Exhibit 99.2
ESCROW AGREEMENT
ESCROW AGREEMENT made this 19th day of April, 2000 by and between Belmont
Bancorp. ("Belmont"), an Ohio Corporation, and Firstar Bank, N.A., a national
banking association ("Bank").
WHEREAS, Belmont has offered to sell up to 5,000,000 newly issued shares
("Shares") of its common stock, at an offering price of $2.00 per share, which
Shares are registered under a Form S-2 Registration Statement (Registration No.
333-91035) filed under the Securities Act of 1933, as amended, in an offering
(the "Offering") which commenced on or about February 7, 2000; and
WHEREAS, the parties entered into an Escrow Agreement dated as of February
7, 2000 (the "Original Agreement") under which the Bank served as escrow agent
for the Offering through the date of its conclusion on April 14, 2000; and
WHEREAS, Belmont now desires to re-open the ancillary portion of the
Offering (as described in Belmont's Prospectus) on terms which will permit
subscriptions to be accepted and offering proceeds released on a weekly basis,
from and after the date Belmont's Post-Effective Amendment No. 1 on Form S-2 is
declared effective by the SEC until May 26, 2000, subject to extension for up to
90 additional days; and
WHEREAS, the Prospectus provides that Belmont will deposit all subscription
funds received in a non-interest bearing escrow account with Bank, as escrow
agent; Belmont may elect to accept or reject any or all of the subscriptions in
the Offering; and
WHEREAS, the parties wish to provide for the terms of a deposit account to
be established by Belmont with Bank for the deposit of subscriptions and the
terms of withdrawal thereof.
NOW, THEREFORE, in consideration of the mutual promises herein made and for
other good and valuable consideration, the parties hereto hereby agree as
follows:
FIRST: Belmont shall deliver a certificate signed by it to Bank setting
forth the effective date of the re-opening of the Offering, immediately after
such effective date.
SECOND: All funds received from subscribers for the Shares will be
delivered by Belmont to Bank at 000 Xxxxxx Xxxxxx, XX XX-XX-00XX, Xxxxxxxxxx,
Xxxx 00000, Attention: Xxxxx Xxxxxx, for deposit into a special non-interest
bearing account (the "Account"), together with the name, address, social
security number of each such subscriber, and the name(s) in which the Shares are
to be registered. Belmont agrees that where Shares are to be paid for by check,
Belmont will deposit such check into the Account within one business day
following receipt by Belmont of a subscription.
THIRD: Bank will hold all funds received by it pursuant to the terms of
this Agreement in the Account. Funds may be withdrawn from the Account and
disbursed only as follows:
A. Not more often than weekly, Belmont shall deliver to the Bank a
certificate (the "Closing Certificate") stating which of the subscriptions in
the Offering have been accepted or rejected.
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B. The Bank shall deliver to Belmont, without interest, all funds received
by it for subscriptions in the Offering (not previously released to Belmont or
returned to subscribers) which Belmont shall have certified as being accepted
and shall return to subscribers, without interest, all funds received by it for
subscriptions which Belmont shall have certified as not being accepted.
C. Bank shall copy and forward all Subscription Agreements to Belmont
daily.
FOURTH: No interest shall accrue on any collected funds held in the
Account.
FIFTH:
A. Bank is acting solely as depository of the funds and not as a trustee or
fiduciary under this Agreement. Bank is not a party to, nor has it reviewed or
approved any agreement other than this Agreement, nor any other matters of
background related to this Agreement.
B. Bank shall not be liable for any damages, or have any obligations other
than the duties prescribed herein in carrying out or executing the purposes and
intent of this Agreement; provided, however, that nothing herein contained shall
relieve Bank from liability arising out of its own willful misconduct or gross
negligence. Bank's duties and obligations under this Agreement shall be entirely
administrative and not discretionary.
C. Bank shall not be liable to any party hereto or to any third party as a
result of any action or omission taken or made by Bank, except for liability
arising out of Bank's own willful misconduct or gross negligence. Belmont will,
at its expense, indemnify Bank, hold Bank harmless, and reimburse Bank, and its
officers, directors, employees and representatives from, against and for, any
and all liabilities, costs, fees and expenses (including reasonable attorney's
fees) Bank or any of them may suffer or incur by reason the execution and
performance of this Agreement by Bank, including any litigation relating to this
Agreement instituted by or against Bank, to which it is a party or in which Bank
or any of its officers, directors, employees or representatives are required to
appear as a witness. If any legal questions arise concerning Bank's duties and
obligations hereunder, Bank may consult its counsel at Belmont's expense and
rely without liability upon written opinions given to it by such counsel.
D. Bank shall be protected in acting upon any written notice, request,
waiver, consent, authorization, or other paper or document which Bank, in good
faith, believes to be genuine and what it purports to be.
E. Bank shall not be bound in any way by any contract or agreement between
the other parties hereto, whether or not it has knowledge of any such contract
or agreement or of its terms or conditions.
F. This Agreement shall be terminated upon withdrawal and disbursement of
all of funds held in the Account, except that Articles FIFTH and SEVENTH shall
survive termination of this Agreement.
G. Notwithstanding anything to the contrary contained in this Agreement, it
is agreed that Bank shall in no case or event be liable for the failure of any
of the conditions of this Agreement or damage caused by the exercise of its
discretion in any particular manner, or for any reason, except gross negligence
or willful misconduct with reference to the Account, and Bank shall not be
liable or responsible for its failure to ascertain the terms or conditions, or
to comply with any of the provisions, of any agreement, contract or other
document delivered to it or referred to herein, nor shall Bank be liable or
responsible for forgeries or false personation.
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H. If any controversy arises between the parties hereto or with any third
person with respect to the subject matter of this Agreement, its terms or
conditions, Bank shall not be required to determine the same or take any action
in the premises, but Bank may await the settlement of any such controversy by
final appropriate legal proceedings or otherwise as Bank may require, or Bank
may institute legal proceedings to determine any controversy, and in any such
event Bank shall not be liable for interest or damages.
I. It is agreed that Bank's duties are only such as are herein specifically
provided, being purely ministerial in nature, and that Bank shall incur no
liability whatsoever except for its willful misconduct or gross negligence.
J. Bank may, but shall not be required to, institute legal proceedings of
any kind. Bank shall have no responsibility for the genuineness or validity of
any document or other item deposited with it, and Bank shall be fully protected
in acting in accordance with any written instructions given to it hereunder and
believed by it to have been signed or given by the proper parties.
K. Bank undertakes to perform such duties and only such duties as are
specifically set forth in this Agreement, and no implied covenants or
obligations shall be read into this Agreement against Bank.
L. No provision of this Agreement shall require Bank to expend or risk its
own funds or otherwise incur any financial liability in the performance of any
of its duties hereunder, or in the exercise of any of its rights or powers, if
there shall be reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it.
M. Bank may consult with counsel and the written advice of such counsel or
any opinion of counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon.
N. Bank shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture or other
paper or document, but Bank in its discretion may make such further inquiry or
investigation into such facts or matters as it may see fit.
O. The recitals contained herein shall be taken as the statements of
Belmont, and Bank assumes no responsibility for their correctness. Bank makes no
representations as to the validity or sufficiency of this Agreement. Bank shall
not be accountable for the use or application by Belmont of the proceeds of the
Offering.
SIXTH: Notwithstanding anything to the contrary contained in this
Agreement, Bank (a) may resign from its duties under this Agreement by giving 30
days' prior written notice of such resignation to the other parties hereto and
(b) may be discharged from its duties under this Agreement upon the receipt from
each of the other parties hereto of 30 days' prior written notice of such
discharge. Upon the resignation or discharge of Bank, Belmont shall retain a
substitute financial institution to perform the functions theretofore performed
by Bank under this Escrow Agreement.
SEVENTH: A. Belmont agrees to pay to Bank reasonable expenses, including
counsel fees, incurred in acting hereunder.
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B. It is understood that fees (if any) and usual charges agreed upon for
Bank's services hereunder shall be considered compensation for its ordinary
services as contemplated by this Agreement and in the event the conditions of
this Agreement are not promptly fulfilled or that Bank renders any service
hereunder not provided for in this Agreement, or that there is any modification
hereof, or that any controversy arises hereunder or that Bank institutes, is
made a party to, or intervenes in, any litigation pertaining to this Agreement
or the subject matter thereof, Bank and its legal counsel shall be reasonably
compensated for such extraordinary services and reimbursed for all costs and
expenses occasioned by such default, delay, controversy or litigation and Bank
shall have the right to retain all documents and/or other things of value at any
time held by it hereunder until such compensation, fees, costs and expenses
shall be paid. Belmont hereby promises to pay the foregoing sums upon demand.
EIGHTH: If, after the receipt by Bank of any check or instrument of any
party hereto, Bank shall inform Belmont that such check or instrument has been
entered for collection by it hereunder and is uncollectible and payment of the
funds represented by such check or instrument has been made pursuant to the
terms of this Agreement, then Belmont shall immediately reimburse Bank for such
payment, and Bank shall deliver the returned check or instrument to Belmont
provided, however, that nothing contained herein shall require Bank to invest or
pay out funds which it has reason to believe are uncollectible.
NINTH: All distributions by Bank to subscribers pursuant to this Agreement
shall be made by check, payable to the order of each respective subscriber and
shall be mailed directly to the subscribers by first class mail. All payments by
Bank to Belmont shall be made in immediately available funds, if and to the
extent that the funds on deposit with Bank are immediately available at the time
of such payment.
TENTH: The rights and obligations of each party under this Agreement may
not be assigned without the prior written consent of all other parties. This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns.
ELEVENTH: This Agreement contains all the terms agreed upon by the parties
with respect to the subject matter hereof. This Agreement may be amended only by
a written instrument signed by the party against whom enforcement of any waiver,
change, modification, extension or discharge is sought.
TWELFTH: All notices, communications and instructions required or desired
to be given under the Escrow Agreement shall be in writing and shall be deemed
to be fully given if sent by certified mail, return receipt requested, to the
following addresses:
To: Firstar Bank, N.A.
Firstar Bank, N.A.
000 Xxxxxx Xxxxxx
XX XX-XX-00XX
Xxxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
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To: Belmont Bancorp.
Belmont Bancorp.
000 X. Xxxx Xxxxxx
X.X. Xxx 000
Xx. Xxxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxx, President and
Chief Executive Officer
or to such other address and to the attention of such other person as any of the
above may have furnished to the other parties by certified mail, return receipt
requested.
THIRTEENTH: Belmont shall deliver to Bank a certificate of the secretary of
Belmont as (a) the authority of certain officers thereof to act on behalf of
Belmont in connection with this Agreement and (b) the incumbency and signatures
of such officers, and Bank may act in reliance on such certificate upon the
instructions or directions given to it in accordance with the terms of this
Agreement by Belmont, through a person authorized so to act in such certificate.
FOURTEENTH: This Agreement shall be deemed to be an agreement made under
the laws of the State of Ohio and for all purposes shall be construed and
enforced in accordance with and governed by the laws of such State.
FIFTEENTH: This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, and all such
counterparts shall constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
Belmont Bancorp.
By:
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Title:
Firstar Bank, N.A.
By:
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Title:
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