EXHIBIT 4.4
ESCROW AGREEMENT
AGREEMENT made this __ day of May, 1997, by and among the Company whose
name and address appear on the Information Sheet (as defined herein) attached to
this Agreement and Continental Stock Transfer & Trust Company (A Limited Purpose
Trust Company) with offices at 2 Broadway, New York, New York 10004 (the "Escrow
Agent").
W I T N E S S E T H:
WHEREAS, the Company, will offer for sale (the "Offering") certain
securities of the Company in the form of shares of Common Stock (the "Shares"),
pursuant to Rule 419 ("Rule "419") of the Securities Act of 1933, as amended
(the "Securities Act"), as set forth in the Company's Prospectus dated May
_____, 1997. The offer and sale of the Shares are being registered under the
Securities Act. The purchase price per Share is $.88.
WHEREAS, the Company desires to establish an escrow account (the
"Escrow Account"), to which the net proceeds of the Offering and the
certificates representing the Shares issued in connection with the Offering (the
"Share Certificates") (the net proceeds and the Share Certificates are
collectively referred to as the "Fund"), are to be credited and held, and the
Escrow Agent is willing to establish the Escrow Account on the terms and subject
to the conditions hereinafter set forth; and
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the parties hereto hereby agree as follows:
1. Information Sheet. Each capitalized term not otherwise defined in
this Agreement shall have the meaning set forth for such term on the information
sheet which is attached to this Agreement as Exhibit A and is incorporated by
reference herein and made a part hereof (the "Information Sheet").
2. Establishment of the Bank Account.
2.1 The Escrow Agent shall establish an interest bearing escrow account
at the branch of Chase Manhattan Bank selected by the Escrow Agent, and bearing
the designation set forth on the Information Sheet (heretofore defined as the
"Bank Account"). The purpose of the Bank Account is for the deposit of the net
proceeds to be derived by the Company from the sale of the Shares and for the
deposit of the Share Certificates representing the Shares issued in connection
with the Offering.
3. Deposits to the Bank Account.
3.1 Deposit of Net Offering Proceeds. 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 90% of the Offering proceeds, such amount to be computed following
the deduction of a fee payable to the Qualified Independent Underwriter, 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.
3.2 Deposit of Share Certificates. All share certificates representing
the Shares issued in connection with the Offering shall 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 resect 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 to such securities shall be permitted other than by will or the laws of
descent and distribution, or pursuant to a qualified domestic relations order.
4. Disbursement from the Bank Account.
4.1 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, attached to this Agreement as Exhibit B and is incorporated by reference
herein and made a part hereof, 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)(1).
4.2 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.
4.3 Upon disbursement of the Fund pursuant to the terms of this Article
4, the Escrow Agent shall be relieved of all further obligations and released
from all liability under this Agreement. It is expressly agreed and understood
that in no event shall the aggregate amount of payments made by the Escrow Agent
exceed the amount of the Fund.
5. Rights, Duties and Responsibilities of Escrow Agent. It is
understood and agreed that the duties of the Escrow Agent are purely ministerial
in nature, and that:
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5.1 The Escrow Agent shall be entitled to rely upon the accuracy, act
in reliance upon the contents, and assume the genuineness of any notice,
instruction, certificate, signature, instrument or other document which is given
to the Escrow Agent pursuant to this Agreement without the necessity of the
Escrow Agent verifying the truth or accuracy thereof. The Escrow Agent shall not
be obligated to make any inquiry as to the authority, capacity, existence or
identity of any person purporting to give any such notice or instructions or to
execute any such certificate, instrument or other document.
5.2 If the Escrow Agent is uncertain as to its duties or rights
hereunder or shall receive instructions with respect to the Bank Account, the
Escrow Amounts or the Fund which, in its sole determination, are in conflict
either with other instructions received by it or with any provision of this
Agreement, it shall be entitled to hold the Escrow Amounts, the Fund, or a
portion thereof, in the Bank Account pending the resolution of such uncertainty
to the Escrow Agent's sole satisfaction, by final judgment of a court or courts
of competent jurisdiction or otherwise; or the Escrow Agent, at its sole
discretion, may deposit the Fund (and any other Escrow Amounts that thereafter
become part of the Fund) with the clerk of a court of competent jurisdiction in
a proceeding to which all parties in interest are joined. Upon the deposit by
the Escrow Agent of the Fund with the clerk of any court, the Escrow Agent shall
be relieved of all further obligations and released from all liability
hereunder.
5.3 The Escrow Agent shall not be liable for any action taken or
omitted hereunder, or for the misconduct of any employee, agent or attorney
appointed by it, except in the case of willful misconduct or gross negligence.
The Escrow Agent shall be entitled to consult with counsel of its own choosing
and shall not be liable for any action taken, suffered or omitted by it in
accordance with the advice of such counsel.
5.4 The Escrow Agent shall have no responsibility at any time to
ascertain whether or not any security interest exists in the Escrow Amounts, the
Fund or any part thereof or to file any financing statement under the Uniform
Commercial Code with respect to the Fund or any part thereof.
6. Amendment; Resignation. This Agreement may be altered or amended
only with the written consent of the Company and the Escrow Agent. The Escrow
Agent may resign for any reason upon three (3) business days' written notice to
the Company. Should the Escrow Agent resign as herein provided, it shall turn
over to a successor escrow agent appointed by the Company, all monies and
property, including the Share Certificates, held hereunder upon presentation of
the documentation appointing the new escrow agent and its acceptance thereof; or
(b) if the resigning Escrow Agent shall not have received written notice signed
by the Company and a successor escrow agent, then the resigning Escrow Agent
shall deposit the Escrow Account with any court it deems appropriate; whereupon,
in either case, the Escrow Agent shall be relieved of all further obligations
and released from all liability under this Agreement. Without limiting the
provisions of Article 8 hereof, the resigning Escrow Agent shall be entitled to
be reimbursed by the Company for any reasonable expenses incurred in connection
with its resignation, transfer of the Fund to a successor escrow agent or
distribution of the Fund pursuant to this Article 6.
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7. Representations and Warranties. The Company hereby represents and
warrants to the Escrow Agent that, to its knowledge:
7.1 No party other than the parties hereto and the Company's
stockholder's have, or shall have, any lien, claim or security interest in the
Escrow Amounts or the Fund or any part thereof.
7.2 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 Amounts or the Fund or any part thereof.
7.3 All of the information contained in the Information Sheet is, as of
the date hereof, and will be, at the time of any disbursement of the Fund, true
and correct.
8. Fees and Expenses. The Escrow Agent shall be entitled to the Escrow
Agent Fees set forth on the Information Sheet, payable as and when stated
therein. In addition, the Company agrees to reimburse the Escrow Agent for any
reasonable expenses incurred in connection with the Escrow Agent's performance
under this Agreement, including, but not limited to, reasonable counsel fees.
The Escrow Agent shall have a lien upon the Fund to the extent of its fees for
services as Escrow Agent.
9. Indemnification and Contribution.
9.1 The Company agrees to indemnify the Escrow Agent and its officers,
directors, employees, agents and shareholders (collectively referred to as the
"Indemnitees") against, and hold them harmless of and from, any and all loss,
liability, cost, damage and expense, including, without limitation, reasonable
counsel fees, which the Indemnitees may suffer or incur by reason of any action,
claim or proceeding brought against the Indemnitees arising out of or relating
in any way to this Agreement or any transaction to which this Agreement relates,
unless such action, claim or proceeding is the result of the willful misconduct
or gross negligence of the Indemnitees.
9.2 If the indemnification provided for in Section 9.1 is applicable,
but for any reason is held to be unavailable, the Indemnitors shall contribute
such amounts as are just and equitable to pay, or to reimburse the Indemnitees
for, the aggregate of any and all losses, liabilities, costs, damages and
expenses, including, without limitation, reasonable counsel fees, actually
incurred by the Indemnitees as a result of or in connection with, and any amount
paid in settlement of, any action, claim or proceeding arising out of or
relating in any way to any actions or omissions of the Indemnitors.
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9.3 The provisions of this Article 9 shall survive any termination of
this Agreement, whether by disbursement of the Fund, resignation of the Escrow
Agent or otherwise.
10. Governing Law and Assignment. This Agreement shall be construed in
accordance with and governed by the laws of the State of New York and shall be
binding upon the parties hereto and their respective successors and assigns;
provided, however, that any assignment or transfer by any party of its rights
under this Agreement or with respect to the Escrow Amounts or the Fund shall be
void as against the Escrow Agent unless: (a) written notice thereof shall be
given to the Escrow Agent; and (b) the Escrow Agent shall have consented in
writing to such assignment or transfer.
11. Notices. All notices required to be given in connection with this
Agreement shall be sent by registered or certified mail, return receipt
requested, or by hand delivery with receipt acknowledged, or by the Express Mail
service offered by the United States Post Office, and addressed, if to the
Company, at its respective address set forth on the Information Sheet, and if to
the Escrow Agent, at its address set forth above, to the attention of the Trust
Department.
12. Severability. If any provision of this Agreement or the application
thereof to any person or circumstance shall be determined to be invalid or
unenforceable, the remaining provisions of this Agreement or the application of
such provision to persons or circumstances other than those to which it is held
invalid or unenforceable shall not be affected thereby and shall be valid and
enforceable to the fullest extent permitted by law.
13. Execution in Several Counterparts. This Agreement may be executed
in several counterparts or by separate instruments, and all of such counterparts
and instruments shall constitute one agreement, binding on all of the parties
hereto.
14. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements and understandings (written or oral) of the
parties in connection therewith.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the day and year first above written.
EMERGING GROWTH ACQUISITION CONTINENTAL STOCK TRANSFER
CORPORATION I, & TRUST COMPANY,
the Company as Escrow Agent
By: By:
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Name: Name: Steven Nelson
Title: Title: Chairman
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EXHIBIT A
ESCROW AGREEMENT INFORMATION SHEET
1. The Company
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Name: Emerging Growth Acquisition Corporation I
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Address: 660 Steamboat Road
Greenwich, CT 06830
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Jurisdiction of incorporation or organization: Delaware
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2. The Shares
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Description of the Shares to be offered: One hundred sixty-six thousand
three hundred thirty-two (166,332) Shares of Common Stock, no par value.
The purchase price per Share is $.88.
3. Term of Escrow Agreement
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The earlier of (i) the liquidation of the Company or (ii) the receipt by
the Escrow Agent of a signed representation from the Company to the
escrow agent that the Company has consummated a Business Combination and
satisfied the requirements of Rule 419.
4. Title of Escrow Account:
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CST&T AA Emerging Growth Acquisition Corporation I
5. Escrow Agent Fees
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Amount due on execution of the Escrow Agreement $1,000 and $1,000 upon
completion of the escrow, fee includes one closing.
EXHIBIT B
RULE 419 REPRESENTATION
Emerging Growth Acquisition Corporation I (the "Company") hereby
represents and warrants that (i) the Company has entered into an agreement with
respect to a Business Combination; (ii) the Company has filed a post-effective
amendment to its registration statement on Form SB-2, Registration No.
333-15637; (iii) the prospectus contained in the post-effective amendment has
been sent to the Company's stockholders; (iv) each purchaser of securities in
the Offering has been given no fewer than 20 and no more than 45 business days
from the effective date of the prospectus to elect whether to remain as an
investor; and (v) the Business Combination has been consummated. The occurence
of such events evidences the Company's compliance with the requirements of Rule
419(e)(1) and Rule 419(e)(2).
EMERGING GROWTH ACQUISITION CORPORATION I
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Name:
Title:
EXHIBIT C
FORM OF AUTHORIZATION
CONTINENTAL STOCK TRANSFER & TRUST COMPANY
2 Broadway
New York, New York 10004
TO WHOM IT MAY CONCERN:
The undersigned hereby direct you to issue checks or wire funds upon
presentation of wire instructions from the CST&T f/b/o EGACI Escrow Account as
follows:
Name Amount
---- ------
Date: ______________, 1996 $
EMERGING GROWTH ACQUISITION CORPORATION I
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Name:
Title: