EXHIBIT 10.4
ESCROW AGREEMENT WITH THE INDEPENDENT
BANKERS' BANK OF FLORIDA
7
March ___, 1998
Page 1
March ___, 1998
Independent Bankers' Bank of Florida
X.X. Xxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxx Xxxxxxx, President
Gentlemen:
(1) Citizens Community Bancorp, Inc., a Florida corporation (the
"Company"), proposes to offer for sale up to 1,000,0000 shares of its common
stock, $0.01 par value, (the "Common Stock") in an Initial Offering (to existing
shareholders and depositors) and then to the general public in a Community
Offering. The Initial Offering and Community Offering are collectively referred
to as the "Offering". The Common Stock being issued shall be registered under
the Securities Act of 1933, as amended. The Common Stock will be offered at a
price of $7.50 per share with a minimum subscription per subscriber of 100
shares. A minimum of 300,000 shares ($2,250,000) of Common Stock must be sold by
5:00, p.m., Local Time, on _________, 1998 (120 days after the date of the
Prospectus) or the Offering will be terminated and of the funds held in the
Escrow Account (together with interest) will be refunded to the subscribers.
(2) The Company hereby appoints and designates you as Escrow Agent for
the purposes set forth herein. By your signature hereto, you acknowledge and
accept said appointment and designation. The Company understands that you, by
accepting said appointment and designation, in no way endorse the merits of the
Offering described herein. The Company agrees to notify any person acting on its
behalf that your position as Escrow Agent does not constitute such an
endorsement, and to prohibit said persons from the use of your name as an
endorsee of such Offering. The Company further agrees to allow you to review any
sales literature in which your name appears and which is used in connection with
such Offering.
(3) The Common Stock shall deliver all payments received for purchase
of the Common Stock (the "Subscription Funds") to you in the form in which they
are received along with copies of Order Forms and written acceptances of the
Company for Units for which the Subscription Funds represent payment, within six
(6) business days after their receipt. 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 you completed copies of the Order
Forms for each subscriber, along with such subscriber's name, address, number of
shares subscribed and social security or taxpayer identification number.
(4) Subscription Funds shall be held and disbursed by you in accordance
with the terms of this Agreement.
(5) In the event any Subscription Funds are dishonored for payment for
any reason, you agree to orally notify the Company thereof as soon as
practicable and to confirm same in writing and to return such dishonored
Subscription Funds to the Company in the form in which they were delivered to
you.
March ___, 1998
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(6) Should the Company elect to accept a subscription for less than the
number of shares of Common Stock shown in the purchaser's Order Form, by
indicating such lesser number of shares of Common Stock on the written
acceptance of the Company transmitted to you, you shall deposit such payments 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 Order Form that amount of his Subscription Funds in excess of the amount
which constitutes full payment of the number of subscribed shares of Common
Stock 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
you as requested.
(7) Definitions as used herein:
(a)"Total Receipts" shall mean the sum of all Subscription
Funds delivered to you pursuant to Paragraph (3) hereof, less (i) all
Subscription Funds returned pursuant to Paragraphs (5) and (6) 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., Local Time, on
_________ ___, 1998 (120 days following the Effective Date of registration of
the Offering with the Securities and Exchange Commission) for the Minimum
Offering and ____________, 1999 for the Community Offering, unless previously
terminated by the Company. If the Minimum Offering is sold and closed, any
profit or earnings received on the Subscription Funds held in the Escrow Account
will be retained by the Company. After the Minimum Offering has closed, the
Company will continue to offer shares in the Community Offering. Subscription
Funds received in the Community Offering will be disbursed at the instructions
of the Company. It is anticipated that there will be one closing per month. The
Company will notify you of the date of Effective Date of registration 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 in writing
to you by the Company.
(8) If, on or before the Expiration Date, of the Minimum Offering (i)
the Total Receipts held by you equal or exceed $2,250,000; and (ii) the Company
has certified to you in writing that the Company has not cancelled the Offering,
then you shall:
(A) No later than 10:00 A.M., Local Time, one day
prior to Closing Date (as that term is defined
herein,) deliver to the Company all Order Forms
provided to you; and
(B) On the Closing Date, no later than 10:00 o'clock
A.M., Local Time, upon receipt of 24-hour written
instructions from the Company, remit all amounts
representing Subscription Funds, plus any profits or
earnings, held by you pursuant hereto to the Company
in accordance with such instructions.
(9) If (i) the Escrow Release Conditions are not met by the Expiration
Date or the Offering is canceled by the Company at any time prior to the
Expiration Date, then upon written instructions from the Company you shall
promptly remit to each subscriber at the address set forth in his Order Form 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
March ___, 1998
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individual subscription in accordance with the formula contained in the
Prospectus - TERMS OF THE OFFERING. Under no circumstances will earnings accrue
to any subscription canceled for any reason other than those provided for in
this paragraph.
(10) Pending disposition of the Subscription Funds under this
Agreement, you shall invest such funds upon oral instructions, followed in
writing, given to you by Xxxxxxx Xxxxx, Xx., Chairman and President or Xxxxxxx
X. XxXxxxxxxx, Vice President of the Company, in Federal Funds, in short-term
direct obligations of the United States government (either directly or under
repurchase agreement), in FDIC insured money market deposit accounts (not to
exceed $100,000), and/or in short-term FDIC insured certificates of deposit (not
to exceed $100,000), but in any case with maturities of 90 or less. If no such
instructions are received by you, you will nevertheless invest the Subscription
funds in any or all of the foregoing accounts or instruments as you may
determine in your sole discretion.
(11) Your obligations as Escrow Agent hereunder shall terminate upon
your transferring all funds you hold hereunder pursuant to the terms of
Paragraphs (8) or (9) herein, as applicable.
(12) You shall be protected in acting upon any written notice, request,
waiver, consent, certificate, receipt, authorization, or other paper or document
which you believe to be genuine and what it purports to be.
(13) You shall not be liable for anything which you may do or refrain
from doing in connection with this Escrow Agreement, except your own gross
negligence or willful misconduct.
(14) You may confer with legal counsel in the event of any dispute or
questions as to the construction of any of the provisions hereof, or your duties
hereunder, and you shall incur no liability and you 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.
(15) 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, you 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 by you under this Agreement, and in so doing
you 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 of competent jurisdiction assuming and having
jurisdiction of the Subscription funds involved herein or affected hereby; or
(b) all differences shall have been adjusted by agreement and you shall have
been notified in writing of such agreement signed by the parties hereto. In the
event of such disagreement, you may, but need not, enter into the registry or
custody of any court of competent jurisdiction in Orange County, Florida, money
or property in your hands under the terms of this Agreement, together with such
legal proceedings as you deem appropriate and thereupon to be discharged from
all further duties under this Agreement. The filing of any such legal proceeding
shall not deprive you of your compensation earned prior to such filing. You
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 you in any cost,
expense, loss or liability unless indemnification shall be furnished.
(16) You may resign for any reason, upon thirty (30) days written
notice to the Company. Upon the expiration of such thirty (30) days notice
period, you may deliver all Subscription Funds and Order Forms in your
possession under this Escrow Agreement to any successor Escrow Agent appointed
March ___, 1998
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by the Company, or if no successor Escrow Agent has been appointed, to any court
of competent jurisdiction. Upon either such delivery, you 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 (15) and (17) affecting
reimbursement of expenses, indemnity and fees.
(17) You agree to charge the Company for your services hereunder a fee
of $1,500.00, plus an additional fee of $5.00 for each check issued, $10.00 for
each wire transfer, and $.50 for each photo copy necessitated in the performance
of your duties, with total fees paid not to exceed $3,500.00. All actual
expenses and costs incurred by you in performing your 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.
(18) 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. You shall not
be charged with knowledge of any fact, including but not limited to performance
or non-performance of any condition, unless you have actually received written
notice thereof from the Company or its authorized representative clearly
referring to this Escrow Agreement.
(19) 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 you and the parties hereto.
(20) This Escrow Agreement shall be construed and enforced according to
laws of the State of Florida.
(21) This Escrow Agreement shall terminate and you shall be discharged
of all responsibility hereunder at such time as you shall have completed your
duties hereunder.
(22) This Escrow Agreement may be executed in several counterparts,
which taken together shall constitute a single document.
(23) 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.
(24) 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.
(25) The Company shall provide you with its Employer Identification
Number as assigned by the Internal Revenue Service. Additionally, the Company
shall complete and return to you any and all tax forms or reports required to be
maintained or obtained by you.
(26) Your signature hereto is your consent that a signed copy hereof
may be filed with any Federal Government Agency or regulatory authority, and may
be included as an Exhibit in the Prospectus to be furnished subscribers.
March ___, 1998
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Please indicate your acceptance of this Agreement by executing a copy
of this letter and returning to the undersigned.
Very truly yours,
CITIZENS COMMUNITY BANCORP, INC.
By:____________________________________
Xxxxxxx Xxxxx, Xx.
Chairman
Attest:
By:___________________________________
Xxxxxxx XxXxxxxxxx
Secretary/Treasurer
ACCEPTED AND AGREED:
Attest: INDEPENDENT BANKERS' BANK OF
FLORIDA
By:___________________________________ By:____________________________________
Title:________________________________ Title:_________________________________
(CORPORATE SEAL)
