Exhibit 10.3


 


AMENDED AND RESTATED


ESCROW AGREEMENT


 


THIS AMENDED AND RESTATED ESCROW AGREEMENT (this “Agreement”) is entered into and
effective as of the          day
of            , 2006, by
and between Congaree Bancshares, Inc., a South Carolina corporation (the “Company”),
The Bankers Bank (the “Escrow Agent”), and SAMCO Capital Markets, a division of
Penson Financial Services, Inc. (the “Agent”)


 


W I T N E S S E T H:


 


WHEREAS, the Company proposes to offer and sell (the “Offering”) up to 2,500,000
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, the Agent has agreed to assist in the sale of the Shares on a “best
efforts” basis; and


 


WHEREAS, the Company desires to establish an escrow for funds forwarded by
subscribers for 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 are 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”) in the form of checks received
by the Company 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 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 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. 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 reviewed for accuracy by the Company and Agent, and by noon of the next
business day following the receipt thereof, the Company and Agent 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 


 


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certified
by such subscriber; and (v) a copy of the subscription 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
certificates of deposit which are fully insured by the Federal Deposit
Insurance Corporation or another agency of the United States government, federal
funds, short-term securities issued or fully guaranteed by the United States
government, 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 by means of a “Sweep” or other automatic investment program invest
the Escrowed Funds in blocks of $1,000 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 “Offering Termination Date”), (i) the Escrow Agent has certified to
the Company in writing that the Escrow Agent has received at least $14,000,000
in Escrowed Funds, and (ii) the Escrow Agent has received a certificate
from the President or the Chairman of the Board of the Company that all other
conditions to the release of funds as described in the Company’s prospectus
related to the Offering as filed with the Securities and Exchange Commission
have been met, then the Escrow Agent shall deliver the Escrowed Funds to the
Company to the extent such Escrowed Funds are collected funds (the “Closing
Date”). If any portion of the Escrowed Funds is not collected funds, then the
Escrow Agent shall notify the Company of such facts and shall distribute such
funds to the Company 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.


 


(b)                                 If the Escrowed Funds do not, on or prior to
the Offering Termination 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 Offering Termination Date and
delivers written notice to the Escrow Agent of such termination (the “Termination
Notice”), the Escrow Agent shall return the Escrowed Funds, with interest and
without penalty, which are collected funds as directed in writing by the
Company to the respective subscribers in amounts equal to the subscription
amount theretofore paid by each of them. 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 the Company by the Escrow
Agent, unless the Escrow Agent is otherwise specifically directed in writing by
the Company.


 


4.                                      Distribution of Interest. If the Escrowed Funds are distributed in
accordance with Section 3(a) above, the Company shall retain the
interest. If the Company terminates the offering at any time prior to the
Offering Termination Date in accordance with Section 3(b)


 


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above,
the Escrow Agent shall return the Escrowed Funds, with interest and without
penalty, to the respective subscribers.


 


5.                                      Fee of Escrow Agent. The escrow account will accrue a service
charge of $20.00 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.


 


6.                                      Liability of Escrow Agent.


 


(a)                                  In performing any of its duties under the
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 in 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 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 thirty (30) days written 


 


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notice
to the Company. If a successor escrow agent is not appointed by Company within
thirty (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.


 


7.                                      Appointment of Successor. The Company may, upon the delivery of thirty
(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.


 


8.                                      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:


 


	
  If to the subscribers for Shares:

  	
   

  	
  To
  their respective addresses as specified in their Subscription Agreements.

  
	
   

  	
   

  	
   

  
	
  The Company:

  	
   

  	
  Congaree Bancshares, Inc.

  
	
   

  	
   

  	
  3618 Sunset Boulevard

  
	
   

  	
   

  	
  West Columbia, South Carolina 29169

  
	
   

  	
   

  	
  Attention: F. Harvin Ray, Jr.

  
	
   

  	
   

  	
  Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
  With a copy to:

  	
   

  	
  Nelson Mullins Riley &
  Scarborough, LLP

  
	
   

  	
   

  	
  999 Peachtree Street, Suite 1400

  
	
   

  	
   

  	
  Atlanta, Georgia 30309

  
	
   

  	
   

  	
  Attn: J. Brennan Ryan, Esq.

  
	
   

  	
   

  	
   

  
	
  The Escrow Agent:

  	
   

  	
  The
  Bankers Bank

  
	
   

  	
   

  	
  2410
  Paces Ferry Road

  
	
   

  	
   

  	
  600
  Paces Summit

  
	
   

  	
   

  	
  Atlanta,
  GA 30339-4098

  
	
   

  	
   

  	
  Attention:

  	
  Jo
  W. Avery

  
	
   

  	
   

  	
   

  	
  First
  Vice President

  
	
   

  	
   

  	
   

  
	
  The
  Agent:

  	
   

  	
  SAMCO
  Capital Markets, a Division of Penson

  
	
   

  	
   

  	
  Financial
  Services, Inc.

  
	
   

  	
   

  	
  1700
  Pacific Avenue, Suite 2000

  
	
   

  	
   

  	
  Dallas,
  Texas 75201

  
	
   

  	
   

  	
  Attention:
  Joseph R. Mannes, Managing Director

  



 


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  Facsimile:
  214-765-1499

  
	
   

  	
   

  	
   

  
	
  With
  a copy to:

  	
   

  	
  Jenkens &
  Gilchrist, P.C.

  
	
   

  	
   

  	
  1445
  Ross Avenue, Suite 3700

  
	
   

  	
   

  	
  Dallas,
  Texas 75202

  
	
   

  	
   

  	
  Attention:
  Michael G. Keeley

  
	
   

  	
   

  	
  Facsimile:
  214-855-4300

  



 


9.                                      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.


 


10.                               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.


 


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(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.


 


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


 


	
  COMPANY:

  	
  ESCROW AGENT:

  
	
   

  	
   

  
	
  CONGAREE
  BANCSHARES, INC.

  	
  THE
  BANKERS BANK

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:
  

  	
   

  	
   

  
	
   

  	
  F.
  Harvin Ray, Jr.

  	
   

  	
  Jo
  W. Avery

  
	
   

  	
  Chief
  Executive Officer

  	
   

  	
  First
  Vice President

  
								



 


 


AGENT


 


SAMCO
CAPITAL MARKETS, A DIVISION OF PENSON FINANCIAL SERVICES, INC.


 


	
  By:

  	
   

  	
   

  
	
   

  	
  Joseph
  R. Mannes

  
	
   

  	
  Managing
  Director

  
				



 


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