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EXHIBIT 10
ESCROW AGREEMENT
This Escrow Agreement is entered into effective March 16, 1998, by and
among Summit Environmental Corporation, Inc., a Texas corporation ("Summit
Environmental Corporation, Inc."); SuperCorp Inc., an Oklahoma corporation
("SuperCorp"); and Bank One Trust Company, NA, Oklahoma City, N.A. ("Bank One").
In consideration of the representations, undertakings, and promises set
forth below, the parties agree as follows:
1. REPRESENTATIONS BY SUMMIT ENVIRONMENTAL CORPORATION, INC..
Summit Environmental Corporation, Inc. represents as follows:
1.1. Summit Environmental Corporation, Inc. is preparing for
filing a Form XX-0 Xxxxxxxxxxxx Xxxxxxxxx ("xxx XX-0") with the Securities and
Exchange Commission ("the Commission"). A copy of the most recent draft of the
SB-2 is delivered herewith to Bank One, and Summit Environmental Corporation,
Inc. undertakes to deliver to Bank One the final form of the SB-2 as filed with
the Commission and any amendments thereto.
1.2. Summit Environmental Corporation, Inc. and Summit
Technologies, Inc., a Texas corporation, have entered into an agreement of
merger ("the Agreement of Merger"), which merger is described in the SB-2.
1.3. Summit Environmental Corporation, Inc. has three
shareholders - SuperCorp, which is the owner of record of 500,000 shares of
Summit Environmental Corporation, Inc.'s common stock ("the Spinoff Shares"),
and two individuals who, together, own 250,000 shares of Summit Environmental
Corporation, Inc.'s common stock.
2. REPRESENTATIONS BY SUPERCORP. As soon as permitted by law or
regulation or as soon as possible after the Commission has declared effective
the SB-2, SuperCorp shall vote its 500,000 Spinoff Shares to approve the
proposed merger described in the Agreement of Merger. Immediately thereafter,
SuperCorp shall declare a dividend to its shareholders of the 500,000 Spinoff
Shares.
3. REPRESENTATIONS OF BANK ONE. Bank One represents that it is an
"insured depository institution," as that term is defined in Section 3(c)(2) of
the Federal Deposit Insurance Act.
4. ESCROW OF SPINOFF SHARES. The 500,000 Spinoff Shares shall be
escrowed with Bank One pursuant to the following terms and conditions:
4.1. After declaration by SuperCorp of the dividend to its
shareholders of the 500,000 Spinoff Shares, either SuperCorp or its
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registrar-transfer agent shall deliver to Bank One stock certificates
representing the 500,000 Spinoff Shares, which certificates shall evidence on
their faces the identity of the owners of the shares represented by each
certificate.
4.2. Until such time as the escrowed certificates are released
from escrow in accordance with the terms of this Escrow Agreement, Summit
Environmental Corporation, Inc. shall declare no cash dividends on the shares
represented by such certificates.
4.3. Bank One shall hold the escrowed certificates solely for
the benefit of the owners of the shares represented by such certificates, which
owners shall have all voting rights with respect to such shares as are provided
by Texas law. However, no transfer or other disposition of the escrowed
securities or any interest related to such securities shall be permitted by
Summit Environmental Corporation, Inc. or recognized by Bank One other than by
will or the law of descent and distribution, or pursuant to a qualified domestic
relations order as defined by the Internal Revenue Code of 1986 as amended or to
Title 1 of the Employee Retirement Income Security Act.
5. RELEASE OF THE ESCROWED SECURITIES. The certificates placed in
escrow with Bank One shall be released from escrow and delivered by Bank One to
Summit Environmental Corporation, Inc.'s stock registrar-transfer agent for
delivery by it to the owners of the certificates at such time as or after Bank
One has received a signed representation from Summit Environmental Corporation,
Inc., together with any other evidence acceptable to Bank One, that the
conditions and requirements set forth either in paragraph 5.1 or 5.2 below have
been met.
5.1. Should the merger described in the Agreement of Merger be
approved by the shareholders of Summit Environmental Corporation, Inc., and
should the necessary merger documents be filed with the Secretary of State of
Texas, Summit Environmental Corporation, Inc. shall so represent this to Bank
One and shall state the date the merger became effective.
5.2. Should the proposed merger described in the Plan of
Merger not be approved and effected, Summit Environmental Corporation, Inc.
proposes to search for an alternative merger partner or for a suitable business
or assets to be acquired. At such time as Summit Environmental Corporation, Inc.
should execute an agreement of merger or for the acquisition of a business or
assets that would constitute the business of Summit Environmental Corporation,
Inc., Summit Environmental Corporation, Inc. shall file a post-effective
amendment to the SB-2 disclosing the information specified by the SB-2
registration statement form and Industry Guides, including financial statements
of Summit Environmental Corporation, Inc. and the company to be acquired, and
the post-effective amendment must become effective at the Commission. Then, the
alternative merger or
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acquisition of a business or assets must be approved and legally effected, at
which time Summit Environmental Corporation, Inc. shall represent to Bank One
that this has occurred and that all requirements of the Commission for the
release from escrow of the certificates have been met.
6. TERM OF ESCROW AGREEMENT. This Escrow Agreement shall
terminate 18 months after the effective date of the initial SB-2, unless the
certificates have been earlier released from escrow according to the provisions
set forth above. Should no such release from escrow have occurred by the
termination date, Bank One shall deliver, for cancellation, all escrowed stock
certificates to Summit Environmental Corporation, Inc.'s stock
registrar-transfer agent.
7. DEPOSITORY DUTY. Bank One will be liable as a depository only
and will not be responsible for the sufficiency or accuracy of the form,
execution or validity of any certificate or document delivered to Bank One
hereunder or any description of the property or other thing contained therein or
the identity, authority or rights of the persons executing or delivering or
purporting to execute or deliver any such certificate or document. Bank One's
duties hereunder are limited to the safekeeping of the instruments or other
documents received, and the delivery of the same in accordance with this
Agreement.
8. STANDARD OF CARE. Bank One will not be liable for any act or
omission done in good faith, or for any claim, demand, loss or damage made or
suffered by any party to this Agreement, excepting such as may arise through or
be caused by Bank One's willful misconduct or gross negligence.
9. RELIANCE. Bank One is authorized to rely on any document
believed by Bank One to be authentic in making any delivery of
certificates, funds or property hereunder.
10. ESCROW CHARGES. A $500 fee will be paid by Summit
Environmental Corporation, Inc. to Bank One for services to be rendered
hereunder. Bank One, however, may employ attorneys for reasonable protection of
the escrow property and of itself, and Summit Environmental Corporation, Inc.
will reimburse Bank One on demand. All sums due Bank One under this Agreement
will bear interest at the rate of 10 percent per annum from the date due until
Bank One is reimbursed in full.
11. LIABILITY OF BANK ONE. In accepting any securities or
documents delivered hereunder, it is agreed and understood by the undersigned
that Bank One will not be called on to construe any contract or instrument
deposited herewith and, in the event of a dispute, will be required to act in
respect to the deposit herein made only on the consent in writing of the
undersigned. In the event of its failure to obtain such consent in writing, Bank
One reserves the right to hold all papers in connection with or concerning this
escrow until a mutual agreement in writing has been
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reached between all parties and delivered to Bank One or until delivery is
legally authorized and ordered by final judgment or decree of a court of
competent jurisdiction. If Bank One obeys or complies with any judgment, order
or decree of a court of competent jurisdiction, Bank One will not be liable to
any of the parties hereto nor to any other person, firm or corporation by reason
of such compliance, notwithstanding any such judgement, order or decree be
subsequently reversed, modified, annulled, set aside or vacated.
12. RESIGNATION OR REMOVAL OF BANK ONE.
12.1. Bank One may resign hereunder following the giving of 30
days prior written notice to Summit Environmental Corporation, Inc.. Similarly,
Bank One may be removed and replaced following the giving of 30 days prior
written notice to Bank One by Summit Environmental Corporation, Inc.. In either
event, the duties of Bank One will terminate 30 days after the date of such
notice (or as of such earlier date as may be mutually agreeable), and Bank One
will then deliver all certificates then in its possession to a successor escrow
agent as will be appointed by Summit Environmental Corporation, Inc., as
evidenced by a written notice filed with Bank One.
12.2. If Summit Environmental Corporation, Inc. shall have
failed to appoint a successor escrow agent prior to the expiration of 30 days
following the date of the notice, resignation or removal of Bank One, Bank One
may petition any court of competent jurisdiction for the appointment of a
successor escrow agent, or other appropriate relief, and any such resulting
appointment will be binding upon Summit Environmental Corporation, Inc.. The
cost of such proceeding including attorneys fees will be reimbursed by Summit
Environmental Corporation, Inc. on demand.
12.3. Upon acknowledgement by any successor escrow agent of
the receipt of all certificates that had prior to such notice been in the
possession of Bank One, Bank One will be fully released and relieved of all
duties, responsibilities, and obligations under this agreement.
13. NOTICE. Any request, direction, notice or other service
required or permitted to be made or given by any party hereto will be in writing
and will be deemed sufficiently given or served for all purposes if delivered in
person or via certified mail, return receipt requested, to the parties hereto at
the addresses set forth below or at such other address as any party will
specify, from time to time, by written notice given to the other party hereto:
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(a) To Summit Environmental Corporation, Inc. and to
SuperCorp: Xxxxxx X. Xxxxx
000 Xxxxx Xxxxxxxx, Xxxxx 0000
Xxxxxxxx Xxxx, XX 00000-0000
(b) To Bank One: Bank One Trust Company, NA,
Oklahoma City, Oklahoma
ATTN CORPORATE TRUST DEPT
000 Xxxxx Xxxxxxxx
P. O. Xxx 00000
Xxxxxxxx Xxxx, XX 00000
IN WITNESS WHEREOF, this Escrow Agreement is executed as of the date
set forth above.
SUMMIT ENVIRONMENTAL CORPORATION, INC.
By /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx, President
BANK ONE TRUST COMPANY, NA,
OKLAHOMA CITY, OKLAHOMA
By /s/ M. E. Xxxxx
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M. E. Xxxxx, Vice President
SUPERCORP INC.
By /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx, President
Exhibit 10
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RELEASE
All moneys, documents and papers relative to this escrow
deposit have been delivered in accordance with the provisions of this Escrow
Agreement this ______ day of _____________________, 19______, and Bank One
herein is relieved from all further liability or responsibility with reference
hereto.
SUMMIT ENVIRONMENTAL CORPORATION, INC.
By
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Xxxxxx X. Xxxxx, President
SUPERCORP INC.
By -------------------------------------
Xxxxxx X. Xxxxx, President
Exhibit 10
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