ESCROW AGREEMENT FOR
LASIK AMERICA, INC.
-------------------
THIS ESCROW AGREEMENT is made and entered into as of the ____
November, 2001, by and between LASIK America, Inc., a Nevada corporation
("CUSTOMER") and Wells Fargo Bank, National Association, (the "Escrow Agent").
WHEREAS, CUSTOMER intends to publicly offer up to 425,000 units
of the CUSTOMER's registered securities (the "Units"), with each Unit consisting
of one share of Common Stock, $.001 par value per share and one Common Stock
Purchase Warrant entitling the warrant holder to purchase one additional share
of Common Stock (collectively referred to as the "Securities"), for which each
subscriber will pay the public offering price of $6.10 for each Unit; and
WHEREAS, it has been determined that the proceeds to be received
from the offering should be placed in escrow until such time as all conditions
of the offering are satisfied and until the CUSTOMER formally accepts the
written subscriptions tendered by purchasers of the Units;
WHEREAS, the Escrow Agent is willing to accept appointment as
Escrow Agent for only the expressed duties outlined herein.
NOW, THEREFORE, in consideration of the premises and agreements
set forth herein, the parties hereto agree as follows:
1. Proceeds to be Escrowed. All funds received by CUSTOMER, or
-----------------------
any selling agent acting on behalf of the CUSTOMER, in payment for the
Securities will be delivered to the Escrow Agent within three (3) business days
following the day upon which such proceeds are received by CUSTOMER and shall be
retained in escrow by the Escrow Agent and invested as stated below. During the
term of this Agreement, CUSTOMER shall cause all checks received by and made
payable to it in payment for such Securities to be endorsed in favor of the
CUSTOMER Corporation Escrow Account.
In the event that any checks deposited in the escrow accounts
prove uncollectable after the funds represented thereby have been released by
the Escrow Agent to CUSTOMER, then CUSTOMER shall promptly reimburse the Escrow
Agent for any and all cost incurred for such, upon request, and the Escrow Agent
shall deliver the returned checks to CUSTOMER.
1
2. Identity of Subscribers. CUSTOMER shall furnish to the Escrow
-----------------------
Agent with each delivery of funds, as provided in paragraph 1 hereof, a list of
the persons who have paid money for the purchase of Securities showing the name,
address, amount of Securities subscribed for and the amount of money paid. All
proceeds so deposited shall remain the property of the subscriber and shall not
be subject to any liens or charges by CUSTOMER, or the Escrow Agent, or
judgments or creditors' claims against CUSTOMER, until released to CUSTOMER as
hereinafter provided.
3. Disbursement of Funds. From time to time, and at the end of
---------------------
the third business day following the Termination Date (as defined in paragraph 4
hereof), the Escrow Agent shall notify CUSTOMER of the amount of the funds
received hereunder. As payments are obtained for the Securities from subscribers
at any time prior to the Termination Date, then the Escrow Agent shall pay out
the escrowed funds and all earnings thereon when and as directed by CUSTOMER,
less all offsets permitted by that certain Underwriting Agreement entered into
by and between the CUSTOMER and West America Securities Corp. ("Underwriting
Agreement"), the contents of which are hereby incorporated by reference and made
expressly conditional on the disbursement of funds pursuant to this Agreement.
If any funds deposited to the Escrow Account by any subscriber are not accepted
by the CUSTOMER within three business days after the deposit into the escrow
account, the Escrow Agent shall, within a reasonable time following the
Termination Date, but in no event more than ten (10) business days days after
the Termination Date, refund to each rejected subscriber at the address
appearing on the list of subscribers, or at such other address as shall be
furnished to the Escrow Agent by the subscriber in writing, all sums paid by the
subscriber pursuant to his subscription agreement for Securities, without any
offsets or debits and without accrual of interest earned on such funds in the
escrow account, and shall then notify CUSTOMER in writing of such refunds.
4. Term of Escrow. The "Termination Date" shall be January 31,
--------------
2002 or the date the Escrow Agent received written notice from CUSTOMER that it
is abandoning the sale of the Securities, subject to Section 3. In accordance
with the terms of the Underwriting Agreement, CUSTOMER may extend the
termination date 60 days upon written notice to the Escrow Agent. In all events
this escrow shall terminate upon the one year anniversary from the date of this
agreement.
5. Duty and Liability of the Escrow Agent. The sole duty of the
--------------------------------------
Escrow Agent, other than as herein specified, shall be to receive said funds and
hold them subject to release, in accordance herewith, and the Escrow Agent shall
be under no duty to determine whether CUSTOMER is complying with requirements of
this Agreement in tendering to the Escrow Agent said proceeds of the sale of the
Securities. The Escrow Agent may conclusively rely upon and shall be protected
in acting upon any statement, certificate, notice, request, consent, order or
other document believed by it to be genuine and to have been signed or presented
by the proper party or parties. The Escrow Agent shall have no duty or liability
to verify any such statement, certificate, notice, request, consent, order or
2
other document, and its sole responsibility shall be to act only as expressly
set forth in this Agreement. The Escrow Agent shall be under no obligation to
institute or defend any action, suit or proceeding in connection with this
Agreement unless first indemnified to its satisfaction. The Escrow Agent may
consult counsel in respect of any question arising under this Agreement and the
Escrow Agent shall not be liable for any action taken or omitted in good faith
upon advice of such counsel.
6. Escrow Agent's Fee. The Escrow Agent shall be entitled to
------------------
compensation for its services as stated in the fee schedule attached hereto as
Exhibit A, which compensation shall be paid by CUSTOMER. The fee agreed upon for
the services rendered hereunder is intended as full compensation for the Escrow
Agent's services as contemplated by this Agreement; provided, however, that in
the event that the conditions for the disbursement of funds under this Agreement
are not fulfilled, or the Escrow Agent renders any material service not
contemplated in this Agreement, or there is any assignment of interest in the
subject matter of this Agreement, or any material modification hereof, or if any
material controversy arises hereunder, or the Escrow Agent is made a party to
any litigation pertaining to this Agreement, or the subject matter hereof, then
the Escrow Agent shall be reasonably compensated for such extraordinary services
and reimbursed for all costs and expenses, including reasonable attorney's fees,
occasioned by any delay, controversy, litigation or event, and the same shall be
recoverable from CUSTOMER.
7. Investment of Proceeds. All funds held by the Escrow Agent
----------------------
pursuant to this Agreement shall constitute trust property for the purposes for
which they are held. The Escrow Agent shall invest all funds received from
subscribers in the Wells Fargo Funds ____ , a money market mutual fund.
8. Tax Reporting The parties hereto agree that, for tax
-------------
reporting purposes, all interest or other taxable income earned from the
investment of the Escrow Funds in any tax year shall be taxable to the CUSTOMER.
CUSTOMER shall, within 30 days after the date hereof, provide the
Escrow Agent with certified tax identification numbers by furnishing appropriate
forms W-9 or W-8 and other forms and documents that the Escrow Agent may
reasonably request. The parties understand that if such tax reporting
documentation is not so certified to the Escrow Agent, the Escrow Agent may be
required by the Internal Revenue Code of 1986, as amended, to withhold a portion
of any interest or other income earned on the investment of monies or other
property held by the Escrow Agent pursuant to this Agreement.
To the extent that the Escrow Agent becomes liable for the payment of
any taxes in respect of income derived from the investment of funds held or
payments made hereunder, the Escrow Agent shall satisfy such liability to the
extent possible from the Escrow Funds. The parties agree to indemnify and hold
the Escrow Agent harmless from and against any taxes, additions for late
payment, interest, penalties and other expenses that may be assessed against the
Escrow Agent on or with respect to any payment or other activities under this
Agreement unless any such tax, addition for late payment, interest, penalties
and other expenses shall arise out of or be caused by the actions of, or failure
to act by, the Escrow Agent.
3
9. Issuance of Certificates. Until the terms of this Agreement
------------------------
with respect to the Securities have been met and the funds hereunder received
from subscriptions for Securities have been released to CUSTOMER, CUSTOMER may
not issue any certificates or other evidence of Securities, except subscription
agreements.
10. Notices. All notices, requests, demands, and other
-------
communications under this Agreement shall be in writing and shall be deemed to
have been duly given (a) on the date of service if served personally on the
party to whom notice is to be given, (b) on the day of transmission if sent by
facsimile transmission to the facsimile number given below, and telephonic
confirmation of receipt is obtained promptly after completion of transmission,
(c) on the day after delivery to Federal Express or similar overnight courier or
the Express Mail service maintained by the United States Postal Service, or (d)
on the fifth day after mailing, if mailed to the party to whom notice is to be
given, by first class mail, registered or certified, postage prepaid, and
properly addressed, return receipt requested, to the party as follows:
If to CUSTOMER:
LASIK America, Inc.
6646 Indian School Road, N.E.
Albuquerque, NM 87110
Attn: Dr. Howard P. Silverman, CEO
Fax # 505-837-9111
If to Escrow Agent:
Wells Fargo Bank, N.A.
Corporate Trust Department
Attn: Kimberly Vann
707 Wilshire Blvd., 17th Floor
Los Angeles, CA 90017
Fax 213-614-3355
Any party may change its address for purposes of this paragraph by
giving the other party written notice of the new address in the manner set forth
above.
11. Indemnification of Escrow Agent: CUSTOMER hereby indemnifies
-------------------------------
and holds harmless the Escrow Agent from and against, any and all loss,
liability, cost, damage and expense, including, without limitation, reasonable
counsel fees, which the Escrow Agent may suffer or incur by reason of any
action, claim or proceeding brought against the Escrow Agent arising out of or
relating in any way to this Agreement or any transaction to which this Agreement
relates unless such action, claim or proceeding is the result of the willful
misconduct of the Escrow Agent. The Escrow Agent may consult counsel in respect
4
of any question arising under the Impoundment Agreement and the Escrow Agent
shall not be liable for any acting taken or omitted in good faith upon advice of
such counsel.
12. Successors and Assigns. Except as otherwise provided in this
----------------------
Agreement, no party hereto shall assign this Agreement or any rights or
obligations hereunder without the prior written consent to the other parties
hereto and any such attempted assignment without such prior written consent
shall be void and of no force and effect. This Agreement shall inure to the
benefit of and shall be binding upon the successors and permitted assigns of the
parties hereto.
13. Governing Law; Jurisdiction. This Agreement shall be
---------------------------
construed, performed, and enforced in accordance with, and governed by, the
internal laws of the State of Minnesota, without giving effect to the principles
of conflicts of laws thereof. Each party hereby consents to the personal
jurisdiction and venue of any United States District Court for the District of
Minnesota located in Hennepin County, Minnesota.
14. Severability. In the event that any part of this Agreement
------------
is declared by any court or other judicial or administrative body to be null,
void, or unenforceable, said provision shall survive to the extent it is not so
declared, and all of the other provisions of this Agreement shall remain in full
force and effect.
15. Amendments; Waivers. This Agreement may be amended or
-------------------
modified, and any of the terms, covenants, representations, warranties, or
conditions hereof may be waived, only by a written instrument executed by the
parties hereto, or in the case of a waiver, by the party waiving compliance. Any
waiver by any party of any condition, or of the breach of any provision, term,
covenant, representation, or warranty contained in this Agreement, in any one or
more instances, shall not be deemed to be nor construed as further or continuing
waiver of any such condition, or of the breach of any other provision, term,
covenant, representation, or warranty of this Agreement.
16. Entire Agreement. This Agreement contains the entire
----------------
understanding among the parties hereto with respect to the escrow contemplated
hereby and supersedes and replaces all prior and contemporaneous agreements and
understandings, oral or written, with regard to such escrow.
17. Section Headings. The section headings in this Agreement
----------------
are for reference purposes only and shall not affect the meaning or
interpretation of this Agreement.
18. Counterparts. This agreement may be executed in
------------
counterparts, each of which shall be deemed an original, but all of which shall
constitute the same instrument.
5
19. Time of Essence. Time is of the essence of this Agreement.
---------------
20. Resignation. Escrow Agent may resign upon 30 days advance
written notice to CUSTOMER. If a successor escrow agent is not appointed within
the 30-day period following such notice, Escrow Agent may petition any court of
competent jurisdiction to name a successor escrow agent.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed the day and year first set forth above.
LASIK America, Inc.
By:
----------------------------------------------------
President and Chief Executive Officer
WELLS FARGO BANK, NATIONAL ASSOCIATION
By:
----------------------------------------------------
Authorized Officer (Title)
6