10.5 Escrow Agreement between LVPS and Richard O. Weed
ESCROW AGREEMENT
November 19, 1999
Mr. Richard O. Weed
Weed & Co. L.P.
4695 MacArthur Court, Suite 530
Newport Beach, CA 92660
RE: Escrow Agreement LVPS, Inc.
Dear Mr. Weed:
As escrow agent for LVPS MicroFacility, Inc., a Delaware corporation
(the "Company") in connection with its offer of shares to the public under a
registration statement on Form SB-2, you (hereafter, the "Escrow Agent") are
hereby authorized and directed to hold the documents and funds (the "Escrow
Funds") delivered to the Escrow Agent pursuant to the terms of the offering
documents and in accordance with the following instructions:
1. The Escrow Agent shall, as promptly as feasible, notify the Company
of receipt of funds from Subscriber(s). As soon as funds ($2,300,000) for the
purchase of at least 287,500 shares have been received by the Escrow Agent and
the Company has notified you of its of acceptance of the Subscription Agreements
aggregating at least 287,500 shares, the Escrow Agent shall release the Escrow
Funds to or upon the order of the Company, and shall release the shares to the
Subscriber(s). The Escrow Agent shall deposit all funds received hereunder in
the Escrow Agent's escrow account at City National Bank, Newport Beach,
California (or any other nationally recognized financial institution that has an
office in Newport Beach, California). In the event that the Company does not
deliver subscriptions for at least 287,500 shares within the time specified in
the offering documents, Escrow Agent shall return the Escrow Funds, without
interest, to the Subscriber(s)
2. The Escrow Agent's duties hereunder may be altered, amended,
modified or revoked only by a writing signed by the Company and the Escrow
Agent.
3. The Escrow Agent shall be obligated only for the performance of such
duties as are specifically set forth herein and may rely and shall be protected
in relying or refraining from acting on any instrument reasonably believed by
the Escrow Agent to be genuine and to have been signed or presented by the
proper party or parties. The Escrow Agent shall not be personally liable for any
act the Escrow Agent may do or omit to do hereunder as Escrow Agent while acting
in good faith, and any act done or omitted by the Escrow Agent pursuant to the
advice of the Escrow Agent's attorneys-at-law shall be conclusive evidence of
such good faith.
4. The Escrow Agent is hereby expressly authorized to disregard any and
all warnings given by any of the parties hereto or by any other person or
corporation, excepting only orders or process of courts of law and is hereby
expressly authorized to comply with and obey orders, judgments or decrees of any
court. In case the Escrow Agent obeys or complies with any such order, judgment
or decree, the Escrow Agent shall not be liable to any of the parties hereto or
to any other person, firm or corporation by reason of such decree being
subsequently reversed, modified, annulled, set aside, vacated or found to have
been entered without jurisdiction.
5. The Escrow Agent shall not be liable in any respect on account of
the identity, authorities or rights of the parties executing or delivering or
purporting to execute or deliver any documents or papers deposited or called for
hereunder.
6. The Escrow Agent shall be entitled to employ such legal counsel and
other experts as the Escrow Agent may deem necessary properly to advise the
Escrow Agent in connection with the Escrow Agent's duties hereunder, may rely
upon the advice of such counsel, and may pay such counsel reasonable
compensation therefor. The Escrow Agent has acted as legal counsel for the
Company and may continue to act as legal counsel for the Company, from time to
time, notwithstanding his duties as Escrow Agent hereunder.
7. The Escrow Agent's responsibilities as Escrow Agent hereunder shall
terminate if the Escrow Agent shall resign by written notice to the Company. In
the event of any such resignation, the Company shall appoint a successor Escrow
Agent.
8. If the Escrow Agent reasonably requires other or further instruments
in connection with these Escrow Instructions or obligations in respect hereto,
the necessary parties hereto shall join in furnishing such instruments.
9. It is understood and agreed that should any dispute arise with
respect to the delivery and/or ownership or right of possession of the documents
or Escrow Funds held by the Escrow Agent hereunder, the Escrow Agent is
authorized and directed in the Escrow Agent's sole discretion (1) to retain in
the Escrow Agent's possession without liability to anyone all or any part of
said documents or Escrow Funds until such disputes shall have been settled
either by mutual written agreement of the parties concerned or by a final order,
decree or judgment of a court of competent jurisdiction after the time for
appeal has expired and no appeal has been perfected, but the Escrow Agent shall
be under no duty whatsoever to institute or defend any such proceedings or (2)
to deliver the Escrow Funds and any other property and documents held by the
Escrow Agent hereunder to a state or federal court having competent subject
matter jurisdiction and located in the State of California and County of Orange
in accordance with the applicable procedure therefore.
10. The Company and the Company's Chief Executive Officer agree jointly
and severally to indemnify and hold harmless the Escrow Agent from any and all
claims, liabilities, costs or expenses in any way arising from or relating to
the duties or performance of the Escrow Agent hereunder other than any such
claim, liability, cost or expense to the extent the same shall (a) have been tax
obligations in connection with Escrow Agent's fee hereunder, if any, or (b) have
been determined by final, unappealable judgment of a court of competent
jurisdiction to have resulted from the gross negligence or willful misconduct of
the Escrow Agent, or (c) be a liability, or arise from liability, to the
Company.
11. Any notice required or permitted hereunder shall be given in
writing (unless otherwise specified herein) and shall be deemed effectively
given upon personal delivery or three business days after deposit in the United
States Postal Service, by registered or certified mail with postage and fees
prepaid, addressed to each of the other parties thereunto entitled at the
following addresses, or at such other addresses as a party may designate by ten
days advance written notice to each of the other parties hereto.
COMPANY: LVPS MicroFacility, Inc.
7755 Center Avenue, 11th Floor
Huntington Beach, CA 92647
ESCROW AGENT: Richard O. Weed
Weed & Co. L.P.
4695 MacArthur Court, Suite 530
Newport Beach, CA 92660
Telephone (949) 475-9086
Facsimile (949) 475-9087
12. This instrument shall be binding upon and inure to the benefit of
the parties hereto, and their respective successors and permitted assigns and
shall be governed by the laws of the State of California without giving effect
to principles governing the conflicts of laws. A facsimile transmission of these
instructions signed by the Escrow Agent shall be legal and binding on all
parties hereto.
13. Capitalized terms used herein and not otherwise defined herein
shall have the respective meanings provided in the Agreement.
14. The rights and obligations of any party hereto are not assignable
without the written consent of the other parties hereto. This constitutes the
entire agreement amongst the parties with respect to the subject matter hereof.
Company
LVPS MicroFacility, Inc.
By: /s/ Ron Patterson
Name: Ron Patterson
Title: Chief Executive Officer
By: /s/ Ron Patterson
Name: Ron Patterson, an individual
Accepted and Agreed to this 19th day of November 1999
Escrow Agent
By: /s/ Richard O. Weed
Name: Richard O. Weed