Exhibit 10.8
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this "Agreement") is entered into and effective
as of the 13th day of July, 2001, by and between First Southern Bancorp, a
Georgia 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") up to
1,000,000 shares of Common Stock, $0.01 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, 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. 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 at least $6,100,000 in Escrowed Funds, 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, including
preliminary approvals by the Office of the Comptroller of the Currency, the
Federal Deposit Insurance Corporation, and the Federal Reserve Bank, 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
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 agent will accrue a service charge
of $15.00 per month. In addition, a $20.00 per check fee 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 Escrowed 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 in 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 thirty (30)
days written notice to the Company. If a successor escrow agent is not appointed
by Company within thirty (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
thirty (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 addresses set forth below:
If to the subscribers for Shares: To their respective addresses as
specified in their Subscription
Agreements.
The Company: First Southern Bancorp
000 Xxxxx Xxxx Xxxxxx
P. O. Xxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Attention: F. Xxxxxx Xxxxx
Chief Executive Officer
With a copy to: Xxxxxx Xxxxxxx Xxxxx & Scarborough, LLP
000 Xxxxxxxxx Xxxxxx XX
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: J. Xxxxxxx Xxxx, Esq.
The Escrow Agent: The Bankers Bank
0000 Xxxxx Xxxxx Xxxx
000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Attention: Xxx X. Xxxxxxxx
First Vice President
9. Representations 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 acknowledgment 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:
FIRST SOUTHERN BANCORP THE BANKERS BANK
By: /s/ Xx Xxxxxxx By: /s/ Xxx X. Xxxxxxxx
----------------------------- ----------------------------
Xx Xxxxxxx Xxx X. Xxxxxxxx
Chief Financial Officer First Vice President
