Smart Technology Inc – IPO: ‘SB-1/A’ on 3/31/03 – EX-9

On:  Monday, 3/31/03, at 7:35pm ET   ·   As of:  4/1/03   ·   Accession #:  1164150-3-70   ·   File #:  333-87006

in

this entire Filing. an “Entity” Search.

Show

Documents searched

and

each “hit”. the 1st “hit”.

↓↑Hints

Initial Public Offering (IPO):  Pre-Effective Amendment to Registration of Securities by a Small-Business Issuer   —   Form SB-1
Filing Table of Contents

Document/Exhibit                   Description                      Pages   Size 

 1: SB-1/A      1933 Registration Statement                           82    309K 
 2: EX-9        Escrow Agreement                                       5     20K 
 3: EX-10       Consent of Expert                                     88    333K 
 4: EX-10       Gap Agreement                                         19     52K 
 5: EX-10       Irisio Agreement                                       8     31K 
 6: EX-11       Legal Opinion                                          2±    10K 

EX-9   —   Escrow Agreement

EX-9
1st Page of 5
TOC
↑Top
Previous
Next
↓Bottom
Just 1st
 
Exhibit 9.3                                                                     

ESCROW AGREEMENT

THIS ESCROW  AGREEMENT (the "Agreement) is made as of the 28th day of March 2003
among Mintmire & Associates (the "Escrow Agent") and Smart Technology, Inc. (the
"Issuer").                                                                      

RECITALS

WHEREAS,  the Issuer  wishes  Escrow  Agent to act on its behalf  with regard to
proceeds from a certain  initial  public  offering of Issuer's  Shares of Common
Stock  for which it will file on Form  SB-1  with the  Securities  and  Exchange
Commission (the "Proceeds'); and                                                

WHEREAS,  the Escrow Agent has agreed to act with regard to the Proceeds subject
to the terms and conditions set forth in this Agreement.                        

NOW THEREFORE,  in  consideration  of the obligations set forth herein and other
good and  valuable  consideration,  the receipt and  adequacy of which is hereby
acknowledged, the parties agree as follows:                                     

1. Recitals.  The recitals set forth above are incorporated  herein by reference
as if set out fully in the body of this Agreement.                              

2. Property Deposited in Escrow. The Issuer and the Escrow Agent shall establish
an attorney escrow account with Wachovia Bank (the  "Depository") in Palm Beach,
Florida and entitled  "Smart  Technology,  Inc, IPO Escrow Account" (the "Escrow
Account"). All Proceeds of subscriptions (together with a list setting forth the
names and addresses of each  subscriber  and the amounts and dates of receipt of
theft  respective  subscriptions  and copies of the  Subscription  Agreement and
Power of  Attorney  executed  by the  subscriber)  for shares of limited  issuer
interest (the "Shares") in the Issuer  received  during the Offering  Period (as
defined in  paragraph  3.6 below) shall be forwarded to the Escrow Agent by noon
of the next business day after receipt of such subscriptions, with copies to the
Issuer for  determination  of whether to accept such  subscriptions.  The Issuer
shall  deliver to all such  prospective  subscribers  interim  receipts  for the
amount of the funds  deposited in the Escrow Account and copies of such receipts
shall  be  delivered  to  the  Escrow  Agent,   said  interim   receipts  to  be
substantially in the form of Exhibit A hereto.                                  

3. Authority of Escrow Agent.  The Escrow Agent shall collect,  hold,  deal with
and  dispose  of the  Proceeds  and any  other  property  at any time held by it
hereunder in the following manner:                                              

3.1 If subscriptions for  50,000-300,000  shares ($250,000-  $1,500,000) or more
have been received  during the Initial  Offering Period (as defined in paragraph
3.6 below), all property deposited in the Escrow Account (excluding all interest
accumulated on the Proceeds paid to subscribers pursuant to paragraph 3.2 below)
shall as soon as  practicable  be paid over and delivered to the Issuer upon its
written request,  upon the  certification by the Issuer to the Escrow Agent that
subscriptions   aggregating   not   less   than   such   50,000-300,000   shares
($250,000-$1,500,000)   minimum  have  been  received  and  accepted,  and  upon
certification  by the  Escrow  Agent to the  Issuer  that the  Escrow  Agent has
received not less than such $250,000  minimum in good clear funds for deposit in
the Escrow Account.                                                             

1 

EX-9
2nd Page of 5
TOC
1st
Previous
Next
↓Bottom
Just 2nd
3.2 If such  subscriptions for 50,000-300,000  shares ($250,000-  $1,500,000) or
more have not been received  within the Offering Period (as defined in paragraph
3.6 below),  prompt  remittance  (within 10 days  following  termination  of the
offering) of the Proceeds  deposited in the Escrow  Account shall be made by the
Escrow Agent to the subscribers at their respective  addresses shown on the list
of subscriber  names,  addresses and social  security  numbers  delivered to the
Escrow Agent  pursuant to paragraph I in the amounts  shown  thereon and without
deductions of any kind or character.  Additionally,  any interest which shall be
accrued on the Proceeds during the period of this Agreement  shall  concurrently
be paid to the  subscribers  in  proportion  to their  respective  subscriptions
(taking into account time of deposit and amount).                               

3.3 Prior to delivery of the escrowed Proceeds to the Issuer as described above,
the Issuer shall have any title to or interest in the Proceeds on deposit in the
Escrow Account or in any interest  earned thereon and such Proceeds and interest
shall under no  circumstances  be subject to the  liabilities or indebtedness of
the Issuer.                                                                     

3.4 The Escrow Agent shall not be responsible  for investment  management of the
subscription  funds  deposited  with it.  Instead,  the Issuer  shall  cause all
Proceeds  deposited  with it pursuant to this  Agreement  to be  maintained  and
invested  as the  Issuer  shall from time to time  direct by written  instrument
delivered to the Escrow Agent, in certificates of deposit,  savings accounts (of
banks including the Escrow Agent) or direct United States Government obligations
which can be readily  liquidated on twenty-four hours notice so that 100% of the
Proceeds so deposited  with interest  thereon can, if necessary,  be returned to
subscribers in accordance with paragraph 3.2 above. It is expressly  agreed that
the Escrow Agent is not guaranteeing that any interest or profits will accrue on
the  subscription  funds  deposited  with  it.  If the 100% of the  Proceeds  so
deposited  are not  realized  upon such  liquidation,  the Issuer  shall pay the
difference  into the Escrow Account for  distribution  to the  subscribers.  The
Escrow  Agent  shall  incur no  liability  for any loss  suffered so long as the
Escrow Agent follows such directions.                                           

3.5 At any time prior to the termination of this Agreement, for whatever reason,
the  Issuer may notify the  Escrow  Agent  that a  Subscription  Agreement  of a
subscriber  has not been accepted or has only been partially  accepted,  and the
Issuer  may  direct  the  Escrow  Agent to return as soon  thereafter  as may be
practicable  any  Proceeds  held in the Escrow  Account  for the benefit of such
subscriber  directly  to  such  subscriber,   without  interest.  If  any  check
transmitted to the Escrow Agent in connection  with a subscription  shall remain
uncollected for any reason,  the Escrow Agent shall return such check,  together
with any other  material  or  documents  received by it in  connection  with the
subscription, to the Issuer.                                                    

3.6 The "Offering  Period"  shall mean in no case later than  _________________,
and  subject to earlier  termination.  The  Issuer  shall give the Escrow  Agent
prompt notice of when the Offering Period commences.                            

3.7 The Escrow Agent shall not be obligated to inquire as to the form, manner of
execution or validity of any documents herewith or hereafter  deposited pursuant
to the provisions  hereof, nor shall the Escrow Agent be obligated to inquire as

2 

EX-9
3rd Page of 5
TOC
1st
Previous
Next
↓Bottom
Just 3rd
to the identity,  authority or rights of the persons executing the name. In case
of conflicting demands upon it, the Escrow Agent may withhold  performance under
this  Agreement  until  such time as said  conflicting  demands  shall have been
withdrawn  or the rights of the  respective  parties  shall have been settled by
court adjudication, arbitration, joint order or otherwise.                      

3.8 The Escrow Agent shall not be required to separately record on its books the
name,  address and amount of each  subscription as received,  but shall keep the
lists delivered to it pursuant to paragraph 1 above.                            

4. Fees and Expenses of Escrow Agent.  The fees and expenses of the Escrow Agent
shall be fixed at $500.                                                         

5.  Liability  of Escrow  Agent.  The Escrow  Agent  shall not be liable for any
action taken or omitted by it in good faith in accordance with the advice of its
counsel  and in no event  shall it be liable or  responsible  except for its won
negligence or willful misconduct.  The Escrow Agent shall not be responsible for
any loss to the Proceeds  resulting  from the  investment  thereof in accordance
with the terms of this Agreement.                                               

6.  Indemnification  of Escrow  Agent.  The Issuer  agrees to indemnify and hold
harmless  the Escrow  Agent and its  officers,  employees  and  agents  from and
against  reasonable  fees and expenses of the Escrow  Agent,  including  but not
limited to judgments, reasonable attorneys' fees and other liabilities which the
Escrow  Agent may incur or  sustain  by  reason  of or in  connection  with this
Agreement.                                                                      

7.  Representations  and  Warranties of the Issuer.  The Issuer  warrants to and
agrees with the Escrow Agent that, unless otherwise  expressly set forth in this
Agreement, there is no security interest in the Proceeds or any part thereof; no
financing  statement  under  the  Uniform  Commercial  Code  is on  file  in any
jurisdiction claiming a security interest in or describing (whether specifically
or generally) the Proceeds or any part thereof;  and the Escrow Agent shall have
no  responsibility at any time to ascertain whether or not any security interest
exists in the  Proceeds or any part thereof or to file any  financing  statement
under the  Uniform  Commercial  Code with  respect to the  Proceeds  or any part
thereof.                                                                        

8. Escrow  Agents  Compliance  with Court Orders.  Etc. If any property  subject
hereto is at any time attached,  garnished or levied upon under any court order,
or in case the payment, assignment, transfer, conveyance or delivery of any such
property  shall be stayed or  enjoined  by any court order or in case any order,
writ,  judgment or decree shall be made or entered by any court  affecting  such
property,  or any part hereof,  then in any of such events,  the escrow Agent is
authorized to rely upon and comply with any such order,  writ judgment or decree
about which it is advised by legal  counsel of its own  choosing is binding upon
it, and if it complies with any such order,  writ  judgment or decree,  it shall
not be liable to any of the  parties  hereto  or to any  other  person,  firm or
corporation by reason of such compliance, even though such order, writ, judgment
or  decree  may be  subsequently  reversed,  modified,  annulled,  set  aside or
vacated.                                                                        

3 

EX-9
4th Page of 5
TOC
1st
Previous
Next
↓Bottom
Just 4th
9.  Resignation of Escrow Agent.  The Escrow Agent may resign by giving ten days
written  notice  by  certified  mail,  return  receipt  requested,  sent  to the
undersigned at their  respective  addresses  herein set forth;  and  thereafter.
subject to the  provisions of the preceding  paragraph  hereof shall deliver all
remaining  deposits in the Escrow Account to a successor escrow agent acceptable
to all other parties hereto,  which  acceptance  shall be evidenced by the joint
written and signed order of the undersigned. If no such order is received by the
Escrow Agent within thirty days after mailing such notice, it is unconditionally
and  irrevocably  authorized  and empowered to send any and all items  deposited
hereunder by registered mail to the respective depositors thereof.              

10. Amendments.  The Escrow Agent's duties and responsibilities shall be limited
to those  expressly set forth in this Agreement and shall not be subject to, nor
obliged to recognize,  any other agreement between,  or direction or instruction
of, any or all of the parties  hereto unless  reference  thereto is made herein;
provided,  however,  with the Escrow Agent's written consent, this Agreement may
be amended at any time or times by an instrument in writing signed by all of the
undersigned.                                                                    

11. Governing Law. This Agreement shall be construed,  enforced and administered
in accordance with the laws of the State of Florida applicable to contracts made
and to be performed in that State.                                              

12.  Effectiveness.  This Agreement  shall not become  effective (and the Escrow
Agent  shall have no  responsibility  hereunder  except to return  the  property
deposited in the Escrow Account to the subscribers) until the Escrow Agent shall
have  received a  certificate  as to the names and  specimen  signatures  of the
Issuer and shall have  advised  each of the Issuers in writing that the same are
in form and substance satisfactory to the Escrow Agent.                         

13.  Termination.   This  agreement  shall  terminate  upon  completion  of  the
obligations  provided  in either  paragraphs  3.1 or 3.2 hereof or as  otherwise
provided by written instruction from the Issuer to the Escrow Agent.            

14. Notices.                                                                    

14.1 Subject to the provisions of paragraph 14.2 thereof, any notice required or
permitted to be given  hereunder shall be effective when delivered by messenger,
or dispatched by certified mail,  return receipt  requested,  cable or telex, to
the respective  party at its address  specified  below,  namely if to Mintmire &
Associates,  addressed  to it at 265  Sunrise  Avenue,  Suite 204,  Palm  Beach,
Florida  33480 Attn:  Donald F.  Mintmire  and if to the Issuer at 222  Lakeview
Avenue PMB 433, West Palm Beach,  Florida 33401,  Attn: Marc  Asselineau,  or to
such other  address as such party may have  furnished  in writing to each of the
other parties hereto,                                                           

14.2. Any notice which the Escrow Agent is required or desires to give hereunder
to any of the  undersigned  shall be in writing  and may be given by mailing the
same to the  address  of the  undersigned  (or to  such  other  address  as said
undersigned  may have  theretofore  substituted by written  notification  to the

4 

EX-9
Last Page of 5
TOC
1st
Previous
Next
↓Bottom
Just 5th
Escrow Agent),  by certified mail,  return receipt  requested,  postage prepaid.
Notices to or from the Escrow Agent  hereunder shall be in writing and shall not
be deemed to be given  until  actually  received  by the Escrow  Agent or by the
person to whom it was mailed, respectively.  Whenever under the terms hereof the
time for giving  notice or  performing  an act falls upon a Saturday,  Sunday or
bank  holiday,  such time shall be extended to the Escrow  Agent's next business
day.                                                                            

IN WITNESS WHEREOF the parties has set their hand and seal effective on the date
first above written.                                                            

Mintmire & Associates, Escrow Agent                                             

By: /s/ Donald F. Mintmire                                                      
---------------------------                                               
Donald F. Mintmire                                                    

5 

Dates Referenced Herein   and   Documents Incorporated by Reference

				Referenced-On Page
This ‘SB-1/A’ Filing		Date		First		Last			Other Filings
Filed as of:		4/1/03							None on these Dates
Filed on:		3/31/03
									List all Filings