EXHIBIT 99.2
EXCHANGE AGENT AGREEMENT
THIS EXCHANGE AGENT AGREEMENT (the "Agreement") dated as of July 28, 1997
is by and among SUNTRUST BANK, ATLANTA, a state banking corporation duly
organized and existing under and by virtue of the laws of the State of Georgia
("Bank"), ABC BANCORP, a Georgia corporation ("Acquiror"), and XXXXX BANKCORP,
INC., a Georgia corporation ("Xxxxx").
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, Acquiror and Xxxxx are parties to an Agreement and Plan of Merger
dated as of May 15, 1996 (the "Merger Agreement"). Following the satisfaction
or waiver of certain conditions set forth in the Merger Agreement, Xxxxx will be
merged with and into the Acquiror (the "Merger"), which will be the surviving
corporation of the Merger. A true and correct copy of the Merger Agreement,
together with specimen stock certificates representing shares of Xxxxx Common
Stock, $50.00 par value per share ("Xxxxx Shares"), have been delivered to the
Bank prior to the execution of this Agreement;
WHEREAS, the Merger Agreement provides that, upon consummation of the
Merger and proper presentment of the stock certificates representing Xxxxx
Shares, each Xxxxx Share outstanding immediately prior to the Effective Time of
the Merger, as defined in the Merger Agreement (the "Effective Time of the
Merger"), other than shares as to which statutory dissenters' rights have been
perfected, will be converted into the right to receive consideration equal to
the Merger Consideration (as specified in the Merger Agreement), payable in
whole shares of the common stock, $1.00 par value per share, of ABC ("ABC Common
Stock"); and
WHEREAS, Acquiror and Xxxxx desire that Acquiror appoint Bank to act as
Exchange Agent to effect the exchange described herein, and Bank desires to
accept such appointment. (For convenience, hereinafter in this Agreement, Xxxxx
Shares outstanding immediately prior to the Effective Time of the Merger are
called "Shares," the certificates representing such shares are called
"Certificates," and the holders of such Certificates are called "Shareholders").
NOW, THEREFORE, based on the mutual covenants set forth herein, and other
good and valuable consideration, the adequacy and sufficiency of which is hereby
acknowledged by each party, and with the intent to be legally bound, the parties
hereto hereby represent, warrant and agree as follows:
1. Appointment. Acquiror and Xxxxx hereby appoint Bank as Exchange Agent
-----------
to make payments to Shareholders in accordance with the provisions of Article 3
of the Merger Agreement, which provisions are incorporated herein by reference,
and Bank hereby accepts such appointment and agrees to act as Exchange Agent in
accordance with the terms of Article 3 of the Merger Agreement, and the
remaining provisions of this Agreement.
2. Duties of Bank. Bank's duties as Exchange Agent shall be as set forth
--------------
in Article 3 of the Merger Agreement and as follows:
(a) Upon receipt of a Letter of Transmittal and related Certificates,
Bank shall determine whether (i) the Letter of Transmittal has been properly
completed, and (ii) the accompanying Certificate(s) are in proper order
(including proper endorsement, if required). If the Letter of Transmittal and/or
Certificates are not in proper order, Bank shall advise the presenter promptly.
(b) Bank shall also verify by examining stop transfer records to be
furnished to Bank by Xxxxx as to lost, stolen, destroyed or otherwise invalid
Certificates that no stop order has been issued against the Shares represented
by the surrendered Certificates, the registration of the Certificates should be
checked against the certified list of shareholders of record of Xxxxx Shares at
the Effective Time of the Merger.
(c) If Certificates are surrendered to Bank with instructions to
deliver the check and/or the certificates of ABC Common Stock in a name other
than the name of the record holder, Bank shall determine whether each such
Certificate is properly endorsed or accompanied by an appropriate stock power
and the signatures thereon are guaranteed by an eligible guarantor institution
(bank, broker, savings and loan association or credit union) with membership in
an approved Medallion Signature Guarantee Program pursuant to Rule 17Ad-15 of
the Securities and Exchange Commission. Where a Letter of Transmittal is signed
by a trustee, executor, administrator, guardian, officer of a corporation,
attorney-in-fact or other person acting in a fiduciary capacity and the
surrendered Certificate is not registered in the fiduciary's name, the Letter of
Transmittal must be accompanied by proper evidence of the signer's authority to
act. If more than one person is the record holder of the surrendered
Certificate, each person must sign the Letter of Transmittal. Any necessary
stock transfer stamps must be affixed to the Certificate, or funds in lieu
thereof must be furnished to Bank.
(d) Bank shall promptly notify the Acquiror if a person submits a
Letter of Transmittal to Bank and alleges that the Certificate or Certificates
representing the Shares to which the Letter of Transmittal relates have been
lost, stolen or destroyed. Bank shall then instruct such person as to the
procedure for obtaining a bond of indemnification reasonably satisfactory to
Bank and to Acquiror.
(e) Bank shall promptly notify Acquiror if Bank receives any
Certificate bearing the name of a person on the list of those persons who have
taken steps to perfect their dissenters' rights, which list shall be provided to
Bank by Acquiror and Xxxxx.
(f) After examining the Certificates which have been surrendered to
Bank and the accompanying Letters of Transmittal, Bank shall be obligated to
issue certificates for shares of ABC Common Stock (and checks for fractional
shares) and deliver same in accordance with Article 3 of the Merger Agreement
and in accordance with the duly completed Letters of Transmittal.
2
(g) Bank shall cancel all those Certificates which have been
surrendered to it and with respect to which issuance of a check and/or
certificates for shares of ABC Common Stock has been made. All such Certificates
so surrendered and cancelled shall be held by Bank until Bank's duties as
Exchange Agent shall terminate, at which time Acquiror will take delivery of the
Certificates and other documents in the possession of the Exchange Agent
concerning the records of the former Shareholders.
(h) Bank shall maintain on a continuing basis, for the term of this
Agreement, a list of Shareholders who have not yet surrendered their
Certificates.
(i) In examining and processing Certificates and Letters of Transmittal
submitted hereunder and making issuances therefor, Bank shall in all cases act
as promptly as practicable.
(j) Bank's duties as Exchange Agent shall continue until the earliest
of: (i) the payment of all amounts due to Shareholders under Article 3 of the
Merger Agreement; (ii) the notification by Acquiror to Bank that Acquiror has
appointed a new exchange agent that satisfies the qualifications specified in
Section 8(c) of this Agreement; (iii) the issuance of all certificates (and
checks for fractional shares) for shares of ABC Common Stock pursuant to the
terms of Article 3 of the Merger Agreement; (iv) a date which is one year after
the Effective Time of the Merger; or (v) the termination of the Merger Agreement
prior to the consummation of the Merger for any reason whatsoever. Upon
termination, the Exchange Agent will direct the Shareholders to the new agent,
the Acquiror, or Xxxxx, as appropriate. If Bank's duties as Exchange Agent
terminate because of the termination of the Merger Agreement prior to
consummation of the Merger, Bank shall promptly return all Certificates and
records of Xxxxx in its possession to the Shareholders and Xxxxx, respectively,
and all costs and expenses incurred in such delivery shall be paid equally by
Acquiror and Xxxxx. If notice of the appointment of a new exchange agent is
given to Bank at any time, Bank shall transfer all blank certificates then held
by it under this Agreement to the new exchange agent upon receipt of a copy of a
fully executed exchange agent agreement with such new exchange agent.
3. Special Instructions, Etc. Bank shall be entitled to request further
-------------------------
instruction of Acquiror and may rely upon any letter of instruction executed by
Acquiror. In performing its duties hereunder, Bank shall follow the same
standards, customs and practices as it follows in its stock transfer business
generally.
4. Cooperation. Every party to this Agreement shall furnish to every
------------
other party, upon request, such additional documents, information and other
material as may be reasonably required by the requesting party in order to carry
out the purpose and intent of this Agreement.
5. Liability of Bank Hereunder. Bank may rely, and shall be protected in
---------------------------
acting or refraining from acting, on any instrument reasonably believed by it to
be genuine and to have been executed or presented by the proper party or
parties. Bank may rely on and shall be protected in acting upon the written or
oral instructions, with respect to any matter relating to its actions as
Exchange Agent specifically covered by this Agreement, or supplementing or
3
qualifying any such actions, of counsel for Acquiror or of officers of Acquiror;
and shall be entitled to request further instructions from such persons to act
in accordance therewith. Bank may appoint attorneys satisfactory to it
(including attorneys of Acquiror), and the advice or opinion of such attorneys
shall constitute a full and complete authorization in respect of any action
taken, suffered or omitted by Bank hereunder in good faith and in accordance
with such advice or opinion. Bank shall not be liable for any action taken or
omitted by it in accordance with this Agreement, nor for any action taken or
omitted by it in good faith in accordance with the advice of its attorney or any
attorney for Acquiror. If Bank consults with counsel concerning any of its
duties or obligations as Exchange Agent pursuant hereto, or in case it becomes
involved in litigation on account of being Exchange Agent pursuant hereto, then
its costs, expenses and reasonable attorneys' fees shall be paid equally by
Acquiror and Xxxxx, unless Acquiror consents to pay all such costs, expenses or
fees,
Bank shall have no duty of inquiry nor incur any liability in the event of
any payment being made to Shareholders for Shares against which a "stop" order
has been reported to it by Xxxxx or to which a transfer restriction may apply,
unless it is furnished, on a timely basis, with an accurate list of Shares
(including certificate numbers) subject to such orders or restrictions.
Bank is to act hereunder solely as Exchange Agent and shall have no
liabilities or obligations except for its own gross negligence or willful
misconduct as determined by a court of competent jurisdiction.
7. Fees and Expenses of Bank. As compensation for services rendered as
-------------------------
Exchange Agent hereunder, the Bank shall be entitled to fees as set forth in
Exhibit A attached hereto and incorporated herein by this reference.
8. Miscellaneous Provisions.
------------------------
(a) This Agreement may be executed in one or more counterparts, each of
which shall be an original, and all of which together shall constitute but one
instrument. This Agreement shall become effective whenever each party shall have
executed at least one counterpart.
(b) This Agreement shall bind and inure to the benefit of the parties
and their respective successors and assigns.
(c) Bank may resign its appointment upon 30 days' prior written notice
to Acquiror. In case of the resignation of Bank hereunder, Acquiror may by
written instrument appoint as successor exchange agent any bank or trust company
located in the United States having capital and surplus at least equal to that
of Bank and which has trust powers and is a member of The Stock Transfer
Association, Inc. Such successor shall have all the rights, powers, obligations
and immunities of Bank hereunder and such additional obligations as Acquiror
shall require.
4
(d) This Agreement may not be amended in any respect to adversely
affect the rights of the Shareholders.
(e) This Agreement shall be governed by, construed and enforced in
accordance with the laws of the State of Georgia, without regard to any
principles of conflicts of laws thereof.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed on its behalf as of the date first above written.
SUNTRUST BANK, ATLANTA
By: /s/ X. X. Xxxxxxxxx
-------------------------------------
Title: X. X. Xxxxxxxxx
----------------------------------
ABC BANCORP
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------------
Title: President and CEO
----------------------------------
XXXXX BANKCORP, INC.
By: /s/ C. Xxxxx Xxxxx
-------------------------------------
Title: Vice President
----------------------------------
5
