Exhibit 99(b)
ESCROW AGREEMENT
This ESCROW AGREEMENT is made and entered into this ____ day of ,
2000 by and between Indian River Banking Company, Inc., a Florida corporation
(the "Company"), and __________. (the "Escrow Agent").
BACKGROUND. Pursuant to a prospectus forming a part of a Registration
Statement on Form SB-2 filed by the Company with the Securities and Exchange
Commission (the "Prospectus") the Company is offering for sale, through the
efforts of certain of its directors and officers, 200,000 shares of its common
stock, $1.00 par value per share, of the Company (the "Common Stock"), plus an
oversubscription allotment of an additional 100,000 shares, at a price of $25.00
per share (the "Offering"). Those persons who desire to purchase shares are
required to execute and deliver a subscription agreement and are required to pay
the full purchase price of the shares subscribed for at the time of
subscription, by cash, check, bank draft or money order. The Prospectus provides
that all subscriptions should be delivered to Xxxx Xxxx Xxxxxxx, the
subscription agent for the Offering and that all checks or other orders are to
be made payable to the Indian River Banking Company Escrow Account and delivered
to the Escrow Agent as escrow agent for the Company.
Pending closing upon the sale of shares or termination of the Offering, all
monies received from subscribers on account of the purchase of shares are to be
deposited in an escrow account with the Escrow Agent. The parties hereto wish to
set forth herein the terms and conditions governing the escrow account and the
funds being delivered to and held by the Escrow Agent.
NOW THEREFORE, in consideration of the mutual promises herein contained,
each intending to be legally bound hereby, the parties hereto agree as follows:
1. ESCROW AGENT. The Company hereby designates and appoints ______________
as Escrow Agent to serve in accordance with the terms and conditions of this
Escrow Agreement and the Escrow Agent agrees to act as such Escrow Agent in
accordance with the terms and conditions of this Escrow Agreement.
2. CREATION OF ESCROW. At any time and from time to time after the date
hereof until completion of the Offering and Closing thereunder, the Company
shall deliver, or cause to be delivered, to the Escrow Agent funds representing
the purchase price of shares subscribed for by subscribers. The Escrow Agent
shall accept and hold in escrow all such funds received by it from the Company
for deposit in escrow hereunder (the "Escrowed Funds") for the benefit of the
parties having an interest therein in accordance with Rule 15c2-4, until
released as set forth herein. All checks or other instruments representing the
purchase price of shares shall be made payable to the Indian River Banking
Company Escrow Account, or to the Escrow Agent in its capacity as such, and
shall be delivered to the Escrow Agent no later than noon of the next business
day after receipt.
3. INVESTMENT OF ESCROWED FUNDS. All Escrowed Funds shall be deposited in
an account in the name of the Escrow Agent, in his capacity as such, maintained
at Indian River National Bank, or such other institution as may be agreed upon
by the parties hereto. Pending release from Escrow, the Escrowed Funds shall,
not later then the first business day following receipt, be invested by the
Escrow Agent in an interest bearing Repurchase Agreement secured by United
States government securities. All interest accrued on the Escrowed Funds or
interest earned on the Escrowed Funds shall be retained by the Escrow Agent
until released in accordance with the provisions of this Escrow Agreement. It is
acknowledged and agreed that the Escrowed Funds, including any interest or
earnings thereon, are not assets of the Company or Escrow Agent, but constitute
funds placed with the Escrow Agent for safekeeping and investment pending
disbursement in accordance with provisions of this Escrow Agreement.
4. INFORMATION. From time to time upon the request of the Company, the
Escrow Agent shall furnish to the Company a statement of the amount of Escrowed
Funds held by the Escrow Agent, the approximate amount of any accrued interest
thereon, and such other information as the Company may reasonably request. The
Escrow Agent shall immediately notify the Company if any check representing
Escrowed Funds or other purported transfer of Escrowed Funds fails to result in
the delivery of funds to the Escrow Agent.
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5. RELEASE OF ESCROWED FUNDS.
(a) Release of Escrowed Funds to the Company. (i) Immediately upon the
receipt of the certificate of the Company as described below, the Escrow Agent
shall release and deliver to the Company such portion of the Escrowed Funds as
represents payment of the purchase price of shares in respect of which the
Company has accepted subscriptions. Except as provided in Section 5(b) hereof,
the Escrow Agent shall not release any portion of the Escrowed Funds to the
Company until it has received: (1) a certification of any two of Xxxx X. Xxxxxx,
Xxxxxxx X. High and Xxxxxxx X. Xxxxxxx, the Chairman, President and Chief
Financial Officer, respectively, of the Company, or the then serving Chairman,
President and Chief Financial Officer, to the effect that (i) the Company has
received acceptable Subscriptions (including payment in full of the purchase
price) with respect to at least the number of Shares with respect to which funds
are sought to be released; and (ii) the Company has accepted subscriptions with
respect to such number of Shares; Such certification shall also indicate the
exact number of shares with respect to which subscriptions have been accepted.
Notwithstanding anything to the contrary contained herein, the delivery of the
foregoing certification shall be in the sole discretion of Messrs. Xxxxxx, High
and/or Xxxxxxx, and nothing contained herein shall constitute any obligation,
express or implied, of Messrs. Xxxxxx, High and/or Xxxxxxx to deliver such
certification, or to deliver it at any specified time.
(ii) In the event that the Offering shall continue with respect to
additional shares following the release of funds described in (a)(i) above, then
the Escrow Agent shall, immediately upon the receipt from time to time of one or
more certificates of: (1) any two of Messrs. Xxxxxx, High and/or Xxxxxxx, or the
then serving Chairman, President and Chief Financial Officer of the Company,
stating that the Company has received acceptable subscriptions (including
payment in full of the purchase price) with respect to a specified number of
additional shares, and has accepted subscriptions with respect to such number of
additional shares, release and deliver to the Company such portion of the
Escrowed Funds as represents payment of the purchase price of such number of
additional shares in respect of which the Company has accepted subscriptions.
(b) Release of Escrowed Funds to Subscribers. Immediately after receiving a
certification of any two of Messrs. Xxxxxx, High and/or Xxxxxxx, or the then
serving Chairman, President and Chief Financial Officer, to the effect that the
Company has either (i) terminated the Offering in whole or in part; or (ii)
rejected, revoked or cancelled in whole or in part any subscription payment in
respect of all or a portion of which has been received by the Escrow Agent, then
the Escrow Agent shall return to the subscriber whose subscription shall have
been rejected, revoked or cancelled, in whole or in part, as a result of
termination of the Offering or otherwise, Escrowed Funds representing such
subscriber's payments, or all subscribers' payments in the event of termination
of the Offering as a whole, and shall release to the Company, all interest or
other earnings accrued on such portion of the Escrowed Funds. It is expressly
agreed that, in the event any release of escrowed funds to subscribers is
required for any reason, the Company will provide, as part of its certification,
complete information to enable such action to be completed in a prompt and
timely manner.
(c) Release of Earnings. On the first day of each month during which there
shall be any Escrowed Funds in escrow hereunder, or at such other time or times
as the Company may in writing direct, the Escrow Agent shall release that
portion of the Escrowed Funds which represent interest or other earnings on any
portion of the Escrowed Funds, to the Company. Such release shall be effected by
the deposit of such interest or other earnings to the Company's transaction
account maintained at Indian River National Bank, or to such other account as
the Company may from time to time direct.
6. LIMITATION OF LIABILITY. It is agreed that the duties of the Escrow
Agent are limited to those herein specifically provided and are ministerial in
nature. It is further agreed that the Escrow Agent shall incur no liability
whatever except by reason of its willful misconduct, gross negligence or bad
faith. The Escrow Agent shall be under no obligation in respect to amounts held
in escrow hereunder other than faithfully to follow the instructions herein
contained or delivered to the Escrow Agent in accordance with this Escrow
Agreement. It shall not be required to institute legal proceedings of any kind.
It shall have no responsibility for computations to be made in accordance
herewith or for the genuineness or validity of any document or other item
deposited with it, and it shall be fully protected in acting in accordance with
the Escrow Agreement upon any written instructions given to it and reasonably
believed by it to have been duly executed by the Company in accordance herewith.
The Company shall indemnify and hold the Escrow Agent harmless against any
claims, demands, damages or losses with respect to any thing done by the Escrow
Agent in good faith in any and all matters covered by this Agreement in
accordance with the instructions or
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provisions set forth herein, except such as may arise through or be caused by
the willful misconduct or gross negligence of the Escrow Agent.
7. COMPENSATION. The Company shall pay all reasonable and customary
compensation, expenses and other charges of the Escrow Agent relating to its
services hereunder for so long as the Escrow Agent holds any amount in Escrow
hereunder. The Escrow Agent and the Company agree that such compensation shall
be as described in Schedule A hereto.
8. RESIGNATION. The Escrow Agent, or any successor to it hereafter
appointed, may at any time resign by giving thirty (30) day advance notice in
writing to the Company and, upon the appointment of a successor Escrow Agent as
hereinafter provided, shall be discharged from any further duties hereunder. In
the event of such resignation, a successor Escrow Agent shall be appointed by
the Company. Any such successor Escrow Agent shall deliver to the Company a
written instrument accepting such appointment hereunder, and thereupon it shall
succeed to all of the unaccrued rights and duties of the Escrow Agent hereunder
and shall be entitled to receive all of the then remaining amounts held in
escrow hereunder.
9. TERMINATION. This Escrow Agreement shall terminate upon the earlier of:
(i) the receipt by the Escrow Agent of a written notice of termination signed by
the Company accompanied by sufficient certifications or other documentation to
verify that all subscriptions to which the Escrowed Funds relate shall have been
accepted and certificates representing such shares issued or rejected in whole;
or (ii) the distribution of all of the Escrowed Funds, including all
undistributed interest or earnings in accordance with this Escrow Agreement
following termination or completion of the Offering. Upon termination pursuant
to clause (i) above, the Escrow Agent shall deliver any Escrowed Funds remaining
after return to subscribers of Escrowed Funds representing rejected
subscriptions as instructed in such notice of termination.
10. NOTICES. Except as otherwise provided in this Agreement, any notice or
other communication hereunder shall be in writing and shall be deemed delivered
upon personal delivery or upon receipt if sent by facsimile transmission,
express delivery service or mailed by registered or certified first class mail,
postage prepaid, and addressed as follows:
To the Company: To the Escrow Agent:
Xxxxxxx X. High
Indian River Banking Company
000 00xx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
or to such other addresses or persons as the parties, from time to time, may
furnish one another by notice given in accordance with this section.
11. MISCELLANEOUS.
(a) Assignment. This Escrow Agreement and the rights of the parties
hereunder may not be assigned by the Escrow Agent without the consent of the
Company, which consent may be withheld in the absolute discretion of the
Company, and any attempted assignment in violation of this Section 11(a) shall
be void. This Escrow Agreement and all action taken hereunder in accordance with
its terms shall be binding upon and inure to the benefit of each of the parties
hereto and its respective successors, permitted assigns, heirs, and legal
representatives.
(b) Amendment. This Escrow Agreement may be amended upon written notice to
the Escrow Agent at any time by the Company but the duties, responsibilities or
compensation of the Escrow Agent may not be modified without its consent.
(c) Waiver. Waiver of any term or condition of this Escrow Agreement by any
party shall not be construed as a waiver of a subsequent breach or failure of
the same term or condition, or a waiver of any other term or condition of this
Escrow Agreement.
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(d) Governing Law. This Escrow Agreement shall be governed by and construed
in accordance with the laws of the State of Florida, without reference to the
conflicts or choice of law principles thereof.
(e) Integration. This Escrow Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof, and
supersedes any prior agreement with respect to the subject matter hereof, and
there are no other agreements, covenants, representations or warranties except
as set forth herein.
(f) Authority. Each party executing this Escrow Agreement warrants its
authority to execute this Escrow Agreement.
(g) Counterparts. This Escrow Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Escrow Agreement to
be signed the day and year first above written.
ATTEST: INDIAN RIVER BANKING COMPANY
________________________ By_____________________________________________
Name: Name: Xxxxxxx X. High
Title: Title: President
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