Exhibit 9.1
ESCROW AGREEMENT
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This ESCROW AGREEMENT, made and entered into between:
Florida Savings Bancorp, Inc.
a Florida corporation
(the "Company")
- and -
SunTrust Bank
(the "Escrow Agent")
- and -
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ Securities, Inc.
(the "Underwriter")
R E C I T A L S:
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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 that
certain Prospectus, dated May 2, 2002 (the "Prospectus"). 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 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accordance with the terms of the Prospectus or the Offering is withdrawn by the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 a "bank" as that term is defined in Section
3(a)(6) of the Securities Exchange Act of 1934, as amended, and is unaffiliated
with the Company and the
Underwriter. 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 Account" (the "Escrow Account"). Subscribers shall be instructed to
make all checks, bank drafts or money orders payable to or wire transfer funds
to the Escrow Agent for deposit into 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 July 5, 2002 unless
extended in writing by the Company to September 3, 2002 as described in
the Prospectus); 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 and
until the lapsing of any applicable rights of rescission 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.
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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." All funds received by the Company or the Underwriter
shall be transmitted to the Escrow Agent by noon of the business day following
the day of receipt. 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 and 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 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 (which instructions shall confirm that any
applicable rescission rights have lapsed).
(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 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.
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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 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.
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 or the Underwriter of their respective 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
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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 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.
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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 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 Agent, whether or not prior to or after
any distribution from the Escrow Account, shall reimburse itself for 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, including amounts owing to Escrow Agent.
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 and costs, 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
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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.
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇/▇▇/ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to the Underwriter: ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ Securities, Inc.
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to the Escrow Agent: SunTrust Bank
Attention: ▇▇▇▇▇ ▇▇▇▇▇, 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.
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21. Captions. All captions are for convenience only and shall not limit
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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.
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, the undersigned have executed this Agreement this
2nd day of May, 2002.
"COMPANY"
FLORIDA SAVINGS BANCORP, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President & COO
"UNDERWRITER"
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ SECURITIES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Managing Director
"ESCROW AGENT"
SUNTRUST BANK, as Escrow Agent
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President Corporate Trust
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SCHEDULE 1
SCHEDULE OF FEES
1. ANNUAL ADMINISTRATION FEE OF $1,500.00 PAYABLE IN ADVANCE (INCLUDES
DEPOSITS OF THE FIRST 35 SUBSCRIBERS).
2. $10.00 PER SUBSCRIBER AFTER THE FIRST 35 SUBSCRIBERS.
3. $20.00 FOR EACH RETURNED CHECK, DUE TO INSUFFICIENT FUNDS, ETC.
4. $5.00 PER SUBSCRIBER FOR PREPARATION OF IRS FORMS 1099 (IF REQUESTED)
5. $10.00 PER RETURNED CHECK TO EACH SUBSCRIBER, IN THE EVENT THAT THE MINIMUM
NUMBER OF DEBENTURES IS NOT SUBSCRIBED TO BY THE TERMINATION DATE.
6. REIMBURSEMENT FOR LEGAL FEES INCURRED BY ESCROW AGENT IN THE AMOUNT OF
$1,000.00 FOR REVIEWING THE DOCUMENTS NEEDED TO ESTABLISH THE ESCROW
ACCOUNT, DUE AT CLOSING.
7. REIMBURSEMENT FOR ANY OUT-OF-POCKET EXPENSES INCURRED AS A RESULT OF
ADMINISTERING THE ESCROW ACCOUNT.
Schedule 1 - Page 1