EXHIBIT 6.9
ESCROW AGREEMENT
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this "Agreement") is entered into and effective as
of the day of , 1996, by and between Peoples Bancorp,
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Inc., a Georgia corporation (the "Company"), and The Bankers Bank (the "Escrow
Agent").
W I T N E S S E T H:
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WHEREAS, the Company proposes to offer and sell (the "Offering") up to
625,000 shares of Common Stock, no 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 forent 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
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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 distribute the
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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 $6,250,000 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 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. Foved by the Escrow Agent which have cleared normal
banking channels. In all events, the Escrow Agent shall deliver not less than
$6,250,000 in collected funds to the Company, except as provided in Paragraphs
3(b) and 3(c) hereof. The Escrow Agent agrees thereafter to continue to accept
subscription payments through termination of the offering as described in the
Company's Registration Statement and to deliver such collected funds at the
direction of the President or the Chairman of the Board of the Company.
(b) In lieu of collected funds, the organizers of the Company may pay for
subscriptions by assigning to the Company any portion of any obligation of the
Company to repay any advances made by such organizers to the Company to fund
organizational or other expenses and delivering such assignment to the Escrow
Agent to be held hereunder.
(c) 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, without interest. 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
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shall be retained by the Company.
5. FEE OF ESCROW AGENT. The Compnt will accrue a service charge of
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$15.00 per month. The service charges will be payable by the Company upon the
release of the Escrowed Funds. The $1,500 fee is payable upon execution of this
Agreement.
6. 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
limitationject 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 (3) days
written notice to the Company. If a successor escrow agent is not appointed by
Company within thirty (3) 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 Cf 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
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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: Peoples Bancorp, Inc.
000 Xxxxxxxx Xxx.
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
President/CEO
WITH A COPY TO: Xxxxxxx & Xxxxxx
Xxxxx 0000
0 Xxxxxxxx Xxxxxx
0000 X. Xxxxxxxxx Xxxxxx, XX
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxx Xxxxx
Attorney at Law
THE ESCROW AGENT: The Bankers Bank
0000 Xxxxxxxxx Xxxxxxx
000 Xxxxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Senior Vice President
9. REPRESENTATIONS OF THE COMPANY. The Company hereby acknowledges that
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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.
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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 faa 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:
PEOPLES BANCORP, INC. THE BANKERS BANK
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxx Xxxxxxx X. Xxxxxxx
President/CEO Senior Vice President
