EXHIBIT 10.0
PARTICIPATION AGREEMENT
PARTICIPATION AGREEMENT dated May ___, 2003 between PanAmerican
Bancorp, a Delaware corporation ("PanAmerican") and XxXxxxxx Ltd., a company
incorporated in the Cayman Islands ("Limited").
Preliminary Statement
Pursuant to a separate subscription agreement Limited has purchased
1,000,000 Class A Warrants and 1,000,000 Class B Warrants of PanAmerican (the
"Limited Warrants").
As a condition of such sale, PanAmerican has agreed to give Limited
certain rights (the "Participation Rights")
This agreement is entered into to provide for certain Participation
Rights. This agreement is being delivered by the parties for mutual
consideration and is meant to be legally binding.
1. Except for Excluded Securities (as defined in this agreement),
Limited shall have the right as set forth below to purchase: (a) any shares of
PanAmerican's common stock and warrants offered by PanAmerican in a public or
private offering, (b) any other security of PanAmerican that is convertible into
or exchangeable for the common stock and/or warrants of PanAmerican
(collectively a "Common Stock and/or Warrants Equivalent") offered by
PanAmerican in a public or private offering. Limited's Participation Rights are
limited as it is only permitted to purchase shares of PanAmerican's common stock
or Common Stock Equivalent or warrants, that are being offered for sale by
PanAmerican, pursuant to a specific public or private offering, in percentage
amounts which are no greater that the percentage common stock and/or warrants
ownership interest of Limited in PanAmerican, which shall be determined by the
number of shares of common stock and/or warrants beneficially owned by Limited
divided by the total number of shares of PanAmerican common stock and/or
warrants issued and outstanding on the date PanAmerican receives written notice
of Limited's exercise of its Participation Rights unless Limited and PanAmerican
agree differently in writing. In the absolute discretion of PanAmerican,
PanAmerican may determine whether Limited may exercise its Participation Rights
by purchasing common stock and/or warrants or Common Stock Equivalent pursuant
to a then existing public or private offering or whether PanAmerican will issue
additional shares or warrants to Limited outside of such offerings. PanAmerican
shall provide written notice of all private offerings, upon their commencement
date and for public offerings upon filing with the United States Securities and
Exchange Commission, to Limited along with the offering documentation.
2. Notice of Limited's intention to exercise its Participation
Rights, in whole or in part, shall be evidenced by a writing signed by Limited
and delivered to PanAmerican within 30-days of the beginning of the public or
private offering (each, a
"Notice of Participation"), setting forth such portion of the Offered Securities
that Limited elects to purchase.
3. Upon the closing, which shall include full payment to
PanAmerican, of the Issuance to such other person or persons (the "Other
Buyers") of all or part of the remaining Offered Securities, Limited shall
purchase from PanAmerican, and PanAmerican shall Issue to Limited, the Offered
Securities covered by the Notice of Acceptance on the terms specified in the
Preemptive Offer. The purchase by Limited of any Offered Securities is subject
in all cases to the execution and delivery by PanAmerican and Limited of a
purchase agreement relating to such Offered Securities in form and substance
similar in all material respects to the extent applicable to that executed and
delivered between PanAmerican and the Other Buyers.
4. As used herein, "Excluded Securities" shall mean:
(a) The Limited Warrants issued or issuable pursuant to
this Agreement and the other securities issued or to be issued pursuant to
PanAmerican's Confidential Offering Memorandum dated August 30, 2002, (the
"August Offering Securities") and PanAmerican's Confidential Offering Memorandum
dated January 8, 2003 (the "January Offering");
(b) shares of Common Stock issued or issuable to XxXxxxxx
Park Lane, Inc., a Florida corporation ("Park Lane"), pursuant to a subscription
dated the date hereof delivered by Park Lane to PanAmerican or pursuant to the
Participation Agreement dated the date hereof between Park Lane and PanAmerican;
(c) shares of Common Stock issuable or issued to
employees, advisors, consultants or outside directors of PanAmerican directly or
pursuant to an employee benefit plan approved by the compensation committee of
the Board;
(d) Common Stock issued or issuable upon conversion,
exercise or exchange of any securities (i) outstanding on the date hereof; or
(ii) upon the conversion or exercise of any convertible security, right, Option
or warrant which is subject to a Preemptive Offer; issued or issuable pursuant
to this Agreement; or (iii) issued or issuable in connection with an August
Offering and January Offering of Securities;
(e) any capital stock issued as a stock dividend or upon
any stock split or other subdivision or combination of shares of PanAmerican's
capital stock or issued or issuable in connection with a merger or consolidation
of PanAmerican; and
(f) securities issued, pursuant to a merger or
acquisition, by PanAmerican.
5. Successors and Assigns. This Agreement shall bind and inure to
the benefit of PanAmerican and Limited and the respective successors and
assigns. PanAmerican acknowledges that Limited may only assign, all or part of
its rights and obligations under this Agreement to one or more other
partnerships, corporations, trusts or other organizations which are controlled
by, control or are under common control with
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Limited along with the related Limited Warrants, without the consent of
PanAmerican. Upon any such assignment, such assignee shall have and be able to
exercise all rights of Limited. Except as set forth in this Section, Limited may
not assign its rights and/or obligations hereunder to any party without the
consent of PanAmerican, which consent shall not be unreasonably withheld.
6. Entire Agreement. This Agreement and the other writings
referred to herein or delivered pursuant hereto which form a part hereof contain
the entire agreement among the parties with respect to the subject matter hereof
and supersede all prior and contemporaneous arrangements or understandings with
respect thereto.
7. Notices. All notices, requests, consents and other
communications hereunder to any party shall be deemed to be sufficient if
contained in a written instrument delivered in person or sent by telecopy,
nationally recognized overnight courier or first class registered or certified
mail, return receipt requested, postage prepaid, addressed to such party at the
address set forth below or such other address as may hereafter be designated in
writing by such party to the other parties:
PanAmerican PanAmerican Bancorp
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx 00000
Attn: Mr. Xxxxxxx Xxxxxx
With a copy to: Xxxxxxxxx Traurig, P.A.
0000 Xxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxxxx Esq.
Limited XxXxxxxx Ltd.
X.X. Xxx 000
Grand Cayman
Attn: Xxxxx Xxxxxxx
All such notices, requests, consents and other communications
shall be deemed to have been given when received.
8. Amendments. The terms and provisions of this Agreement may be
modified or amended, or any of the provisions hereof waived, temporarily or
permanently, pursuant to the written consent of Limited and PanAmerican.
9. Counterparts. This Agreement may be executed in any number of
counterparts, and each such counterpart hereof shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
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10. Headings. The headings of the sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed to be a
part of this Agreement.
11. Nouns and Pronouns. Whenever the context may require, any
pronouns used herein shall include the corresponding masculine, feminine or
neuter forms, and the singular form of names and pronouns shall include the
plural and vice versa.
12. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida without giving
effect to the principles of conflicts of law. Each of the parties hereto hereby
irrevocably and unconditionally consents to submit to the exclusive jurisdiction
of the courts of the State of Florida and of the United States of America, in
each case located in the County of Palm Beach, for any action, proceeding or
investigation in any court or before any governmental authority ("Litigation")
arising out of Or relating to this Agreement and the transactions contemplated
hereby (and agrees not to commence any Litigation relating thereto except in
such courts), and further agrees that service of any process, summons, notice or
document by U.S. registered mail to its respective address set forth in this
Agreement shall be effective service of process for any Litigation brought
against it in any such court. Each of the parties hereto hereby irrevocably and
unconditionally waives any objection to the laying of venue of any Litigation
arising out of this Agreement or the transactions contemplated hereby in the
courts of the State of Florida or the United States of America, in each case
located in the County of Palm Beach, and hereby further irrevocably and
unconditionally waives and agrees not to plead or claim in any such court that
any such Litigation brought in any such court has been brought in an
inconvenient forum.
13. Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid, but
if any provision of this Agreement is held to be invalid or unenforceable in any
respect, such invalidity or unenforceability shall not render invalid or
unenforceable any other provision of this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this
agreement as of the date first above written.
XxXXXXXX LTD. PanAMERICAN BANCORP
By: ________________________________ By: _________________________________
Xxxxx Xxxxxxx, Managing Director Xxxxxxx Xxxxxx, President and CEO
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PARTICIPATION AGREEMENT
PARTICIPATION AGREEMENT dated May ___, 2003 between PanAmerican
Bancorp, a Delaware corporation ("PanAmerican") and XxXxxxxx Park Xxxx, Inc., a
Florida Corporation ("Park Lane").
Preliminary Statement
Pursuant to a separate subscription agreement Park Lane has purchased
1,000,000 shares of the common stock of PanAmerican (the "Park Lane Shares").
As a condition of such sale, PanAmerican has agreed to give Park Lane
certain rights (the "Participation Rights")
This agreement is entered into to provide for certain Participation
Rights. This agreement is being delivered by the parties for mutual
consideration and is meant to be legally binding.
1. Except for Excluded Securities (as defined in this agreement),
Park Lane shall have the right as set forth below to purchase: (a) any shares of
PanAmerican's common stock offered by PanAmerican in a public or private
offering, (b) any other equity security of PanAmerican that is convertible into
or exchangeable for the common stock of PanAmerican (collectively a "Common
Stock Equivalent") offered by PanAmerican in a public or private offering. Park
Lane's Participation Rights are limited as it is only permitted to purchase
additional shares of PanAmerican's common stock or Common Stock Equivalent, that
are being offered for sale by PanAmerican, pursuant to a specific public or
private offering, in percentage amounts which are no greater that the percentage
common stock ownership interest of Park Lane in PanAmerican, which shall be
determined by the number of shares of common stock beneficially owned by Park
Lane divided by the total number of shares of PanAmerican common stock issued
and outstanding on the date PanAmerican receives written notice of Park Lane's
exercise of its Participation Rights unless Park Lane and PanAmerican agree
differently in writing. In the absolute discretion of PanAmerican, PanAmerican
may determine whether Park Lane may exercise its Participation Rights by
purchasing common stock or Common Stock Equivalent pursuant to a then existing
public or private offering or whether PanAmerican will issue additional shares
to Park Lane outside of such offerings. PanAmerican shall provide written notice
of all private offerings, upon their commencement date and for public offerings
upon filing with the United States Securities and Exchange Commission, to Park
Lane along with the offering documentation.
2. Notice of Park Lane's intention to exercise its Participation
Rights, in whole or in part, shall be evidenced by a writing signed by Park Lane
and delivered to PanAmerican within 30-days of the beginning of the public or
private offering (each, a "Notice of Participation"), setting forth such portion
of the Offered Securities that Park Lane elects to purchase.
3. Upon the closing, which shall include full payment to
PanAmerican, of the Issuance to such other person or persons (the "Other
Buyers") of all or part of the remaining Offered Securities, Park Lane shall
purchase from PanAmerican, and PanAmerican shall Issue to Park Lane, the Offered
Securities covered by the Notice of Acceptance on the terms specified in the
Preemptive Offer. The purchase by Park Lane of any Offered Securities is subject
in all cases to the execution and delivery by PanAmerican and Park Lane of a
purchase agreement relating to such Offered Securities in form and substance
similar in all material respects to the extent applicable to that executed and
delivered between PanAmerican and the Other Buyers.
4. As used herein, "Excluded Securities" shall mean:
(a) The Park Lane Shares issued or issuable pursuant to
this Agreement and the other securities issued or to be issued pursuant to
PanAmerican's Confidential Offering Memorandum dated August 30, 2002, (the
"August Offering Securities") and PanAmerican's Confidential Offering Memorandum
dated January 8, 2003 (the "January Offering");
(b) shares of Common Stock issued or issuable to XxXxxxxx
Ltd., a company organized under the laws of the Cayman Islands ("Limited"),
pursuant to a subscription dated the date hereof delivered by Limited to
PanAmerican or pursuant to the Participation Agreement dated the date hereof
between Limited and PanAmerican;
(c) shares of Common Stock issuable or issued to
employees, advisors, consultants or outside directors of PanAmerican directly or
pursuant to an employee benefit plan approved by the compensation committee of
the Board;
(d) Common Stock issued or issuable upon conversion,
exercise or exchange of any securities (i) outstanding on the date hereof; or
(ii) upon the conversion or exercise of any convertible security, right, Option
or warrant which is subject to a Preemptive Offer; issued or issuable pursuant
to this Agreement; or (iii) issued or issuable in connection with an August
Offering and January Offering of Securities;
(e) any capital stock issued as a stock dividend or upon
any stock split or other subdivision or combination of shares of PanAmerican's
capital stock or issued or issuable in connection with a merger or consolidation
of PanAmerican; and
(f) securities issued, pursuant to a merger or
acquisition, by PanAmerican.
5. Successors and Assigns. This Agreement shall bind and inure to
the benefit of PanAmerican and Park Lane and the respective successors and
assigns. PanAmerican acknowledges that Park Lane may only assign, all or part of
its rights and obligations under this Agreement to one or more other
partnerships, corporations, trusts or other organizations which are controlled
by, control or are under common control with Park Lane along with the related
Park Lane Shares, without the consent of PanAmerican. Upon any such assignment,
such assignee shall have and be able to exercise all rights of Park Lane. Except
as set forth in this Section, Park Lane may not assign its rights and/or
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obligations hereunder to any party without the consent of PanAmerican, which
consent shall not be unreasonably withheld.
6. Entire Agreement. This Agreement and the other writings
referred to herein or delivered pursuant hereto which form a part hereof contain
the entire agreement among the parties with respect to the subject matter hereof
and supersede all prior and contemporaneous arrangements or understandings with
respect thereto.
7. Notices. All notices, requests, consents and other
communications hereunder to any party shall be deemed to be sufficient if
contained in a written instrument delivered in person or sent by telecopy,
nationally recognized overnight courier or first class registered or certified
mail, return receipt requested, postage prepaid, addressed to such party at the
address set forth below or such other address as may hereafter be designated in
writing by such party to the other parties:
PanAmerican PanAmerican Bancorp
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx 00000
Attn: Mr. Xxxxxxx Xxxxxx
With a copy to: Xxxxxxxxx Traurig, P.A.
0000 Xxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxxxx Esq.
Park Xxxx XxXxxxxx Park Lane, Inc.
0000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxx 00000
Attn: Xxxx Xxxxxxx
All such notices, requests, consents and other communications
shall be deemed to have been given when received.
8. Amendments. The terms and provisions of this Agreement may be
modified or amended, or any of the provisions hereof waived, temporarily or
permanently, pursuant to the written consent of Park Lane and PanAmerican.
9. Counterparts. This Agreement may be executed in any number of
counterparts, and each such counterpart hereof shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
10. Headings. The headings of the sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed to be a
part of this Agreement.
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11. Nouns and Pronouns. Whenever the context may require, any
pronouns used herein shall include the corresponding masculine, feminine or
neuter forms, and the singular form of names and pronouns shall include the
plural and vice versa.
12. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida without giving
effect to the principles of conflicts of law. Each of the parties hereto hereby
irrevocably and unconditionally consents to submit to the exclusive jurisdiction
of the courts of the State of Florida and of the United States of America, in
each case located in the County of Palm Beach, for any action, proceeding or
investigation in any court or before any governmental authority ("Litigation")
arising out of Or relating to this Agreement and the transactions contemplated
hereby (and agrees not to commence any Litigation relating thereto except in
such courts), and further agrees that service of any process, summons, notice or
document by U.S. registered mail to its respective address set forth in this
Agreement shall be effective service of process for any Litigation brought
against it in any such court. Each of the parties hereto hereby irrevocably and
unconditionally waives any objection to the laying of venue of any Litigation
arising out of this Agreement or the transactions contemplated hereby in the
courts of the State of Florida or the United States of America, in each case
located in the County of Palm Beach, and hereby further irrevocably and
unconditionally waives and agrees not to plead or claim in any such court that
any such Litigation brought in any such court has been brought in an
inconvenient forum.
13. Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid, but
if any provision of this Agreement is held to be invalid or unenforceable in any
respect, such invalidity or unenforceability shall not render invalid or
unenforceable any other provision of this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this
agreement as of the date first above written.
XxXXXXXX PARK XXXX, INC. PanAMERICAN BANCORP
By: ____________________________ By: _________________________________
Xxxxxx X. Xxxxxxx, President Xxxxxxx Xxxxxx, President and CEO
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EXECUTION A
ESCROW AGREEMENT
THIS ESCROW AGREEMENT ("Agreement") is made as of the ______ day of
May, 2003, by and among PanAmerican Bancorp, a Delaware corporation
("PanAmerican"), XxXxxxxx Park Lane, Inc., a Florida corporation ("Park Lane"),
XxXxxxxx Ltd., a company incorporated in the Cayman Islands ("Limited"),
Franklin National Financial Group, LLC (the "Placement Agent"), and Xxxxxx,
Thistle & Xxxxxx, P.A., as escrow agent ("Escrow Agent").
W I T N E S S E T H:
WHEREAS, pursuant to a Confidential Private Offering Memorandum, dated
August 30, 2002 (the "Offering Memorandum"), PanAmerican offered in a private
placement (the "Prior Offering") authorized under Section 4(2) of the Securities
Act of 1933, as amended, units (the "Old Units") consisting of (x) one share
(the "Share") of common stock of PanAmerican, (y) one warrant to purchase an
additional share of common stock of PanAmerican at an exercise price of $0.80 (a
"Class A Warrant") and (z) one warrant to purchase an additional share of common
stock of PanAmerican at an exercise price of $0.70 (a "Class B Warrant")
(collectively, the Class A Warrants and the Class B Warrants are referred to in
this Agreement as the "Warrants") to prospective investors for an aggregate
purchase price per Unit of One Dollar (US$1.00);
WHEREAS, Park Lane and Limited wish to purchase Shares and Warrants,
respectively, in PanAmerican on the same terms as set forth in the Offering
Memorandum with regard to the Old Units, but subject to (i) a condition
subsequent that the common stock of PanAmerican be listed for trading on the
American Stock Exchange or NASDAQ small cap prior to the first anniversary of
the Closing Date (as defined below) (the "Condition Subsequent") as evidenced by
appropriate notice in the Wall Street Journal or similar publication, and (ii)
Park Lane being granted a non-assignable right to purchase such portion of any
future offering of the common shares and warrants of PanAmerican (the "Park Lane
Participation Condition") as determined in accordance a separate participation
rights agreement between Park Lane and PanAmerican (the "Park Lane Participation
Agreement") in the form attached hereto as EXHIBIT "A" and (iii) Limited being
granted a non-assignable right to purchase such portion of any future offering
of the common stock and warrants of PanAmerican (the "Limited Participation
Condition") as determined in accordance a separate participation rights
agreement between Limited and PanAmerican (the "Limited Participation
Agreement") in the form attached hereto as EXHIBIT "B";
WHEREAS, PanAmerican is willing to sell Shares and Warrants to Park
Lane and Limited on the same terms as the Prior Offering and subject to the
Condition Subsequent, the Limited Participation Condition and the Park Lane
Participation Condition;
WHEREAS, Park Lane is willing to sign and deliver a subscription
agreement for the purchase of Shares and Six Hundred Fifty Thousand Dollars
(US$650,000) representing the purchase price of the Shares into escrow pending
satisfaction of the Condition Subsequent and PanAmerican is willing to deliver
signed and dated certificates representing the Shares into escrow pending
satisfaction of the Condition Subsequent;
EXECUTION A
WHEREAS, Limited is willing to sign and deliver a subscription
agreement for the purchase of Warrants and Three Hundred Fifty Thousand Dollars
(US$350,000) representing the purchase price of the Warrants into escrow pending
satisfaction of the Condition Subsequent and PanAmerican is willing to deliver
signed and dated certificates representing the Class A Warrants and the Class B
Warrants into escrow pending satisfaction of the Condition Subsequent;
WHEREAS, PanAmerican, Park Lane and Limited agree that the Placement
Agent shall be entitled to be paid a commission and expenses upon the occurrence
of the Condition Subsequent, but only upon such occurrence, and that such
commission and expenses shall be paid to the Placement Agent, if due, upon the
release of the Purchase Funds (defined below) from escrow; and
WHEREAS, Escrow Agent is willing to act as escrow agent in accordance
with the terms and conditions set forth herein, and PanAmerican, Park Lane,
Limited and the Placement Agent desire the Escrow Agent so to act.
NOW, THEREFORE, in consideration of these premises, the mutual
covenants contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby expressly acknowledged, the parties
hereto agree as follows:
1. Appointment of the Escrow Agent. PanAmerican, Park Lane,
Limited and the Placement Agent hereby appoint Xxxxxx, Thistle & Xxxxxx, P.A.,
as escrow agent and Xxxxxx, Thistle & Xxxxxx, P.A., hereby accepts such
appointment in accordance with the terms and conditions set forth in this
Agreement. It is understood and agreed that the duties of the Escrow Agent are
purely ministerial in nature and that the Escrow Agent shall not be responsible
for the performance by PanAmerican Park Lane or Limited of their respective
obligations under this Agreement.
2. Delivery and Deposit of the Escrow Fund; Closing Date.
(a) On the Closing Date (defined below), (i) Park Lane
will deliver (x) an executed subscription agreement for the purchase of One
Million Shares, (y) Six Hundred Fifty Thousand Dollars (US$650,000) (the "Park
Lane Purchase Funds"), and (z) two executed counterparts of the Park Lane
Participation Agreement to the Escrow Agent and (ii) Limited will deliver (x) an
executed subscription agreement for the purchase of One Million Class A Warrants
and One Million Class B Warrants (y) two executed counterparts of the Limited
Participation Agreement to the Escrow Agent and (z) Three Hundred Fifty Thousand
Dollars (US$350,000) (the "Limited Purchase Funds") (collectively, the Park Lane
Purchase Funds and the Limited Purchase Funds are referred to in this Agreement
as the "Purchase Funds"), to be held by the Escrow Agent and disbursed as
provided in this Agreement. The Purchase Funds, copies of the Park Lane
Participation Agreement and Limited Participation Agreement and subscription
agreements held by the Escrow Agent under this Agreement are called the
"XxXxxxxx Escrow."
(b) On the Closing Date, PanAmerican will deliver to the
Escrow Agent (i) an executed counterpart accepting the subscription agreements,
(ii) a certificate representing One Million Shares, (iii) a certificate
representing One Million Class A Warrants, (iv) a certificate
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EXECUTION A
representing One Million Class B Warrants, and all to be held and disposed of as
provided in this Agreement, and (v) two executed counterparts of each of the
Park Lane Participation Agreement the Limited Participation Agreement. These
documents and certificates held by the Escrow Agent under this Agreement are
called the "PanAmerican Escrow."
(c) The Escrow Agent shall hold the XxXxxxxx Escrow and
the PanAmerican Escrow (collectively, the XxXxxxxx Escrow and the PanAmerican
Escrow are referred to in this Agreement as the "Escrow Fund") in escrow for the
benefit of PanAmerican, Park Lane, Limited and the Placement Agent, as
applicable. The Escrow Fund shall not be subject to any lien or attachment of
any creditor or any other person, and shall be used solely for the purposes and
subject to the conditions set forth in this Agreement. The Escrow Agent shall
deposit the Purchase Funds into an account (the "Escrow Account") established at
Sun Trust Bank, which is acceptable to each of PanAmerican, Park Lane, Limited
and the Placement Agent, and shall distribute the Escrow Fund in accordance with
Paragraph 3 below. The Purchase Funds shall only be invested in a secure
money-market investment or an equivalent vehicle at Sun Trust Bank. For Federal
Income Tax purposes, income from all investments and reinvestment of Purchase
Funds shall be recognized by the party to whom the Purchase Funds are
distributed.
(d) The funds and documents comprising the XxXxxxxx
Escrow and the PanAmerican Escrow, respectively, shall be delivered to the
Escrow Agent prior to 5:00 p.m., New York City time, on May 25, 2003, or prior
to 5:00 p.m., New York City time, on such other business day as the parties
agree (the "Closing Date").
3. Distribution and Termination of the Escrow. The Escrow Fund
shall be distributed on the Escrow Termination Date in accordance with the
provisions indicated in this Paragraph. "Escrow Termination Date" means the
earliest to occur of: (i) a date prior to the Agreed Date indicated in a joint
written direction of PanAmerican, Park Lane and Limited; (ii) the first
anniversary of the Closing Date, provided that Park Lane, or Limited may send a
written notice to the other parties to this Agreement not less than ten (10)
days prior to the first anniversary of the Closing Date extending the period
during which the Condition Subsequent may be satisfied to eighteen months after
the Closing Date (the "Agreed Date"); and (iii) the date of occurrence of the
Condition Subsequent.
(a) Upon the joint written direction of PanAmerican, Park
Lane and Limited; or
(b) Following the occurrence of the Condition Subsequent,
the Escrow Agent shall:
i. deliver the Shares and executed counterparts to
the subscription agreement and Park Lane Participation
Agreement to Park Lane, and
ii. deliver the Class A Warrants, the Class B
Warrants and an executed counterpart to the subscription
agreement and Limited Participation Agreement to Limited; and
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EXECUTION A
iii. deliver the Placement Agent Fee in the amount of
US$104,000 to the Placement Agent, of which $80,000 shall
represent the Placement Agent's commission and $24,000 of
which shall represent Placement Agent's expenses; and
iv. deliver the XxXxxxxx Escrow minus the Placement
Agent Fee, together with all interest that has accrued on the
Purchase Funds, to PanAmerican; or
(c) If the Termination Date has occurred prior to the
Condition Subsequent, the Escrow Agent, no later than three (3) business days
after such Termination Date, shall return the respective portions of the
XxXxxxxx Escrow to Park Lane and Limited (together with their respective pro
rata share of the interest that has accrued in the Purchase Funds) and return
the PanAmerican Escrow to Pan American.
(d) Upon delivery by the Escrow Agent of the Escrow Fund
as prescribed above, the Escrow Agent shall be deemed instructed to close the
Escrow Account and all duties and responsibilities of the Escrow Agent under
this Agreement shall terminate.
4. Escrow Agent's Fees. The Escrow Agent's fees and expenses as
set forth on the schedule attached hereto and made a part hereof as EXHIBIT "C"
shall be paid by PanAmerican.
5. Escrow Agent's Responsibilities.
(a) The Escrow Agent shall not be liable to anyone for
any damages, losses or expenses which it may incur as a result of any act or
omission of the Escrow Agent, unless such damages, losses or expenses are caused
by the Escrow Agent's willful default or gross negligence. Accordingly, the
Escrow Agent shall not incur any such liability with respect to (i) any action
taken or omitted in good faith upon the advice of counsel or counsel for any
other party hereto, given with respect to any question relating to the duties
and responsibilities of the Escrow Agent under this Agreement, or (ii) any
action taken or omitted in reliance upon any instrument, including execution, or
the identity or authority of any person executing such instrument, its validity
and effectiveness, but also as to the truth and accuracy of any information
contained therein which the Escrow Agent shall in good faith believe to be
genuine, to have been signed by a proper person or persons and to confirm to the
provisions of this Agreement.
(b) The Escrow Agent shall not be bound in any way to any
contract or agreement between other parties hereto, whether or not it has
knowledge of any such contract or agreement, or of its terms or conditions.
(c) PanAmerican, Park Lane and Limited, jointly, hereby
agree to indemnify and hold harmless the Escrow Agent against any and all costs,
losses, claims, damages, liabilities, expenses, including reasonable costs of
investigation, court costs, attorney's fees and disbursements, which may be
imposed upon the Escrow Agent in connection with its acceptance of appointment
as Escrow Agent hereunder, including any litigation arising from this Agreement
or involving the subject matter hereof, and all such costs, expenses and
disbursements shall be
4
EXECUTION A
for the account of and shall be borne and paid by PanAmerican, Park Lane and
Limited, jointly, as a condition to termination of this Agreement.
6. Disputes.
(a) In the event of any disagreement among any of the
parties to this Agreement, or among them and any other person resulting in
adverse claims and demands being made in connection with or from any property
involved herein or affected hereby, the Escrow Agent shall be entitled to refuse
to comply with any such claims or demands as long as such disagreement may
continue, and in so refusing, shall make no delivery or other disposition of any
property then held by it under this Agreement, and in so doing, the Escrow Agent
shall be entitled to continue to refrain from acting until (i) the right of
adverse claimants shall have been finally settled by binding arbitration or
finally adjudicated in a court assuming and having jurisdiction of the property
involved herein or affected hereby, or (ii) all differences shall have been
adjusted by agreement and the Escrow Agent shall have been notified in writing
of such agreement signed by the parties hereto or involved. All parties consent
to the jurisdiction of the state or federal courts located in Palm Beach County,
Florida for the purpose of adjudicating any matters arising hereunder.
(b) In the event of such disagreement, the Escrow Agent
may, but need not, tender into the registry or custody of any court of competent
jurisdiction all money or property in its hands under the terms of this
Agreement, together with such legal proceedings as it deems appropriate, and
thereupon to be discharged from all further duties under this Agreement. The
filing of any such legal proceedings shall not deprive the Escrow Agent of its
compensation earned prior to such filing.
7. No Implied Duties. The Escrow Agent undertakes to perform only
such duties as are expressly set forth herein and no additional duties or
obligations shall be implied hereunder.
8. Entire Agreement. This Agreement contains the entire
understanding between and among the parties hereto, and shall be binding upon
and inure to the benefit of such parties, and subject to its terms, their
respective successors, heirs, assigns and legal representatives.
9. Governing Law. This Agreement is being delivered in and shall
be governed by and construed and enforced in accordance with the laws of the
State of Florida.
10. Notices. Notices, requests, demands or other communications
required or permitted under this Agreement will be in writing and will be deemed
given when actually delivered (and if delivered via facsimile transmission or
other electronic means, date of delivery shall be date on confirmation receipt)
or when sent by certified mail, postage prepaid, return receipt requested, on
the third day after mailing, to the following addresses or such other address as
a party may specify in writing to the other parties pursuant hereto:
Escrow Agent: Xxxxxx, Thistle & Xxxxxx, P.A.
00 Xxxxxxxxx 0xx Xxxxxx
Xxxxxx Xxxxx, XX 00000
Attn: J. Xxxxxxx Xxxxxxx, Esq.
5
EXECUTION A
PanAmerican PanAmerican Bancorp
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Mr. Xxxxxxx Xxxxxx
With a copy to: Xxxxxxxxx Traurig, P.A.
0000 Xxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxxxx Esq.
Park Xxxx XxXxxxxx Park Lane, Inc.
0000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Xxxx Xxxxxxx
Limited XxXxxxxx Ltd.
X.X. Xxx 000
Grand Cayman
Attn: Xxxxx Xxxxxxx
11. Modifications. This Agreement shall not be modified, revoked,
released or terminated except upon the mutual consent of the parties hereto,
given in writing and delivered to the Escrow Agent.
12. Resignation of Escrow Agent. Should, at any time, any attempt
be made to modify this Agreement in a manner that would increase the duties and
responsibilities of the Escrow Agent, or to modify this Agreement in any manner
which the Escrow Agent shall deem undesirable, or at any other time, the Escrow
Agent may resign by notifying PanAmerican and Park Lane and XxXxxxxx, Ltd. in
writing, by certified mail to its or his address set forth above, and until (i)
the acceptance by a successor Escrow Agent as shall be appointed by PanAmerican
and XxXxxxxx Ltd. or (ii) sixty (60) days following the date upon which notice
was mailed, whichever occurs sooner, the Escrow Agent's only remaining
obligation shall be to perform its duties hereunder in accordance with the terms
of this Agreement.
13. Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but both of which together shall
constitute one and the same instrument.
[Signature Page Follows.]
6
EXECUTION A
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their duly authorized representatives as of the date and year
first above written.
XXXXXX, THISTLE & XXXXXX, P.A.
By: __________________________________
J. Xxxxxxx Xxxxxxx, Esq.
XxXXXXXX PARK LANE, INC. PANAMERICAN BANCORP
By: _______________________________ By: _________________________________
Name: Xxxxxxx Xxxxxx, President and CEO
Title:
XxXXXXXX LTD. FRANKLIN NATIONAL FINANCIAL GROUP, LLC
By:________________________________ By: ___________________________________
Xxxxx Xxxxxxx, Managing Director Name:
Title:
7
EXECUTION A
EXHIBIT "A"
PARK LANE PARTICIPATION AGREEMENT
8
EXECUTION A
EXHIBIT "B"
LIMITED PARTICIPATION AGREEMENT
9
EXECUTION A
EXHIBIT "C"
ESCROW AGENT
FEE SCHEDULE
Hourly at the rate of $250.00 per hour. Minimum fee of $3,500.00.
10
