EXHIBIT 9.1
ESCROW AGREEMENT
THIS ESCROW AGREEMENT, made and entered into between:
Florida Savings Bancorp, Inc.
a Florida corporation
(the "Company")
- and -
SunTrust Bank
(the "Escrow Agent")
- and -
Xxxxxxxx, Xxxxxx Securities, Inc.
(the "Underwriter")
R E C I T A L S:
A. The Company proposes to offer and sell in a public offering (the
"Offering") a minimum of Two Million Dollars ($2,000,000) and a maximum of Five
Million Dollars ($5,000,000) of convertible debentures of the Company, at $1,000
per debenture (the "Debentures").
B. The Company intends to sell the Debentures on a "best efforts all or
none" basis as to 2,000 Debentures (the "Minimum") and on a "best efforts" basis
as to the remaining 3,000 Debentures in the Offering.
C. Each Debenture will be sold to subscribers ("Subscribers") at a
price of One Thousand Dollars ($1,000), in accordance with the terms of the
Prospectus, dated ____________, 2002. Unless otherwise stated, the terms defined
in the Prospectus shall have the same meanings herein. The Subscribers will
purchase the Debentures by executing a debenture order form (the "Debenture
Order Form") and by making certain subscription payments (the "Subscription
Payments") in full upon subscription, by tendering to the Company the purchase
price per Debenture times the number of Debentures purchased.
D. The Company desires that the Subscription Payments and the Debenture
Order Forms be held in escrow until such time as the Initial Closing pursuant to
the Offering is completed in accordance with the terms of the Prospectus or the
Offering is withdrawn by the Company.
E. The Escrow Agent is willing to establish an escrow account on the
terms and subject to the conditions hereinafter set forth.
F. The Company has agreed to reimburse the Escrow Agent in the full
amount for any items returned unpaid to the Escrow Agent, after all funds held
in escrow have been dispersed.
NOW, THEREFORE, in consideration of the mutual covenants and promises
herein contained and other good and valuable consideration, it is agreed as
follows:
1. Recitals. All of the above recitals are true and correct.
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2. Establishment of Escrow Account. Prior to the date on which the
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Prospectus is first used by the Company, the parties hereto shall establish, and
by execution of this Agreement hereby agree to establish, an escrow account,
which escrow account shall be entitled "Florida Savings Bancorp, Inc. SunTrust
Bank Escrow Agent" (the "Escrow Account").
3. Escrow Period. Upon the execution of this Agreement and the payment
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of the amounts, if any, due to the Escrow Agent upon the execution of this
Agreement, the Escrow Agent agrees to receive, hold and invest Subscription
Payments in accordance with the terms of this Agreement until the Termination
Date, as defined below (the "Escrow Period"). The "Termination Date" shall be
the earlier of the following to occur:
(a) The date on which the Escrow Agent confirms that it has received
in the Escrow Account gross proceeds of $2,000,000 representing completion of
the minimum; or
(b) 5:00 p.m., Miami, Florida Time, on ____________ (unless
extended in writing by the Company to ____________ as described in the
Prospectus) ("Termination Date"); or
(c) 5:00 p.m., Miami, Florida Time, on the date upon which the
Escrow Agent is notified in writing of a determination made in writing by the
Company to terminate the Offering, whether or not the Minimum number of
Debentures is sold.
The Company is aware and understands that during the Escrow Period it
will not be entitled to any funds received into escrow and no amounts deposited
in the Escrow Account shall become the property of the Company or any other
entity, or be subject to the debts of the Company or any other entity; and the
Escrow Agent shall not make any disbursements from the Escrow Account except as
expressly provided herein or pursuant to any lawful order issued to the Escrow
Agent by a tribunal of competent jurisdiction.
4. Escrow Deposits. The Company has included a statement in the
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Prospectus or supporting documents instructing Subscribers to make checks for
the purchase of Debentures payable to "SunTrust Bank, Escrow Agent for Florida
Savings Bancorp, Inc." The Escrow Agent agrees, upon receipt thereof, to deposit
into the Escrow Account any and all checks, drafts, money orders and other
instruments received from Subscribers, the Underwriter or other selected dealers
payable to the Escrow Agent as escrow agent for the purchase of the Debentures
and any and all monies for the purchase of the Debentures (the "Fund").
Simultaneously with the delivery to the Escrow Agent of checks, drafts, money
orders or other instruments or monies received from Subscribers of the
Debentures, the Company shall inform the Escrow Agent, by confirmation slip or
other writing, of the name, address, and social security or tax identification
number of each Subscriber and of the amount paid and number of Debentures
subscribed for by such Subscriber. The Escrow Agent shall have the right to rely
fully on the confirmation slips or other writings so furnished to it by the
Company.
5. Disbursements from the Escrow Account.
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(a) If on or before the Termination Date the Escrow Agent has
received in the Escrow Account gross proceeds of $2,000,000 in deposited funds
representing at least the Minimum, the Escrow Agent shall notify the Company and
the Underwriter in writing of this fact. Except as
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otherwise provided in this Agreement, the Escrow Agent shall hold such monies,
along with any additional proceeds deposited in the Escrow Account from sales of
Debentures after the Minimum has been deposited, until all checks have cleared
and until Escrow Agent is given instructions in writing by the Company and the
Underwriter as to the disbursement of the Fund.
(b) In the event that the Escrow Agent does not receive in
accordance with this Agreement $2,000,000 representing the proceeds from the
sale of the Minimum prior to the Termination Date, the Escrow Agent shall refund
promptly to each Subscriber the amount actually received from such Subscriber,
with interest thereon but without other deduction therefrom, and the Escrow
Agent shall notify the Company and the Underwriter of its distribution of the
Fund. The purchase money returned to such Subscribers shall be free and clear of
any and all claims of the Company or any of its creditors.
(c) Upon the disbursement of all or any portion of the Fund in
accordance with either (a) or (b) above, the Escrow Agent shall have no further
responsibility with respect to the escrow deposits so disbursed, and upon
disbursement from the Fund in accordance with (a) or (b) above, shall have no
further responsibility under this Agreement. In this regard it is expressly
agreed and understood that in no event shall the aggregate amount of
disbursements made by the Escrow Agent exceed the amounts deposited in the Fund.
6. Collection Procedure. The Escrow Agent is hereby authorized to
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forward each check, draft or other instrument for collection and, upon
collection of the proceeds of each check, draft or other instrument deposit the
collected proceeds in the Fund. Any check, draft or other instrument returned
unpaid to the Escrow Agent shall be returned promptly to the Company or the
Underwriter as applicable. In such cases, the Escrow Agent will notify the
Company and the Underwriter of such return. If the Company rejects any
subscription for which the Escrow Agent has already collected funds, the Escrow
Agent shall issue a refund check to the rejected Subscriber. If the Escrow Agent
has not yet submitted a rejected Subscriber's check, draft or other instrument
for collection, the Escrow Agent shall remit such Subscriber's check, draft or
other instrument directly to the Subscriber. It is understood and agreed that
should any check, draft or other instrument be returned unpaid for any reason
after the Escrow Period that would cause the collected aggregate proceeds from
the sale of the Debentures to be less than the Minimum, then no money shall be
payable to the Company from the Fund and the Escrow Agent shall comply with
Section 5(b) hereof.
7. Investment of Escrow Amount. Until otherwise directed, the Escrow
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Agent shall invest the said funds in a bank money market or savings account or
in short-term certificates of deposit issued by a bank or short-term securities
issued by or guaranteed by the U.S. Government, provided such certificates of
deposit and short-term securities mature prior to the Initial Closing.
8. Prospectus. The Company shall provide the Escrow Agent with a copy
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of those pages of the Prospectus and supporting documents which reference the
Escrow Agent or this Agreement ("Reference Pages"). The Company shall not use
the Prospectus, or finalize the Reference Pages or the supporting documents
until it has received the Escrow Agent's approval of the Reference Pages. The
Escrow Agent agrees to provide the Company, by facsimile, with its approval of
the Reference Pages or acceptable modifications thereto within two (2) business
days after receipt of the Reference Pages. The Escrow Agent shall only review
the Reference Pages and shall not review or have any obligation to review any
other portion of the Prospectus, the supporting documents or any of the other
documents delivered by Subscribers in connection with their purchase of the
Debentures. The Company shall not use or finalize amended Reference Pages until
it has received the Escrow Agent's approval of the amended Reference Pages in
accordance with this paragraph.
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9. Rights, Duties and Responsibilities of Escrow Agent. It is
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understood and agreed that the duties of the Escrow Agent are purely ministerial
in nature. It is further agreed that:
(a) The Escrow Agent shall not be responsible for the performance by
the Company of its obligations under this Agreement.
(b) The Escrow Agent shall not be required to accept from the
Company or the Underwriter any confirmation slips or other writing issued to
Subscribers hereunder unless the same are accompanied by checks, drafts or other
instruments for the payment of money. The Escrow Agent shall notify the Company
by letter sent by certified mail (or by telephone and confirmed in writing) of
any discrepancy between the amount set forth on any such confirmation slip or
other writing and the sum, or sums, delivered to the Escrow Agent therewith,
provided, however, that failure to notify the Company of any such discrepancy
shall not cause the Escrow Agent to be liable therefore.
(c) The Escrow Agent shall be under no duty or responsibility
to give any receipt for funds, checks, drafts, or instruments for the payment of
money except to the Company or the Underwriter upon request; or to enforce
collection of any check, draft or other instrument for the payment of money
delivered to it hereunder.
(d) The Escrow Agent shall have the right to act in reliance
upon any document, instrument or signature believed by it in good faith to be
genuine and to assume (unless it has reason to believe otherwise) that any
person purporting to give any notice or instructions in accordance with this
Agreement or in connection with any transaction to which this Agreement relates
has been duly authorized to do so. 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.
(e) 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 Fund which, in its sole opinion, are in conflict with either other
instructions received by it or any provision of this Agreement, 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 option, may deposit the Fund in the registry of a court
of competent jurisdiction in a proceeding to which all parties in interest are
joined. Upon so depositing such funds and filing its complaint and interpleader,
the Escrow Agent shall be completely discharged and released from further
liability.
(f) The Escrow Agent shall not be liable for any action taken
or omitted hereunder except in the case of its bad faith, gross negligence or
willful misconduct. The Escrow Agent shall be entitled to consult with counsel
of its own choosing and shall not be liable for any action taken, suffered or
omitted by it in reasonable reliance upon the advice of such counsel. Any
reasonable expenses incurred by Escrow Agent in connection with such
consultation shall be reimbursed by the Company.
(g) The Escrow Agent shall not be liable or responsible to
perform any act pertaining to the proposed offering of Debentures, other than as
set forth in this Agreement, or because of the loss of any monies arising
through insolvency or the act or default or omission of any person other than
the Escrow Agent. The Escrow Agent shall not be responsible for the application
of the proceeds deposited with it and paid out, withdrawn or transferred in
accordance with this Agreement.
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(h) 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
with respect to the Fund or any part thereof.
(i) The Escrow Agent will not be required to disburse any
funds from the Escrow Account unless such funds have been on deposit for a
sufficient period that the Escrow Agent, in its sole discretion, deems them to
be clear.
(j) The Escrow Agent shall have no responsibility with respect
to the use or application of any funds or other property paid or delivered by
the Escrow Agent pursuant to the provisions hereof.
(k) The Escrow Agent shall under no circumstances be required
to furnish a formal accounting for the proceeds in the Fund other than to notify
the Company and the Underwriter as to each payment received and deposited to the
Fund or each disbursement made from the Fund.
(l) This Agreement sets forth exclusively the duties of the
Escrow Agent with respect to any and all matters pertinent hereto and no implied
duties or obligation shall be read into this Agreement against the Escrow Agent.
10. No Interests Created in Fund. The Escrow Agent shall not issue any
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certificate of deposit, stock certificates or any other instrument or document
representing any interest in the Fund, except that it may send a written notice
to the Company and the Underwriter acknowledging receipt or disbursement of the
deposited funds.
11. Amendment, Resignation. This Agreement may be altered or amended
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only with the written consent of the Company, the Underwriter and the Escrow
Agent. The Escrow Agent may resign as Escrow Agent at any time upon ten (10)
business days' prior written notice to the Company and the Underwriter. In the
case of the Escrow Agent's resignation, its only duty shall be to hold and
dispose of the Fund in accordance with the original provisions of this Agreement
until a successor Escrow Agent shall be appointed and written notice of the name
and address of such successor Escrow Agent shall be given to the Escrow Agent by
the Company, whereupon the Escrow Agent's only duty shall be to pay over to the
successor Escrow Agent the Fund, less any portion thereof previously paid out in
accordance with this Agreement.
12. Warranties. The Company warrants to and agrees with the Escrow
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Agent that, unless otherwise expressly set forth in this Agreement, at the time
of this Agreement, and upon disbursement of the Fund in accordance with this
Agreement:
(a) No party other than the parties hereto and the Subscribers
have, or shall have, any lien, claim or security interest in the Fund or any
part thereof;
(b) No financing statement under the Uniform Commercial Code is on
file in any jurisdiction claiming a security interest in or describing (whether
specially or generally) the Fund or any part thereof.
(c) The Offering has been or will be made in compliance with
applicable federal and state securities laws.
13. Fees and Expenses. Without regard to the amount deposited in the
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Escrow Account pursuant to this Agreement, the Escrow Agent shall, in addition
to the indemnification provided for in Section 14 below, be entitled to: (i) a
fee determined in accordance with, and payable by the
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Company as specified in, the Schedule of Fees for Escrow Services, a copy of
which is annexed hereto to Schedule 1 and incorporated herein by reference; and
(ii) be reimbursed by the Company for any reasonable expenses for performing its
obligations in connection with this Agreement, including, but not limited to the
costs, expenses and legal fees incurred by the Escrow Agent relating to the
review of the documents pertaining to this Agreement, providing however, that if
the funds in the Escrow Account reach the Minimum, the Escrow Account, whether
or not prior to or after any distribution from the Escrow Account, all amounts
owing to the Escrow Agent pursuant to this Agreement. If the balance in the
Escrow Account does not reach the Minimum, no amounts owing to the Escrow Agent
pursuant to this Agreement whatsoever, shall be paid out of or chargeable to the
funds on deposit in the Escrow Account, however, this shall not relieve the
Company or the Underwriter, as the case may be, of any of their obligations to
the Escrow Agent under this Agreement.
14. Indemnification. The Company (herein, the "Indemnitor") agrees to
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indemnify the Escrow Agent and its officers, agents, directors and stockholders
(herein, the "Indemnitees") against, and hold them harmless of and from, any and
all loss, liability, cost, damage and expense, including without limitation,
reasonable attorneys' fees, which the Indemnitees may suffer or incur by reason
of any action, claim or proceeding brought by any third party against the
Indemnitees, arising out of or relating in any way to this Agreement or any
transaction contemplated by this Agreement, or in the performance of its duties
hereunder including, but not limited to any interpleader action brought pursuant
to Section 9(e).
15. Governing Law, Jurisdiction and Venue. This Agreement shall be
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governed by and construed in accordance with the laws of the State of Florida
and the proper venue and jurisdiction for any action or claim with respect to
this Agreement or any document delivered pursuant hereto shall be in the Circuit
Court in Miami-Dade County, Florida. The parties agree that service of process
in any such action or claim shall be deemed valid if made by registered mail,
return receipt requested, sent to the address set forth in Section 17 hereof.
Nothing in this Agreement is intended to or shall confer upon anyone other than
the parties hereto any legal or equitable right, remedy or claim.
16. Assignability. This Agreement shall not be assignable without the
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written consent of all of the parties hereto. All of the terms and provisions of
this Agreement shall be binding upon, shall inure to the benefit of and shall be
enforceable by the successors and permitted assigns of the parties.
17. Notices. All notices required to be given in connection with this
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Agreement shall be sent by registered or certified mail, return receipt
required, and addressed as follows:
If to the Company: Florida Savings Bancorp, Inc.
0000 Xxxxxxxxx 000xx Xxxxxx
Xxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx Xxxxx
If to the Underwriter: Xxxxxxxx, Xxxxxx Securities, Inc.
000 Xxxxx Xxxx Xxxx Xxxxxx
Xxxxx 000
Xxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. Xxxx
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If to the Escrow Agent: SunTrust Bank
000 Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attn: Xxxxx Xxxxx, SVP
18. Severability. If any provision of the Agreement or the application
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thereof to any person or circumstance shall be determined to be invalid or
unenforceable, the remaining provisions of the Agreement or the application of
such provision to persons or circumstances other than those to which it is held
invalid or unenforceable shall not be affected thereby and shall be valid and
enforceable to the fullest extent permitted by law.
19. Execution in Several Counterparts. This Agreement may be executed
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in several counterparts or by separate instruments, and all of such counterparts
and instruments shall constitute one agreement, binding on all of the parties
hereto.
20. Pronouns. All pronouns and any variations thereof shall be deemed
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to refer to the masculine, feminine, neuter, singular or plural as the context
may require.
21. Captions. All captions are for convenience only and shall not
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limit or define the text hereof.
22. Entire Agreement. This Agreement constitutes the entire agreement
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between the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements and understandings (written or oral) of the
parties in connection herewith.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement this
_____ day of __________, 2002.
"COMPANY"
FLORIDA SAVINGS BANCORP, INC.
By:_______________________________
Xxxxxxx Xxxxx
Chairman of the Board and Chief
Executive Officer
"UNDERWRITER"
XXXXXXXX, XXXXXX SECURITIES, INC.
By:_______________________________
"ESCROW AGENT"
SUNTRUST BANK
By:_______________________________
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