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EXHIBIT 1.01
FORM OF PROCEEDS ESCROW AGREEMENT
THIS PROCEEDS ESCROW AGREEMENT (the "Agreement") is made and entered into this
__ day of June, 2000, by and between UBETIGOLF, INC., a Utah corporation (the
"Company"), and ESCROW SPECIALISTS, Ogden, Utah (the "Escrow Agent").
Premises
The Company proposes to offer for sale to the general public in certain states
up to 1,500,000 shares of common stock, par value $0.001, at an offering price
of $0.10 per share (the "Shares"), pursuant to the registration provisions of
the Securities Act of 1933, as amended, and pursuant to an registration
statement on Form SB-2 (the "Registration Statement"), S.E.C. File No. ______,
on file with the Securities and Exchange Commission (the "Commission"). The
Company will offer the Shares for sale through its officers and directors on a
"best efforts, all or none" basis in accordance with the terms of the
prospectus (the "Prospectus") included in the Registration Statement. The
Company may also enter into agreements with certain selected dealers to sell
the Shares, in which event the Company will pay a sales commission of ten
percent (10%) to such selected dealers for actual sales. In accordance with
the terms of the Prospectus, the Company desires to provide for the escrow of
the minimum 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 or
any dealers from subscriptions for the purchase of Shares in the subject
offering shall be deposited promptly with the trust department of the Escrow
Agent, but in any event no longer than noon of the next business day following
receipt.
2. Concurrently with transmitting funds to the trust department of the Escrow
Agent, the Company and any dealers 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 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 minimum offering period, as
specified in paragraph 4, $50,000 has been deposited 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 10% of
the amount deposited in escrow to those dealers, if any, as designated by the
Company as their compensation for commissions in connection with their sale of
the Shares; and the balance to the Company (such event is hereinafter referred
to as the "Closing"). Thereafter, the Escrow Agent shall continue to accept
deposits from the Company and any such dealers and transmit without further
request or instruction, 10% percent of the amounts deposited to those dealers,
if any, as designated by the Company and the balance to the Company until the
offering is terminated.
4. If within 90 days after the effective date of the Registration Statement
(unless extended by the Company for an additional 90 days), the Company and
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any dealers have not deposited $50,000 in good funds 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 the escrow the Escrow Agent is
advised by the 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, 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
the dealers, if any, and holding and disbursing such monies in accordance with
this Agreement. The Escrow Agent shall have no obligation to invest the
offering proceeds.
7. The Escrow Agent is not a party to, and is not bound by, any agreement
between the Company and the dealers, if any, which may be evidenced by or
arise out of the foregoing instructions.
8. 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.
9. 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.
10. The Escrow Agent shall not be required to take or be bound by notice of
any default of any person or to take 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.
11. 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.
12. 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.
13. 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.
14. 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 instructions of such counsel.
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15. In the event of any disagreement between the Company and the Escrow Agent
and/or any other person, 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 the undersigned or any of them or 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 fully adjudicated in a court assuming and having jurisdiction of the
parties and the securities, monies, 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 in writing signed by
all of the interested parties.
16. The Escrow Agent reserves the right to resign hereunder, upon ten (10)
days prior written notice to the Company. In the event of said resignation,
and prior to the effective date thereof, the Company, by written notice to the
Escrow Agent, shall designate a successor escrow agent to assume the
responsibilities of the Escrow Agent under this Agreement, and the Escrow
Agent immediately shall deliver any undisbursed offering proceeds to such
successor escrow agent. If the Company shall fail to designate such a
successor escrow agent within such time period, the Escrow Agent may deliver
any undisbursed offering proceeds into the registry of any court having
jurisdiction.
17. The consideration for its agreement to act as the Escrow Agent is $_____,
the 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 services. 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 arising 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. Any additional compensation to the Escrow Agent arising
as a result of litigation pertaining to this Agreement and any other
additional compensation to the Escrow Agent shall be paid by the Company.
18. This Agreement shall be binding upon, and shall inure to the benefit of,
the parties hereto and their respective successors and assigns, including any
successor to the Escrow Agent in the event of its liquidation; provided,
however, that no party may assign this Agreement or any interest herein
without the prior written consent of the other parties.
19. This Agreement shall be governed by and interpreted in accordance with
the laws of the State of Utah and the laws of the United States applicable to
the State of Utah.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective duly authorized officers, as of the date first
above written.
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UBETIGOLF, a Utah Corporation
/S/
Its President
I,_____________________, a duly authorized officer of the Escrow Agent, hereby
acknowledge receipt of this Agreement and agree to act as Escrow Agent in
accordance with said Agreement and on the terms and conditions above set forth
this __ day of June, 2000.
ESCROW SPECIALISTS
/S/
Its Duly Authorized Officer
