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EXHIBIT 10.4
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this "Agreement") is entered into as of February
____, 1999, by and among First Capital Bancshares, Inc., a South Carolina
corporation (the "Company"), Banc Stock Financial Services, Inc.
("BSFS"), and The Bankers Bank (the "Escrow Agent").
W I T N E S S E T H:
WHEREAS, the Company proposes to offer and sell (the "Offering") up to
7,200,000 shares of Common Stock, par value $.01 per share (the "Shares"), to
investors at $10.00 per Share pursuant to a registered public offering;
WHEREAS, BSFS intends to sell the Shares as the Company's agent on a
best efforts, all-or-none basis for 500,000 shares and on a best efforts basis
for the remaining Shares; and
WHEREAS, the Company desires to establish an escrow for funds forwarded
by subscribers for the 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.
(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, BSFS, or 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 BSFS. 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 BSFS, 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 BSFS 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, with interest earned, if any.
(b) Subscription agreements for the Shares shall be reviewed for
accuracy by BSFS and, immediately thereafter, BSFS 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
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agreement.
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 $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 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 and BSFS in writing
that the Escrow Agent has received at least $5,000,000 in Escrowed Funds, and
(ii) the Escrow Agent has received a certificate signed by the President or
another authorized representative of the Company and an authorized
representative of BSFS 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 BSFS and the Company in
accordance with such notice 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 BSFS of such facts and shall distribute such funds
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 shall deliver
not less than $5,000,000 in collected funds to the Company, except as provided
in Paragraphs 3(b) and 3(c) hereof.
(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"),
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the Escrow Agent shall return the Escrowed Funds which are collected funds as
directed in writing BSFS to the respective subscribers in amounts equal to the
subscription amount paid by each of them, plus interest earned thereon divided
amongst the subscribers according to the number of shares subscribed for and the
amount of time each subscriber's funds have been in escrow. 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 BSFS by the Escrow
Agent, unless the Escrow Agent is otherwise specifically directed in writing by
BSFS. The Company is aware and understands that, until it becomes entitled to
receive the Escrowed Funds as described in Paragraph 3(a), it is not entitled to
any Escrowed Funds and that no amounts deposited in the Escrow Account shall
become the property of the Company or any other entity or be subject to the
debts of the Company or any other entity.
(d) Upon receipt by the Escrow Agent of written notice from the
Company that it has rejected all or any part of any subscription, the Escrow
Agent shall return the Escrowed Funds for such subscription to the subscriber,
with interest earned.
4. FEES OF ESCROW AGENT. The escrow account will accrue a service
charge of $15.00 per month. In addition, a $20.00 per check fee will be charged
if the escrow account has to be refunded due to a failure to complete the
subscription. All of these fees are payable upon the release of the Escrowed
Funds, and the Escrow Agent is hereby authorized to deduct such fees from the
Escrowed Funds prior to any release thereof pursuant to Section 3 hereof.
5. LIABILITY OF ESCROW AGENT.
(a) In performing any of its duties under this 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
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limitation, any litigation arising from this Escrow Agreement or involving the
subject 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 be 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 30 days
written notice to the Company and BSFS. If a successor escrow agent is not
appointed by Company within 30 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 Company appointed by the court.
6. APPOINTMENT OF SUCCESSOR. The Company and BSFS may, upon the
delivery of 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.
7. NOTICE. All notices, requests, demands and other
communications or 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:
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If to the subscribers for Shares: To their respective addresses as specified
in their Subscription Agreements.
The Company:
First Capital Bancshares, Inc.
000 Xxxxxxx 00 Xxxxx
Xxxxxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xx. Xxxxxx Xxxxxxxx
With a copy to: Xxxxxx Xxxxxxx Xxxxx & Scarborough, LLP
Suite 1400
000 Xxxxxxxxx Xxxxxx, XX
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxxxx, Esq.
The Escrow Agent: The Bankers Bank
0000 Xxxxx Xxxxx Xxxx
600 Paces Summit
Xxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxxxxxx X. Xxxxxxx
Senior Vice President
BSFS: Banc Stock Financial Services, Inc.
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, Xxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxxx
With a copy to: Xxxxx & Xxxxxxxxx, P.A.
0000 Xxxx Xxxxxx Xxxx
Xxxxxxxxxxx, Xxxxxxx 00000
Attention: A. Xxxxxx Xxxxx, Esq.
8. REPRESENTATIONS OF THE COMPANY. The Company hereby
acknowledges that 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.
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9. GENERAL.
(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 failure of any part at any time or times to
require performance of any provision hereof shall in no manner affect the right
at a later time to enforce the same. No waiver in any one or more instances by
any part of any condition, or of the breach of any term contained in this
Agreement, whether by conduct or otherwise, shall be deemed to be, or construed
as, a 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.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as
the date first written above.
COMPANY: ESCROW AGENT:
FIRST CAPITAL BANCSHARES, INC. THE BANKERS BANK
By: By:
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Name: J. Xxxxxx Xxxxxxxx Name: Xxxxxxx X. Xxxxxxx
Title: Chairman and Chief Executive Officer Title: Senior Vice President
BSFS:
BANC STOCK FINANCIAL SERVICES, INC.
By:
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Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President
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