ESCROW AGREEMENT
Escrow Agreement dated as of ____________, 1998 by and among
THE CHASE MANHATTAN BANK, a New York state chartered bank with offices at 000
Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Xxxxxx Xxxxxx Financial Group,
Incorporated, a Delaware corporation with offices at 000 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 and Xxxxx Xxxx and Shire, Inc., an Indiana corporation with
offices at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
W I T N E S S E T H:
WHEREAS, United States Financial Group, Incorporated (the
"ISSUER-CORPORATION") has filed a registration statement on Form S- 1 under the
Securities Act of 1933, as amended, with the Securities and Exchange
Commission, File No. 333-52687 (the "REGISTRATION STATEMENT"), relating to the
subscription for and sale of a maximum of 3,275,000 shares (the "SHARES") of
common stock, par value $.0001 per share (the "COMMON STOCK") in the
Issuer-Corporation, with a minimum investment required of 666,667 shares of
Common Stock at a price of $15.00 per Share; and
WHEREAS, Xxxxx Xxxx and Shire, Inc. (the "DEPOSITOR-
AGENT") has been named as the Underwriter in connection with the
proposed offering of the Common Stock in accordance with the terms
of the Underwriting Agreement dated as of _____________, 1998 among the
Issuer-Corporation and the Depositor-Agent (the "UNDERWRITING AGREEMENT"); and
WHEREAS, in compliance with Rule 15c2-4 under the Securities
Exchange Act of 1934, as amended, the Issuer-Corporation and the
Depositor-Agent propose to establish an escrow fund with The Chase Manhattan
Bank (the "BANK-ESCROWEE"); and
WHEREAS, the offering of Preferred Stock will terminate no
later than six (6) months (the "OFFERING TERMINATION DATE") of the date the
Registration Statement is declared effective (the "EFFECTIVE DATE") by the
Securities and Exchange Commission. If subscriptions for at least 666,667
shares of Common Stock ($10,000,005) have not been received by the Offering
Termination Date, no Common Stock will be sold; and
WHEREAS, the Bank-Escrowee has agreed to act as escrow
agent in connection with the proposed fund;
NOW, THEREFORE, it is agreed as follows:
1. For a period commencing on the Effective Date and
terminating at the latest of the Offering Termination Date, Closing Date or the
Option Closing Date, as the latter two terms are
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defined in the Underwriting Agreement and as the same is set forth in the
Registration Statement of the Issuer-Corporation, the Bank- Escrowee shall act
as escrow agent and agrees to receive and disburse the proceeds from the sale
of the Common Stock in accordance herewith. The Depositor-Agent and the Issuer-
Corporation agree to notify the Bank-Escrowee (a) promptly after the
Registration Statement has been declared effective by the Securities and
Exchange Commission, (b) of the Offering Termination Date and (c) of the
Closing Date and each Option Closing Date.
2. All moneys received by the Depositor-Agent and the
Issuer-Corporation in connection with the sale of the Common Stock shall be
deposited by the Depositor-Agent and the Issuer- Corporation in a non-interest
escrow account to be established for this purpose by the Bank-Escrowee.
3. If at least 666,667 shares of Common Stock have been
subscribed for and any funds remain in the escrow account on the later of the
Closing Date, Option Closing Date or the Offering Termination Date, such funds
will be promptly paid to or credited to the account of, or otherwise
transferred to the Issuer- Corporation less expenses (as specified in written
instructions from the Issuer-Corporation and the Depositor-Agent, signing
jointly).
4. Upon receipt by the Bank-Escrowee of appropriate
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written instructions at the Closing Date and Option Closing Date as the case
may be, from the Issuer-Corporation and the Depositor- Agent, jointly, giving
notice of the events described herein, the Bank-Escrowee shall pay to or credit
to the account of, or otherwise transfer (as specified in such instructions)
to, the Issuer-Corporation and other instructed parties such portion of the
deposited funds then held in escrow as specified in such instructions.
5. If at least 666,667 shares of Common Stock have not been
subscribed for by the Offering Termination Date, then the Depositor-Agent and
the Issuer-Corporation promptly shall so advise the Bank-Escrowee, shall
furnish to the Bank-Escrowee a list containing the name and address of, the
amount received from each subscriber whose funds have been deposited and shall
authorize the Bank-Escrowee to return the subscription funds theretofore
received, without interest, to the subscribers as named.
6. In the event of either (a) the occurrence of all the
events contemplated by Sections 3 and 4 hereof, or (b) at least 666,667 shares
of Common Stock not having been subscribed for by the Offering Termination Date
and the repayment to the subscribers of the amounts provided in Section 5
hereof, the Bank-Escrowee shall be relieved of all liabilities in connection
with the escrow deposits provided for herein.
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7. The Issuer-Corporation hereby agrees to (i) pay the
Bank-Escrowee upon execution of this Agreement reasonable compensation for the
services to be rendered hereunder, as described on Schedule I attached hereto,
and (ii) pay or reimburse the Bank-Escrowee upon request for all expenses,
disbursements and advances, including reasonable attorney's fees, incurred or
made by it in connection with this agreement.
8. It is understood and agreed, further, that the Bank-
Escrowee shall:
(a) be under no duty to enforce payment of any
subscription which is to be paid to and held by it
hereunder;
(b) be under no duty to accept funds, checks, drafts
or instructions for the payment of money from anyone other
than the Depositor-Agent and the Issuer- Corporation or to
give any receipt therefor except to the Depositor-Agent and
the Issuer-Corporation;
(c) be protected in acting under any notice,
request, certificate, approval, consent or other paper
believed by it to be genuine, signed by the proper party or
parties and in accordance with the terms of this Agreement;
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(d) be deemed conclusively to have given and
delivered any notice required to be given or delivered
hereunder if the same is in writing, signed by any one of its
authorized officers, and mailed by registered or certified
mail, or delivered by hand, to the Depositor- Agent, 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn: Xxxx X. Xxxxx and the
Issuer-Corporation, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attn.: Xxxxxxxx Xxx Khan with a copy to Doros &
Brescia, P.C., 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attn.: Xxxxxx X. Xxxxxxx and be deemed
conclusively to have received any notice required to be given
or delivered hereunder if the same is in writing, signed by
any one of the authorized officers of the Depositary-Agent
and the Issuer- Corporation, and mailed, by registered or
certified mail, or delivered by hand, to the Bank-Escrowee's
Corporate Trust Department, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attn.: Escrow Administration: 15th Floor.
(e) be indemnified by the Depositor-Agent and the
Issuer-Corporation against any claim made against it by
reason of its action or failing to act in connection with any
of the transactions contemplated hereby and against any loss
it may sustain in carrying out the terms of this Agreement,
except such claims which are occasioned by its
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bad faith, gross negligence or willful misconduct. Anything
in this agreement to the contrary notwitstanding, in no event
shall the Bank-Escrowee be liable for special, indirect or
consequential loss or damage of any kind whatsoever
(including but not limited to lost profits), even if the
Bank-Escrowee has been advised of the likelihood of such loss
or damage and regardless of the form of action;
(f) promptly notify the Depositor-Agent and the
Issuer-Corporation of any discrepancy between the amounts set
forth on any statement delivered by the Depositor- Agent or
the Issuer-Corporation, as the case may be, and the sum or
sums delivered to the Bank-Escrowee therewith;
(g) have no duty to inquire into the terms and
conditions of this Agreement, such duties being purely
ministerial in nature;
(h) be permitted to consult with counsel of its
choice, including in-house counsel, and shall not be liable
for any action taken, suffered or omitted by it in accordance
with the advice of such counsel, provided, however that
nothing in this subsection (h), nor any action taken by the
Bank-Escrowee, or suffered or omitted by it in accordance
with the advice of any counsel, shall relieve the
Bank-Escrowee from liability for any claims
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that are occasioned by its bad faith, gross negligence or
willful misconduct, all as provided in subsection (e) above;
(i) not be bound by any modification, amendment,
termination, cancellation, recision or supersession of this
Agreement, unless the same shall be in writing and signed by
all parties hereto;
(j) have no liability for following the instructions
herein or expressly provided for, or written instructions
given by the Depositor-Agent or the Issuer- Corporation; and
(k) have the right, at any time, to resign hereunder
by given written notice of its resignation to take effect,
and upon the effective date of such resignation all cash and
other payments and all other property then held by the
Bank-Escrowee hereunder shall be delivered by it to such
person as may be designated in writing by the other parties
executing this Agreement, whereupon the Bank-Escrowee's
obligations hereunder shall cease and terminate. If no such
person has been designated by such date, all obligations of
the Bank- Escrowee hereunder shall, nevertheless, cease and
terminate. The Bank-Escrowee's sole responsibility
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thereafter shall be to keep safely all property then held by
it and to deliver the same to a person designated by the
other parties executing this Agreement or in accordance with
the directions of a final order or judgment of a court of
competent jurisdiction.
9. If any checks or other instruments deposited in the escrow
account established hereunder prove uncollectible, the Issuer-Corporation shall
deliver the returned checks or other instruments to the Issuer-Corporation.
10. Nothing in this Agreement is intended to or shall confer
upon anyone other than the parties hereto any legal right, remedy or claim.
This Agreement shall be construed in accordance with the laws of the State of
New York and may be modified only in writing.
11. (a) In the event funds transfer instructions are given
(other than in writing at the time of execution of the Agreement), whether in
writing, by telecopier or otherwise the Bank-Escrowee is authorized to seek
confirmation of such instructions by telephone call-back to person or persons
designed on Schedule 1 hereto, and the Bank-Escrowee may rely upon the
confirmations of anyone purporting to be the person or persons so designated.
The persons and telephone numbers for call-backs may be changed only in a
writing actually received and acknowledged by the Bank-Escrowee. The parties to
this Agreement acknowledge that
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such security procedure is commercially reasonable.
(b) It is understood that the Bank-Escrowee and the
beneficiary's bank in any funds transfer may rely solely upon any account
numbers or similar identifying number provided by either of the other parties
hereto identify (i) the beneficiary, (ii) the beneficiary's bank, or (iii) an
intermediary bank. The Bank- Escrowee may apply any of the escrowed funds for
any payment order it executes using any such identifying number, even where its
use may result in a person other than the beneficiary being paid, or the
transfer of funds to a bank other than the beneficiary's bank or an
intermediary bank designated.
IN WITNESS WHEREOF, the parties hereto have duly executed
this Agreement as of the day and year first above written.
THE CHASE MANHATTAN BANK
By:
-----------------------------
UNITED STATES FINANCIAL GROUP,
INCORPORATED
By:
-----------------------------
Xxxxxxxx Xxx Khan, President
XXXXX XXXX AND SHIRE, INC.
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By:
-----------------------------
Xxxxxxxx Xxx Khan, President
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Schedule 1
o $2,500 per annum, or any part thereof, without proration
for partial years.
o $5.00 per check.
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Schedule 2
Telephone Number(s) for Call-Backs and
Person(s) Designated to Confirm Funds Transfer Instructions
IF TO ISSUER-CORPORATION:
NAME TELEPHONE NUMBER
------------------------------------- ----------------------------------
1. Xxxxxxxx Xxx Khan 000-000-0000
2. Xxxx X. Xxxxx 000-000-0000
IF TO DEPOSITOR-AGENT:
NAME TELEPHONE NUMBER
------------------------------------- ----------------------------------
1. Xxxxxxxx Xxx Khan 000-000-0000
2. Xxxx X. Xxxxx 000-000-0000
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