EXHIBIT 10.9
FORM OF ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this "Agreement") is made and entered into as of
May , 2003, by and among NCRIC Group, Inc., a Delaware corporation ("NCRIC"),
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Wilmington Trust Company ("Wilmington Trust" or the "Escrow Agent") and Sandler
X'Xxxxx & Partners L.P. ("Sandler").
RECITALS
A. WHEREAS, NCRIC proposes to offer for sale in an initial public offering
up to 4,364,250 shares of its common stock (the "Shares") at a price of $10.00
per Share.
B. WHEREAS, NCRIC, with the assistance of Sandler, intends to offer the
Shares in a subscription offering and, if all Shares are not subscribed for in a
community offering and possibly a syndicated community offering (collectively,
the "Offerings") pursuant to a Registration Statement on Form S-1 filed with the
Securities and Exchange Commission on March 25, 2003 (the "Registration
Statement").
C. WHEREAS, NCRIC desires to establish an escrow account in which funds
received from persons subscribing for or purchasing Shares in the Offerings
including, without limitation, members of NCRIC, A Mutual Holding Company,
NCRIC's Employee Stock Ownership Plan and Stock Award Plan will be deposited
pending completion of the Offerings. Wilmington Trust agrees to serve as the
Escrow Agent to hold funds from, or on behalf of, subscribers or purchasers in
accordance with the terms and conditions of this Agreement. NCRIC and the
Transfer Agent agree to assist the Escrow Agent in administering the Escrow
Account (defined below) and distributing funds held in the Escrow Account.
D. WHEREAS, The Offerings will be completed if, among other things, during
the escrow period (i) NCRIC receives subscriptions or purchase orders for at
least 2,805,000 Shares and (ii) funds deposited by subscribers or purchasers in
the Escrow Account equal at least $28,050,000.
E. WHEREAS, All monies held in the Escrow Account are referred to as the
"Escrow Amount."
NOW, THEREFORE, in consideration of the foregoing, and for other good and
valuable, consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending legally to be bound, agree as
follows:
I. Designation as Escrow Agent.
Subject to the terms and conditions hereof, NCRIC and Sandler hereby
appoint Wilmington Trust Company as Escrow Agent and Wilmington Trust Company
hereby accepts such appointment.
II. Establishment of Escrow Account.
On or prior to the date of the commencement of the Offerings, the parties
shall establish an interest-bearing escrow account with the Escrow Agent, which
escrow account shall be entitled "NCRIC Group, Inc. Stock Purchase Account" (the
"Escrow Account"). NCRIC will instruct subscribers or purchasers to make checks
or money orders for subscriptions or purchases payable to "Wilmington Trust
Company, escrow agent for NCRIC Group, Inc." Escrow Agent agrees to hold all
funds received by it in escrow for the subscriber or purchaser desiring to
purchase Shares in the Offerings. It is understood that all checks or money
orders received by the Escrow Agent are subject to clearance time, and the funds
represented thereby cannot be drawn upon or invested until such time as the same
constitute good and collected funds. It is also understood that should any
checks be returned to the Escrow Agent as uncollectible, the Escrow Agent is
authorized and instructed to charge expenses incurred by the Escrow Agent on
such uncollected checks to NCRIC. The Escrow Agent shall redeposit such
checks(s) for collection only upon the verbal instruction of NCRIC; however, in
no instance shall the checks(s) be presented for collection more than two (2)
times. Should the check(s) be uncollectible after the second presentation, the
Escrow Agent shall promptly notify NCRIC and hold said check(s) until the
subscriber or purchaser has replaced the same with a cashier's check or money
order or such other form of draft that NCRIC and the Escrow Agent approve, at
which time the Escrow Agent shall as soon as practicable return said
uncollectible check(s) to the subscriber or purchaser. In the event the
subscriber or purchaser does not promptly replace said check(s) with a cashier's
check or money order or such other form of draft acceptable to the Escrow Agent
and NCRIC, the Escrow Agent shall return the check(s) to such subscriber or
purchaser. Except pursuant to NCRIC's instructions, any checks or money orders
received that are made payable to a party other than "Wilmington Trust Company,
escrow agent for NCRIC Group, Inc." shall be returned by the Escrow Agent to the
subscriber or purchaser submitting such checks or money orders. In such cases,
the Escrow Agent shall promptly notify NCRIC of such return.
III. Administration of Funds Held in Escrow.
Sandler shall receive all stock order forms and checks or money orders from
subscribers or purchasers and shall keep such appropriate books and records as
are required to perform its functions described herein. Sandler will deliver
promptly checks or money orders to the Escrow Agent via Federal Express each
business day during the Offerings for deposit into the Escrow Account together
with a copy of the subscriber's or purchaser's stock order form which sets
forth, among other things, the subscriber's or purchaser's name, address, social
security number, telephone number, number of Shares purchased and the, amount
paid therefor. The Escrow Agent is hereby authorized to forward each check or
money order for collection, deposit the check or money order in the Escrow
Account and after allowing for collection of the proceeds of each check or money
order in accordance with Federal Reserve Board regulations, invest the Escrow
Amount. Sandler will maintain all subscriber records until the completion or
termination of the Offerings.
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IV. Rejection of Purchase Orders.
The Registration Statement provides that the purchase of Shares in the
community and any syndicated community offering is subject to Sandler's and
NCRIC's approval. Sandler agrees to notify the Escrow Agent of which purchase
orders are being rejected by delivering to the Escrow Agent written instructions
pertaining thereto. If a purchase order is rejected, any funds held in the
Escrow Account in connection with such purchase order shall be promptly returned
to the purchaser, with interest earned thereon, without deduction, penalties or
expense to the purchaser. Unless a certificate rejecting a purchase order is
delivered to the Escrow Agent pursuant to this Section IV, all purchase orders
received in the community or syndicated community offerings shall be deemed to
have been accepted by Sandler.
V. Release of Escrow Amount.
If on the date of closing of the Offerings (as more fully described in the
Registration Statement) the Escrow Agent:
(i) holds funds representing subscriptions in the subscription offering
and, if necessary, funds representing purchase orders in the community and/or
syndicated community offerings (which have not been rejected pursuant to Section
3), equal to at least $28,050,000; and
(ii) has received from Sandler a certificate stating that NCRIC has
received subscriptions or purchase orders for at least 2,805,000 Shares and that
the Offerings have closed, then the Escrow Agent is authorized and instructed to
pay to NCRIC all principal amounts and interest owed thereon held by the Escrow
Agent in connection with the Offerings in the Escrow Account representing
subscriptions in the subscription offering or purchase orders in the community
or syndicated community offerings except that the Escrow Agent shall: (i)
distribute to purchasers in the community and syndicated community offerings
principal and interest with respect to purchase orders which Sandler has
rejected in accordance with Section IV, (ii) be entitled to retain amounts owing
to it pursuant to Section XI, and (iii) pay to Sandler or any selected dealer
out of the Escrow Amount an amount equal to Sandler's or such selected dealer's
fees described in the Registration Statement.
VI. Cancellation of Offerings.
If NCRIC and Sandler give the Escrow Agent written notice that the
Offerings have been canceled, the Escrow Agent shall promptly refund to each
subscriber or purchaser the amount received from the subscriber or purchaser
plus any interest that may have been earned thereon, without deduction, penalty
or expense to the subscriber or purchaser, and Escrow Agent shall notify NCRIC
and Sandler, in writing, of its distribution of such funds. The purchase money
returned to each subscriber or purchaser shall be free and clear of any and all
claims of NCRIC or any of its creditors. In such event, NCRIC shall pay any
amounts owing to the Escrow Agent or the Transfer Agent pursuant to Section XI.
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VII. Delivery of Payments or Refunds.
Upon receiving written confirmation from Sandler of the amount of principal
or interest due to any subscriber or purchaser, the Escrow Agent shall prepare
the necessary checks or money orders. All payments or refunds to be made by the
Escrow Agent to a subscriber or purchaser pursuant to Sections V or VI shall be
forwarded, by first-class mail, to the last known address of the subscriber or
purchaser, as communicated in writing to the Escrow Agent by Sandler, or the
subscriber or purchaser. All payments to be made by the Escrow Agent to NCRIC
pursuant to Section V shall be forwarded to NCRIC at 0000 00xx Xxxxxx, X.X.,
Xxxxxxxxxx, X.X. 00000, Attention: R. Xxx Xxxx, Xx., or issued to such account
as NCRIC shall direct, in writing.
VIII. NCRIC Not Entitled to Escrow Amount in Escrow Until Released.
Until a portion of the Escrow Amount is distributed to it pursuant to
Section V, NCRIC acknowledges that (i) it is not entitled to any portion of the
Escrow Amount and (ii) no amounts deposited in the Escrow Account shall become
the property of NCRIC or be subject to the liabilities of NCRIC.
IX. Interest.
The interest rate payable on funds returned to a purchaser or subscriber or
paid to NCRIC shall be the Escrow Agent's "dollar day average" interest rate in
effect during the period that such funds were part of the Escrow Amount.
Interest accrued on the Escrow Amount, but not yet credited to the Escrow
Account at the date of disbursement of such funds, shall he paid out to NCRIC or
the appropriate subscriber or purchaser, as the case may be, in the amounts
calculated promptly after such interest is credited to the Escrow Account.
X. Escrow Amount May Not Secure Loan.
Until released in accordance herewith, the Escrow Amount shall at no time
be used directly or indirectly as security for a loan or any other obligation of
NCRIC and shall be subject to no right, charge, security interest, lien, setoff
or claim of any kind in favor of the Escrow Agent or any person claiming
through, the Escrow Agent.
XI. Authority of Escrow Agent and Limitation of Liability.
(a) In acting hereunder, Escrow Agent shall have only such duties as are
specified herein and no implied duties shall be read into this Agreement, and
Escrow Agent shall not be liable for any act done, or omitted to be done, by it
in the absence of its gross negligence or willful misconduct.
(b) Escrow Agent may act in reliance upon any writing or instrument or
signature which it, in good faith, believes to be genuine, and may assume the
validity and accuracy of any statement or assertion contained in such a writing
or instrument and may assume that any person
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purporting to give any writing, notice, advice or instruction in connection with
the provisions hereof has been duly authorized so to do.
(c) Escrow Agent shall be entitled to consult with legal counsel in the
event that a question or dispute arises with regard to the construction of any
of the provisions hereof, and shall incur no liability and shall be fully
protected in acting in accordance with the advice or opinion of such counsel.
(d) Escrow Agent shall not be required to use its own funds in the
performance of any of its obligations or duties or the exercise of any of its
rights or powers, and shall not be required to take any action which, in Escrow
Agent's sole and absolute judgment, could involve it in expense or liability
unless furnished with security and indemnity which it deems, in its sole and
absolute discretion, to be satisfactory.
(e) Both NCRIC and Sandler agree to pay to Escrow Agent compensation for
its services hereunder to be determined from time to time by the application of
the current rates than charged by Escrow Agent for accounts of similar size and
character, with a minimum rate of $ per annum and a maximum of
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$ per annum. In the event Escrow Agent renders any extraordinary
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services in connection with the Escrow Account, Escrow Agent shall be entitled
to additional compensation therefore provided both NCRIC and Sandler have
requested the services and Escrow Agent has informed both NCRIC and Sandler, in
writing, of the additional charge. Escrow Agent shall have a first lien against
the Escrow Account to secure the obligations of NCRIC and Sandler hereunder. The
terms of this paragraph shall survive termination of this Agreement.
(f) NCRIC and Sandler hereby agree, jointly and severally, to indemnify
Escrow Agent and hold it harmless from any and against all liabilities, losses,
actions, suits or proceedings at law or in equity, and any other expenses, fees
or charges of any character or nature, including, without limitation, attorney's
fees and expenses, which Escrow Agent may incur or with which it may be
threatened by reason of its acting as Escrow Agent under this Agreement or
arising out of the existence of the Escrow Account, except to the extent the
same shall be caused by Escrow Agent's gross negligence or willful misconduct.
Escrow Agent shall have a first lien against the Escrow Account to secure the
obligations of the parties hereunder. The terms of this paragraph shall survive
termination of this Agreement.
(g) In the event Escrow Agent receives conflicting instructions hereunder,
Escrow Agent shall be fully protected in refraining from acting until such
conflict is resolved to the satisfaction of Escrow Agent.
(h) Escrow Agent may resign as Escrow Agent, and, upon its resignation,
shall thereupon be discharged from any and all further duties and obligations
under this Agreement by giving notice in writing of such resignation to NCRIC
and Sandler, which notice shall specify a date upon which such resignation shall
take effect. Upon the resignation of Escrow Agent, NCRIC and Sandler shall,
within sixty (60) business days after receiving the foregoing notice from Escrow
Agent, designate a substitute escrow agent (the "Substitute Escrow Agent"),
which Substitute Escrow Agent shall, upon its designation and notice of such
designation to Escrow
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Agent, succeed to all of the rights, duties and obligations of Escrow Agent
hereunder. In the event NCRIC and Sandler shall not have delivered to Escrow
Agent a written designation of Substitute Escrow Agent within the aforementioned
sixty (60) day period, together with the consent to such designation by the
Substitute Escrow Agent, the Escrow Agent may apply to a court of competent
jurisdiction to appoint a Substitute Escrow Agent, and the costs of obtaining
such appointment shall be reimbursable from NCRIC and Sandler and from the
Escrow Funds.
XII. Notices.
Except as otherwise provided herein, any notice, instruction or instrument
to be delivered hereunder shall be in writing and shall be effective upon
receipt at the addresses set forth on the signature page hereof or at such other
address specified in writing by the addressee, or if to the Escrow Agent, upon
receipt via facsimile or telecopier transmission, at the number set forth on the
signature page hereof, or at such other number specified by Escrow Agent.
XIII. Amendment.
This Escrow Agreement may not be amended, modified, supplemented or
otherwise altered except by an instrument in writing signed by the parties
hereto.
XIV. Termination.
This Agreement will terminate upon the disbursement of all funds in the
Escrow Account, as provided above, by the Escrow Agent.
XV. Governing Law.
This is a Delaware contract and shall be governed by Delaware law in all
respects.
XVI. Counterparts.
This Agreement may be executed in any number of counterparts, each of which
when so executed shall be deemed to be an original, and such counterparts
together shall constitute and be one and the same instrument.
[This space is intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have caused their names to be hereto
subscribed by their respective Presidents or Vice Presidents as of the day and
year first above written.
NCRIC GROUP,INC. WILMINGTON TRUST COMPANY, as
Escrow Agent
By: By:
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Title: Title:
Address: Address:
0000 00xx Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Fax No.: (000) 000-0000 Fax No.: (302) 651-
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Tel. No.: (000) 000-0000 Tel. No.: (302) 651-
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Attention: Attention:
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SANDLER X'XXXXX & PARTNERS, L.P.
By:
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Title:
Address:
000 Xxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
Fax No.: (000) 000-0000
Tel. No.: (000) 000-0000
Attention:
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