ESCROW AGREEMENT
(STOCK)
This ESCROW AGREEMENT is made as of this 21st day of August, 2000 by and
between SB Merger Corp. with a place of business at 305 East Grand River,
Brighton, Michigan 48116 (the "Company"), and Continental Stock Transfer & Trust
Company with a principal place of business at 2 Broadway, 19th Floor, New York,
New York 10004, in its capacity as escrow agent only (the "Escrow Agent").
W I T N E S S E T H:
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WHEREAS, the Company intends to consummate the initial public offering (the
"Offering") of an aggregate of 125,000 shares (the "Shares") of the Company's
common stock, par value $.001 per share (the "Common Stock") as more fully
described in the Company's Registration Statement on Form SB-2 under the
Securities Act of 1933, as amended (File No.333-39044), as declared effective by
the Securities and Exchange Commission on _______, 2000 (the "Registration
Statement");
WHEREAS, in accordance with the terms of the offering as set forth in the
Registration Statement, the Shares are required to be placed directly in an
escrow account; and
WHEREAS, the Company wishes to appoint the Escrow Agent as the escrow agent
for such account, on the terms and conditions set forth below in order to comply
with the requirements of Rule 419 of Regulation C of the Rules and Regulations
established by the Securities and Exchange Commission;
NOW, THEREFORE, in consideration of the mutual promises and obligations set
forth below, and for other valuable consideration the sufficiency and receipt of
which are hereby acknowledged, the parties hereto hereby agree as follows:
I. Appointment of Escrow Agent and Creation of Account. The Company hereby
appoints the Escrow Agent as escrow agent hereunder and directs it to hold those
assets described in Exhibit A attached hereto, together with any additional
assets
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which may be deposited with the Escrow Agent from time to time to be held
pursuant to this Agreement and any additions thereto (collectively, the "Escrow
Assets"), in a separate account in the name of "SB Merger Corp. - Stock Escrow
Account" (the "Escrow Account"). The Escrow Account shall be administered and
distributed in accordance with the terms set forth below. Contemporaneously with
the closing of the Offering, the Company shall deposit with the Escrow Agent
those assets listed on Exhibit A.
1. Initial Deposit into Escrow Account. Certificates representing all
Shares sold by the Company shall be deposited directly in the Escrow Account by
the Company.
2. Distribution from Escrow Account. The Escrow Agent shall make
distributions from the Escrow Account in accordance with the requirements set
forth in Exhibit D attached hereto. Such instructions may be modified only by a
written certificate executed by authorized officers of the Company, and
delivered to the Escrow Agent. In addition, this Escrow Agreement may not be
altered by the Board of Directors of the Company in terms of its distribution
instructions, except as may be required by the Board of Directors to fulfill
their fiduciary obligations. The Escrow Agent is authorized to make
distributions in reliance on the instructions it receives. Written notice of
each distribution from the Escrow Agent shall be provided to the Company within
ten (10) days of each such distribution. Upon the final distribution of all of
the Escrow Assets, this Agreement shall terminate and the Escrow Agent shall
have no further obligations or liabilities hereunder.
3. Compensation of Escrow Agent. The Escrow Agent shall receive fees
determined in accordance with, and payable as specified in, the Schedule of Fees
attached hereto as Exhibit E (the "Fee Schedule"). The Escrow Agent shall have
no duties or liabilities under this Agreement unless and until full payment of
the fee set forth in Exhibit E. The Escrow Agent shall be reimbursed by the
Company for all expenses, disbursements and advances incurred or made by the
Escrow Agent in preparation, administration and enforcement of this Agreement,
including, but not limited to, reasonable legal fees and expenses. The Company
shall be liable for all payments due to the Escrow Agent under this Agreement.
4. Responsibilities and Rights of the Escrow Agent. To induce the Escrow
Agent to act hereunder, it is further agreed by the undersigned that:
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(a) The Escrow Agent undertakes to perform only such duties as are
expressly set forth herein. Without limiting the generality of the foregoing,
the Escrow Agent shall have no duty or responsibility as regards any loss
occasioned by delay in the actual receipt of notice of any payment, redemption
or other transaction regarding any item in the Escrow Assets as to which it is
authorized to take action hereunder. The Escrow Agent may consult with counsel
and shall be fully protected with respect to any action taken in good faith in
accordance with such advice. The Escrow Agent shall have no liability or
responsibility for any misstatement in, or omission from, the Prospectus.
(b) The Escrow Agent shall not be under any duty to give the Escrowed
Assets held by it hereunder any greater degree of care than it gives its own
similar property except as directed pursuant to this Escrow Agreement.
(c) The Escrow Agent does not make any representation or warranty with
regard to the creation or perfection, hereunder or otherwise, of a security
interest in the Escrow Assets or regarding the negotiability or transferability
of, or existence of other interests in the Escrow Assets. The Escrow Agent shall
have no responsibility at any time to ascertain whether or not any security
interest exists in the Escrow Assets or any part thereof or to file any
financing statement under the Uniform Commercial Code of any state with respect
to the Escrow Assets or any part thereof.
(d) The Escrow Agent is hereby authorized to comply with any judicial order
or legal process which stays, enjoins, directs or otherwise affects the transfer
or delivery of the Escrow Assets or any party hereto and shall incur no
liability for any delay or loss which may occur as a result of such compliance.
(e) The Escrow Agent need not maintain any insurance with respect to the
Escrow Assets.
(f) Except as otherwise expressly provided herein, the Escrow Agent is
authorized to execute instructions and take other actions pursuant to this
Agreement in accordance with its customary processing practices for similar
customers and, in accordance with such practices the Escrow Agent may retain
agents, including its own subsidiaries or affiliates, to perform certain of such
functions. The Escrow Agent shall have no liability under this Agreement for any
loss or expense other
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than those occasioned by the Escrow Agent's gross negligence or willful
misconduct and in any event its liability shall be limited to direct damages and
shall not include any special or consequential damages. All collection and
receipt of securities and all delivery of securities under this Agreement shall
be made by the Escrow Agent as agent, at the risk of the other parties hereto
with respect to their actions or omissions and those of any person other than
the Escrow Agent. In no event shall the Escrow Agent be responsible or liable
for any loss due to force beyond its control, including, but not limited to,
acts of God, flood, fire, nuclear fusion, fission or radiation, war (declared or
undeclared), terrorism, insurrection, revolution, riot, strikes or work
stoppages for any reason, embargo, government action, including any laws,
ordinances, regulations or the like which restrict or prohibit the providing of
the services contemplated by this Agreement, inability to obtain equipment or
communications facilities, or the failure of equipment or interruption of
communications facilities, and other causes whether or not of the same class or
kind as specifically named above. In the event that the Escrow Agent is unable
substantially to perform for any of the reasons described in the immediately
preceding sentence, it shall so notify the other parties hereto as soon as
reasonably practicable following its actual knowledge of the same.
(g) This Escrow Agreement expressly sets forth all the duties of the Escrow
Agent with respect to any and all matters pertinent hereto. No implied duties or
obligations shall be read into this agreement against the Escrow Agent.
Notwithstanding any provisions of this Agreement to the contrary, the Escrow
Agent shall not be bound by, or have any responsibility with respect to, any
other agreement or contract among the Company and the Representatives (whether
or not the Escrow Agent has knowledge thereof).
(h) It is understood and agreed that should any dispute arise with respect
to the payment and/or ownership or right of possession of the Escrow Assets, or
should the Escrow Agent in good faith be in doubt as to what action it should
take hereunder, the Escrow Agent is authorized and directed to retain in its
possession, without liability to anyone, all or any part of the Escrow Assets
until such dispute shall have been settled either by mutual agreement by the
parties concerned or by the final order, decree or judgment of any court or
other tribunal of competent jurisdiction in the United States of America and
time for appeal has expired and no appeal has been perfected, but the Escrow
Agent shall be under no duty whatsoever to institute or
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defend any such proceedings. Any such court order shall be accompanied by a
legal opinion by counsel for the presenting party satisfactory to the Escrow
Agent to the effect that said court order is final and nonappealable.
(i) The Escrow Agent shall be entitled to rely upon any order, judgment,
certification, demand, notice, instrument or other writing delivered to it
hereunder without being required to determine the authenticity or the
correctness of any fact stated therein or the propriety or validity of the
service thereof. Without limiting the foregoing, in the event of any alteration
of distribution instructions, the Escrow Agent shall have no responsibility to
determine whether the requested alteration was required by the Board of
Directors of the Company to fulfill its fiduciary obligations. The Escrow Agent
may act in reliance upon any instrument or signature believed by it to be
genuine and may assume that any person purporting to give receipt or advice or
make any statement or execute any document in connection with the provisions
hereof has been duly authorized to do so.
(j) The Company shall hold the Escrow Agent and its agents harmless from,
and indemnify and reimburse the Escrow Agent and its agents for all claims,
liability, loss and expense (including reasonable out-of-pocket and incidental
expenses and legal fees), incurred by the Escrow Agent or them in connection
with the Escrow Agent or their acting under this Agreement, provided that the
Escrow Agent or they, as the case may be, have not acted with gross negligence
or willful misconduct with respect to the events resulting in such claims,
liability, loss, and expense.
(k) The Company acknowledges and agree that, except as otherwise provided
in this Section 6(k), the Escrow Agent shall not be responsible for taking any
steps, including without limitation, the filing of forms or reports, or
withholding of any amounts in connection with any tax obligations of the Company
or any other party in connection with the Escrow Assets; provided, however, that
the Escrow Agent shall be entitled to take any action such as withholding, that
it deems appropriate to ensure compliance with its obligations under any
applicable tax laws.
(l) The Escrow Agent does not have any interest in the Escrow Assets
deposited hereunder but is serving as escrow holder only and having only
possession thereof. The Company shall pay or reimburse the Escrow Agent upon
request for any
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transfer taxes or other taxes relating to the Escrow Assets incurred in
connection herewith and shall indemnify and hold harmless the Escrow Agent from
any amounts that it is obligated to pay in the way of such taxes. This paragraph
shall survive notwithstanding any termination of this Escrow Agreement or the
resignation of the Escrow Agent.
(m) The Escrow Agent makes no representation as to the validity, value,
genuineness or the collectability of any security or other document or
instrument held by or delivered to it.
(n) The Escrow Agent shall not be called upon to advise any party as to the
wisdom in selling or retaining or taking or refraining from any action with
respect to any securities or other property deposited hereunder.
(o) No printed or other matter in any language (including without
limitation prospectuses, notices, reports and promotional material) which
mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow
Agent shall be issued by the other parties hereto or on such parties, behalf
unless the Escrow Agent shall first have given its specific written consent
thereto. Notwithstanding the foregoing sentence, the Escrow Agent hereby
specifically consents to the use of its name as Escrow Agent as necessary to
effectuate the Company's public offering and a business combination of the
Company.
5. Instructions: Fund Transfers.
(a) The Escrow Agent is authorized to rely and act upon all instructions
given or purported to be given by one or more officers, employees or agents of
the Company (i) authorized by or in accordance with a corporate resolution
delivered to the Escrow Agent or (ii) described as authorized in a certificate
delivered to the Escrow Agent by the appropriate Secretary or Assistant
Secretary or similar officer (each such officer, employee or agent or
combination of officers, employees and agents authorized pursuant to clause (i)
or described pursuant to clause (ii) of this Section 5(a) is hereinafter
referred to as an "Authorized Officer"). (The term "instructions" includes,
without limitation, instructions to sell, assign, transfer, deliver, purchase or
receive for the Escrow Account any and all stocks, bonds and other securities or
to transfer all or any portion of the Escrow Assets.) The Escrow Agent may also
rely and act upon instructions when bearing or
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purporting to bear the signature or facsimile signature of any of the
individuals designated by an Authorized Officer regardless of by whom or by what
means the actual or purported facsimile signature or signatures thereon may have
been affixed thereto if such facsimile signature or signatures resemble the
facsimile specimen or specimens from time to time furnished to the Escrow Agent
by any of such Authorized Officers, Secretary or an Assistant Secretary or
similar officer). In addition, and subject to subsection 7(b) hereof, the Escrow
Agent may rely and act upon instructions received by telephone, telex, TXW
facsimile transmission, bank wire or other teleprocess acceptable to it which
the Escrow Agent believes in good faith to have been given by an Authorized
Officer or which are transmitted with proper testing or authentication pursuant
to terms and conditions which the Escrow Agent may specify. The Escrow Agent
shall incur no liability to the Company or otherwise for having acted in
accordance with instructions on which it is authorized to rely pursuant to the
provisions hereof. Any instructions delivered to the Escrow Agent by telephone
shall promptly thereafter be confirmed in writing by an Authorized Officer but
the Escrow Agent shall incur no liability for a failure to send such
confirmation in writing, the failure of any such written confirmation to conform
to the telephone instruction which it received, the failure of any such written
confirmation to be signed or properly signed, or its failure to produce such
confirmation at any subsequent time. The Escrow Agent shall incur no liability
for refraining from acting upon any instructions which for any reason it, in
good faith, is unable to verify to its own satisfaction. Unless otherwise
expressly provided, all authorizations and instructions shall continue in full
force and effect until canceled or superseded by subsequent authorizations or
instructions received by the Escrow Agent's safekeeping account administrator.
The Escrow Agent's authorization to rely and act upon instructions pursuant to
this paragraph shall be in addition to, and shall not limit, any other
authorization which the Company may give to it hereunder.
(b) With respect to written or telephonic instructions or instructions sent
by facsimile transmission to transfer securities from the Escrow Account in
accordance herewith (such instructions hereinafter referred to as "Transfer
Instructions"), the security procedure agreed upon for verifying the
authenticity of Transfer Instructions is a callback by the Escrow Agent to any
of the persons designated below, whether or not any such person has issued such
Transfer Instruction. (It is recommended that the persons designated below not
be persons who generally issue Transfer Instructions; whenever possible, the
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Escrow Agent will endeavor to call someone other than the issuer of the Transfer
Instructions).
With respect to Transfer Instructions given by the Company pursuant to its
authority under this Agreement:
Name/Title Telephone No.
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Judith Haselton, President (212) 678-6231
Richard L. Campbell,Secretary (810) 220-1220
Alternatively, at the Escrow Agent's option, the callback may be made to
any person designated in the certified resolutions or other certificates or
documentation furnished to it by a party in connection with the Escrow Account
as authorized to issue Transfer Instructions or otherwise transact business with
respect to the Escrow Account for that party. The Company shall implement any
other authentication method or procedure or security device required by the
Escrow Agent at any time or from time to time.
6. Stockholder Redemption. In the event a stockholder exercises his or her
redemption right upon the Business Combination of the Company, following the
return of the funds to said stockholder from the Funds Escrow created of even
date herewith between the Company and the Escorw Agent, the Shares which are the
subject of the redemption shall be cancelled.
7. Resignation or Removal of Escrow Agent.
(a) The Escrow Agent may resign at any time by giving written notice to the
Company. The Company may remove the Escrow Agent upon written notice to the
Escrow Agent. Such resignation or removal shall take effect upon delivery of the
Escrow Assets to a successor escrow agent designated in writing by the Company,
and the Escrow Agent shall thereupon be discharged from all obligations under
this Agreement, and shall have no further duties or responsibilities in
connection herewith. The obligations of the Company to the Escrow Agent and the
rights of the Escrow Agent under Sections 5, 6(c), and 6(h) hereof shall survive
termination of this Agreement or the resignation or removal of the Escrow Agent.
(b) In the event that the Escrow Agent submits a notice of resignation, its
only duty, until a successor Escrow Agent shall have been appointed and shall
have accepted such
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appointment, shall be to safekeep the Escrow Assets, and hold, invest and
dispose of the Escrow Assets in accordance with this Agreement, until receipt of
a designation of successor Escrow Agent or a joint written disposition
instrument by the other parties hereto or a Final Order of a court of competent
jurisdiction, but without regard to any notices, requests, instructions, demands
or the like received by it from the other parties hereto after such notice shall
have been given, unless the same is a direction that the Escrow Assets be paid
or delivered in its entirety out of the Escrow Account. The Escrow Agent, upon
submission of its resignation in accordance with this subparagraph (b) may
deposit the Escrow Assets with a court of competent jurisdiction if the Escrow
Agent deems such action advisable. The resignation of the Escrow Agent will take
effect on the earlier of (a) the appointment of a successor (including a court
of competent jurisdiction) or (b) the day which is 30 days after the date of
delivery of its written notice of resignation to the other parties hereto. If,
at the time the Escrow Agent has not received a designation of a successor
Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to
safe-keep the Escrow Assets until receipt of a designation of a successor Escrow
Agent or a joint written disposition instrument by the other parties hereto or a
final order of a court of competent jurisdiction.
8. Notices. Unless expressly provided herein to the contrary, notices
hereunder shall be in writing, and delivered by telecopier, overnight express
mail, first-class postage prepaid, delivered personally or by receipted courier
service. All such notices which are mailed shall be deemed delivered upon
receipt if the addressee is the Escrow Agent, but shall be deemed delivered upon
mailing if otherwise, all such notices shall be addressed as follows (or to such
other address as any party hereto may from time to time designate by notice duly
given in accordance with this paragraph):
(a) If to the Company, to:
SB Merger Corp.
305 East Grand River
Brighton, Michigan 48116
Attention: Judith Haselton, President
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If to the Escrow Agent, to:
Continental Stock Transfer & Trust Co.
2 Broadway 19th floor
New York, New York 10004
Attn: Steve Nelson
9. Miscellaneous.
(a) Choice of Law and Jurisdiction. This Agreement shall be governed by and
construed in accordance with the law of the State of New York applicable to
agreements made and to be performed in New York. The parties to this Agreement
hereby agree that jurisdiction over such parties and over the subject matter of
any action or proceeding arising under this Agreement may be exercised by a
competent Court of the State of New York sitting in New York City or by a United
States Court sitting in the Southern District of New York, exclusively. The
parties agree that delivery or mailing of any process or other papers in the
manner provided herein, or in such other manner as may be permitted by law,
shall be valid and sufficient service thereof.
(b) Benefits and Assignment. Nothing in this Agreement, expressed or
implied, shall give or be construed to give any person, firm or corporation,
other than the parties hereto and their successors and assigns, any legal claim
under any covenant, condition or provision hereof; all the covenants,
conditions, and provisions contained in this Agreement being for the sole
benefit of the parties hereto and their successors and assigns. No party may
assign any of its rights or obligations under this Agreement without (i) the
written consent of all the other parties, which consent may be withheld in the
sole discretion of the party whose consent is sought and (ii) the written
agreement of the transferee that it will be bound by the provisions of this
Agreement.
(c) Counterparts. This Agreement may be executed in several counterparts,
each one of which shall constitute an original, and all collectively shall
constitute but one instrument.
(d) Amendment and Waiver. This Agreement may be modified only by a written
amendment signed by all the parties hereto, and no waiver of any provision
hereof shall be effective unless expressed in a writing signed by the party to
be charged.
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(e) Headings. The headings of the sections hereof are included for
convenience of reference only and do not form part of this Agreement.
(f) Entire Agreement. This Agreement contains the complete agreement of the
parties with respect to its subject matter and supersedes and replaces any
previously made proposals, representations, warranties or agreements with
respect thereto by any of the parties hereto.
(g) Separability. Any provisions of this Agreement which may be determined
by competent authority to be prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such prohibition
or enforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
10. Additional Documentation. This Agreement shall not become effective
(and the Escrow Agent shall have not responsibility hereunder except to return
the Escrow Assets to the Company) until the Escrow Agent shall have received
from the Company the following:
(i) Certified resolutions of its board of directors authorizing the
making and performance of this Agreement; and
(ii) A certificate as to the names and specimen signatures of its
officers or representatives authorized to sign the Agreement and
notices, instructions and other communications hereunder.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
date first written above.
SB Merger CORP.
By:/s/ Richard L. Campbell
-------------------------------
Name: Richard L. Campbell
Title: Secretary
Agreed and accepted:
CONTINENTAL STOCK TRANSFER & TRUST COMPANY
as Escrow Agent
By: /s/ Michael J. Nelson
------------------------
Name: Michael J. Nelson
Title: President
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EXHIBIT A to ESCROW AGREEMENT
Escrow Assets
Up to One Hundred Twenty-Five Thousand (125,000) Shares of Common Stock of the
Company
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EXHIBIT B to ESCROW AGREEMENT
INTENTIONALLY OMITTED
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EXHIBIT C to ESCROW AGREEMENT
Investment Instructions
Intentionally Left Blank
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EXHIBIT D to ESCROW AGREEMENT
Disbursement Instruction
1. Release of Escrow Assets to the Company. The Escrow Agent shall release
the Escrow Assets to the Shareholders upon receipt by the Escrow Agent
of:
(a) Written notice from the Company that the Company has completed a
transaction or series of transactions for the acquisition or
acquistions of a business or businesses or assets for which the
fair value(as determined by the Company, based upon standards
generally accepted by the financial community, including
revenues, earnings, cash flow, and book value) exceeds eighty
percent of the net value of the assets of the Company, as
required by the Registration Statement; and
(b) An opinion of counsel of the Company, reasonably acceptable to
the Escrow Agent, that:
(i) A Business Combination was approved by a vote of a
majority of the shares of Common Stock of the Company,
as required by the Registration Statement;
(ii) Not more than twenty percent of the shareholders of the
Company have elected to redeem their Common Stock, as
required by the Registration Statement;
(iii) All other actions required to be performed by the
Company for the release of the Escrow Assets have been
met.
2. Distribution of Escrow Assets back to the Company. The Escrow Agent
shall disburse the Escrow Assets back to the Company if:
(a) The Company delivers written notice to the Escrow Agent that all
of the Escrow Assets should be returned to it as a result of the
holders of record of the Company's Common Stock sold in the
Offering having not approved a
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Business Combination and following return to such shareholders
of the funds also held in escrow by the Escrow Agent; or
(b) The Company delivers written notice to the Escrow Agent that
part of the Escrow Assets should be cancelled and returned to
the Company as a result of less than 20% of the Company's
holders of Common Stock sold in the Offering electing to have
their shares redeemed in accordance with the terms set forth in
the Registration Statement.
3. Method of Release of Escrow Assets to the Company. Upon the occurrence
of receipt by the Escrow Agent of the written notice required paragraph
1 above, the Escrow Agent shall delivery in customary fashion the Escrow
Assets to the shareholders in accordance with the shareholder list held
by the Escrow Agent.
4. Method of Distribution of Escrow Assets to Stockholders. Upon the
occurrence of either of the events specified in Section 2(a) or 2(b)
above, the Escrow Agent shall distribute the Escrow Assets to the
Company and/or the holders of record of the Company Common Stock sold in
the offering by mail in accordance with and to the address specified in
the books and records of the Company. The written notice required by
Section 2 (a) or 2(b), as the case may be, shall include the name and
address of each such holder, together with the percentage of the Escrow
Assets to be distributed thereto.
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EXHIBIT E to ESCROW AGREEMENT
Fee Schedule
One Thousand ($1,000.00) Dollars Escrow Agent fee to CONTINENTAL STOCK TRANSFER
& TRUST COMPANY to be paid at Closing.
