EXHIBIT 99.2
ESCROW INSTRUCTIONS (SECURITIES OFFERING)
These Escrow Instructions are given by Fidelity Capital Concepts Limited, a
Nevada corporation (the "Company") to City National Bank, a national banking
association ("Escrow Holder").
1. OFFERING: The Company desires to offer to subscribers a maximum of 500,000
shares of common stock at a price of $0.20 per share (the "Shares"), payable in
cash as more particularly set forth in a Prospectus dated September 19, 2000, a
copy of which has been delivered to Escrow Holder (the "Disclosure Document").
Escrow Holder is not to be concerned with the Disclosure Document, except as
specifically set forth below.
2. ESTABLISHMENT OF THE ESCROW:
(a) Escrow Holder will open one or more escrow accounts (the "Escrow"), and
the Company will deliver to Escrow Holder from time to time for deposit
into the Escrow the full amount of each payment received from each
subscriber (the "Subscription Price"), together with a full copy of the
Subscription Agreement executed by such subscriber, showing the name,
address and taxpayer identification number of such subscriber, the
number of shares subscribed for and the amount paid therefor and an
I.R.S. Form W-9 or Form W-8, as applicable, completed and executed by
each subscriber. Escrow Holder shall have no obligation to accept
monies, documents or instructions from any party other than the Company
with respect to the Escrow. All monies so deposited will be in the form
of a subscriber's personal check in favor of "CITY NATIONAL BANK -
FIDELITY CAPITAL CONCEPTS LIMITED". Should any such check be returned
to Escrow Holder as uncorrectable for any reason, Escrow Holder will
charge the amount of such unpaid check to Escrow, notify the Company of
the amount of such return check, the name of the subscriber and the
reason for return, and hold such check subject to further instructions
from the Company. Escrow Holder will hold all monies and other property
in the escrow free from any lien, claim or offset, except as set forth
herein, and such monies and other property shall not become the
property of the Company, nor subject to the debts thereof, unless the
conditions set forth in these instructions to disbursement of such
monies to the Company have been fully satisfied.
(b) 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 for safekeeping
only. 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.
3. INVESTMENT: All funds will be held by Escrow Holder in a Money Market
Investment Account bearing interest at Escrow Holder's then applicable rate. No
funds will earn
interest until Escrow Holder receives an I.R.S. Form W-9 or Form W-8 completed
and executed by the Company and the subscriber's check has been collected in
good funds.
4. (a) CANCELLATION BY THE COMPANY: The Company may reject or cancel any
subscription in whole or in part. If the Subscription Price for such rejected or
cancelled subscription has been delivered to Escrow Holder, the Company will
inform Escrow Holder of the rejection or cancellation, and Escrow Holder upon
receiving such notice will refund to the purchaser the Subscription Price.
(b) CANCELLATION BY SUBSCRIBERS: All Subscriptions are irrevocable, and no
subscriber will have any right to cancel or rescind the subscription, except as
required under the law of any jurisdiction in which the shares are sold.
5. CLOSING: The Escrow will remain open until the earliest to occur of the
following (the "Closing Date"):
(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) of the Securities Act of 1933 have been
met, and there has been consummation of an acquisition meeting
the requirements of Rule 419(e)(2); or
(ii) written notification from the Company to the Escrow Agent
stating that an acquisition meeting the requirements of Rule
419(e)(1) has not occurred within 18 months after the
effective date of the Disclosure Document and that the
subscription funds held in escrow are to be returned to the
Company's subscribers and the Shares are to be returned to the
Company; or
(iii) written notification from the Company to the Escrow Agent to
deliver all funds and securities to another escrow agent in
accordance with Paragraph 11 then, in such event, the Escrow
Agent shall deliver all funds and securities to such other
escrow agent whereupon the Escrow Agent shall be released from
further liability hereunder.
Upon Closing, the Escrow Holder will disburse all monies, share certificates,
instruments and other documents in the Escrow to the Company or as otherwise
instructed by the Company. The Escrow Agent may deliver the Shares in trust to
an officer of the Company for distribution to the registered shareholders. Under
no circumstances will Escrow Holder be required to disburse any monies until the
check therefore has been collected in good funds.
6. INSTRUCTIONS AND AMENDMENTS: All notices and instructions to Escrow Holder
must be in writing and may be delivered personally or mailed, certified or
registered mail, return receipt requested, addressed to CITY NATIONAL BANK, 400
N. ROXBURY DR., 6TH FLOOR, BEVERLY HILLS, CALIFORNIA, 90210, ATTENTION: SUE
BEHNING/VP, SENIOR TRUST OFFICER/CNI - TRUST DEPARTMENT. All such notices and
instructions will be deemed given when received by Escrow Holder, as shown on
the receipt therefor. All Instructions from the Company
2
will be signed by Keith Ebert. Unless otherwise provided herein, these
instructions may be amended or further instructions given only to the extent
that such amendments or instructions are consistent with, and do not add
materially to, the description of the Escrow contained in the Disclosure
document, unless consented to in writing by all subscribers whose Subscription
Prices have been received by Escrow Holder therefore and unless disclosed to all
subscribers thereafter.
7. FEES: Escrow Holder shall be entitled to an initial, non refundable, set-up
fee of $2,000 payable concurrently with its acceptance, and upon opening of this
Escrow, plus actual expenses incurred in performing its duties hereunder. The
Company or partnership will pay Escrow Holder's fees and expenses provided that
upon the close of the escrow, Escrow Holder may withhold from any amounts
disbursed to the Company the amount of its then earned but unpaid fees and
expenses. Fees will be charged pursuant to the fee schedule attached hereto and
incorporated herein by reference.
8. EXCULPATION: Escrow Holder will not be liable for:
(a) The genuineness, sufficiency, correctness as to form, manner
of execution or validity of any instrument deposited in the
Escrow, nor the identity, authority or rights of any person
executing the same.
(b) Any misrepresentation or omission in the Disclosure Document
or any failure to keep or comply with any of the provisions of
any agreement, contract, or other instrument referred to
therein; or
(c) The failure of the Company to transmit, or any delay in
transmitting any subscriber's Subscription Price to Escrow
Holder.
Escrow Holder's duties hereunder shall be limited to the safekeeping of monies,
instruments or other documents received by the Escrow Holder into the Escrow,
and for the disposition of same in accordance with this Escrow Agreement and any
further instructions pursuant to this Escrow Agreement.
9. INTERPLEADER: In the event conflicting demands are made or notices served
upon Escrow Holder with respect to the Escrow, Escrow Holder shall have the
absolute right at its election to do either or both of the following:
(a) Withhold and stop all further proceedings in, and performance
of, this escrow; or
(b) File a suit in interpleader and obtain an order from the court
requiring the parties to litigate their several claims and
rights among themselves. In the event such interpleader suit
is brought, Escrow Holder shall be fully released from any
obligation to perform any further duties imposed upon it
hereunder, and the Company shall pay Escrow Holder all costs,
expenses and reasonable attorney's fees expended or incurred
by Escrow Holder, (or allocable to its in-house
3
counsel), the amount thereof to be fixed and a judgment
thereof to be rendered by the court in such suit.
10. INDEMNITY: The Company further agrees to pay on demand, and to indemnify and
hold Escrow Holder harmless from and against, all cost, damages, judgments,
attorney's fees, expenses, obligations and liabilities of any kind or nature
which, in good faith, Escrow Holder may incur or sustain in connection with or
arising out of the Escrow and Escrow Holder is hereby given a lien upon all the
rights, titles, interest of the Company in monies and other property deposited
in the Escrow, to protect Escrow Holder's rights and to indemnify and reimburse
Escrow Holder under these Escrow Instructions.
11. REMOVAL OF BANK AS ESCROW HOLDER. The Company may at any time remove the
Bank as Escrow Holder by delivery to the Bank of a written notice signed by the
Company stating that the Bank is being removed as Escrow Holder and instructing
the Bank to deliver all documents and property held in Escrow hereunder to a
successor escrow holder designated in said notice. Upon delivery of all
documents and property held in Escrow hereunder to such successor escrow holder,
the Bank shall be relieved of any and all liability.
12. RESIGNATION OF ESCROW HOLDER: Escrow Holder may resign herefrom upon
fourteen (14) days' written notice to the Company and shall thereupon be fully
released from any obligation to perform any further duties imposed upon it
hereunder. Escrow Holder will transfer all files and records relating to the
Escrow to any successor escrow holder upon receipt of a copy of executed escrow
instructions designating such successor.
13. FACSIMILE: The Company agrees that Escrow Holder may, but need not, honor
and follow instructions, amendments or other orders ("orders") which shall be
provided by telephone facsimile transmission ("faxed") to Escrow Holder in
connection with this escrow and may act thereon without further inquiry and
regardless of by whom or by what means the actual or purported signature of the
Company may have been affixed thereto if such signature in Escrow Holder's sole
judgment resembles the signature of the Company. The Company indemnifies and
holds Escrow Holder free and harmless from any and all liability, suits, claims
or causes of action which may arise from loss or claim of loss resulting from
any forged, improper, wrongful or unauthorized faxed order. The Company agrees
to pay all attorney fees and cost incurred by Escrow Holder (or allocable to its
in-house counsel), in connection with said claim(s).
14. OTHER:
(a) Time is of the essence of these and all additional or changed
instructions.
(b) These Escrow Instructions may be executed in counterparts,
each of which so executed shall, irrespective of the date of
its execution and delivery, be deemed an original, and said
counterparts together shall constitute one and the same
instrument.
4
(c) These Escrow Instructions shall be governed by, and shall be
construed according to, the laws of the State of California.
(d) The Company will not make any reference to City National Bank
in connection with the Offering except with respect to its
role as Escrow Holder hereunder, and in no event will the
Company state or imply the Escrow Holder has investigated or
endorsed the offering in any manner whatsoever.
IN WITNESS WHEREOF, The parties have executed these Escrow Instructions as of
the date set forth beside such parties' signature below.
"COMPANY" Name: Fidelity Capital Concepts Limited
-------------------------------------------
Address: Suite 2901, 1201 Marinaside Crescent
-------------------------------------------
Vancouver, British Columbia V6Z 2V2
-------------------------------------------
Phone Number: (604)681-9588
-------------------------------------------
Fax Number: (604)688-4933
-------------------------------------------
By:
--------------------------------------
Its: President and Director
--------------------------------------
Date:
--------------------------------------
"ESCROW HOLDER" City National Bank, a national banking association
By:
--------------------------------------
Its:
--------------------------------------
Date:
--------------------------------------