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FILED PURSUANT TO RULE 424(b)(3)
FILE NO. 333-40672
Yorktownuniversity.com, Inc.
Supplement dated November 9, 2000 to
Prospectus dated November 1, 2000
Execution of Escrow Agreement
Attached as new Annex B to our prospectus is the Escrow Agreement between
Yorktownuniversity.com and Firstar Bank, N.A., as escrow agent, in the form
executed by the parties.
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Annex B
ESCROW AGREEMENT
ESCROW AGREEMENT made this 1st day of November, 2000 by and between
Yorktownuniversity.com, Inc. a Virginia corporation ("Yorktownuniversity.com"),
and Firstar Bank, N.A., a national banking association ("Bank").
WHEREAS, Yorktownuniversity.com has offered to sell up to 275,000 newly
issued shares ("Shares") of its common stock, at an offering price of $10.00 per
share (the "Offering");
WHEREAS, the Shares are registered pursuant to a Form SB-1 Registration
Statement (Registration No. 333-40672) filed under the Securities Act of 1933,
as amended;
WHEREAS, the Prospectus provides that Yorktownuniversity.com offer to
prospective investors shares for the period beginning on November 1, 2000
through February 28, 2001, subject to Yorktownuniversity.com's right to extend
the Offering;
WHEREAS, the terms of the offering described in Yorktownuniversity.com's
Prospectus permit subscriptions to be accepted and offering proceeds released
when subscriptions for at least 125,000 shares have been received and,
thereafter, on a weekly or other periodic basis, from and after the date on
which the Registration Statement is declared effective by the Securities and
Exchange Commission until February 28, 2001, subject to extension up to May 31,
2001;
WHEREAS, the Prospectus provides that Yorktownuniversity.com will deposit
all subscription funds received in an interest bearing escrow account with Bank,
as escrow agent; Yorktownuniversity.com may elect to accept or reject any or all
of the subscriptions in the Offering; and
WHEREAS, the parties wish to provide for the terms of a deposit account to
be established by Yorktownuniversity.com with Bank for the deposit of
subscriptions and the terms of withdrawal thereof.
NOW, THEREFORE, in consideration of the mutual promises herein made and for
other good and valuable consideration, the parties hereto hereby agree as
follows:
FIRST: Yorktownuniversity.com shall deliver a certificate signed by
it to Bank setting forth the effective date of the Offering, immediately after
such effective date.
SECOND: All funds received from subscribers for the Shares will be
delivered by Yorktownuniversity.com to Bank at 425 Walnut Street, M/L CN-WN-
06CT, Cincinnati, Ohio 45202, Attention: Brian George, for deposit into a
special interest bearing account (the "Account"), together with the name,
address, social security number of each such subscriber, and the name(s) in
which the Shares are to be registered. Yorktownuniversity.com agrees that where
Shares are to be paid for by check, Yorktownuniversity.com will deposit such
check into the Account within one business day following receipt by
Yorktownuniversity.com of a subscription.
THIRD: Bank will hold all funds received by it pursuant to the terms
of this Agreement in the Account. In no event shall funds in the account be
subject to claims by creditors of Yorktownuniversity.com, its affiliates or
associates until the funds have been withdrawn from the Account and disbursed to
Yorktownuniversity.com in accordance with the terms of this Agreement. Funds
may be withdrawn from the Account and disbursed only as follows:
A. From and after the date that subscriptions acceptable to
Yorktownuniversity.com for at least 125,000 Shares are received by the Bank
prior to the termination of the Offering and, thereafter on a weekly or other
periodic basis, Yorktownuniversity.com shall deliver to the Bank a certificate
(the "Closing Certificate") stating which of the subscriptions in the Offering
have been accepted or rejected.
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B. The Bank shall deliver to Yorktownuniversity.com, with interest,
all funds received by it for subscriptions in the Offering (not previously
released to Yorktownuniversity.com or returned to subscribers) which
Yorktownuniversity.com shall have certified as being accepted and shall return
to subscribers, with pro rata interest and without any deduction for expenses,
all funds received by it for subscriptions which Yorktownuniversity.com shall
have certified as not being accepted.
C. Bank shall copy and forward all Subscription Agreements to
Yorktownuniversity.com daily.
FOURTH: Bank shall invest all funds received from subscribers in
short term, highly liquid, interest-bearing investments.
FIFTH:
A. Bank is acting solely as depository of the funds and not as a
trustee or fiduciary under this Agreement. Bank is not a party to, nor has it
reviewed or approved any agreement other than this Agreement, nor any other
matters of background related to this Agreement.
B. Bank shall not be liable for any damages, or have any obligations
other than the duties prescribed herein in carrying out or executing the
purposes and intent of this Agreement; provided, however, that nothing herein
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contained shall relieve Bank from liability arising out of its own willful
misconduct or gross negligence. Bank's duties and obligations under this
Agreement shall be entirely administrative and not discretionary.
C. Bank shall not be liable to any party hereto or to any third party
as a result of any action or omission taken or made by Bank, except for
liability arising out of Bank's own willful misconduct or gross negligence.
Yorktownuniversity.com will, at its expense, indemnify Bank, hold Bank harmless,
and reimburse Bank, and its officers, directors, employees and representatives
from, against and for, any and all liabilities, costs, fees and expenses
(including reasonable attorney's fees) Bank or any of them may suffer or incur
by reason the execution and performance of this Agreement by Bank, including any
litigation relating to this Agreement instituted by or against Bank, to which it
is a party or in which Bank or any of its officers, directors, employees or
representatives are required to appear as a witness. If any legal questions
arise concerning Bank's duties and obligations hereunder, Bank may consult its
counsel at Yorktownuniversity.com's expense and rely without liability upon
written opinions given to it by such counsel.
D. Bank shall be protected in acting upon any written notice,
request, waiver, consent, authorization, or other paper or document which Bank,
in good faith, believes to be genuine and what it purports to be.
E. Bank shall not be bound in any way by any contract or agreement
between the other parties hereto, whether or not it has knowledge of any such
contract or agreement or of its terms or conditions.
F. This Agreement shall be terminated upon withdrawal and
disbursement of all of funds held in the Account, except that Articles FIFTH and
SEVENTH shall survive termination of this Agreement.
G. Notwithstanding anything to the contrary contained in this
Agreement, it is agreed that Bank shall in no case or event be liable for the
failure of any of the conditions of this Agreement or damage caused by the
exercise of its discretion in any particular manner, or for any reason, except
gross negligence or willful misconduct with reference to the Account, and Bank
shall not be liable or responsible for its failure to ascertain the terms or
conditions, or to comply with any of the provisions, of any agreement, contract
or other document delivered to it or referred to herein, nor shall Bank be
liable or responsible for forgeries or false personation.
H. If any controversy arises between the parties hereto or with any
third person with respect to the subject matter of this Agreement, its terms or
conditions, Bank shall not be required to determine the same or take any action
in the premises, but Bank may await the settlement of any such controversy by
final appropriate legal
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proceedings or otherwise as Bank may require, or Bank may institute legal
proceedings to determine any controversy, and in any such event Bank shall not
be liable for interest or damages.
I. It is agreed that Bank's duties are only such as are herein
specifically provided, being purely ministerial in nature, and that Bank shall
incur no liability whatsoever except for its willful misconduct or gross
negligence.
J. Bank may, but shall not be required to, institute legal
proceedings of any kind. Bank shall have no responsibility for the genuineness
or validity of any document or other item deposited with it, and Bank shall be
fully protected in acting in accordance with any written instructions given to
it hereunder and believed by it to have been signed or given by the proper
parties.
K. Bank undertakes to perform such duties and only such duties as are
specifically set forth in this Agreement, and no implied covenants or
obligations shall be read into this Agreement against Bank.
L. No provision of this Agreement shall require Bank to expend or
risk its own funds or otherwise incur any financial liability in the performance
of any of its duties hereunder, or in the exercise of any of its rights or
powers, if there shall be reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
M. Bank may consult with counsel and the written advice of such
counsel or any opinion of counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon.
N. Bank shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture or
other paper or document, but Bank in its discretion may make such further
inquiry or investigation into such facts or matters as it may see fit.
O. The recitals contained herein shall be taken as the statements of
Yorktownuniversity.com, and Bank assumes no responsibility for their
correctness. Bank makes no representations as to the validity or sufficiency of
this Agreement. Bank shall not be accountable for the use or application by
Yorktownuniversity.com of the proceeds of the Offering.
SIXTH: Notwithstanding anything to the contrary contained in this
Agreement, Bank (a) may resign from its duties under this Agreement by giving 30
days' prior written notice of such resignation to the other parties hereto and
(b) may be discharged from its duties under this Agreement upon the receipt from
each of the other parties hereto of 30 days' prior written notice of such
discharge. Upon the resignation or discharge of Bank, Yorktownuniversity.com
shall retain a substitute financial institution to perform the functions
theretofore performed by Bank under this Escrow Agreement.
SEVENTH:
A. Yorktownuniversity.com agrees to pay to Bank reasonable expenses,
including counsel fees, incurred in acting hereunder.
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B. It is understood that fees (if any) and usual charges agreed upon
for Bank's services hereunder shall be considered compensation for its ordinary
services as contemplated by this Agreement and in the event the conditions of
this Agreement are not promptly fulfilled or that Bank renders any service
hereunder not provided for in this Agreement, or that there is any modification
hereof, or that any controversy arises hereunder or that Bank institutes, is
made a party to, or intervenes in, any litigation pertaining to this Agreement
or the subject matter thereof, Bank and its legal counsel shall be reasonably
compensated for such extraordinary services and reimbursed for all costs and
expenses occasioned by such default, delay, controversy or litigation and Bank
shall have the right to retain all documents and/or other things of value at
any time held by it hereunder until such compensation, fees, costs and expenses
shall be paid. Yorktownuniversity.com hereby promises to pay the foregoing sums
upon demand.
EIGHTH: If, after the receipt by Bank of any check or instrument of
any party hereto, Bank shall inform Yorktownuniversity.com that such check or
instrument has been entered for collection by it hereunder and is uncollectable
and payment of the funds represented by such check or instrument has been made
pursuant to the terms of this Agreement, then Yorktownuniversity.com shall
immediately reimburse Bank for such payment, and Bank shall deliver the returned
check or instrument to Yorktownuniversity.com provided, however, that nothing
contained herein shall require Bank to invest or pay out funds which it has
reason to believe are uncollectable.
NINTH: All distributions by Bank to subscribers pursuant to this
Agreement shall be made with accrued interest by check, payable to the order of
each respective subscriber and shall be mailed directly to the subscribers by
first class mail. All payments by Bank to Yorktownuniversity.com shall be made
in immediately available funds, if and to the extent that the funds on deposit
with Bank are immediately available at the time of such payment.
TENTH: Bank and Yorktownuniversity.com agree that the Arizona
Corporation Commission, Securities Division, as the Administrator of the states
participating in a coordinated equity review of the Offering, shall have
permission to inspect and make copies of the records of the Bank relating to the
Account at any reasonable time during the regular business hours of the Bank
wherever the records are located.
ELEVENTH: The rights and obligations of each party under this
Agreement may not be assigned without the prior written consent of all other
parties. This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns.
TWELFTH: This Agreement contains all the terms agreed upon by the
parties with respect to the subject matter hereof. This Agreement may be
amended only by a written instrument signed by the party against whom
enforcement of any waiver, change, modification, extension or discharge is
sought.
THIRTEENTH: All notices, communications and instructions required or
desired to be given under the Escrow Agreement shall be in writing and shall be
deemed to be fully given if sent by certified mail, return receipt requested, to
the following addresses:
To: Firstar Bank, N.A.
Firstar Bank, N.A.
425 Walnut Street
M/L CN-WN-06CT
Cincinnati, OH 45202
Attention: Brian George
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To: Yorktownuniversity.com, Inc.
Yorktownuniversity.com, Inc.
P.O. Box 653
Yorktown, VA 23690
Attention: Richard J. Bishirjian, President and
Chief Executive Officer
or to such other address and to the attention of such other person as any of the
above may have furnished to the other parties by certified mail, return receipt
requested.
FOURTEENTH: Yorktownuniversity.com shall deliver to Bank a
certificate of the secretary of Yorktownuniversity.com as (a) the authority of
certain officers thereof to act on behalf of Yorktownuniversity.com in
connection with this Agreement and (b) the incumbency and signatures of such
officers, and Bank may act in reliance on such certificate upon the instructions
or directions given to it in accordance with the terms of this Agreement by
Yorktownuniversity.com, through a person authorized so to act in such
certificate.
FIFTEENTH: This Agreement shall be deemed to be an agreement made
under the laws of the State of Ohio and for all purposes shall be construed and
enforced in accordance with and governed by the laws of such State.
SIXTEENTH: This Agreement may be executed simultaneously in two or
more counterparts, each of which shall be deemed an original, and all such
counterparts shall constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
Yorktownuniversity.com, Inc.
By: /s/ Richard J. Bishirjian
Title: President and CEO
Firstar Bank, N.A.
By: /s/ Keith A. Maurmeier
Title: Vice President and Trust Officer
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