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ESCROW AGREEMENT
THIS ESCROW AGREEMENT is made and entered into as of the ____
day of ____________, 1997, by and between GBC BANCORP, INC., a Georgia
corporation (the "Company"), and COLUMBUS BANK AND TRUST COMPANY (the "Escrow
Agent").
W I T N E S S E T H:
WHEREAS, the Company contemplates a public securities offering
of a Minimum Offering of 650,000 Shares and a Maximum Offering of 1,000,000
Shares (the "Offering") in connection with an application filed with the Georgia
Department of Banking and Finance and the Federal Reserve Bank of Atlanta to
organize a bank holding company under the laws of the State of Georgia to hold
all of the common stock of Gwinnett Banking Company, a bank and trust company
organized under the laws of the State of Georgia with deposits insured by the
Federal Deposit Insurance Corporation; and
WHEREAS, the Company wishes to establish an escrow account
with the Escrow Agent so as to segregate all subscription payments received
pursuant to the Offering;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained and intending to be legally bound hereby, the
parties hereto covenant and agree as follows:
1. The Company hereby appoints and designates the Escrow Agent
as escrow agent for the purposes set forth herein. The Escrow Agent hereby
acknowledges and accepts said appointment and designation. The parties hereto
understand that the Escrow Agent, by accepting such appointment and designation,
in no way endorses the merits of the Offering or the suitability of the
investment for any prospective investor. The Company hereby acknowledges that
the status of the Escrow Agent is that of an agent only for the limited purposes
set forth herein, and the Company hereby agrees that in the Offering it will not
represent or imply that the Escrow Agent, by serving as escrow agent hereunder
or otherwise, has investigated, approved, or endorsed the desirability or
advisability of the investment in the securities, or has approved, endorsed, or
passed upon the merits of the investment, whatsoever, in connection with the
offer or sale of the securities other than by acknowledgment that it has agreed
to serve as escrow agent for the limited purposes herein set forth.
2. The Company hereby covenants and agrees to promptly remit
to the Escrow Agent all checks for the subscription payments in the amount of
the Offering price of $10.00 per Share received from subscribers to the
Offering. The Company will not deduct any fees or expenses whatsoever from such
subscription payments. All subscription payments delivered to the Escrow Agent
hereunder shall be deposited immediately by the Escrow Agent in a separate
account designated as "GBC Bancorp, Inc. Escrow Account" (the "Escrow Account").
The Escrow Account shall be created and maintained subject to the customary
rules and procedures of the Escrow Agent
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EXHIBIT 10.1
ESCROW AGREEMENT BETWEEN
GBC BANCORP, INC.
AND
COLUMBUS BANK AND TRUST COMPANY
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pertaining to such accounts. The Escrow Agent shall have no responsibility for
subscription payments not received and collected in the normal course of its
business, and any check or other instrument determined to be uncollectible by
the Escrow Agent shall be returned promptly to the Company. The Escrow Agent
shall invest all subscription funds in short-term government money market
securities or similar short-term money market securities, or in short-term
certificates of deposit or other interest bearing accounts, which investment(s)
may be selected by the Company upon reasonable notice given to the Escrow Agent
in writing. The subscription funds deposited in the Escrow Account shall not
become the property of the Company until disbursed hereunder or be subject to
the debts of the Company, except as expressly provided herein; and the Escrow
Agent shall not make or permit any disbursements from the Escrow Account, except
as expressly provided herein.
3. All subscription funds shall be held by the Escrow Agent
until the occurrence of the events specified below authorizing the release of
such funds, either by paying the same to the Company with interest or by
returning same to the subscribers without interest:
(a) In the event the Escrow Agent has received, on or
before the close of business on ___________, 199_ (or
________, 199_, if the Company elects to extend the Expiration
Date of the Offering and furnish written notice thereof to the
Escrow Agent prior thereto), the subscription payments as
described in Paragraph 2 hereof for at least the 650,000
Shares of the Minimum Offering, the Escrow Agent, upon the
written certification of the Company, pursuant to which the
Company (i) identifies the subscriptions which they have
accepted and, if accepted in part, to the extent to which each
has been accepted, and (ii) certifies to the Escrow Agent that
it has satisfied the conditions precedent to the release of
such funds as described in the Prospectus, shall promptly
deliver and pay over to the Company all proceeds from
subscriptions so accepted, together with all interest earned
on all subscription funds held in the Escrow Account, and
shall return to all subscribers whose subscriptions have been
rejected in whole or in part the amount of subscription
proceeds so rejected, without interest.
(b) In the event the Escrow Agent has not received,
prior to the close of business on ___________, 199_ (or
________, 199_, if the Company elects to extend the Expiration
Date of the Offering and furnish written notice thereof to the
Escrow Agent prior thereto), the subscription payments as
described in Paragraph 2 hereof for at least the 650,000
Shares of the Minimum Offering, the Escrow Agent shall return
by regular mail, to each subscriber at the address shown on
the subscriber's payment, all collected funds received from
each subscriber, without interest; and the Escrow Agent shall
pay over and deliver to the Company all interest earned on the
collected funds received from each subscriber, to be used
solely by the Company to pay organizational expenses of the
Company and Gwinnett Banking Company. Any payment hereunder by
the Escrow Agent may be made by a check of the Escrow Agent.
At such time as the Escrow Agent shall have made all the
payments and remittances provided for in this Paragraph, this
Agreement will be
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deemed terminated and the Escrow Agent released from all
further obligations and responsibilities hereunder.
(c) In the event the Escrow Agent has received, on or
before the close of business on ___________, 199_ (or
________, 199_, if the Company elects to extend the Expiration
Date of the Offering and furnish written notice thereof to the
Escrow Agent prior thereto), the subscription payments as
described in Paragraph 2 hereof for up to the 1,000,000 Shares
of the Maximum Offering, and provided that the Minimum
Offering as described in paragraph 3(a) hereof shall have been
achieved, the Escrow Agent, upon the written request of the
Company, pursuant to which the Company (i) identifies the
subscriptions which they have accepted and, if accepted in
part, to the extent to which each has been accepted, and (ii)
certifies to the Escrow Agent that it has satisfied the
conditions precedent to the release of such funds as described
in the Prospectus, shall, on a weekly basis, promptly deliver
and pay over to the Company all proceeds from subscriptions so
accepted, in excess of those proceeds delivered and paid over
to the Company under paragraph 3(a) hereof, together with all
interest earned on such subscription funds held in the Escrow
Account, and shall return to all subscribers whose
subscriptions have been rejected in whole or in part the
amount of subscription proceeds so rejected, without interest.
At such time as the Escrow Agent shall have made all the
payments and remittances provided for in this Paragraph, this
Agreement shall be deemed terminated and the Escrow Agent
released from all further obligations and responsibilities
hereunder.
4. The Escrow Agent shall be entitled to a fee for its
services under this Agreement and the amount of such fee shall be set forth in
Exhibit A attached hereto and incorporated herein by reference. The Company
shall be responsible for all tax reports required by law to be sent to the
subscribers.
5. In performing any of its duties under this 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 such person
may incur as a result of the Escrow Agent so acting or failing to act; provided
that Escrow Agent shall be liable for damages arising out of its willful default
or gross negligence under this Agreement. Accordingly, 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 other parties
hereto given with respect to any questions relating to the duties and
responsibilities of the Escrow Agent hereunder or (ii) action taken or omitted
to be taken in reliance upon any document, including any written notice or
instructions provided for in this 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, which the Escrow Agent shall
in good faith believe to be genuine, to have been signed or presented by proper
person(s), and to conform with the provisions of this Agreement.
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6. The Company agrees to indemnify and hold the Escrow Agent
harmless against any and all losses, claims, damages, liabilities, and expenses,
including, without limitation, reasonable costs of investigation, attorneys'
fees, and disbursements which may be imposed upon 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 Agreement or involving the subject
matter hereof; except that if Escrow Agent shall be found guilty of willful
default or gross negligence under this Agreement, then, in such event, Escrow
Agent shall bear all such losses, claims, damages, and expenses.
7. In the event of a dispute between any of the parties hereto
or with any third parties sufficient in the discretion of the Escrow Agent to
justify its doing so, the Escrow Agent shall be entitled to tender unto 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 institute such legal
proceedings as it deems appropriate, and thereupon be discharged from all
further duties under this Agreement. Any such legal action may be brought in any
such court as Escrow Agent shall determine to have jurisdiction thereof. The
filing of any such legal proceedings will not deprive Escrow Agent of its
compensation earned prior to such filing.
8. Notices given pursuant to this Agreement shall be in
writing and shall be deemed received when delivered to the appropriate parties
at the following addresses:
Company: GBC Bancorp, Inc.
P. O. Xxx 0000
Xxxxxxxxxxxxx, XX 00000-0000
Attention: Xx. Xxxxx X. Key
President
Escrow Agent: Columbus Bank and Trust Company
P. O. Xxx 000
Xxxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxxx X. Xxxxxx
Vice President
Correspondent Banking Manager
9. This Agreement contains the entire agreement of the parties
with respect to the subject matter hereof. This Agreement supersedes and any
other agreements, either oral or in writing, between the parties hereto. Each
party to this Agreement acknowledges that no representation, inducements,
promises, or agreements, oral or otherwise, have been made by any party, or
anyone acting on behalf of any party, which are not embodied or expressly
referred to herein, and that no other agreement, statement, or promise not
contained in this Agreement shall be valid or binding. This Agreement may not be
modified or amended by oral agreement, but only by an agreement in writing
signed by the parties hereto.
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10. This Agreement shall be construed under the laws of the
State of Georgia.
11. The recitals set forth at the beginning of this Agreement
are incorporated by reference in, and made a part of, this Agreement.
IN WITNESS WHEREOF, the parties hereto have set their hands
and affixed their seals as of the date first above written.
COMPANY:
GBC BANCORP, INC., a Georgia
corporation
By:_________________________________
Attest: ______________________________
[CORPORATE SEAL]
ESCROW AGENT:
COLUMBUS BANK AND TRUST
COMPANY
By:______________________________
Attest: ______________________________ (Name: ________________________)
(Name: ______________________) (Title: _______________________)
(Title: _____________________)
[BANK SEAL]
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EXHIBIT A
The Escrow Agent shall be entitled to a fee of not less than
$________, payable upon the execution of this Agreement; and any increase in
such fee resulting from additional services rendered, or costs incurred, by the
Escrow Agent shall be mutually agreed upon by the parties hereto acting in good
faith.
