EXHIBIT 10.1
Independent Bankers' Bank of Florida
ESCROW AGREEMENT
This Escrow Agreement is entered into and effective this _____ day
of____________,2003 by and between Marco Community Bancorp, Inc., a Florida
corporation (the "Company') and the Independent Bankers' Bank of Florida
("Escrow Agent" or "Agent").
WITNESSETH:
WHEREAS, the Company proposes to offer for sale, as the first two phases of a
three phase offering, up to 1,000,000 units composed of 1,000,000 shares of its
$0.01 par value common stock and 1,000,000 warrants to purchase one-quarter
share of common stock (the "Units"), which Units shall be registered under the
Securities Act of 1933, as amended, at a price of $9.00 each ("Offering"); and
WHEREAS, the Company has requested the Escrow Agent to serve as the depository
for the payment of subscription proceeds ("Payments") received by the Company
from investor(s) who are subscribing to Units pursuant to, and in accordance
with, the terms and conditions contained in the Company's Prospectus and Order
Form; and
WHEREAS, the Offering will terminate at the earlier of 5:00 P.M. Eastern Time,
90 Days after the Effective Date of the Company's Registration Statement, unless
extended by the Company for up to an additional 60 days; or until the maximum
number of Units are subscribed to.
NOW THEREFORE, in consideration of the premises and understandings contained
herein, the parties agree as follows:
(1) The Company hereby appoints and designates the Escrow Agent for the purposes
set forth herein. The Escrow Agent acknowledges and accepts said appointment and
designation. The Company understands that the Escrow Agent, by accepting said
appointment and designation, in no way endorses the merits of the Offering or
the Units. The Company agrees to notify any person acting on its behalf that the
position of Escrow Agent does not constitute such an endorsement, and to
prohibit said persons from the use of the Agent's name as an endorser of the
offering. The Company further agrees to allow the Escrow Agent to review any
sales literature in which the Agent's name appears and which is used in
connection with the Offering.
(2) The Escrow Agent shall accept Order Forms and payments for subscribed to
Units ("Subscription Funds"), and forward copies of all such Order Forms to the
Company within five calendar days after their receipt by the Agent. Upon receipt
of Subscription Funds, the Escrow Agent shall deposit the Subscription Funds
into the escrow account. The Company shall then deliver to the Escrow Agent
within ten calendar days, copies of written acceptances or rejections for
subscriptions. Upon receipt of such written rejections from the Company, the
Escrow Agent shall return Subscription Funds for a rejected subscription to the
subscriber.
(3) Subscription Funds shall be held and disbursed by the Escrow Agent in
accordance with the terms of this Agreement.
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(4) In the event any Subscription Funds are dishonored for payment for any
reason, the Escrow Agent agrees to orally notify the Company thereof as soon as
practicable and to confirm same in writing and to return due dishonored
Subscription Funds to the Company in the form in which they were delivered.
(5) Should the Company elect to accept a subscription for less than the number
of shares shown in the purchaser's Order Form, by indicating such lesser number
of shares on the written acceptance of the Company transmitted to the Escrow
Agent, the Agent shall remit within 20 calendar days thereafter to such
subscriber at the address shown in his Subscription Agreement that amount of his
Subscription Funds in excess of the amount which constitutes full payment for
the number of subscribed shares accepted by the Company as shown in the
Company's written acceptance, without interest or diminution
(6) Definitions as used herein:
(a) "Total Receipts" shall mean the sum of all Subscription Funds delivered to
the Escrow Agent pursuant to Paragraph (2) hereof, less (i) all Subscription
Funds returned pursuant to Paragraphs (4) and (5) hereof and (ii) all
Subscription Funds which have not been paid by the financial institution upon
which they are drawn.
(b) "Expiration Date" shall mean 5:00 P.M., Eastern Time, 90 days after the
Effective Date of the Company's Registration Statement; provided, however, in
the event that the Escrow Agent is given oral notification followed in writing,
by the Company that it has elected to extend the offering to a date not later
than 60 additional days, then the Expiration Date shall mean 5:00 P.M., Eastern
Time, on the date to which the Offering has been extended. The Company will
notify the Escrow Agent of the effective date of the Offering Circular as soon
as practicable after such date has been determined.
(c) "First Closing Date" shall mean the business day on which the Company, after
determining that all of the Offering conditions have been met, selects in its
sole discretion. The First Closing Date shall be confirmed to the Escrow Agent
in writing by the Company.
(d) "Escrow Release Conditions" shall mean that (i) the Company has not canceled
the Offering; and (ii) that the Company has received preliminary approval from
the appropriate regulatory entity to charter Marco Community Bank, as well as
preliminary approval for deposit insurance from the FDIC.
(7) If, on or before the Expiration Date, (i) the Total Receipts held by the
Escrow Agent equal or exceed $7,200,000 and (ii) the Escrow Release Conditions
have been met, the Escrow Agent shall:
(a) No later than 10:00 A.M., Eastern Time, one day prior to the First Closing
Date, deliver to the Company all Order Forms provided to the Escrow Agent; and
(b) On the First Closing Date, no later than 10:00 A.M., Eastern Time, upon
receipt of 24 hour written instructions from the Company, remit all amounts
representing Total Receipts, plus any profits or earnings, held by the Escrow
Agent pursuant hereto to the Company in accordance with such instructions.
(8) If a First Closing Date occurs, then at the earlier of: (i) the Expiration
Date; or (ii) the day after the date subscriptions for 10,000,000 Units are
received and accepted, the Escrow Agent shall:
(a) No later than 10:00 A.M., Eastern Time, deliver to the Company all Order
Forms provided to the Escrow Agent; and
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(b) No later than 10:00 A.M., Eastern Time, upon receipt of 24 hour written
instructions from the Company, remit all amounts representing Total Receipts,
plus any profits or earnings, held by the Escrow Agent pursuant hereto to the
Company in accordance with such instructions.
(9) If (i) the Escrow Release Conditions are not met by the Expiration Date, or
(ii) the Offering is canceled by the Company at any time prior to the Expiration
Date, then the Escrow Agent shall promptly remit to each subscriber at the
address set forth in his Order Form an amount equal to the amount of his
Subscription Funds thereunder, plus any profits or earnings thereon. The
earnings accruing to any individual subscriber under this paragraph shall be a
prorated share of the gross earnings on all funds under escrow net of expenses,
weighted by the amount and the duration of the funds tendered for the individual
subscription. Under no circumstances will earnings accrue to any subscription
canceled for any reason other than those provided for in this paragraph.
(10) Pending disposition of the Subscription Funds under this Agreement, the
Escrow Agent will invest collected Subscription Funds, in $1,000 increments
above a maintained balance of $50,000, in overnight repurchase agreements
collateralized at 102% with obligations of the United States Treasury or United
States Government Agencies. These repurchase agreement transactions will earn
interest at a market rate to be set by the seller.
(11) The obligations as Escrow Agent hereunder shall terminate upon the Agents
transferring all funds held hereunder pursuant to the terms of Paragraphs (7),
(8) or (9) herein, as applicable.
(12) The Escrow Agent shall be protected in acting upon any written notice,
request, waiver, consent, certificate, receipt, authorization, or other paper or
document which the Agent believes to be genuine and what it purports to be.
(13) The Escrow Agent shall not be liable for anything which the Agent may do or
refrain from doing in connection with this Escrow Agreement, except for the
Agent's own gross negligence or willful misconduct.
(14) The Escrow Agent may confer with legal counsel in the event of any dispute
or questions as to the construction of any of the provisions hereof, or the
Agent's duties hereunder, and shall incur no liability and shall be fully
protected in acting in accordance with the opinions and instructions of such
counsel. Any and all expenses and legal fees in this regard will be paid by the
Company.
(15) In the event of any disagreement between the Company and any other person
re- sulting in adverse claims and demands being made in connection with any
Subscription Funds involved herein or affected hereby, the Agent shall be
entitled to refuse to comply with any such claims or demands as long as such
disagreement may continue, and in so refusing, shall make no delivery or other
disposition of any Subscription Funds then held under this Agreement, and in so
doing shall be entitled to continue to refrain from acting until (a) the right
of adverse claimants shall have been finally settled by binding arbitration or
finally adjudicated in a court in Orange County, Florida assuming and having
jurisdiction of the Subscription Funds involved herein or affected hereby or (b)
all differences shall have been adjusted by agreement and the Agent shall have
been notified in writing of such agreement signed by the parties hereto. In the
event of such disagreement, the Agent may, but need not, tender into the
registry or custody of any court of competent jurisdiction in Orange County,
Florida all money or property in the Agent's hands under the terms of this
Agreement, together with such legal proceedings as the Agent deems appropriate
and thereupon to be discharged from all further duties under this Agreement. The
filing of any such legal proceeding shall not deprive the Agent of compensation
earned prior to such filing. The Escrow Agent shall have no obligation to take
any legal action in connection with this Agreement or towards its enforcement,
or to appear in, prosecute or defend any action or legal proceeding which would
or might involve the Agent in any cost, expense, loss or liability unless
indemnification shall be furnished.
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(16) The Escrow Agent may resign for any reason, upon thirty (30) days written
notice to the Company. Upon the expiration of such thirty (30) day notice
period, the Escrow Agent may deliver all Subscription Funds and Subscription
Agreements in possession under this Escrow Agreement to any successor Escrow
Agent appointed by the Company, or if no successor Escrow Agent has been
appointed, to any court of competent jurisdiction. Upon either such delivery,
the Escrow Agent shall be released from any and all liability under this Escrow
Agreement. A termination under this paragraph shall in no way change the terms
of Paragraphs (17) and (18) affecting reimbursement of expenses, indemnity and
fees.
(17) The Escrow Agent will charge the Company for services hereunder a fee of
$1,500.00, plus an additional fee of $5.00 for each check issued, $10.00 for
each wire transfer, $5.00 for each e-mail or facsimile transmission and $.50 for
each photo copy necessitated in the performance of duties, with total fees for
services not to exceed $2,000.00. All actual expenses and costs incurred by the
Agent in performing obligations under this Escrow Agreement will be paid by the
Company. All fees and expenses shall be paid within five days of the First
Closing Date by the Company. Any subsequent fees and expenses will be paid by
the Company upon receipt of invoice.
(18) All notices and communications hereunder shall be in writing and shall be
deemed to be duly given if sent by registered or certified mail, return receipt
requested, to the respective addresses set forth herein. The Escrow Agent shall
not be charged with knowledge of any fact, including but not limited to
performance or non-performance of any condition, unless the Escrow Agent has
actually received written notice thereof from the Company or its authorized
representative clearly referring to this Escrow Agreement.
(19) The rights created by this Escrow agreement shall inure to the benefit of,
and the obligations created hereby shall be binding upon the successors and
assigns of the Escrow Agent and the parties hereto.
(20) This Escrow Agreement shall be construed and enforced according to the laws
of the State of Florida.
(21) This Escrow Agreement shall terminate and the Escrow Agent shall be
discharged of all responsibility hereunder at such time as the Escrow Agent
shall have completed all duties hereunder.
(22) This Escrow Agreement may be executed in several counterparts, which taken
together shall constitute a single document.
(23) This Escrow Agreement constitutes the entire understanding and agreement of
the parties hereto with respect to the transactions described herein and
supersedes all prior agreements or understandings, written or oral, between the
parties with respect thereto.
(24) If any provision of this Escrow Agreement is declared by a court of
competent jurisdiction to be invalid, void or unenforceable, the remaining
provisions shall nevertheless continue in full force and effect without being
impaired or invalidated in any way.
(25) The Company shall provide the Escrow Agent with its Employer Identification
Number as assigned by the Internal Revenue Service. Additionally, the Company
shall complete and return to the Escrow Agent any and all tax forms or reports
required to be maintained or obtained by the Escrow Agent.
(26) The authorized signature of the Escrow Agent hereto is consent that a
signed copy hereof may be filed with the various regulatory authorities of the
State of Florida and with any Federal Government agencies or regulatory
authorities.
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In agreement and acceptance of the Independent Bankers' Bank of Florida Escrow
Agreement between Marco Community Bancorp, Inc., for the purpose of organizing a
financial institution to be known as Marco Community Bancorp Incorporated and
the Independent Bankers' Bank of Florida.
MARCO COMMUNITY BANCORP, INC.
1122 North Collier Boulevard
Marco Island, Florida 34145
Phone: (239) 389-5200
Fax: (239) ___-____
By: ________________________________________ Attest: ________________________
Robert M. Marks, Organizational Chairman
INDEPENDENT BANKERS' BANK OF FLORIDA
615 Crescent Executive Court, Suite 400
Lake Mary , Florida 32746-2109
Phone: (407) 541-1620
Fax: (407) 541-1663
By: ____________________________________ Attest: ________________________
Michael Martin, Vice President
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