1
then there shall be a proportional adjustment in the Warrant Exercise Price and
the number of Redeemable Warrants issuable upon the exercise of the
Underwriter's Warrant.
9. This Agreement shall be governed by and in accordance
with the laws of the State of New York.
IN WITNESS WHEREOF, HOMEOWNERS FINANCIAL CORP. has
caused this Underwriter's Warrant to be signed by its duly
authorized officers, and this Underwriter's Warrant to be dated as
of the date first above written.
HOMEOWNERS FINANCIAL CORP.
By:__________________________________
Name:
Title:
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PURCHASE FORM
(To be signed only upon exercise of Underwriter's Warrant)
The undersigned, the holder of the foregoing Underwriter's Warrant,
hereby irrevocably elects to exercise the purchase rights represented by such
Warrant for, and to purchase thereunder, Shares of HOMEOWNERS FINANCIAL
CORP., par value $0.01 per share, and/or Redeemable Common Stock Purchase
Warrants to purchase one (1) share of Common Stock, and herewith makes payment
of $ therefor (or hereby surrenders and delivers that portion of the
Underwriter's Warrant having equivalent value (as determined in accordance with
the provisions of subparagraph (d) of paragraph 2 of the Underwriter's
Warrant)), and requests that the certificates for shares of Common Stock and/or
Redeemable Warrants be issued in the name(s) of, and delivered to ,
whose address(es) is (are):
Dated: , 19
Signature_______________________________________
_________________________________________________
(Print name under signature)
(Signature must conform in all respects to the name of
Holder as specified on the face of the Underwriter's
Warrant).
_________________________________________________
(Insert Social Security or Other Identifying Number of
Holder)
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FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer the Warrant)
FOR VALUE RECEIVED___________________________________________________
hereby sells, assigns and transfers unto______________________________________
(Please print name and address of transferee)
this Warrant, together with all right, title and interest therein, and does
hereby irrevocably constitute and appoint Attorney, to transfer the
within Warrant on the books of HOMEOWNERS FINANCIAL CORP., with full power of
substitution.
Dated:
Signature_____________________________________
___________________________________________________
(Print name under signature)
(Signature must conform in all respects to the name of
Holder as specified on the face of the Underwriter's
Warrant.)
___________________________________________________
(Insert Social Security or Other Identifying Number of
Holder)
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Exhibit 10n
ESCROW AGREEMENT
AGREEMENT, made as of the ____ day of October 1996, by and among the
persons and/or entities whose/which names and addresses appear on Schedule "A"
annexed hereto (hereinafter collectively the "Parties") and Atlantic Bank of New
York, 000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Escrow Agent").
W I T N E S S E T H:
WHEREAS, the Parties propose to establish an escrow with the Escrow
Agent, and the Escrow Agent is willing to establish such escrow on the terms and
subject to the conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants, conditions
and promises herein contained, the Parties hereto hereby agree as follows:
1. INFORMATION SHEET. Schedules "A", "B" and "C" attached
hereto, as hereinafter more particularly defined (sometimes
collectively the "Information Sheet") are incorporated herein and
made a part of this Agreement by reference thereto.
(a) Schedule "A" - Schedule "A" identifies the Parties who
desire to establish the escrow, as more particularly defined herein, with the
Escrow Agent.
(b) Schedule "B" - Schedule "B" sets forth certain terms not
otherwise defined.
(c) Schedule "C" - Schedule "C" defines the amount and manner
of payment of the Escrow Agent's compensation, if any.
2. ESTABLISHMENT OF THE ESCROW ACCOUNT.
2.1 The Escrow Agent shall establish a non-interest-bearing
escrow account at the bank and bearing the designation set forth on the
Information Sheet (the "Escrow Account").
2.2 The Parties by their signature hereto have notified the
Escrow Agent that the commencement date of the Offering Period (the
"Commencement Date") is ___________________________.
2.3 The Offering Period, which shall be deemed to commence on
the Commencement Date, shall consist of the number of calendar days or business
days set forth on the Information Sheet. The Offering Period shall be extended
by an Extension Period only if the Escrow Agent shall have received written
notice thereof at least one (1) business day prior to the expiration of the
Offering Period. The Extension Period, which shall be deemed to commence on the
next calendar day following the expiration of the Offering Period, shall consist
of the number of calendar days or business days set forth on the Information
Sheet. The last day of the
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Offering Period, or the last day of the Extension Period (if the Escrow Agent
has received written notice thereof as hereinafter provided), is referred to
herein as the "Termination Date". Except as provided in Subsection 4.3 hereof,
after the Termination Date the Parties shall not deposit, and the Escrow Agent
shall not accept, any additional amounts representing payments by prospective
purchasers. All notices to the Escrow Agent shall be signed by an authorized
representative of the Parties (other than the Escrow Agent).
3. DEPOSITS IN THE ESCROW ACCOUNT.
3.1 All amounts received from prospective purchasers of the
Securities shall be deposited in the Escrow Account, which amounts shall be in
the form of checks or wire transfers representing the payment of money. All
checks deposited into the Escrow Account shall be made payable to, or endorsed
in blank to, "Atlantic Bank of New York, Escrow Agent - Homeowners Financial
Corp." Any check payable or endorsed other than as required hereby shall be
returned to the prospective purchaser if materially defective or returned by the
bank. If the Escrow Agent has insufficient information to return such check,
then the Parties shall supply such information to the Escrow Agent so as to
permit the Escrow Agent to return such check to the prospective purchaser
(together with any Subscription Information, as defined below, or other
documents delivered therewith) by noon of the fifth (5th) business day following
receipt of such check by the Escrow Agent, and such check shall be deemed not to
have been delivered by the Escrow Agent pursuant to the terms of this Agreement.
In the event that any portion of the offering price per share shall be payable
by a promissory note or notes, such notes shall not be delivered to or accepted
by the Escrow Agent, and the Minimum Dollar Amount (as defined in the
Information Sheet) shall be based solely on the cash portion of such offering
price.
3.2 The Escrow Agent shall not be required to accept any
amounts representing payments by prospective purchasers, whether by check or
wire transfer, except during the bank's regular business hours.
3.3 Amounts deposited in the Escrow Account which are
available for withdrawal by the Escrow Agent in accordance with applicable law
are herein referred to as the "Fund".
3.4 The Escrow Agent shall refund any portion of the Fund
prior to disbursement of the Fund in accordance with Section 4 hereof upon
instructions, in writing, signed by the Parties.
4. DISBURSEMENT FROM THE ESCROW ACCOUNT.
4.1 Subject to Section 4.3 below, in the event that at
the close of regular banking hours on the Termination Date the
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amount in the Fund (a) shall be less than the Minimum Dollar Amount, or (b)
shall represent the sale of less than the Minimum Share Amount, as indicated by
the information submitted to the Escrow Agent by the Parties, then, in either
such case, the Escrow Agent shall promptly refund to each prospective purchaser
(based upon information provided by the Parties to the Escrow Agent) the amount
of payment received from such purchaser which is then held in the Fund or which
thereafter becomes available for withdrawal by the Escrow Agent in accordance
with applicable law, without interest thereon and without deduction therefrom,
and the Escrow Agent shall notify the Parties of its distribution of the Fund.
4.2 Subject to Section 4.3 below, in the event that at any
time up to the close of banking hours on the Termination Date, the amount in the
Fund shall be at least equal to the Minimum Dollar Amount and shall represent
the sale of not less than the Minimum Share Amount, the Escrow Agent shall
notify the Parties of such fact, in writing, within a reasonable time
thereafter. The Escrow Agent shall hold the Fund until the Escrow Agent receives
instructions, in writing, signed by the Parties with regard to the disbursement
of the Fund. In addition, the Escrow Agent shall be authorized to return funds
to a subscriber upon receipt of instructions signed by either of the Parties.
4.3 In the event that the Escrow Agent has on hand at the
close of business on the Termination Date any amounts which have not become
available for withdrawal by the Escrow Agent in accordance with applicable law
which when added to the Fund would raise the amount in the Fund to the Minimum
Dollar Amount and result in the Fund representing the sale of the Minimum Share
Amount, then, in such event, a period of ten days may be utilized to allow such
amounts to become available for withdrawal by the Escrow Agent in accordance
with such applicable law (the "Collection Period"). During the Collection
Period, the Issuer shall not deposit, and the Escrow Agent shall not accept, any
additional amounts; provided, however, that such amounts which were received by
either of the Parties by the close of business on the Termination Date may be
deposited with the Escrow Agent's bank by noon of the next business day
following the Termination Date.
If at the close of business on the last day of the Collection
Period an amount sufficient to raise the amount in the Fund to the Minimum
Dollar Amount and which would result in the Fund representing the sale of the
Minimum Share Amount shall not have become available for withdrawal by the
Escrow Agent in accordance with applicable law, then the Escrow Agent shall
notify the Parties, in writing, of such fact and shall return all amounts then
in the Fund, and any amounts which thereafter become available for withdrawal by
the Escrow Agent in accordance with applicable law, to the prospective
purchasers as provided in Subsection 4.1 hereof. If a sufficient amount has
become available for withdrawal by the Escrow Agent by such time as hereinafter
provided in this
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Subsection 4.3, then the Parties shall proceed as provided in Subsection 4.2
hereof without regard to this Subsection 4.3.
4.4 Upon disbursement of the Fund pursuant to the terms of
this Section 4, the Escrow Agent shall be relieved of any and all further
obligations and released from any and all liability under this Agreement. It is
expressly agreed and understood that in no event shall the aggregate amount of
payments made by the Escrow Agent exceed the amount of the Fund.
5. RIGHTS, DUTIES AND RESPONSIBILITIES OF ESCROW AGENT.
It is understood and agreed that the duties of the Escrow Agent are
purely ministerial in nature, and that:
5.1 The Escrow Agent shall not be responsible for or be
required to enforce any of the terms or conditions of this or any other
Agreement.
5.2 The Escrow Agent shall not be required to keep records of
any information with respect to payments deposited by the Parties except as to
the amount of such payments.
5.3 The Escrow Agent shall be under no duty or responsibility
to enforce collection of any check delivered to it hereunder. The Escrow Agent,
within a reasonable time, may return to the Parties any check received which is
dishonored.
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 pursuant to this Agreement without the necessity if
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. The Escrow Agent
shall not be called upon to advise any party to the wisdom in selling or
retaining or taking or refraining from any action with respect to any funds
deposited hereunder.
5.5 In the event that the Escrow Agent shall be uncertain as
to its duties or rights hereunder or shall receive instructions with respect to
the Escrow Account or the Fund which, in its sole determination, are in conflict
either with other instructions received by it or with any provision of this
Agreement, then, in such event, it shall be entitled to hold the Fund, 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 or courts of competent jurisdiction or otherwise; or the Escrow Agent, at
its sole option, may deposit the Fund (and any other amounts that thereafter
become part of the
4
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Fund) 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 Fund with the Clerk of any court, the Escrow Agent shall be relieved of
any and all further obligations and released from any and all liability
hereunder.
5.6 The Escrow Agent shall not be liable for any error in
judgement, action taken or omitted hereunder, or for the misconduct of any of
its partners, employees, agent's or attorneys 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, including itself, 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 Fund or any part
thereof or to file any financing statement under the Uniform Commercial Code or
any similar regulatory or reporting agency or body used to perfect a security
interest with respect to the Fund or any part thereof.
6. AMENDMENT; RESIGNATION. This Agreement may be altered or amended
only with the written consent of the Parties and the Escrow Agent. The Escrow
Agent may resign for any reason upon thirty (30) days' written notice to the
Parties. Should the Escrow Agent resign as herein provided, it shall not be
required to accept any deposit, make any disbursement or otherwise dispose of
the Fund, but its only duty shall be to hold the Fund for a period of not more
than 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 (including the name and address of such successor escrow agent)
shall have been given to the resigning Escrow Agent, the Escrow Agent shall pay
over to the successor escrow agent the Fund, less any portion thereof previously
paid out in accordance with this Agreement; or (b) if the resigning Escrow Agent
shall not have received written notice signed by the Parties and a successor
escrow agent, then the resigning Escrow Agent shall promptly refund the amount
in the Fund to each prospective purchaser, together without interest thereon or
deduction therefrom, and the resigning Escrow Agent shall notify the Parties, in
writing, of its liquidation and distribution of the Fund; whereupon, in either
case, the Escrow Agent shall be relieved of all further obligations and released
from any and all liability under this Agreement. Without limiting the provisions
of Section 8 hereof, the resigning Escrow Agent shall be entitled to be
reimbursed by the Parties and the Parties shall be liable for any expenses
incurred in connection with the Escrow Agent's resignation, the transfer of the
Fund to a successor escrow agent or the distribution of the Fund pursuant to
this Section 6.
7. REPRESENTATIONS AND WARRANTIES. The Parties, each represent and
warrant to the Escrow Agent that:
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9
7.1 No party other than the parties hereto and the prospective
purchasers have, or shall have, any lien, claim or security interest in the Fund
or any part thereof.
7.2 No financing statement under the Uniform Commercial Code
is on file in any jurisdiction claiming a security interest in or describing
(whether specifically or generally) the Fund or any part thereof.
7.3 All of the information contained in the Information Sheet
is, as of the date hereof, and will be, at the time of any disbursement of the
Fund, true and correct in all material respects.
8. FEES AND EXPENSES. The Parties shall pay to the Escrow
Agent, the Escrow Agent Fee set forth on Schedule "C". In addition,
the Parties agree to reimburse the Escrow Agent for any reasonable
expenses incurred in connection with this Agreement.
9. INDEMNIFICATION AND CONTRIBUTION.
9.1 The Parties (the "Indemnitors") jointly and severally
agree to indemnify the Escrow Agent and its partners, employees, agents and
attorneys (jointly and severally the "Indemnitees") against, and hold them
harmless of and from, any and all loss, liability, cost, damage and expense,
including, without limitation, reasonable counsel fees and expenses, which the
Indemnitees may suffer or incur by reason of any action, claim or proceeding
brought against the Indemnitees arising out of or relating in any way to this
Agreement or any transaction to which this Agreement relates, unless such
action, claim or proceeding is the result of the willful misconduct or gross
negligence of the Indemnitees.
9.2 If the indemnification provided for in this Section 9 is
applicable, but for any reason is held to be unavailable, the Indemnitors shall
contribute such amounts as are just and equitable to pay, or to reimburse the
Indemnitees for, the aggregate of any and all losses, liabilities, costs,
damages and expenses, including counsel fees, actually incurred by the
Indemnitees as a result of or in connection with, and 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 Indemnitors.
9.3 The provisions of this Section 9 shall survive any
termination of this Agreement, whether by disbursement of the Fund, resignation
of the Escrow Agent or otherwise.
10. FURTHER ASSURANCE. The Parties, jointly and severally,
agree to do such further acts and things and to execute and deliver
such statements, assignments, agreements, instruments and other
documents as the Escrow Agent from time to time reasonably may
request in connection with the administration, maintenance,
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enforcement or adjudication of this Agreement in order (a) to give the Escrow
Agent confirmation and assurance of the Escrow Agent's rights, powers,
privileges, remedies and interests under this Agreement and applicable law, (b)
to better enable the Escrow Agent to exercise any such right, power, privilege
or remedy, or (c) to otherwise effectuate the purpose and the terms and
provisions of this Agreement, each in such form and substance as may be
acceptable to the Escrow Agent.
11. CUMULATIVE RIGHTS. The rights and remedies granted to the
Escrow Agent in this Agreement are cumulative and not exclusive,
and are in addition to any and all other rights and remedies
granted and permitted under and pursuant to law.
12. NO WAIVER. The failure of any of the signatories hereto
to enforce any provision hereof on any occasion shall not be deemed
to be a waiver of any preceding or succeeding breach of such
provision or any other provision.
13. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement and understanding of the signatories hereto and no
amendment, modification or waiver of any provision herein shall be
effective unless in writing, executed by the party charged
therewith.
14. GOVERNING LAW. This Agreement shall be construed,
interpreted and enforced in accordance with and shall be governed
by the laws of the State of New York without regard to the
principles of conflicts of laws.
15. BINDING EFFECT. This Agreement shall bind and inure to
the benefit of the parties, their successors and assigns.
16. ASSIGNMENT AND DELEGATION OF DUTIES. This Agreement may
not be assigned by the parties hereto. This Agreement is in the
nature of a personal service contract and the duties imposed hereby
are non-delegable.
17. PARAGRAPH HEADINGS. The paragraph headings herein have
been inserted for convenience of reference only, and shall in no
way modify or restrict any of the terms or provisions hereof.
18. NOTICES. Any notice or other communication under the
provisions of this Agreement shall be in writing, and shall be
given by facsimile, or by postage prepaid, registered or certified
mail, return receipt requested, by hand delivery with receipt
acknowledged, or by the express mail service offered by the United
States Post Office, directed to the Parties at the address set
forth in Schedule "A", and to the Escrow Agent at its address set
forth above to the attention of Xxxxxx Xxx or to any new address of
which any party hereto shall have informed the others by the giving
of notice in the manner provided herein. Such notice or communica-
7
11
tion shall be effective if shipped by mail, three (3) days after it is mailed
within the continental United States.
19. UNENFORCEABILITY; SEVERABILITY. If any provision of this Agreement
is found to be void or unenforceable by a court of competent jurisdiction, then
the remaining provisions of this Agreement shall, nevertheless, be binding upon
the parties with the same force and effect as though the unenforceable part had
been severed and deleted.
20. NO THIRD PARTY RIGHTS. The representations, warranties and other
terms and provisions of this Agreement are for the exclusive benefit of the
parties hereto, and no other person shall have any right or claim against any
party by reason of any of those terms and provisions or be entitled to enforce
any of those terms and provisions against any party.
21. COUNTERPARTS. This Agreement may be executed in counter-
parts, all of which shall be deemed to be duplicate originals.
22. CONSENT TO JURISDICTION AND WAIVER OF TRIAL BY JURY.
(i) The parties hereto hereby irrevocably agree that they will
not initiate any action or proceeding arising out of or relating to this Escrow
Agreement in any court other than a court of the State of New York sitting in
New York City and any Federal court sitting in New York City and any appellate
court therefrom.
(ii) The parties hereto hereby irrevocably submit to the
jurisdiction of any court of the State of New York sitting in New York City and
any Federal court sitting in New York City and any appellate court therefrom in
any action or proceeding arising out of or relating to this Escrow Agreement.
(iii) The parties hereto hereby irrevocably waive the right to
trial by jury in any action, proceeding, claim or counterclaim whether in
contract or tort, at law or in equity, in any manner connected with this Escrow
Agreement or any transactions hereunder.
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12
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the day and year first above written.
ATLANTIC BANK OF NEW YORK
By: _______________________________
HOMEOWNERS FINANCIAL CORP.
By: _______________________________
TOLUCA PACIFIC SECURITIES CORPORATION
By: _______________________________
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SCHEDULE "A"
All parties listed on this Schedule "A" are referred to, collectively
and individually, as "the Parties" throughout this Agreement.
THE PARTIES TO THIS AGREEMENT ARE:
1. Name: Toluca Pacific Securities Corporation
Address: 0000 Xxxx Xxxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxx Xxxxxxx,
President
Corporation X Partnership ______ Individual ______
2. Name: Homeowners Financial Corp.
Address: 0000 Xxxx Xxx Xxxxxx Xxxx, Xxxxx 000
Xxxx, Xxxxxxxx 00000
Attn: Xxxxxxxxx X. Xxxxxxx, III
President
Corporation X Partnership ______ Individual ______
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SCHEDULE "B"
1. THE SECURITIES
Description of the Securities to be offered: Up to one million, two
hundred and seventy thousand (1,270,000) Shares of Common Stock, $.01
par value per share and one million, two hundred and seventy thousand
(1,270,000) Reedemable Class A Common Stock Purchase Warrants.
Offering price is $______ per Share and $_______ per A Warrant.
2. MINIMUM AMOUNTS REQUIRED FOR DISBURSEMENT OF THE ESCROW
ACCOUNT
Aggregate dollar amount which must be available for withdrawal by the
Escrow Agent before the Escrow Account may be disbursed to the Issuer
("Minimum Dollar Account"): $
Total number of Shares which must be subscribed for before the
Escrow Account may be disbursed to the Issuer ("Minimum Share
Amount"): 550,000 Shares
There is no minimum number of A Warrants that must be sold.
3. PLAN OF DISTRIBUTION OF THE SECURITIES
Offering Period: One hundred twenty (120) calendar days.
Extension Period, if any: Ninety (90) calendar days.
Collection Period, if any: Ten (10) calendar days.
4. THE ESCROW ACCOUNT
Title of the Escrow Account: Atlantic Bank of New York,
Escrow Agent - Homeowners
Financial Corp.
5. Bank Name and Address: Atlantic Bank of New York
960 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxx
15
SCHEDULE "C"
ATLANTIC BANK OF NEW YORK, as Escrow Agent under this Agreement, shall
be paid a fee for its services hereunder, as follows:
$2,000 due upon the release of the funds from the first closing.
Additionally, the Parties shall reimburse the Escrow Agent for all
checks, checks returned and other charges, expenses and costs imposed
by the bank.
