Exhibit 10.4
NEXITY BANK
Relating to Subscriptions for Shares of Atlantic Bancshares, Inc.
This
Agreement (the “Agreement”) is made and entered into as of the _____ day
of October, 2005, and amends and restates that certain escrow agreement dated August 4, 2005, by and among certain investors (collectively, the
“Investors”) who have executed a Subscription Agreement (the “Subscription
Agreement”) (and which Subscription Agreement expressly refers to and incorporates
this Escrow Agreement); Atlantic Bancshares, Inc., a South Carolina corporation (the
“Company”); Nexity Bank (the “Escrow Agent”); and SAMCO Capital Markets, a division
of ▇▇▇▇▇▇ Financial Services, Inc., solely for the limited purpose set forth in Section 1 below.
WHEREAS,
the Investors desire to contribute to the capital of the Company by purchasing shares of
its common stock, no par value (the “Shares”) pursuant to the terms and
conditions set forth in Company’s prospectus dated ______, 2005, and the Subscription
Agreement, the form of which is attached hereto; and
WHEREAS,
in order to facilitate the purchase of the Shares and the organization of the Company, the
Investors desire that the Escrow Agent receive, hold and distribute their payments for the
Shares in accordance with the terms hereof.
NOW,
THEREFORE, in consideration of the premises and the mutual covenants hereinafter set
forth, the parties agree as follows:
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1. |
ESCROW DEPOSIT. Each Investor will deliver the funds in payment for the
Shares purchased by such Investor, as set forth in the Subscription Agreement,
to the Company for further delivery to the Escrow Agent. Any funds delivered to SAMCO by an
Investor will be delivered immediately to Escrow Agent. The Company will
collect and deliver to the Escrow Agent appropriate W-9 Forms for each investor.
Checks should be made payable to Nexity Bank, as Escrow Agent for Atlantic
Bancshares, Inc. |
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2. |
INVESTMENT OF ESCROW DEPOSIT. All funds received by the Escrow Agent
pursuant to this Agreement shall be invested, to the extent practicable, in
deposit accounts or certificates of deposit which are insured by the Federal
Deposit Insurance Corporation or another agency of the |
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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. All investments shall comply with applicable laws, rules, and regulations,
including Rule 15c2-4 under the Securities Exchange Act of 1934. 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 invest the Escrowed Funds in Escrow Agent’s
Business Money Market Account. Interest will begin accruing no later than the next
business day after receipt. |
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3. |
DISTRIBUTION OF FUNDS. The Escrow Agent shall distribute the funds held
by it under this Agreement as follows: |
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a. |
Upon receipt of (i) funds in the amount of at least $9,600,000 in payment for
Shares, and (ii) a certificate executed by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ attesting that the
Company has received subscriptions for such amount and directing the Escrow
Agent to distribute all funds received by the Escrow Agent from the Investors
under this Agreement to the Company, the Escrow Agent shall deliver the funds,
by cashier’s check or other form of payment mutually acceptable to the
Company and the Escrow Agent, to the Company, together with the income earned
thereon pursuant to subsection (c) of this Section 3. No distribution will be
made until the last investor deposit has been made for at least two business
days. The Company shall provide account information and other necessary
directions for disbursements by the Escrow Agent to it under this Agreement. The
Escrow Agent must be provided a copy of the subscription agreement at the
signing of this Escrow Agreement. |
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b. |
Upon i) receipt of direction from the Company, to return the funds to the
Investors; or (ii) in the event the Escrow Agent shall have received less than
$9,600,000 or shall have received no direction or certificate from the Company
pursuant to either subsection (a) or this subsection (b) of this Section 3 on or
prior to December 31, 2005 (closing date of offering), unless the offering is
extended as described in the prospectus, the Escrow Agent shall distribute such
funds to the Investors, without penalty or interest, pursuant to subsection (c) of this
Section 3. The Company may give notice to the Escrow Agent that the Company is
canceling its offer of the Shares prior to December 31, 2005, and the Escrow
Agent shall distribute the funds to the Investors in accordance with this
Agreement. |
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c. |
Any income earned on the investment of funds received under this Agreement will
first be applied against the Escrow Agent’s fee set forth in Section 9
hereof and any expense of the Escrow Agent incurred pursuant to Section 5 hereof, provided that in no event shall the
Escrow Agent apply any of the Investors’ original investment principal towards such
fees and expenses. To the extent that such income exceeds the Escrow Agent’s fee and
expenses, the Escrow Agent shall distribute such excess to the Company, in the event that
funds are returned to Investors pursuant to subsection (b) of this Section. Such excess
shall also be delivered to the Company, in the event that the funds received and held
hereunder are delivered to the Company pursuant to subsection (a) of this Section. To the
extent that the income earned on the investment of funds does not exceed the Escrow
Agent’s fees and expenses, the Company shall promptly pay the Escrow Agent the amount
by which the Escrow Agent’s fees and expenses exceed the income. |
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4. |
AUTHORIZATION FOR DISBURSEMENT. The Escrow Agent is hereby authorized and
directed to issue its checks for each disbursement hereunder and the Escrow
Agent shall be relieved of all liability with respect to making the
disbursements in accordance with the provisions hereof. |
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5. |
PROFESSIONAL SERVICES USED BY ESCROW AGENT. The Escrow Agent may engage
the services of such attorneys, accountants, and other professionals, as the
Escrow Agent may, in its sole discretion, deem advisable to carry out its duties
under the Agreement. The Company agrees to reimburse the Escrow Agent for all
costs, expenses and professional fees incurred hereunder which are not covered
by income earned on escrowed funds pursuant to Section 3(c) hereof, including
all legal fees and expenses incurred in the review of this Agreement. |
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6. |
LIMIT ON ESCROW AGENT’S RESPONSIBILITY. The Escrow Agent shall have
no duties or obligations hereunder except as expressly set forth herein, shall
be responsible only for the performance of such duties and obligations, shall
not be required to take any action otherwise than in accordance with the terms
hereof and shall not be in any manner liable or responsible for any loss or
damage arising by reason of any act or omission to act by it hereunder or in
connection with any of the transactions contemplated hereby, including, but not
limited to, any loss that may occur by reason of forgery, false representations,
the exercise of its discretion, or any other reason, except for its gross
negligence or willful misconduct. |
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7. |
RELIANCE ON OPINION OF COUNSEL. The Escrow Agent hereunder shall be
entitled to rely upon the advice of its counsel in any action taken in its
capacity as Escrow Agent hereunder and shall |
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be protected from any liability of any kind for actions taken in reasonable reliance upon such opinion of its
counsel. |
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8. |
RESIGNATION. The Escrow Agent may resign at any time upon ten (10)
days’ written notice to the Company. Such resignation shall take effect
upon receipt by the Escrow Agent of an instrument of acceptance executed by a
successor escrow agent and subscribed and consented to by the Company, and the
delivery by the Escrow Agent to such successor of any funds held under this
Agreement. The Escrow Agent, if it has not received such an instrument of
acceptance prior to the expiration of ten (10) calendar days after the giving of
notice of resignation, shall be discharged of its duties and obligations
hereunder only upon the deposit of any funds being held by it under this
Agreement into, and the acceptance thereof, by a court of competent
jurisdiction, to which application shall be made for the appointment of a
successor escrow agent so appointed shall succeed to all of the rights, duties
and responsibilities of the Escrow Agent. |
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9. |
ESCROW AGENT’S FEES. The Company agrees to pay Escrow Agent’s
usual and customary fees of $25.00 per month maintenance fee for performing its
obligations under the Agreement that are not covered by income earned on
escrowed funds pursuant to Section 3(c) hereof. An $18.00 per check fee will be
charged if the escrow account has to be refunded due to failure to complete the
subscription. |
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10. |
NOTICE. All notices, certificates and other communications hereunder
shall be in writing and shall be sufficiently given and shall be deemed given
when delivered, postage prepaid, addressed as follows by certified mail: |
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To the Escrow Agent: |
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Attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇ |
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Nexity Bank | | |
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▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ | | |
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▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ | | |
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To the Investors: | | |
to the persons named and at the | | |
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addresses listed in the Subscription Agreements | | |
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To Company | | |
Attn: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | | |
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Atlantic Bancshares, Inc. | | |
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▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇ | | |
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▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ | | |
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Any party may, by notice given hereunder, designate any future or different addresses to which
subsequent notices, certificates, and other communications shall be sent. |
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11. |
BINDING EFFECT. This Agreement shall inure to the benefit of and shall be
binding upon the parties hereto and their respective heirs, executors,
successors, administrators and assigns. |
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12. |
SEVERABILITY. In the event any court of competent jurisdiction shall hold
any provision of this Agreement invalid or unenforceable, such holding shall not
invalidate or render unenforceable any other provision hereof. |
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13. |
EXECUTION OF COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be an original, and all of which shall
constitute one and the same instrument. |
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14. |
APPLICABLE LAW. This Agreement shall be construed and governed
exclusively by the laws of the State of Alabama, without regard to its
principles of conflicts of law. |
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15. |
HEADINGS. The headings used in this Agreement have been prepared for the
convenience of reference only and shall not control, affect the meaning, or be
taken as an interpretation of any provisions of this Agreement. |
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ESCROW AGENT: NEXITY BANK |
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By: ___________________
▇▇▇▇ ▇▇▇▇▇▇ | | |
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Its: Senior Vice President | | |
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Date: __________ | | |
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COMPANY: Atlantic Bancshares, Inc. | | |
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By: ___________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | | |
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Its: President/CEO | | |
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Date: __________ | | |
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SAMCO Capital Markets, a division of ▇▇▇▇▇▇ Financial Services, Inc. |
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By: ___________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | | |
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Its: Managing Director | | |
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Date: __________ | | |