Exhibit 10.6


 


SOUTH
CAROLINA BANK AND TRUST


 


RESTATED
ESCROW AGREEMENT


 


Relating to
Subscriptions for Shares of  Coastal
Carolina Bancshares, Inc.


 


This Restated Escrow
Agreement (the “Restated Agreement”) is made and entered into as of the 10th
day of September, 2008, by and between Coastal Carolina Bancshares, Inc., a
South Carolina corporation  (the “Company”),
South Carolina Bank and Trust (the “Escrow Agent”), and Commerce Street
Capital, LLC (the “Agent”).


 


WHEREAS, the Company proposes to offer and sell
(the “Offering”) up to 3,000,000 shares of Common Stock, $0.01 par value per
share (the “Shares”), to investors at $10.00 per Share pursuant to a public
offering registered pursuant to the Securities Act of 1933;


 


WHEREAS, the Company and the Escrow Agent
previously entered into an Escrow Agreement dated June 6, 2008 (the “Original
Agreement”);


 


WHEREAS, since the date of the Original
Agreement, the Company has entered into an Agency Agreement dated
                      ,
2008, with the Agent under which the Agent has been engaged to act as sales
agent and assist in the sale of the Shares on a “best efforts” basis; and


 


WHEREAS, as a result, it is desired that the
Agent become a party to the escrow arrangement for subscription funds received
in the Offering, and the Company, the Escrow Agent and the Agent desire to
modify and restate the Original Agreement by entering into this Restated
Agreement.


 


NOW,
THEREFORE, in
consideration of the premises and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:


 


1.              ESCROW DEPOSIT.


 


a.                  Each investor will deliver the funds in
payment for the Shares purchased by such investor, as set forth in the
Subscription Agreement, to (i) the Agent, who will promptly deliver the funds
to the Company for further delivery to the Escrow Agent, or (ii) directly to
the Company for further delivery to the Escrow Agent.  The Company will collect and deliver to the
Escrow Agent appropriate IRS W-9 Forms for each investor.  Checks should be made payable to “South
Carolina Bank and Trust, as Escrow Agent for Coastal Carolina Bancshares, Inc.”
and sent to the Escrow Agent promptly.  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 in whole or in part for any
reason and upon such rejection, it shall notify and instruct the Escrow Agent
in writing to return the appropriate amount of Escrowed Funds by check made
payable to the investor.  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 promptly reviewed for accuracy by the Company and, immediately
thereafter, the Company shall promptly deliver to the Escrow


 

















 


Agent the following
information: (i) the name and address of the investor; (ii) the number of
Shares subscribed for by such investor; (iii) the subscription price paid by
such investor; (iv) the investor’s tax identification number certified by such
investor; and (v) a copy of the investor’s Subscription Agreement.


 


2.              INVESTMENT OF ESCROW
DEPOSIT.  All funds received by the Escrow Agent
pursuant to this Restated Agreement shall be invested in compliance with
applicable laws, rules and regulations, including Rule 15(c)(2-4) under the
Securities Exchange Act of 1934 and applicable requirements of regulatory
agencies.  To the extent permissible
thereunder, such funds may be invested in deposit accounts or certificates of
deposit which are 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, provided such
investments may be liquidated without penalty within one business day.  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 an interest
bearing account that complies with such laws, rules, regulations and
requirements.  Interest will begin
accruing no later than the next business day after receipt.  Incoming wire transfers received by 6:00 P.M.
(ET) will be posted as soon as feasible.  Incoming wire transfers received without a
Subscription Agreement will be posted, but returned after five business days if
a Subscription Agreement has not been received by the Company. 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.              CERTIFICATION OF FUNDS.  Upon receipt of (i) funds in the amount of at
least $21 million in payment for Shares, less the amount certified by the
Company to have been received by it as subscriptions from organizers, founders
and executive officers (which do not have to be held in escrow as of the date
of such certification) and (ii) at the direction of Company, the Escrow Agent
shall certify to the appropriate regulatory authorities that the Escrow Agent
holds a minimum of $21 million less the amount certified by the Company to have
been received by it as subscriptions from organizers, founders and executive
officers (which do not have to be held in escrow as of the date of such
certification) on deposit in the escrow account for the purchase of Shares in
Company.


 


4.              DISTRIBUTION OF FUNDS.  The Escrow Agent shall distribute the funds
held by it under this Restated Agreement as follows:


 


a.                  Upon receipt of (i) funds in the amount
of at least $21 million in payment for Shares, (ii)  receipt of a certificate from the Agent that
all of the conditions set forth in the Agency Agreement between the Company and
the Agent have been satisfied or otherwise waived, and (iii) a certificate
executed by the Company’s CEO or CFO attesting that all other conditions to the
release of funds as described in the Company’s prospectus pertaining to the
offering, including but not limited to approval of the appropriate bank
regulators, have been met and directing the Escrow Agent to distribute all
funds then held by the Escrow Agent pursuant to this Restated Agreement to the
Company, then the Escrow Agent shall deliver the funds, by cashier’s check,
wire transfer, 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 4.  The parties anticipate that there may be
multiple distributions of escrowed funds and that both the Agent and the
Company will deliver a certificate as contemplated above prior to each such
distribution.  No distribution will be
made until the last investor deposit to be distributed in that distribution 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 Restated Agreement.  The
Escrow Agent was provided a copy of the form of Subscription Agreement at the
signing of the Original 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 $21 million or shall have received no
direction or certificate from the Company pursuant to either subsection (a) or
this subsection (b) of this Section 4 on or prior to initial closing date of  the Offering as described in the Company’s
prospectus (unless the Company notifies the Escrow Agent that the Offering has
been extended), the Escrow Agent shall distribute such funds to the investors,
without interest, pursuant to subsection (c) of this Section 4.  The Company may give notice to the Escrow
Agent that the Company is canceling its offer of the Shares prior to the
ultimate expiration date of the Offering as described in the Company’s
prospectus (beyond such date the Offering may not be extended by the Company),
and the Escrow Agent shall distribute the funds to the investors in accordance
with this Restated Agreement.


 


c.               Any income earned on the investment of
funds received under this Restated 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 6 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.


 


5.              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.


 


6.              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
Restated 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 4(c) hereof, including all legal fees and expenses incurred
in the review of this Restated Agreement.


 


7.              LIABILITY OF ESCROW
AGENT.


 


a.                  In performing any of its duties under the
Restated 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 Restated 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 in this Restated 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 Restated Agreement.


 


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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 limitation, any litigation arising from this
Restated Agreement or involving the subject matter thereof; except, that if the
Escrow Agent shall be found guilty of willful default, misconduct or gross
negligence under this Restated 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 party by
reason of this Restated 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 Restated Agreement, and to file such legal proceedings as it
deems appropriate, and shall thereupon be discharged from all further duties
under this Restated 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.


 


8.              RESIGNATION.  The Escrow Agent may resign at any time upon
fifteen 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
Restated Agreement.  The Escrow Agent, if
it has not received such an instrument of acceptance prior to the expiration of
fifteen 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 Restated 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 and such successor agent
so appointed shall succeed to all of the rights, duties and responsibilities of
the Escrow Agent hereunder.


 


9.              ESCROW AGENT’S FEES.   There will be
no fees charged by the Escrow Agent for the administration and execution of
this Restated Agreement.


 


10.       NOTICE.  All notices, certificates, requests, demands
and other communications or deliveries 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 (or other means, if unanimously
agreed to by the parties in writing):


 


	
  To the Escrow Agent:

  	
   

  	
  Attention: Alex Shuford

  
	
   

  	
   

  	
  South Carolina Bank and
  Trust

  
	
   

  	
   

  	
  Post Office Box 1030

  
	
   

  	
   

  	
  Columbia, SC 29202

  
	
   

  	
   

  	
   

  
	
  To the Investors:

  	
   

  	
  To the persons named
  and at the Addresses listed in the Subscription Agreements

  
	
   

  	
   

  	
   

  
	
  To Company:

  	
   

  	
  Attention: Holly L.
  Schreiber, CFO

  
	
   

  	
   

  	
  Coastal Carolina
  Bancshares, Inc.

  
	
   

  	
   

  	
  Post Office Box 2969

  
	
   

  	
   

  	
  Myrtle Beach, SC 29578

  



 


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  To Agent:

  	
   

  	
  Attention: Charles W.
  Ingram

  
	
   

  	
   

  	
  Commerce Street
  Capital, LLC

  
	
   

  	
   

  	
  1700 Pacific Avenue

  
	
   

  	
   

  	
  Suite 2020

  
	
   

  	
   

  	
  Dallas, Texas 75201

  



 


Any party may, by notice
given hereunder, designate any future or different addresses to which
subsequent notices, certificates, and other communications shall be sent.


 


11.       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
of 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 in the Company’s registration statement and related prospectus by
acknowledgment that the Escrow Agent has agreed to serve as Escrow Agent for
the limited purposes herein set forth.


 


12.       ENTIRE AGREEMENT.  This Restated Agreement sets forth the entire
agreement and understanding of the parties with regard to the escrow
transaction and supersedes all prior agreements, arrangements and
understandings relating to the subject matter hereof.


 


13.       AMENDMENT.  This Restated 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 party 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
party of any condition, or of the breach of any term contained in this Restated
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 Restated
Agreement.


 


14.       BINDING EFFECT.  This Restated Agreement shall inure to the benefit of
and shall be binding upon the parties hereto and their respective heirs,
executors, successors, administrators and assigns.  The Escrow Agent shall be bound only by the
terms of this Restated Agreement and shall not be bound by or incur any
liability with respect to any other agreement or understanding between the
parties with respect to the subject matter hereof except as herein expressly
provided herein.  The Escrow Agent shall
not have any duties hereunder except those specifically set forth herein.


 


15.       ASSIGNMENT.  No interest of any party to this Restated
Agreement shall be assignable in the absence of a written agreement by and
between the parties to this Restated Agreement, executed with the same
formalities as this original Restated Agreement.


 


16.       SEVERABILITY.  In the event any court of competent
jurisdiction shall hold any provision of this Restated Agreement invalid or
unenforceable, such holding shall not invalidate or render unenforceable any
other provision hereof.


 


17.       EXECUTION OF
COUNTERPARTS.  This Restated 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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18.       APPLICABLE LAW.  This Restated Agreement shall be construed and
governed exclusively by the laws of the State of South Carolina, without regard
to its principles of conflicts of law.


 


19.       HEADINGS.  The headings used in this Restated Agreement have been
prepared for the convenience of reference only and shall not control, affect
the meaning of, or be taken as an interpretation of any provisions of this
Restated Agreement.


 


[Signatures
on following page]


 


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IN WITNESS
WHEREOF, the parties have duly executed this Restated Agreement as of the date
first written above.


 


	
   

  	
  ESCROW
  AGENT:  SOUTH CAROLINA BANK AND TRUST

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Alex Shuford

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Alex
  Shuford, Executive Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  COMPANY:

  	
  COASTAL
  CAROLINA BANCSHARES, INC

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Holly L. Schreiber

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Holly
  L. Schreiber, Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  AGENT:

  	
  COMMERCE
  STREET CAPITAL, LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Charles W. Ingram

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Charles
  W. Ingram, Senior Vice President

  
				



 


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