EXHIBIT 10(g)
ESCROW AGREEMENT
ESCROW AGREEMENT made as of _______________, 2004 by and among HSBC
Bank USA, National Association, as Escrow Agent, having its principal place of
business at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: Corporate Trust ("Escrow
Agent"), Marc Pharmaceuticals, Inc. having its principal place of business at
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (the "Issuer") and Wien Securities Corp.
having its principal place of business at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ (the "Placement Agent").
W I T N E S S E T H:
-------------------
WHEREAS, the Issuer has filed a registration statement on Form SB-2
(the "Registration Statement") under the Securities Act of 1933, as amended,
with the United States Securities and Exchange Commission (the "Commission"),
File No. 333-113734, relating to the subscription for and sale of 20,000,000
units of the Issuer at $.25 per unit (the "Offering"), each unit (a "Unit")
consisting of one (1) share of common stock, par value $.0001, of the Issuer,
one (1) warrant to purchase one (1) share of common stock, par value $.0001, of
the Issuer at $.50 and two (2) warrants to purchase one (1) share of common
stock, par value $.0001, of the Issuer at $1.00;
WHEREAS, prospective investors may from time to time purchase at least
10,000 Units each in accordance with the terms of the prospectus of the Issuer
dated _________, 2004, as amended and supplemented (the "Prospectus");
WHEREAS, the Issuer and Placement Agent have requested that the Escrow
Agent act as escrow agent for the funds to be received by the Issuer and the
Placement Agent from such prospective investors (the "Subscribers") pursuant to
the agreement governing subscriptions for the Units ("Subscription Agreement");
and
WHEREAS, the Placement Agent has been named as placement agent in
connection with the proposed offering of the Units in accordance with the terms
of the placement agreement between the Placement Agent and Issuer to be dated
simultaneously with effectiveness of the Registration Statement (the "Placement
Agreement") to sell Units on the date ("Effective Date") the Registration
Statement becomes effective with the Commission until the termination of the
Offering ("Offering Period").
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants hereinafter set forth, the parties hereto agree as follows:
1. APPOINTMENT. The Issuer and Placement Agent hereby appoint the
Escrow Agent as their escrow agent for the purposes set forth
herein, and the Escrow Agent hereby accepts such appointment
under the terms and conditions set forth herein.
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2. ESCROW FUND. Each Subscriber must subscribe for no less than
10,000 Units. All funds received by the Placement Agent and the
Issuer in connection with the sale of Units shall be deposited
with the Escrow Agent as shall wire transfers received directly
by the Escrow Agent from Subscribers (all of such funds, however
transmitted, are referred to as the "Escrow Deposit(s)"). The
Escrow Agent shall hold the Escrow Deposit in a non-interest
bearing account. The Escrow Agent shall record the date of each
deposit of each Subscribers funds, the name of such Subscriber
(if by check) and amount of deposit. Such information will be
available through monthly reports.
3. DISTRIBUTION OF ESCROW DEPOSIT.
(A) The Escrow Agent shall not be obligated to disburse to
any party any part of the Escrow Deposit until it has
received notice in writing and certification two (2) days
before an Offering Closing Date (as defined herein)
("Notice") by the Issuer and the Placement Agent that shall
contain a list of the: (i) Subscribers who have tendered
their Subscription Agreements, all related documentation,
and their deposit checks or wire transfer, who have been,
will be, or are being duly admitted as investors in the
Issuer; and/or (ii) Subscribers whose subscriptions for
Units have been rejected, canceled, or withdrawn.
(B) Upon receipt of such Notice, the Escrow Agent shall be
prepared on the Offering Closing Date to disburse all or a
portion, as the case may be, of the Escrow Deposit as
follows: (i) All Escrow Deposits received from Subscribers
whom the Issuer and Placement Agent have indicated by the
Notice have been, are being, or will be duly admitted as
stockholders and warrant holders of the Issuer, shall, by
wire transfer, be disbursed 92% to the Issuer and 8% to the
Placement Agent; and (ii) All Escrow Deposits received from
Subscribers who have been rejected or who have canceled or
withdrawn their subscriptions for Units, as set forth in the
Notice, shall be disbursed directly to such Subscribers by
check at the addresses set forth in their Subscription
Agreement. Each Notice shall specify the exact amounts to be
disbursed to the Issuer and to the Placement Agent and shall
provide the following necessary wire instructions:
ISSUER:
[BANK]
Marc Pharmaceuticals, Inc IPO Account
ABA # -
Account # -
PLACEMENT AGENT:
[BANK]
ABA #_______________________
For credit to: Wien Securities Corp.
Account #891001034
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(C) The Issuer and the Placement Agent may give the Notice
described in Paragraph 3(a) above one or more times.
4. DISPOSITION AND TERMINATION. Closings during the Offering Period
shall occur every Tuesday commencing with the first Tuesday after
the Effective Date until the end of the Offering Period or at
other times as mutually determined by the parties. Any date upon
which a closing shall occur is referred to in this Escrow
Agreement as an "Offering Closing Date". Notwithstanding the
foregoing, (i) if any such Tuesday shall not be a Business Day,
such closing shall be held on the next succeeding Business Day
and (ii) if the total amount of subscriptions for Units held by
the Escrow Agent ("Pending Subscriptions") as of any scheduled
Offering Closing Date shall be less than $25,000, no closing
shall be held on such date, and (iii) the Escrow Agent shall give
notice to the Issuer and Placement Agent at any time that there
shall be Pending Subscriptions of at least $10,000 and a closing
shall then be held within two (2) Business Days after such notice
is given. As used herein, Business Day shall mean any day other
than a Saturday, Sunday or other day on which the Escrow Agent is
authorized or required by law or executive order to close.
5. ESCROW AGENT. The Escrow Agent undertakes to perform only such
duties, as are expressly set forth herein and no duties shall be
implied. The Escrow Agent shall have no liability under and no
duty to inquire as to the provisions of any agreement other than
this Escrow Agreement. The Escrow Agent may rely upon and shall
not be liable for acting or refraining from acting upon any
written notice, instruction or request furnished to it hereunder
and believed by it to be genuine and to have been signed or
presented by the proper party or parties. The Escrow Agent shall
be under no duty to inquire into or investigate the validity,
accuracy or content of any such document. The Escrow Agent shall
have no duty to solicit any payments which may be due it or the
Escrow Fund. The Escrow Agent shall not be liable for any action
taken or omitted by it in good faith except to the extent that a
court of competent jurisdiction determines that the Escrow
Agent's gross negligence or willful misconduct was the primary
cause of any loss to the Issuer or Placement Agent. The Escrow
Agent may execute any of its powers and perform any of its duties
hereunder directly or through agents or attorneys (and shall be
liable only for the careful selection of any such agent or
attorney) and may consult with counsel, accountants and other
skilled persons to be selected and retained by it. The Escrow
Agent shall not be liable for anything done, suffered or omitted
in good faith by it in accordance with the advice or opinion of
any such counsel, accountants or other skilled persons. In the
event that the Escrow Agent shall be uncertain as to its duties
or rights hereunder or shall receive instructions, claims or
demands from any party hereto which, in its opinion, conflict
with any of the provisions of this Escrow Agreement, it shall be
entitled to refrain from taking any action and its sole
obligation shall be to keep safely all property held in escrow
until it
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shall be directed otherwise in writing by all of the other
parties hereto or by a final order or judgment of a court of
competent jurisdiction. Anything in this Escrow Agreement to the
contrary notwithstanding, in no event shall the Escrow Agent be
liable for special, indirect or consequential loss or damage of
any kind whatsoever (including but not limited to lost profits),
even if the Escrow Agent has been advised of the likelihood of
such loss or damage and regardless of the form of action.
6. SUCCESSION. The Escrow Agent may resign and be discharged from
its duties or obligations hereunder by giving ten (10) days
advance notice in writing of such resignation to the other
parties hereto specifying a date when such resignation shall take
effect. The Escrow Agent shall have the right to withhold an
amount equal to any amount due and owing to the Escrow Agent,
plus any costs and expenses the Escrow Agent shall reasonably
believe may be incurred by the Escrow Agent in connection with
the termination of the Escrow Agreement. Any corporation or
association into which the Escrow Agent may be merged or
converted or with which it may be consolidated, or any
corporation or association to which all or substantially all the
escrow business of the Escrow Agent's corporate trust line of
business may be transferred, shall be the Escrow Agent under this
Escrow Agreement without further act.
7. FEES. The Issuer agrees to (i) pay the Escrow Agent upon
execution of this Escrow Agreement and from time to time
thereafter reasonable compensation for the services to be
rendered hereunder, as agreed to separately in writing, and (ii)
pay or reimburse the Escrow Agent upon request for all expenses,
disbursements and advances, including reasonable attorney fees
and expenses, incurred or made by it in connection with the
preparation, execution, performance, delivery, modification and
termination of this Escrow Agreement.
8. INDEMNITY. The Issuer and the Placement Agent shall jointly and
severally indemnify, defend and save harmless the Escrow Agent
and its directors, officers, agents and employees (the
"indemnities") from all loss, liability or expense (including the
fees and expenses of in house or outside counsel) arising out of
or in connection with (i) the Escrow Agent's execution and
performance of this Escrow Agreement, except in the case of any
indemnities to the extent that such loss, liability or expense is
due to the gross negligence or willful misconduct of such
indemnities, or (ii) its following any instructions or other
directions from the Issuer or the Placement Agent, except to the
extent that its following any such instruction or direction is
expressly forbidden by the terms hereof. The parties hereto
acknowledge that the foregoing indemnities shall survive the
resignation or removal of the Escrow Agent or the termination of
this Escrow Agreement. The parties hereby grant the Escrow Agent
a lien on, right of set-off against and security interest in the
Escrow Fund for the payment of any claim for indemnification,
compensation, expenses and amounts due hereunder.
9. NOTICES. All communications hereunder shall be in writing and
shall be deemed to be duly given and received; (i) upon delivery
if delivered personally or upon confirmed
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transmittal if by facsimile; (ii) on the next Business Day if
sent by overnight courier; or (iii) four (4) Business Days after
mailing if mailed by prepaid registered mail, return receipt
requested, to the appropriate notice address set forth on
Schedule 1 or at such other address as any party hereto may have
finished to the other parties in writing by registered mail,
return receipt requested. Notwithstanding the above, in the case
of communications delivered to the Escrow Agent pursuant to (ii)
and (iii) of this Section 9, such communications shall be deemed
to have been given on the date received by the Escrow Agent. In
the event that the Escrow Agent in its sole discretion shall
determine that an emergency exists, the Escrow Agent may use such
other means of communication, as the Escrow Agent deems
appropriate.
10. MISCELLANEOUS. The provisions of this Escrow Agreement may be
waived, altered, amended or supplemented, in whole or in part,
only in writing signed by all of the parties hereto. Neither this
Escrow Agreement nor any right or interest hereunder may be
assigned in whole or in part by any party, except as provided in
Section 6, without the prior consent of the other parties. This
Escrow Agreement shall be governed by and construed under the
laws of the State of New York without giving effect to conflicts
of law principles. Each party hereto irrevocably waives any
objection on the grounds of venue, forum non-conveniens or any
similar grounds and irrevocably consents to service of process by
mail or in any other manner permitted by applicable law and
consents to the jurisdiction of the courts located in the State
of New York. The parties further hereby waive any right to a
trial by jury with respect to any lawsuit or judicial proceeding
arising or relating to this Escrow Agreement. No party to this
Escrow Agreement is liable to any other party for losses due to
or if it is unable to perform its obligations under the terms of
this Escrow Agreement because of, acts of God, fire, floods,
strikes, equipment or transmission failure, or other causes
reasonably beyond its control. This Escrow Agreement may be
executed in one or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute
one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Escrow
Agreement as of the date set forth in Schedule 1.
ESCROW AGENT:
HSBC BANK USA, NATIONAL ASSOCIATION,
as Escrow Agent
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
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ISSUER:
MARC PHARMACEUTICALS, INC.
By:
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President and Chief Executive Officer
PLACEMENT AGENT:
WIEN SECURITIES CORP.
By:
-----------------------------------
Name:
Title:
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SCHEDULE 1
Effective Date: ____________, 2004
Name of Issuer: Marc Pharmaceuticals, Inc.
Issuer Notice Address: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Facsimile:
Name of Placement Agent: Wien Securities Corp.
Placement Agent Notice Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile:
Name of Escrow Agent: HSBC Bank USA
Escrow Agent notice address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile (▇▇▇) ▇▇▇-▇▇▇▇
Account number: __________________________
Escrow Agent's compensation: See Schedule 2
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Fee Agreement
(not to be included in document but to be agreed upon by the parties separately)
[HSBC LOGO]
HSBC Bank USA, National Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ - 0200
Corporate Trust
SCHEDULE OF FEES
FOR SERVICES AS
ESCROW AGENT FOR SEARCHHELP, INC.
ACCEPTANCE FEE: .......................................................$6,500.00
This one-time fee covers the acceptance of our appointment review and
consideration of the documents, meetings with interested parties,
consultation with attorneys, and establishment of procedures to perform the
services required by all the documents.
ANNUAL ADMINISTRATION FEE:................................................WAIVED
This covers the ordinary administrative and operational responsibilities of
the Escrow Agent including all disbursements and required account
statements.
HOLDERS IN EXCESS OF 100 WILL BE CHARGED $15.00 PER HOLDER UP TO 150 HOLDERS,
HOLDERS IN EXCESS OF 150 WILL BE CHARGED $20.00 PER HOLDER.
LEGAL FEE: ..............................................................AT COST
This is a one-time fee for professional services rendered in connection
with the review and execution of the governing agreements.
OUT-OF-POCKET EXPENSES: .................................................AT COST
These expenses are those incurred by us on your behalf to effectively service
your account on a day-to-day basis. They include, but are not limited to, the
following items:
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accountant and counsel fees, postage, stationary, expressmail, telephone and
facsimile charges. A detailed explanation for each expense will be included on
your billing statement. This is a one-time fee for professional services
rendered in connection with the review and execution of the governing
agreements.
The fees set forth above are subject to change should circumstances warrant.
reimbursement for all out-of-pocket expenses will be added to the billed fees.
We reserve the right to amend this Schedule of Fees or withdraw as the proposed
trustee pending review of the final documents and agreement with respect to the
duties, responsibilities and indemnification of the Escrow Agent. Any fees
charged for services not specifically covered in this schedule will be assessed
in amounts commensurate with services rendered. If the transaction should fail
to close for reasons beyond our control, we reserve the right to charge our
acceptance, legal counsel fees and any out-of-pocket expenses.
June 10, 2004
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