Exhibit 4.2
Escrow Agreement
This Escrow Agreement (the "Agreement") is made by and between Regions
Bank, a national banking association, with its principal office located at 1425
E. Mitchell Hammock Road, Oviedo Florida (the "Escrow Agent"), and Emerging
Markets Holdings, Inc., a Florida corporation, with its principal office located
at 309 Celtic Court; Oviedo, Florida 32765 (the "Issuer").
WITNESSETH
WHEREAS, the Issuer filed with the Securities and Exchange Commission
(the "Commission"), Washington, D.C., an SB-2 Registration Statement (the
"Registration Statement"), and related Prospectus, File No. 333-130943, on.
January 10, 2006, as amended, in connection with an initial public offering of
the Issuer's securities, compromising 500,000 shares of the Issuer's common
stock to be sold at a price of $1.00 per share (the "Securities");
WHEREAS, the Issuer proposes to offer the Securities to the public on a
"best efforts, all or none" basis as set forth in the Registration Statement;
WHEREAS, the Issuer proposes to establish an escrow account (the
"Escrow Account"), to which subscription funds which are received by the Escrow
Agent in connection with such public offering are to be credited, and the Escrow
Agent is willing to establish the Escrow Account on the terms and subject to the
conditions hereinafter set forth; and
WHEREAS, the Escrow Agent will establish an Escrow Account into which
subscription funds, which are received by the Escrow Agent and credited to the
Escrow Account, are to be deposited.
NOW, THEREFORE, for and in consideration of the promises and mutual
covenants herein contained, and other valuable consideration, the parties hereto
hereby agree as follows:
1. The Registration Statement.
1.1. The Issuer has filed the Registration Statement with the
Commission and is included herein as Exhibit A to this Agreement, and is made a
part hereof.
2. Establishment of the Escrow Account.
2.1. The Issuer shall initially establish a non-interest bearing the
Escrow Account at the Escrow Agent. The purpose of the Escrow Account is for (a)
the deposit of all subscription funds (checks or wire transfers) which are
received by the Issuer to the Escrow Agent; (b) the holding of amounts of
subscription funds which are collected through the banking system; and (c) the
disbursement- of collected funds, all as described herein. The Escrow Agent will
hold all monies and other property in the Escrow Account 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.
2.2. On or before the date of the initial deposit in the Escrow Account
pursuant to this Agreement, the Issuer shall notify the Escrow Agent in writing
of the effective date (the "Effective Date") of the Registration Statement, and
the Escrow Agent shall not be required to accept any amounts for credit to the
Escrow Account or for deposit in the Escrow Account prior to its receipt of such
notification.
2.3. The offering period (the "Offering Period"), which shall be deemed
to commence on the Effective Date, shall be for a period of up to 180 days. The
Offering Period shall be less than 180 days if the Issuer sells all Securities
for a total consideration of $500,000, whichever occurs first, is also referred
to herein as the "Termination Date." Except as provided in Section 4.3 hereof,
after the Termination Date, the Issuer shall not deposit, and the Escrow Agent
shall not accept, any additional amounts representing payments by prospective
purchases.
2.4. If the Escrow Account remains open following the Termination Date
in accordance with Article 4 below, the Fund (as defined in Section 3.5 below)
shall be placed in a money market investment account bearing interest at the
Escrow Agent's then applicable rate; provided, however, that no interest shall
accrue until the Escrow Agent has received an IRS Form W-9 completed and
executed by the Company.
3. Deposits to the Escrow Account.
3.1. The Issuer shall promptly deliver to the Escrow Agent all funds
which it receives from prospective purchasers of the Securities, which funds
shall be in the form of checks or wire transfers. Upon the Escrow Agent's
receipt of such funds, they shall be credited to the Escrow Account. All check
delivered to the Escrow Agent shall be made payable to the "Regions
Bank/Emerging Markets Holdings, Inc.'s Escrow Account." Any checks payable other
than to the Escrow Agent as required hereby shall be returned to the prospective
purchaser.
3.2. Promptly after receiving subscription funds as described in
Section 3.1, the Escrow Agent shall deposit the same into the Escrow Account.
Amounts of funds so deposited are hereinafter referred to as "Escrow Amounts."
The Escrow Agent shall cause to process all Escrow Amounts for collection
through the banking system. Simultaneously with each deposit to the Escrow
Account, the Issuer shall provide the Escrow Agent a copy of the completed
Subscription Agreement for each prospective purchaser, including the name,
address, and social security number of the prospective purchaser, the amount of
Securities subscribed for by such purchaser, and the aggregate dollar amount of
such subscription, and a completed W-9 from each such purchaser (collectively,
the "Subscription Information").
3.3. The Escrow Agent shall not be required to accept for credit to the
Escrow Account checks which are not accompanied by the appropriate Subscription
Information. Wire transfers and cash representing payments by prospective
purchasers shall not be deemed deposited in the Escrow Account until the Escrow
Agent had received in writing the Subscription Information required with respect
to such payments.
3.4. The Escrow Agent shall not be required to accept in the Escrow
Account any amounts representing payments by prospective purchasers, whether by
check, or wire, except during the Escrow Agent's regular business hours.
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3.5. Only those Escrow Amounts, which have been deposited in the Escrow
Account and which have cleared the banking system and have been collected by the
Escrow Agent, are herein referred to as the "Fund".
3.6. If the proposed offering is terminated before the Termination
Date, the Escrow Agent shall refund any portion of the Fund prior to
disbursement of the Fund in accordance with Article 4 hereof upon instructions
in from the Issuer.
4. Disbursement from the Escrow Account.
4.1. Subject to Section 4.3 below, if by the close of regular banking
hours on the Termination Date the. Escrow Agent determines that the amount in
the Fund is less than $500,000, then the Escrow Agent shall promptly refund to
each prospective purchaser the amount of payment received from such purchaser
which is then held in the Fund or which thereafter clears the banking system,
without interest thereon or deduction therefrom, by drawing checks on the Escrow
Account for the amounts of such payments and mail them to the purchasers. In
such event, the Escrow Agent shall promptly notify the Issuer of its
distribution of the Fund. If the fund is equal to $500,000, the Escrow Account
shall remain open beyond the Termination Date in accordance with Section 4.2
below.
4.2. If the Escrow Account remains open beyond the Termination Date,
the Issuer must satisfy the following conditions:
(a) Within five (5) business days after the effective date of the
post-effective amendment, the Issuer shall send by first class mail to each
purchaser of securities held in escrow, a copy of the prospectus contained in
the post-effective amendment and any amendment or supplement thereto;
(b) Each purchaser shall have no fewer than twenty (20) business
days and no more than forty-five (45) business days from the effective date of
the post-effective amendment to notify the Issuer in writing that the purchaser
elects to remain an investor. If the Issuer has not received such written
notification by the forty-fifth (45th) business day following the Effective Date
of the post-effective amendment, funds and interest held in escrow shall be sent
by first class mail or other equally prompt means to the purchasers within five
(5) business days; an acquisition described in the post-effective amendment will
be consummated if a sufficient number of purchasers confirm their investment
with the Issuer; and if an acquisition has not been consummated by the Issuer
within eighteen (18) months after the Effective Date of the Registration
Statement, funds and interest held in escrow shall be returned by first class
mail to the purchasers with five (5) business days following that date. It shall
be the responsibility of the Issuer to notify the Escrow Agent if any of the
above conditions are not timely satisfied. Additionally, it shall be the
Issuer's responsibility to timely provide instructions to the Escrow Agent with
respect to the interest calculations prior to release of funds and interest to
the purchasers in accordance with the terms of this Section 4.2;
(c) Funds held in the Escrow Account may be released to the Issuer
and Securities may be delivered to the purchasers only at the same time as or
after;
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(d) The Escrow Agent has received a signed representation from the
Issuer that the requirements of paragraphs (e) (1) and (e) (2) of Rule 419 have
been met; and
(e) The Escrow Agent has received a signed representation from the
Issuer that the requirements of paragraph (e) (2) (iii) of Rule 419 have been
met.
The Issuer shall be liable for any misrepresentation made to the Escrow
Agent with respect to this Section 4.2 and the Issuer agrees to indemnify the
Escrow Agent for any claims made by purchasers with respect to this Section 4.2
in accordance with Article 5 below; provided, however, the Issuer shall not be
responsible for the Escrow Agent's failure to timely release funds and interest
to the purchasers upon receipt of instructions from the Issuer.
4.3. If the Escrow Agent has on hand at the close of the business on
the Termination Date any uncollected amounts which when added to the Fund would
raise the amount in the Fund to the minimum offering amount, and result in the
Fund representing the sale of the minimum offering amount, consisting of the
number of business days set forth in the Registration Statement, shall be
utilized to allow such uncollected funds to clear the banking system.
4.4. Upon disbursement of the Fund pursuant to the terms of this
Article 4, the Escrow Agent shall be relieved of all further obligations and
released from all liability under this, Agreement. It is expressly agreed and
understood that in no event shall the aggregate amount of payments made by the
Escrow Agent exceed the amount of the Fund.
5. Rights, Duties and Responsibilities of the Escrow Agent; Indemnification.
5.1. The Issuer may inquire on a regular basis as to, and the Escrow
Agent shall provide the Issuer, the escrow amounts which have been deposited in
the Escrow Account and of the amounts, constituting the Fund, which have cleared
the banking system and have been collected by the Escrow Agent.
5.2. The Escrow Agent shall not be responsible for or be required to
enforce any of the terms or conditions of the Agreement with respect to the
Issuer.
5.3. The Escrow Agent shall not be required to accept from the Issuer
any subscription information pertaining to prospective purchasers unless such
Subscription Information is accompanied by checks or wire transfers meeting the
requirement of Section 3.1, nor shall the Escrow Agent be required to keep
records of any information with respect to payments deposited by the Issuer,
except as to the amount of such payments; however, the Escrow Agent shall notify
the Issuer within a reasonable time of any discrepancy between the amount set
forth in any subscription information and the amount delivered to the Escrow
Agent therewith. Such amount need not be accepted for deposit in the Escrow
Agent until such discrepancy has been resolved.
5.4. The Escrow Agent shall be under no duty or responsibility to
enforce collection of any check delivered to it hereunder. The Escrow Agent,
within a reasonable time, shall return to the Issuer any check received which is
dishonored, together with the Subscription Information which accompanied such
check.
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5.5. The Escrow Agent shall be entitled to rely upon the accuracy, act
in reliance upon the contents, and assume the genuineness of any notice,
instruction, certificate, signature, instrument, or other document which is
given to the Escrow Agent by the Issuer pursuant to this Agreement without the
necessity of the Escrow Agent verifying the truth or accuracy thereof. The
Escrow Agent shall not be obligated to make any inquiry as to the authority,
capacity, existence or identity of any person purporting to give any such notice
or instructions or to execute any such certificate, instrument or other
document.
5.6. If the Escrow Agent is uncertain as to its duties or rights
hereunder or shall receive instructions with respect to the Escrow Account, the
escrow amounts of the Fund, which, in its sole determination, are in conflict
either with other instructions received by it or with any provision of this
Agreement, it shall be entitled to hold the escrow amounts, the Fund or a
portion thereof, in the Escrow Account pending the resolution of such
uncertainty to the Escrow Agent's sole satisfaction, by final judgment of a
court of competent jurisdiction or otherwise; or the Escrow Agent, as its sole
option, may deposit with the clerk of a court of competent jurisdiction in a
proceeding to which all parties in interest are joined. Upon the deposit by the
Escrow Agent of the Fund with the clerk of any court, the Escrow Agent shall be
relieved of all further obligations and released from all liability hereunder.
5.7. The Escrow Agent shall not be liable for any action taken or
omitted hereunder, or for the misconduct of any employee, agent or attorney
appointed by it, except in the case of willful misconduct or gross negligence.
The Escrow Agent shall be entitled to consult with counsel of its own choosing
and shall not be liable for any action taken, suffered or omitted by it in
accordance with the advice of such counsel.
5.8. The Escrow Agent shall have no responsibility at any time to
ascertain whether or not any security interest exists in the escrow amounts, the
Fund or any part thereof or to file any financing statement under the Uniform
Commercial Code with respect to the Fund or any part thereof.
5.9. The Issuer agrees to indemnify the Escrow Agent and its officers,
directors, employees, agents, and shareholders (jointly and severally, the
"Indemnities") against, and hold them harmless of and from, any and all loses,
liabilities, costs, damages, and expenses, including, but not limited to,
reasonable fees and disbursements for counsel of its own choosing (collectively,
"Liabilities"), that the Indemnities may suffer or incur and which arise out of
or relate to this Agreement or any transaction to which this Agreement relates,
unless such Liability is the result of the willful misconduct or gross
negligence of the Indemnities.
5.10. If the indemnification provided for in this Section 5 is
applicable but is held to be unavailable, the Issuer shall contribute such
amounts as are just and equitable to pay or to reimburse the Indemnities for the
aggregate of any and all Liabilities actually incurred by the Indemnities as a
result of or in connection with any amount paid in settlement of any action,
claim, or proceeding arising out of or relating in any way to any actions or
omissions of the Issuer.
5.11. The provisions of this Section 5 shall survive any termination of
this Agreement, whether by disbursement of the Fund, resignations of the Escrow
Agent, or otherwise.
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6. Interpleader.
6.1. In the event conflicting demands are made or notices served upon
the. Escrow Agent with respect to the Escrow Account, the Escrow Agent shall
have the absolute right as 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, the Escrow Agent
shall be fully released from any obligation to perform any further duties
imposed upon it hereunder, and the Company shall pay the Escrow Agent all costs,
expenses, and reasonable attorney's fees expended or incurred by Escrow Holder
(or allocable to its in-house counsel), the amount thereof to be fixed and a
judgment thereof to be rendered by the court in such suit.
7. Amendment; Resignation.
7.1. This Agreement may be altered or amended only with the written
consent of the parties hereto. The Escrow Agent may resign for any reason upon
fourteen (14) days' written notice to the Issuer. Should the Escrow Agent resign
as herein provided, it shall not be required to accept any deposit, make any
disbursement or otherwise dispose of the escrow amounts, but its only duty shall
be to hold the escrow accounts until they clear the banking system and the Fund
for a period of not more that five (5) business days following the effective
date of such resignation, at which time (a) if a successor escrow agent shall
have been appointed and written notice thereof shall have been given to the
resigning escrow agent by the Issuer and such successor escrow agent, then the
resigning escrow agent shall pay over to the successor escrow agent the Fund,
less any portion thereof previously paid out in accordance with this Agreement;
or (b) if the resigning escrow agent shall not have received written notice
signed by the Issuer and a successor escrow agent, then the resigning escrow
agent shall promptly notify the Issuer of its liquidation and distribution of
the Fund; whereupon, in either case, the Escrow Agent shall be relieved of all
further obligation and released from all liability under this Agreement. Without
limiting the provisions of Section 9.1 hereof, the resigning escrow agent shall
be entitled to be reimbursed by the Issuer for any expenses incurred in
connection with its resignation, transfer of the Fund to a successor escrow
agent or distribution of the Fund pursuant to this Section 7.1.
8. Representations and Warranties.
8.1. The Issuer represents and warrants to the Escrow Agent that no
party other than the parties hereto and the prospective purchasers have, or
shall have, any claim or security interest in the Fund or any part thereof.
8.2. No financing statement under the Uniform Commercial Code is on
file in any jurisdiction claiming a security interest in or describing the Fund
or any part thereof.
8.3. The Subscription Information submitted with each deposit shall, at
the time of submission and at the time of the disbursement of the Fund, be
deemed a representation and warranty that such deposit represents a bona fide
payment by the purchaser described therein for the amount of Securities set
forth in such Subscription Information.
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8.4. All of the information contained in the Registration Statement is,
as of the date hereof, and will be, at the time of any disbursement of the Fund,
true and correct.
9. Fees and Expenses.
9.1.The Escrow Agent shall not charge the Issuer any fee in connection
with this Agreement. The Issuer agrees to reimburse the Escrow Agent for any
reasonable fees and expenses incurred in connection with this Agreement.
10. Governing Law and Assignment.
10.1. This Agreement shall be construed in accordance with and
governed by the laws of the State of Florida shall be binding upon the parties
hereto and their respective successors and assigns; provided, however, that any
assignment or transfer by any party of its rights under this Agreement or with
respect to the Fund shall be void as against the Escrow Agent unless (a) written
notice thereof shall be given to the Escrow Agent; and (b) the Escrow Agent
shall have consented in writing to such assignment or transfer.
11. Notices.
11.1. All notices required to be given in connection with this
Agreement shall be sent by registered or certified mail, return receipt
requested, or by hand delivery with receipt acknowledged, or by Express Mail
service offered by the United States Post Office to the following addresses:
ISSUER:
Emerging Markets Holdings, Inc. 309 Celtic Court
Oviedo, Florida 32765
with a copy to:
Greene & Lee, P.L.
Attention: Robert Q. Lee 111 North
Orange Avenue, Suite 1450
Orlando, Florida 32801
ESCROW AGENT:
Regions Bank
Attention: Aida Apointe, Assistant Branch Manager
1425 East Mitchell Hammock Road
Oviedo, Florida 32765
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Severability
12.1. If any provision of this Agreement or the application thereof
to any person or circumstances shall be determined to be invalid or
unenforceable, the remaining provisions of this Agreement or the application of
such provisions to persons of circumstances other than those to which it is held
invalid or unenforceable shall not be affected thereby and shall be valid and
enforceable to the fullest extent permitted by law.
12. Execution in Several Counterparts; Entire Agreement.
13.1. This Agreement may be executed in several counterparts or by
separate instruments, all of such counterparts and instruments shall constitute
one agreement, binding on all of the parties hereto.
13.2. This Agreement constitutes the entire agreement between the
parties hereto with respect to the subject matter hereof and supersedes all
prior agreements and understandings, written or oral, of the parties in
connection therewith.
IN WITNESS WHEREOF, the undersigned parties have executed this Agreement upon
proper legal authority as of the 4 day of May, 2006.
Regions Bank, a national banking association
By: /s/ Aida Apointe
----------------------
BAM, its Trust Officer
Emerging Markets Holdings, Inc.,
a Florida Corporation
By: /s/ Serguei Melnik
----------------------
Serguei Melnik
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