1
EXHIBIT 10.1
ESCROW AGREEMENT
THIS ESCROW AGREEMENT is made and entered into as of the 16th day of
February, 2001, by and between GBC BANCORP, INC., a Georgia corporation (the
"Company"), and GWINNETT BANKING COMPANY (the "Escrow Agent").
WITNESSETH:
WHEREAS, the Company contemplates a public securities offering of a
Minimum Offering of 357,143 shares and a Maximum Offering of 714,286 shares (the
"Offering"); and
WHEREAS, the Company wishes to establish an escrow account with the
Escrow Agent so as to segregate all subscription payments received pursuant to
the Minimum Offering;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and intending to be legally bound hereby, the parties hereto
covenant and agree as follows:
1. The Company hereby appoints and designates the Escrow Agent as
escrow agent for the purposes set forth herein. The Escrow Agent hereby
acknowledges and accepts said appointment and designation.
2. The Company hereby covenants and agrees to promptly remit to
the Escrow Agent all checks for the subscription payments in the amount of the
Offering price of $14.00 per Share received from subscribers to the Minimum
Offering. The Company will not deduct any fees or expenses whatsoever from such
subscription payments. All subscription payments delivered to the Escrow Agent
hereunder shall be deposited immediately by the Escrow Agent in a separate
account designated as "GBC Bancorp, Inc. Escrow Account" (the "Escrow Account").
The Escrow Account shall be created and maintained subject to the customary
rules and procedures of the Escrow Agent pertaining to such accounts. The Escrow
Agent shall have no responsibility for subscription payments not received and
collected in the normal course of its business, and any check or other
instrument determined to be uncollectible by the Escrow Agent shall be returned
promptly to the Company. The Escrow Agent shall invest all subscription funds in
short-term government money market securities or similar short-term money market
securities, or in short-term certificates of deposit or other interest bearing
accounts, which investment(s) may be selected by the Company upon reasonable
notice given to the Escrow Agent in writing. The subscription funds deposited in
the Escrow Account shall not become the property of the Company, except as
expressly provided herein; and the Escrow Agent shall not make or permit any
disbursements from the Escrow Account, except as expressly provided herein.
3. All subscription funds shall be held by the Escrow Agent until
the occurrence of the events specified below authorizing the release of such
funds, either by paying the same to the Company with interest or by returning
same to the subscribers without interest:
2
(a) In the event the Escrow Agent has received, on or
before the close of business on June 30, 2001 (or December 31, 2001, if
the Company elects to extend the Expiration Date of the Offering and
furnishes written notice thereof to the Escrow Agent prior thereto),
the subscription payments as described in Paragraph 2 hereof for at
least 357,143 shares of the Offering, the Escrow Agent, upon the
written certification of the Company, pursuant to which the Company (i)
identifies the subscriptions which they have accepted and, if accepted
in part, to the extent to which each has been accepted, and (ii)
certifies to the Escrow Agent that it has satisfied the conditions
precedent to the release of such funds as described in the Prospectus,
shall promptly deliver and pay over to the Company all proceeds from
subscriptions so accepted, together will all interest earned on all
subscription funds held in the Escrow Account, and shall return to all
subscribers whose subscriptions have been rejected in whole or in part
the amount of subscription proceeds so rejected, without interest.
(b) In the event the Escrow Agent has not received, prior
to the close of business on June 30, 2001 (or December 31, 2001, if the
Company elects to extend the Expiration Date of the Offering and
furnishes written notice thereof to the Escrow Agent prior thereto),
the subscription payments as described in Paragraph 2 hereof for at
least 357,143 shares of the Offering, the Escrow Agent shall return by
regular mail, to each subscriber at the same address shown on the
subscriber's payment, all collected funds received from each
subscriber, without interest; and the Escrow Agent shall pay over and
deliver to the Company all interest earned on the collected funds
received from each subscriber, to be used solely by the Company to pay
Offering expenses of the Company. Any payment hereunder by the Escrow
Agent may be made by a check of the Escrow Agent. At such time as the
Escrow Agent shall have made all the payments and remittances provided
for in this Paragraph, this Agreement will be deemed terminated and the
Escrow Agent released from all further obligations and responsibilities
hereunder.
4. The Escrow Agent shall be entitled to a fee for its services under this
Agreement and the mount of such fee shall be set forth in Exhibit A attached
hereto and incorporated herein by reference. The Company shall be responsible
for all tax reports required by law to be sent to the subscribers.
5. In performing any of its duties under this Agreement, or upon the
claimed failure to perform its duties hereunder, the Escrow Agent shall not be
liable to anyone for any damages, losses, or expenses which such person may
incur as a result of the Escrow Agent so acting or failing to act; provided that
Escrow Agent shall be liable for damages arising out of its willful default or
gross negligence under this Agreement. Accordingly, Escrow Agent shall not incur
any such liability with respect to (i) any action taken or omitted to be taken
in good faith upon advice of its counsel or counsel for the other parties hereto
given with respect to any questions relating to the duties and responsibilities
of the Escrow Agent hereunder or (ii) action taken or omitted to be taken in
reliance upon any document, including any written notice or instructions
provided for in this Agreement, not only as to its due execution and to the
validity and effectiveness of its provisions but also as to the truth and
accuracy of any information contained
2
3
therein, which the Escrow Agent shall in good faith believe to be genuine, to
have been signed or presented by proper person(s), and to conform with the
provisions of this Agreement.
6. The Company agrees to indemnify and hold the Escrow Agent
harmless against any and all losses, claims, damages, liabilities, and expenses,
including, without limitation, reasonable costs of investigation, attorneys'
fees, and disbursements which may be imposed upon the Escrow Agent or incurred
hereunder or the performance of its duties hereunder, including, without
limitation, any litigation arising from this Agreement or involving the subject
matter hereof; except that if Escrow Agent shall be found guilty of willful
default or gross negligence under this Agreement, then, in such event, Escrow
Agent shall bear all such losses, claims, damages, and expenses.
7. In the event of a dispute between any of the parties hereto or
with any third parties sufficient in the discretion of the Escrow Agent to
justify its doing so, the Escrow Agent shall be entitled to tender unto the
registry or custody of any court of competent jurisdiction al money or property
in its hands under the terms of this Agreement, and to institute such legal
proceedings as it deems appropriate, and thereupon be discharged from all
further duties under this Agreement. Any such legal action may be brought in any
such court as Escrow Agent shall determine to have jurisdiction thereof. The
filing of any such legal proceedings will not deprive Escrow Agent of its
compensation earned prior to such filing.
8. Notices given pursuant to this Agreement shall be in writing
and shall be deemed received when delivered to the appropriate parties at the
following addresses:
Company: GBC Bancorp, Inc.
000 Xxxx Xxxxxx
Xxxxxxxxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxxxx X. Key, President
Escrow Agent: Gwinnet Banking Company
000 Xxxx Xxxxxx
Xxxxxxxxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxxxx X. Key, President
9. This Agreement contains the entire agreement of the parties
with respect to the subject matter hereof. This Agreement supersedes and any
other agreements, either oral or in writing, between the parties hereto. Each
party to this Agreement acknowledges that no representation, inducements,
promises, or agreements, oral or otherwise, have been made by any party, or
anyone acting on behalf of any party, which are not embodied or expressly
referred to herein, and that no other agreement, statement, or promise not
contained in this Agreement shall be valid or binding. This Agreement may not be
modified or amended by oral agreement, but only by an agreement in writing
signed by the parties hereto.
10. This Agreement shall be construed under the laws of the State
of Georgia.
3
4
11. The recitals set forth at the beginning of this Agreement are
incorporated by reference in, and made a part of, this Agreement.
IN WITNESS WHEREOF, the parties hereto have set their hands and affixed
their seals as of the date first above written.
COMPANY:
GBC BANCORP, INC., a Georgia corporation
By:
------------------------------------------
Xxxxx X. Key, President
[CORPORATE SEAL]
ESCROW AGENT:
GWINNETT BANKING COMPANY
By:
------------------------------------------
Xxxxx X. Key, President
[BANK SEAL]
4
5
EXHIBIT A
The Escrow Agent shall be entitled to a fee of $100.00, payable upon
the execution of this Agreement.
5
