EXHIBIT 10.9
FORM OF
ESCROW AGREEMENT
THIS ESCROW AGREEMENT, dated as of June __, 2000, ("Escrow Agreement") is
by and between COL China Online International Inc., a Delaware corporation
("Issuer"); and American Securities Transfer and Trust, Inc., a Colorado
corporation, as Escrow Agent ("Escrow Agent").
BACKGROUND
A. Certain persons will purchase shares (the "Shares") of $.001 par value
common stock of Issuer pursuant to a subscription agreement, the form of which
is attached as Exhibit A to this Escrow Agreement (the "Subscription
Agreement"); (such persons who purchase the Shares pursuant to the Subscription
Agreement are hereinafter referred to as the "Subscribers").
B. In accordance with the Subscription Agreement, the Subscribers will be
required to submit full payment for their investment at the time they return the
executed Subscription Agreement to Issuer.
C. All payments for subscriptions for Shares and Subscription Agreements
received and approved by Issuer ("Subscription Funds") shall be promptly
forwarded to Escrow Agent and Escrow Agent has agreed to accept, hold and
disburse such Subscription Funds deposited with it thereon in accordance with
the terms of this Escrow Agreement.
D. In order to establish the escrow of funds and to effect the consummation
of the transactions contemplated by the Subscription Agreement, the parties
hereto have entered into this Escrow Agreement.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, for
themselves, their successors and assigns, hereby agree as follows:
1. Definitions: The following terms shall have the following meanings when
used herein:
"Cash Investment" shall mean the number of Shares subscribed for by a
Subscriber multiplied by US$.05 per Share, as set forth in the Subscription
Agreement.
"Escrow Funds" shall mean the Subscription Funds deposited with Escrow
Agent pursuant to this Escrow Agreement.
"Entire Offering" shall mean the sale of at least 1,500,000 Shares.
"Offering Notice" shall mean a written notification, signed by Issuer,
which shall specify that: (a) subscriptions for the Entire Offering have been
received; and (b) such subscriptions have not been withdrawn, rejected or
otherwise terminated.
"Shares" shall have the meaning set forth in the section of this Escrow
Agreement entitled "Background".
"Subscribers" shall have the meaning set forth in the section of this
Escrow Agreement entitled "Background".
"Subscription Accounting" shall mean an accounting of all subscriptions for
Shares received and accepted by Issuer as of the date of such accounting,
indicating for each subscription the Subscriber's name, address and taxpayer
identification number, the number and total purchase price of subscribed Shares,
any withdrawal of such subscription by the Subscribers, any rejections of such
subscription by the Issuer, or other termination, for whatever reason, of such
subscription.
"Subscription Funds" shall have the meaning set forth in the section of
this Escrow Agreement titled "Background".
2. Appointment of and Acceptance by Escrow Agent. Issuer hereby appoints
Escrow Agent to serve as escrow agent hereunder, and Escrow Agent hereby accepts
such appointment in accordance with the terms of this Escrow Agreement.
3. Deposits into Escrow. Issuer shall forward to Escrow Agent the
Subscription Funds received by Issuer for deposit into the following escrow
account:
COL China Online Escrow
c/o American Securities Transfer and Trust, Inc.
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ALL FUNDS SO DEPOSITED SHALL REMAIN THE PROPERTY OF THE SUBSCRIBERS
ACCORDING TO THEIR RESPECTIVE INTEREST AND SHALL NOT BE SUBJECT TO ANY LIEN
OR CHARGE BY ESCROW AGENT OR BY JUDGMENT OR CREDITORS' CLAIMS AGAINST
ISSUER UNTIL RELEASED TO ISSUER IN ACCORDANCE WITH SECTION 4(a) HEREOF.
Upon receipt of any Subscription Funds which are not equal to the proper
Cash Investment for such subscription or if a notice of insufficient funds has
been received by Escrow Agent for such Subscription Funds, Escrow Agent's sole
obligation shall be to notify Issuer of such fact and to return such
Subscription Funds to Issuer.
4. Disbursements of Escrow Funds.
a. Completion of Offering. Escrow Agent shall pay to Issuer the value of
the Escrow Funds, by wire transfer and deliver all documents and instruments,
including the Shares, no later than three (3) business days following receipt of
the following documents:
(1) The Offering Notice;
(2) Subscription Accounting, substantiating the sale of the Entire
Offering;
(3) Subscription Agreements signed by all Subscribers;
(4) Supply of Stock Certificates for Subscribers;
(5) Issuer's existing shareholders' list; and
(6) Such other certificates, notices or other documents as Escrow
Agent, in its discretion, shall reasonably require and shall have
requested from Issuer in writing.
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Notwithstanding the foregoing, Escrow Agent shall not be obligated to
disburse the Escrow Funds to Issuer if Escrow Agent reasonably believes that (i)
Subscription Funds in full payment equal to the Cash Investment for that number
of Shares equal to or greater than the Entire Offering have not been received,
deposited with and collected by Escrow Agent, subject to the right of Issuer to
consummate the sale of some, but not all, of the Shares, (ii) any of the
certifications and opinions set forth in the documents are incorrect or
incomplete or (iii) the Subscription Funds are not cleared.
b. Termination of the Offering. No later than ten (10) business days
after receipt by Escrow Agent of written notice from Issuer that there will be
no closing of the sale of Shares to Subscribers, Escrow Agent shall pay to the
Subscribers, by bank check and by first class mail, that portion of the Escrow
Funds equal to the amount of the Subscription Funds paid by the Subscribers,
without any interest.
c. Rejection or Withdrawal of any Subscription. No later than ten (10)
business days after receipt by Escrow Agent of written notice from Issuer that
Issuer has rejected or permitted a withdrawal of a Subscription for which
Subscription Funds have already been placed in escrow by Escrow Agent, Escrow
Agent shall pay to the Subscribers, by bank check and by first class mail, that
portion of the Escrow Funds equal to the amount of the Subscription Funds paid
by the Subscribers without interest.
d. Expiration of Offering Period. Notwithstanding anything to the
contrary contained herein, if Escrow Agent shall not have received the Offering
Notice during the offering period of 90 days, which may be extended at the
discretion of the Issuer for an additional 60 days. Escrow Agent shall, within
ten (10) business days after such date and without any further instruction or
direction from Issuer, return to Subscribers, by bank check and by first class
mail, that portion of the Escrow Funds equal to the amount of the Subscription
Funds paid by the Subscribers.
5. Suspension of Performance or Disbursement into Court. If, at any time,
there shall exist any dispute between Issuer, Escrow Agent, Subscribers or any
other person with respect to the holding or disposition of any portion of the
Escrow Funds or and other obligations of Escrow Agent hereunder, or if at any
time Escrow Agent is unable to determine, to Escrow Agent's sole satisfaction,
the proper disposition of any portion of the Escrow Funds or Escrow Agent's
proper actions with respect to its obligations hereunder, or if Subscribers and
Issuer have not within thirty (30) days of the furnishing by Escrow Agent of a
notice of resignation pursuant to Section 6 hereof appointed a successor Escrow
Agent to act hereunder, then Escrow Agent may, in its sole discretion, take
either or both of the following actions:
a. Suspend the performance of any of its obligations under this Escrow
Agreement until such dispute or uncertainty shall be resolved to the sole
satisfaction of Escrow Agent or until a successor Escrow Agent shall have been
appointed (as the case may be); and/or
b. Petition (by means of an interpleader action or any other
appropriate method) any court of competent jurisdiction in Denver, Colorado for
instructions with respect to such dispute or uncertainty, and pay to such court
all funds held by it for holding and disposition in accordance with the
instructions of such court. In determining the resolution of such dispute or
uncertainty, such court shall apply the laws of the state of Colorado.
Escrow Agent shall have no liability to Issuer, Subscribers or any other
person with respect to any such suspension of performance or disbursement into
court, specifically including any liability or claimed liability that may arise,
or be alleged to have arisen, out of or as a result of any delay in the
disbursement of funds held in the escrow or any delay in or with respect to any
action required or requested of Escrow Agent.
6. Resignation and Removal of Escrow Agent. Escrow Agent may resign from
the performance of its duties hereunder at any time by giving ten (10) days'
prior written notice to Issuer or may be removed, with or without cause by
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Issuer, in writing, at any time by giving prior written notice to Escrow Agent.
Such resignation or removal shall take effect upon the appointment of a
successor Escrow Agent as provided herein below. Upon any such notice of
resignation or removal, Issuer shall appoint a successor Escrow Agent hereunder.
Upon the acceptance in writing of any appointment as Escrow Agent hereunder by a
successor Escrow Agent, such successor Escrow Agent shall thereupon succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring Escrow Agent, and the retiring Escrow Agent shall be discharged from
its duties and obligations under this Escrow Agreement, but shall not be
discharged from any liability for actions taken as escrow agent hereunder prior
to such succession. After any retiring Escrow Agent's resignation or removal,
the provisions of this Escrow Agreement shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Escrow Agent under this
Escrow Agreement.
7. Liability of Escrow Agent.
a. Escrow Agent shall have no liability or obligation with respect to
the Escrow Funds except for Escrow Agent's willful misconduct or gross
negligence. Escrow Agent's sole responsibility shall be for the safekeeping and
disbursement of the Escrow Funds in accordance with the terms of this Escrow
Agreement. Escrow Agent shall have no implied duties or obligations and shall
not be charged with knowledge or notice of any fact or circumstance not
specifically set forth herein. Escrow Agent may rely upon any instrument,
whether bearing original, conformed or facsimile signatures, not only as to its
due execution, validity and effectiveness, but also as to the truth and accuracy
of any information contained therein which Escrow Agent shall in good faith
believe to be genuine, to have been signed or presented by the person or parties
purporting to sign the same and to conform to the provisions of this Escrow
Agreement. In no event shall Escrow Agent be liable for incident, indirect,
special, consequential or punitive damages. Escrow Agent shall not be obligated
to take any legal action or commence any proceeding in connection with the
Escrow Funds or any account in which the Escrow Funds are deposited or this
Escrow Agreement, or to appear in, prosecute or defend any such legal action or
proceeding. Without limiting the generality of the foregoing, Escrow Agent shall
not be responsible for or required to enforce any of the terms or conditions of
any subscription agreement with Subscribers or any other agreement between
Issuer and/or Subscribers. Escrow Agent shall not be responsible or liable in
any manner for the performance by Issuer or any Subscribers of their respective
obligations under any subscription agreement nor shall Escrow Agent be
responsible or liable in any manner for the failure of Issuer or any third party
(including Subscriber) to honor any of the provisions of this Escrow Agreement.
Escrow Agent may consult legal counsel selected by it in the event of any
dispute or question as to the construction of any of the provisions hereof or of
any other agreement or of its duties hereunder, and shall incur no liability and
shall be fully indemnified from any liability whatsoever in acting in accordance
with the opinion or instruction of such counsel. Issuer shall promptly pay, upon
demand, the reasonable fees and expenses of any such counsel.
b. Escrow Agent is authorized, in its sole discretion, to comply with
orders issued or process entered by any court with respect to the Escrow Funds,
without determination by Escrow Agent of such court's jurisdiction in the
matter. If any portion of the Escrow Funds 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, judgment or decree shall be made or entered
by any court affecting such property or any part thereof, then and in any such
event, Escrow Agent is authorized, in its sole discretion, to rely upon and
comply with any such order, writ, judgment or decree which it is advised by
legal counsel selected by it that is binding upon it without the need for appeal
or other action; and if Escrow Agent 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 or entity by reason of such compliance even though such order,
writ, judgment or decree may be subsequently reversed, modified, annulled, set
aside or vacated.
8. Indemnification of Escrow Agent. From and at all times after the date of
this Escrow Agreement, Issuer shall, except as otherwise hereinafter provided,
to the fullest extent permitted by law, indemnify and hold harmless Escrow Agent
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and each partner, employee, attorney, agent and affiliate of Escrow Agent
(collectively, the "Indemnified Parties") against any and all actions, claims
(whether or not valid), losses, damages, liabilities, costs and expenses of any
kind or nature whatsoever (including without limitation reasonable attorneys'
fees, costs and expenses) incurred by or asserted against any of the Indemnified
Parties from and after the date hereof, whether direct, indirect or
consequential, as a result of, arising from or in any way relating to any claim,
demand, suit, action or proceeding (including any inquiry or investigation) by
any person, including without limitation Issuer or Subscribers, whether
threatened or initiated, asserting a claim for any legal or equitable remedy
against any person under any statute or regulation, including, but not limited
to, any federal or state securities laws, or under any common law or equitable
cause or otherwise, arising from or in connection with the negotiation,
preparation, execution, performance or failure of performance of this Escrow
Agreement or any transactions contemplated herein, whether or not any such
Indemnified Party is a party to any such action, proceeding, suit or the target
of any such inquiry or investigation; provided, however, that no Indemnified
Party shall have the right to be indemnified hereunder for any liability finally
determined by a court of competent jurisdiction, subject to no further appeal,
to have resulted solely from the gross negligence or willful misconduct of such
Indemnified Party. If any such action or claim shall be brought or asserted
against any Indemnified Party, such Indemnified Party shall promptly notify
Issuer in writing and Issuer shall promptly assume and enter an appropriate
defense for such Indemnified Party, including the employment of counsel
(satisfactory to such Indemnified Party) and the payment of all expenses. Such
Indemnified Party shall, in its sole discretion, have the right to employ
separate counsel (who may be selected by such Indemnified Party in its sole
discretion) in any such action and to participate in the defense thereof, and
the fees and expenses of such counsel shall be paid by such Indemnified Party,
except that Issuer shall be liable for and shall pay all such fees and expenses
if (i) Issuer agrees to pay such fees and expenses, (ii) Issuer shall fail, in
the reasonable discretion of such Indemnified Party, to employ counsel
satisfactory to the Indemnified Party in any such action of proceeding, (iii)
Issuer is the plaintiff in any such action or proceeding, or (iv) the named
parties to any such action or proceeding (including any impleaded parties)
include both Indemnified Party and Issuer and Indemnified Party shall have been
advised by counsel that there may be one or more legal defenses available to it
which are different from or additional to those available to Issuer. All such
fees and expenses payable by Issuer pursuant to the foregoing sentence shall be
paid from time to time as incurred, both in advance of and after the final
disposition of such action or claim. The obligations of Issuer under this
Section 9 shall survive any termination of this Escrow Agreement and the
resignation or removal of Escrow Agent.
9. Compensation to Escrow Agent.
a. Fees. Issuer shall pay to Escrow Agent the fees set forth in Exhibit
B.
b. Disbursements from Escrow Funds to Pay Escrow Agent or Other Parties.
Escrow Agent is not authorized to disburse to itself or any other person from
the Escrow Funds (i) any amounts due to Escrow Agent or any other party under
this Section 9 or (ii) any amount Escrow Agent or any Indemnified Party is
entitled to seek pursuant to Section 8 hereof. Notwithstanding the foregoing,
Escrow Agent may hold Escrow Funds until its fees are paid by Issuer.
10. Representations and Warrants.
a. Issuer makes the following representations and warranties to Escrow
Agent.
(1) Issuer is a corporation duly formed and validly subsisting under
the laws of Delaware, and has full power and authority to execute and deliver
this Escrow Agreement and to perform its obligations hereunder.
(2) This Escrow Agreement has been duly approved by all necessary
corporate action of Issuer, has been executed by duly authorized officers of
Issuer, and constitutes a valid and binding agreement of Issuer, enforceable in
accordance with its terms.
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(3) The execution, delivery, and performance by Issuer of this
Escrow Agreement will not violate, conflict with, or cause a default under the
Certificate of Incorporation and Bylaws of Issuer, any applicable law or
regulation, any court order or administrative ruling or decree to which Issuer
is a party or any of its property is subject, or any agreement, contract,
indenture or other binding arrangement to which Issuer is a party or any of its
property is subject.
(4) No party other than the parties hereto and the prospective
Subscribers have, or shall have, any lien, claim or security interest in the
Escrow Funds 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 Escrow Funds or any part
thereof.
(5) Issuer hereby acknowledges that the status of the Escrow Agent
is that of agent only for the limited purposes set forth herein, and hereby
represents and covenants that no representation or implication shall be made
that Escrow Agent has investigated the desirability of advisability or
investment in the Shares or has approved, endorsed or passed upon the merits of
the investment herein and that the name of Escrow Agent has not and shall not be
used in any manner in connection with the offer or sale of the Shares other than
to state that Escrow Agent has agreed to serve as escrow agent for the limited
purposes set forth herein.
(6) All of the representations and warranties of Issuer contained
herein are true and complete as of the date hereof and will be true and complete
at the time of any deposits to or disbursement from the Escrow Funds.
11. Notice. All notices and other communications hereunder hall be in
writing and shall be deemed to have been validly served, given or delivered five
(5) days after deposit in the United States mail, by certified mail with return
receipt requested and postage prepaid, when delivered personally, one (1) day
after delivery to any overnight courier, or when transmitted by facsimile
transmission facilities, and addressed to the party to be noticed as follows:
If to Issuer at: COL China Online International, Inc.
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With a copy to: ▇▇▇▇▇▇ ▇▇▇▇▇ LLP
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If to Escrow Agent: American Securities Transfer & Trust, Inc.
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or to such other address as each party may designate for itself by like notice.
12. Amendments or Waiver. This Escrow Agreement may be charged, waived,
discharged or terminated only by a writing signed by Issuer and Escrow Agent. No
delay or omission by any party in exercising any right with respect thereto
shall operate as a waiver. A waiver on any one occasion shall not be construed
as a bar to, or waiver of, any right or remedy on any future occasion.
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13. Severability. To the extent any provision of this Escrow Agreement is
prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Escrow Agreement.
14. Governing Law. This Escrow Agreement shall be construed and interpreted
in accordance with the internal laws of the State of Colorado without giving
effect to the principles or rules governing conflict of laws.
15. Entire Agreement. This Escrow Agreement constitutes the entire
agreement between the parties relating to the acceptance, collection holding,
investment and disbursement of the Escrow Funds and sets forth in their entirety
the obligations and duties of Escrow Agent with respect to the Escrow Funds.
16. Binding Effects. All of the terms of this Escrow Agreement, as amended
from time to time, shall be binding upon, inure to the benefit of and be
enforceable by the respective successors and assigns of Issuer, Subscribers and
Escrow Agent.
17. Execution in Counterparts. This Escrow Agreement may be executed in two
or more counterparts, which when so executed shall constitute one and the same
agreement.
18. Termination. Upon the first to occur of the disbursement of all amounts
in the Escrow Funds to the Issuer or into court pursuant to Section 5 hereof,
this Escrow Agreement shall terminate and Escrow Agent shall have no further
obligation or liability whatsoever with respect to this Escrow Agreement or the
Escrow Funds.
19. Dealings. This Escrow Agreement is not intended to prohibit, to the
extent not otherwise prohibited by any applicable law, regulation or order,
Escrow Agent or any stockholder, director, officer or employee of Escrow Agent
from buying, selling or dealing in any of the securities of Issuer or from
becoming pecuniarily interested in any transaction in which Issuer may be
interested, or contracting or lending money to Issuer or otherwise acting as
fully and freely as though it were not Escrow Agent under this Agreement.
Nothing herein shall preclude Escrow Agent from acting in any other capacity for
the Subscribers or any other capacity for the Subscribers or an other person or
entity.
20. Signatures by Facsimile. Any facsimile signature of any party hereto
shall constitute a legal, valid and binding execution hereof by such party.
IN WITNESS WHEREOF, the parties hereto have caused this Escrow Agreement to
be executed under seal as of the date first above written.
ISSUER:
By:
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Name:
Title:
ESCROW AGENT: American Securities Transfer & Trust, Inc.
as Escrow Agent
By:
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Name:
Title:
By:
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Name:
Title:
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