EXHIBIT 4.2
RULE 419 ESCROW AGREEMENT
LETTER OF ESCROW INSTRUCTIONS
Regions Bank N.A.
721 Broad Street
Chattanooga, TN 37402
Re: Contrarian Public Investment I, Inc. - Rule 419 escrow
This Letter of Escrow Instructions to Regions Bank N.A., hereinafter called
Escrow Agent, shall immediately and automatically become operative and effective
upon the commencement of a public distribution of certain securities of
Contrarian Public Investment I, Inc. (the "Company") which is described more
fully in the Company's Form S-1 Registration Statement under the Securities Act
of 1933 (Registration No. 333-118359).
The Company will deliver the papers, stock certificates, money and other
property hereinafter described to the Escrow Agent. All such papers, stock
certificates, money and other property are to be held and disposed of by the
Escrow Agent in accordance with the following instructions and upon the terms
and conditions hereinafter set forth, to which the undersigned agree:
ARTICLE 1. ESCROW PURPOSE
1.1 This Escrow Agreement describes clearing and holding escrow that will be
established by Contrarian Public Investment I, Inc., of Chattanooga, Tennessee,
(the "Company") and all current stockholders of the Company (the "Selling
Stockholders") in accordance with the requirements of Securities and Exchange
Commission Rule 419, adopted pursuant to the provisions of Section 7(b) of the
Securities Act of 1933. The Company, the Selling Stockholders and the Escrow
Agent are the only parties to this Escrow Agreement.
1.2 In connection with the distribution described in the Company's Form S-1
Registration Statement (the "Distribution"), the Selling Stockholders intend to
transfer certain shares of the Company's $.001 par value common stock (the
"Common Stock") to certain classes of transferees described in the definitive
prospectus filed as part of the Company's Form S-1 Registration Statement.
1.3 The purpose of the escrow shall be to hold and ultimately distribute the
following stock certificates in accordance with the terms of Sections 4 through
6 this Escrow Agreement,
(a) Stock certificates evidencing the ownership of 1,850,000 presently
issued and outstanding shares of Common Stock (the "Shares") will be delivered
to the Escrow Agent upon issuance; and
1.4 This Escrow Agreement constitutes an essential element of the Company's
proposed public offering of securities and is required by Securities and
Exchange Commission Rule 419. The parties to this Escrow Agreement shall, at all
times, conduct all of their activities relating to the Rule 419 escrow created
hereby in strict compliance with the letter and the spirit of Rule 419. In the
event of any inconsistency between the terms of this Escrow Agreement and the
requirements of Rule 419, the requirements of Rule 419 shall have priority.
ARTICLE 2. ESCROW DEPOSITS
2.1 The Escrow Agent shall accept deposits to the Escrow Account from time to
time during the entire term of this Agreement. All stock certificates delivered
to the Escrow Agent shall, upon delivery, automatically become subject to the
provisions of this Escrow Agreement.
2.2 The initial Escrow Deposits will be in the form of individual stock
certificates representing the ownership of the Shares. All stock certificates
representing the Shares shall be registered in the name of individual Selling
Stockholder and contain complete information respecting the Selling
Stockholder's name, mailing address and taxpayer identification number. When the
Escrow Agent receives the stock certificates and other information specified in
this Paragraph, it shall promptly examine the stock certificates to confirm that
the stockholder information printed on the stock certificates complies in all
particulars with the stockholder information in the supporting schedules. The
Company shall promptly correct any errors, omissions or inconsistencies noted by
the Escrow Agent. Upon completion of the Share Distribution, the Selling
Stockholders shall jointly execute and deliver to the Escrow Agent a schedule
that identifies the specific Share transfers made by each Selling Stockholder.
2.3 All stock certificates delivered to the Escrow Agent pursuant to the
provisions of this Section 2 shall be held and disposed of by Escrow Agent in
accordance with the following instructions and upon the terms and conditions set
forth herein.
ARTICLE 3. TERMINATION AND DISBURSEMENTS
3.1 If the Company has not negotiated a business combination, filed a
post-effective amendment to its registration statement, successfully completed a
reconfirmation offering meeting the requirements of Rule 419 and closed on the
business combination agreement within 18 months after the effective date of its
registration statement (the "Final Termination Date"), the Escrow Agent shall:
(a) Return all stock certificates representing Shares to the Selling
Stockholders; and
(b) Return all stock certificates representing Founders' Shares to the
Selling Stockholders.
When all stock certificates have been returned to the Selling Stockholders in
accordance with the provisions of this Paragraph 3.1, this Escrow Agreement will
terminate.
3.2 If the Company negotiates a business combination, files a post-effective
amendment to its registration statement and conducts a reconfirmation offering
meeting the requirements of Rule 419; and the terms of such offering are not
accepted by the number of Share Selling Stockholders specified in the definitive
prospectus included in the Company's post-effective amendment, the Company shall
immediately notify the Escrow Agent that the terms of its reconfirmation
offering have been rejected by the Share Selling Stockholders and the Escrow
Agent shall:
(a) Return all stock certificates representing Shares to the Selling
Stockholders; and
(b) Return all stock certificates representing Founders' Shares to the
Selling Stockholders.
When all stock certificates have been returned to the Selling Stockholders in
accordance with the provisions this Paragraph 3.2, this Escrow Agreement will
terminate.
3.3 If the Company negotiates a business combination, files a post-effective
amendment to its registration statement and completes a reconfirmation offering
meeting the requirements of Rule 419 on or before the Final Termination Date,
the Company shall promptly deliver, or cause to be delivered, to the Escrow
Agent:
(a) A copy of the definitive prospectus included in its post-effective
amendment and used in connection with the reconfirmation offering;
(b) A schedule setting forth the identity of each Share Selling
Stockholder who has approved the terms of the reconfirmation offering in
writing; and
(c) A schedule setting forth the identity of each Share Selling
Stockholder who has rejected the terms of the reconfirmation offering in writing
or otherwise failed to execute a reconfirmation agreement within the time limits
specified in the definitive prospectus.
Upon receipt of the foregoing documentation, the Escrow Agent shall return to
the Selling Stockholders all stock certificates registered in the names of Share
Selling Stockholders who received Shares in connection with the Distribution and
ultimately refused or failed to execute a reconfirmation agreement within the
time limits specified in the definitive prospectus.
3.4 If the Company satisfies the conditions of Paragraph 3.3, actually closes
the business combination described in the post-effective amendment to its
registration statement and delivers to the Escrow Agent a Certificate signed by
the President and Secretary that all conditions precedent to the final release
of stock certificates set forth in Rule 419(e)(3) have been satisfied, the
Escrow Agent shall:
(a) Mail stock certificates to each Selling Stockholder who received
Common Stock in connection with the Distribution and subsequently executed a
reconfirmation agreement; and/or
(b) If so directed by the company, deliver stock certificates for the
Shares to the closing agents specified in the associated stock purchase
agreements; but only if a closing agent was specified in the purchase agreement
delivered to the Escrow Agent pursuant to Paragraph 2.3 of this agreement. In
the event that a closing agent was not so specified, the Escrow Agent shall
retain possession of the stock certificates pending its receipt of joint
instructions from the Selling Stockholder and purchaser.
When all stock certificates and all Escrow Funds deposited with the Escrow Agent
have been disbursed in accordance with the provisions of this Paragraph 3.4,
this Escrow Agreement will terminate.
ARTICLE 4. NO MODIFICATION
4.1 After the effective date of the Company's Registration Statement, these
instructions shall not be modified, rescinded or amended without the written
consent of each Selling Stockholder.
ARTICLE 5. GENERAL PROVISIONS
5.1 All parties understand and agree that Escrow Agent is not a principal,
participant, or beneficiary of the underlying transaction that necessitates this
Escrow Agreement. 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 acting or refraining from acting on any instrument believed by it
to be genuine and to have been signed or presented by the proper party or
parties, their officers, representatives or agents. The Escrow Agent shall not
be liable for any action taken or omitted by it in good faith and believed by it
to be authorized hereby, nor for action taken or omitted by it in accordance
with the advice of its counsel. Escrow Agent shall be responsible for holding,
investing and disbursing the Escrowed Assets pursuant to the Escrow Agreement,
but in no event shall be liable for any exemplary or consequential damages in
excess of Escrow Agent's fee hereunder.
5.2 Unless otherwise provided herein, the Escrow Agent shall accept the Escrowed
Assets pursuant to the Escrow Agreement and invest such assets at the written
request of the parties hereto specifying with particularity or by accompanying
schedule the type and identity of the assets to be deposited. Acceptance of the
Escrowed Assets shall be communicated by Escrow Agent to parties by account
statement or otherwise in writing as soon as practicable after receipt, and any
discrepancies shall be noted to Escrow Agent by the parties in writing within
forty five (45) days of receiving such communication. Failure to note any
discrepancies shall be deemed confirmation of the description of Escrowed Assets
listed on the report regardless of any variations from the original schedule.
Any request to invest assets shall be in writing or facsimile and specify the
type of investment to be made, the maturity date, and the principal amount to be
invested. The Escrow Agent shall not be liable for delay or failure to invest
funds without written instructions or for losses on any investments made by it
pursuant to and in compliance with such instructions.
5.3 Should any controversy arise between the undersigned with respect to this
Escrow Agreement or with respect to the right to receive the Escrowed Assets,
Escrow Agent shall have the right to consult counsel and/or to institute a bill
of interpleader in any court of competent jurisdiction to determine the rights
of the parties. In the event it is a party to any dispute, Escrow Agent shall
have the additional right to refer such controversy to binding arbitration.
Should such actions be necessary, or should Escrow Agent become involved in
litigation in any manner whatsoever on account of this Escrow Agreement of the
Escrowed Assets made hereunder, the undersigned hereby bind and obligate
themselves, their heirs and legal representatives to pay Escrow Agent, in
addition to any charge made hereunder for acting as Escrow Agent, reasonable
attorney's fees incurred by Escrow Agent, and any other disbursements, expenses,
losses, costs and damages in connection with and resulting from such actions.
5.4 The Escrow Agent shall have no liability under, or duty to inquire beyond
the terms and provisions of the Escrow Agreement, and it is agreed that its
duties are purely ministerial in nature, and that the Escrow Agent shall incur
no liability whatsoever except for willful misconduct or gross negligence so
long as it has acted in good faith. The Escrow Agent shall not be bound by any
modification, amendment, termination, cancellation, rescission or supersession
of this Escrow Agreement unless the same shall be in writing and signed by all
of the other parties hereto and, if its duties as Escrow Agent hereunder are
affected thereby, unless it shall have given prior written consent thereto.
5.5 The Escrow Agent may at any time resign hereunder by giving written notice
of its resignation to the other parties hereto, at their address set forth
herein, at least ten (10) days prior to the date specified for such resignation
to take effect, and upon the effective date of such resignation, the Escrowed
Assets hereunder shall be delivered to such person as may be designated in
writing by the appropriate parties executing this Escrow Agreement, whereupon
all the Escrow Agent's obligations hereunder shall cease and terminate. The
Escrow Agent's sole responsibility until such termination shall be to keep
safely all Escrowed Assets and to deliver the same to a person designated by the
appropriate parties executing this Escrow Agreement or in accordance with the
directions of a final order or judgment of a court of competent jurisdiction.
5.6 The parties agree to indemnify, defend and hold the Escrow Agent harmless
from and against any and all loss, damage, tax, liability and expense that may
be incurred by the Escrow Agent arising out of or in connection with its
acceptance or appointments as Escrow Agent hereunder, including costs and
expenses of defending itself against any claim or liability in connection with
its performance hereunder.
5.7 The parties jointly and severally agree to pay to the Escrow Agent its fees
for the services rendered pursuant to the provisions of this Escrow Agreement
and will reimburse the Escrow Agent for reasonable expenses, including
reasonable attorney's fees incurred in connection with the negotiations,
drafting and performance of such services. Except as otherwise noted, this fee
covers account acceptance, set up and termination expenses; plus usual and
customary related administrative services such as safekeeping, investment and
payment of funds specified herein or in the exhibits attached. Activities
requiring excessive administrator time or out-of-pocket expenses such as
optional substitution of collateral or securities shall be deemed extraordinary
expenses for which related costs, transaction charges, and additional fees will
be billed at Escrow Agent's standard charges for such items. A fee schedule has
been provided to all parties to this Escrow.
5.8 Escrow Agent is hereby given a lien on all Escrowed Assets for all
indebtedness that may become owing to Escrow Agent hereunder, which lien may be
enforced by Escrow Agent by setoff or appropriate foreclosure proceedings.
5.9 The parties warrant to the Escrow Agent that there are no Federal, State or
local tax liability or filing requirements whatsoever concerning the Escrow
Agent's actions contemplated hereunder and warrant and represent to the Escrow
Agent that the Escrow Agent has no duty to withhold or file any report of any
tax liability under any Federal of State income tax, local or State property
tax, local or State sales or use taxes, or any other tax by any taxing
authority. The parties hereto agree to jointly and severally indemnify the
Escrow Agent fully for any tax liability, penalties or interest incurred by the
Escrow Agent arising hereunder and agree to pay in full any such tax liability
together with penalty and interest if any tax liability is ultimately assessed
against the Escrow Agent for any reason as a result of its action hereunder
(except for the Escrow Agent's individual income tax liability arising from its
income fees).
5.10 The Escrow Agent shall have no liability for loss arising from any cause
beyond its control, including, but not limited to, the following: (a) the act,
failure or neglect of any agent or correspondent selected by the Escrow Agent or
the parties hereto; (b) any delay, error, omission or default connected with the
remittance of funds; (c) any delay, error, omission or default of any mail,
telegraph, cable or wireless agency or operator; (d) the acts or edicts of any
government or governmental agency or other group or entity exercising
governmental powers.
5.11 This Escrow Agreement shall be governed by and construed in accordance with
the laws of the State of Tennessee. The parties hereto expressly waive such
duties and liabilities, it being their intent to create solely an agency
relationship and hold the Escrow Agent liable only in the event of its gross
negligence or willful misconduct in order to obtain the lower fee schedule rates
as specifically negotiated with the Escrow Agent.
ARTICLE 6. NOTICES
6.1 All notices, demands, requests or payments provided for or given pursuant to
this Escrow must be in writing or facsimile. All such notices shall be deemed to
have been properly given or served by personal delivery or by depositing the
same in the United States mail addressed to the person entitled to receive such
notice at the address set forth below.
To the Company To the Escrow Agent:
Douglas A. Dyer, President Melissa Shaw, Vice President
Contrarian Public Investment I, Inc. Regions Bank N.A.
735 Broad Street, Suite 218 721 Broad Street
Chattanooga, TN 37402 Chattanooga, TN 37402
6.2 All notices shall be effective when received.
Approved and accepted by the Parties this 2_ day of December 2004.
Contrarian Public Investment I, Inc. Regions Bank, N.A.
By: /s/Douglas A. Dyer By: /s /Mellisa Shaw
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Douglas A. Dyer, President Mellisa Shaw, Vice President