EXHIBIT 10.5
ORGANIZERS' AGREEMENT AND SUBSCRIPTION AGREEMENT
This Organizers' Agreement is entered into as of the 10th day of May,
2001 by and among the persons signing copies of this Agreement as an Organizer
(the "Organizers") and Carolina National Corporation, a South Carolina
corporation (the "Company").
Whereas, the Organizers wish to organize a national bank in Columbia,
South Carolina (the "Bank");
Whereas, the Organizers have caused the Company to be formed to act as
a holding company for the Bank; and
Whereas, the Organizers wish to memorialize their understandings with
respect to the organization of the Company and the Bank; and
Whereas, the Company will advance the organizational expenses of the
Bank and raise the funds to purchase the stock of the Bank
Now, therefore, for and in consideration of the premises and the
agreements contained herein the Organizers agree as follows:
ORGANIZATION OF THE BANK
1. The Organizer agrees to serve as an Organizer of the Bank, and to
participate in the organizational process in the manner and to the extent
required by The National Bank Act and the rules, regulations and policies of the
Office of the Comptroller of the Currency (the "OCC"). The Organizer also agrees
that he or she will serve as a director of the Bank upon its organization and
will endeavor to the best of his or her ability to fully discharge the
obligations of a director of a national bank.
2. The Organizer acknowledges that he understands that he or she will be
required to provide certain information concerning his or her background and
financial standing to the OCC and the Federal Deposit Insurance Corporation
("FDIC") in connection with the application to organize the Bank and application
for insurance of deposits and agrees to promptly furnish such information as may
be required. The Organizer further understands that continued participation as
an Organizer and, ultimately, as a director of the Bank is subject to the
approval of the OCC and FDIC and agrees that, if the approval of either for his
participation can not be obtained or is delayed in a way that will substantially
delay the opening of the Bank, he or she will withdraw from participation as an
Organizer and as a prospective director of the Bank.
3. The Organizer agrees that the proposed Chief Executive Officer, Xxxxx X.
Xxxxxx, will be the spokesperson for the Organizers.
4. Each Organizer agrees to promptly notify the proposed Chief Executive
Officer of any communication he receives from the OCC or FDIC or any other
governmental agency regarding the Bank.
5. With the exception of any Organizer who also becomes a salaried employee
of the Bank, no Organizer shall have the right to receive any compensation for
his service as an Organizer or as a director of the Bank unless such
compensation has been approved by the directors of the Bank and complies with
applicable laws and regulations.
6. Individual Organizers shall not incur any expense with respect to the
Bank without the prior written consent of the proposed Chief Executive Officer.
7. All correspondence or other communications regarding the organization of
the Bank and the other matters contained in this Agreement shall be directed to
the appropriate party at the address furnished by such party to the Company in
writing.
8. The Organizers may, with the approval of the majority of Organizers,
bring in additional Organizers or replace Organizers who leave the group. Any
such additional or replacement Organizer shall sign this Agreement and thereby
be bound by its terms.
ORGANIZATION OF THE COMPANY
9. The Organizer agrees to serve as a director of the Company and use his
or her best efforts to assist the Company in raising the funds to capitalize the
Bank.
10. The Organizer agrees to provide any and all information which may be
necessary to facilitate the obtaining of the required approval from the Board of
Governors of the Federal Reserve System for the Company to acquire the Bank.
11. This Agreement also constitutes a subscription agreement to purchase
$100,000 worth of the shares of the Common Stock of the Company at the public
offering price of $10.00 per share. A portion of the purchase price has
previously been tendered. The remaining portion or portions thereof shall be
paid to the Company five business days after written notice to make such payment
is given to each Organizer. The funds paid shall be placed in an escrow account
with a commercial bank (the "Escrow Agent") and held in escrow until released as
follows:
(a) The Escrow Agent shall release to the Company $10.00, or a multiple
thereof, of the escrowed amount for each Organizer upon delivery to the Escrow
Agent of stock certificates for that number of shares which equals one tenth of
the amount to be released of common stock of the Company registered in the name
of each Organizer. The Escrow Agent or the Company shall hold such stock
certificates for the registered owner until requested to deliver the
certificates for the registered owner or to the transfer agent for transfer or
exchange.
(b) If the organization of the Bank is abandoned by the Organizers, the
Company shall notify the Escrow Agent of any amounts due to vendors,
consultants, lenders or others in connection with the effort to organize the
Bank and the Escrow Agent shall pay such amounts from the Organizers'
subscription funds held in Escrow to the Company, charging a pro rata portion on
a per capita basis to the account of each Organizer. Any remaining amount shall
be returned to the Organizers pro rata on a per capita basis.
(c) If the Company obtains one or more loans or lines of credit to fund the
organization process it may pledge the escrowed funds to secure such borrowing
and, if it does so, the Escrow Agent shall pay such funds to such lenders upon
their demands in accordance with the terms of the respective borrowing
agreements and charge the amounts so paid to the account of each Organizer pro
rata on a per capita basis.
(d) The Escrow Agent shall invest the escrowed funds in liquid interest
bearing investments as directed by the Company. All earnings on the escrowed
funds shall be paid to the Organizers submitting such funds.
12. Each Organizer acknowledges that the subscription funds paid to the
Company will be used by the Company (a) to pay organizational and related
expenses of the Company and the Bank including stock offering expenses of the
Company, (b) for general corporate purposes and (c) to purchase stock of the
Bank, if necessary. Each Organizer also acknowledges and agrees that the Company
stock subscribed for will, when issued, be restricted as to transfer and the
certificates will bear a legend restricting its transfer.
13. Each Organizer represents and warrants to the Company (a) that he or
she is purchasing the Company stock for investment only and not with a view to
distribution thereof, (b) that he or she has the ability to withstand the entire
loss of the investment and (c) that he or she has had the opportunity to obtain
any and all information about the Company that he or she desires.
GENERAL
14. This Agreement may be executed in multiple counterparts which shall
have the same effect as though there were one agreement signed by all parties;
provided, however, that the amount of stock subscribed for shall be individual
to the Organizer signing the copy of this Agreement on which such amount is set
forth and the amount need not be same with respect to each Organizer.
15. This Agreement shall be governed by the laws of the State of South
Carolina and shall inure to the benefit of and be enforceable against the
parties hereto their respective heirs, successors and assigns.
16. This Agreement represents the entire agreement of the Organizers
regarding the matters covered by this Agreement and replaces and supercedes all
prior Agreements regarding such matters, including specifically, without
limitation, an agreement by some of the Organizers to organize a state-chartered
bank in Columbia, South Carolina.
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IN WITNESS WHEREOF, the parties hereto have executed this Organizers'
Agreement and Subscription Agreement as of the date first above written.
[SIGNATURES OMITTED]
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