ESCROW AGREEMENT
THIS
ESCROW AGREEMENT
(this
“Agreement”) is entered into and effective as of the 18th day of December, 2006,
by and between Pro Financial Holdings, Inc., a Florida corporation (the
“Company”), and The Bankers Bank (the “Escrow Agent”).
WITNESSETH:
WHEREAS,
the
Company proposes to offer and sell (the “Offering”) up to 1,400,000 shares of
Common Stock, 1 cent par value per share (the “Shares”), to investors at
$10.00 per
Share
pursuant to a registered public offering; and
WHEREAS,
the
Company desires to establish an escrow for funds forwarded by subscribers for
Shares, and the Escrow Agent is willing to serve as Escrow Agent upon the terms
and conditions herein set forth.
NOW,
THEREFORE,
in
consideration of the premises and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Deposit
with Escrow Agent.
(a) The
Escrow Agent agrees that it will from time to time accept, in its capacity
as
escrow agent, subscription funds for the Shares (the “Escrowed Funds”) in the
form of checks received by the Company from subscribers. All checks shall be
made payable to the Escrow Agent. If any check does not clear normal banking
channels in due course, the Escrow Agent will promptly notify the Company.
Any
check which does not clear normal banking channels and is returned by the
drawer’s bank to Escrow Agent will be promptly turned over to the Company along
with all other subscription documents relating to such check. Any check received
that is made payable to a party other than the Escrow Agent shall be returned
to
the Company for return to the proper party. The Company in its sole and absolute
discretion may reject any subscription for shares for any reason and upon such
rejection it shall notify and instruct the Escrow Agent in writing to return
the
Escrowed Funds by check made payable to the subscriber. If the Company rejects
or cancels any subscription for any reason the Company will retain any interest
earned on the Escrowed Funds to help defray organizational costs.
(b) Subscription
agreements for the Shares shall be reviewed for accuracy by the Company and,
immediately thereafter, the Company shall deliver to the Escrow Agent the
following information: (i) the name and address of the subscriber; (ii) the
number of Shares subscribed for by such subscriber; (iii) the subscription
price
paid by such subscriber; (iv) the subscriber’s tax identification number
certified by such subscriber; and (v) a copy of the subscription
agreement.
2. Investment
of Escrowed Funds.
Upon
collection of each check by the Escrow Agent, the Escrow Agent shall invest
the
funds in deposit accounts or certificates of deposit which are fully insured
by
the Federal Deposit Insurance Corporation or another agency of the United States
government, short-term securities issued or fully guaranteed by the United
States government, federal funds, or such other investments as the Escrow Agent
and the Company shall agree. The Company shall provide the Escrow Agent with
instructions from time to time concerning in which of the specific investment
instruments described above the Escrowed Funds shall be invested, and the Escrow
Agent shall adhere to such instructions. Unless and until otherwise instructed
by the Company, the Escrow Agent shall by means of a “Sweep” or other automatic
investment program invest the Escrowed Funds in blocks of $1,000 in federal
funds. Interest and other earnings shall start accruing on such funds as soon
as
such funds would be deemed to be available for access under applicable banking
laws and pursuant to the Escrow Agent’s own banking policies.
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3. Distribution
of Escrowed Funds.
The
Escrow Agent shall distribute the Escrowed Funds in the amounts, at the times,
and upon the conditions hereinafter set forth in this Agreement.
(a) If
at any
time on or prior to the expiration date of the offering as described in the
prospectus or offering circular relating to the offering, (the “Closing Date”),
(i) the Escrow Agent has certified to the Company in writing that the Escrow
Agent has received at least $ in Escrowed Funds, and (ii) the Escrow Agent
has
received a certificate from the President or the Chairman of the Board of the
Company that the company has received preliminary approval from the Florida
Office of Financial Regulation and the FDIC to open a bank, then the Escrow
Agent shall deliver the Escrowed Funds to the Company to the extent such
Escrowed Funds are collected funds. If any portion of the Escrowed Funds are
not
collected funds, then the Escrow Agent shall notify the Company of such fact
and
shall distribute such funds to the Company only after such funds become
collected funds. For purposes of this Agreement, “collected funds” shall mean
all funds received by the Escrow Agent, which have cleared normal banking
channels.
(b) If
the
Escrowed Funds do not, on or prior to the Closing Date, become deliverable
to
the Company based on failure to meet the conditions described in Paragraph
3(a),
or if the Company terminates the offering at any time prior to the Closing
Date
and delivers written notice to the Escrow Agent of such termination (the
“Termination Notice”), the Escrow Agent shall return the Escrowed Funds which
are collected funds as directed in writing by the Company to the respective
subscribers in amounts equal to the subscription amount theretofore paid by
each
of them. All uncleared checks representing Escrowed Funds which are not
collected funds as of the Initial Closing Date shall be collected by the Escrow
Agent, and together with all related subscription documents thereof shall be
delivered to the Company by the Escrow Agent, unless the Escrow Agent is
otherwise specifically directed in writing by the Company.
4. Distribution
of Interest.
Any
interest earned on the Escrowed Funds shall be retained by the
Company.
5. Fee
of Escrow Agent.
The
escrow account will accrue a service charge of $20.00 per month. In addition,
a
$20.00 per check fee will be charged if the escrow account has to be refunded
due to a failure to complete the subscription. All of these fees are payable
upon the release of the Escrowed Funds, and the Escrow Agent is hereby
authorized to deduct such fees from the Escrowed Funds prior to any release
thereof pursuant to Section 3 hereof.
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6. Liability
of Escrow Agent.
(a) In
performing any of its duties under the Agreement, or upon the claimed failure
to
perform its duties hereunder, the Escrow Agent shall not be liable to anyone
for
any damages, losses or expenses which it may incur as a result of the Escrow
Agent so acting, or failing to act; provided, however, the Escrow Agent shall
be
liable for damages arising out of its willful default or misconduct or its
gross
negligence under this Agreement. Accordingly, the Escrow Agent shall not incur
any such liability with respect to (i) any action taken or omitted to be taken
in good faith upon advice of its counsel or counsel for the Company which is
given with respect to any questions relating to the duties and responsibilities
of the Escrow Agent hereunder; or (ii) any action taken or omitted to be taken
in reliance upon any document, including any written notice or instructions
provided for this Escrow Agreement, not only as to its due execution and to
the
validity and effectiveness of its provisions but also as to the truth and
accuracy of any information contained therein, if the Escrow Agent shall in
good
faith believe such document to be genuine, to have been signed or presented
by a
proper person or persons, and to conform with the provisions of this
Agreement.
(b) The
Company agrees to indemnify and hold harmless the Escrow Agent against any
and
all losses, claims, damages, liabilities and expenses, including, without
limitation, reasonable costs of investigation and counsel fees and disbursements
which may be imposed by the Escrow Agent or incurred by it in connection with
its acceptance of this appointment as Escrow Agent hereunder or the performance
of its duties hereunder, including, without limitation, any litigation arising
from this Escrow Agreement or involving the subject matter thereof; except,
that
if the Escrow Agent shall be found guilty of willful misconduct or gross
negligence under this Agreement, then, in that event, the Escrow Agent shall
bear all such losses, claims, damages and expenses.
(c) If
a
dispute ensues between any of the parties hereto which, in the opinion of the
Escrow Agent, is sufficient to justify its doing so, the Escrow Agent shall
retain legal counsel of its choice as it reasonably may deem necessary to advise
it concerning its obligations hereunder and to represent it in any litigation
to
which it may be a part by reason of this Agreement. The Escrow Agent shall
be
entitled to tender into the registry or custody of any court of competent
jurisdiction all money or property in its hands under the terms of this
Agreement, and to file such legal proceedings as it deems appropriate, and
shall
thereupon be discharged from all further duties under this Agreement. Any such
legal action may be brought in any such court as the Escrow Agent shall
determine to have jurisdiction thereof. In connection with such dispute, the
Company shall indemnify the Escrow Agent against its court costs and reasonable
attorney’s fees incurred.
(d) The
Escrow Agent may resign at any time upon giving thirty (30) days written notice
to the Company. If a successor escrow agent is not appointed by Company within
thirty (30) days after notice of resignation, the Escrow Agent may petition
any
court of competent jurisdiction to name a successor escrow agent and the Escrow
Agent herein shall be fully relieved of all liability under this Agreement
to
any and all parties upon the transfer of the Escrowed Funds and all related
documentation thereto, including appropriate information to assist the successor
escrow agent with the reporting of earnings of the Escrowed Funds to the
appropriate state and federal agencies in accordance with the applicable state
and federal income tax laws, to the successor escrow agent designated by the
Company appointed by the court.
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7. Appointment
of Successor.
The
Company may, upon the delivery of thirty (30) days written notice appointing
a
successor escrow agent to the Escrow Agent, terminate the services of the Escrow
Agent hereunder. In the event of such termination, the Escrow Agent shall
immediately deliver to the successor escrow agent selected by the Company,
all
documentation and Escrowed Funds including interest earnings thereon in its
possession, less any fees and expenses due to the Escrow Agent or required
to be
paid by the Escrow Agent to a third party pursuant to this
Agreement.
8. Notice.
All
notices, requests, demands and other communications or deliveries required
or
permitted to be given hereunder shall be in writing and shall be deemed to
have
been duly given three days after having been deposited for mailing if sent
by
registered mail, or certified mail return receipt requested, or delivery by
courier, to the respective addresses set forth below:
| If to the subscribers for Shares: | To their respective addresses as specified in their Subscription Agreements. | |
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The
Company:
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Pro
Financial Holdings, Inc.
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Attn:
Xxxxx Xxxxxxxx, President
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0000
Xxxxxxxxxxxx Xxxx. Xxxxx X-0
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Xxxxxxxxxxx,
Xx 00000
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With
a copy to:
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Xxxxxxx
X. Xxxxxxxx, Esq.
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Xxxxx
& Xxxxxxxxx, P.A.
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0000
Xxxx Xxxxx
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Xxxxxxxxxxx,
Xx 00000
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The
Escrow Agent:
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The
Bankers Bank
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0000
Xxxxx Xxxxx Xxxx
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000
Xxxxx Xxxxxx
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Xxxxxxx,
XX 00000-0000
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Attention:
Xxxx Xxxxxx, First Vice President
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9. Representations
of the Company.
The
Company hereby acknowledges that the status of the Escrow Agent with respect
to
the offering of the Shares is that of agent only for the limited purposes herein
set forth, and hereby agrees it will not represent or imply that the Escrow
Agent, by serving as the Escrow Agent hereunder or otherwise, has investigated
the desirability or advisability in an investment in the Shares, or has
approved, endorsed or passed upon the merits of the Shares, nor shall the
Company use the name of the Escrow Agent in any manner whatsoever in connection
with the offer or sale of the Shares, other than by acknowledgment that it
has
agreed to serve as Escrow Agent for the limited purposes herein set
forth.
10. General.
(a)
This
Agreement shall be governed by and construed and enforced in accordance with
the
laws of the State of Georgia.
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(b)
The
section headings contained herein are for reference purposes only and shall
not
in any way affect the meaning or interpretation of this Agreement.
(c)
This
Agreement sets forth the entire agreement and understanding of the parties
with
regard to this escrow transaction and supersedes all prior agreements,
arrangements and understandings relating to the subject matter
hereof.
(d)
This
Agreement may be amended, modified, superseded or canceled, and any of the
terms
or conditions hereof may be waived, only by a written instrument executed by
each party hereto or, in the case of a waiver, by the party waiving compliance.
The failure of any part at any time or times to require performance of any
provision hereof shall in no manner affect the right at a later time to enforce
the same. No waiver in any one or more instances by any part of any condition,
or of the breach of any term contained in this Agreement, whether by conduct
or
otherwise, shall be deemed to be, or construed as, a further or continuing
waiver of any such condition or breach, or a waiver of any other condition
or of
the breach of any other terms of this Agreement.
(e)
This
Agreement may be executed simultaneously in two or more counterparts, each
of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
(f)
This
Agreement shall inure to the benefit of the parties hereto and their respective
administrators, successors and assigns. The Escrow Agent shall be bound only
by
the terms of this Escrow Agreement and shall not be bound by or incur any
liability with respect to any other agreement or understanding between the
parties except as herein expressly provided. The Escrow Agent shall not have
any
duties hereunder except those specifically set forth herein.
(g)
No
interest in any part to this Agreement shall be assignable in the absence of
a
written agreement by and between all the parties to this Agreement, executed
with the same formalities as this original Agreement.
IN
WITNESS WHEREOF,
the
parties have duly executed this Agreement as the date first written
above.
| COMPANY: |
ESCROW
AGENT:
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| PRO FINANCIAL HOLDINGS, INC. |
THE
BANKERS BANK
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| By: /s/ Xxxxx Xxxxxxxx | By: /S/ Xxxx Xxxxxx | ||
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Xxxxx
Xxxxxxxx
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Xxxx Xxxxxx |
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President
and CEO
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First
Vice President
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