ESCROW AGREEMENT between FREEDOM FINANCIAL HOLDINGS, INC., ALARON FINANCIAL SERVICES, INC. and TOWER TRUST COMPANY Dated as of August 9, 2007 ACCOUNT NUMBER(S) 00-0496 SHORT TITLE OF ACCOUNT Freedom Financial Holdings, Inc. - Escrow
between
FREEDOM
FINANCIAL HOLDINGS, INC.,
ALARON
FINANCIAL SERVICES, INC.
and
TOWER
TRUST COMPANY
Dated
as of August 9, 2007
ACCOUNT
NUMBER(S) 00-0496
SHORT
TITLE OF ACCOUNT Freedom Financial Holdings, Inc. - Escrow
ESCROW
AGREEMENT made
this
9th
day of
August, 2007 by and between Tower Trust Company (“Escrow Agent”), Freedom
Financial Holdings, Inc. (the “Company”) and Alaron Financial Services, Inc.
(the “Underwriter”).
The
Company, Underwriter and Escrow Agent hereby agree that, in consideration of
the
mutual promises and covenants contained herein, Escrow Agent shall hold in
escrow and shall distribute Escrow Property (as defined herein) in accordance
with and subject to the following Instructions and Terms and
Conditions:
On
or
prior to the Offering Period Commencement Date (as defined below), the parties
shall establish an interest-bearing escrow account with the Escrow Agent, which
escrow account shall be entitled Freedom Financial Holdings, Inc. - Escrow
(the
"Escrow Account"). The Selected Dealer will instruct subscribers to make checks
for subscriptions payable to the order of the Escrow Agent. Any checks received
that are made payable to a party other than the Escrow Agent shall be returned
to the Selected Dealer who submitted the check.
The
property and/or funds deposited or to be deposited with Escrow Agent shall
be as
follows:
A. Documentation.
Concurrently with the execution and delivery hereof, the Company is delivering
to the Escrow Agent one fully executed original copy of the Underwriting
Agreement and a draft of the registration statement of the Company on Form
SB-2
(the "Escrowed Documents"), which represents all of the documents required
to be
placed in escrow.
B. Escrowed
Items.
Proceeds
received
from subscribers will be deposited into the Escrow Account, as defined below,
(the
Proceeds collectively with the Escrowed Documents hereinafter are referred
to as
"Escrowed Items").
The
foregoing property and/or funds, plus all interest, dividends and other
distributions and payments thereon (collectively the “Distributions”) received
by Escrow Agent, less any property and/or funds distributed or paid in
accordance with this Escrow Agreement, are collectively referred to herein
as
“Escrow Property.”
The
Selected Dealer agrees that it shall promptly deliver all monies received from
subscribers for the payment of the Securities to the Escrow Agent by 12 p.m.
the
following business day for deposit in the Escrow Account together with a written
account of each sale, which account shall set forth, among other things, the
subscriber's name and address, the number of securities purchased, the amount
paid therefor, and whether the consideration received was in the form of a
check, draft, or money order. All monies so deposited in the Escrow Account
are
hereinafter referred to as the "Escrow Amount."
A. The
Escrow Agent is hereby authorized to forward each check for collection and,
upon
collection of the proceeds of each check, deposit the collected proceeds in
the
Escrow Account. As an alternative, the Escrow Agent may telephone the bank
on
which the check is drawn to confirm that the check has been paid.
B. Any
check
returned unpaid to the Escrow Agent shall be returned to the Selected Dealer
that submitted the check. In such cases, the Escrow Agent will promptly notify
the Company of such return.
C. If
the
Company rejects any subscription for which the Escrow Agent has already
collected funds, the Escrow Agent, as instructed by the Company, shall promptly
issue a refund check to the rejected subscriber. If the Company rejects any
subscription for which the Escrow Agent has not yet collected funds but has
submitted the subscriber's check for collection, as instructed by the Company
the Escrow Agent shall promptly issue a check in the amount of the subscriber's
check to the rejected subscriber after the Escrow Agent has cleared such funds.
If the Escrow Agent has not yet submitted a rejected subscriber's check for
collection, as instructed by the Company the Escrow Agent shall promptly remit
the subscriber's check directly to the subscriber.
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5. Escrow
Period.
A. The
Escrow Period shall begin with the commencement of the offering period
commencing the date the Company’s registration statement on Form SB-2 is
declared effective by the SEC (the “Offering Period Commencement Date”) and
shall terminate (the “Termination Date”) upon the earlier to occur of the
following dates:
1.
The
date
upon which the Escrow Agent confirms that it has received in the Escrow Account
gross proceeds of the Maximum Offering Amount;
or
2.
The
expiration of ninety (90) days from the Offering Period Commencement Date if
the
Minimum Offering Amount has not been met; or
3.
The
date
upon which a determination is made by the Company and the Underwriter to
terminate the Offering prior to the sale of the Maximum Offering Amount;
or
4.
The
occurrence of an event listed in Section 7D, below.
B. During
the escrow period, the Company is aware and understands that it is not entitled
to any funds received into escrow (except as otherwise provided in this
agreement) 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.
Escrow
Agent shall invest or reinvest Escrow Property, without distinction between
principal and income, in taxable money market accounts. Escrow Agent shall
have
no liability for any loss arising from or related to any such investment other
than in accordance with paragraph 4 of the Terms and Conditions in Part II
of
this Agreement.
Escrow
Agent is directed to hold and distribute the Escrow Property in the following
manner:
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A. Prior
to Minimum Offering Amount Being Reached.
In the
event the Escrow Agent does not receive the Minimum Offering Amount deposits
totaling $750,000 on or before the Termination Date, the Escrow Agent shall,
as
instructed by the Company, refund to each subscriber the amount received from
the subscriber, without deduction, penalty, or expense to the subscriber, and
the Escrow Agent shall notify the Company, the State
of
Indiana Securities Division,
and the
Selected Dealer in writing of its distribution of the funds. The Company shall
pay the Escrow Agent a fee of two dollars ($2.00) per check that must be sent
to
each subscriber in the event the Minimum Offering Amount is not received. The
purchase money returned to each subscriber shall be free and clear of any and
all claims of the Company or any of its creditors and shall include a pro rata
share of the interest earned based upon the amount invested and the number
of
days in escrow. In no event will the Escrow Amount be released to the Company
until such amount is received by the Escrow Agent in collected funds.
If
the
Offering is terminated because the Minimum Offering Amount is not received
all
funds deposited in the escrow account will be returned to investors within
one
(1) business day or promptly thereafter. For
purposes of this Agreement, the term "collected funds" shall mean all funds
received by the Escrow Agent which have cleared normal banking channels and
are
in the form of cash.
B. In
the
event that the Escrow Agent has received the Minimum Offering Amount of $750,000
in collected funds prior to the Termination Date, the collected funds shall
be
promptly released to the Company.
C.
Subsequent
Weekly Releases.
After
the Minimum Offering Amount has been received and disbursed to the Company,
the
Escrow Agent shall release all subsequently collected funds to the Company
on a
weekly basis beginning the Wednesday after the Minimum Offering Amount has
been
reached and continuing every Wednesday thereafter until the Escrow Period has
been terminated.
D. Change
in Material Terms of Offering.
Changes
in the material terms of the Offering after the Offering Period Commencement
Date would terminate the original offer and subscriber would then be entitled
to
a refund of their money. Material changes include the following:
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a.
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extension
of the offering period beyond the disclosed time
frame;
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b.
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change
in the offering price;
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c.
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change
in the minimum sales requirement;
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d.
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change
to allow sales to affiliates in excess of those already permitted
in order
to meet the minimum sales
requirement;
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e.
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change
in the amount of proceeds necessary to release the proceeds held
in
escrow; and
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f.
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change
in the application of proceeds.
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In
the
event that there is a change in the material terms of the Offering which
requires the return of funds to subscribers, the Company shall instruct the
Escrow Agent in writing to release funds to each subscriber pursuant to the
same
procedure described in Section 7A of this Agreement.
8. Addresses
Notices,
instructions and other communications shall be sent to Escrow Agent, 000, Xxxx
Xxxxx Xxxxxx, Xxxx Xxxxx, Xxxxxxx 00000, and to the Company and Underwriter
as
follows:
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Freedom
Financial Holdings, Inc.
Attn:
Xxxxx Xxxxxxx
0000
Xxxxxxxxxxx Xxx, Xxxxx X
Xxxx
Xxxxx, XX 00000
With
a Copy to:
Xxxxxxxxx
Law Group PC
00000
Xxxxxxx Xxxxxx Xxxx, Xxxxx 000
Xxx
Xxxxx, Xxxxxxxxxx 00000
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Alaron
Financial Services, Inc.
Attn:
Xxxxx Xxxxxxxxx
000
Xxxx Xxxxxxxxxx Xxxxxxxxx
Xxxxxxx,
Xxxxxxxx 00000
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9. Compensation
(a) At
the
time of execution of this Escrow Agreement, the Company shall pay Escrow Agent
an acceptance fee of $1,200.
(b) The
Company shall be responsible for and shall reimburse Escrow Agent upon demand
for all expenses, disbursements and advances incurred or made by Escrow Agent
in
connection with this Agreement.
1. The
duties, responsibilities and obligations of Escrow Agent shall be limited to
those expressly set forth herein and no duties, responsibilities or obligations
shall be inferred or implied. Escrow Agent shall not be subject to, nor required
to comply with, any other agreement between or among the Company and the
Underwriter or to which any such party is a party to, even though reference
thereto may be made herein, or to comply with any direction or instruction
(other than those contained herein or delivered in accordance with this Escrow
Agreement) from any party hereto or any entity acting on its behalf. Escrow
Agent shall not be required to, and shall not, expend or risk any of its own
funds or otherwise incur any financial liability in the performance of any
of
its duties hereunder.
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2. This
Agreement is for the exclusive benefit of the parties hereto and their
respective successors hereunder, and shall not be deemed to give, either express
or implied, any legal or equitable right, remedy, or claim to any other entity
or person whatsoever.
3. If
at any
time Escrow Agent is served with any judicial or administrative order, judgment,
decree, writ or other form of judicial or administrative process which in any
way affects Escrow Property (including but not limited to orders of attachment
or garnishment or other forms of levies or injunctions or stays relating to
the
transfer of Escrow Property), Escrow Agent is authorized to comply therewith
in
any manner as it or its legal counsel of its own choosing deems appropriate;
and
if Escrow Agent complies with any such judicial or administrative order,
judgment, decree, writ or other form of judicial or administrative process,
Escrow Agent shall not be liable to any of the parties hereto or to any other
person or entity even though such order, judgment, decree, writ or process
may
be subsequently modified or vacated or otherwise determined to have been without
legal force or effect.
4. (a) Escrow
Agent shall not be liable for any action taken or omitted or for any loss or
injury resulting from its actions or its performance or lack of performance
of
its duties hereunder in the absence of gross negligence or willful misconduct
on
its part. In no event shall Escrow Agent be liable (i) for acting in accordance
with or relying upon any instruction, notice, demand, certificate or document
from the Company or Underwriter or any entity acting on behalf of such party,
(ii) for any consequential, punitive or special damages, (iii) for the acts
or
omissions of its nominees, correspondents, designees, subagents or
subcustodians, or (iv) for an amount in excess of the value of the Escrow
Property, valued as of the date of deposit.
(b) If
any
fees, expenses or costs incurred by, or any obligations owed to, Escrow Agent
hereunder are not promptly paid when due, Escrow Agent may reimburse itself
therefor from the Escrow Property and may sell, convey or otherwise dispose
of
any Escrow Property for such purpose.
(c) As
security for the due and punctual performance of any and all of the Company’s
obligations to Escrow Agent hereunder, now or hereafter arising, the Company,
hereby pledges, assigns and grants to Escrow Agent a continuing security
interest in, and a lien on, the Escrow Property and all Distributions thereon
or
additions thereto (whether such additions are the result of deposits by the
Company and/or Underwriter or the investment of Escrow Property). The security
interest of Escrow Agent shall at all times be valid, perfected and enforceable
by Escrow Agent against the Company and all third parties in accordance with
the
terms of this Escrow Agreement.
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(d) Escrow
Agent may consult with legal counsel at the expense of the the Company as to
any
matter relating to this Escrow Agreement, and Escrow Agent shall not incur
any
liability in acting in good faith in accordance with any advice from such
counsel.
(e) Escrow
Agent shall not incur any liability for not performing any act or fulfilling
any
duty, obligation or responsibility hereunder by reason of any occurrence beyond
the control of Escrow Agent (including but not limited to any act or provision
of any present or future law or regulation or governmental authority, any act
of
God or war, or the unavailability of the Federal Reserve Bank wire or telex
or
other wire or communication facility).
5. Unless
otherwise specifically set forth herein, Escrow Agent shall proceed as soon
as
practicable to collect any checks or other collection items at any time
deposited hereunder. All such collections shall be subject to Escrow Agent’s
usual collection practices or terms regarding items received by Escrow Agent
for
deposit or collection. Escrow Agent shall not be required, or have any duty,
to
notify anyone of any payment or maturity under the terms of any instrument
deposited hereunder, nor to take any legal action to enforce payment of any
check, note or security deposited hereunder or to exercise any right or
privilege which may be afforded to the holder of any such security.
6. Escrow
Agent shall provide to the Company and Underwriter monthly statements
identifying transactions, transfers or holdings of Escrow Property and each
such
statement shall be deemed to be correct and final upon receipt thereof by the
the Company and Underwriter unless Escrow Agent is notified in writing to the
contrary within thirty (30) business days of the date of such
statement.
7. Escrow
Agent shall not be responsible in any respect for the form, execution, validity,
value or genuineness of documents or securities deposited hereunder, or for
any
description therein, or for the identity, authority or rights of persons
executing or delivering or purporting to execute or deliver any such document,
security or endorsement.
8. Notices,
instructions or other communications shall be in writing and shall be given
to
the address set forth in the “Addresses” provision herein (or to such other
address as may be substituted therefor by written notification to Escrow Agent,
the Company or the Underwriter). Notices to Escrow Agent shall be deemed to
be
given when actually received by Escrow Agent’s Corporate Trust Department.
Escrow Agent is authorized to comply with and rely upon any notices,
instructions or other communications believed by it to have been sent or given
by the Company or Underwriter or by a person or persons authorized by the
Company or Underwriter. Whenever under the terms hereof the time for giving
a
notice or performing an act falls upon a Saturday, Sunday, or banking holiday,
such time shall be extended to the next day on which Escrow Agent is open for
business.
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9. The
Company shall be liable for and shall reimburse and indemnify Escrow Agent
and
hold Escrow Agent harmless from and against any and all claims, losses,
liabilities, costs, damages or expenses (including reasonable attorneys’ fees
and expenses) (collectively, “Losses”) arising from or in connection with or
related to this Escrow Agreement or being Escrow Agent hereunder (including
but
not limited to Losses incurred by Escrow Agent in connection with its successful
defense, in whole or in part, of any claim of gross negligence or willful
misconduct on its part), provided, however, that nothing contained herein shall
require Escrow Agent to be indemnified for Losses caused by its gross negligence
or willful misconduct.
10. The
Proceeds will not be subject to claims by: (i) creditors of the Company; (ii)
a
person who, directly or indirectly, controls, is controlled by, or is under
common control with the person specified herein, hereinafter referred to as
an
“Affiliate”; (iii) “Associates” as defined by the North American Securities
Administrators Association, Inc. (“NASAA”) Statement of Policy Regarding
Corporate Securities Definitions; or (iv) Underwriters until the Proceeds have
been released to the Company pursuant to the terms of the
Agreement.
11. The
State
of Indiana Securities Division shall have the right to inspect and make copies
of the records of the Escrow Agent at any reasonable time wherever the records
are located.
12. (a) The
Company and Underwriter may remove Escrow Agent at any time by giving to Escrow
Agent thirty (30) calendar days’ prior notice in writing signed by the Company
and Underwriter. Escrow Agent may resign at any time by giving to the Company
and Underwriter fifteen (15) calendar days’ prior written notice
thereof.
(b) Within
ten (10) calendar days after giving the foregoing notice of removal to Escrow
Agent or receiving the foregoing notice of resignation from Escrow Agent, the
Company and Underwriter shall jointly agree on and appoint a successor Escrow
Agent. If a successor Escrow Agent has not accepted such appointment by the
end
of such 10-day period, Escrow Agent may, in its sole discretion, deliver the
Escrow Property to the Company and Underwriter at the address provided herein
or
may apply to a court of competent jurisdiction for the appointment of a
successor Escrow Agent or for other appropriate relief. The costs and expenses
(including reasonable attorneys’ fees and expenses) incurred by Escrow Agent in
connection with such proceeding shall be paid by the Company.
(c) Upon
receipt of the identity of the successor Escrow Agent, Escrow Agent shall either
deliver the Escrow Property then held hereunder to the successor Escrow Agent,
less Escrow Agent’s fees, costs and expenses or other obligations owed to Escrow
Agent, or hold such Escrow Property (or any portion thereof), pending
distribution, until all such fees, costs and expenses or other obligations
are
paid.
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(d) Upon
delivery of the Escrow Property to successor Escrow Agent, Escrow Agent shall
have no further duties, responsibilities or obligations hereunder.
13. (a) In
the
event of any ambiguity or uncertainty hereunder or in any notice, instruction
or
other communication received by Escrow Agent hereunder, Escrow Agent may, in
its
sole discretion, refrain from taking any action other than retain possession
of
the Escrow Property, unless Escrow Agent receives written instructions, signed
by the Company and Underwriter, which eliminates such ambiguity or
uncertainty.
(b) In
the
event of any dispute between or conflicting claims by or among the Company
and
the Underwriter and/or any other person or entity with respect to any Escrow
Property, Escrow Agent shall be entitled, in its sole discretion, to refuse
to
comply with any and all claims, demands or instructions with respect to such
Escrow Property so long as such dispute or conflict shall continue, and Escrow
Agent shall not be or become liable in any way to the Company and/or Underwriter
for failure or refusal to comply with such conflicting claims, demands or
instructions. Escrow Agent shall be entitled to refuse to act until, in its
sole
discretion, either (i) such conflicting or adverse claims or demands shall
have
been determined by a final order, judgment or decree of a court of competent
jurisdiction, which order, judgment or decree is not subject to appeal, or
settled by agreement between the conflicting parties as evidenced in a writing
satisfactory to Escrow Agent or (ii) Escrow Agent shall have received security
or an indemnity satisfactory to it sufficient to hold it harmless from and
against any and all Losses which it may incur by reason of so acting. Escrow
Agent may, in addition, elect, in its sole discretion, to commence an
interpleader action or seek other judicial relief or orders as it may deem,
in
its sole discretion, necessary. The costs and expenses (including reasonable
attorneys’ fees and expenses) incurred in connection with such proceeding shall
be paid by the Company.
14. This
Agreement shall be interpreted, construed, enforced and administered in
accordance with the internal substantive laws (and not the choice of law rules)
of the State of Indiana. Each of the Company and the Underwriter hereby submits
to the personal jurisdiction of and each agrees that all proceedings relating
hereto shall be brought in courts located within the City and State of Indiana
or elsewhere as Escrow Agent may select. Each of the Company and the Underwriter
hereby waives the right to trial by jury and to assert counterclaims in any
such
proceedings. To the extent that in any jurisdiction the Company or the
Underwriter may be entitled to claim, for itself or its assets, immunity from
suit, execution, attachment (whether before or after judgment) or other legal
process, each hereby irrevocably agrees not to claim, and hereby waives, such
immunity. Each of the Company and the Underwriter waives personal service of
process and consents to service of process by certified or registered mail,
return receipt requested, directed to it at the address last specified for
notices hereunder, and such service shall be deemed completed ten (10) calendar
days after the same is so mailed.
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15. Except
as
otherwise permitted herein, this Escrow Agreement may be modified only by a
written amendment signed by all the parties hereto, and no waiver of any
provision hereof shall be effective unless expressed in a writing signed by
the
party to be charged.
16. The
rights and remedies conferred upon the parties hereto shall be cumulative,
and
the exercise or waiver of any such right or remedy shall not preclude or inhibit
the exercise of any additional rights or remedies. The waiver of any right
or
remedy hereunder shall not preclude the subsequent exercise of such right or
remedy.
17. Each
of
the Company and the Underwriter hereby represent and warrant (a) that this
Escrow Agreement has been duly authorized, executed and delivered on its behalf
and constitutes its legal, valid and binding obligation and (b) that the
execution, delivery and performance of this Escrow Agreement by the Company
and
the Underwriter does not and will not violate any applicable law or
regulation.
18. The
invalidity, illegality or unenforceability of any provision of this Agreement
shall in no way affect the validity, legality or enforceability of any other
provision; and if any provision is held to be enforceable as a matter of law,
the other provisions shall not be affected thereby and shall remain in full
force and effect.
19. This
Agreement shall constitute the entire agreement of the parties with respect
to
the subject matter and supersedes all prior oral or written agreements in regard
thereto.
20. This
Agreement shall terminate upon the distribution of all Escrow Property from
the
Account. The provisions of these Terms and Conditions shall survive termination
of this Escrow Agreement and/or the resignation or removal of the Escrow
Agent.
21. No
printed or other material in any language, including prospectuses, notices,
reports, and promotional material which mentions “Tower Trust Company” by name
or the rights, powers, or duties of the Escrow Agent under this Agreement shall
be issued by any other parties hereto, or on such party’s behalf, without the
prior written consent of Escrow Agent.
22. The
headings contained in this Agreement are for convenience of reference only
and
shall have no effect on the interpretation or operation hereof.
23. This
Escrow Agreement may be executed by each of the parties hereto in any number
of
counterparts, each of which counterpart, when so executed and delivered, shall
be deemed to be an original and all such counterparts shall together constitute
one and the same agreement.
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24. The
Escrow Agent does not have any interest in the Escrowed Property Deposited
hereunder but is serving as escrow holder only and having only possession
thereof. The Company shall pay or reimburse the Escrow Agent upon request for
any transfer taxes or other taxes relating to the Escrowed Property incurred
in
connection herewith and shall indemnify and hold harmless the Escrow Agent
any
amounts that it is obligated to pay in the way of such taxes. Any payments
of
income from this Escrow Account shall be subject to withholding regulations
then
in force with respect to United States taxes. The parties hereto will provide
the Escrow Agent with appropriate W-9 forms for tax I.D., number certifications,
or W-8 forms for non-resident alien certifications.
25. Tax
Reporting.
(a) In
the
event the Minimum Offering Amount is reached the taxable income will be reported
to the Company.
(b) In
the
event the Minimum Offering Amount is not reached the taxable income will be
reported to each investor who received a refund on their investment. The
Underwriter shall forward to the Escrow Agent the W-9 of each investor. Further,
the Underwriter shall provide the Escrow Agent, within two (2) business days,
with written instruction as to how to distribute the funds to be returned to
investors, including amount to be returned to each investor and amount to be
reported as taxable income by the Escrow Agent. The Company shall pay the Escrow
Agent a fee of $1,200 in connection with federal and or state tax reporting
on
Form 1099- INT for interest to be returned to investors.
(c) It
is
understood that the Escrow Agent shall be responsible for income reporting
only
with respect to income earned on investment of funds which are a part of the
Escrowed Property and is not responsible for any other reporting.
26. The
Company and the Underwriter each shall provide the Escrow Agent with a corporate
resolution identifying the individual(s) who is(are) authorized to sign the
Agreement and represent the Company and the Underwriter in all dealings with
the
Escrow Agent.
[Remainder
of this page intentionally left blank.]
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27. The
provisions of paragraphs I.6, II.9 and II.24 shall survive the termination
of
this Escrow Agreement or the resignation or removal of the Escrow
Agent.
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FREEDOM
FINANCIAL HOLDINGS, INC.
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ALARON
FINANCIAL SERVICES, INC.
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By:________/s/________________
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By:___________/s/_________________
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Name:
Xxxxx Xxxxxxx
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Name:
Xxxxx Xxxxxxxxx
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Title:
Chief Executive Officer
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Title:
President
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TOWER TRUST COMPANY, |
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as
Escrow Agent
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_________/s/_______________
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Name:
Xxxxxx X. Xxxxxx
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Title:
Vice President and Trust Officer
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