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Exhibit 10.12
SUBSCRIPTION AGENT AGREEMENT
This Subscription Agent Agreement (the "Agreement") is made as of
January 30, 1996 between First Commercial Bancorp, Inc., a Delaware corporation
(the "Company"), and The First National Bank of Boston, as subscription agent
(the "Agent"). All terms not defined herein shall have the meaning given in the
prospectus (the "Prospectus") included in the Registration Statement on Form S-1
(File No. 33-92928) filed by the Company with the Securities and Exchange
Commission ("SEC") on May 31, 1995, as amended by the filing of Pre-Effective
Amendment No. 1 thereto with the SEC on January __, 1996 and by any subsequent
pre- or post-effective amendment (the "Registration Statement").
WHEREAS, the Company proposes to make a subscription offer by issuing
certificates or other evidences of subscription rights, in the form designated
by the Company (the "Subscription Rights Certificates") to stockholders of
record of its Common Stock, par value $0.01 per share ("Common Stock"), as of
October 6, 1995, or such other record date specified by the Company (the "Rights
Record Date"), pursuant to which each stockholder will have certain rights (the
"Stockholder Rights") to subscribe for shares of Common Stock, as described in
and upon such terms as are set forth in the Prospectus, a final copy of which
has been or, upon availability will promptly be, delivered to the Agent;
WHEREAS, the Company proposes to make an exchange offer by issuing
certificates or other evidences of exchange rights (the "Dividend Rights"), in
the form designated by the Company (the "Exchange Offer Certificates") to
stockholders of record of the Common Stock as of June 15, 1992 and September 14,
1992 (the "Dividend-Eligible Stockholders"), pursuant to which the
Dividend-Eligible Stockholders will have the ability to exchange the accrued
dividend and interest amount of the 1992 Dividends for shares of Common Stock,
as described in and upon such terms and conditions set forth in the Prospectus;
WHEREAS, in conjunction with the Company's offering of Common Stock
pursuant to Stockholder Rights (the "Rights Offering") and Dividend Rights (the
"Exchange Offering"), the Company may conduct a public offering (the "Public
Offering") of shares of Common Stock not subscribed for in the Rights Offering
(such offerings collectively being referred to herein as the "Offering");
WHEREAS, upon the conclusion of the Offering, First Banks will act as
Standby Purchaser and as such purchase, at the Subscription Price, such number
of shares of Common Stock as will be necessary to raise the Bank's Tier I
capital ratio to 7.0%; and
WHEREAS, the Company wishes the Agent to perform certain acts on behalf
of the Company, and the Agent is willing to so act, in connection with the
Rights Offering, Exchange Offering, Public Offering and any sale of shares to
First Banks as Standby Purchaser, including the
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distribution of subscription rights and the issuance of shares of Common Stock
upon the exercise thereof, all upon the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
agreements set forth herein, the parties agree as follows:
1. APPOINTMENT. The Company hereby appoints the Agent to act as subscription
agent in connection with (a) the preparation and distribution of Subscription
Rights Certificates and Exchange Offer Certificates, (b) the exercise of
Stockholder Rights and Dividend Rights, (c) the acceptance of subscriptions in
the Public Offering, (d) the issuance of shares to First Banks upon any purchase
as Standby Purchaser, and (e) the issuance of shares of Common Stock (the
"Underlying Shares") in accordance with the terms set forth in the Prospectus
and this Agreement and the Agent hereby accepts such appointment.
2. FORM AND CONTENT OF SUBSCRIPTION CERTIFICATES. Each Subscription Rights
Certificate shall be irrevocable and non-transferable. The Agent, in its
capacity as Transfer Agent of the Company, shall maintain a register of
Subscription Rights Certificates and the holders of record thereof (the "Rights
Holders"). Each Subscription Rights Certificate shall, subject to the provisions
thereof and of the Prospectus, entitle the Rights Holder in whose name it is
recorded to the following:
(1) The right to acquire during the subscription period, as
set forth in the Prospectus, at the Subscription Price, as defined in the
Prospectus, a number of shares of Common Stock equal to 10.695 shares of Common
Stock for each share of Common Stock held of record as of the Rights Record Date
(the "Basic Subscription Privilege");
(2) The right to subscribe for additional shares of Common
Stock, subject to availability and to the restrictions and limitations set forth
in the Prospectus, up to the greater of (a) 1,000,000 shares or (b) an
additional 10.695 shares for each share held on the Rights Record Date, as
specified in the Prospectus; provided, however, that such Rights Holder has
exercised in full the Basic Subscription Privilege to which he, she or it is
entitled (the "Oversubscription Privilege"); and
(3) Notwithstanding the foregoing, no fractional shares shall
be issued on the exercise of Stockholder Rights. Rather, the number of shares
receivable upon exercise of the Basic Subscription Privilege or the
Oversubscription Privilege will be rounded up to the next whole number of
shares. Any excess portion of the Subscription Price submitted by Rights Holders
will be returned and/or put toward the purchase of Underlying Shares, as set
forth in the Prospectus.
3. FORM AND CONTENT OF EXCHANGE OFFER CERTIFICATES. The Agent, in its capacity
as the Company's Transfer Agent, shall maintain a register of Exchange Offer
Certificates and the holders of record thereof (the "Dividend-Eligible
Stockholders"). Each Exchange Offer Certificate shall, subject to the provisions
thereof and of the Prospectus, entitle the Dividend-Eligible Stockholders to the
following:
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(1) The right to exchange each $0.10 of dividend and accrued
interest amount of the 1992 Dividends for one share of Common Stock;
(2) The right to transfer or sell Dividend Rights by proper
endorsement of the Exchange Offer Certificate and presentation thereof to the
Agent for transfer, as set forth in the Prospectus; and
(3) Notwithstanding the foregoing, no fractional shares shall
be issued in connection with the exercise of Dividend Rights. Rather, the number
of Underlying Shares issuable on exercise of Dividend Rights will be rounded up
to the next whole number, as set forth in the Prospectus.
4. NOTICE OF CONDUCT OF PUBLIC OFFERING; FORM AND CONTENT OF GENERAL
SUBSCRIPTION APPLICATION AND AGREEMENT.
(a) The Company shall notify the Agent of the commencement date of the
Public Offering promptly upon a decision by the Board of Directors of the
Company to conduct such Public Offering.
(b) In the event the Company conducts the Public Offering, the Company
shall solicit subscriptions through a General Subscription Application and
Agreement (the "General Subscription Application"), which shall be submitted by
the subscribers to the Agent together with payment in full of the Subscription
Price. At 9:00 a.m. of each business day following the commencement of the
Public Offering, the Agent shall convey to the Company by facsimile transmission
copies of each of the General Subscription Applications received by it during
the previous business day. The Company shall promptly inform the Agent whether
the Company shall accept or reject such General Subscription Application, which
acceptance or rejection shall thereupon be communicated by the Agent to the
subscriber. If a subscription is rejected or reduced by the Company in
accordance with the terms of the Prospectus, the Agent shall return to the
subscriber the funds submitted in respect of such rejected or excess
subscription, without interest thereon.
(c) Notwithstanding the foregoing, no fractional shares shall be issued
pursuant to General Subscription Applications.
5. PREPARATION AND ISSUANCE OF SUBSCRIPTION RIGHTS CERTIFICATES AND EXCHANGE
OFFER CERTIFICATES.
(a) Upon the written advice of the Company, signed by any of its duly
authorized officers, the Agent shall, from a list of the stockholders of the
Company as of the Rights Record Date and the Dividend Rights Record Dates to be
prepared by the Agent in its capacity as Transfer Agent of the Company, prepare
and record Subscription Rights Certificates and Exchange Offer Certificates in
the names of the Rights Holders and Dividend-Eligible Stockholders,
respectively, setting forth the number of Underlying Shares such Rights Holder
or Dividend-Eligible Stockholder is entitled to subscribe for in the Offering,
in accordance with the Prospectus and Sections 2 and 3
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hereof. Each Subscription Rights Certificate shall be dated as of the date of
the Prospectus and shall be executed manually or by facsimile signature of a
duly authorized officer of the Agent and two of the duly authorized officers of
the Company (as determined in accordance with the Company's Bylaws). Each
Exchange Offer Certificate shall be dated as of the date of the Prospectus, and
shall be executed manually or by facsimile signature of a duly authorized
officer of the Agent and two of the duly authorized officers of the Company. No
Subscription Rights Certificate or Exchange Offer Certificate shall be valid for
any purpose unless so executed. Upon the written advice, signed as aforesaid, as
to the effective date of the Registration Statement, the Agent shall promptly
countersign and deliver the Subscription Rights Certificates and Exchange Offer
Certificates, together with a copy of the Prospectus, instruction letter and any
other document as the Company deems necessary or appropriate, to all Rights
Holders and Dividend-Eligible Stockholders with record addresses in the United
States (including its territories and possessions and the District of Columbia).
Delivery shall be by first class mail (without registration or insurance),
except for those holders having a registered address outside the United States
(who will only receive copies of the Prospectus, instruction letter and other
documents as the Company deems necessary or appropriate, if any), delivery shall
be by air mail (without registration or insurance) and by first class mail
(without registration or insurance) to those holders having APO or FPO
addresses.
(b) The Agent will mail a copy of the Prospectus, instruction letter
and other documents as the Company deems necessary or appropriate, if any, but
not Subscription Rights Certificates or Exchange Offer Certificates to holders
whose record addresses are outside the United States (including its territories
and possessions and the District of Columbia) ("Foreign Record Holders"). The
Stockholder Rights and Dividend Rights to which such Subscription Rights
Certificates and Exchange Offer Certificates respectively relate will be held by
the Agent for such Foreign Record Holders' accounts until instructions are
received to exercise the Stockholder Rights or exercise or transfer the Dividend
Rights, as applicable.
6. EXERCISE OF STOCKHOLDER RIGHTS AND DIVIDEND EXCHANGE RIGHTS.
(a) Rights Holders may acquire shares of Common Stock pursuant to the
Basic and Oversubscription Privileges by delivery to the Agent as specified in
the Prospectus of (i) the Subscription Rights Certificate with respect thereto,
duly executed by such Rights Holder in accordance with and as provided by the
terms and conditions of the Subscription Rights Certificate, together with the
full purchase price for each Underlying Share subscribed for, in U.S. dollars by
money order, check or bank draft drawn on a bank in the United States, in each
case payable to the order of the Agent or by wire transfer to the Agent for
further credit to the Company.
(b) Stockholder Rights may be exercised at any time after the date of
issuance of the Subscription Rights Certificates with respect thereto but no
later than 5:00 p.m. California time on such date as is designated in the
Registration Statement as the Rights Expiration Date. For the purpose of
determining the time of the exercise of any Stockholder Rights, delivery of any
material by the Rights Holder to the Agent shall be deemed to occur when such
materials are received at the Shareholder Services Division of the Agent
specified in the Prospectus.
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(c) Dividend-Eligible Stockholders may exercise their Dividend Rights
by delivery to the Agent as specified in the Prospectus of duly completed and
executed Exchange Offer Certificates. Dividend Rights may be exercised at any
time after the date of issuance of the Exchange Offer Certificates but no later
than 5:00 p.m. California time on such date as the Company shall designate to
the Agent in writing (the "Dividend Rights Expiration Date"). For the purpose of
determining the time of the exercise of any Stockholder Rights, delivery of any
material by the Dividend-Eligible Stockholder to the Agent shall be deemed to
occur when such materials are received at the Shareholder Services Division of
the Agent specified in the Prospectus.
(d) Notwithstanding the provisions of Sections 4(a), 4(b) and 4(c)
hereof regarding delivery of an executed Subscription Rights Certificate and/or
Exchange Offer Certificate to the Agent prior to 5:00 p.m. California time on
the applicable expiration date, if prior to such time the Agent receives a
Notice of Guaranteed Delivery by facsimile (telecopy) or otherwise from an
"Eligible Institution," as defined in the Prospectus, guaranteeing delivery of
completed certificates and payment of the full Subscription Price, as
applicable, in the times and on the terms set forth in the Prospectus, then such
exercise of the Basic Subscription Privilege and Oversubscription Privilege and
right to participate in the Exchange Offer shall be regarded as timely, subject,
however, to receipt thereof by the Agent within the periods specified in the
Prospectus.
(e) Certificates representing the Underlying Shares, as well as any
refunds of the Subscription Price, shall be mailed by the Agent to the
subscribers as soon as practicable upon the terms and conditions of the
Prospectus.
7. VALIDITY OF SUBSCRIPTIONS. Irregular subscriptions not otherwise covered by
specific instructions herein shall be submitted to an appropriate officer of the
Company and handled in accordance with his or her instructions. Such
instructions will be documented by the Agent indicating the instructing officer
and the date thereof. Pursuant to the Prospectus, the Company reserves the right
to waive or allow to be cured any defect or irregularity in any subscription, in
the Company's sole discretion, and (notwithstanding anything herein to the
contrary) to determine any question with respect to the timeliness, validity,
form and eligibility of any subscription.
8. OVERSUBSCRIPTION. If, after the exercise of the Basic Subscription Privilege
there remain unexercised Stockholder Rights, then the Agent shall allot the
shares issuable upon exercise of such unexercised Rights (the "Excess Shares")
to subscriptions pursuant to the Oversubscription Privilege. Shares subscribed
for pursuant to the Oversubscription Privilege will be allocated in accordance
with the terms, limitations and restrictions set forth in the Prospectus. If the
number of shares for which the Oversubscription Privilege has been exercised is
greater than the Excess Shares, the Agent shall allocate the Excess Shares pro
rata to the Rights Holders exercising the Oversubscription Privilege based on
the number of Underlying Shares subscribed for pursuant to the Basic
Subscription Privilege, so that the number of shares issued to Rights Holders
who subscribe pursuant to the Oversubscription Privilege will generally be in
proportion to the number of shares of Common Stock owned by them on the Rights
Record Date. The number of Excess Shares each over-subscribing Rights Holder may
acquire will be rounded up to result in delivery of whole shares
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of Common Stock. The Agent shall advise the Company immediately upon the
completion of the allocation set forth above as to the total number of shares
subscribed and distributable.
9. PARTICIPATION BY STANDBY PURCHASER. At the later of the Rights Offering
Expiration Date or the Public Offering Expiration Date, upon receipt from the
Agent of the Final Reports required by Section 11 hereof, the Company will
advise the Agent whether First Banks, Inc. ("First Banks") will be required to
act as Standby Purchaser in the Offering. In the event that First Banks is
required so to act, the Company will inform the Agent of the amount of First
Banks' subscription. The Agent will receive and distribute to the Company First
Banks' subscription in accordance with the terms of this Agreement.
10. HOLDING PROCEEDS OF OFFERING IN SUBSCRIPTION ACCOUNT.
(a) All proceeds received by the Agent from Shareholders in respect of
the exercise of Stockholder Rights and received in the Public Offering or from
First Banks acting as Standby Purchaser shall be held by the Agent, on behalf of
the Company, in a segregated interest-bearing account (the "Subscription
Account") at State Street Bank and Trust Company (the "Escrow Agent"). Pending
disbursement in the manner described in Section 8(b) below, funds held in the
Subscription Account shall be invested by the Escrow Agent in accordance with
the terms of the Prospectus, in short-term certificates of deposit, short-term
obligations of the United States or any agency thereof or money market mutual
funds investing in the foregoing instruments.
(b) The Escrow Agent shall deliver to the Company all proceeds received
in respect of stockholder rights subscriptions in the Offering, as well as from
the sale of shares in the Public Offering or the sale of shares to First Banks,
(including any interest earned thereon) in accordance with the terms of an
Escrow Agreement to be entered into between the Company and the Escrow Agent.
The Escrow Agent shall deliver to the Agent for return to subscribers any funds
in respect of reduced, prorated, rejected or excess subscriptions, or otherwise,
in accordance with the Registration Statement. Delivery shall be made by wire
transfer to the Company's account at First Commercial Bank.
11. REPORTS.
(a) Daily, during the period commencing with distribution by the Agent
of the Subscription Rights Certificates and Exchange Offer Certificates until
termination of the subscription period, the Agent will report by telephone or
telecopier (by 4:00 p.m. California time), confirmed by letter, to an officer of
the Company, data regarding Stockholder Rights and Dividend Rights exercised,
the total number of shares of Common Stock subscribed for, and payments received
therefor, bringing forward the figures from the previous day's report in each
case so as to show the cumulative totals and any such other information as may
be mutually determined by the Company and the Agent.
(b) On each of the Rights Expiration Date, Dividend Rights Expiration
Date and Public Offering Expiration Date, the Agent will report by telephone or
telecopier (by 5:00 p.m. California
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time), confirmed by overnight letter, to an officer of the Company, a final
report (the "Final Reports") with respect to the total number of shares
subscribed for and the total payments received therefor from each respective
Offering.
12. LOSS OR MUTILATION. If any Subscription Rights Certificate or Exchange Offer
Certificate is lost, stolen, mutilated or destroyed, the Agent may, on such
terms which will indemnify and protect the Company and the Agent as the Agent
may in its discretion impose (which shall, in the case of a mutilated
Subscription Rights Certificate or Exchange Offer Certificate, include the
surrender and cancellation thereof), issue a new certificate of like
denomination in substitution for the certificate so lost, stolen, mutilated or
destroyed.
13. COMPENSATION FOR SERVICES. The Company agrees to pay to the Agent
compensation for its services as such in accordance with its Fee Schedule to act
as Agent, dated January 30, 1996 and set forth hereto as Exhibit A. The Company
further agrees that it will reimburse the Agent for its reasonable out-of-pocket
expenses incurred in the performance of its duties as such.
14. INSTRUCTIONS AND INDEMNIFICATION. The Agent undertakes the duties and
obligations imposed by this Agreement upon the following terms and conditions:
(a) The Agent shall be entitled to rely upon any written instructions
or directions furnished to it by an appropriate officer of the Company, whether
in conformity with the provisions of this Agreement or constituting a
modification hereof or a supplement hereto. Without limiting the generality of
the foregoing or any other provision of this Agreement, the Agent, in connection
with its duties hereunder, shall not be under any duty or obligation to inquire
into the validity or invalidity or authority or lack thereof of any instruction
or direction from an officer of the Company which conforms to the applicable
requirements of this Agreement and which the Agent reasonably believes to be
genuine and shall not be liable for any delays, errors or loss of data occurring
by reason of circumstances beyond the Agent's control.
(b) The Company will indemnify the Agent and its nominees against, and
hold it harmless from, all liability and expense which may arise out of or in
connection with the services described in this Agreement or the instructions or
directions furnished to the Agent relating to this Agreement by an appropriate
officer of the Company, except for any liability or expense which shall arise
out of the negligence, bad faith or willful misconduct of the Agent or such
nominees.
15. ASSIGNMENT, DELEGATION.
(a) Neither this Agreement nor any rights or obligations hereunder may
be assigned or delegated by either party without the written consent of the
other party.
(b) This Agreement shall inure to the benefit of and be binding upon
the parties and their respective permitted successors and assigns. Nothing in
this Agreement is intended or shall be construed to confer upon any other person
any right, remedy or claim or to impose upon any other person any duty,
liability or obligation.
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16. GOVERNING LAW. The validity, interpretation and performance of this
Agreement shall be governed by the law of the State of California.
17. SEVERABILITY. The parties hereto agree that if any of the provisions
contained in this Agreement shall be determined invalid, unlawful or
unenforceable to any extent, such provision(s) shall be deemed modified to the
extent necessary to render such provision(s) enforceable. The parties hereto
further agree that this Agreement shall be deemed severable, and the invalidity,
unlawfulness or unenforceability of any term or provision hereof shall not
affect the validity, legality or enforceability of this Agreement or of any term
or provision hereof.
18. COUNTERPARTS. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original and all of which together shall be
considered one and the same agreement.
19. CAPTIONS. The captions and descriptive headings herein are for the
convenience of the parties only. They do not in any way modify, amplify, alter
or give full notice of the provisions hereof.
20. FACSIMILE SIGNATURES. Any facsimile signature of any party hereto shall
constitute a legal, valid and binding execution hereof by such party.
21. FURTHER ACTIONS. Each party agrees to perform such further acts and execute
such further documents as are necessary to effect the purposes of this
Agreement.
22. ADDITIONAL PROVISIONS. Except as specifically modified by this Agreement,
the Agent's rights and responsibilities set forth in the Agreement for Stock
Transfer Services between the Company and the Agent are hereby ratified and
confirmed and continue in effect.
THE FIRST NATIONAL BANK FIRST COMMERCIAL BANCORP,
OF BOSTON INC.
/s/ ▇▇▇▇ ▇. ▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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SIGNATURE SIGNATURE
Senior Account Manager President
TITLE TITLE
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BANK OF BOSTON Exhibit A
Shareholder Services
January 30, 1996
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▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Dear ▇▇▇▇▇▇:
First Commercial Bancorp, Inc. will be charged the following fees respective to
the Rights Offering:
$15,000.00 Project Management/Administration fee
10.50 for 1 - 1,000 Subscription Certificates received and processed, per subscription
certificate
8.00 for 1,001 - 3,000 Subscription Certificates received and processed, per subscription
certificate
5.00 for 3,000+ Subscription Certificates received and processed, per subscription certificate
10.00 Per Defective Subscription Certificate
3,000.00 Per Offer Extension (there are two Offerings)
1,000.00 New York Window Fee Upon Expiration
All out-of-pocket expenses such as postage, insurance, stationery, facsimile
charges, cost of disposal of excess material, etc. will be billed as incurred.
Let me know if you have any questions.
Sincerely,
/s/ ▇▇▇▇▇ ▇▇▇▇
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Account Manager
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THE FIRST NATIONAL BANK OF BOSTON, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇
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