Escrow Agreement

EXHIBIT 10.2
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ESCROW AGREEMENT


THIS ESCROW AGREEMENT (this "Agreement") is entered into and effective as of the ___ day of ______________, 1996, by and between Buckhead Community Bancorp, Inc., a Georgia corporation (the "Company"), and SunTrust Bank, Atlanta (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 2,400,000 shares of common stock, $.01 par value per share (the "Shares"), to investors at $5.00 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 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.


(c) Subscribers may pay a deposit on their subscription price after receipt of the Preliminary Prospectus used by the Company in the offering, but prior to the delivery of a final Prospectus and confirmation of subscription to the subscribers. Such deposit will be at least 10% of the total subscription price for the number of shares subscribed for, and will be refundable if the subscription is not confirmed by the subscriber when the final Prospectus becomes available.


2. Investment of Escrowed Funds. Upon collection of each check by
---------------------------- the Escrow Agent, the Escrow Agent shall invest the funds in deposit accounts or short-term 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 not less than $100,000 in securities issued or fully guaranteed by the United States government and, to the extent not so invested, 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 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 September 30, 1997, or such subsequent extension date not later than March 31, 1998 (the "Closing Date"), (i) the Escrow Agent has certified to the Company in writing that the Escrow Agent has received at least $7,700,000 in Escrowed Funds which are collected 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. For purposes of this Agreement, "collected funds" shall mean all funds received by the Escrow Agent which have cleared normal banking channels. In all events, the Escrow Agent ...