1
EXHIBIT 4.2
First Capital Bank Holding Corporation
0000X Xxxxx 00xx Xxxxxx
Xxxxxxxxxx Xxxxx, Xxxxxxx 00000
________________, 1999
The Bankers Bank
0000 Xxxxxxxxx Xxxxxxx
000 Xxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: [name]
Gentlemen:
First Capital Bank Holding Corporation, a Florida corporation (the
"Company"), proposes to offer for sale up to 1,000,000 shares of its $.01 par
value common stock (the "Common Stock"), which shares shall be registered under
the Securities Act of 1933, as amended, by the filing of a Registration
Statement on Form SB-2 with the Securities and Exchange Commission. Shares will
be offered at a price of $10.00 each. The minimum subscription per subscriber
is 100 shares.
1. 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 of the shares 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 endorser 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.
2. The Company shall deliver all payments received in purchase of the
shares (the "Subscription Funds") to you in the form in which they are
received by noon of the next business day after their receipt by the
Company, and the Company shall deliver to you within five (5) 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 you copies of completed Subscription Agreements for
each 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 you in accordance
with the terms of this Agreement.
2
4. In the event any Subscription Funds are dishonored for payment for any
reason, you agree to orally notify the Company immediately thereof and
to confirm same in writing and to return the dishonored Subscription
Funds to the Company in the form in which they were delivered to you.
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 you, you shall deposit such payment in the
escrow account and then remit within ten (10) calendar 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 you as requested.
6. As used herein, the term "Total Receipts" shall mean the sum of all
Subscription Funds delivered to you pursuant to Paragraph (2) hereof,
less all Subscription Funds returned pursuant to Paragraphs (4) and
(5) hereof.
a. As used herein, the term "Expiration Date" shall mean the date
which marks the 90th day after the date of the Prospectus;
provided, however, in the event that you are given oral
notification, followed in writing, by the Company that it has
elected to extend the offering for an additional period of 90
days after the initial period, then the Expiration Date shall
mean the date which marks the 180th day after the date of the
Prospectus; provided further, in the event that you are given
oral notification, followed in writing, by the Company that
it has elected to extend the offering for an additional
period of 90 days after the first extension, then the
Expiration Date shall mean the date which marks the 270th day
after the date of the Prospectus.
b. If Total Receipts equal $6,100,000 on or before the
Expiration Date, you shall, on the Closing Date, no later
than 10:00 A.M., Eastern Daylight Time, upon receipt of
24-hour written instructions from the Company, remit all
amounts representing Subscription Funds, plus any profits or
earnings thereon after deducting your fees, if any, held by
you pursuant hereto in accordance with such instructions.
7. If (i) Total Receipts are less than $6,100,000 as of 5:00 o'clock
P.M., Eastern Daylight Time on the Expiration Date, or (ii) the
offering is canceled by the Company at any time prior to the
Expiration Date, then you 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, adjusted for his
allocated share of any net profits earned on the investment of the
Subscription Funds as set forth in Paragraph 8, below. The Company
hereby agrees to provide to you in writing the specific allocations of
net profits attributable to each subscriber hereunder.
8. Pending disposition of the Subscription Funds under this Agreement,
you are authorized, upon oral instructions, followed in writing, given
by Xxxxxxx X. Xxxxxxx, to invest Subscription Funds in Federal Funds,
in short-term direct obligations of the United States government, in
short-term FDIC or FSLIC insured certificates of deposit, and/or in
Fidelity Institutional U.S. Treasury Cash Portfolio, for short-term
obligations of the United States government, but in any case with
maturities of 90 days or less. For purposes of Paragraph 7 above, the
specific allocations of net profits attributable to each subscriber
shall be determined by the Company as follows: each subscriber's
allocated share of earnings on the Subscription Funds, after deducting
your fees, if any, shall be that fraction (i) the numerator of which
is the dollar amount of such subscriber's accepted subscription
multiplied by the number of days between
3
the date of acceptance of the purchaser's subscription and the date of
the offering's termination, inclusive (the subscriber's "Time
Subscription Factor"), and (ii) the denominator of which is the
aggregate Time Subscription Factors of all purchasers depositing
Subscription Funds in the escrow account.
9. Your obligations as Escrow Agent hereunder shall terminate upon your
transferring all funds you hold hereunder pursuant to the terms of
Paragraphs (4) through (7) herein, as applicable.
10. As used herein, "Closing Date" shall mean the third business day
following the date of receipt by you of Total Receipts aggregating
$6,100,000 and executed Subscription Agreements and copies of written
acceptances of the Company in connection therewith.
11. 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.
12. 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.
13. You may confer with legal counsel in the event of any dispute or
question 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 are payable from the Subscription Funds unless 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, 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 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 thereto. In the event of such
disagreement, you may, but need not, tender into the registry or
custody of any court of competent jurisdiction all 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 Escrow 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.
15. You may resign for any reason, upon thirty (30) days written notice to
the Company. Upon the expiration of such thirty (30) day notice
period, you may deliver all Subscription Funds and copies of
Subscription Agreements in your possession under this Escrow Agreement
to any successor Xxxxxx Agent appointed by the Company, or if no
successor Xxxxxx 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 13 and
14 affecting reimbursement of expenses, indemnity and fees. You shall
have the right to deduct from the Subscription Funds transferred to
any successor Escrow Agent any outstanding and unpaid expenses or
fees.
4
16. You agree to charge your customary and normal fee for your services
hereunder. A copy of the current schedule is attached hereto. The fee
schedule may be modified from time to time. The acceptance fee and
expenses shall be paid in advance or at closing 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. 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.
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 you and the parties hereto. Notwithstanding
the foregoing, the Company may not assign its rights hereunder without
your prior written consent.
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 you shall be discharged of
all responsibility hereunder at such time as you shall have completed
your 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. Further, this Escrow Agreement may only be amended by a
written amendment signed by the parties hereto.
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.
24. 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. In the event that
Subscription Funds are returned to subscribers pursuant to paragraph 7
hereof, you shall, based upon the information available to you, file
with the Internal Revenue Service and send to each subscriber a Form
1099-INT with respect to contributions of interest to subscribers. All
interest or other income earned under this Escrow Agreement which is
payable to the Company pursuant to paragraph 6 hereof shall be
allocated and paid as directed by the Company and reported to the
Internal Revenue Service as having been so allocated and paid.
25. Your signature hereto is your 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.
5
Please indicate your acceptance of this Agreement by executing a copy
of this letter and returning it to the undersigned.
Very truly yours,
FIRST CAPITAL BANK HOLDING CORPORATION
By:
-------------------------------------
Xxxxxxx X. Xxxxxxx
President and Chief Executive Officer
Attest:
-------------------------------
Secretary
(CORPORATE SEAL)
ACCEPTED AND AGREED:
THE BANKERS BANK
By:
----------------------------------
Vice President
