EXHIBIT 99.4
EXCHANGE AGENT AGREEMENT
THIS EXCHANGE AGENT AGREEMENT (the "Agreement") dated as of June 19, 2001
is by and among SUNTRUST BANK, a Georgia banking corporation whose principal
place of business is at 00 Xxxx Xxxxx, Xxxxxxx, Xxxxxxx 00000 ("Exchange
Agent"), ABC BANCORP, a Georgia corporation ("Acquiror"), and GOLDEN ISLES
FINANCIAL HOLDINGS, INC., a Georgia corporation ("Golden Isles").
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, Acquiror and Golden Isles are parties to an Agreement and Plan of
Merger dated as of February 20, 2001 (the "Merger Agreement"). Following the
satisfaction or waiver of certain conditions set forth in the Merger Agreement,
Golden Isles 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 Golden Isles common stock, no par value per share ("Golden Isles Shares"),
have been delivered to the Exchange Agent 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 Golden Isles
Shares, each Golden Isles 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 Aggregate Merger Consideration (as defined in the Merger Agreement),
payable in cash and whole shares of the common stock, $1.00 par value per share,
of ABC ("ABC Common Stock") as more fully described in the Merger Agreement; and
WHEREAS, Acquiror and Golden Isles desire that Acquiror appoint Exchange Agent
to act as Exchange Agent to effect the exchange described herein, and Exchange
Agent desires to accept such appointment. (For convenience, hereinafter in this
Agreement, Golden Isles 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 Golden Isles hereby appoint Exchange Agent 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 Exchange Agent 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 Exchange Agent. Exchange Agent'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,
Exchange Agent 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, Exchange Agent shall advise the
presenter promptly.
(b) Exchange Agent shall also verify by examining stop transfer records to be
furnished to Exchange Agent by Golden Isles 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 share registry books of Golden Isles
at the Effective Time of the Merger.
(c) If Certificates are surrendered to Exchange Agent 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, Exchange Agent 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 Exchange Agent.
(d) Exchange Agent shall promptly notify the Acquiror if a person submits a
Letter of Transmittal to Exchange Agent and alleges that the Certificate or
Certificates representing the Shares to which the Letter of Transmittal relates
have been lost, stolen or destroyed. Exchange Agent shall then instruct such
person as to the procedure for obtaining a bond of indemnification reasonably
satisfactory to Exchange Agent and to Acquiror.
(e) Exchange Agent shall promptly notify Acquiror if Exchange Agent 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 Exchange Agent by Acquiror and Golden Isles.
(f) After examining the Certificates which have been surrendered to Exchange
Agent and the accompanying Letters of Transmittal, Exchange Agent shall be
obligated to issue cash and certificates for shares of ABC Common Stock (and
checks for fractional shares) and
2
deliver same in accordance with Article 3 of the Merger Agreement and in
accordance with the duly completed Letters of Transmittal.
(g) Exchange Agent shall cancel all those Certificates which have been
surrendered to it and with respect to which issuance of a check and certificates
for shares of ABC Common Stock has been made. All such Certificates so
surrendered and cancelled shall be held by Exchange Agent until Exchange Agent'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) In examining and processing Certificates and Letters of Transmittal
submitted hereunder and making issuances therefor, Exchange Agent shall in all
cases act as promptly as practicable.
(i) Exchange Agent'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 Exchange Agent
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 cash and 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 or the Acquiror, as appropriate. If Exchange
Agent's duties as Exchange Agent terminate because of the termination of the
Merger Agreement prior to consummation of the Merger, Exchange Agent shall
promptly return all Certificates and records of Golden Isles in its possession
to the Shareholders and Golden Isles, respectively, and all costs and expenses
incurred in such delivery shall be paid equally by Acquiror and Golden Isles.
If notice of the appointment of a new exchange agent is given to Exchange Agent
at any time, Exchange Agent shall transfer all cash and 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. Exchange Agent 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, Exchange Agent 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 Exchange Agent Hereunder. Exchange Agent 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. Exchange Agent 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
3
supplementing or 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. Exchange Agent 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 Exchange Agent hereunder
in good faith and in accordance with such advice or opinion. Exchange Agent
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
Exchange Agent 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 Golden Isles,
unless Acquiror consents to pay all such costs, expenses or fees.
Exchange Agent 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 Golden Isles 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.
Exchange Agent 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 Exchange Agent. As compensation for services
-----------------------------------
rendered as Exchange Agent hereunder, the Exchange Agent shall be entitled to a
fee equal to $15 per Letter of Transmittal received by Exchange Agent pursuant
to the terms of this Agreement.
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. Executed counterparts may be delivered
via facsimile transmission.
(b) This Agreement shall bind and inure to the benefit of the parties and
their respective successors and assigns.
(c) Exchange Agent may resign its appointment upon 30 days' prior written
notice to Acquiror. In case of the resignation of Exchange Agent 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 Exchange Agent 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 Exchange Agent 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
By: /s/ Xxx Xxxxxxx
----------------------------------------
Title: Vice President
-------------------------------------
ABC BANCORP
By: /s/ Xxxxxxx X. Xxxxxxxxx
----------------------------------------
Title: Chairman and Chief Executive Officer
-------------------------------------
GOLDEN ISLES FINANCIAL HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Title: President
-----------------------------------
5
