EX1A-8 ESCW AGMT 6 v454302_ex8-1.htm EXHIBIT 8.1

Exhibit 8.1

ESCROW SERVICES AGREEMENT

This Escrow Services Agreement (this “Agreement”) is made and entered into as of <date> by and between FundAmerica Securities, LLC (“FundAmerica Securities”, “Trustee” or “Escrow Agent”) and <issuer name> (“Issuer”) for its offering known as <security name>.

RECITALS

WHEREAS, Issuer proposes to offer for sale to investors as disclosed in its offering materials, securities pursuant to either a) Rule 506 promulgated by the U.S. Securities and Exchange Commission (“SEC”) under the Securities Act of 1933, as amended (the “Securities Act”); b) Regulation A+ promulgated by the SEC as modified by final rules adopted per Title IV of the Jumpstart Our Business Startups (“JOBs”) Act; or c) another federal or state exemption from registration, either directly (issuer-direct) and/or through one or more registered broker-dealers as a selling group (Syndicate), the equity and/or debt securities of Issuer (the “Securities”) in the amount of at least $<amount> (the “Minimum Amount of the Offering”) up to $<amount> (the “Maximum Amount of the Offering”).

WHEREAS, Issuer desires to establish an Escrow Account in which funds received from prospective investors (“Subscribers”) will be held during the Offering, subject to the terms and conditions of this Agreement. FundAmerica Securities agrees to serve as Trustee or Escrow Agent (hereinafter referred to as “Trustee”) for the Subscribers with respect to such Escrow Account pursuant to SEC Rule 15c2-4(b) and in accordance with the terms and conditions set forth herein. This includes, without limitation, that the Escrow Account will be held at an FDIC member bank in a separately named (as defined below) account. For purposes of communications and directives, the Trustee shall be the sole administrator of the Escrow Account.

AGREEMENT

NOW THEREFORE, in consideration of the foregoing, it is hereby agreed as follows:

1. Establishment of Escrow Account. Prior to Issuer initiating the Offering, and prior to the receipt of the first investor funds, the Trustee shall establish an account at an FDIC insured US bank (the “Bank”) entitled FundAmerica Securities as trustee for Investors in <offering name> (the “Escrow Account”). The Escrow Account shall be a segregated, deposit account of the Trustee at the Bank. All parties agree to maintain the Escrow Account and escrowed funds in a manner that is compliant with SEC Rules 10b-9 and 15c2-4, promulgated under the Securities Exchange Act of 1934, as amended.

2. Escrow Period. The Escrow Period shall begin with the commencement of the Offering and shall terminate in whole or in part upon the earlier to occur of the following:

A. The date upon which the minimum number of securities required to be sold are sold (the “Minimum”) in bona fide transactions that are fully paid for, which is defined to occur when the Trustee has received gross proceeds of at least Minimum Amount of the Offering that have cleared in the Escrow Account and the issuer has triggered a partial or full closing on those funds. Even after a partial close, of for continuous offerings, Escrow shall remain open in order to perform investor AML, to clear investor funds, and to perform other tasks prior to the issuer selling securities to any investor; or

B. The expiration of <auto term> from the date of commencement of the Offering if the Minimum has not been reached; or

C. The date upon which a determination is made by Issuer and/or their authorized representatives, including any lead broker or placement agent, to terminate the Offering prior to closing.

During the Escrow Period, the parties agree that (i) Escrow Account and escrowed funds will be held for the benefit of the Subscribers, and that (ii) the Issuer is not entitled to any funds received into escrow, and that no amounts deposited into the Escrow Account shall become the property of Issuer or any other entity, or be subject to any debts, liens or encumbrances of any kind of Issuer or any other entity, until the contingency has been satisfied by the sale of the Minimum of such Securities to such investors in bona fide transactions that are fully paid for, in accordance with Regulation D and as specified in the offering documents. Even after a sale of securities to investors, the Issuer may elect to continue to leave funds in the Escrow Account in order to protect investors as needed.

In addition, Issuer and Escrow Agent acknowledge that the total funds raised cannot exceed the Maximum Amount of the Offering permitted by the Offering Memorandum. Issuer represents that no funds have yet been raised for the Offering and that all funds to be raised for the Offering will be deposited in the Escrow Account established by FundAmerica Securities.

3. Deposits into the Escrow Account. All Subscribers will be instructed by Issuer or its agents to transfer funds by wire or ACH or deliver checks made payable directly to FundAmerica Securites. FundAmerica Securities, as Trustee, shall promptly deposit all monies received from Subscribers for the payment of the Securities into the Escrow Account, with an accounting of each posted to its ledger, which also sets forth, among other things, each Subscribers name and address, the quantity of Securities purchased, and the amount paid. All monies so deposited in the Escrow Account are hereinafter referred to as the “Escrow Amount.” Issuer or its agents shall promptly, concurrent with any new or modified subscription, provide Trustee with a copy of the Subscriber’s signed subscription agreement and other information as may be reasonably requested by Trustee in the performance of its duties under this Agreement. As required by government regulations pertaining to the US Treasury, Homeland Security, the Internal Revenue Service and the Securities and Exchange Commission, federal law requires financial institutions to obtain, reasonably verify and record information that identifies each person (natural person or legal entity, including its authorized persons) who funds and executes securities transactions. Information requested of the Issuer and Subscribers will be typical information requested in the gathering and verification guidelines and best practices promulgated by anti-money laundering (“AML”) rules and regulations and those regulatory agencies that enforce them.

Trustee is under no duty or responsibility to enforce collection of any wire, check, or ACH delivered to it hereunder.

Trustee reserves the right to deny, suspend or terminate participation in the Escrow Account of any Subscriber to the extent Trustee deems it advisable or necessary to comply with applicable laws or to eliminate practices that are not consistent with securities industry laws, rules, regulations or best practices. Trustee may at any time reject or return funds to any Subscriber (i) that do not clear background checks (anti-money laundering, USA PATRIOT Act, social security number issues, etc.) to the satisfaction of Trustee, in its sole and absolute discretion, or, (ii) for which Trustee determines, in its sole discretion, that it would be improper or unlawful for Trustee to accept or hold the applicable Subscriber’s funds, as Trustee, due to, among other possible issues, issues with the Subscriber or the source of the Subscriber’s funds. Trustee shall promptly inform Issuer of any such return or rejection.

4. Disbursements from the Escrow Account. In the event Trustee does not receive the Minimum prior to the termination of the Escrow Period, Trustee shall terminate Escrow and make a full and prompt return of funds so that refunds are made to each Subscriber in the exact amount received from said Subscriber, without deduction, penalty, or expense to Subscriber.

In the event Trustee receives cleared funds for at least the Minimum prior to the termination of the Escrow Period and Trustee receives a written instruction from Issuer (generally via notification in the API), Trustee shall, pursuant to those instructions, pay such Escrow Amount for all accepted subscriptions pursuant to the instructions of Issuer, but subject to Trustees rights (set forth in this Agreement and FundAmericas policies located in the control panel) concerning Return Period funds (defined as the time period Subscriber has to seek a return of funds, or to seek to avoid liability for the funds by claiming the transaction was unauthorized) (“First Closing”). After the First Closing, with respect to any additional collected funds received from Subscribers and held by Trustee prior to the termination date, Trustee shall, upon receipt of written instructions from Issuer, including identifying additional participating Subscribers and the corresponding Escrow Amount, pay such Escrow Amount specified in the written instructions, but subject to Trustees rights concerning Return Period funds (discussed above). Funds, when remitted to Issuer will be deposited in a non-interest bearing business checking account at a Bank established in the name disclosed in the offering documents. Issuer acknowledges that there is a 24 hour (one business day) processing time once a request has been received to break Escrow or otherwise move funds. This is to accommodate the time needed to compare the request to the offering documents, to ensure AML has been completed, and to prepare funds for disbursement.

Issuer hereby irrevocably authorizes Trustee to deduct broker fees and other funds for management and offering and selling expenses from the gross proceeds of the Escrow Account prior to remitting such funds, if and when due, to Issuer. Trustee is hereby directed to remit such funds directly to the broker(s) and other parties, if any, to which they are due. Net proceeds (meaning gross proceeds less amounts remitted to brokers and other parties, and interest earned or accumulated in the Escrow Account) will then be remitted to Issuer as described above. Furthermore, Issuer directs Trustee to accept instructions regarding fees from any registered securities broker in the syndicate, if any.

5. Collection Procedure. Trustee is hereby authorized, upon receipt of Subscriber funds, to promptly deposit them in the Escrow Account. Any Subscriber funds which fail to clear or are subsequently reversed, including but not limited to ACH chargebacks and wire recalls, shall be debited to the Escrow Account, with such debits reflected on the Escrow ledger. Any and all fees paid by Issuer for funds receipt and processing are non-refundable, regardless of whether ultimately cleared, failed, rescinded, returned or recalled. In the event of any Subscriber refunds, returns or recalls after funds have already been remitted to Issuer, then Issuer hereby irrevocably agrees to immediately and without delay or dispute send equivalent funds to Trustee to cover the refund, return or recall. If Issuer has any dispute or disagreement with its Subscriber then that is separate and apart from this Agreement and Issuer will address such situation directly with said Subscriber, including taking whatever actions Issuer determines appropriate, but Issuer shall regardless remit funds to Trustee and not involve Trustee in any such disputes.

6. Investment of Escrow Amount. Trustee may, at its discretion, invest any or all of the Escrow account balance as permitted under SEC Rule 15c2-4. This generally means short term investments in: (1) bank accounts, (2) bank money-market accounts, (3) short term certificates of deposit issued by a bank, and/or (4) short-term securities issued or guaranteed by the U S Government. Interest accumulated on the balances is the property of Trustee as part of its Escrow Administration Fee.

7. Escrow Administration Fees, Compensation of Trustee. Trustee is entitled to escrow administration fees from Issuer as detailed on the FundAmerica present fee schedule, which Issuer is liable to Trustee to pay and agrees to pay Trustee, even under circumstances where Issuer has entered an agreement that said fees are to be paid by a funding platform, lead syndicate broker or another representative of Issuer. All fees are charged immediately upon receipt of this Agreement, and are not contingent in any way on the success or failure of the Offering. Furthermore, Trustee is exclusively entitled to retain as part of its compensation, any and all investment interest, gains and other income earned pursuant to item 6 above. No fees, charges or expense reimbursements of Trustee are reimbursable, and are not subject to pro-rata analysis. All fees and charges, if not paid by a representative of Issuer (e.g. funding platform, lead syndicate broker, etc.), may be made via either the Issuers credit card or ACH information on file with FundAmerica Securities. It is acknowledged and agreed that no fees, reimbursement for costs and expenses, indemnification for any damages incurred by the Issuer or the Trustee shall be paid out of or chargeable to the investor funds on deposit in the escrow account.

8. Term and Termination. This Agreement will remain in full force during the Escrow Period. Even after this Agreement is terminated, certain provisions will remain in effect, including, but not limited to, items 3, 4, 5, 9, 10 and 12 of this Agreement.

9. Binding Arbitration, Applicable Law and Venue, Attorneys Fees. The parties agree that this Agreement is governed by, and will be interpreted and enforced in accordance with, the laws of the State of New York, without regard to principles of conflict of laws. Any claim or dispute arising under this Agreement may only be brought in arbitration, pursuant to the rules of the American Arbitration Association, with venue in the city of New York, New York State. Issuer and FundAmerica Securities consent to this method of dispute resolution, as well as jurisdiction, and consent to this being a convenient forum for any such claim or dispute and waives any right it may have to object to either the method or jurisdiction for such claim or dispute. In the event of any dispute among the parties, the prevailing party shall be entitled to recover damages plus reasonable attorney’s fees, and the decision of the arbitrator shall be final, binding and enforceable in any court.

10. Indemnity. You agree to defend, indemnify and hold FundAmerica Securities and its respective related entities (including FundAmerica Technologies, LLC), directors, employees, service providers, advertisers, affiliates, officers, agents, and partners and third-party service providers, including BofI Federal Bank or other FDIC member bank, harmless from any loss, liability, claim, or demand, including reasonable attorney’s fees, made by any third party due to or arising out of this Agreement and/or arising from a breach of any provision in this Agreement. This defense and indemnification obligation will survive termination of this Agreement.

FundAmerica Securities reserves the right to assume, at its sole expense, the exclusive defense and control of any such claim or action and all negotiations for settlement or compromise, and you agree to reasonably cooperate with FundAmerica Securities in the defense of any such claim, action, settlement or compromise negotiations, as requested by FundAmerica Securities.

11. Entire Agreement, Severability and Force Majeure. This Agreement contains the entire agreement between Issuer and FundAmerica Securities regarding the Escrow Account. If any provision of this Agreement is held invalid, the remainder of this Agreement shall continue in full force and effect. Furthermore, no party shall be responsible for any failure to perform due to acts beyond its reasonable control, including acts of God, terrorism, shortage of supply, labor difficulties (including strikes), war, civil unrest, fire, floods, electrical outages, equipment or transmission failures, internet interruptions, vendor failures (including information technology providers), or other similar causes.

12. Changes. Trustee may, at its sole discretion, comply with any new, changed, or reinterpreted regulatory or legal rules, laws or regulations, and any interpretations thereof, and without necessity of notice, to modify either this Agreement and/or the Escrow Account to comply or conform to such changes or interpretations. Trustee will notify Issuer of material changes as soon as practicable. Furthermore, all parties agree that this Agreement shall continue in full force and be valid, unchanged and binding upon any successors of FundAmerica Securities. Changes to this Agreement will be sent to you via email.

13. Notices. Any notice to Trustee is to be sent to escrow@fundamericasecurities.com. Any notices to Issuer will be to <issuers email address>

14. Language. It is expressly agreed that it is the will of all parties, including Trustee and Issuer that this Agreement and all related pages, forms, emails, alerts and other communications have been drawn up and/or presented in English.

15. Electronic Signature and Communications Notice and Consent. Digital (electronic) signatures, often referred to as an e-signature, enable paperless contracts and help speed up business transactions. The 2001 E-Sign Act was meant to ease the adoption of electronic signatures. The mechanics of this Agreements electronic signature include your signing this Agreement below by typing in your name, with the underlying software recording your IP address, your browser identification, the timestamp, and a securities hash within an SSL encrypted environment. This electronically signed Agreement will be available to both Issuer and Trustee, as well as any associated bankers, brokers and platforms so they can access and copy it at any time, and it will be stored and accessible on the FundAmerica Securities Service. Issuer and Trustee hereby consent and agree that electronically signing this Agreement constitutes Issuers signature, acceptance and agreement as if actually signed by Issuer in writing. Further, all parties agree that no certification authority or other third party verification is necessary to validate any electronic signature; and that the lack of such certification or third party verification will not in any way affect the enforceability of your signature or resulting contract between Issuer and Trustee. You understand and agree that your e-signature executed in conjunction with the electronic submission of this Agreement shall be legally binding and such transaction shall be considered authorized by you. Issuer agrees that its electronic signature is the legal equivalent of its manual signature on this Agreement consenting to be legally bound by this Agreements terms and conditions. Furthermore, Issuer and Trustee hereby agree that all current and future notices, confirmations and other communications regarding this Escrow Services Agreement specifically, and future communications in general between the parties, may be made by email, sent to the email address of record as set forth in Section 13 above, or as otherwise from time to time is changed or updated and disclosed to the other party, without necessity of confirmation of receipt, delivery or reading, and such form of electronic communication is sufficient for all matters regarding the relationship between the parties. If any such electronically sent communication fails to be received for any reason, including but not limited to such communications being diverted to the recipient’s spam filters by the recipients email service provider, or due to a recipients change of address, or due to technology issues by the recipients service provider, the parties agree that the burden of such failure to receive is on the recipient and not the sender, and that the sender is under no obligation to resend communications via any other means, including but not limited to postal service or overnight courier, and that such communications shall for all purposes, including legal and regulatory, be deemed to have been delivered and received. No physical, paper documents will be sent to Issuer, and if you desire physical documents then you agree to be satisfied by directly and personally printing, at your own expense, the electronically sent communication(s) and maintaining such physical records in any manner or form that you desire.

16. Substitute Form W9: Taxpayer Identification Number certification and backup withholding statement.

PRIVACY ACT STATEMENT: Section 6109 of the Internal Revenue Code requires you (the Issuer) to provide us with your correct Taxpayer Identification Number (TIN).

Name of Business: <issuer>

Tax Identification Number: <tax id>

Under penalty of perjury, by signing this Agreement below I certify that: 1) the number shown above is our correct business taxpayer identification number; 2) our business is not subject to backup withholding unless we have informed FundAmerica in writing to the contrary; and 3) our Company is a U.S. domiciled business.

Your Consent is Hereby Given: By signing this Agreement electronically, Issuer explicitly agrees to receive documents electronically including its copy of this signed Agreement as well as ongoing disclosures, communications and notices.

Agreed as of the date set forth above by and between:

<issuer>, as Issuer


Name:
Title:

FundAmerica Securities, LLC


Jonathan Self
President