EXHIBIT 10.1
FORM OF
NEXITY BANK ESCROW AGREEMENT
Relating to Subscriptions for Shares of Xxx County Bancshares, Inc.
THIS ESCROW AGREEMENT (the "Agreement") is made and entered into as of the
___ day of, 20__, by and among certain investors (collectively, the "Investors")
who have executed a Subscription Agreement (the "Subscription Agreement" (and
which Subscription Agreement expressly refers to and incorporates this Escrow
Agreement); Xxx County Bancshares, Inc., a Georgia corporation (the "Company");
and Nexity Bank (the "Escrow Agent").
WHEREAS, the Investors desire to contribute to the capital of Xxx County
Bancshares, Inc. by purchasing shares of its common stock, $1.00 par value (the
"Shares") pursuant to the terms and conditions set forth in Xxx County
Bancshares' Prospectus dated , 20 (the "Prospectus"), and the Subscription
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Agreement, the form of which is attached hereto; and
WHEREAS, in order to facilitate the purchase of the Shares and the
organization of Xxx County Bancshares, Inc., the Investors desire that the
Escrow Agent receive, hold and distribute their payments for the Shares in
accordance with the terms hereof.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
hereinafter set forth, the parties agree as follows:
1. ESCROW DEPOSIT. Each Investor will deliver the funds in payment for
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the Shares purchased by such Investor, as set forth in the Subscription
Agreement, to the Company for further delivery to the Escrow Agent. The Company
will collect and deliver to the Escrow Agent appropriate W-9 Forms for each
investor.
2. INVESTMENT OF ESCROW DEPOSIT. All funds received by the Escrow
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Agent pursuant to this Agreement shall be invested, to the extent practicable,
in a fully liquid instrument of deposit with the Escrow Agent. Interest will
begin accruing no later than the next business day after receipt.
3. DISTRIBUTION OF FUNDS. The Escrow Agent shall distribute the funds
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held by it under this Agreement as follows:
a. Upon receipt of (i) funds in the amount of at least $6,100,000 in
payment for Shares, and (ii) a certificate executed by either Xxxxxxx
X. Guy or Xxx X. Xxxx, Xx. attesting that Xxx County Bancshares, Inc.
has received subscriptions for such amount and directing the Escrow
Agent to distribute all funds received by the Escrow Agent from the
Investors under this Agreement to the Company, the Escrow Agent shall
deliver the funds, by cashier's check or other form of payment
mutually acceptable to the Company and the Escrow Agent, to the
Company, together with the income
earned thereon pursuant to subsection (c) of this Section 3. No
distribution will be made until the last investor deposit has been
made for at least two business days. The Company shall provide account
information and other necessary directions for disbursements by the
Escrow Agent to it under this Agreement. The Escrow Agent must be
provided a copy of the Subscription Agreement at the signing of this
Escrow Agreement.
b. Upon (i) receipt of direction from the Company to return the funds to
the Investors or (ii) in the event the Escrow Agent shall have
received less than $6,100,000 or shall have received no direction or
certificate from the Company pursuant to either subsection (a) or this
subsection (b) of this Section 3 on or prior to ,
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20 (closing date of offering), the Escrow Agent shall distribute
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such funds to the Investors, together with the income earned thereon
pursuant to subsection (c) of this Section 3. The Company may give
notice to the Escrow Agent that the Company is canceling its offer of
the Shares prior to , 20 and the Escrow Agent shall
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distribute the funds to the Investors in accordance with this
Agreement.
c. Any income earned on the investment of funds received under this
Agreement will first be applied against the Escrow Agent's fee set
forth in Section 9 hereof and any expense of the Escrow Agent incurred
pursuant to Section 5 hereof. To the extent that such income exceeds
the Escrow Agent's fee and expenses, the Escrow Agent shall allocate
(each Investor shall be allocated his pro rata share of such excess,
calculated according to the amount of funds delivered to the Escrow
Agent by such Investor and the number of days such Investor's funds
have been available for investment by the Escrow Agent) and distribute
such excess to the Investors, in the event that funds are returned to
Investors pursuant to subsection (b) of this Section. Such excess
shall be delivered to the Company, in the event that the funds
received and held hereunder are delivered to the Company pursuant to
subsection (a) of this Section.
4. AUTHORIZATION FOR DISBURSEMENT. The Escrow Agent is hereby
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authorized and directed to issue its checks for each disbursement hereunder and
the Escrow Agent shall be relieved of all liability with respect to making the
disbursements in accordance with the provisions hereof.
5. PROFESSIONAL SERVICES USED BY ESCROW AGENT. The Escrow Agent may
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engage the services of such attorneys, accountants and other professionals, as
the Escrow Agent may, in its sole discretion, deem advisable to carry out its
duties under the Agreement. The Company agrees to reimburse the Escrow Agent
for all costs, expenses and professional fees incurred hereunder which are not
covered by income earned on escrowed funds pursuant to Section 3(c) hereof,
including all legal fees and expenses incurred in the review of this Agreement.
6. LIMIT ON ESCROW AGENT'S RESPONSIBILITY. The Escrow Agent shall have
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no duties or obligations hereunder except as expressly set forth herein, shall
be responsible only for
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the performance of such duties and obligations, shall not be required to take
any action otherwise than in accordance with the terms hereof, and shall not be
in any manner liable or responsible for any loss or damage arising by reason of
any act or omission to act by it hereunder or in connection with any of the
transactions contemplated hereby, including, but not limited to, any loss that
may occur by reason of forgery, false representations, the exercise of its
discretion or any other reason, except for its gross negligence or willful
misconduct.
7. RELIANCE ON OPINION OF COUNSEL. The Escrow Agent hereunder shall be
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entitled to rely upon the advice of its counsel in any action taken in its
capacity as Escrow Agent hereunder and shall be protected from any liability of
any kind for actions taken in reasonable reliance upon such opinion of its
counsel.
8. RESIGNATION. The Escrow Agent may resign at any time upon ten (10)
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days' written notice to the Company. Such resignation shall take effect upon
receipt by the Escrow Agent of an instrument of acceptance executed by a
successor escrow agent and subscribed and consented to by the Company, and the
delivery by the Escrow Agent to such successor of any funds held under this
Agreement. The Escrow Agent, if it has not received such an instrument of
acceptance prior to the expiration of ten (10) calendar days after the giving of
notice of resignation, shall be discharged of its duties and obligations
hereunder only upon the deposit of any funds being held by it under this
Agreement into, and the acceptance thereof, by a court of competent
jurisdiction, to which application shall be made for the appointment of a
successor escrow agent so appointed shall succeed to all of the rights, duties
and responsibilities of the Escrow Agent.
9. ESCROW AGENT'S FEES. The Company agrees to pay Escrow Agent's usual
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and customary fees for performing its obligations under the Agreement that are
not covered by income earned on escrowed funds pursuant to Section 3(c) hereof.
10. NOTICE. All notices, certificates and other communications
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hereunder shall be in writing and shall be sufficiently given when delivered,
postage prepaid, addressed as follows by certified mail:
To the Escrow Agent: Attention: Xxx. Xxx Xxxxxxxx
Nexity Bank
0000 Xxxx Xxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
To the Investors: to the persons named and at the
addresses listed in the Subscription
Agreements
To Company: Xxx County Bancshares, Inc.
0000 Xxxxxxxxx Xxxx, Xxxxx X
Xxxxxxx, Xxxxxxx 00000
Any party may, by notice given hereunder, designate any future or
different addresses to which subsequent notices, certificates and other
communications shall be sent.
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12. BINDING EFFECT. This Agreement shall inure to the benefit of and
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shall be binding upon the parties hereto and their respective heirs, successors,
administrators and assigns.
13. SEVERABILITY. In the event any court of competent jurisdiction
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shall hold any provision of this Agreement invalid or unenforceable, such
holding shall not invalidate or render unenforceable any other provision hereof.
14. EXECUTION OF COUNTERPARTS. This Agreement may be executed in
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several counterparts, each of which shall be an original, and all of which shall
constitute one and the same instrument.
15. APPLICABLE LAW. This Agreement shall be construed and governed
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exclusively by the laws of the State of Alabama, without regard to its
principles of conflicts of law.
16. HEADINGS. The headings used in this Agreement have been prepared
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for the convenience of reference only and shall not control, affect the meaning,
or be taken as an interpretation of any provisions of this Agreement.
ESCROW AGENT: NEXITY BANK
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By:
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Its:
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Date:
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COMPANY: XXX COUNTY BANCSHARES, INC.
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By:
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Its:
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Date:
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