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EXHIBIT 4.2
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this "Agreement") is entered into and effective
as of the 22nd day of December, 1998, by and between First Capital Bank Holding
Corporation, a Florida corporation (the "Company"), and The Bankers Bank (the
"Escrow Agent").
WITNESSETH:
WHEREAS, the Company proposes to offer and sell (the "Offering") up to
1,000.000 shares of Common Stock, $.01 par value per share (the "Shares"), to
investors at $10.00 per Share pursuant to a registered public offering; and
WHEREAS, the Company desires to establish an escrow for funds forwarded
by subscribers for Shares, and the Escrow Agent is willing to serve as Escrow
Agent upon the terms and conditions herein set forth.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. DEPOSIT WITH ESCROW AGENT.
(a) The Escrow Agent agrees that it will from time to time
accept, in its capacity as escrow agent, subscription funds
for the Shares (the "Escrowed Funds") received by it from
subscribers or from the Company when it has received checks
from subscribers. All checks shall be made payable to the
Escrow Agent. If any check does not clear normal banking
channels in due course, the Escrow Agent will promptly
notify the Company. Any check which does not clear normal
banking channels and is returned by the drawer's bank to
Escrow Agent will be promptly turned over to the Company
along with all other subscription documents relating to such
check. Any check received that is made payable to a party
other than the Escrow Agent shall be returned to the Company
for return to the proper party. The Company in its sole and
absolute discretion may reject any subscription for shares
for any reason and upon such rejection it shall notify and
instruct the Escrow Agent in writing to return the Escrowed
Funds by check made payable to the subscriber. If the
Company rejects or cancels any subscription for any reason
the Company will retain any interest earned on the Escrowed
Funds to help defray organizational costs.
(b) Subscription agreements for the Shares shall be reviewed for
accuracy by the Company and, immediately thereafter, the
Company shall deliver to the Escrow Agent the following
information: (i) the name and address of the subscriber;
(ii) the number of Shares subscribed for by such subscriber;
(iii) the subscription price paid by such subscriber; (iv)
the subscriber's tax identification number certified by such
subscriber; and (v) a copy of the subscription agreement.
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2. INVESTMENT OF ESCROWED FUNDS. Upon collection of each check by the
Escrow Agent, the Escrow Agent shall invest the funds in deposit
accounts or certificates of deposit which are fully insured by the
Federal Deposit Insurance Corporation or another agency of the
United States government, short-term securities issued or fully
guaranteed by the United States government, federal funds, or such
other investments as the Escrow Agent and the Company shall agree.
The Company shall provide the Escrow Agent with instructions from
time to time concerning in which of the specific investment
instruments described above the Escrowed Funds shall be invested,
and the Escrow Agent shall adhere to such instructions. Unless and
until otherwise instructed by the Company, the Escrow Agent shall by
means of a "Sweep" or other automatic investment program invest the
Escrowed Funds in blocks of $10,000 in federal funds. Interest and
other earnings shall start accruing on such funds as soon as such
funds would be deemed to be available for access under applicable
banking laws and pursuant to the Escrow Agent's own banking
policies.
3. DISTRIBUTION OF ESCROWED FUNDS. The Escrow Agent shall distribute
the Escrowed Funds in the amounts, at the times, and upon the
conditions hereinafter set forth in this Agreement.
(a) If at any time on or prior to the expiration date of the
offering as described in the prospectus relating to the
offering, (the "Closing Date"), (i) the Escrow Agent has
certified to the Company in writing that the Escrow Agent has
received at least $6,100,000 in Escrowed Funds, and (ii) the
Escrow Agent has received a certificate from the President or
the Chairman of the Board of the Company that all other
conditions to the release of funds as described in the Company's
Registration Statement filed with the Securities and Exchange
Commission pertaining to the public offering have been met, then
the Escrow Agent shall deliver the Escrowed Funds to the company
to the extent such Escrowed Funds are collected funds. If any
portion of the Escrowed Funds are not collected funds, then the
Escrow Agent shall notify the Company of such facts and shall
distribute such funds to the Company only after such funds
become collected funds. For purposes of this Agreement,
"collected funds" shall mean all funds received by the Escrow
Agent which have cleared normal banking channels.
(b) If the Escrowed Funds do not, on or prior to the Closing Date,
become deliverable to the Company based on failure to meet the
conditions described in Paragraph 3(a), or if the Company
terminates the offering at any time prior to the Closing Date
and delivers written notice to the Escrow Agent of such
termination (the "Termination Notice"), the Escrow Agent shall
return the Escrowed Funds which are collected funds as directed
in writing by the Company to the respective subscribers in
amounts equal to the subscription amount theretofore paid by
each of them. All uncleared checks representing Escrowed Funds
which are not collected funds as of the Initial Closing Date
shall be collected by the Escrow Agent, and together with all
related subscription documents thereof shall be delivered to the
Company by the Escrow Agent, unless the Escrow Agent is
otherwise specifically directed in writing by the Company.
4. DISTRIBUTION OF INTEREST. Any interest earned on the Escrowed Funds
shall be retained by the Company.
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5. FEE OF ESCROW AGENT. The escrow account will accrue a service charge
of $15.00 per month. In addition, a $20.00 per check fee will be
charged if the escrow account has to be refunded due to a failure to
complete the subscription. All of these fees are payable upon the
release of the Escrowed Funds, and the Escrow Agent is hereby
authorized to deduct such fees from the Escrowed Funds prior to any
release thereof pursuant to Section 3 hereof.
6. LIABILITY OF ESCROW AGENT.
(a) In performing any of its duties under the 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 it may incur as a result of the Escrow Agent so
acting, or failing to act; provided, however, the Escrow Agent
shall be liable for damages arising out of its willful default
or misconduct or its gross negligence under this Agreement.
Accordingly, the 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 Company
which is given with respect to any questions relating to the
duties and responsibilities of the Escrow Agent hereunder; or
(ii) any action taken or omitted to be taken in reliance upon
any document, including any written notice or instructions
provided for this Escrow 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 therein, if the Escrow Agent shall in good
faith believe such document to be genuine, to have been signed
or presented by a proper person or persons, and to conform with
the provisions of this Agreement.
(b) The Company agrees to indemnify and hold harmless the Escrow
Agent against any and all losses, claims, damages, liabilities
and expenses, including, without limitation, reasonable costs of
investigation and counsel fees and disbursements which may be
imposed by the Escrow Agent or incurred by it in connection with
its acceptance of this appointment as Escrow Agent hereunder or
the performance of its duties hereunder, including, without
limitation, any litigation arising from this Escrow Agreement or
involving the subject matter thereof, except, that if the Escrow
Agent shall be found guilty of willful misconduct or gross
negligence under this agreement, then, in that event, the Escrow
agent shall bear all such losses, claims, damages and expenses.
(c) If a dispute ensues between any of the parties hereto which, in
the opinion of the Escrow Agent, is sufficient to justify its
doing so, the Escrow Agent shall retain legal counsel of its
choice as it reasonably may deem necessary to advise it
concerning its obligations hereunder and to represent it in any
litigation to which it may be a part by reason of this
Agreement. The Escrow Agent shall be entitled to 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, and to file such legal proceedings as it deems
appropriate, and shall thereupon by discharged from all further
duties under this Agreement. Any such legal action may be
brought in any such court as the Escrow Agent shall determine to
have jurisdiction thereof. In connection with such dispute, the
Company shall indemnify the Escrow Agent against its court costs
and reasonable attorney's fees incurred.
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(d) The Escrow Agent may resign at any time upon giving thirty (30)
days written notice to the Company. If a successor escrow agent
is not appointed by Company within thirty (30) days after notice
of resignation, the Escrow Agent may petition any court of
competent jurisdiction to name a successor escrow agent and the
Escrow Agent herein shall be fully relieved of all liability
under this Agreement to any and all parties upon the transfer of
the Escrowed Funds and all related documentation thereto,
including appropriate information to assist the successor escrow
agent with the reporting of earnings of the Escrowed Funds to
the appropriate state and federal agencies in accordance with
the applicable state and federal income tax laws, to the
successor escrow agent designated by the Company appointed by
the court.
7. APPOINTMENT OF SUCCESSOR. The Company may, upon the delivery of
thirty (30) days written notice appointing a successor escrow agent
to the Escrow Agent, terminate the services of the Escrow Agent
hereunder. In the event of such termination, the Escrow Agent shall
immediately deliver to the successor escrow agent selected by the
Company, all documentation and Escrowed Funds including interest
earnings thereon in its possession, less any fees and expenses due
to the Escrow Agent or required to be paid by the Escrow Agent to a
third party pursuant to this Agreement.
8. NOTICE. All notices, requests, demands and other communications or
deliveries required or permitted to be given hereunder shall be in
writing and shall be deemed to have been duly given three days after
having been deposited for mailing if sent by registered mail, or
certified mail return receipt requested, or delivery by courier, to
the respective addresses set forth below:
IF TO THE SUBSCRIBERS FOR SHARES: To their respective addresses as
specified in their Subscription
Agreements.
THE COMPANY: Xxxxxxx X. Xxxxxxx
P.O. Box 15700
0000-X Xxxxx Xxxxxxxxxx Xx.
Xxxxxxxxxx Xxxxx, XX 00000
WITH A COPY TO: Xxxxxx X. Xxxxxxxx
Xxxxx, Xxxxxxxx & Xxxxxxx, LLP
Suite 3100, Promenade II
0000 Xxxxxxxxx Xxxxxx, XX
Xxxxxxx, XX 00000-0000
THE ESCROW AGENT: The Bankers Bank
0000 Xxxxx Xxxxx Xxxx
000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Attention: Xx. Xxxxxxx X. Xxxxxxx
Senior Vice President
9. REPRESENTATIONS OF THE COMPANY. The Company hereby acknowledges that
the status of the Escrow Agent with respect to the offering of the
Shares is that of agent only for the limited purposes herein set
forth, and hereby agrees it will not represent or imply that the
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Escrow Agent, by serving as the Escrow Agent hereunder or otherwise,
has investigated the desirability or advisability in an investment
in the Shares, or has approved, endorsed or passed upon the merits
of the Shares, nor shall the Company use the name of the Escrow
Agent in any manner whatsoever in connection with the offer or sale
of the Shares, other than by acknowledgment that it has agreed to
serve as Escrow Agent for the limited purposes herein set forth.
10. GENERAL.
(a) This Agreement shall be governed by and construed and enforced
in accordance with the laws of the State of Georgia.
(b) The section headings contained herein are for reference purposes
only and shall not in any way affect the meaning or
interpretation of this Agreement.
(c) This Agreement sets forth the entire agreement and understanding
of the parties with regard to this escrow transaction and
supersedes all prior agreements, arrangements and understandings
relating to the subject matter hereof.
(d) This Agreement may be amended, modified, superseded or canceled,
and any of the terms or conditions hereof may be waived, only by
a written instrument executed by each party hereto or, in the
case of a waiver, by the party waiving compliance. The failure
of any part at any time or times to require performance of any
provision hereof shall in no manner affect the right at a later
time to enforce the same. No waiver in any one or more instances
by any part of any condition, or of the breach of any term
contained in this Agreement, whether by conduct or otherwise,
shall be deemed to be, or construed as, a further or continuing
waiver of any such condition or breach, or a waiver of any other
condition or of the breach of any other terms of this Agreement.
(e) This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
(f) This Agreement shall inure to the benefit of the parties hereto
and their respective administrators, successors and assigns. The
Escrow Agent shall be bound only by the terms of this Escrow
Agreement and shall not be bound by or incur any liability with
respect to any other agreement or understanding between the
parties except as herein expressly provided. The Escrow Agent
shall not have any duties hereunder except those specifically
set forth herein.
(g) No interest in any part to this Agreement shall be assignable in
the absence of a written agreement by and between all the
par-ties to this Agreement, executed with the same formalities
as this original Agreement.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as
the date first written above.
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, 1999
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COMPANY: ESCROW AGENT:
FIRST CAPITAL BANK THE BANKERS BANK
HOLDING CORPORATION
By:/s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx Xxxxxxx X. Xxxxxxx
President Senior Vice President
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