ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this "Agreement") is entered into and effective
as of the ___ day of March, 2000 by and between Lehigh Acres First National
Bancshares, Inc., a Florida corporation (the "Company"), and The Bankers Bank
(the "Escrow Agent").
W I T N E S S E T H :
WHEREAS, the Company proposes to offer and sell (the "Offering")
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, from the
Company in its capacity as escrow agent, subscription funds for the Shares (the
"Escrowed Funds") in the form of checks received by the Company 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.
(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.
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, or such other investments as the
Escrow Agent and the Company shall agree. All investments shall comply with
applicable laws, rules and regulations, including Rule 15c2-4 under the
Securities Exchange Act of 1934. 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. 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 $6,000,000 in Escrowed Funds, which amount shall specifically
include, to the extent current and former organizers of the Company agree, all
amounts such organizers have or will loan to the Company during the organization
process and this Offering, which will be converted into common stock of the
Company at $10.00 per share 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 of 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.
5. Fee of Escrow Agent. The escrow account will accrue a service charge
of $15.00 per month. In addition, a fee of the lesser of $20.00 per check or
$2,500 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 Escrow 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 be 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.
(d) The Escrow Agent may resign at any time upon giving 30 days' written notice
to the Company. If a successor escrow agent is not appointed by Company within
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 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 addressees set forth below:
If to the subscribers for Shares: To their respective addresses as
specified in their Subscription
Agreements.
The Company Lehigh Acres First National Bancshares, Inc.
0000 Xxxxxxxxx Xxxx X.
Xxxxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. X'Xxxx
President
With a copy to: Xxxxxx Xxxxxxx Xxxxx & Scarborough, LLP
Suite 1400
000 Xxxxxxxxx Xxxxxx, XX
Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxx, Esq.
The Escrow Agent: The Bankers Bank
0000 Xxxxx Xxxxx Xxxx
000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxxx
Senior Vice President
9. Representation 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 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 acknowledgement 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 parties 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.
COMPANY: ESCROW AGENT:
LEHIGH ACRES FIRST NATIONAL THE BANKERS BANK
BANCSHARES, INC.
By: By:
------------------------------- ---------------------------------
Xxxxxx X. X'Xxxx Xxxxxxx X. Xxxxxxx
President Senior Vice President
