date during the Offering
Period, the Company may reject the subscription of a prospective purchaser of
the Units and, accordingly, by written
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authorization signed by the Company may instruct the Escrow Agent to return the
Escrow Amounts (after they have cleared the banking system and have been
collected by the Escrow Agent) deposited with respect to such subscriber,
whereupon the Escrow Agent shall promptly do so. In addition, even if the
Offering Termination Date has past, in such event the Company may by written
authorization, signed by the Company may instruct the Escrow Agent to receive
Escrow Amounts with respect to new prospective purchasers to replace the
prospective purchaser whose subscription has been rejected.
4.4 Upon disbursement of the Fund pursuant to the terms of
this Section 4, the Escrow Agent shall be relieved of all further obligations
and released from all liability under this Agreement. 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 Fund.
5. Rights, Duties and Responsibilities of Escrow Agent. It is
understood and agreed that the duties of the Escrow Agent are purely ministerial
in nature, and that:
5.1 The Escrow Agent shall notify the Company, on a daily
basis, of the Escrow Amounts which have been deposited in the Bank Account and
of the amounts, constituting the Fund, which have cleared the banking system and
have been collected by the Escrow Agent.
5.2 The Escrow Agent shall not be responsible for or be
required to enforce any of the terms or conditions of any agreement the Company
nor shall the Escrow Agent be responsible for the performance by the Company of
its obligations under this Agreement.
5.3 The Escrow Agent shall not be required to accept from
the Company any Subscription Information pertaining to prospective purchasers
unless such Subscription Information is accompanied by checks, cash, or wire
transfers meeting the requirements of Section 3.1 hereof, nor shall the Escrow
Agent be required to keep records of any information with respect to payments
deposited by the Company except with respect to the Subscription Information and
as to the amount of such payments; however, the Escrow Agent shall notify the
Company within a reasonable time of any discrepancy between the amount set forth
in any Subscription Information and the amount delivered to the Escrow Agent
therewith. Such amount need not be accepted for deposit in the Escrow Account
until such discrepancy has been resolved.
5.4 The Escrow Agent shall be under no duty or
responsibility to enforce collection of any check delivered to it hereunder. The
Escrow Agent, within a reasonable time, shall return to the Company any check
received which is dishonored, together with the Subscription Information, if
any, which accompanied such check.
5.5 The Escrow Agent shall be entitled to rely upon the
accuracy, act in reliance upon the contents, and assume the genuineness of any
notice, instruction, certificate, signature, instrument or other document which
is given to the Escrow Agent pursuant to this Agreement without the necessity of
the Escrow Agent verifying the truth or accuracy thereof. The Escrow Agent
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shall not be obligated to make any inquiry as to the authority, capacity,
existence or identity of any person purporting to give any such notice or
instructions or to execute any such certificate, instrument or other document.
5.6 If the Escrow Agent is uncertain as to its duties or
rights hereunder or shall receive instructions with respect to the Bank Account,
the Escrow Amounts or the Fund which, in its sole determination, are in conflict
either with other instructions received by it or with any provision of this
Agreement, it shall be entitled to hold the Escrow Amounts, the Fund, or a
portion thereof, in the Bank Account pending the resolution of such uncertainty
to the Escrow Agent's sole satisfaction, by final judgment of a court or courts
of competent jurisdiction or otherwise; or the Escrow Agent, at its sole
discretion, may deposit the Fund (and any other Escrow Amounts that thereafter
become part of the Fund) with the Clerk of a court of competent jurisdiction in
a proceeding to which all parties in interest are joined. Upon the deposit by
the Escrow Agent of the Fund with the Clerk of any court, the Escrow Agent shall
be relieved of all further obligations and released from all liability
hereunder.
5.7 The Escrow Agent shall not be liable for any action
taken or omitted hereunder, or for the misconduct of any employee, agent or
attorney appointed by it, except in the case of willful misconduct or gross
negligence. The Escrow Agent shall be entitled to consult with counsel of its
own choosing and shall not be liable for any action taken, suffered or omitted
by it in accordance with the advice of such counsel.
5.8 The Escrow Agent shall have no responsibility at any
time to ascertain whether or not any security interest exists in the Escrow
Amounts, the Fund or any part thereof or to file any financing statement under
the Uniform Commercial Code with respect to the Fund or any part thereof.
6. Amendment; Resignation. This Agreement may be altered or
amended only with the written consent of the Company and the Escrow Agent. The
Escrow Agent may resign for any reason upon three (3) business days' written
notice to the Company. Should the Escrow Agent resign as herein provided, it
shall not be required to accept any deposit, make any disbursement or otherwise
dispose of the Escrow Amounts or the Fund, but its only duty shall be to hold
the Escrow Amounts until they clear the banking system and the Fund for a period
of not more than five (5) business days following the effective date of such
resignation, at which time (a) if a successor escrow agent shall have been
appointed and written notice thereof (including the name and address of such
successor escrow agent) shall have been given to the resigning Escrow Agent by
the Company and such successor escrow agent, then the resigning Escrow Agent
shall pay over to the successor escrow agent the Fund, less any portion thereof
previously paid out in accordance with this Agreement; or (b) if the resigning
Escrow Agent shall not have received written notice signed by the Company and a
successor escrow agent, then the resigning Escrow Agent shall promptly refund
the amount in the Fund to each prospective purchaser, without interest thereon
or deduction therefrom, and the resigning Escrow Agent shall promptly notify the
Company in writing of its liquidation and distribution of the Fund; whereupon,
in either case, the Escrow Agent shall be relieved of all further
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obligations and released from all liability under this Agreement. Without
limiting the provisions of Section 8 hereof, the resigning Escrow Agent shall be
entitled to be reimbursed by the Company and the for any reasonable expenses
incurred in connection with its resignation, transfer of the Fund to a successor
escrow agent or distribution of the Fund pursuant to this Section 6.
7. Representations and Warranties. The Company hereby represents
and warrants to the Escrow Agent that:
7.1 No party other than the parties hereto and the
prospective purchasers have, or shall have, any lien, claim or security interest
in the Escrow Amounts or the Fund or any part thereof.
7.2 No financing statement under the Uniform Commercial
Code is on file in any jurisdiction claiming a security interest in or
describing (whether specifically or generally) the Escrow Amounts or the Fund or
any part thereof.
7.3 The Subscription Information submitted with each
deposit shall, at the time of submission and at the time of the disbursement of
the Fund, be deemed a representation and warranty that such deposit represents a
bona fide payment by the purchaser described therein for the number of Units set
forth in such Subscription Information.
7.4 All of the information contained in the Information
Sheet is, as of the date hereof, and will be, at the time of any disbursement of
the Fund, true and correct.
8. Fees and Expenses. The Escrow Agent shall be entitled to the
Escrow Agent Fees set forth on the Information Sheet, payable as and when stated
therein. The Company agrees to reimburse the Escrow Agent for any reasonable
expenses incurred in connection with this Agreement, including, but not limited
to, reasonable counsel fees. Upon receipt of the Closing Amount, the Escrow
Agent shall have a lien upon the Fund to the extent of its fees for services as
Escrow Agent.
9. Indemnification and Contribution.
9.1 The Company (referred to as the "Indemnitor") agree to
indemnify the Escrow Agent and its officers, directors, employees, agents and
shareholders (collectively referred to as the "Indemnitees") against, and hold
them harmless of and from, any and all loss, liability, cost, damage and
expense, including without limitation, reasonable counsel fees, which the
Indemnitees may suffer or incur by reason of any action, claim or proceeding
brought against the Indemnitees arising out of or relating in any way to this
Agreement or any transaction to which this Agreement relates, unless such
action, claim or proceeding is the result of the willful misconduct or gross
negligence of the Indemnitees.
9.2 If the indemnification provided for in Section 9.1 is
applicable, but for any reason is held to be unavailable, the Indemnitor shall
contribute such amounts as are just and
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equitable to pay, or to reimburse the Indemnitees for, the aggregate of any and
all losses, liabilities, costs, damages and expenses, including counsel fees,
actually incurred by the Indemnitees as a result of or in connection with, and
any amount paid in settlement of, any action, claim or proceeding arising out of
or relating in any way to any actions or omissions of the Indemnitor.
9.3 The provisions of this Section 9 shall survive any
termination of this Agreement, whether by disbursement of the Fund, resignation
of the Escrow Agent or otherwise.
10. Governing Law and Assignment. This Agreement shall be
construed in accordance with and governed by the laws of the State of New York
without giving effect to conflicts of law principles, and shall be binding upon
the parties hereto and their respective successors and assigns; provided,
however, that any assignment or transfer by any party of its rights under this
Agreement or with respect to the Escrow Amounts or the Fund shall be void as
against the Escrow Agent unless (a) written notice thereof shall be given to the
Escrow Agent; and (b) the Escrow Agent shall have consented in writing to such
assignment or transfer.
11. Notices. All notices required to be given in connection with
this Agreement shall be sent by registered or certified mail, return receipt
requested, or by hand delivery with receipt acknowledged, or by the Express Mail
service offered by the United States Post Office, and addressed, if to the
Company, at the address set forth on the Information Sheet, and if to the Escrow
Agent, at its address set forth above, to the attention of the Trust Department.
12. Severability. If any provision of this Agreement or the
application thereof to any person or circumstance shall be determined to be
invalid or unenforceable, the remaining provisions of this Agreement or the
application of such provision to persons or circumstances other than those to
which it is held invalid or unenforceable shall not be affected thereby and
shall be valid and enforceable to the fullest extent permitted by law.
13. Execution in Several Counterparts. This Agreement may be
executed in several counterparts or by separate instruments, and all of such
counterparts and instruments shall constitute one agreement, binding on all of
the parties hereto.
14. Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto with respect to the subject matter hereof
and supersedes all prior agreements and understandings (written or oral) of the
parties in connection therewith.
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IN WITNESS WHEREOF, the undersigned have executed this
Agreement as of the day and year first above written.
VIDEO NETWORK COMMUNICATIONS, INC. CONTINENTAL STOCK TRANSFER & TRUST
COMPANY, as Escrow Agent
By: By:
------------------------------------- ---------------------------------
Name: Name:
Title: Title:
EARLYBIRDCAPITAL, INC.
By:
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Name: Xxxxxx Xxxxxx
Title: Executive Vice President
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EXHIBIT A
ESCROW AGREEMENT INFORMATION SHEET
1. The Company:
Name: Video Network Communications, Inc.
Address: 00 Xxxxxxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxx Xxxxxxxxx 00000
State of incorporation or organization: Delaware
2. The Units:
Description of the Units to be offered: Each Unit consists of (i) one
share of the Company's common stock ("Common Stock" or "Shares") and
(ii) one warrant ("Warrants") ("Units") on a "best efforts all or none"
basis, at a purchase price per Unit of $1.50.
Offering price per Unit: $1.50
Amounts Required for Disbursement of the Escrow Account:
Aggregate dollar amount which must be collected before the Escrow
Account may be disbursed to the Company ("Closing Amount"): $1,760,000.
Plan of Distribution
Initial Offering Period: Until (i) one share of the Company's common
stock ("Common Stock" or "Shares") and (ii) one warrant ("Warrants")
("Units") on a "best efforts all or none" basis, at a purchase price
per share of $1.50 per Unit.
Extension Period, if any: _____ ___, 2000 through _______ ___, 2000 or
such earlier date as may be identified by the Company in the notice to
Escrow Agent, commencing the Extension Period.
Closing Period: At any time selected by the Company or thereafter as
soon as the Escrow Amounts have cleared the banking system in the
normal course of business, but not later than _______ ___, 2000 unless
extended to a date not later than __________ ___, 2000.
3. Term of Escrow Agreement
Initial Offering Period, Extension Period, if any, and Closing Period.
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Title of Escrow Account: CST&T AAF-VNCI.
4. Escrow Agent Fees
Amount due on completion of the initial closing: $1,500.00
Fee for each additional closing: $500
Fee for each check disbursed pursuant to the terms of the Escrow Agreement: $ 0
Fee for each check returned pursuant to the terms of the Escrow Agreement: $ 10
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EXHIBIT B
AUTHORIZATION
Continental Stock Transfer & Trust Company
0 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx
To whom it may concern:
The undersigned hereby directs you to issue checks or wire funds
upon presentation of wire instructions from the Video Network Communications
Escrow Account as follows:
Name Amount
---- ------
1. EarlyBirdCapital, Inc: $
Representing payment in full of the gross proceeds of the sale of
___________ Units.
2. To Prospective Purchasers as indicated below (only in event $
offering has been reduced to an amount
below the total amount of Funds in
escrow):
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Date: ________, 2000
EARLYBIRDCAPITAL, INC.
By:
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Name: Xxxxxx Xxxxxx
Title: Executive Vice President
