EXHIBIT 1.2
ESCROW AGREEMENT
This Agreement, made this ___ day of ________ , ____ , by and between
MediaComm Broadcasting Systems, Inc., d/b/a Xxxxxxx.xxx, a Colorado corporation
(the "Company") and Peak National Bank, Lakewood, Colorado (the "Escrow Agent").
WITNESSETH:
WHEREAS, The Company has caused to be prepared a Prospectus dated _______
_____, ____,pursuant to which the Company proposes to issue, and to offer for
sale to the public shares of its Common Stock, no par value per share (the
"Common Stock"), the Common Stock to be offered and sold by the Company on a
450,000 shares minimum, "all-or-none", 900,000 shares maximum "best efforts"
basis at a price of $1.00 per share with a minimum purchase requirement
hereunder of $1,000; and
WHEREAS, pursuant to the terms of the Prospectus, provision must be made to
impound in escrow for the benefit of the purchasers in the Offering, $450,000 of
the gross proceeds which may be received from sale of the Common Stock which may
be sold; and
WHEREAS, the Company desires to enter into an agreement with the Escrow
Agent for the purpose of fulfilling the escrow requirements as set forth in the
Prospectus.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants, terms and conditions hereinafter set forth, the parties hereto agree
as follows:
1. The Company shall, immediately upon receipt thereof, deliver to the
Escrow Agent, or cause others to deliver, all proceeds from the sale of up
to 450,000 shares of Common Stock, together with a written account of each
sale, which material shall set forth, among other things, the purchaser's
name and address, the number of shares purchased, the amount paid therefor,
and whether the consideration received was in the form of cash or evidenced
by a check.
2. All funds or remittances delivered to the Escrow Agent pursuant hereto
shall be deposited immediately by the Escrow Agent in a separate account
designated substantially as "Xxxxxxx.xxx - Escrow Account" (the "Escrow
Account"). The Escrow Account shall be created and maintained subject to
provisions hereinafter and the policies and procedures of the Escrow Agent.
During the Escrow Period (hereinafter defined) none of the amounts
deposited in the Escrow Account shall become the property of the Company or
any other person or be subject to the debts of the Company or any other
person except as expressly provided herein with respect to payment by the
Escrow Agent to the Company, and the Escrow Agent shall neither make nor
permit any disbursements from the Escrow Account except as expressly
provided herein.
3. The Escrow Period shall begin on the effective date hereof and shall
terminate:
(i) upon sale of the 450,000 shares minimum within the Offering
Period; or
(ii) _________, ____ (60 days from the date of the Prospectus), which
period may be extended for an additional period not to exceed 60 days
(the "Offering Period").
4. In the event the Escrow Period terminates pursuant to the provision of
Paragraph 3(i) hereof, the Escrow Agent shall immediately provide written
notice to the Company that funds deposited in the Escrow Account total at
least $450,000 and the Escrow Agent shall deliver and pay over to the
Company on the Closing Date, all amounts deposited in the Escrow Account.
In the event proceeds in the minimum amount necessary have been received
before expiration of the Escrow Period, an additional period not to exceed
10 days may be allowed to collect funds deposited in the Escrow Account.
The Closing Date, as used herein, shall be defined as a date to be
designated by the Company which date shall be subsequent to the date upon
which proceeds in the amount of at least $450,000 are deposited in the
Escrow Account, if such event occurs prior to the expiration of the
Offering Period; subsequent Closing Dates shall also be held as designated
by the Company subsequent to receipt by the Escrow Agent of the first
$450,000 but prior to termination under Paragraph 3 (ii) above. On the
making of the payments by the Escrow Agent as provided for in this
paragraph, the Escrow Agent shall be completely discharged and released of
any further liabilities or responsibilities as to funds paid to the
Company.
5. In the event the Escrow Period terminates pursuant to the provision of
Paragraph 3(ii), under circumstances where the minimum of $450,000 shall
not have been deposited in the Escrow Account, then the Escrow Agent shall,
as promptly as possible after such termination and on the basis of its
records of the Escrow Account, return to each purchaser of the Common Stock
the collected amounts paid by him, without interest thereon or deduction
therefrom. All amounts paid or payable to each purchaser pursuant to this
paragraph shall be deemed to be the property of each purchaser, free and
clear of any or all claims of the Company or of any of its credits, and all
subscriptions to purchase the Common Stock shall be deemed canceled without
any further liability of such purchasers to pay for the Common Stock. The
Escrow Agent shall be required to make such payments only to the persons
named in the written accounts of sale furnished by the Company pursuant to
Paragraph 1 hereof. At such time as the Escrow Agent shall have made all
the payments and remittances provided for in this paragraph, the Escrow
Agent shall be discharged completely and released of any and all further
liabilities and responsibilities hereunder.
6. With regard to any funds payable to the purchasers of the Common Stock
which the Escrow Agent cannot, for any reason, disburse to said purchaser
pursuant to Paragraph 5 herein, the Escrow Agent, may, after reasonable
efforts to locate said purchaser, deposit said funds with the Clerk of the
District Court of the County of Jefferson, State of Colorado, or with the
Clerk of the United States District Court for the District of Colorado, and
interplead the Company and said purchaser. Upon so depositing such funds
and filing its complaint in interpleader, the Escrow Agent shall be
completely discharged and released from the further liability or
responsibility under the terms hereof. The Company, for itself, its
successor and assigns, does hereby submit itself to the jurisdiction of
said court and does hereby appoint the clerk of said court as its agent for
service of all process in connection with the proceedings mentioned in this
paragraph, with a copy of any service mailed U.S. Mail, certified, return
receipt requested.
7. The Escrow Agent shall be solely responsible for determining proceeds
which constitute "collected amounts" as such term is used in this
Agreement. The Company shall reimburse the Escrow Agent for any checks
returned following the Escrow Agent's payment to the Company of the amounts
set forth in Paragraph 4 above.
8. The Company shall deliver to the Escrow Agent appropriate written notice
of any extension of the offering period at the date thereof.
9. In acting pursuant to this Agreement, the Escrow Agent shall be fully
protected in every reasonable exercise of its discretion and shall have no
obligation hereunder either to the Company or to any other party, except as
expressly set forth herein.
10. An escrow fee in the amount of $0.00 per share shall be paid to Escrow
Agent by the Company simultaneously with the execution of this Agreement.
11. The Escrow Agent shall pay interest only to the Company on any funds
deposited in escrow during the Offering Period in accordance with its
established procedures. Interest shall not be paid to subscribers in the
event the Offering terminates pursuant to the provisions of paragraph
3(ii). During the Escrow Period, the Escrow Agent shall invest offering
proceeds only in those investments which can be readily sold or otherwise
disposed of for cash by the time the Escrow Period terminates without any
dissipation of the offering proceeds invested, in recognition that offering
proceeds must be transmitted promptly to the purchasers upon termination of
the Escrow Period pursuant to paragraph 3(ii).
12. The Escrow Agent shall not issue any certificate of deposit, share
certificates, or any other instrument or document representing any interest
in the deposited funds, except written notice acknowledging receipt of
deposited funds from the Company, a copy of such receipt to be delivered
from time to time by the Escrow Agent to the Company.
13. In performing any of its duties hereunder, the Escrow Agent shall not
incur any liability to anyone for any damages, losses or expenses, except
for willful default or negligence and it shall, accordingly, not incur any
such liability with respect to (a) any action taken or omitted in good
faith upon advise of its counsel or counsel for the Company given with
respect to any questions relating to the duties and responsibilities of the
Escrow Agent under this Agreement, and (b) any action taken or omitted in
reliance upon any instrument, including the written advice provided for
herein, not only as to the execution, validity and effectiveness of its
provisions, but also as to the truth and accuracy of any information
contained therein, which the Escrow Agent shall in good faith believe to be
genuine, to have been signed and presented by a proper person or persons,
and to be in compliance with the provisions of this Agreement.
14. The Company hereby agrees to indemnify and hold harmless the Escrow
Agent against any and all losses, claims, damages, liabilities and
expenses, including reasonable costs of investigation and counsel fees and
disbursement, which may be imposed on the Escrow Agent or incurred by the
Escrow Agent in connection with its acceptance of appointment as Escrow
Agent hereunder or the performance of its duties hereunder, except losses
occasioned by the negligence or willful misconduct of the Escrow Agent or
its agents, including any litigation arising from this Agreement or
involving the subject matter hereof.
15. In the event of any dispute between the parties or between a party and
a third party, as to the validity or meaning of these instructions, or any
other fact or matter relating to the transaction between the parties, the
Escrow Agent is instructed as follows:
(a) That it 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 or court order or indemnification;
(b) That, if the dispute does not involve the Escrow Agent, it may in
its sole and absolute discretion, after reasonable efforts to settle
the dispute have failed, deposit the property described herein or so
much thereof as remains in its hands with the then clerk, or acting
Clerk of the District Court of the County of Arapahoe, State of
Colorado, and interplead the Company, and any third party complainant,
and upon so depositing such property and filing its complaint in
interpleader, it shall be relieved of all liability under the terms
hereof as to the property so deposited and shall be entitled to
recover in such interpleader action, from the Company, its reasonable
attorney's fees and related costs and expenses incurred in commencing
such action and further more, the Company, for itself, its successors
or assigns, does hereby submit itself to the jurisdiction of said
court and does hereby appoint the then clerk or acting clerk of said
court as its agent for the service of all process in connection with
such proceedings.
16. The Escrow Agent shall not be required to institute or defend any
action or legal process involving any matter referred to herein which in
any manner affects it or its duties or liabilities hereunder, unless or
until requested to do so by the Company and then only upon receiving full
indemnity in an amount, and of such a character as it shall require,
against any and all claims, liabilities, judgements, attorney's fees and
other expenses of every kind in relation thereto.
17. All notices, demands, or requests required or authorized hereunder
shall be deemed given sufficiently if in writing and sent by registered
mail or certified mail, return receipt requested and postage prepaid, or by
tested telex, telegram, or cable, in the case of the Company:
Xxx X. Xxxxxxxx, President
000 Xxxx Xxxxxx Xxxxxx #00
Xxxxxxxxx, Xxxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000 0000
and in the case of the Escrow Agent:
Peak National Bank
00000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attention: _________________________
18. The validity, interpretation and construction of this Agreement and
each party hereto shall be governed by the laws of the State of Colorado.
IN WITNESS WHEREOF, the Company and the Escrow Agent have executed this
Agreement on the day and year first above written.
THE COMPANY:
MEDIACOMM BROADCASTING SYSTEMS, INC.
d/b/a Xxxxxxx.xxx
By: _________________________________
Xxx X. Xxxxxxxx, President
THE ESCROW AGENT:
PEAK NATIONAL BANK
By: _________________________________
Title: ______________________________
