FORM OF STOCK ESCROW AGREEMENT
FORM
OF
STOCK
ESCROW AGREEMENT, dated as of ___________ ___, 2007 (“Agreement”) by and among
Freedom Financial Holdings, Inc., a Maryland corporation (“Company”), the
undersigned parties listed as Initial Stockholders on the signature page hereto
(collectively, the “Initial Stockholders”) and _____________________ (“Escrow
Agent”).
WHEREAS,
in order to raise capital and to register the shares of certain shareholders,
the Company has filed a Registration Statement on Form SB-2 (File No.
333-140350) under the Securities Act of 1933, as amended (“Registration
Statement”).
WHEREAS,
the Company has issued certain promotional shares to officers, directors, and
persons who directly or indirectly took the initiative in founding or organizing
the Company (the “Shares”).
WHEREAS,
the Company’s financial statements contain a going concern opinion and as such,
the State of Indiana Securities Division requires that all promotional shares
be
deposited in escrow.
WHEREAS,
the Initial Stockholders have agreed to deposit their Shares of Common Stock
of
the Company, as set forth opposite their respective names in Exhibit A attached
hereto (collectively “Escrow Shares”), in escrow as hereinafter
provided.
WHEREAS,
the Company and the Initial Stockholders desire that the Escrow Agent accept
the
Escrow Shares, in escrow, to be held and disbursed as hereinafter
provided.
IT
IS
AGREED:
1. Appointment
of Escrow Agent.
The
Company and the Initial Stockholders hereby appoint the Escrow Agent to act
in
accordance with and subject to the terms of this Agreement and the Escrow Agent
hereby accepts such appointment and agrees to act in accordance with and subject
to such terms.
2. Deposit
of Escrow Shares.
On or
before the Effective Date, each of the Initial Stockholders shall deliver to
the
Escrow Agent certificates representing his or her respective Escrow Shares,
to
be held and disbursed subject to the terms and conditions of this Agreement.
Each Initial Stockholder acknowledges that the certificate representing his
or
her Escrow Shares is legended to reflect the deposit of such Escrow Shares
under
this Agreement.
3.
The
Escrow Period.
For
purposes of this Agreement the Escrow Period shall be defined as the period
consisting of the date from which the Escrow Shares are deposited in escrow
until the fourth anniversary of the date of the completion of the public
offering.
4. Disbursement
of the Escrow Shares.
The
Escrow Agent shall hold the Escrow Shares without disbursement until the second
anniversary of the completion by the Company of the initial public offering
of
the Shares. There after the Escrow Agent shall disburse the Escrow Shares as
follows:
(a) Beginning
on the second anniversary of the date of the completion of the offering, two
and
one-half percent (2½ %) of the shares held in escrow may be released each
quarter pro rata among the Initial Stockholders, on which dates the Escrow
Agent
shall, upon written instructions from the Company, disburse the number of shares
specified by the Company of the Initial Stockholder’s Escrow Shares to such
Initial Stockholder;
(b) All
remaining Shares shall be released from escrow on the fourth anniversary from
the date of the completion of the offering;
(c) In
the
event the public offering has been terminated and no securities were sold
pursuant thereto, the Shares may be released as of the day of the termination
of
the offering;
(d) In
the
event the public offering has been terminated and all of the gross proceeds
that
were derived therefrom have been returned to the public investors, the Shares
may be released as of the date of the return of all proceeds;
provided,
however, that if the Escrow Agent is notified by the Company pursuant to Section
7.7 hereof that the Company is being liquidated at any time during the Escrow
Period, then the Escrow Agent shall promptly hold the certificates representing
the Escrow Shares pursuant to applicable regulations promulgated by the
Securities and Exchange Commission; provided further, that if, during the Escrow
Period, the Company (or the surviving entity) consummates a liquidation, merger,
stock exchange or other similar transaction which results in all of its
stockholders of such entity having the right to exchange their shares of Common
Stock for cash, securities or other property, then the Escrow Agent will, upon
consummation of such transaction, release the Escrow Shares to the Initial
Stockholders so that they can similarly participate. The Escrow Agent shall
have
no further duties hereunder after the disbursement or destruction of the Escrow
Shares in accordance with this Section 4.
5. Rights
of Initial Stockholders in Escrow Shares.
5.1. Voting
Rights as a Stockholder.
Except
as herein provided, the Initial Stockholders shall retain all of their rights
as
stockholders of the Company during the Escrow Period, including, without
limitation, the right to vote such shares.
5.2. Dividends
and Other Distributions in Respect of the Escrow Shares.
During
the Escrow Period, all dividends payable in cash with respect to the Escrow
Shares shall be paid to the Initial Stockholders.
5.3. Restrictions
on Transfer.
During
the Escrow Period, no sale, transfer or other disposition may be made of any
or
all of the Escrow Shares except (i) by gift to a member of Initial Stockholder’s
immediate family or to a trust or other entity, the beneficiary of which is
an
Initial Stockholder or a member of an Initial Stockholder’s immediate family,
(ii) by virtue of the laws of descent and distribution upon death of any Initial
Stockholder, or (iii) pursuant to a qualified domestic relations order;
provided, however, that such permissive transfers may be implemented only upon
the respective transferee’s written agreement to be bound by the terms and
conditions of this Agreement. During the Escrow Period, the Initial Stockholders
shall not pledge or grant a security interest in the Escrow Shares or grant
a
security interest in their rights under this Agreement.
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6. Concerning
the Escrow Agent.
6.1. Good
Faith Reliance.
The
Escrow Agent shall not be liable for any action taken or omitted by it in good
faith and in the exercise of its own best judgment, and may rely conclusively
and shall be protected in acting upon any order, notice, demand, certificate,
opinion or advice of counsel (including counsel chosen by the Escrow Agent),
statement, instrument, report or other paper or document (not only as to its
due
execution and the validity and effectiveness of its provisions, but also as
to
the truth and acceptability of any information therein contained) which is
believed by the Escrow Agent to be genuine and to be signed or presented by
the
proper person or persons. The Escrow Agent shall not be bound by any notice
or
demand, or any waiver, modification, termination or rescission of this Agreement
unless evidenced by a writing delivered to the Escrow Agent signed by the proper
party or parties and, if the duties or rights of the Escrow Agent are affected,
unless it shall have given its prior written consent thereto.
6.2. Indemnification.
The
Escrow Agent shall be indemnified and held harmless by the Company from and
against any expenses, including counsel fees and disbursements, or loss suffered
by the Escrow Agent in connection with any action, suit or other proceeding
involving any claim which in any way, directly or indirectly, arises out of
or
relates to this Agreement, the services of the Escrow Agent hereunder, or the
Escrow Shares held by it hereunder, other than expenses or losses arising from
the gross negligence or willful misconduct of the Escrow Agent. Promptly after
the receipt by the Escrow Agent of notice of any demand or claim or the
commencement of any action, suit or proceeding, the Escrow Agent shall notify
the other parties hereto in writing. In the event of the receipt of such notice,
the Escrow Agent, in its sole discretion, may commence an action in the nature
of interpleader in an appropriate court to determine ownership or disposition
of
the Escrow Shares or it may deposit the Escrow Shares with the clerk of any
appropriate court or it may retain the Escrow Shares pending receipt of a final,
non appealable order of a court having jurisdiction over all of the parties
hereto directing to whom and under what circumstances the Escrow Shares are
to
be disbursed and delivered. The provisions of this Section 6.2 shall survive
in
the event the Escrow Agent resigns or is discharged pursuant to Sections 6.5
or
6.6 below.
6.3. Compensation.
The
Escrow Agent shall be entitled to reasonable compensation from the Company
for
all services rendered by it hereunder. The Escrow Agent shall also be entitled
to reimbursement from the Company for all expenses paid or incurred by it in
the
administration of its duties hereunder including, but not limited to, all
counsel, advisors’ and agents’ fees and disbursements and all taxes or other
governmental charges.
6.4. Further
Assurances.
From
time to time on and after the date hereof, the Company and the Initial
Stockholders shall deliver or cause to be delivered to the Escrow Agent such
further documents and instruments and shall do or cause to be done such further
acts as the Escrow Agent shall reasonably request to carry out more effectively
the provisions and purposes of this Agreement, to evidence compliance herewith
or to assure itself that it is protected in acting hereunder.
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6.5. Resignation.
The
Escrow Agent may resign at any time and be discharged from its duties as escrow
agent hereunder by its giving the other parties hereto written notice and such
resignation shall become effective as hereinafter provided. Such resignation
shall become effective at such time that the Escrow Agent shall turn over to
a
successor escrow agent appointed by the Company, the Escrow Shares held
hereunder. If no new escrow agent is so appointed within the 60 day period
following the giving of such notice of resignation, the Escrow Agent may deposit
the Escrow Shares with any court it deems appropriate.
6.6. Discharge
of Escrow Agent.
The
Escrow Agent shall resign and be discharged from its duties as escrow agent
hereunder if so requested in writing at any time by the other parties hereto,
jointly, provided, however, that such resignation shall become effective only
upon acceptance of appointment by a successor escrow agent as provided in
Section 6.5.
6.7. Liability.
Notwithstanding anything herein to the contrary, the Escrow Agent shall not
be
relieved from liability hereunder for its own gross negligence or its own
willful misconduct.
6.8 Maintenance
of Records.
The
Escrow Agent shall maintain all records relating to the Agreement for a period
of three (3) years following the termination of the Agreement.
7. Miscellaneous.
7.1. Governing
Law.
This
Agreement shall for all purposes be deemed to be made under and shall be
construed in accordance with the laws of the State of Utah. Each of the parties
hereby agrees that any action, proceeding or claim against it arising out of
or
relating in any way to this Agreement shall be brought and enforced in the
courts of the State of Utah, and irrevocably submits to such jurisdiction,
which
jurisdiction shall be exclusive. Each of the parties hereby waives any objection
to such exclusive jurisdiction and that such courts represent an inconvenient
forum.
7.2. Entire
Agreement.
This
Agreement contains the entire agreement of the parties hereto with respect
to
the subject matter hereof and, except as expressly provided herein, may not
be
changed or modified except by an instrument in writing signed by the party
to
the charged.
7.3. Headings.
The
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation thereof.
7.4. Binding
Effect.
This
Agreement shall be binding upon and inure to the benefit of the respective
parties hereto and their legal representatives, successors and
assigns.
7.5. Notices.
Any
notice or other communication required or which may be given hereunder shall
be
in writing and either be delivered personally or be mailed, certified or
registered mail, or by private national courier service, return receipt
requested, postage prepaid, and shall be deemed given when so delivered
personally or, if mailed, two (2) days after the date of mailing, as
follows:
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If
to the
Company, to:
Freedom
Financial Holdings, Inc.
0000
Xxxxxxxxxxx Xxx, Xxxxx X
Xxxx
Xxxxx, Xxxxxxx 00000
Xxxxx
Xxxxxxx, Chief Executive Officer
If
to a
Stockholder, to his address set forth in Exhibit A.
and
if to
the Escrow Agent, to:
A
copy of
any notice sent hereunder shall be sent to:
Xxxxxxxxx
Law Group PC
00000
Xxxxxxx Xxxxxx Xxxx, Xxxxx 000
Xxx
Xxxxx, Xxxxxxxxxx 00000
Attn:
Xxxxxxx X. Xxxx, Esq.
The
parties may change the persons and addresses to which the notices or other
communications are to be sent by giving written notice to any such change in
the
manner provided herein for giving notice.
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WITNESS
the execution of this Agreement as of the date first above written.
Freedom
Financial Holdings, Inc.
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By:
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Xxxxx
Xxxxxxx, Chief Executive
Officer
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INITIAL
STOCKHOLDERS:
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R&D
Investments, LLC
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Xxxxx
X. Xxxxxxx
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By:
Xxx Xxxxxxx
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Its:
Managing Director
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Strategic
Technology Advisors, LLC
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Xxxxx
X. Xxxx
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By:
Xxxxxxx Xxxxxxxxx
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Its:
Managing Member
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XX
Xxxx Investments, LLC
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Xxxxxx
X. Xxxx
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By:
Xxxxx Xxxxxxxxx
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Its:
Manager
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Xxxxxxx
X. Xxxx
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Xxxxx
Xxxxx
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Xxxxxx
X. Xxxxxxxx
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Xxxxxxx
Xxxxxx
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Xxxx
Xxxxxx
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6
ESCROW
AGENT
By:________________________________
Name:
Title:
Chairman
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EXHIBIT
A
Name
and Address of
Initial
Stockholder
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Number
of
Shares
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Stock
Certificate
Number
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8