EX-4.2B 8 ex42b.txt ESCROW AGREEMENT -- SECURITIES Exhibit 4.2b Escrow Agreement This Escrow Agreement (the "Agreement") is made by and between Regions Bank, a national banking association, with its principal office located at 1425 E. Mitchell Hammock Road, Oviedo Florida (the "Escrow Agent"), and Emerging Markets Holdings, Inc., a Florida corporation, with its principal office located at 309 Celtic Court; Oviedo, Florida 32765 (the "Issuer"). WITNESSETH WHEREAS, the Issuer filed with the Securities and Exchange Commission (the "Commission"), Washington, D.C., an SB-2 Registration Statement (the "Registration Statement"), and related Prospectus, File No. 333-130943, on. January 10, 2006, as amended, in connection with an initial public offering of the Issuer's securities, comprising 500,000 shares of the Issuer's common stock to be sold at a price of $0.15 per share (the "Securities"); WHEREAS, the Issuer proposes to offer the Securities to the public on a "best efforts, all or none" basis as set forth in the Registration Statement; WHEREAS, the Issuer proposes to establish an escrow account (the "Escrow Account"), to which the Securities which are to be issued by the Escrow Agent in connection with such public offering are to be held, and the Escrow Agent is willing to establish the Escrow Account on the terms and subject to the conditions hereinafter set forth; and WHEREAS, the Escrow Agent will establish an Escrow Account into which the stock certificates representing the Securities, which are received by the Escrow Agent and recorded in the Escrow Account ledger, are to be deposited. NOW, THEREFORE, for and in consideration of the promises and mutual covenants herein contained, and other valuable consideration, the parties hereto hereby agree as follows: 3. The Registration Statement. 1.1. The Issuer has filed the Registration Statement with the Commission and is included herein as Exhibit A to this Agreement, and is made a part hereof. 4. Establishment of the Escrow Account. 2.1. The Issuer shall initially establish an Escrow Account at the Escrow Agent. The purpose of the Escrow Account is for (a) the deposit of all stock certificates representing Securities which are received by the Issuer to the Escrow Agent (the "Certificates"); (b) the holding of such Certificates; and (c) the distribution and delivery of Certificates, all as described herein. The Escrow Agent will hold all Certificates and other property in the Escrow Account free from any lien, claim or offset, except as set forth herein, and such Certificates and other property shall not become the property of the Company or any other person, nor subject to the debts thereof, unless the conditions set forth in these instructions to distribution of such Certificates to the subscribers of the Securities have been fully satisfied. 2.2. On or before the date of the initial deposit in the Escrow Account pursuant to this Agreement, the Issuer shall notify the Escrow Agent in writing of the effective date (the "Effective Date") of the Registration Statement, and the Escrow Agent shall not be required to accept any Certificates to the Escrow Account or for deposit in the Escrow Account prior to its receipt of such notification. 2.3. The offering period (the "Offering Period"), which shall be deemed to commence on the Effective Date, shall be for a period of up to 180 days. The Offering Period shall be less than 180 days if the Issuer sells all Securities for a total consideration of $75,000, whichever occurs first, is also referred to herein as the "Termination Date." Except as provided in Section 4.3 hereof, after the Termination Date, the Issuer shall not deposit, and the Escrow Agent shall not accept, any additional Certificates representing Securities issued by the Issuer to prospective purchasers. 2.4. If the Escrow Account remains open following the Termination Date in accordance with Article 4 below, the Certificates shall remain in the Escrow Account and shall be distributed only pursuant to the terms of this Agreement. 3. Deposits to the Escrow Account. 3.1. The Issuer shall promptly deliver to the Escrow Agent all Certificates which it receives from prospective purchasers of the Securities. Upon the Escrow Agent's receipt of such Certificates, they shall be recorded in the Escrow Account ledger. 3.2. Promptly after receiving Certificates as described in Section 3.1, the Escrow Agent shall deposit the same into the Escrow Account. Certificates so deposited are hereinafter referred to as "Escrow Certificates." The Escrow Agent shall cause to record in the Escrow Account ledger all Escrow Certificates with each deposit to the Escrow Account, the Issuer shall provide the Escrow Agent a copy of the completed Subscription Agreement for each prospective purchaser, including the name, address, and social security number of the prospective purchaser, the amount of Securities subscribed for by such purchaser, and the aggregate dollar amount of such subscription, and a completed W-9 from each such purchaser (collectively, the "Subscription Information"). 3.3. The Escrow Agent shall not be required to accept any Certificates to the Escrow Account which are not accompanied by the appropriate Subscription Information. 3.4. The Escrow Agent shall not be required to accept in the Escrow Account any Certificates representing Securities proposed to be purchased by prospective purchasers, except during the Escrow Agent's regular business hours. 3.5. Only those Escrow Certificates, which have been deposited in the Escrow Account and which have been collected by the Escrow Agent, are herein referred to as the "Deposit". 2 3.6. If the proposed offering is terminated before the Termination Date, the Escrow Agent shall return any portion of the Deposit prior to distribution and delivery of the Deposit in accordance with Article 4 hereof upon instructions in from the Issuer. 4. Disbursement from the Escrow Account. 4.1. Subject to Section 4.3 below, if by the close of regular banking hours on the Termination Date the Escrow Agent determines that the total number of shares of Securities issued by the Issuer, as represented by the Escrow Certificates in the Deposit, is less than 500,000 shares, then the Escrow Agent shall promptly return the Escrow Certificates to the Issuer which is then held in the Deposit, without charge to the purchasers. In such event, the Escrow Agent shall promptly notify the purchasers of its distribution of the Deposit. If the total number of shares of Securities issued by the Issuer, as represented by the Escrow Certificates in the Deposit, is more than 500,000 shares, the Escrow Account shall remain open beyond the Termination Date in accordance with Section 4.2 below. 4.2. If the Escrow Account remains open beyond the Termination Date, the Issuer must satisfy the following conditions: (f) Within five (5) business days after the effective date of the post-effective amendment, the Issuer shall send by first class mail to each purchaser of Securities held in escrow, a copy of the prospectus contained in the post-effective amendment and any amendment or supplement thereto; (g) Each purchaser shall have no fewer than twenty (20) business days and no more than forty-five (45) business days from the effective date of the post-effective amendment to notify the Issuer in writing that the purchaser elects to remain an investor. If the Issuer has not received such written notification by the forty-fifth (45th) business day following the Effective Date of the post-effective amendment, funds and interest held in escrow shall be sent by first class mail or other equally prompt means to the purchasers within five (5) business days; an acquisition described in the post-effective amendment will be consummated if a sufficient number of purchasers confirm their investment with the Issuer; and if an acquisition has not been consummated by the Issuer within eighteen (18) months after the Effective Date of the Registration Statement, the Escrow Certificates held in escrow shall be returned immediately to the Issuer with five (5) business days following that date. It shall be the responsibility of the Issuer to notify the Escrow Agent if any of the above conditions are not timely satisfied; (h) Securities may be delivered to the purchasers only at the same time as or after (i) the Escrow Agent has received a signed representation from the Issuer that the requirements of paragraphs (e) (1) and (e) (2) of Rule 419 have been met and (ii) the Escrow Agent has received a signed representation from the Issuer that the requirements of paragraph (e) (2) (iii) of Rule 419 have been met. The Issuer shall be liable for any misrepresentation made to the Escrow Agent with respect to this Section 4.2 and the Issuer agrees to indemnify the Escrow Agent for any claims made by purchasers with respect to this Section 4.2 in accordance with Article 5 below; provided, however, the Issuer shall not be 3 responsible for the Escrow Agent's failure to timely release funds and interest to the purchasers upon receipt of instructions from the Issuer. 4.3. Upon distribution of the Deposit pursuant to the terms of this Article 4, the Escrow Agent shall be relieved of all further obligations and released from all liability under this Agreement. It is expressly agreed and understood that in no event shall the aggregate amount of Securities distributed by the Escrow Agent exceed the amount of the Deposit. 5. Rights, Duties and Responsibilities of the Escrow Agent; Indemnification. 5.1. The Issuer may inquire on a regular basis as to, and the Escrow Agent shall provide the Issuer, the amount of shares of Securities (as represented by the Escrow Certificates) which have been deposited in the Escrow Account. 5.2. The Escrow Agent shall not be responsible for or be required to enforce any of the terms or conditions of the Agreement with respect to the Issuer. 5.3. The Escrow Agent shall not be required to accept from the Issuer any subscription information pertaining to prospective purchasers unless such Subscription Information is accompanied by the items meeting the requirement of Section 3.1, nor shall the Escrow Agent be required to keep records of any information with respect to Escrow Certificates deposited by the Issuer, except as to the number of shares of Securities represented by such Escrow Certificates; however, the Escrow Agent shall notify the Issuer within a reasonable time of any discrepancy between the amount set forth in any subscription information and the amount of Securities delivered to the Escrow Agent therewith. Such amount need not be accepted for deposit in the Escrow Account until such discrepancy has been resolved. 5.4. The Escrow Agent shall be entitled to rely upon the accuracy, act in reliance upon the contents, and assume the genuineness of any notice, instruction, certificate, signature, instrument, or other document which is given to the Escrow Agent by the Issuer pursuant to this Agreement without the necessity of the Escrow Agent verifying the truth or accuracy thereof. The Escrow Agent shall not be obligated to make any inquiry as to the authority, capacity, existence or identity of any person purporting to give any such notice or instructions or to execute any such certificate, instrument or other document. 5.5. If the Escrow Agent is uncertain as to its duties or rights hereunder or shall receive instructions with respect to the Escrow Account, the escrow amounts of the Deposit, which, in its sole determination, are in conflict either with other instructions received by it or with any provision of this Agreement, it shall be entitled to hold the Escrow Certificates, the Deposit or a portion thereof, in the Escrow Account pending the resolution of such uncertainty to the Escrow Agent's sole satisfaction, by final judgment of a court of competent jurisdiction or otherwise; or the Escrow Agent, as its sole option, may deposit with the clerk of a court of competent jurisdiction in a proceeding to which all parties in interest are joined. Upon the deposit by the Escrow Agent of the Deposit with the clerk of any court, the Escrow Agent shall be relieved of all further obligations and released from all liability hereunder. 4 5.6. The Escrow Agent shall not be liable for any action taken or omitted hereunder, or for the misconduct of any employee, agent or attorney appointed by it, except in the case of willful misconduct or gross negligence. The Escrow Agent shall be entitled to consult with counsel of its own choosing and shall not be liable for any action taken, suffered or omitted by it in accordance with the advice of such counsel. 5.7. The Escrow Agent shall have no responsibility at any time to ascertain whether or not any security interest exists in the escrow amounts, the Deposit or any part thereof or to file any financing statement under the Uniform Commercial Code with respect to the Deposit or any part thereof. 5.8. The Issuer agrees to indemnify the Escrow Agent and its officers, directors, employees, agents, and shareholders (jointly and severally, the "Indemnities") against, and hold them harmless of and from, any and all loses, liabilities, costs, damages, and expenses, including, but not limited to, reasonable fees and disbursements for counsel of its own choosing (collectively, "Liabilities"), that the Indemnities may suffer or incur and which arise out of or relate to this Agreement or any transaction to which this Agreement relates, unless such Liability is the result of the willful misconduct or gross negligence of the Indemnities. 5.9. If the indemnification provided for in this Section 5 is applicable but is held to be unavailable, the Issuer shall contribute such amounts as are just and equitable to pay or to reimburse the Indemnities for the aggregate of any and all Liabilities actually incurred by the Indemnities as a result of or in connection with any amount paid in settlement of any action, claim, or proceeding arising out of or relating in any way to any actions or omissions of the Issuer. 5.10. The provisions of this Section 5 shall survive any termination of this Agreement, whether by distribution of the Deposit, resignation of the Escrow Agent, or otherwise. 9. Interpleader. 6.1. In the event conflicting demands are made or notices served upon the. Escrow Agent with respect to the Escrow Account, the Escrow Agent shall have the absolute right as its election to do either or both of the following: (a) Withhold and stop all further proceedings in, and performance of, this escrow or (b) File a suit in interpleader and obtain an order from the court requiring the parties to litigate their several claims and rights among themselves. In the event such interpleader suit is brought, the Escrow Agent shall be fully released from any obligation to perform any further duties imposed upon it hereunder, and the Issuer shall pay the Escrow Agent all costs, expenses, and reasonable attorney's fees expended or incurred by Escrow Agent (or allocable to its in-house counsel), the amount thereof to be fixed and a judgment thereof to be rendered by the court in such suit. 10. Amendment; Resignation. 7.1. This Agreement may be altered or amended only with the written consent of the parties hereto. The Escrow Agent may resign for any reason upon fourteen (14) days' written notice to the Issuer. Should the Escrow Agent resign as herein provided, it shall not be required to accept any deposit, make any 5 disbursement or otherwise dispose of the Escrow Certificates, but its only duty shall be to hold the Escrow Certificates for a period of not more that five (5) business days following the effective date of such resignation, at which time (a) if a successor escrow agent shall have been appointed and written notice thereof shall have been given to the resigning escrow agent by the Issuer and such successor escrow agent, then the resigning escrow agent shall deliver directly to the successor escrow agent the Deposit; or (b) if the resigning escrow agent shall not have received written notice signed by the Issuer and a successor escrow agent, then the resigning escrow agent shall promptly notify the Issuer of its liquidation and distribution of the Deposit; whereupon, in either case, the Escrow Agent shall be relieved of all further obligation and released from all liability under this Agreement. Without limiting the provisions of Section 9.1 hereof, the resigning escrow agent shall be entitled to be reimbursed by the Issuer for any expenses incurred in connection with its resignation, transfer of the Deposit to a successor escrow agent or distribution of the Deposit pursuant to this Section 7.1. 11. Representations and Warranties. 8.1. The Issuer represents and warrants to the Escrow Agent that no party other than the parties hereto and the prospective purchasers have, or shall have, any claim or security interest in the Deposit or any part thereof. 8.2. No financing statement under the Uniform Commercial Code is on file in any jurisdiction claiming a security interest in or describing the Deposit or any part thereof. 8.3. The Subscription Information submitted with each deposit of Securities shall, at the time of submission and at the time of the distribution of the Deposit, be deemed a representation and warranty that such deposit represents that bona fide consideration has been made by the purchaser described therein for the amount of Securities set forth in such Subscription Information. 8.4. All of the information contained in the Registration Statement is, as of the date hereof, and will be, at the time of any disbursement of the Deposit, true and correct. 12. Fees and Expenses. 9.1. The Escrow Agent shall not charge the Issuer any fee in connection with this Agreement. The Issuer agrees to reimburse the Escrow Agent for any reasonable fees and expenses incurred in connection with this Agreement. 13. Governing Law and Assignment. 10.1. This Agreement shall be construed in accordance with and governed by the laws of the State of Florida shall be binding upon the parties hereto and their respective successors and assigns; provided, however, that any assignment or transfer by any party of its rights under this Agreement or with respect to the Deposit shall be void as against the Escrow Agent unless (a) written notice thereof shall be given to the Escrow Agent; and (b) the Escrow Agent shall have consented in writing to such assignment or transfer. 14. Notices. 6 11.1. All notices required to be given in connection with this Agreement shall be sent by registered or certified mail, return receipt requested, or by hand delivery with receipt acknowledged, or by Express Mail service offered by the United States Post Office to the following addresses: ISSUER: Emerging Markets Holdings, Inc. 309 Celtic Court Oviedo, Florida 32765 with a copy to: Greene & Lee, P.L. 111 North Orange Avenue Suite 1450 Orlando, Florida 32801 Attention: Robert Q. Lee ESCROW AGENT: Regions Bank Attention: Aida Apointe, Assistant Branch Manager 1425 East Mitchell Hammock Road Oviedo, Florida 32765 12. Severability. 12.1. If any provision of this Agreement or the application thereof to any person or circumstances shall be determined to be invalid or unenforceable, the remaining provisions of this Agreement or the application of such provisions to persons of circumstances other than those to which it is held invalid or unenforceable shall not be affected thereby and shall be valid and enforceable to the fullest extent permitted by law. 15. Execution in Several Counterparts; Entire Agreement. 13.1. This Agreement may be executed in several counterparts or by separate instruments, all of such counterparts and instruments shall constitute one agreement, binding on all of the parties hereto. 13.2. This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings, written or oral, of the parties in connection therewith. 7 IN WITNESS WHEREOF, the undersigned parties have executed this Agreement upon proper legal authority as of the 1st day of November, 2006. Regions Bank, a national banking association By: /s/ Aida Apointe ---------------- BAM, its Trust Officer Emerging Markets Holdings, Inc., a Florida Corporation By: /s/ Serguei Melnik ------------------ Serguei Melnik 8