EXHIBIT 10.2
[LETTERHEAD OF NEXITY BANK]
FORM OF
ESCROW AGREEMENT
Relating to Subscriptions for Shares of _________________
This Escrow Agreement (the "Agreement") is made and entered into as of the
____ day of __________, 200___, by and among certain investors (collectively,
the "Investors") who have executed a Subscription Agreement (the "Subscription
Agreement") (and which Subscription Agreement expressly refers to and
incorporates this Escrow Agreement); ________________________, a _____________
corporation (the "Company"); and Nexity Bank (the "Escrow Agent").
WHEREAS, the Investors desire to contribute to the capital of _____________
by purchasing shares of _____________________ common stock, $_______ par value
(the "Shares") pursuant to the terms and conditions set forth in _______________
Private Offering Memorandum dated _____________, 200____ (the "Memorandum"), and
the Subscription Agreement, the form of which is attached hereto; and
WHEREAS, in order to facilitate the purchase of the Shares and the
organization of _________________, the Investors desire that the Escrow Agent
receive, hold and distribute their payments for the Shares in accordance with
the terms hereof.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
hereinafter set forth, the parties agree as follows:
1. ESCROW DEPOSIT. Each Investor will deliver the funds in payment for the
Shares purchased by such Investor, as set forth in the Subscription
Agreement, to the Company for further delivery to the Escrow Agent.
The Company will collect and deliver to the Escrow Agent appropriate W-9
Forms for each investor.
2. INVESTMENT OF ESCROW DEPOSIT. All funds received by the Escrow Agent
pursuant to this Agreement shall be invested, to the extent practicable,
in deposit accounts or certificates of deposit which are 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, federal funds, 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. Unless
and until otherwise instructed by the Company, the Escrow Agent shall by
means of a "Sweep" or other automatic investment program invest the
Escrowed Funds in blocks of $1,000 in federal funds. Interest will
begin accruing no later than the next business day after receipt.
3. DISTRIBUTION OF FUNDS. The Escrow Agent shall distribute the funds held
by it under this Agreement as follows:
a. Upon receipt of (i) funds in the amount of at least $_______________
in payment for Shares, and (ii) a certificate executed by __________
attesting that __________________ has received subscriptions for
such amount and directing the Escrow Agent to distribute all funds
received by the Escrow Agent from the Investors under this Agreement
to the Company, the Escrow Agent shall deliver the funds, by
cashier's check or other form of payment mutually acceptable to the
Company and the Escrow Agent, to the Company, together with the
income earned thereon pursuant to subsection (c) of this Section 3.
No distribution will be made until the last investor deposit has
been made for at least two business days. The Company shall provide
account information and other necessary directions for disbursements
by the Escrow Agent to it under this Agreement. The Escrow Agent
must be provided a copy of the subscription agreement at the signing
of this Escrow Agreement.
b. Upon i) receipt of direction from the Company, to return the funds
to the Investors; or (ii) in the event the Escrow Agent shall have
received less than $______________ or shall have received no
direction or certificate from the Company pursuant to either
subsection (a) or this subsection (b) of this Section 3 on or prior
to __________, 200___(closing date of offering), the Escrow Agent
shall distribute such funds to the Investors, together with the
income earned thereon pursuant to subsection (c) of this Section 3.
The Company may give notice to the Escrow Agent that the Company is
canceling its offer of the Shares prior to _______________, 200___,
and the Escrow Agent shall distribute the funds to the Investors in
accordance with this Agreement.
c. Any income earned on the investment of funds received under this
Agreement will first be applied against the Escrow Agent's fee set
forth in Section 9 hereof and any expense of the Escrow Agent
incurred pursuant to Section 5 hereof. To the extent that such
income exceeds the Escrow Agent's fee and expenses, the Escrow Agent
shall allocate (each Investor shall be allocated his pro rata share
of such excess, calculated according to the amount of funds
delivered to the Escrow Agent by such Investor and the number of
days such Investor's funds have been available for investment by the
Escrow Agent) and distribute such excess to the Investors, in the
event that funds are returned to Investors pursuant to subsection
(b) of this Section. Such excess shall be delivered to the Company,
in the event that the funds received and held hereunder are
delivered to the Company pursuant to subsection (a) of this Section.
4. AUTHORIZATION FOR DISBURSEMENT. The Escrow Agent is hereby authorized
and directed to issue its checks for each disbursement hereunder and the
Escrow Agent shall be relieved of all liability with respect to making
the disbursements in accordance with the provisions hereof.
5. PROFESSIONAL SERVICES USED BY ESCROW AGENT. The Escrow Agent may engage
the services of such attorneys, accountants, and other professionals, as
the Escrow Agent may, in its sole discretion, deem advisable to carry out
its duties under the Agreement. The Company agrees to reimburse the
Escrow Agent for all costs, expenses and professional fees incurred
hereunder which are not covered by income earned on escrowed funds
pursuant to Section 3(c) hereof, including all legal fees and expenses
incurred in the review of this Agreement.
6. LIMIT ON ESCROW AGENT'S RESPONSIBILITY. The Escrow Agent shall have no
duties or obligations hereunder except as expressly set forth herein,
shall be responsible only for the performance of such duties and
obligations, shall not be required to take any action otherwise than in
accordance with the terms hereof and shall not be in any manner liable or
responsible for any loss or damage arising by reason of any act or
omission to act by it hereunder or in connection with any of the
transactions contemplated hereby, including, but not limited to, any loss
that may occur by reason of forgery, false representations, the exercise
of its discretion, or any other reason, except for its gross negligence
or willful misconduct.
7. RELIANCE ON OPINION OF COUNSEL. The Escrow Agent hereunder shall be
entitled to rely upon the advice of its counsel in any action taken in
its capacity as Escrow Agent hereunder and shall be protected from any
liability of any kind for actions taken in reasonable reliance upon such
opinion of its counsel.
8. RESIGNATION. The Escrow Agent may resign at any time upon ten (10) days'
written notice to the Company. Such resignation shall take effect upon
receipt by the Escrow Agent of an instrument of acceptance executed by a
successor escrow agent and subscribed and consented to by the Company,
and the delivery by the Escrow Agent to such successor of any funds held
under this Agreement. The Escrow Agent, if it has not received such an
instrument of acceptance prior to the expiration of ten (10) calendar
days after the giving of notice of resignation, shall be discharged of
its duties and obligations hereunder only upon the deposit of any funds
being held by it under this Agreement into, and the acceptance thereof,
by a court of competent jurisdiction, to which application shall be made
for the appointment of a successor escrow agent so appointed shall
succeed to all of the rights, duties and responsibilities of the Escrow
Agent.
9. ESCROW AGENT'S FEES. The Company agrees to pay Escrow Agent's usual and
customary fees for performing its obligations under the Agreement that
are not covered by income earned on escrowed funds pursuant to Section
3(c) hereof. An $18.00 per check fee will be charged if the escrow
account has to be refunded due to failure to complete the subscription.
10. NOTICE. All notices, certificates and other communications hereunder
shall be in writing and shall be sufficiently given and shall be deemed
given when delivered, postage prepaid, addressed as follows by certified
mail:
To the Escrow Agent: Attention: Xxx. Xxx Xxxxxxxx
Nexity Bank
0000 Xxxx Xxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
To the Investors: to the persons named and at the
addresses listed in the Subscription Agreements
To Company Company
Company Address
Company City, State Zip
Any party may, by notice given hereunder, designate any future or different
addresses to which subsequent notices, certificates, and other communications
shall be sent.
12. BINDING EFFECT. This Agreement shall inure to the benefit of and shall
be binding upon the parties hereto and their respective heirs, executors,
successors, administrators and assigns.
13. SEVERABILITY. In the event any court of competent jurisdiction shall
hold any provision of this Agreement invalid or unenforceable, such
holding shall not invalidate or render unenforceable any other provision
hereof.
14. EXECUTION OF COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be an original, and all of which shall
constitute one and the same instrument.
15. APPLICABLE LAW. This Agreement shall be construed and governed
exclusively by the laws of the State of Alabama, without regard to its
principles of conflicts of law.
16. HEADINGS. The headings used in this Agreement have been prepared for the
convenience of reference only and shall not control, affect the meaning,
or be taken as an interpretation of any provisions of this Agreement.
ESCROW AGENT: NEXITY BANK
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By:
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Its:
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Date:
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COMPANY:
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By:
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Its:
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