1
Exhibit 10.13
ESCROW AGREEMENT
THIS AGREEMENT entered into this 30th day of January, 1996, among First
Commercial Bancorp, Inc. (the "Company"), a corporation organized under the laws
of the state of Delaware, State Street Bank and Trust Company, a Massachusetts
licensed trust company (the "Escrow Agent") and the First National Bank of
Boston, a national banking association (the "Subscription Agent").
WHEREAS, the Company intends to offer to its stockholders of record as
of October 6, 1995 (the "Rights Record Date") rights to purchase (the
"Stockholder Rights") a total of up to 50,000,000 shares of its Common Stock,
$0.01 par value per share (the "Shares") for an offering price of $0.10 per
Share (the "Offering");
WHEREAS, the Company will file Pre-effective Amendment No. 1 to its
Registration Statement on Form S-1 (No. 33-92928) (the "Registration Statement")
with the Securities and Exchange Commission ("SEC") with respect to the
Offering, and the Offering shall proceed on such terms and conditions as shall
be set forth in the definitive Registration Statement and Prospectus declared
effective by the SEC;
WHEREAS, in connection with the Offering of the Shares, the Escrow
Agent has agreed to establish an escrow account (the "Escrow Account") at its
principal corporate trust office in Boston, MA;
WHEREAS, subscribers for the Shares (the "Subscribers") will be
required to forward to Subscription Agent simultaneously with payment for their
Shares duly completed and executed Subscription Rights Certificates in
substantially the form set forth in the Registration Statement;
WHEREAS, the Offering also will be accompanied by a dividend exchange
offering, a public offering only in California and an offering to a standby
purchaser, as set forth in the Registration Statement;
WHEREAS, the Subscription Agent will deposit subscription funds (the
"Subscription Funds") into the Escrow Account, which the Escrow Agent shall hold
and invest as herein provided; and
WHEREAS, any undefined terms used herein shall have the meanings
assigned them in the Registration Statement;
NOW, THEREFORE, it is agreed as follows:
The Escrow Agent agrees to receive from the Subscription Agent the
Subscription Funds and to disburse such Funds to the Company and/or the
Subscription Agent in accordance with the following conditions:
2
1. THE ESCROW ACCOUNT. The Escrow Agent agrees to accept for deposit
into an Escrow Account (the "Escrow Account") the Subscription Funds received
from the Subscription Agent in respect of purchases of the Shares. The
Subscription Funds held in the Escrow Account will be subdivided into a Basic
Subscription Fund, into which Subscription Funds received in respect of the
Basic Subscription Privilege will be deposited, and an Oversubscription Fund,
into which Subscription Funds received in respect of the Oversubscription
Privileged will be deposited. The Subscription Agent will identify to the Escrow
Agent which amounts are to be deposited into the Basic Subscription Fund and
which into the Oversubscription Fund. The Escrow Agent will record with each
such deposit the name, address and social security or taxpayer identification
number (if any) of each Subscriber, and the amount being deposited for each
Subscriber and the Fund into which such subscription has been deposited.
2. RELEASE OF ESCROW. The Escrow Agent shall, subject to further
provisions hereof and upon receipt of written instructions from the Company or
its duly authorized representative, and without deduction, other than amounts,
if any, required to be withheld under applicable law, release the Subscription
Funds to the Company and/or to the Subscription Agent as provided in paragraph
3, and pay interest thereon as provided in paragraph 5, of this Agreement.
3. RELEASE OF SUBSCRIPTION FUNDS.
(a) The Escrow Agent shall release the Subscription Funds
deposited into the Basic Subscription Fund to the Company by 2:00 p.m. Eastern
time on the 15th and last day of each month during the continuation of the
Offering upon the Company's written certification to the Escrow Agent that the
conditions precedent to the release of the Funds have been satisfied and that no
amounts thereof are required to be refunded to the Subscription Agent in respect
of rejected or reduced subscriptions. Funds held in the Escrow Account in
respect of subscriptions so rejected or reduced shall be returned to the
Subscription Agent and returned to subscribers in accordance with paragraph 4
hereof. The Escrow Agent may conclusively presume, without making further
inquiry, the accuracy of any such written certification delivered by the Company
to the Escrow Agent.
(b) The Escrow Agent shall maintain in the Escrow Account all
Subscription Funds held in the Oversubscription Fund until the Rights Expiration
Date, at which time the Subscription Agent shall advise the Escrow Agent of the
necessity to effect any prorations or reductions in such subscriptions or any
rejected subscriptions and shall instruct the Escrow Agent, in a form
countersigned by the President or Chief Financial Officer of the Company, as to
the amount of Subscription Funds to be disbursed to the Company and to the
Subscription Agent, if any, resulting from prorated, reduced or rejected
subscriptions. The Escrow Agent may conclusively presume the accuracy of any
such written instructions delivered by the Subscription Agent and countersigned
by the Company.
4. REJECTED OR REDUCED SUBSCRIPTIONS. The Escrow Agent shall, upon
receipt of written notice from the Subscription Agent or the Company of the
rejection of a subscription or a reduction of a subscription, return the
subscription payment or portion thereof without deduction or interest
3
thereon to the Subscription Agent and any interest earned thereon shall be
payable to the Company as provided in paragraph 5 of this Agreement.
5. INTEREST ON ESCROW FUNDS. In the event all conditions precedent as
defined in Paragraph 2 are met, the total amount of Subscription Funds along
with any interest earned, net of mutually agreed escrow related expenses, shall
be released to the Company.
6. CONCERNING THE ESCROW AGENT.
(a) The Escrow Agent (i) shall not be charged with any
knowledge or responsibility for any of the agreements referred to herein but
shall be obligated only for the performance of such duties as are specifically
set forth in this Escrow Agreement; (ii) shall not be obligated to take any
legal or other action hereunder which might in its judgment involve expense or
liability unless it shall have been furnished with indemnity acceptable to it;
(iii) may rely on and shall be protected in acting or refraining from acting
upon any written notice, instruction, instrument, statement, request or document
furnished to it hereunder and believed by it to be genuine and to have been
signed or presented by the proper person, and shall have no responsibility for
determining the accuracy thereof; and (iv) may consult counsel satisfactory to
it, including house counsel, and the advice or opinion of such counsel shall be
full and complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in accordance with the
advice or opinion of such counsel.
(b) Neither the Escrow Agent nor any of its directors,
officers or employees shall be liable to anyone for any action taken or omitted
to be taken by it or any of its directors, officers or employees hereunder
except in the case of gross negligence, bad faith or willful misconduct. The
Company covenants and agrees to indemnify the Escrow Agent and hold it harmless
without limitation from and against any loss, liability or expense of any nature
incurred by the Escrow Agent arising out of or in connection with this Escrow
Agreement or with the administration of its duties hereunder, including, but not
limited to, legal fees and expenses and other costs and expenses of defending or
preparing to defend against any claim of liability in the premises, unless such
loss, liability or expense shall be caused by the Escrow Agent's or its
directors', officers' or employees' gross negligence, bad faith or willful
misconduct. In no event shall the Escrow Agent be liable for indirect, punitive,
special or consequential damages.
(c) The Escrow Agent shall have no more or less responsibility
or liability on account of any action or omission of any book-entry depository
or subescrow agent employed by the Escrow Agent than any such book-entry
depository or subescrow agent has to the Escrow Agent, except to the extent that
such action or omission of any book-entry depository or subescrow agent was
caused by the Escrow Agent's own gross negligence, bad faith or willful
misconduct.
(d) The Company agrees to pay the Escrow Agent's reasonable
compensation for its normal services hereunder in accordance with the attached
fee schedule, which may be subject to change on an annual basis and upon sixty
(60) days' written notice. The Escrow Agent shall be entitled to reimbursement
on demand for all expenses incurred in connection with the administration
4
of the escrow created hereby which are in excess of its compensation for normal
services hereunder, including without limitation, payment of any legal fees and
expenses incurred by the Escrow Agent in connection with the resolution of any
claim by any party hereunder.
(e) The Escrow Agent may at any time resign as Escrow Agent
hereunder by giving thirty (30) days prior written notice of resignation to the
other parties hereto. Prior to the effective date of the resignation as
specified in such notice, the Company will issue to the Escrow Agent a written
instruction authorizing redelivery of the Subscription Funds to a successor
escrow agent that it selects subject to the reasonable consent of the
Subscription Agent. Such successor escrow agent shall be a bank or trust
company, organized and existing under the laws of the United States or any state
thereof, subject to examination by state or federal authorities, and have
capital and surplus in excess of $50,000,000. If, however, the Company shall
fail to name a successor escrow agent within twenty (20) days after the notice
of resignation from the Escrow Agent, the Subscription Agent shall be entitled
to name such successor escrow agent. If no successor escrow agent is named by
the Company or the Subscription Agent, the Escrow Agent may apply to a court of
competent jurisdiction for the appointment of a successor escrow agent. The
provisions of paragraphs (b) and (c) of this Section 6 and Section 14 shall
survive the resignation or removal of the Escrow Agent or the termination of
this Escrow Agreement.
(f) DISPUTE RESOLUTION. It is understood and agreed that
should any dispute arise with respect to the delivery, ownership, right of
possession, and/or disposition of the Subscription Funds, or should any claim be
made upon such Funds by a third party, the Escrow Agent upon receipt of a
written notice of such dispute or claim by the parties hereto or a third party,
is authorized and directed to retain in its possession without liability to
anyone, all or any of said Funds until such dispute shall have been settled
either by the mutual agreement of the parties involved or by a final order,
decree or judgment of a court in the United States of America, the time for
perfection of an appeal of such order, decree or judgment having expired. The
Escrow Agent may, but shall be under no duty whatsoever to, institute or defend
any legal proceeding which relate to the Subscription Funds.
(g) INVESTMENT OF SUBSCRIPTION FUNDS: The Escrow Agent shall
invest the Subscription Funds as directed in writing by the Company in any of
the following:
(i) short-term obligations issued or guaranteed by the
United States of America or any State or any agency thereof or repurchase
agreements fully secured by such obligations;
(ii) short-term certificates of deposit; or
(iii) money market funds which invest in the instruments
specified in (i) and/or (ii) hereof.
(h) MISCELLANEOUS: The Escrow Agent may execute any of its
powers or responsibilities hereunder and exercise any rights hereunder either
directly or by or through its
5
agents or attorneys. Nothing in this Escrow Agreement shall be deemed to impose
upon the Escrow Agent any duty to qualify to do business or to act as fiduciary
or otherwise in any jurisdiction other than The Commonwealth of Massachusetts.
7. NOTICES. All notices required to be given hereunder shall be in
writing and shall be deemed given when received at the following addresses:
If to the Company: First Commercial Bancorp, Inc.
000 Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx, President
With a copy to: Lillick & Xxxxxxx
Xxx Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attention: R. Xxxxx Xxxx, Esq.
If to the Subscription Agent: The First National Bank of Boston
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
Attention: Xxxxx Xxxx
If to the Escrow Agent: State Street Bank and Trust Company
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxx Xxxxxxxxx, Corporate Trust
Department, 4th Floor
8. COUNTERPARTS. This Agreement may be executed in one or more
counterparts and each counterpart shall constitute an original. All of such
counterparts shall constitute one Agreement.
9. APPLICABLE LAWS. This Escrow Agreement shall be construed in
accordance with and governed by the laws of the State of Delaware.
10. FORCE MAJEURE. No party hereto shall be responsible for delays or
failures in performance resulting from acts beyond its control. Such acts shall
include but not be limited to acts of God, strikes, lockouts, riots, acts of
war, epidemics, governmental regulations superimposed after the fact, fire,
communication line failures, computer viruses, power failures, earthquakes or
other disasters.
11. BINDING EFFECT. This Escrow Agreement shall be binding upon the
respective parties hereto and their heirs, executors, successors and assigns.
6
12. MODIFICATIONS. This Escrow Agreement may not be altered, amended or
modified without the written consent of the parties hereto, which consent shall
not constitute a waiver of any of the terms or conditions of this Escrow
Agreement, unless such waiver is specified in writing, and then only to the
extent specified. A waiver of any of the terms and conditions of this Escrow
Agreement on one occasion shall not constitute a waiver of the other terms and
conditions of this Escrow Agreement, or of such terms and conditions on any
other occasion.
13. TERMINATION. This Agreement shall terminate upon the Escrow Agent's
release of the Escrow Account to the Company.
14. SECURITIES LAW INDEMNIFICATION. The Company acknowledges that the
Escrow Agent shall have no responsibility for compliance with any state or
federal securities laws in connection with the Offering. The Company agrees to
indemnify the Escrow Agent for any liability it may incur under such laws in
connection with the Offering.
IN WITNESS WHEREOF, the parties hereto have caused this Escrow
Agreement to be executed as a document under seal by their duly authorized
officers as of the day and year first above written.
FIRST COMMERCIAL BANCORP, INC.
as Company
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------
Name: Xxxxxx X. Xxxxxxxx
Title: President and Chief Executive Officer
The First National Bank of Boston,
as Subscription Agent
By: /s/ Xxxx X. Xxxx
----------------
Name: Xxxx X. Xxxx
Title: Senior Account Manager
State Street Bank and Trust Company
By: /s/ Xxxx Xxxxxxxxx
------------------
Name: Xxxx Xxxxxxxxx
Title: Assistant Vice President
7
FEE SCHEDULE
Annual Escrow Fee
$2,500 billed in advance, first year payable upon signing of the Escrow
Agreement.*
Investment Transaction Fee (if applicable)
A $65 per transaction charge to cover the purchase and sale of
investments held in account under administration. (Fee only applies for
non-State Street Bank investments.)
Extraordinary Administrative Expenses
Fees for services not specifically set forth in this schedule will be
determined by appraisal. Such services may include, but are not limited
to, additional responsibilities and services incurred in case of
default.
Out of Pocket Expenses
Out of pocket expenses such as counsel fees and expenses, telephone,
postage, insurance, shipping charges, outside investment charges and
supplies will be charged at cost.
* Subject to review annually.
