Exhibit 4.2
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Form of Escrow Agreement
With
Independent Bankers' Bank of Florida
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[Independent Bankers' Bank of Florida Logo]
ESCROW AGREEMENT
This Escrow Agreement is entered into and effective this 20th day of
October, 1998, by and between Citrus Financial Services, Inc., a Florida
corporation ( the "Company") and the Independent Bankers' Bank of Florida
("Escrow Agent" or "Agent").
WITNESSETH:
WHEREAS, the Company, proposes to offer for sale up to 1,200,000 shares
of its common stock (the "Common Stock"), which shares shall be registered under
the Securities Act of 1933, as amended, at a per share price to be determined,
in minimum subscriptions of 100 shares ("Offering"); and
WHEREAS, the Company has requested the Escrow Agent to serve as the
depository for the payment of subscription proceeds ("Payments") received by the
Company from investor(s) who are subscribing to purchase shares of Common Stock
in the Company pursuant to, and in accordance with, the terms and conditions
contained in the Company's Prospectus and Subscription Agreements thereto; and
WHEREAS, the Offering will terminate at 5:00 P.M. Eastern Time, 90 days
after the Effective Date of the Company's Registration Statement, unless
extended by the Company for up to an additional 90 days ( "Initial Offering
Period"), and, if during the Initial Offering Period the minimum number of
shares have been subscribed to, the Offering will continue until the earlier of:
(i) the maximum number of shares are subscribed to, or (ii) one year after the
Effective Date of the Company's Registration Statement.
NOW THEREFORE, in consideration of the premises and understandings contained
herein, the parties agree as follows:
(1) The Company hereby appoints and designates the Escrow Agent for the
purposes set forth herein. The Escrow Agent acknowledges and accepts said
appointment and designation. The Company understands that the Escrow Agent, by
accepting said appointment and designation, in no way endorses the merits of the
offering of the shares described herein. The Company agrees to notify any person
acting on its behalf that the position of Escrow Agent does not constitute such
an endorsement, and to prohibit said persons from the use of the Agent's name as
an endorser of such offering. The Company further agrees to allow the Escrow
Agent to review any sales literature in which the Agent's name appears and which
is used in connection with such offering.
(2) The Company shall deliver all payments received (the "Subscription
Funds") to the Escrow Agent (Independent Bankers' Bank of Florida, Attn.:
Customer Service Group) in the form in which they are received by noon of the
fifth (5th) business day after their receipt by the Company, and the Company
shall deliver to the Escrow Agent within ten (10) calendar days copies of
written acceptances of the Company for shares in the Company for which the
Subscription Funds represent payment. Upon receipt of such written acceptance by
the Company, the Escrow Agent shall deposit such funds into the escrow account.
The Company shall also deliver to the Escrow Agent completed copies of
Subscription Agreements for each
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subscriber, along with such subscriber's name, address, number of shares
subscribed and social security or taxpayer identification number.
(3) Subscription Funds shall be held and disbursed by the Escrow Agent
in accordance with the terms of this Agreement.
(4) In the event any Subscription Funds are dishonored for payment for
any reason, the Escrow Agent agrees to orally notify the Company thereof as soon
as practicable and to confirm same in writing and to return due dishonored
Subscription Funds to the Company in the form in which they were delivered.
(5) Should the Company elect to accept a subscription for less than the
number of shares shown in the purchaser's Subscription Agreement, by indicating
such lesser number of shares on the written acceptance of the Company
transmitted to the Escrow Agent, the Agent shall deposit such payment in the
escrow account and then, upon separate instruction from the Company, remit
within ten (10) days after such deposit to such subscriber at the address shown
in his Subscription Agreement that amount of his Subscription Funds in excess of
the amount which constitutes full payment for the number of subscribed shares
accepted by the Company as shown in the Company's written acceptance, without
interest or diminution. Said address shall be provided by the Company to the
Escrow Agent as requested.
(6) Definitions as used herein:
(a) "Total Receipts" shall mean the sum of all Subscription
Funds delivered to the Escrow Agent pursuant to Paragraph (2) hereof, less (i)
all Subscription Funds returned pursuant to Paragraphs (4) and (5) hereof and
(ii) all Subscription Funds which have not been paid by the financial
institution upon which they are drawn.
(b) "Expiration Date" shall mean 5:00 P.M., Eastern Time, 90
days after the Effective Date of the Company's Registration Statement; provided,
however, in the event that the Escrow Agent is given oral notification followed
in writing, by the Company that it has elected to extend the offering to a date
not later than 90 additional days, then the Expiration Date shall mean 5:00
P.M., Eastern Time, on the date to which the offering has been extended. The
Company will notify the Escrow Agent of the effective date of the Prospectus as
soon as practicable after such date has been determined.
(c) "Closing Date" shall mean the business day on which the
Company, after determining that all of the Offering conditions have been met,
selects in its sole discretion. The Closing Date shall be confirmed to the
Escrow Agent in writing by the Company.
(d) "Escrow Release Conditions" shall mean that (i) the Company
has not canceled the Offering, and (ii) that the Company has accepted the
minimum volume of new shares of the subscription identified in the Company's
Registration Statement.
(7) If, on or before the Expiration Date, (i) the Total Receipts held
by the Escrow Agent equal or exceed the amount determined by multiplying the
minimum number of shares times the offering price and (ii) the Company has
certified to the Escrow Agent that, the Escrow Release Conditions have been met,
the Escrow Agent shall:
(a) No later than 10:00 A.M., Eastern Time, one day prior to
Closing Date (as that term is defined herein), deliver to the Company all
Subscription Agreements provided to the Escrow Agent; and
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(b) On the Closing Date, no later than 10:00 A.M., Eastern Time,
upon receipt of 24-hour written instructions from the Company, remit all amounts
representing Subscription Funds, plus any profits or earnings, held by the
Escrow Agent pursuant hereto to the Company in accordance with such
instructions.
(8) If (i) the Escrow Release Conditions are not met by the Expiration
Date, or (ii) the offering is canceled by the company at any time prior to the
Expiration Date, then the Escrow Agent shall promptly remit to each subscriber
at the address set forth in his Subscription Agreement an amount equal to the
amount of his Subscription Funds thereunder, plus any profits or earnings
thereon. The earnings accruing to any individual subscriber under this paragraph
shall be a prorated share of the gross earnings on all funds under escrow,
weighted by the amount and the duration of the funds tendered for the individual
subscription. Under no circumstances will earnings accrue to any subscription
canceled for any reason other than those provided for in this paragraph.
(9) Pending disposition of the Subscription Funds under this Agreement,
the Escrow Agent will invest collected Subscription Funds, in $1,000 increments
above a maintained balance of $50,000, in overnight repurchase agreements
collateralized at 102% with obligations of the United States Treasury or United
States Government Agencies. These repurchase agreement transactions will earn
interest at a rate of 35 basis points below the daily Overnight Fed Funds Sold
rate.
(10) The obligations as Escrow Agent hereunder shall terminate upon the
Agents transferring all funds held hereunder pursuant to the terms of Paragraphs
(7) or (8) herein, as applicable.
(11) The Escrow Agent shall be protected in acting upon any written
notice, request, waiver, consent, certificate, receipt, authorization, or other
paper or document which the Agent believes to be genuine and what it purports to
be.
(12) The Escrow Agent shall not be liable for anything which the Agent
may do or refrain from doing in connection with this Escrow Agreement, except
for the Agent's own gross negligence or willful misconduct.
(13) The Escrow Agent may confer with legal counsel in the event of any
dispute or questions as to the construction of any of the provisions hereof, or
the Agent's duties hereunder, and shall incur no liability and shall be fully
protected in acting in accordance with the opinions and instructions of such
counsel. Any and all expenses and legal fees in this regard will be paid by the
Company.
(14) In the event of any disagreement between the Company and any other
person resulting in adverse claims and demands being made in connection with any
Subscription Funds involved herein or affected hereby, the 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 Subscription Funds then held under this Agreement, and in so
doing shall be entitled to continue to refrain from acting until (a) the right
of adverse claimants shall have been finally settled by binding arbitration or
finally adjudicated in a court in Orange County, Florida assuming and having
jurisdiction of the Subscription Funds involved herein or affected hereby or (b)
all differences shall have been adjusted by agreement and the Agent shall have
been notified in writing of such agreement signed by the parties hereto. In the
event of such disagreement, the Agent may, but need not, tender into the
registry or custody of any court of competent jurisdiction in Orange County,
Florida all money or property in the Agent's hands under the terms of this
Agreement, together with such legal proceedings as the Agent deems
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appropriate and thereupon to be discharged from all further duties under this
Agreement. The filing of any such legal proceeding shall not deprive the Agent
of compensation earned prior to such filing. The Escrow Agent shall have no
obligation to take any legal action in connection with this Agreement or towards
its enforcement, or to appear in, prosecute or defend any action or legal
proceeding which would or might involve the Agent in any cost, expense, loss or
liability unless indemnification shall be furnished.
(15) The Escrow Agent may resign for any reason, upon thirty (30) days
written notice to the Company. Upon the expiration of such thirty (30) day
notice period, the Escrow Agent may deliver all Subscription Funds and
Subscription Agreements in possession under this Escrow Agreement to any
successor Escrow Agent appointed by the Company, or if no successor Escrow Agent
has been appointed, to any court of competent jurisdiction. Upon either such
delivery, the Escrow Agent shall be released from any and all liability under
this Escrow Agreement. A termination under this paragraph shall in no way change
the terms of Paragraphs (14) and (16) affecting reimbursement of expenses,
indemnity and fees.
(16) The Escrow Agent will charge the Company for services hereunder a
fee of $1,500.00, plus an additional fee of $5.00 for each check issued, $10.00
for each wire and $.50 for each photo copy necessitated in the performance of
duties, with total fees for services not to exceed $2,000.00. All actual
expenses and costs incurred by the Agent in performing obligations under this
Escrow Agreement will be paid by the Company. All fees and expenses shall be
paid on the Closing Date by the Company. Any subsequent fees and expenses will
be paid by the Company upon receipt of invoice.
(17) All notices and communications hereunder shall be in writing and
shall be deemed to be duly given if sent by registered or certified mail, return
receipt requested, to the respective addresses set forth herein. The Escrow
Agent shall not be charged with knowledge of any fact, including but not limited
to performance or non-performance of any condition, unless the Escrow Agent has
actually received written notice thereof from the Company or its authorized
representative clearly referring to this Escrow Agreement.
(18) The rights created by this Escrow agreement shall inure to the
benefit of, and the obligations created hereby shall be binding upon the
successors and assigns of the Escrow Agent and the parties hereto.
(19) This Escrow Agreement shall be construed and enforced according to
the laws of the State of Florida.
(20) This Escrow Agreement shall terminate and the Escrow Agent shall
be discharged of all responsibility hereunder at such time as the Escrow Agent
shall have completed all duties hereunder.
(21) This Escrow Agreement may be executed in several counterparts,
which taken together shall constitute a single document.
(22) This Escrow Agreement constitutes the entire understanding and
agreement of the parties hereto with respect to the transactions described
herein and supersedes all prior agreements or understandings, written or oral,
between the parties with respect thereto.
(23) If any provision of this Escrow Agreement is declared by a court
of competent jurisdiction to be invalid, void or unenforceable, the remaining
provisions shall nevertheless continue in full force and effect without being
impaired or invalidated in any way.
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(24) The Company shall provide the Escrow Agent with its Employer
Identification Number as assigned by the Internal Revenue Service. Additionally,
the Company shall complete and return to the Escrow Agent any and all tax forms
or reports required to be maintained or obtained by the Escrow Agent.
(25) The authorized signature of the Escrow Agent hereto is consent
that a signed copy hereof may be filed with the various regulatory authorities
of the State of Florida and with any Federal Government agencies or regulatory
authorities.
In Agreement and acceptance of the Escrow Agreement between Citrus Financial
Services, Inc. (Company), the parent company of Citrus Bank, National
Association, and the Independent Bankers' Bank of Florida (Escrow Agent).
CITRUS FINANCIAL SERVICES, INC.
Address: 0000 Xxxxxx Xxxxx Xxxx., Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000-0000
Fax: (000) 000-0000
Phone: (000) 000-0000
By: ___________________________________
Authorized Signature
Title: Xxxx X. Xxx, President and CEO
(Type Name and Title)
Attest:_____________________
Date ADDITIONAL AUTHORIZED SIGNER
By: Xxxxx X. Xxxxxxx Name:___________________________________
Additional Authorized Signature
Title: Senior Vice-Preisent Title: Xxxxx X. Xxxxx, Senior Vice President
(Type Name and Title)
(SEAL)
INDEPENDENT BANKERS' BANK OF FLORIDA
Address: 000 X. Xxxxxx Xxxxxx, Xxxxx XX,
xx
X.X. Xxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
Attest_________________________
Date Fax: (000) 000-0000
By: ______________________ By: _______________________________________
Authorized Signature
Title: ______________________ Title: Xxxxx X. XxXxxxxx, III, Executive Vice President
-------------------------------------------------
(Type Name and Title)
(CORPORATE SEAL)
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