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EXHIBIT 10.4
March 15, 2000
Sweetwater Financial Group, Inc.
Cobb County, GA
Ladies and Gentlemen:
We are pleased to offer the following description of the terms our services to
you in connection with the organization of a de novo bank and bank holding
company to be located in Cobb County, GA. If the terms of our engagement meet
with your approval, please so indicate by signing the enclosed copy of this
letter and returning ft to us for our files. Our engagement will cover the
following:
Assistance With Regulatory Process
We understand that you wish to file a Charter Application with the Georgia
Department of Banking and Finance (the "DBF") or, alternatively, the Office of
the Controller of the Currency (the "OCC") (collectively "the regulators") to
organize a new commercial bank (the "Charter Application") and simultaneously
file an application with the Federal Deposit Insurance Corporation (the "FDIC")
for deposit insurance. We also understand that you wish to file an Application
to become a Bank Holding Company with the Board of Governors of the Federal
Reserve System (the "Fed").
We will determine the specific regulatory steps needed to be taken before
submitting your application and advise you about such matters as the filing
fees, publication of notices, and brief you about the policies and procedures
generally applied by the regulators and the FDIC to evaluate such applications.
We will be responsible for preparing a market analysis for your new bank to
demonstrate that there is a need for the bank and that a new bank will enhance
the convenience of the community. The analysis will include demographic data for
the proposed bank's primary service area, information on your competition and
other relevant information and data which is required to be set forth in the
applications. The market analysis will be contained in and part of the Charter
Application.
We will prepare a business plan for the new bank including the specific types of
proposed services to be offered by your new bank and the pricing of same. The
business plan will also define the appropriate capital structure for the new
bank and the supporting rationale for the structure.
We will provide draft policies and procedures to cover administrative functions
of the new bank including, but not limited to, lending, investment, security and
audit with a view toward assisting
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the new bank in passing the field examination conducted by the regulators, and
the FDIC before the applications will be approved. It will be the responsibility
of bank management, under the direction of the proposed board of directors, to
revise and customize the policies and procedures to the needs of your bank.
If you so desire and at the time of preparing the Charter Application, we will
assist with the preparation of an Application for a Branch Office (the "Branch
Application".) We will describe the primary service area for the proposed
branch; describe the proposed premises; its impact on the Bank's capital and
earnings; and, other relevant information that we deem appropriate. We will also
advise you of requisite filing fees and legal notice requirements.
We will assist in preparing Organizers' confidential Interagency Biographical
and Financial Report (the "IBF"), which must be filed with the Charter
Application, to ensure that such information complies as to form and
completeness with customary regulators, FDIC and Fed review standards. Of
course, it will be incumbent upon each Organizer to actively participate in the
preparation of this statement.
We will assist in the preparation of the FR Y-1. We will assist in the
preparation of an Application to become a Bank Holding Company (collectively the
"BHC App") and in preparing an appropriate pro forma balance sheet and income
statements, as required by the Fed. We will assist you in responding to any
questions or requests for additional information from the Fed concerning this
application.
We will help you respond to any questions about the applications from the
regulators, the FDIC and the Fed and work expeditiously to provide additional
information, clarifications, and modifications, as necessary, to the
applications so that the applications are deemed "technically complete" and
"accepted" for processing.
We will work with your legal counsel in the preparation of organizational
documents for the new bank including Articles of Association, by-laws and other
initial documents required to be filed with the regulators. The legal fees will
be your direct responsibility and are not part of our compensation.
Upon Charter Application approval, we will provide Telephone Consultation
Service for the board of directors and executive management of the bank and bank
holding company. The scope of the telephone consultation shall be limited to
questions regarding bank and bank holding company regulatory matters,
organizational structure and bank and bank holding company strategy. There will
be no written report(s) developed as a result of the Telephone Consultation
Service. The Telephone Consultation Service shall be limited to the 60
consultant hours or twelve months from the date of Charter Application approval,
whichever is less.
In summary, we will assist you with the content, presentation and format of the
charter and deposit insurance applications and biographical and financial
statements. You recognize and understand that the regulators and the FDIC expect
you to be completely familiar and in agreement with the content of the charter
and deposit insurance applications, and that Bank
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Resources cannot and does not guarantee that the regulators will approve the
proposed bank's charter or that the FDIC will award deposit insurance.
Term of Engagement
With the exception of the Telephone Consultation Service described above., we
will continue to provide the aforementioned services until such time as the
proposed bank obtains charter approval from either the regulators and deposit
insurance from the FDIC. You understand and agree, however, that if our services
are required in conjunction with any protests by competing financial
institutions; or, as result of changes in the composition of the organizing
group; or, due to complications with any proposed organizer, director or
proposed executive officer or, due to modifications in the bank's business plan
after the Charter Application is filed with the regulators and FDIC then such
services are considered beyond the scope of this engagement letter. If such
additional services are needed, we will bill you on the basis of the number of
hours provided and at our normal and customary rates per hour.
You may, however, elect to terminate this engagement at any time so long as you
are current in the payment of all fees and expense reimbursements required in
the section entitled "Compensation" below and current in the payment of all fees
and expenses (both billed and incurred) in the event that additional services
described in the preceding paragraph are provided. Any such termination will
become effective immediately upon receipt by us of a written notice of
termination. If we have completed the Charter Application and related materials,
then such termination will not alter the obligation of the organizers to pay all
professional fees contemplated in the following description of "Compensation."
You understand and agree that all payments received prior to such termination
will not be subject to refund. In the event of a termination, we will cease
providing you with all services.
Compensation
We will prepare the bank's Charter Application and deposit insurance
application, which includes the combination feasibility study and business plan,
the related financial projections for the bank's first five years, and
assistance with the preparation of IBF Reports. We will also attend up to six
organizational meetings and attend the pre-filing meeting with the regulators
staff. For the Charter Application services you agree to pay us professional
fees in the amount of $47,500.00 as follows: an initial retainer of $2,500.00;
$6,000.00 on April 1, 2000; $6,000.00 on the first day of each month for six
months thereafter, and, $3,000.00 when the bank holding company application is
filed with the Federal Reserve. Upon the filing of the Charter Application, you
shall also pay $250.00 per Organizer/Director. You agree to pay $300.00
immediately for each Organizer or Director added after the Charter Application
has been filed. For the Branch Application service you shall pay us $5,000.00
when the bank holding company or the bank "breaks escrow" for its stock
subscription.
Once the Bank receives final charter approval from the regulators, you shall
grant to us stock options ("Options") to purchase 8,700 shares of the Holding
Company's common stock. The
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Options shall expire seven years from the date of award (or the opening of the
Bank, whichever is later) and the price each share of stock purchased shall be
$10.00 (the "exercise price").(1)
Notwithstanding anything to the contrary as described above, the Options shall
be awarded under substantially the same terms and conditions as any stock
warrants or stock options which may be awarded to the Organizers of the Bank,
officers or the Board of Directors. However the Options contemplated herein
shall be subject to "corporate reorganizations" (which may result in a
proportionate increase or decrease in the number of Options and/or the exercise
price); and/or, exercisable in whole or in part. In the event, you do not
organize a bank holding company; the bank shall issue the Options contemplated
herein.
If, for any reason, the Options described above are not awarded within six
months of the date the Bank is chartered or thirty days after the issuance of
stock certificates, whichever is earlier, then the Company or the Bank shall
immediately pay Bank Resources, Inc. an amount equal to $1.35 per option.
In addition to the professional fees described above, you will be invoiced on or
about the fifth business day of each month for all expenses incurred for your
account including those incurred in connection with pre organization activities.
We expect to incur such expenses as travel, demographic and peer data, express
(Federal Express type delivery) and local courier service, duplication and
binding of numerous copies of the applications and any other related out of
pocket expenses. (Telephone and facsimile charges shall be our responsibility.)
You shall pay a client maintenance fee of $35.00 per month starting April 1,
2000 and continue until the Bank opens for business. Also, we have incurred
expenses of approximately $250.00 on your behalf in connection with pre
organization activities. You will be invoiced separately for the pre
organization expenses and such invoice will be due and payable upon receipt.
All invoices shall be due and payable upon receipt. A two percent (2%)
administrative fee will be applied to all invoices. You may take a discount
equal to the amount of the administrative fee if we receive your payment within
ten (10) days of invoice date. We apply a late fee of one percent (1%) per
month to all unpaid invoices.
Our fees are not contingent on whether the Charter Application is granted.
Accordingly, we do not warrant or guarantee that the regulators will grant a
charter on your behalf.
Miscellaneous
Because we recognize that our engagement by you will necessarily involve
exposure to confidential information with respect to your proposed bank and the
organizers and directors thereof, we agree to hold such information in
confidence and will not disclose same to third
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(1) The number of options and exercise price is based on an initial offering
price per share of $10.00. Should the initial offering price be different than
$10.00 per share, then the exercise price and the number of options shall be
increased or decreased proportionately, as the case may be.
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parties without your prior written consent. Likewise, the terms of our
engagement by you and the proposed bank are confidential. No disclosure may be
made to a third party without our prior written consent, except by reason of
legal, accounting, or regulatory requirements.
You understand and agree that the terms of our engagement will be governed under
Georgia law and that this letter sets forth all of the terms and conditions with
respect to such engagement. Any amendment or modification of our engagement must
be made in writing and signed by each of us. Neither party to this engagement
may bring an action more than one year after the cause of action arises.
You agree to indemnify and hold our firm and its employees harmless from any and
all liabilities, costs, and expenses relating to this engagement, and expenses
(and those of our legal counsel) incurred by reason of any action taken or
committed to be taken by us in good faith. In no event will we be liable for
incidental or consequential damages even if we have been advised of the
possibility of such damages.
We very much look forward to working with you on this project and trust that
this letter meets with your approval. Of course, please do not hesitate to
contact the undersigned should you have any questions regarding this matter.
BANK RESOURCES, INC.
By: /s/ E. Byron Richardson
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E. Byron Richardson
Principal
The services, terms and fees described above are appropriate and acceptable to
the Organizers of the proposed Bank, its proposed holding company and Cobb
Financial Group on this the effective date hereof the 21st day of March 2000. In
a meeting held on March 20, 2000, I was authorized by the Organizers to execute
this letter, pay the retainer described above and thereby engage Bank Resources,
Inc.
/s/ Paul Wilkerson April 4, 2000
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(authorized signature) (Date)
Paul Wilkerson
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(printed name)
