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EXHIBIT 10.10
ESCROW AGREEMENT
This ESCROW AGREEMENT effective as of the day of ______, 2000, by and among:
SOUTHERN COMMUNITY BANCORP, a Florida corporation, the
principal place of business of which is located at 000 Xxxxx
Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000 (hereinafter referred to
as the "Company")
and
SUNTRUST BANK, located at 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxx 00000 (hereinafter referred to as the "Escrow Agent")
WITNESSETH:
WHEREAS, the Company intends to undertake an offering of a minimum of
200,000 shares and a maximum of 1,050,000 shares of its common stock, par value
$1.00 per share (the "Common Stock") at a subscription price of $16.50 per share
(the "Offering"); and
WHEREAS, the Company has agreed to establish two (2) escrow accounts,
with the amounts deposited in the first escrow (the "First Escrow") to be
utilized to capitalize the Company's proposed new bank subsidiary, Southern
Community Bank of Southwest Florida (the "New Bank"), and with the amounts
deposited into the second escrow account (the "Second Escrow") to be primarily
utilized for providing additional working capital to the Company's existing bank
subsidiary, Southern Community Bank (the "Existing Bank"); and
WHEREAS, persons who subscribe to purchase shares in the Offering (the
"Subscribers") must designate how much of their proceeds will be deposited in
the First Escrow or the Second Escrow; and
WHEREAS, the Company desires to appoint the Escrow Agent to act as
escrow agent with respect to the Offering; and
WHEREAS, the Escrow Agent has agreed to act as escrow agent for
purposes of the Offering on the terms, and subject to the conditions, set forth
in this Agreement.
NOW, THEREFORE, in consideration of the mutual premises herein
contained, the parties hereto agree as follows:
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1. APPOINTMENT OF ESCROW AGENT. The Escrow Agent has agreed to
act as the escrow agent for the Offering, pursuant to the terms and conditions
of this Agreement.
2. DEPOSIT AND DELIVERY OF PROCEEDS. For purposes of this
Agreement, the term "Proceeds" shall mean all subscription proceeds which may be
delivered to the Escrow Agent, whether in the form of checks, cashier checks
and/or money orders. The Company shall promptly deliver to the Escrow Agent all
Proceeds received by the Company from Subscribers. The Escrow Agent shall
deposit the Proceeds in either the First Escrow or the Second Escrow, or both,
as designated by each Subscriber. The Escrow Agent shall have no responsibility
whatsoever for Proceeds not delivered to the Escrow Agent or for funds that have
not yet cleared and become good funds. The parties acknowledge that Subscribers
have been instructed to make all checks for the Common Stock payable to the
Escrow Agent. In the event that a Subscriber makes a check payable to the
Company, the Company shall endorse such checks to the order to the Escrow Agent.
Simultaneously with the delivery of the Proceeds received from each Subscriber,
the Company shall deliver to the Escrow Agent a copy of the Subscription
Agreement executed by each Subscriber and the Company's written acceptance of
the subscription offer contained in the Subscription Agreement.
3. PARTIAL REJECTION OF SUBSCRIPTIONS. If the Company elects to
accept a subscription offer for less than the number of shares requested by a
Subscriber in his Subscription Agreement, then the Company shall notify the
Escrow Agent in writing of the number of shares which the Company has elected to
accept. Promptly after the receipt of such notice, the Escrow Agent shall
deposit the accepted portion of the Subscriber's Proceeds in the appropriate
escrow account or accounts and remit to the Subscriber that portion of his
Proceeds which were not accepted, without interest or deduction.
4. TERMS OF FIRST ESCROW. The Escrow Agent shall hold and
disburse all Proceeds deposited in the First Escrow on the following terms and
conditions:
(a) Unless the Escrow Agent has previously disbursed the
Proceeds under Section 4(b), the Escrow Agent will promptly return all Proceeds
deposited in the First Escrow to Subscribers to the First Escrow, without
interest or deduction, upon the first to occur of the following:
(i) Upon written notice from the Company that
the Offering has been terminated; or
(ii) Upon the Expiration Date (as defined below)
of the Offering.
(b) The Escrow Agent will promptly deliver the Proceeds
deposited in the First Escrow to the Company upon the Company's written request,
provided that both of the following conditions have been fulfilled:
(i) The Escrow Agent has received written notice
from the Company that the Company has
received all required regulatory approvals
to open the New Bank; and
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(ii) The Escrow Agent has received Proceeds of at
least $10,065,000 designated for deposit to
the First Escrow (including, any amounts
transferred from the Second Escrow to the
First Escrow under Section 5(c)).
(c) The parties acknowledge that the Company may continue
to deposit additional Proceeds in the First Escrow even after the disbursement
of Proceeds pursuant to Section 4(b). The Escrow Agent will promptly deliver
such Proceeds to the Company, provided that the Escrow Agent shall not accept
any Proceeds after the Expiration Date.
5. TERMS OF SECOND ESCROW. The Escrow Agent shall hold all
Proceeds deposited in the Second Escrow on the following terms and conditions:
(a) Unless the Escrow Agent has previously disbursed the
Proceeds under Section 5(b), the Escrow Agent will promptly return all Proceeds
deposited in the Second Escrow to Subscribers to the Second Escrow, without
interest or deduction, promptly upon the first to occur of the following:
(i) Upon written notice from the Company that
the Offering has been terminated; or
(ii) Upon the Expiration Date of the Offering.
(b) The Escrow Agent will promptly deliver all Proceeds
deposited in the Second Escrow to the Company upon the written request by the
Company, provided that the Escrow Agent has received at least $3,300,000
designated for deposit in the the Second Escrow.
(c) The parties acknowledge that if the Company sells
more than 200,000 shares with Proceeds designated for the Second Escrow, then
the Company shall have a right to instruct the Escrow Agent either:
(i) To transfer the excess amounts from the
Second Escrow to the First Escrow; or
(ii) To release such Proceeds to the Company.
In the event that any Proceeds are transferred to the First Escrow, the
Escrow Agent will hold such additional Proceeds on the same terms as any other
Proceeds deposited in the First Escrow.
6. EXPIRATION DATE. The Expiration Date of the Offering shall be
September 30, 2000, provided that the Company has the right to extend the
Expiration Date to December 31, 2000. The Escrow Agent shall be entitled to
assume that the Expiration Date is September 30, 2000, unless, prior to such
date, the Company has provided written notice to the Escrow Agent that the
Expiration Date has been extended to December 31, 2000.
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7. RETURN OF PROCEEDS TO SUBSCRIBERS. In the event that the
Escrow Agent is obligated to return Proceeds to any Subscriber pursuant to the
terms of this Agreement, the Escrow Agent shall return such Proceeds to the
Subscriber in the form of a check, mailed by regular mail, to the address the
Subscriber set forth in such Subscription Agreement.
8. INVESTMENT OF PROCEEDS BY ESCROW AGENT. The Escrow Agent shall
invest the Proceeds deposited in each escrow account in the STI Classic
Institutional U.S. Treasury Securities Money Market Fund (a AAA rated mutual
fund comprised solely of investments in United States government, United States
government backed securities and repurchase agreements collateralized by United
States government backed securities). All income from the Fund shall accrue to
the benefit of the Company. Upon the consummation, termination or expiration of
the Offering, the Escrow Agent will deliver all income and other amounts earned
on the investment of the Proceeds to the Company. The Escrow Agent shall furnish
to the Company periodic and final reports regarding the investments of the
Proceeds. The Escrow Agent shall have no liability or obligation whatsoever for
the status of the investments or the failure of said investments, and shall have
no responsibility for tax reporting in connection with earnings or gains/losses
on the investments.
9. DUTIES OF ESCROW AGENT. The Escrow Agent undertakes to perform
only such duties as are expressly set forth in this Agreement and no implied
duties or obligations shall be read into this Agreement against the Escrow
Agent.
10. RELIANCE OF ESCROW AGENT ON DOCUMENTS. The Escrow Agent may
act in reliance upon any writing or instrument or signature which the Escrow
Agent, in good faith, believes to be genuine, may assume the validity and
accuracy of any statement or assertion contained in such a writing or
instrument, and may assume that any person purporting to give any writing,
notice, advice or instructions in connection with the provisions hereof has been
duly authorized to do so.
11. INDEMNIFICATION OF ESCROW AGENT. Unless the Escrow Agent
discharges any of its duties hereunder in a manner constituting gross negligence
or willful misconduct, the Company hereby agrees to indemnify the Escrow Agent
and hold it harmless from any and all claims, liabilities, losses, actions,
suits or proceedings at law or in equity, or any other expenses, fees or charges
of any character or nature which it may incur or with which it may be threatened
by reason of its acting as escrow agent under this Agreement; and in connection
therewith, to indemnify the Escrow Agent against any and all expenses, including
reasonable attorneys' fees and the cost of defending any action, suit or
proceeding or resisting any claim.
12. DISCRETION OF ESCROW AGENT TO FILE AN INTERPLEADER ACTION IN
THE EVENT OF DISPUTE. If the parties shall be in disagreement about the
interpretation of this Agreement, or about the rights and obligations, or the
propriety of any action contemplated by the Escrow Agent hereunder, the Escrow
Agent may, but shall not be required to, file an action of interpleader to
resolve the disagreement and may hold all Proceeds until directed by a court of
competent jurisdiction as to the manner or distribution or until all parties in
dispute mutually agree to the distribution. The Escrow Agent shall be
indemnified as set forth in Section 11 for all costs, including reasonable
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attorneys' fees incurred by it, in connection with the aforesaid interpleader
action, and shall be fully protected in suspending all or part of its activities
under this Agreement until a final judgment or other appropriate order in the
interpleader action is entered.
13. CONSULTATION WITH COUNSEL. The Escrow Agent may consult with
independent counsel of its own choice and shall not be liable for any actions
which it takes in reliance upon the advise of such counsel.
14. LIMITATION OF LIABILITY. The Escrow Agent shall not be liable for
any mistakes of fact or errors of judgment, or for any acts or omissions of any
kind unless they constitute gross negligence or willful misconduct on the part
of the Escrow Agent.
15. RESIGNATION OF ESCROW AGENT. The Escrow Agent may resign upon
thirty (30) days written notice to the Company. If a successor escrow agent is
not appointed by the Company within this thirty (30) day period, the Escrow
Agent may petition a court of competent jurisdiction to name a successor or, at
its option, the Escrow Agent may do nothing until such time as the Company has
furnished the name of a successor escrow agent.
16. COMPENSATION AND EXPENSES. The Escrow Agent shall be entitled to
compensation from the Company for its services hereunder in an amount of $ . In
the event Escrow Agent must return the Proceeds to a Subscriber, the Company
will pay the Escrow Agent an additional $15.00 for each refund. The parties
acknowledge that the Escrow Agent will earn a management fee on the investment
of the Proceeds pursuant to Section 8 of this Agreement.
17. NOTICES. All notices permitted or required to be given to any party
under this Agreement shall be in writing and shall be deemed to have been given
upon receipt by the party being notified. In the case of the Company, such
notices shall be sent to: Xx. Xxxxxxx X. Xxxxxxxx, Xx., Chairman and CEO,
Southern Community Bancorp, 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000.
Either party may change the address to which said notice is to be given by
giving notice of such to all other parties to this Agreement in the manner set
forth herein.
18. SUCCESSORS AND ASSIGNS. The rights created by the Agreement shall
inure to the benefit of, and the obligations created hereby shall be binding
upon, the successors and assigns of the Escrow Agent and the Company, as the
case may be.
19. GOVERNING LAW. This Agreement shall be construed in accordance
with, and governed by the laws of, the State of Florida.
20. TERMINATION. This Escrow Agreement shall terminate and the Escrow
Agent shall be discharged of all responsibility hereunder at such time as the
Escrow Agent shall have disbursed all of the Proceeds in accordance with the
terms of this Agreement.
21. COMPLETE AGREEMENT. This Agreement constitutes the complete
agreement between the parties hereto and incorporates all prior discussions,
agreements and representations made in regard to the matters set forth herein.
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This Agreement may not be amended, modified or changed except by a writing
signed by the party to be charged by said amendment, change or modification.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
SOUTHERN COMMUNITY BANCORP
By: /s/ XXXXXXX X. XXXXXXXX, XX.
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Xxxxxxx X. Xxxxxxxx, Xx.
Chairman and CEO
SUNTRUST BANK
By: /s/ SunTrust Bank
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First Vice President
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