EXHIBIT 10.3
ESCROW AGREEMENT, DATED DECEMBER 15, 1995,
BETWEEN DECATUR FIRST BANK GROUP, INC.
AND THE BANKERS BANK
ESCROW AGREEMENT
----------------
THIS ESCROW AGREEMENT, made and entered into as of this 17th day of
October, 1996, by and between Decatur First Bank Group, Inc., a Georgia
corporation (the "Company"), and THE BANKERS BANK, a bank chartered under the
laws of Georgia (the "Escrow Agent"), as escrow agent.
W I T N E S S E T H:
--------------------
WHEREAS, the Company proposes to offer for sale up to an aggregate of
1,200,000 shares of common stock of the Company at a purchase price of $10.00
per share; and
WHEREAS, the Company has agreed to deposit certain proceeds from the
offering in escrow on the terms and conditions set forth herein; and
WHEREAS, the Escrow Agent has agreed to accept copies of subscription
documents (the "Subscription Documents"), with the Company retaining the
originals of the Subscription Documents, to be executed and delivered by
subscribers for shares together with sums (the "Subscription Funds") received
from such subscribers and to hold and distribute the Subscription Documents and
Subscription Funds all in accordance with the terms and conditions herein set
forth;
NOW, THEREFORE, in consideration of the premises and for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by the Escrow Agent, the parties hereto do hereby agree as
follows:
29. Deposits with the Escrow Agent. The Company agrees to deposit
------------------------------
with the Escrow Agent, or to cause to be deposited with the Escrow Agent, all
Subscription Documents and Subscription Funds received by it. The Company will
allow said Subscription Funds and Subscription Documents to remain in escrow
with the Escrow Agent and will not withdraw or attempt to withdraw either such
Subscription Funds or such Subscription Documents from the Escrow Agent except
as herein provided.
30. Deposit Accounts. 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 securities of the United States or an agency of the
United States government. The Company shall provide the Escrow Agent with
instructions from time to time concerning in which of the specific investment
instruments described above the Subscription 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.
31. Minimum Escrow Amount. Except as otherwise provided herein, the
---------------------
Escrow Agent shall negotiate and hold all Subscription Documents and
Subscription Funds deposited with the Escrow Agent under the terms of this
Escrow Agreement until such time as the Escrow Agent shall have received a
written request from the Company and Subscription Documents executed by
investors agreeing to purchase 710,000 of the shares of stock of the Company
and cleared and collected Subscription Funds in the amount of $7,100,000 with
respect thereto, at which time all Subscription Documents and all Subscription
Funds held by the Escrow Agent and any interest earned thereon shall be
distributed by the Escrow Agent, to the Company. At the time of the release of
the Subscription Documents and Subscription Funds to the Company in the manner
described above, except for the provisions of Section 9 hereof, this Escrow
Agreement will terminate.
32. Return of Documents and Funds. In the event that the Escrow
-----------------------------
Agent (a) shall not have received, prior to termination of the offering,
Subscription Documents executed by subscribers agreeing to purchase at least
710,000 shares of Company common stock and Subscription Funds in the amount of
at least $7,100,000 with respect thereto, or (b) shall have received a written
notice from the Company that it is terminating the offering and this Escrow
Agreement, then the Escrow Agent shall return all Subscription Funds then held
by it under this Escrow Agreement, with any interest accrued thereon to the
respective subscribers at the addresses indicated on the Subscription
Documents, or as such subscribers may otherwise direct, together with the
corresponding executed Subscription Documents. After the distribution of all
Subscription Documents and Subscription Funds in accordance with the terms of
this Section 4, except for the provisions of Section 9 hereof, this Escrow
Agreement shall terminate.
33. Return of Subscriptions. In the event the Escrow Agent shall
-----------------------
have received written notification from the Company that any subscription is
being returned by the Company to the subscriber, in whole or in part, the
Escrow Agent shall return to the subscriber at the address indicated on the
subscriber's Subscription Documents, or as such subscriber may otherwise
direct, the Subscription Documents executed by such subscriber and all or a
portion of the Subscription Funds deposited with the Escrow Agent on behalf of
such subscriber. Release of any Subscription Funds by the Escrow Agent under
the circumstances described in this Section shall be accomplished by delivery
to the subscriber of a check of the Escrow Agent in the amount of the
Subscription Funds being returned, together with any interest accrued thereon
payable to the order of such subscriber.
34. Agreement of the Escrow Agent. The Escrow Agent hereby agrees
-----------------------------
to receive such deposits of Subscription Documents and Subscription Funds, to
hold the same intact, to promptly negotiate all checks, money orders or other
instruments received by Subscription Funds, to keep true, complete and accurate
records of all deposits and disbursements of the Subscription Documents and
Subscription Funds, to permit withdrawal thereof only in accordance with the
terms of this Escrow Agreement, and to refund or deliver all such Subscription
Funds and Subscription Documents to the respective subscribers or the Company,
as the case may be, at the time and in the manner provided under the terms of
this Escrow Agreement.
35. Representations of Company. The Company hereby acknowledges
--------------------------
that the status of the Escrow Agent with respect to the offering of the shares
of stock is that of agent only for the limited purposes herein set forth, and
hereby agrees that it will not represent or imply that
-2-
the Escrow Agent, by serving as the Escrow Agent hereunder or otherwise, has
investigated the desirability or advisability of investment in the Company, or
has approved, endorsed or passed upon the merits of the shares of the stock or
the Company.
36. Liability of the Escrow Agent. The acceptance by the Escrow
-----------------------------
Agent of its duties under this Agreement is subject to the following terms and
conditions, which all parties to this Agreement hereby agree shall govern and
control with respect to the rights, duties and liabilities of the Escrow Agent:
(a) The Escrow Agent is not a party to and is not bound by any
agreement between any one or more of the parties hereto, except this
Agreement, unless otherwise expressly stated herein.
(b) The duties of the Escrow Agent hereunder are only such as are
herein specifically provided, being purely ministerial in nature, and it
shall have no responsibility in respect of any of the cash, property or
items ("Escrow Deposit") deposited with it other than faithfully to follow
the instruments herein contained.
(c) The Escrow Agent acts hereunder as a depositary only. The Escrow
Agent is not responsible for or liable in any manner whatever for the
sufficiency, correctness, genuineness and validity of any security,
document, or other item, which is a part of the Escrow Deposit or for any
claim or action by any person, firm, corporation or trustee concerning the
right or power of any depositor to make any transfer or the validity of
the transfer of any part of the Escrow Deposit to the Escrow Agent.
(d) The Escrow Agent shall be protected in acting upon any written
notice, request, waiver, consent, receipt or other paper or documents
which the Escrow Agent in good faith believes to be genuine.
(e) The Escrow Agent shall not be liable for any error of judgment, or
for any act done or step taken or omitted by it in good faith, or for any
mistake of fact or law, or for anything which it may do or refrain from
doing in connection herewith, except its own gross negligence or willful
misconduct.
(f) The Escrow Agent is authorized to hire, may consult with, and
obtain advice from legal counsel in the event any dispute, conflict or
question arises as to the construction of any of the provisions hereof or
its duties hereunder. The Escrow Agent shall be indemnified in accordance
with Section 9 hereof for all reasonable costs so incurred and shall incur
no liability and shall be fully protected for acting in good faith in
accordance with the written opinion and instructions of such counsel.
(g) The Escrow Agent may, but shall not be required to, defend itself
in any legal proceedings which may be instituted against it or it may, by
shall not be required to, institute legal proceedings in respect of the
Escrow Deposit, or any part
-3-
thereof. The Escrow Agent shall be indemnified and held harmless in
accordance with Section 9 hereof against the cost and expense of any such
defense or action.
(h) The Escrow Agent shall make payment to or for, or deliver
documents to, any party only if in the Escrow Agent's judgment such
payment or delivery may be made under the terms of this Agreement without
its incurring any liability. If conflicting demands not expressly
provided for in this Agreement are made or notices served upon the Escrow
Agent with respect to its action or omission under this Agreement, the
parties hereto agree that the Escrow Agent shall have the absolute right
to elect to do either or both of the following:
(i) withhold and stop all future actions or omissions on its part
under this Agreement, or
(ii) file a suit in interpleader or for instructions or for a
declaratory judgment for other relief and obtain an order from a
proper court requiring the parties to litigate in such court their
conflicting claims and demands.
In the event any such action is taken, the Escrow Agent shall be fully released
and discharged from all obligations.
37. Indemnification of the Escrow Agent. The Company hereby agrees
-----------------------------------
to indemnify and hold harmless the Escrow Agent against any and all losses,
claims, damages, liabilities and expenses, including reasonable costs of
investigation and counsel fees and disbursements, which may be imposed upon the
Escrow Agent or incurred by the Escrow Agent hereunder, or as a result of the
performance of its duties as the Escrow Agent hereunder or involving the
subject matter hereof.
38. Escrow Agent Fees. The Escrow Agent shall receive for its
-----------------
services hereunder the sum of $1,500.00 due upon distribution of the
Subscription Documents and Subscription Funds as provided in Section 3 hereof.
39. Instructions and Notices. All notices, requests, demands or
------------------------
other communications authorized or required to be given by any party pursuant
to this Agreement shall be in writing to all parties, and shall be deemed to
have been sufficiently given on the date delivered by hand delivery, by
overnight courier or by certified mail, return receipt requested, to the
address set forth below:
-4-
(i) If to the Escrow Agent:
The Bankers Bank
0000 Xxxxxxxxx Xxxxxxx XX
000 Xxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
(ii) If to the Company:
Decatur First Bank Group, Inc.
000 Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxxx
(iii) With a copy to:
Xxxxxxx X. Xxxxxxx, Esq.
Powell, Goldstein, Xxxxxx & Xxxxxx
000 Xxxxxxxxx Xxxxxx X.X.
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Any party hereto may change its address for purposes of notice by
notice of such change given to the other parties in the manner specified
herein.
40. Amendment. The parties hereto may amend, alter, modify or change
---------
any portion of the Escrow Agreement by written agreement of the parties hereto.
41. Counterparts. This Agreement may be executed in multiple
------------
counterparts, each of which shall be deemed an original and all of which shall
constitute one agreement. The signature of any party to any counterpart shall
be deemed to be a signature to, and may be appended to, any other counterpart.
42. Application of Georgia Law. This Escrow Agreement and the
--------------------------
application and interpretation hereof shall be governed exclusively by the laws
of the State of Georgia.
[Remainder of Page Intentionally Left Blank]
-5-
IN WITNESS WHEREOF, the parties have executed this Escrow Agreement as
of the day and year first above written.
DECATUR FIRST BANK GROUP, INC.
By: /s/ Xxxx X. Xxxxxx
----------------------------------------
Xxxx X. Xxxxxx
President
THE BANKERS BANK
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
Signature
Xxxxxxx X. Xxxxxxx/Senior Vice President
----------------------------------------
Print Name/Title
-6-
