Exhibit 9
PROCEEDS ESCROW AGREEMENT
THIS PROCEEDS ESCROW AGREEMENT (this "Agreement") is made and entered
into this day of , 1998, by and between THE LIVING CARD
COMPANY, a Nevada corporation (the "Company"), and BRIGHTON BANK, a National
banking corporation (the "Escrow Agent").
Premises
The Company proposes to offer for sale to the general public in certain
states a total of Shares of common stock (the "Common Stock"),
par value $0.001, at an offering price of $0.10 per Share in accordance with
the registration provisions of the Securities Act of 1933, as amended, and
pursuant to a registration statement on form SB-1 (the "Registration
Statement") on file with the Securities and Exchange Commission. The Company
agrees herein to offer for sale the Common Stock in accordance with the terms
of the prospectus contained in the Registration Statement. In accordance with
the terms of the Registration Statement, the Company desires to provide for
the escrow of the gross subscription payments for Common Stock until the
amount, as set forth below, has been received.
Agreement
NOW, THEREFORE, the parties hereto agree as follows:
1. Until termination of this Agreement, all funds collected by the
Company or any officer or representative of the Company from subscriptions for
the purchase of Common Stock in the subject offering shall be deposited
promptly with the Escrow Agent, but in any event no later than noon of the
next business day following receipt.
2. Concurrently with transmitting funds to the Escrow Agent, the
Company shall also deliver to the Escrow Agent a schedule setting forth the
name and address of each subscriber whose funds are included in such
transmittal, the number of Shares subscribed for, and the dollar amount paid.
All funds so deposited shall remain the property of the subscriber and shall
not be subject to any lien or charges by the Escrow Agent, or judgments or
creditors' claims against the Company until released to it in the manner
hereinafter provided.
3. If at any time prior to the expiration of the minimum offering
period, as specified in paragraph 4, $100,000 has been deposited pursuant to
this Agreement, the Escrow Agent shall confirm the receipt of such funds to
the Company.
4. If, within four (4) months after the effective date of the
Registration Statement the Company and its agents have not deposited $100,000
in good funds with the Escrow Agent, the Escrow Agent shall so notify the
Company and shall promptly transmit to those investors who subscribed for the
purchase of Shares the amount of money each such investor so paid. The Escrow
Agent shall furnish to the Company an accounting for the refund in full to all
subscribers.
5. If at any time prior to the termination of this escrow the
Escrow Agent is advised by the Securities and Exchange Commission that a stop
order has been issued with respect to the Registration Statement, the Escrow
Agent shall thereon return all funds to the respective subscribers.
6. It is understood and agreed that the duties of the Escrow Agent
are entirely ministerial, being limited to receiving monies from the Company
and its agents and holding and disbursing such monies in accordance with this
Agreement.
7. The Escrow Agent is not a party to, and is not bound by, any
agreement between the Company and any other party which may be evidenced by or
arise out of the foregoing instructions.
8. The Escrow Agent acts hereunder as a depository only, and is not
responsible or liable in any manner whatsoever for the sufficiency,
correctness, genuineness, or validity of any instrument deposited with it, or
with respect to the form or execution of the same, or the identity, authority,
or rights of any person executing or depositing the same.
9. The Escrow Agent shall not be required to take or be bound by
notice of any default of any person or to take any action with respect to such
default involving any expense or liability, unless notice in writing is given
to an officer of the Escrow Agent of such default by the undersigned or any of
them, and unless it is indemnified in a manner satisfactory to it against any
expense or liability arising therefrom.
10. The Escrow Agent shall not be liable for acting on any notice,
request, waiver, consent, receipt, or other paper or document believed by the
Escrow Agent to be genuine and to have been signed by the proper party or
parties.
11. The Escrow Agent shall not be liable for any error of judgment
or for any act done or step taken or omitted by it in good faith, or for any
mistake of fact or law, or for anything which it may do or refrain from doing
in connection herewith, except its own willful misconduct.
12. The Escrow Agent shall not be answerable for the default or
misconduct of any agent, attorney, or employee appointed by it if such agent,
attorney, or employee shall have been selected with reasonable care.
13. The Escrow Agent may consult with legal counsel in the event of
any dispute or question as to the consideration of the foregoing instructions
or the Escrow Agent's duties hereunder, and the Escrow Agent shall incur no
liability and shall be fully protected in acting in accordance with the
opinion and instructions of such counsel.
14. In the event of any disagreement between the undersigned or any
of them, the person or persons named in the foregoing instructions, and/or any
other person, resulting in adverse claims and/or demands being made in
connection with or for any papers, money, or property involved herein or
affected hereby, the Escrow Agent shall be entitled at its option to refuse to
comply with any such claim, or demand so long as such disagreement shall
continue and, in so refusing, the Escrow Agent shall not be or become liable
to the undersigned or any of them or to any person named in the foregoing
instructions for the failure or refusal to comply with such conflicting or
adverse demands, and the Escrow Agent shall be entitled to continue to so
refrain and refuse to so act until:
(a) the rights of adverse claimants have been finally
adjudicated in a court assuming and having jurisdiction of the parties and the
money, papers, and property involved herein or affected hereby; and/or
(b) all differences shall have been adjusted by agreement and
the Escrow Agent shall have been notified thereof in writing signed by all of
the persons interested.
15. The fee of the Escrow Agent is $ , receipt of which is
hereby acknowledged. In addition, if a minimum of $100,000 is not received in
escrow within the escrow period and the Escrow Agent is required to return
funds to investors as provided in section 4, the Escrow Agent shall receive a
fee of $ per check for such service. The fee agreed on for services
rendered hereunder is intended as full compensation for the Escrow Agent's
services as contemplated by this Agreement; however, in the event that the
conditions of this Agreement are not fulfilled, the Escrow Agent renders any
material service not contemplated by this Agreement, there is any assignment
of interest in the subject matter of this Agreement, there is any material
modification hereof, any material controversy arises hereunder, or the Escrow
Agent is made a party to or justifiably intervenes in any litigation
pertaining to this Agreement or the subject matter hereof, the Escrow Agent
shall be reasonably compensated for such extraordinary expenses, including
reasonable attorneys' fees, occasioned by any delay, controversy, litigation,
or event and the same may be recoverable only from the Company.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective duly authorized officers, as of the date first
above written.
THE LIVING CARD COMPANY
By ________________________________________
Duly Authorized Officer
Brighton Bank hereby acknowledges receipt of this Agreement and agrees
to act in accordance with said Agreement and on the terms and conditions above
set forth this__________ day of __________, 1998.
BRIGHTON BANK
By _______________________________________
Duly Authorized Officer
