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EXHIBIT 10.7
ESCROW AGREEMENT
This Escrow Agreement (this "Agreement") is entered into on December
__, 1998 by and among City National Bank, national association (the "Escrow
Agent"), ▇▇▇▇▇.▇▇▇, inc., a Nevada corporation ("amdiv") and Nutmeg Securities,
Ltd. ("Nutmeg").
ARTICLE I
ESCROW FUND
1.1 Establishment of and Distribution from Escrow.
1.1.1 On the date of the closing of amdiv's Pubic Offering of
Common Stock (the "Closing Date"), Nutmeg, on behalf of
amdiv, shall deposit into escrow (the "Escrow") with the
Escrow Agent an amount of $15,000,000.
1.1.2 amdiv shall also deposit into Escrow from time to time
the amount of all fees and costs of Escrow Agent
permitted under this Agreement to the extent such
amounts are deducted or offset from the Escrow funds.
1.1.3 The Escrow Agent shall pay and disburse to amdiv from
the Escrow the following amounts at the times set forth
below:
(i) Up to $6,000,000 upon written certification by an
authorized officer of amdiv that such amount shall
be deposited directly into a separate lock-up
account, to be established in a financial
institution in the Federal Republic of Germany,
solely for the purpose of fulfilling the net
capital requirements of broker/dealers under
German law.
(ii) Subject to Section 1.1.4, all amounts in the
Escrow upon the earliest to occur of the
following:
(A) The date that is ninety (90) days after the
Closing Date, provided that the Escrow Agent
has received the "Commencement of Business
Notice" substantially in the form attached as
Exhibit A, which indicates that amdiv has
commenced its European Union brokerage
business as evidenced by the consummation of
one transaction in one account;
(B) The date on which the Escrow Agent receives
the "Revenue Notice", substantially in the
form attached hereto as Exhibit B, which
indicates that amdiv has obtained gross
revenue (as determined in accordance with
Generally Accepted Accounting Standards, as
applied in the United States) of at least
$5,000,000 from the European Union brokerage
business; or
(C) The Commencement of Business Notice and the
Revenue Notice shall be completed by McGladrey
& ▇▇▇▇▇▇, independent auditors to amdiv, and
delivered to the Escrow Agent.
1.1.4 Notwithstanding anything to the contrary herein, the
Escrow shall be terminated and all funds therein shall
be paid and disbursed to amdiv not later than the date
one year from the Closing Date or such earlier time as
may be designated by Nutmeg in a written notice of
termination to the Escrow Agent. The Company shall use
its best efforts to obtain the regulatory approvals
necessary to implement its business plan as contemplated
in the Company's Registration Statement on Form SB-2
(File No. 333-62489), as amended, and to satisfy the
conditions specified in subparagraphs (A) and (B) of
Section 1.1.3(i)
1.1.5 All funds deposited into Escrow, and all interest
thereon, shall remain the property of amdiv. Without the
prior written consent of amdiv, no person or entity
shall be permitted to withdraw, use or otherwise direct
the Escrow Agent to use the Escrow funds for any purpose
other than to pay amdiv.
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1.2 Separate Funds of the Escrow Fund. amdiv may direct the Escrow Agent
to establish one or more Funds to hold such portions of the assets
of the Escrow Fund as amdiv shall direct, along with the earnings
and profits thereon.
ARTICLE II
THE ESCROW AGENT
2.1 Scope of Powers, Duties and Obligations of the Escrow Agent. Subject
to Nutmeg's and amdiv's directions in accordance with the provisions
of this Agreement, the Escrow Agent has whatever powers are
conferred by law and which are required to discharge its obligations
and exercise its rights under this Escrow Agreement, including but
not limited to the powers specified in the following Paragraphs of
this Article, and the powers and authority granted to the Escrow
Agent shall have no duties or obligations except those specifically
set forth in this Agreement.
2.2 Powers Exercisable by the Escrow Agent, Subject to this Agreement.
The Escrow Agent is authorized and empowered to exercise the
following powers, subject to the limitations contained in this
Agreement.
2.2.1 To register any investment held in the Escrow Fund in
its own name or in the name of a nominee and to hold any
investment in bearer form. The books and records of the
Escrow Agent shall show that all such investments are
part of the Escrow Fund. The Escrow Agent shall be
liable for all acts of its nominee;
2.2.2 To utilize registered securities depositories to hold
assets of the Escrow Fund, provided however that the
Escrow Agent shall not be relieved of any fiduciary
responsibility with with respect to the assets so held;
2.2.3 To employ agents, including public accountants and legal
counsel (which may be counsel for amdiv or Nutmeg), as
it shall determine appropriate, and to pay their
reasonable expenses and compensation from Escrow Funds;
2.2.4 To rely on amdiv to defend and litigate, or settle, at
their expense, any suit brought against the Escrow Funds
or any order sought to be satisfied out of the Escrow
Funds, without duty on the Escrow Agent beyond
forwarding related papers to amdiv and complying with
any final order to the extent of the Escrow Fund;
2.2.5 To withhold from taking any action until it receives
proper written notice of an occurrence of any event
affecting this Escrow.
2.2.6 To treat as genuine, sufficient and correct, in form,
execution and validity, and as the document it purports
to be, and from the party it purports to be from, any
notice, instruction, letter, paper, telex or other
document purported to be furnished to Escrow Agent by
amdiv or Nutmeg and believed by Escrow Agent to be both
genuine and to have been transmitted by the proper party
or parties, and Escrow Agent shall have no liability
with respect to any action taken or foregone by Escrow
Agent in good faith in reliance on such document;
2.2.7 To deposit the Escrow Funds, after reduction for Escrow
Agent's accrued fees and expenses, in an interest
bearing passbook savings account with Escrow Agent's
commercial department requiring the signatures of amdiv,
should amdiv not appoint a successor escrow holder for
the Escrow Funds within fifteen (15) days following the
resignation or removal of Escrow Agent;
2.2.8 To be fully released and discharged from any obligation
to perform any further duties imposed upon it with
respect to this Escrow following its resignation or
removal and the appointment of a successor of the
deposit of the Escrow Funds under paragraph 2.2.7 above;
and
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2.2.9 To be free from any liabilities or change in duties,
other than as may be specifically described elsewhere
herein, for the action or inaction of a party to this
Escrow Agreement, or any other party, or the occurrence
or non-occurrence of an event outside of this Escrow.
ARTICLE III
INVESTMENT OF THE ESCROW FUND
3.1 Permitted Investments. Subject to the written directions of amdiv,
the Escrow Agent may invest and reinvest the principal and
accumulated income of the Escrow Fund in investment grade securities
(i.e., those ranking in the four highest investment grades issued by
a nationally recognized rating agency).
3.2 Escrow Agent Not Responsible for Investment Advice. The Escrow Agent
assumes no responsibility for advising Nutmeg, amdiv or their
respective representatives, with respect to the investment and
reinvestment of the Escrow Fund. The Escrow Agent shall as promptly
as possible comply with any direction given by amdiv; provided,
however, that the Escrow Agent shall have not duty to take any
action which, in the Escrow Agent's opinion, would expose the Escrow
Agent to liability unless and until amdiv indemnifies the Escrow
Agent to its satisfaction. The Escrow Agent shall neither be liable
in any manner nor for any reason for any losses or other unfavorable
investment result arising from its compliance with such direction,
nor be liable for failing to invest any assets of the Escrow Fund in
the absence of written investment directions regarding such assets.
3.3 Delegation of Responsibility and Authority for Investment of Escrow
Fund. amdiv may by written resolution delegate its authority over
the investments of the Escrow Fund to its designated representative
(the "amdiv Representative"), and Escrow Agent shall accept the
amdiv Representative's instructions to invest and reinvest the
assets of all or any portion of the Escrow Fund. amdiv may revoke
the delegation of any such investment responsibility and authority
by written notice to the Escrow Agent, and the amdiv Representative
may relinquish such responsibility and authority by written notice
to amdiv and Escrow Agent.
3.4 Notification of Rights Regarding Securities. Following receipt of
information, the Escrow Agent will notify amdiv of any conversion,
redemption, exchange, subscription or other right relating to any
securities purchased hereunder of which notice was given after the
acquisition of such securities by the Escrow Agent, and the Escrow
Agent shall have no obligation to exercise any such right unless it
is instructed by amdiv or the amdiv Representative in writing to
exercise such right, within a reasonable time prior to the
expiration of such right.
3.5 Uninvested Cash. Subject to the directions of amdiv or the amdiv
Representative, the Escrow Agent may hold any or all of the Escrow
Fund in cash, uninvested and nonproductive of income. The Escrow
Agent shall not be required to pay interest on any cash so held
uninvested. The Escrow Agent may deposit cash awaiting investment or
distribution in any interest-bearing account in any Bank (including
the Escrow Agent), subject to the collateral requirements set forth
in paragraph 3.1 above.
3.6 Shareholder Communications. amdiv directs the Escrow Agent not to
disclose to any company requesting shareholder information the name
and the address of amdiv or the share position of the securities of
the inquiring company in the Escrow Fund.
ARTICLE IV
ESCROW AGENT NOTICES AND INSTRUCTIONS
4.1 Instructions; Notices. Except as hereafter provided, any directions,
instructions or notices which amdiv or Nutmeg or any other duly
authorized person is required or permitted to give to the Escrow
Agent under this Escrow Agreement (the "Instructions") shall be in
writing and shall be deemed effective upon receipt by the Escrow
Agent; provided, however, that the Escrow Agent in its discretion
may act upon oral instructions if it believes them to be genuine,
but the Escrow Agent shall not be required to do so. If the Escrow
Agent requires, all oral instructions are to be promptly confirmed
in writing, but the Escrow Agent shall not be liable for any action
or any failure to act in accordance with oral Instructions, even
though it fails to receive written confirmation from partly giving
such Instructions. The Escrow Agent shall be entitled to rely in
good faith upon
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any Instruction signed by any authorized representative of amdiv or
Nutmeg, and shall incur no liability for the following such
directions. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, NEITHER
NUTMEG NOR AMDIV SHALL GIVE, AND ESCROW AGENT MAY NOT RELY UPON, ANY
UNILATERAL INSTRUCTIONS CONTRARY TO SECTION 1.1 OF THIS AGREEMENT.
Any written notices, affidavits or the communications hereunder
shall be deemed to have been duly given if delivered or mailed first
class, certified mail, postage prepaid, addressed as follows:
IF TO NUTMEG, ADDRESSED TO: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Executive Vice President, Corporate Finance Department
Nutmeg Securities, Ltd.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
WITH A COPY TO: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
IF TO AMDIV, ADDRESSED TO: ▇▇▇▇▇.▇▇▇, inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
WITH A COPY TO: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Jeffers, Wilson, ▇▇▇▇▇ & ▇▇▇▇, LLP
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
IF TO CITY NATIONAL BANK,
ADDRESSED TO: City National Bank, national association
Attn: ▇▇▇ ▇▇▇▇▇▇▇/VP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇/▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
4.2 Photostatic Teletransmission. The transmission of the instructions
by photostatic teletransmission with duplicate or facsimile
signatures shall be an authorized method of communication unless the
Escrow Agent is notified by both amdiv and Nutmeg in writing to the
contrary.
4.3 Electronic Affirmation. Notwithstanding any other provision of this
Article IV, the Escrow Agent may settle securities trades effected
by amdiv through a securities depository that utilizes an
institutional delivery system, in which event the Escrow Agent may
deliver or receive securities in accordance with appropriate trade
reports
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or statements given to the Escrow Agent by such depository without
having received direct communications or instructions from amdiv.
4.4 Additional Instructions. In any matter under this Escrow Agreement
in which the Escrow Agent is permitted or required to act upon
Instructions, the Escrow Agent, where it deems necessary, may
request further instructions from the person or entity giving the
original instructions, or from Nutmeg or amdiv, as the case may be,
and may defer any and all action pending receipt thereof.
ARTICLE V
COMPENSATION AND EXPENSES OF THE ESCROW AGENT
5.1 Escrow Agent's fees will be as set forth on the fee schedule
attached hereto, plus actual expenses incurred in performing its
duties hereunder, and Escrow Funds is hereby granted a lien on the
Escrow Funds for such amounts. Any setup fee will be payable in
advance. In addition, Escrow Agent will receive its usual sweep fee
for any Escrow Funds, which are invested in a sweep vehicle selected
by amdiv. Unless other payment arrangements are set forth herein or
are agreed to by Escrow Agent in writing. Escrow Agent may disburse
from the Escrow Funds sufficient funds to pay its compensation and
expenses. If any time cash is not available in the Escrow Funds to
pay the Escrow Agents compensation and expenses, and then Escrow
Agent may ▇▇▇▇ amdiv for such amounts. amdiv agrees to pay all
expenses of this Escrow Agreement.
ARTICLE VI
RECORDS AND ACCOUNTS
6.1 Accurate Records and Accounts. The Escrow Agent shall keep accurate
records and accounts with respect to all cash and other assets held
by it in the Escrow Fund, and all receipts and disbursements and
other transactions involving such cash, securities and other assets.
amdiv shall have access to all such accounts, books and records at
all reasonable times. All such accounts, books and records shall be
open for inspection and audit at all reasonable times by amdiv or by
any person or persons duly authorized by amdiv.
6.2 Periodic Reports. The Escrow Agent shall furnish amdiv and any third
party with such periodic reports, as the Escrow Agent shall mutually
agree, setting forth all receipts, disbursements and transactions
effected by the Escrow Agent.
6.3 Principal and Income. Except as otherwise specifically provided in
this Escrow, the determination of all matters with respect to what
is principal or income of the escrow Fund that the apportionment and
allocation of receipts and disbursements between these accounts (if
any), shall be governed by the provision of the California Revised
Uniform Principal and Income Act from time to time existing. Any
such matter not provided for herein or in the California Revised
Uniform Principal and Income Act shall be determined by the Escrow
Agent in the Escrow Agent's discretion.
6.4 Income Tax Reporting. amdiv assumes all duty in file any and all tax
reports and returns, except as noted below, as well as full
responsibility for the payment of all taxes assessed on or with
respect to any Escrow Property and all taxes due on the income
collected for amdiv on any and all transactions with respect to any
Escrow Property. For purposes of IRS form 1099 which Escrow Agent
may be required to prepare and file, all reportable income shall be
reported to the IRS as being attributable to amdiv.
ARTICLE VII
CANCELLATION AND CLOSING
7.1 This Agreement and the Escrow may not be terminated except as
follows:
(i) Upon the mutual written consent of each of Nutmeg
and amdiv;
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(ii) Upon payment in full of the Escrow funds to amdiv;
and
(iii) Upon appointment of a successor Escrow Agent and
the execution of an escrow agreement replacing and
terminating this Agreement.
ARTICLE VIII
RESIGNATION AND REMOVAL OF THE ESCROW AGENT
8.1 Resignation and Removal. The Escrow Agent may resign at any time
upon thirty-(30) days' written notice to amdiv, unless a shorter
period is acceptable to amdiv. amdiv, with Nutmeg's consent, may at
any time remove the Escrow Agent upon thirty-(30) days' written
notice to the Escrow Agent, unless a shorter period is acceptable to
the Escrow Agent.
8.2 Appointment of Successor. In the event of the removal or resignation
of the Escrow Agent, amdiv shall appoint a successor which, upon its
acceptance in writing of such appointment delivered to amdiv and the
former Escrow Agent, shall be vested with all the rights, powers and
duties of the Escrow Agent under this Escrow Agreement, and the
retiring Escrow Agent shall be released and discharged from all
further liability with respect to the Escrow. If amdiv fails to
appoint a successor Escrow Agent within thirty-(30) days after
removal or resignation of the Escrow Agent, the Escrow Agent is
authorized to deliver the Escrow Fund to a third party escrow agent
or company of Escrow Agent's selection; provided that such the
successor's escrow agent assumes all responsibilities hereunder. The
retiring Escrow Agent shall transfer, assign and deliver to its
successor all of the property then held by it under the Escrow,
except such reasonable compensation and expenses in connection with
the settlement of accounts and the delivery of the assets to the
successor Escrow Agent. After settlement of the retiring Escrow
Agent's final accounting, the retiring Escrow Agent shall also
transfer to the successor Escrow Agent true copies of it records as
relate to the Escrow Fund, as may be requested by the successor
Escrow Agent. The successor Escrow Agent shall not be liable or
responsible for anything done or omitted in the administration of
the Escrow Fund pursuant to this Escrow Agreement prior to the date
it shall have become Escrow Agent, nor to audit or otherwise inquire
into or take any action concerning the acts or any retiring Escrow
Agent.
8.3 Final Periodic Report. Within sixty (60) days after the transfer of
the assets of the Escrow Fund to the successor Escrow Agent, unless
a different period is mutually agreed to, the Escrow Agent shall
file with amdiv a final periodic report, covering the period since
the close of the last periodic report.
8.4 Deemed Acceptance. In the absence of any exception thereto filed in
writing with the Escrow Agent within ninety (90) days after the date
of filing with amdiv, any periodic report filed with amdiv shall
constitute a final periodic report by and discharge of the Escrow
Agent from all claims and liabilities with respect to the acts and
transactions as shown in such report, and shall be binding and
conclusive upon all persons.
ARTICLE IX
AMENDMENT
9.1 Amendment. This Escrow Agreement may be modified only by writing
signed by each of Nutmeg, amdiv and Escrow Agent.
ARTICLE X
LIMITATION ON LIABILITY
10.1 Liability of Escrow Agent. In performing any duties under this
Escrow Agreement, Escrow Agent shall not be liable for any damages,
losses, or expenses, except for gross negligence or willful
misconduct on the part of the Escrow Agent. Escrow Agent shall no
incur any liability for: (a) any act or failure to act made or
omitted in good faith, or (b) any action taken or omitted in
reliance upon any instrument, including any written statement or
affidavit provided for in this Escrow Agreement that the Escrow
Agent shall in good faith believe to be
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genuine, nor will the Escrow Agent be liable or responsible for
forgeries, fraud, impersonations or determining and verifying the
scope of any representative authority, or any person acting or
purporting to act on behalf of any party to this agreement.
10.2 Indemnification by amdiv. amdiv further agrees to pay on demand, and
to indemnify and hold Escrow Agent harmless from and against, all
costs, damages, judgments, attorneys fees, expenses, obligations and
liabilities of any kind or nature which, in good faith, Escrow Agent
may incur or sustain in connection with or arising out of the
Escrow, and Escrow Agent is hereby given a lien upon all the rights,
titles and interests of amdiv in the Escrow Funds, to protect Escrow
Agent's rights and to indemnify and reimburse Escrow Agent under
this Escrow Agreement.
10.3 Force Majeure. The Escrow Agent shall not be liable for any delay or
failure to act as may be required hereunder when such delay or
failure is due to fire, earthquake, any act of God, interruption or
suspension of any communication or wire facilities or services, war,
emergency conditions or other circumstances beyond its control,
provided it exercises such diligence as the circumstances may
reasonably require.
10.4 Scope. The Escrow Agent shall have no duties or obligations
hereunder except those specifically set forth herein and such duties
and obligations shall be determined solely by the express provisions
of this Escrow Agreement.
10.5 Controversies.
10.5.1 Upon receipt of conflicting demands or notices relating to
this Escrow, Escrow Agent, may at its election, without
liability to Nutmeg or amdiv, do either or both of the
following:
10.5.1.1 Withhold and stop all further proceedings in, and
performance of, this Escrow, until such conflict
is removed to Escrow Agent's satisfaction;
10.5.1.2 File a suit in interpleader and obtain an order
from the court requiring the parties too litigate
their several claims and rights among themselves,
in which case, Escrow Agent shall be fully
released and discharged from any obligation to
perform any further duties imposed upon it with
respect to this Escrow, and the parties shall pay
Escrow Agent all costs, expenses and reasonable
attorney fees expended or incurred by it, the
amount thereof to be fixed and a judgment thereof
to be rendered by the court in such suit.
10.5.2 Any dispute arising out of or relating to this Escrow
Agreement, including a breach of this Escrow Agreement, will
be decided by reference under California Code of Civil
Procedure Section 638 and related sections. A referee,
either an active attorney or retired judge, will be selected
according to the procedures of the American Arbitration
Association and then appointed by the court in which the
action regarding the dispute or controversy originated. The
dispute will be submitted to the referee for determination
in place of a trial before a judge and jury.
10.6 Legal Counsel. The Escrow Agent may consult with, and obtain advise
from, legal counsel of its own selection as to the construction of
any of the provisions of this Escrow Agreement or the Escrow Agent's
obligations and duties, and shall incur no liability in acting in
good faith in accordance with the reasonable advice and opinion of
such counsel.
ARTICLE XI
MISCELLANEOUS
11.1 Governing Law. This Escrow Agreement shall be governed, construed,
regulated and administered under the laws of the State of
California.
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11.2 Invalid Provisions. It is not the intention of any party to this
Escrow Agreement to violate any statute, regulation, ruling,
judicial decision, or other legal provision applicable to this
Escrow Agreement or the performance thereof. If any term of this
Escrow Agreement, or any act or omission in the performance thereof,
is or becomes violative of any such provision, such term, act or
omission shall be of no force or effect and any such term shall be
severed from this Escrow Agreement. Any such invalid term, act or
omission shall not affect the validity of any other term of this
Escrow Agreement that is otherwise valid, nor the validity of any
otherwise valid act or omission in the performance thereof, unless
such invalidity prevents accomplishment of the objectives and
purposes of this Escrow Agreement. In the event any such term, act
or omission is determined to be illegal or otherwise invalid, the
necessary steps to remedy such illegality or invalidity shall be
taken immediately by the parties.
11.3 Counterparts. This Escrow Agreement may be executed in several
counterparts, each of which shall be deemed an original, and said
counterparts shall constitute but one and the same instrument, which
may be sufficiently evidenced by any one counterpart.
11.4 Successors and Counterparts. This Escrow Agreement shall inure to
the benefit of, and be binding upon, the parties hereto and their
successors and assigns, except as is expressly provided in the
contrary herein.
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IN WITNESS WHEREOF, the parties hereto have caused this Escrow
Agreement to be executed by their respective duly authorized officers on the
dates set forth below.
Date: ____________________ "Nutmeg" - Nutmeg Securities, Ltd.
By: ____________________________________
Name: __________________________________
Title: _________________________________
Date: ____________________ "amdiv" - ▇▇▇▇▇.▇▇▇, inc.
By: ____________________________________
Name: __________________________________
Title: _________________________________
Date: ____________________ "Escrow Agent"
CITY NATIONAL BANK, national association
By: ____________________________________
By: ____________________________________
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