Exhibit 9.3
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (the "Agreement) is made as of the 28th day of March 2003
among Mintmire & Associates (the "Escrow Agent") and Smart Technology, Inc. (the
"Issuer").
RECITALS
WHEREAS, the Issuer wishes Escrow Agent to act on its behalf with regard to
proceeds from a certain initial public offering of Issuer's Shares of Common
Stock for which it will file on Form SB-1 with the Securities and Exchange
Commission (the "Proceeds'); and
WHEREAS, the Escrow Agent has agreed to act with regard to the Proceeds subject
to the terms and conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the obligations set forth herein and other
good and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the parties agree as follows:
1. Recitals. The recitals set forth above are incorporated herein by reference
as if set out fully in the body of this Agreement.
2. Property Deposited in Escrow. The Issuer and the Escrow Agent shall establish
an attorney escrow account with Wachovia Bank (the "Depository") in Palm Beach,
Florida and entitled "Smart Technology, Inc, IPO Escrow Account" (the "Escrow
Account"). All Proceeds of subscriptions (together with a list setting forth the
names and addresses of each subscriber and the amounts and dates of receipt of
theft respective subscriptions and copies of the Subscription Agreement and
Power of Attorney executed by the subscriber) for shares of limited issuer
interest (the "Shares") in the Issuer received during the Offering Period (as
defined in paragraph 3.6 below) shall be forwarded to the Escrow Agent by noon
of the next business day after receipt of such subscriptions, with copies to the
Issuer for determination of whether to accept such subscriptions. The Issuer
shall deliver to all such prospective subscribers interim receipts for the
amount of the funds deposited in the Escrow Account and copies of such receipts
shall be delivered to the Escrow Agent, said interim receipts to be
substantially in the form of Exhibit A hereto.
3. Authority of Escrow Agent. The Escrow Agent shall collect, hold, deal with
and dispose of the Proceeds and any other property at any time held by it
hereunder in the following manner:
3.1 If subscriptions for 50,000-300,000 shares ($250,000- $1,500,000) or more
have been received during the Initial Offering Period (as defined in paragraph
3.6 below), all property deposited in the Escrow Account (excluding all interest
accumulated on the Proceeds paid to subscribers pursuant to paragraph 3.2 below)
shall as soon as practicable be paid over and delivered to the Issuer upon its
written request, upon the certification by the Issuer to the Escrow Agent that
subscriptions aggregating not less than such 50,000-300,000 shares
($250,000-$1,500,000) minimum have been received and accepted, and upon
certification by the Escrow Agent to the Issuer that the Escrow Agent has
received not less than such $250,000 minimum in good clear funds for deposit in
the Escrow Account.
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3.2 If such subscriptions for 50,000-300,000 shares ($250,000- $1,500,000) or
more have not been received within the Offering Period (as defined in paragraph
3.6 below), prompt remittance (within 10 days following termination of the
offering) of the Proceeds deposited in the Escrow Account shall be made by the
Escrow Agent to the subscribers at their respective addresses shown on the list
of subscriber names, addresses and social security numbers delivered to the
Escrow Agent pursuant to paragraph I in the amounts shown thereon and without
deductions of any kind or character. Additionally, any interest which shall be
accrued on the Proceeds during the period of this Agreement shall concurrently
be paid to the subscribers in proportion to their respective subscriptions
(taking into account time of deposit and amount).
3.3 Prior to delivery of the escrowed Proceeds to the Issuer as described above,
the Issuer shall have any title to or interest in the Proceeds on deposit in the
Escrow Account or in any interest earned thereon and such Proceeds and interest
shall under no circumstances be subject to the liabilities or indebtedness of
the Issuer.
3.4 The Escrow Agent shall not be responsible for investment management of the
subscription funds deposited with it. Instead, the Issuer shall cause all
Proceeds deposited with it pursuant to this Agreement to be maintained and
invested as the Issuer shall from time to time direct by written instrument
delivered to the Escrow Agent, in certificates of deposit, savings accounts (of
banks including the Escrow Agent) or direct United States Government obligations
which can be readily liquidated on twenty-four hours notice so that 100% of the
Proceeds so deposited with interest thereon can, if necessary, be returned to
subscribers in accordance with paragraph 3.2 above. It is expressly agreed that
the Escrow Agent is not guaranteeing that any interest or profits will accrue on
the subscription funds deposited with it. If the 100% of the Proceeds so
deposited are not realized upon such liquidation, the Issuer shall pay the
difference into the Escrow Account for distribution to the subscribers. The
Escrow Agent shall incur no liability for any loss suffered so long as the
Escrow Agent follows such directions.
3.5 At any time prior to the termination of this Agreement, for whatever reason,
the Issuer may notify the Escrow Agent that a Subscription Agreement of a
subscriber has not been accepted or has only been partially accepted, and the
Issuer may direct the Escrow Agent to return as soon thereafter as may be
practicable any Proceeds held in the Escrow Account for the benefit of such
subscriber directly to such subscriber, without interest. If any check
transmitted to the Escrow Agent in connection with a subscription shall remain
uncollected for any reason, the Escrow Agent shall return such check, together
with any other material or documents received by it in connection with the
subscription, to the Issuer.
3.6 The "Offering Period" shall mean in no case later than _________________,
and subject to earlier termination. The Issuer shall give the Escrow Agent
prompt notice of when the Offering Period commences.
3.7 The Escrow Agent shall not be obligated to inquire as to the form, manner of
execution or validity of any documents herewith or hereafter deposited pursuant
to the provisions hereof, nor shall the Escrow Agent be obligated to inquire as
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to the identity, authority or rights of the persons executing the name. In case
of conflicting demands upon it, the Escrow Agent may withhold performance under
this Agreement until such time as said conflicting demands shall have been
withdrawn or the rights of the respective parties shall have been settled by
court adjudication, arbitration, joint order or otherwise.
3.8 The Escrow Agent shall not be required to separately record on its books the
name, address and amount of each subscription as received, but shall keep the
lists delivered to it pursuant to paragraph 1 above.
4. Fees and Expenses of Escrow Agent. The fees and expenses of the Escrow Agent
shall be fixed at $500.
5. Liability of Escrow Agent. The Escrow Agent shall not be liable for any
action taken or omitted by it in good faith in accordance with the advice of its
counsel and in no event shall it be liable or responsible except for its won
negligence or willful misconduct. The Escrow Agent shall not be responsible for
any loss to the Proceeds resulting from the investment thereof in accordance
with the terms of this Agreement.
6. Indemnification of Escrow Agent. The Issuer agrees to indemnify and hold
harmless the Escrow Agent and its officers, employees and agents from and
against reasonable fees and expenses of the Escrow Agent, including but not
limited to judgments, reasonable attorneys' fees and other liabilities which the
Escrow Agent may incur or sustain by reason of or in connection with this
Agreement.
7. Representations and Warranties of the Issuer. The Issuer warrants to and
agrees with the Escrow Agent that, unless otherwise expressly set forth in this
Agreement, there is no security interest in the Proceeds or any part thereof; 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 Proceeds or any part thereof; and the Escrow Agent shall have
no responsibility at any time to ascertain whether or not any security interest
exists in the Proceeds or any part thereof or to file any financing statement
under the Uniform Commercial Code with respect to the Proceeds or any part
thereof.
8. Escrow Agents Compliance with Court Orders. Etc. If any property subject
hereto is at any time attached, garnished or levied upon under any court order,
or in case the payment, assignment, transfer, conveyance or delivery of any such
property shall be stayed or enjoined by any court order or in case any order,
writ, judgment or decree shall be made or entered by any court affecting such
property, or any part hereof, then in any of such events, the escrow Agent is
authorized to rely upon and comply with any such order, writ judgment or decree
about which it is advised by legal counsel of its own choosing is binding upon
it, and if it complies with any such order, writ judgment or decree, it shall
not be liable to any of the parties hereto or to any other person, firm or
corporation by reason of such compliance, even though such order, writ, judgment
or decree may be subsequently reversed, modified, annulled, set aside or
vacated.
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9. Resignation of Escrow Agent. The Escrow Agent may resign by giving ten days
written notice by certified mail, return receipt requested, sent to the
undersigned at their respective addresses herein set forth; and thereafter.
subject to the provisions of the preceding paragraph hereof shall deliver all
remaining deposits in the Escrow Account to a successor escrow agent acceptable
to all other parties hereto, which acceptance shall be evidenced by the joint
written and signed order of the undersigned. If no such order is received by the
Escrow Agent within thirty days after mailing such notice, it is unconditionally
and irrevocably authorized and empowered to send any and all items deposited
hereunder by registered mail to the respective depositors thereof.
10. Amendments. The Escrow Agent's duties and responsibilities shall be limited
to those expressly set forth in this Agreement and shall not be subject to, nor
obliged to recognize, any other agreement between, or direction or instruction
of, any or all of the parties hereto unless reference thereto is made herein;
provided, however, with the Escrow Agent's written consent, this Agreement may
be amended at any time or times by an instrument in writing signed by all of the
undersigned.
11. Governing Law. This Agreement shall be construed, enforced and administered
in accordance with the laws of the State of Florida applicable to contracts made
and to be performed in that State.
12. Effectiveness. This Agreement shall not become effective (and the Escrow
Agent shall have no responsibility hereunder except to return the property
deposited in the Escrow Account to the subscribers) until the Escrow Agent shall
have received a certificate as to the names and specimen signatures of the
Issuer and shall have advised each of the Issuers in writing that the same are
in form and substance satisfactory to the Escrow Agent.
13. Termination. This agreement shall terminate upon completion of the
obligations provided in either paragraphs 3.1 or 3.2 hereof or as otherwise
provided by written instruction from the Issuer to the Escrow Agent.
14. Notices.
14.1 Subject to the provisions of paragraph 14.2 thereof, any notice required or
permitted to be given hereunder shall be effective when delivered by messenger,
or dispatched by certified mail, return receipt requested, cable or telex, to
the respective party at its address specified below, namely if to Mintmire &
Associates, addressed to it at 000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxx Xxxxx,
Xxxxxxx 00000 Attn: Xxxxxx X. Xxxxxxxx and if to the Issuer at 000 Xxxxxxxx
Xxxxxx XXX 000, Xxxx Xxxx Xxxxx, Xxxxxxx 00000, Attn: Xxxx Xxxxxxxxxx, or to
such other address as such party may have furnished in writing to each of the
other parties hereto,
14.2. Any notice which the Escrow Agent is required or desires to give hereunder
to any of the undersigned shall be in writing and may be given by mailing the
same to the address of the undersigned (or to such other address as said
undersigned may have theretofore substituted by written notification to the
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Escrow Agent), by certified mail, return receipt requested, postage prepaid.
Notices to or from the Escrow Agent hereunder shall be in writing and shall not
be deemed to be given until actually received by the Escrow Agent or by the
person to whom it was mailed, respectively. Whenever under the terms hereof the
time for giving notice or performing an act falls upon a Saturday, Sunday or
bank holiday, such time shall be extended to the Escrow Agent's next business
day.
IN WITNESS WHEREOF the parties has set their hand and seal effective on the date
first above written.
Mintmire & Associates, Escrow Agent
By: /s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
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