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EXHIBIT 10.11
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this "Agreement") is made this 24th day of May, 2001 by
and between FIBR-PLAST CORPORATION, an Oklahoma corporation ("Fibr-Plast") and
Community Bank & Trust, an Oklahoma Company, an Oklahoma banking corporation
(the "Escrow Agent").
RECITALS OF FIBR-PLAST
A. Fibr-Plast has offered and sold an aggregate of 4,292,946 shares of its
common stock, par value $.00002 per share, to those persons (the
"Rescission Offerees") and in such amounts as are set forth in Exhibit
A hereto.
B. Fibr-Plast intends to make a public offering of its common stock
pursuant to a registration statement on Form SB-2, as amended, File No.
333-89873, filed with the Securities and Exchange Commission (the
"Initial Registration Statement").
C. Subsequent to the sale of not less than 1,000,000 shares of its common
stock pursuant to the Initial Registration statement, Fibr-Plast will
make a rescission offer to the Rescission Offerees (the "Rescission
Offer") who paid an aggregate of $1,073,236.50 for their respective
Rescission Shares.
D. Exhibit A further sets forth the estimated interest which will be paid
to the respective Rescission Offerees who accept the Rescission Offer.
The total of the purchase price paid by each respective Rescission
Offeree and the estimated interest payable thereto is also set forth in
Exhibit A and is hereinafter referred to as the "Rescission Price"
E. Shortly after the effective date of the Initial Registration Statement,
Fibr-Plast will file a separate registration statement with the
Securities and Exchange Commission under the Securities Act of 1933
solely for the purpose of effecting the Rescission Offer (the
"Rescission Registration Statement").
F. Subject only to any limitations or restrictions imposed by state
securities laws, rules or regulations (the "State Provisions"), upon
the effective date of the Rescission Registration Statement, Fibr-Plast
will begin the Rescission Offer
AGREEMENT
The parties agree as follows:
1. Upon the receipt by Fibr-Plast of proceeds from the sale of not less than
1,000,000 shares of its common stock pursuant to the Initial Registration
Statement, Fibr-Plast shall promptly deposit with the Escrow Agent the
aggregate of the Rescission Price with respect to all of the Rescission
Offerees (the "Rescission Funds").
2. Upon written notice by Fibr-Plast to the Escrow Agent to the effect that the
Rescission Registration Statement has been declared effective by the
Securities and Exchange Commission, the Rescission Offer, subject to any
State Provisions, has been made; and the
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identity of each Rescission Offeree who has duly accepted the Rescission
Offer and the amount payable thereto, the Escrow Agent shall pay each such
Rescission Offeree such amount. Notwithstanding the foregoing, the Escrow
Agent shall not pay an amount to any Rescission Offeree in excess of the
Rescission Price with respect to such Rescission Offeree as set forth in
Exhibit A. Any amounts paid by the Escrow Agent to Rescission Offerees
pursuant hereto shall be in the form of checks payable to the order of the
respective Rescission Offerees mailed or otherwise delivered to them by the
Escrow Agent.
3. Upon written notice by Fibr-Plast to the Escrow Agent to the effect that the
Rescission Registration Statement has been declared effective by the
Securities and Exchange Commission, the Rescission Offer, subject to any
State Provisions, has been made; and the identity of those Rescission
Offerees who have duly rejected or failed to accept the Rescission Offer, the
amounts of the respective Rescission Price with respect to each such
Rescission Offeree shall be paid by the Escrow Agent to Fibr-Plast.
4. The Escrow Agent is acting as a stakeholder hereunder. If any dispute arises
as to whether the Escrow Agent shall deliver the Rescission Funds to
Fibr-Plast or any other party, the Escrow Agent shall not be required to make
any delivery, but in such event the Escrow Agent may hold the Rescission
Funds in dispute until receipt by the Escrow Agent of instructions from all
such parties to the dispute directing the disposition of the Funds or in the
absence of such instructions, the Escrow Agent may hold such Rescission Funds
until receipt of an arbitral decision or a judgment of a court of competent
jurisdiction providing for the delivery thereof..
5. The Escrow Agent shall be entitled to rely upon, and shall be fully protected
from all liability, loss, cost, damage or expense in acting or omitting to
act pursuant to, any instruction, order, judgment, certification, affidavit,
demand, notice, opinion, instrument or other writing delivered to it
hereunder without being required to determine the authenticity of such
document, the correctness of any fact stated therein, the propriety of the
service thereof or the capacity, identity or authority of any party
purporting to sign or deliver such document.
6. The duties of the Escrow Agent are only as herein specifically provided, and
are purely ministerial in nature. The Escrow Agent shall neither be
responsible for, or under, nor chargeable with knowledge of, the terms and
conditions of any other agreement, or document in connection herewith and
shall be required to act only as provided in this Agreement.
7. This Agreement sets forth all the obligations of the Escrow Agent with
respect to any and all matters pertinent to the escrow contemplated hereunder
and no additional obligations of the Escrow Agent shall be implied from the
terms of this Agreement or any other agreement.
8. The Escrow Agent shall incur no liability in connection with the discharge of
its obligations under this Agreement or otherwise in connection therewith,
except such liability as may arise from the bad wilful misconduct or gross
negligence of the Escrow Agent or the reckless disregard of its duties
hereunder.
9. The Escrow Agent may consult with counsel of its choice and shall not be
liable for any action
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taken or omitted to be taken by the Escrow Agent in accordance with the
advise of such counsel.
10. The Escrow Agent shall not be bound by any modification, cancellation or
rescission of this Agreement unless in writing and signed by the Escrow
Agent.
11. The Escrow Agent at its sole discretion may interplead monies or funds into
a court of competent jurisdiction for a determination of any dispute which
arises or may arise. The Escrow Agent will be allowed its attorney's fees
and costs from such monies being interplead in determining the resolution
in the court action.
12. Fibr-Plast agrees to reimburse the Escrow Agent on demand for, and to
indemnify and hold the Escrow Agent harmless against and with respect to,
any and all loss, liability, damage, cost or expense (including, without
limitation, attorneys' fees and costs) that the Escrow Agent may suffer or
incur in connection with the performance of its obligations under this
Agreement, except to the extent such loss, liability, damage or expense
arises from the wilful misconduct or gross negligence of the Escrow Agent
or the reckless disregard of its duties hereunder.
13. The Escrow Agent and any successor escrow agent may at any time resign as
such by delivering the Rescission Funds to a successor escrow agent
designated by Fibr-Plast in writing. Upon such resignation and delivery,
the Escrow Agent shall be discharged of, and from, any and all further
obligations arising in connection with the escrow contemplated by this
Escrow Agreement.
14. This Agreement shall inure to the benefit of, and be binding upon, the
parties hereto and their respective successors and assigns. Nothing in this
Agreement, express or implied, shall give to anyone, other than the parties
hereto and their respective permitted successors and assigns, any benefit,
or any legal or equitable right, remedy or claim, under or in respect of
this Agreement or the escrow contemplated hereby.
15. All notices, requests, demands and other communications required or
permitted to be given hereunder shall be deemed given when actually
received addressed to each of the parties as follows or as such address as
either party may give to the other pursuant to such a notice:
If to Fibr-Plast:
3225 S. Norwood
Suite 100
Tulsa, OK 74135
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If to the Escrow Agent:
Community Bank & Trust Company
9004 East 61st Street
Tulsa, Oklahoma 74133
16. This Agreement shall be construed and enforced in accordance with the laws
of the State of Oklahoma. Each of the parties hereto agrees to submit to
personal jurisdiction and to waive any objection as to venue in the State
of Oklahoma.
17. This Agreement may be executed in any number of separate counterparts, each
of which shall, collectively and separately, constitute one agreement.
18. The rights of the Escrow Agent contained in this Agreement, including
without limitation the right to indemnification, shall survive the
resignation of the Escrow Agent and the termination of the escrow
contemplated hereunder.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first written above.
FIBR-PLAST CORPORATION
By: /s/ Joseph Francella
Executive Vice-President
COMMUNITY BANK & TRUST COMPANY
By: /s/ Sandy Bjornson
East Bank President
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FIRST AMENDMENT TO ESCROW AGREEMENT
THIS FIRST AMENDMENT TO AGREEMENT (the "Amendment") relates to a
certain Escrow Agreement dated May 24, 2001 (the "Escrow Agreement") by and
between FIBR-PLAST CORPORATION, an Oklahoma corporation ("Fibr-Plast") and
COMMUNITY BANK & TRUST, AN OKLAHOMA COMPANY, an Oklahoma banking corporation
(the "Escrow Agent").
1. The Escrow Agreement is hereby amended to provide that Exhibit A shall
be delivered by Fibr-Plast to the Escrow Agent not later than one
business day prior to the date that the Rescission Registration
Statement, as that term is defined in the Escrow Agreement, is declared
effective by the Securities and Exchange Commission.
2. Other than as expressly set forth herein, the Escrow Agreement shall
remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed on the day and year first written above.
FIBR-PLAST CORPORATION
By: /s/ Joseph Francella
Executive Vice-President
COMMUNITY BANK & TRUST COMPANY
By: /s/ Sandy Bjornson
East Bank President
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