EXHIBIT 99.3
Independent Bankers' Bank of Florida
ESCROW AND TRANSFER AGREEMENT
This Escrow and Transfer Agreement ("Agreement") is entered into and
effective this ___ day of ______________, by and between PSB BancGroup, Inc., a
Florida corporation (the "Company") and the Independent Bankers' Bank of Florida
("Escrow and Transfer Agent" or "Agent").
WITNESSETH:
WHEREAS, the Company is soliciting holders of warrants ("Warrants") to
purchase Company common stock to sell their Warrants to third parties for $0.25
per Warrant ("Purchase Payment");
WHEREAS, the Company is soliciting prospective investors to purchase
Warrants for $0.25 per Warrant and subsequently exercise the purchased Warrants
thereby purchasing Company common stock ("Common Stock") for $9.00 per share
("Exercise Payment");
WHEREAS, such activities and the Company's Prospectus dated ___________
("Prospectus") are parts of an ongoing registered stock offering ("Offering");
WHEREAS, the Company has requested the Escrow and Transfer Agent to serve
as the depository for funds representing the Purchase Prices and Exercise
Prices, Warrant certificates ("Warrant Certificates"), Warrant Purchase and
Exercise Forms ("Purchase Forms") and Warrant Deposit and Sales Forms ("Deposit
Forms");
WHEREAS, the Company has requested the Escrow and Transfer Agent to
transfer Warrant Certificates deposited pursuant to, and in accordance with, the
terms and conditions contained in the Company's Prospectus; and
WHEREAS, the Offering will terminate at 5:00 p.m. Eastern Time on September
9, 2002, unless extended by the Company pursuant to its Second Amended and
Restated Warrant Plan.
NOW, THEREFORE, in consideration of the premises and understandings
contained herein, the parties agree as follows:
Section 1. Appointment. The Company hereby appoints and designates the
Escrow and Transfer Agent for the purposes set forth herein. The Escrow Agent
acknowledges and accepts said appointment and designation. The Company
understands that the Escrow and Transfer Agent, by accepting said appointment
and designation, in no way endorses the merits of the Offering. The Company
agrees to notify any person acting on its behalf that the position of Escrow and
Transfer Agent does not constitute such an endorsement, and to prohibit said
persons from the use of the Agent's name as an endorser of such offering. The
Company further agrees to allow the Escrow and Transfer Agent to review any
sales literature in which the Agent's name appears and which is used in
connection with such offering.
Section 2. Time of Offering. The Offering shall expire at 5:00 p.m. Eastern
Time (the "Close of Business") on September 9, 2002, subject to extension in the
sole discretion of the Company at any time before the Close of Business on
September 9, 2002. From the date of the Company's Prospectus, and thereafter
until the Close of Business on September 9, 2002 (unless extended), the
Warrants, Purchase Price and Exercise Price may be deposited on any business
day. After the Close of Business on September 9, 2002 (unless extended), the
Warrants will become void and of no value.
Section 3. Acceptance and Rejection of Deposits. Upon receiving a Warrant
holder's Warrant Certificate and Deposit Form, the Escrow and Transfer Agent
shall determine if the Deposit Form has been properly completed. If the Agent
determines that it has not been properly completed, it shall return the Warrant
Certificate and Deposit Form to the holder along with a written notice
describing the deficiency and instructions on how to resubmit such items. If the
Agent determines that the Deposit Form has been properly completed, it shall
accept the Warrant Certificate and Deposit Form and hold them in escrow pending
a Closing, as described in Section 8.
Section 4. Rejection of Purchases. Upon receiving an Exercise Payment,
Purchase Payment and Purchase Form, the Escrow and Transfer Agent shall
determine if the Purchase Form has been properly completed. If the Agent
determines that it has not been properly completed, it shall return the Exercise
Payment, Purchase Payment and Purchase Form along with a written notice
describing the deficiency and instructions on how to resubmit such items. If the
Agent determines that the only deficiency is that incorrect funds were included
to purchase the number of Warrants and shares of Common Stock indicated on the
Purchase Form, the Escrow and Transfer Agent may treat the Purchase Form as if
it indicated the nearest number of whole Warrants and shares which could be
purchased with the submitted funds and proceed under the provisions of Section
5.
Section 5. Acceptance of Purchases. If the Escrow and Transfer Agent
determines that a Purchase Form has been properly completed, it shall provide
the Company with a written notice of the depositor's name and the number of
Warrants and shares the depositor has indicated the depositor wishes to
purchase. The Company shall then have five business days in which to notify the
Escrow and Transfer Agent in writing, whether it will accept the order, in whole
or in part. To the extent the Company accepts the order, the Agent shall hold
the Purchase Form, Exercise Payment and Purchase Payment in escrow pending a
Closing, as described in Section 8. The Agent shall credit the escrow account on
the date of receipt for any submitted certified funds and within two business
days for any other manner of payment. To the extent the Company rejects an
order, the Escrow and Transfer Agent shall return the Exercise Payment and
Purchase payment within two business days.
Section 6. Dishonored Payments. In the event any Exercise Payment or
Purchase Payment is dishonored for payment for any reason, the Escrow and
Transfer Agent shall orally notify the depositor and the Company as soon as
practicable. In such instances, the Agent shall return the Exercise Payment,
Purchase Payment and Purchase Form to the depositor within two business days of
such payments being dishonored.
Section 7. Time of Closings. The Escrow and Transfer Agent shall hold a
closing immediately before the Close of Business on September 9, 2002 (or at
such later date to which the Company may extend the expiration of the Warrants).
The Company may also direct the Escrow and Transfer Agent to hold Closings
beginning upon its acceptance of Warrant Certificates, Purchase Payments,
Exercise
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Payments, Deposit Forms and Purchase Forms representing Warrants to purchase
55,556 shares of Common Stock and from time to time thereafter.
Section 8. Closing Procedures. At each Closing (or thereafter, as
specified), the Escrow and Transfer Agent shall:
(i) match orders represented by Deposit Forms and Purchase Forms, on
a first-come-first-served basis;
(ii) transfer Warrants from depositing Warrant holders to purchasers;
(iii) exercise Warrants on purchasers' behalf;
(iv) remit 7%, or $0.63, of the Exercise Payment to Xxxxxxxx, Xxxxxx
Securities, Inc. within three business days of each Closing;
(v) remit gross proceeds of $8.37 to Company together with all
accepted and matched Deposit Forms and Purchase Forms within
three business days of each Closing;
(vi) remit Purchase Payments to the depositing Warrant holders within
three business days of each Closing;
(vii)at the final Closing, remit any interest earned on funds held in
the escrow account to the Company; and
(viii) promptly following the final closing, return to the applicable
purchasers any funds and Purchase Forms for which Warrants were
not available for purchase.
Section 9. Revocation of Deposit. Pursuant to a notice delivered by the
Company to holders of Warrants deposited into the escrow account that have not
been allocated for sale to a prospective purchaser, 10 business days prior to
the expiration date of the Warrants, such holders will be entitled to revoke
their deposits of Warrants into the escrow account, and the Escrow and Transfer
Agent shall return such Warrants upon instruction from such holders.
Section 10. Cancellation. If the exchange activities contemplated by the
Offering are canceled by the Company at any time prior to September 9, 2002 (or
later, if extended), then the Escrow and Transfer Agent shall promptly remit to
each depositor at the address set forth in the Purchase Form, an amount equal to
the amount of the Exercise Payment and Purchase Payment thereunder. In such an
event, the Agent shall remit any interest earned on escrowed funds to the
Company within three business days.
Section 11. Investment of Funds. Pending disposition of the Exercise
Payment and Purchase Payment under this Agreement, the Escrow and Transfer Agent
will invest accepted Exercise Payments and Purchase Payments, in $1,000
increments above a maintained balance of $50,000, in overnight repurchase
agreement collateralized at 102% with obligations of the United States Treasury
or United States Government agencies. These repurchase agreement transactions
will earn interest at a market rate to be set by the seller.
Section 12. Termination of Duties. The obligations as Escrow and Transfer
Agent thereunder shall terminate upon the Agent's transferring all funds held
hereunder pursuant to the terms of Sections 7, 8, 9 and 10.
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Section 13. Manner of Acting. The Escrow and Transfer Agent shall be
protected in acting upon any written notice, request, waiver, consent,
certificate, receipt, authorization, or other paper or document which the Agent
believes to be genuine and what it purports to be.
Section 14. Waiver of Liability. The Escrow and Transfer Agent shall not be
liable for anything which the Agent may do or refrain from doing in connection
with this Agreement, except for the Agent's own negligence or willful
misconduct.
Section 15. Legal Counsel. The Escrow and Transfer Agent may confer with
legal counsel in the event of any dispute or questions to the construction of
any of the provisions hereof, or the Agent's duties hereunder, and shall incur
no liability and shall be fully protect in acting in accordance with the
opinions and instructions of such counsel. Any and all expenses and legal fees
in this regard will be paid by the Company.
Section 16. Disputes. In the event of any disagreement between the Company
and any other person resulting in adverse claims and demands being made in
connection with any funds involved herein or affected hereby, the Agent shall be
entitled to refuse to comply with such claims or demands as long as such
disagreement may continue, and in so refusing, shall make no delivery or other
disposition of any funds then held under this Agreement, and in so doing shall
be entitled to continue to refrain from acting until the right of adverse
claimants shall have been notified in writing of such agreement signed by the
parties thereto. In the event of such disagreement, the Agent may, but need not,
tender into the registry or custody of any court of competent jurisdiction in
Columbia County, Florida, all money or property in the Agent's possession under
the terms of this Agreement, together with such legal proceedings as the agent
deems appropriate and thereupon to be discharged form all further duties under
this Agreement. The filing of any such legal proceedings shall not deprive the
Agent of compensation earned prior to such filing. The Escrow and Transfer Agent
shall have no obligation to take any legal action in connection with this
Agreement or towards its enforcement, or to appear in, prosecute or defend any
action or legal proceeding which would or might involve the Agent in any cost,
expense, loss or liability unless indemnification shall be furnished.
Section 17. Resignation. The Escrow and Transfer Agent may resign for any
reason, upon thirty (30) days written notice to the Company. Upon the expiration
of such thirty (30) day notice period, the Escrow Agent shall deliver all funds
in possession under this Agreement to any successor Escrow and Transfer Agent
appointed by the Company, or if no successor Escrow and Transfer Agent has been
appointed, to any court of competent jurisdiction in Columbia County, Florida.
Upon either such delivery, the Escrow and Transfer Agent shall be released form
any and all liability under this Agreement. A termination under this paragraph
shall in no way change the terms of Sections 13 and 17 affecting reimbursement
of expenses, indemnity and fees.
Section 18. Service Charges. The Escrow and Transfer Agent will charge the
Company for services hereunder a fee of $1,500.00, plus an additional fee of
$5.00 for each check issued, $10.00 for each wire transfer, $5.00 for each
e-mail or facsimile transmission and $0.50 for each photocopy necessitated in
the performance of duties, with total fees for services not to exceed $2,000.00.
All actual expenses and costs incurred by the Agent in performing obligations
under this Agreement will be paid by the Company. All fees and expenses shall be
paid at the final Closing by the Company. Any subsequent fees and expenses will
be paid by the Company upon receipt of invoice.
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Section 19. Notices to Company and Agent. All notices, consents, waivers
and other communications under this Agreement must be in writing, and will be
deemed to have been duly given: (i) when delivered by hand (with written
confirmation of receipt); (ii) when received by the addressee, if sent by a
nationally recognized overnight delivery service (receipt requested); or (iii)
five days after mailing by first class mail, postage prepaid, in each case to
the appropriate address set forth below (or to such other addresses and
telecopier numbers as a party may designate by notice to the other parties):
PSB BancGroup, Inc. Independent Bankers' Bank of Florida
000 Xxxxx 0xx Xxxxxx 000 Xxxxxxxx Xxxxxxxxx Xxxxx, Xxx. 000
Xxxx Xxxx, Xxxxxxx 00000 Xxxx Xxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx Attention: Xxxxxxx Xxxxxx
Telephone: (000) 000-0000 Telephone:(000) 000-0000
Telecopier: (000) 000-0000 Telecopier: (000) 000-0000
Section 20. Successors. The rights created by this Agreement shall inure to
the benefit of, and the obligations created hereby shall be binding upon the
successors and assigns of the Escrow and Transfer Agent and the parties hereto.
Section 21. Governing Law. This Agreement shall be construed and enforced
according to the laws of the State of Florida and venue for any action hereunder
shall lie in Columbia County.
Section 22. Counterparts. This Agreement may be executed in several
counterparts, which taken together shall constitute a single document.
Section 23. Entire Agreement. This Agreement constitutes the entire
understanding and agreement of the parties hereto with respect to the
transactions described herein and supersedes all prior agreements or
understandings, written or oral, between the parties with respect thereto.
Section 24. Severability. If any provision of this Agreement is declared by
a court of competent jurisdiction to be invalid, void or unenforceable, the
remaining provision shall nevertheless continue in full force and effect without
being impaired or invalidated in any way.
Section 25. Internal Revenue Service. The Company shall provide the Escrow
and Transfer Agent with its Employer Identification Number as assigned by the
Internal Revenue Service. Additionally, the Company shall complete and return to
the Escrow and Transfer Agent any and all tax forms or reports required to be
maintained or obtained by the Escrow and Transfer Agent.
Section 26. Consent to Filing. The authorized signature of the Escrow and
Transfer Agent hereto is consent that a signed copy hereof may be filed with the
various regulatory authorities of the State of Florida and with any Federal
Government agencies or regulatory authorities.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first written above.
PSB BANCGROUP, INC.
Address: 000 Xxxxx 0xx Xxxxxx, Xxxxx 0
Xxxx Xxxx, Xxxxxxx 00000
Fax: (000) 000-0000
Phone: (000) 000-0000
Attest: By:
----------------- --------------------------------------
Date Xxxxxx X. Xxxxxxx
President and Chief Executive Officer
By: Xxxxxx X. Xxxxxx, XX
Title: Secretary
(SEAL)
INDEPENDENT BANKERS' BANK OF FLORIDA
Address: 000 Xxxxxxxx Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxx Xxxx, Xxxxxxx 00000-0000
Fax: (000) 000-0000
Phone: (000) 000-0000
Attest: By:
----------------- --------------------------------------
Date Xxxxxxx Xxxxxx
Vice President
By:
------------------------------
Title: ___________________________
(SEAL)
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