PROCEEDS ESCROW AGREEMENT
THIS PROCEEDS ESCROW AGREEMENT (this "Agreement") is made and entered
into by and between Barossa Coffee Company, Inc., a Nevada corporation (the
"Company") and Brighton Bank, a federally insured depositary institution (the
"Escrow Agent").
PREMISES
The Company proposes to offer for sale to the general public in certain
states, a minimum of 200,000 and a maximum of 400,000 shares of Common Stock,
$.001 par value (the "Shares"), at an offering price of $0.25 per share in
accordance with the registration provisions of the Securities Act of 1933, as
amended, and pursuant to a registration statement on Form SB-2 (the
"Registration Statement") on file with the Securities and Exchange Commission.
The Company will, as soon as practicable after the effective date of the
Registration Statement, offer for sale the Shares in accordance with the terms
of the prospectus. In accordance with the terms of the prospectus, the
Company and the Escrow Agent desire to provide for the escrow of the gross
subscription payments for Shares until the amount, as set forth below, has
been received.
AGREEMENT
NOW, THEREFORE, the parties hereto agree as follows:
1. Until termination of this Agreement, all funds collected by the
Company from subscriptions for the purchase of Shares in the subject offering
shall be deposited promptly with the Escrow Agent, but in any event no later
than noon of the next business day following receipt. Such funds shall be
transmitted in accordance with the terms of the Registration Statement. All
such funds shall be made payable to the Escrow Agent as agent for the Company.
2. Concurrently with transmitting funds to the Escrow Agent, the
Company shall also deliver to the Escrow Agent a schedule setting forth the
name and address of each subscriber whose funds are included in such
transmittal, the number of Shares subscribed for, and the dollar amount paid.
All funds so deposited shall remain the property of the subscriber and shall
not be subject to any lien or charges by the Escrow Agent, or judgments or
creditors' claims against the Company until released to it in the manner
hereinafter provided.
3. If at any time prior to the expiration of the offering period, as
specified in Paragraph 4, the minimum offering amount of $50,000 has been
deposited and collected pursuant to this Agreement, the Escrow Agent shall
promptly confirm the receipt of such funds to the Company and, on written
request of the Company promptly transmit the amount deposited in escrow to the
Company (such event is hereinafter referred to as the "Closing").
4. If, within 120 days after the effective date of the prospectus
included in the Registration Statement (unless the Escrow Agent receives
written notice from the Company that such escrow
period has been extended for
an additional 30 days) plus 10 business days to allow clearance of funds
deposited in escrow, $50,000 in good funds have not deposited with the Escrow
Agent, the Escrow Agent shall so notify the Company and shall promptly
transmit to those investors who subscribed for the purchase of the Shares the
amount of money each such investor so paid. The Escrow Agent shall furnish to
the Company an accounting for the refund in full to all subscribers.
5. If at any time prior to the termination of this escrow the Escrow
Agent is advised by the Securities and Exchange Commission that a stop order
has been issued with respect to the Registration Statement, the Escrow Agent
shall 20 days after the date of any such stop order thereon return all funds
to the respective subscribers unless it receives written notice within such 20
day period that the stop order has been lifted.
6. It is understood and agreed that the duties of the Escrow Agent are
entirely ministerial, being limited to receiving monies from the Company and
holding and disbursing such monies in accordance with this Agreement.
7. The Escrow Agent acts hereunder as a depository only, and is not
responsible or liable in any manner whatsoever for the sufficiency,
correctness, genuineness, or validity of any instrument deposited with it, or
with respect to the form or execution of the same, or the identity, authority,
or rights of any person executing or depositing the same.
8. The Escrow Agent shall not take any action pursuant to additional
escrow instructions not included herein unless such instructions are in
writing and have been signed by the Company.
9. The Escrow Agent shall not be required to take or be bound by notice
of any default of any person or to take any action with respect to such
default involving any expense or liability, unless notice in writing is given
to an officer of the Escrow Agent of such default by the undersigned or any of
them, and unless it is indemnified in a manner satisfactory to it against any
expense or liability arising therefrom.
10. The Escrow Agent shall not be liable for acting on any notice,
request, waiver, consent, receipt, or other paper or document believed by the
Escrow Agent to be genuine and to have been signed by the proper party or
parties.
11. The Escrow Agent shall not be liable for any error of judgment or
for any act done or step taken or omitted by it in good faith, or for any
mistake of fact or law, or for anything which it may do or refrain from doing
in connection herewith, except its own willful misconduct.
12. The Escrow Agent shall not be answerable for the default or
misconduct of any agent, attorney, or employee appointed by it if such agent,
attorney, or employee shall have been selected with reasonable care.
13. The Escrow Agent may consult with legal counsel in the event of any
dispute or question as to the consideration of the foregoing instructions or
the Escrow Agent's duties hereunder, and the
Escrow Agent shall incur no
liability and shall be fully protected in acting in accordance with the
opinion and instruction of such counsel.
14. In the event of any disagreement resulting in adverse claims and/or
demands being made in connection with or for any papers, money, or property
involved herein or affected hereby, the Escrow Agent shall be entitled at its
option to refuse to comply with any such claim, or demand so long as such
disagreement shall continue and, in so refusing, the Escrow Agent shall not be
or become liable to any person named in the foregoing instructions for the
failure or refusal to comply with such conflicting or adverse demands, and the
Escrow Agent shall be entitled to continue to so refrain and refuse to so act
until:
(a) the rights of adverse claimants have been finally adjudicated
in a court assuming and having jurisdiction of the parties and the
money, papers, and property involved herein or affected hereby; and/or
(b) all differences shall have been adjusted by agreement and the
Escrow Agent shall have been notified thereof in writing signed by all
of the persons interested.
15. The fee of the Escrow Agent is $ , receipt of which is
hereby acknowledged. In addition, if $50,000 is not received in escrow within
the escrow period and the Escrow Agent is required to return funds to
investors as provided in Section 4, the Escrow Agent shall receive a fee of
$ per check for such service. The fee agreed on for services rendered
hereunder is intended as full compensation for the Escrow Agent's services as
contemplated by this Agreement; however, in the event that the conditions of
this Agreement are not fulfilled, the Escrow Agent renders any material
service not contemplated by this Agreement, there is any assignment of
interest in the subject matter of this Agreement, there is any material
modification hereof, any material controversy arises hereunder, or the Escrow
Agent is made a party to or justifiably intervenes in any litigation
pertaining to this Agreement or the subject matter hereof, the Escrow Agent
shall be reasonably compensated for such extraordinary expenses, including
reasonable attorneys' fees, occasioned by any delay, controversy, litigation,
or event and the same may be recoverable only from the Company.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective duly authorized officers.
BAROSSA COFFEE COMPANY, INC. BRIGHTON BANK
By: By:
Adam Gatto, President Duly Authorized Officer