ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this "Agreement") is entered into and
effective as of the 19th day of April, 1999, by and between
UNITED AMERICA'S BANCSHARES, INC., 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 1,200,000 shares of Common Stock, $0 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.
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(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") received by it from subscribers or from
the Company when it has received checks 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. If the Company rejects or
cancels any subscription for any reason the Company will retain any
interest earned on the Escrowed Funds to help defray organizational
costs.
(b) Subscription agreements (the "Subscription Documents") 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
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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, 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 $10,000 in federal funds.
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
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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 $12,000,000 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 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 and any
interest earned thereon 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) 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 1,200,000 shares
of Company common stock and Escrowed Funds in the amount of at least
$12,000,000 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 Escrowed
Funds then held by it under this Escrow Agreement, with any interest
accrued thereon to the respective subscribers at the address 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
Escrowed Funds in accordance with the terms of this Section 3(b),
except for the provisions of Section 5(b) hereof, this Escrow
Agreement shall terminate.
For purposes of Paragraph 3(b) above, the specific allocations of
net profits attributable to each subscriber shall be determined by the
Company as follows: each subscriber's allocated share of earnings on
the Escrowed Funds, after deducting your fees, if any, shall be that
fraction (i) the numerator of which is the dollar amount of such
subscriber's accepted subscription multiplied by the number of days
between the date of acceptance of the purchaser's subscription and the
date of the offering's termination, inclusive (the subscriber's "Time
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Subscription Factor"), and (ii) the denominator of which is the aggregate Time
Subscription Factors of all purchasers depositing Escrowed Funds in the Escrow
Account.
4. FEE OF ESCROW AGENT. The escrow account will accrue a
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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.
5. LIABILITY OF ESCROW AGENT.
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(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 by 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
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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.
6. APPOINTMENT OF SUCCESSOR. The Company may, upon the
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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.
7. NOTICE. All notices, requests, demands and other
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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: United America's Bancshares, Inc.
00 Xxxxxxxxxx Xxxx
Xxxxxxx, XX 00000
Attention: Xx. Xxxxx Xxxxx
President
With a copy to: Xxxxxxxxxx and Stockton
0000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
Attention: Xx. Xxxxxxxx Xxxxxxx
Attorney at Law
The Escrow Agent: The Bankers Bank
0000 Xxxxx Xxxxx Xxxx
000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Attention: Xx. Xxxxxxx X. Xxxxxxx
Senior Vice President
8. Representations of the Company. The Company hereby
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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
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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.
9. General.
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(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.
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COMPANY: ESCROW AGENT:
UNITED AMERICA'S BANCSHARES, INC. THE BANKERS BANK
By: /s/ Xxxxx Xxxxx By: /s/ Xxx Xxxxxx
Xxxxx Xxxxx Xxx Xxxxxx
President Senior Vice President
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