EXHIBIT 1
ESCROW AGREEMENT IN ACCORDANCE WITH RULE 419
UNDER THE SECURITIES ACT OF 1933
ESCROW AGREEMENT, dated as of May 2, 2000, (the "Agreement") by and
between Acquireu.com, Inc. a Florida corporation (the "Company") and First Union
National Bank, (the "Escrow Agent").
The Company, through its president, will sell up to 100,000 shares of
Common Stock, par value $1.00 (the "shares"), as more fully described in the
Company's definitive Prospectus dated March 16, 2000 comprising part of the
company's Registration Statement on Form SB-2, as amended (the "Registration
Statement") under the Securities Act of 1933, as amended (the "Act") (File No.
333-80041) declared effective on or about May 15, 2000 (the "Prospectus").
The Company desires that the Escrow Agent accept all offering proceeds,
with no deduction of cash paid for underwriting commissions, underwriting
expenses and dealer allowances and amounts permitted to be released to the
Company under Rule 419(b)(2)(vi), a copy of which rule is attached hereto and
made a part hereof, to be derived by the company from the sale of the shares
(the "Offering Proceeds"), as well as the share certificates representing the
shares issued in connection with the company's offering, in escrow, to be held
and disbursed as hereinafter provided.
NOW, THEREFORE, in consideration of the promises and mutual covenants
hereinafter set forth, the parties hereto agree as follows:
1. Appointment of Escrow Agent. The company hereby appoints the Escrow
Agent to act in accordance with and subject to the terms of this
Agreement, and the Escrow Agent hereby accepts such appointment and
agrees to act in accordance with and subject to such terms.
2. Deposit of Offering Proceeds and share Certificates. Subject to Rule
419, upon the Company's receipt and acceptance of subscriptions and
Offering Proceeds, the Company shall promptly deliver to the Escrow
Agent a certified or bank check in the amount of the Offering Proceeds
drawn to the order of the Escrow Agent or, alternatively, drawn to the
order of the Company but endorsed by the Company for collection by the
Escrow Agent and credited to the Escrow Account.
All share certificates representing the Shares issued in
connection with the Company's offering shall also be deposited by
the Company directly into the Escrow Account promptly upon
issuance. The identity of the purchasers of the securities shall
be included on the stock certificates or other documents
evidencing such securities. Securities held in the Escrow Account
are to remain as issued and deposited and shall be held for the
sole benefit of the purchasers, who shall have voting rights with
respect to securities held in their names, as provided by
applicable state law. No transfer or other disposition of
securities held in the Escrow Account or any interest related such
securities shall be permitted other than by will or the laws of
descent and distribution, or pursuant to a qualified domestic
relations order as defined by the Internal Revenue code of 1986 as
amended [26 U.S.C. 1 et seq.], or Title 1 of the Employee
Retirement Income Security Act [29 U.S.C. 1001 et seq.], or the
rules thereunder.
Warrants, convertible securities or other derivative securities,
if any, relating to securities held in the Escrow Account may be
exercised or converted in accordance with their terms; provided
however, that securities received upon exercise or conversion,
together with any cash or other consideration paid in connection
with the exercise or conversion, are promptly deposited into the
Escrow Account.
3. Disbursement of the Escrow Account. Upon the earlier of (i)
receipt by the Escrow Agent of a signed representation from the
Company to the Escrow Agent, that the requirements of Rule
419(e)(1) and (e)(2) have been met, and consummation of an
acquisition(s) meeting the requirements of Rule 419(e)(2) or (ii)
written notification from the Company to the Escrow Agent to
deliver the Offering Proceeds to another escrow agent in
accordance with Paragraph 5.8 then, in such event, the Escrow
Agent shall disburse the Offering Proceeds (inclusive of any
interest thereon) to the Company and the securities to the
purchasers or registered holders identified on the deposited
securities or deliver the Offering Proceeds and securities to such
other escrow agent, as the case may be, whereupon the Escrow Agent
shall be released from further liability hereunder.
Notwithstanding the foregoing, if an acquisition meeting the
requirements of Rule 419(e)(1) has not occurred by a date within
18 months after the effective date of the Registration Statement,
funds held in the Escrow Account shall be returned by first class
mail or equally prompt means to the purchasers within five
business days following that date.
4. Concerning the Escrow Agent.
The Escrow Agent shall not be liable for any actions taken or
omitted by it, or any action suffered by it to be taken or omitted
by it, in good faith and in the exercise of its own best judgment,
and may rely conclusively and shall be protected in acting upon
any order, notice demand, certificate, opinion or advice of
counsel (including counsel chosen by the Escrow Agent), statement
, instrument , report or other paper or document (not only as to
its due execution and the validity and effectiveness of its
provision, but also as to the truth and acceptability of any
information therein contained) which is believed by the Escrow
Agent to be genuine and to be signed or presented by the proper
person or person.
The Escrow Agent shall not be bound by any notice or demand, or
any waiver, modification, termination or rescission of this
Agreement unless evidenced by a writing delivered to the Escrow
Agent signed by the proper party or parties and, if the duties or
rights of the Escrow Agent are affected, unless it shall have
given its prior written consent thereto.
The Escrow Agent shall not be responsible for the sufficiency or
accuracy, the form of, or the execution validity, value or
genuineness of any document or property received, held or
delivered by it hereunder, or of any signature or endorsement
thereon, or for any lack of endorsement thereon, or for any
description therein, nor shall the Escrow Agent be responsible or
liable in any respect on account of the identity, authority or
rights of the person executing or delivering or purporting to
execute or deliver any document or property paid or delivered by
the Escrow Agent under the provisions hereof.
The Escrow Agent shall not be liable for any loss which may be
incurred by reason of any investment of any monies or properties
which it holds hereunder. The Escrow Agent shall have the right to
assume, in the absence of written notice to the contrary from the
proper person or persons, that a fact or an event by reason of
which an action would or might be taken by the Escrow Agent does
not exist or has not occurred, without incurring liability for any
action taken or omitted, in good faith and in the exercise of its
own best judgment, in reliance upon such assumption.
The Escrow Agent shall be indemnified and held harmless by the
Company from and against any expenses, including counsel fees and
disbursements, or loss suffered by the Escrow Agent in connection
with any action, suit or other proceeding involving any claim, or
in connection with any claim or demand, which in any way directly
or indirectly arises out of or relates to this Agreement, the
services of the Escrow Agent hereunder, the monies or other
property held by it hereunder or any such expense or loss.
Promptly after the receipt by the Escrow Agent of notice of any
demand or claim or the commencement of any action, suit or
proceeding, the Escrow Agent shall, if a claim in respect thereof
shall be made against the other parties hereto, notify such
parties thereof in writing; but the failure by the Escrow Agent to
give such notice shall not relieve any party from any liability
which such party may have to the Escrow Agent hereunder. Upon the
receipt of such notice, the Escrow Agent, in its sole discretion,
may commence an action in the nature of interpleader in an
appropriate court to determine ownership or disposition of the
Escrow Account or it may deposit the Escrow Account with the clerk
of any appropriate court or it may retain the Escrow Account
pending receipt of a final, non-appealable order of a court having
jurisdiction over all of the parties hereto directing to whom and
under what circumstances the Escrow Account is to be disbursed and
delivered.
The Escrow Agent shall be entitled to reasonable compensation from
the Company for all services rendered by it hereunder.
From time to time on and after the date hereof, the Company shall
deliver or cause to be delivered to the Escrow Agent such further
documents and instruments and shall do or cause to be done such
further acts as the Escrow Agent shall reasonably request (it
being understood that the Escrow Agent shall have no obligation to
make such request) to carry out more effectively the provisions
and purposes of this Agreement, to evidence compliance herewith or
to assure itself that it is protected in acting hereunder.
The Escrow Agent may resign at any time and be discharged from its
duties as Escrow Agent hereunder by its giving the Company at
least thirty (30) days' prior written notice thereof. As soon as
practicable after its resignation, the Escrow Agent shall turn
over to a successor escrow agent appointed by the Company, all
monies and property held hereunder upon presentation of the
document appointing the new escrow agent and its acceptance
thereof. If no new escrow agent is so appointed in the sixty (60)
day period following the giving of such notice of resignation, the
Escrow Agent may deposit the Escrow Account with any court it
deems appropriate.
The Escrow Agent shall resign and be discharged form its duties as
Escrow Agent hereunder if so requested in writing at anytime by
the Company, provided, however, that such resignation shall become
effective only upon acceptance of appointment by a successor
escrow agent as provided above. Notwithstanding anything herein to
the contrary, the Escrow Agent shall not be relieved from
liability thereunder for its own gross negligence or its own
willful misconduct.
5. Miscellaneous.
This Agreement shall for all purposes be deemed to be made under
and shall be construed in accordance with the laws of the State of
Florida.
This Agreement contains the entire agreement of the parties hereto
with respect to the subject matter hereof and, except as expressly
provided herein, may not be changed or modified except by an
instrument in writing signed by the party to be charged.
The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or
interpretation thereof.
This Agreement shall be binding upon and inure to the benefit of
the respective parties hereto and their legal representatives,
successors and assigns.
Any notice or other communication required or which may be given
hereunder shall be in writing and either be delivered personally
or be mailed, certified or registered mail, return receipt
requested, postage prepaid, and shall be deemed given when so
delivered personally or, if mailed, two (2) days after the date of
mailing. The parties may change the persons and addresses to which
the notices or other communications are to be sent by giving
written notice to any such change in the manner provided herein
for giving notice.
WITNESS the execution of this Agreement as of the date first above written.
Acquireu.com, Inc.
By: /s/Douglas E. Greer
-----------------------
Douglas E. Greer, President
This Escrow Agreement is accepted as of the 2 day of May, 2000.
By: /s/Julie Greve
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Customer Relations Manager